Gomez-Candelaria v. Rivera-Rodriguez

United States Court of Appeals
For the First Circuit

No. 02-1529
02-1838
02-2076
02-2077

MARIA E. GOMEZ, A/K/A MARIA E. GOMEZ CANDELARIA, ET AL.,

Plaintiffs, Appellees,

v.

JOSE A. RIVERA RODRIGUEZ, ETC., ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,

and Ponsor,* District Judge.

Carlos A. Del Valle Cruz, with whom Anabelle Rodríguez,
Secretary of Justice, and Ivonne Palerm Cruz, Deputy Secretary,
were on brief, for individual capacity appellants.
Ismael Rodríguez-Izquierdo for Municipality of Gurabo and
official capacity appellants.
Jorge Martinez Luciano, with whom Johanna M. Emmanuelli
Huertas and Law Offices of Pedro E. Ortiz Alvarez, PSC were on
brief, for Victor Rivera Hernández, Secretary of the Puerto Rico
Department of Labor and Human Resources, amicus curiae.

__________
*Of the District of Massachusetts, sitting by designation.
 Pablo Landrau Pirazzi, with whom Eliezer Aldarondo Ortiz,
Claudio Aliff Ortiz, Ivan Castro Ortiz, Simone Cataldi Malpica, and
Aldarondo & Lopez Bras were on brief, for appellees.

September 18, 2003
 SELYA, Circuit Judge. These appeals involve claims of

politically motivated discharges. The twenty-four plaintiffs, all

former employees of the Municipality of Gurabo (the Municipality),

are members of the New Progressive Party (NPP). They sued three

defendants — the Municipality, its mayor, José A. Rivera Rodríguez

(the Mayor), and its human resources director, Luz E. Rivera-Oyola

— under 42 U.S.C. § 1983, alleging that a politically

discriminatory animus accounted for their sudden unemployment.

The plaintiffs convinced both a jury and the district

court of the accuracy of this claim; the jury awarded them

substantial compensatory and punitive damages (enumerated in an

appendix to this opinion), and the court ordered their

reinstatement. The defendants appeal, assigning error in a number

of discrete respects. After a painstaking review of the voluminous

record, we conclude that the combined effect of two errors requires

a new trial. We also conclude that, as to Rivera-Oyola, the

district court erred in failing to grant judgment as a matter of

law. The tale follows.

I. BACKGROUND

This case has a lengthy history, chronicled in a pair of

lucid opinions. See Gómez Candelaria v. Rivera Rodríguez, 218 F.

Supp. 2d 66 (D.P.R. 2002) (Gómez I) (denying defendants' motions

for summary judgment); Gómez Candelaria v. Rivera Rodríguez, 218 F.

Supp. 2d 79 (D.P.R. 2002) (Gómez II) (denying defendants' motions

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for post-trial relief). We rehearse here only those details that

help to frame the issues on appeal.

More than a quarter-century ago, the Puerto Rico

legislature created "a special fund, separate and distinct from all

other moneys or funds of the Commonwealth of Puerto Rico." 29 P.R.

Laws Ann. § 711c(a) (1995) (Law 52). This fund was to be

continually at the disposition of the
Secretary [of the Treasury] solely and
exclusively for activities coordinated by the
Employment Service of the Department of Labor
and Human Resources directed to: (1)
Promoting employment opportunities with future
possibilities as thus identified officially by
the Department of Labor and Human Resources;
(2) promoting jobs that are in demand in the
present market; (3) and promoting the creation
of high productivity employment opportunities.

Id. § 711c(b). In practice, Law 52 soon became a vehicle through

which the Commonwealth subsidized locally managed programs to

ameliorate unemployment.

Despite this local emphasis, municipalities have no

automatic entitlement to Law 52 grants. To obtain funding, a

municipality must submit a proposal describing how it intends to

use the money. Because such proposals must be approved by the

Commonwealth's Department of Labor and Human Resources (DLHR) from

year to year, jobs subsidized by Law 52 funds are transitory in

nature, typically lasting for one year only.

Prior to the 2000 general election, the plaintiffs held

municipal positions that had been created and funded under Law 52.

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Most of them had been so employed, under serial one-year contracts,

for periods ranging from two to seven years. The latest contracts

were due to expire on December 31, 2000.

The general election in November of 2000 included a race

for the mayor's office. Rivera Rodríguez stood for election as the

candidate of the Popular Democratic Party (PDP). The plaintiffs

openly opposed his candidacy, participating unabashedly in partisan

marches, meetings, fundraisers, leaflet drops, and other political

activities. Notwithstanding the plaintiffs' efforts, Rivera

Rodríguez defeated the incumbent NPP mayor, Victor Rivera Acevedo.

Prior to the inauguration, the outgoing administration

submitted an updated Law 52 proposal to DLHR. It also extended the

plaintiffs' employment contracts through January 31, 2001. The

changing of the guard took place on January 9, 2001, and the Mayor

appointed Rivera-Oyola (a fellow PDP member) to the position of

human resources director. Soon thereafter, the Municipality

received word that DLHR would not approve the Law 52 proposal

previously submitted by the lame-duck administration.1 In lieu

thereof, DLHR requested a reworked proposal based on the needs

perceived by the new administration. As of the expiration date of

the plaintiffs' contracts, no further Law 52 funds had been made

1
The PDP also had won the gubernatorial election in November
of 2000 and its candidate had replaced an NPP incumbent. These
facts may or may not have contributed to the rejection of the
pending proposal.

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available to the Municipality. After discussing the lack of money

with Rivera-Oyola, the Mayor, by letter dated January 30, 2001,

notified the plaintiffs that their employment would cease the next

day.2

Shortly thereafter, the Municipality submitted a revamped

Law 52 proposal to DLHR. The agency approved that proposal on

February 14, 2001. The job descriptions had changed and, prior to

filling the newly sanctioned positions, the Mayor met with Luis

Piñot Arecco (Piñot), DLHR's deputy secretary for legal affairs and

norms. The ostensible purpose of the meeting was to discuss the

ground rules for the hiring of Law 52 employees. When the

Municipality eventually filled the new positions, the plaintiffs

were left out in the cold.

Dismayed by these developments, the plaintiffs filed suit

in the United States District Court for the District of Puerto

Rico. They alleged, inter alia, that the Mayor and Rivera-Oyola

(who were sued in both their individual and representative

capacities) had violated their freedoms of speech and association

under the First Amendment in failing to renew their Law 52

2
The parties stipulated that although Rivera-Oyola drafted the
termination letters, she had no role in the decision not to renew
the plaintiffs' contracts. We discuss this stipulation in more
detail in a subsequent section of this opinion. See infra Part
II(E).

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employment contracts.3 The defendants denied that they had

violated the plaintiffs' rights, asserting that the disputed

employment decisions were the upshot of the new administration's

differing policies as to how best to serve the needs of the

community.

On January 22, 2002, the individual defendants moved for

summary judgment. They asserted, inter alia, that the complaint

should be dismissed as to five of the plaintiffs because they had

not sought renewal of their contracts; that the complaint should be

dismissed as to Rivera-Oyola because of the parties' stipulation

that she had not participated in the decision to let the

plaintiffs' contracts expire, see supra note 2; and that the

complaint should be dismissed as to the Mayor on the ground of

qualified immunity because, given the guidance he had received from

DLHR, it was objectively reasonable for him to believe that his

conduct did not offend clearly established law.

The district court rejected the defendants' motion as to

the five plaintiffs who did not seek reappointment, finding that

each of them had a constitutionally protected property interest in

continued employment. In this regard, the court declared that:

[W]hen there are funds available for renewal
of Law 52 positions, transitory employees who

3
In a second amended complaint, the plaintiffs added Piñot and
the DLHR's Secretary (Victor Rivera Hernández) as defendants. We
need not dwell on this stratagem as the plaintiffs subsequently
dropped these defendants.

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 have been continuously re-employed with
previous Law 52 grants and who have been for
all practical purposes refused re-employment,
have at that point a property interest in
their continued employment and therefore must
be allowed and are entitled to a pre-
termination hearing. Under these
circumstances, if the contract of a Law 52
transitory employee is not renewed and another
person who is affiliated with a rival
political party is employed in his stead, the
Law 52 transitory employees (Plaintiffs in
this case) have a cause of action under the
law not only for political discrimination but
also for due process.

Gómez I, 218 F. Supp. 2d at 79. The court also refused to dismiss

the complaint as to Rivera-Oyola, concluding that the record

contained facts that contradicted the stipulation and that her

position inherently "has more influence with decision-making

matters than that of a general employee who merely follows orders."

Id. at 75. The Mayor fared no better. In eschewing a grant of

brevis disposition in the Mayor's favor on the ground of qualified

immunity, the court noted that factual disputes as to his

motivation remained to be resolved. Id. at 77.

The case proceeded to trial. The plaintiffs' case in

chief was largely circumstantial. However, one plaintiff, Shirley

Morales Rivera (Morales), testified over objection as to the

substance of a conversation with the Mayor's wife, Mayra Pinero.

According to this witness, Pinero stated (or, at least, intimated)

that party affiliation would play a part in the Municipality's

hiring practices.

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 At the close of the plaintiffs' case, the defendants

moved unsuccessfully for the entry of judgment as a matter of law.

Fed. R. Civ. P. 50(a). Just before the opening of the defense

case, the plaintiffs moved in limine seeking to preclude Piñot's

testimony. The district court granted this motion, and the defense

proceeded without the benefit of its star witness.

At the close of all the evidence, the defendants again

moved for judgment as a matter of law. The court rejected the

motion. The jury found for the plaintiffs; its verdict rested on

a finding that political affiliation was a substantial or

motivating factor in the decision not to renew the plaintiffs' Law

52 contracts and/or not to recall them once DLHR had released the

incremental Law 52 funds. Gómez II, 218 F. Supp. 2d at 83.

Following rendition of the verdict, the individual

capacity defendants moved unsuccessfully for judgment as a matter

of law, or in the alternative, a new trial. See id. at 89. These

appeals followed (there are four, but the details need not concern

us). We granted the Secretary of DLHR leave to appear as amicus

curiae in connection with the district court's novel construction

of Law 52.

II. ANALYSIS

The Supreme Court has been unmistakably clear that

nonpolicymaking public employees are constitutionally protected

from adverse employment decisions on account of their political

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affiliation. See Rutan v. Repub. Party, 497 U.S. 62, 75 (1990);

Branti v. Finkel, 445 U.S. 507, 516-17 (1980); Elrod v. Burns, 427

U.S. 347, 372-73 (1976) (plurality). This constitutional doctrine

is premised on the fact that politically motivated discharges

impinge on core freedoms protected by the First Amendment, such as

freedom of belief and freedom of association. See Elrod, 427 U.S.

at 355-58; Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74

(1st Cir. 2000).

When a public employee advances a political

discrimination claim against her employer, two principal questions

arise. First, the court must determine whether the plaintiff is

the kind of employee whose job enjoys protection against political

patronage. See Branti, 445 U.S. at 517-20. Basically, this

protection extends to public employees who occupy neither

policymaking positions nor positions of unusual confidence. See

Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 322-26 (1st Cir.

1987). We need not probe this point more deeply as the plaintiffs

in this case held low-level jobs and the defendants have not

claimed that political affiliation was an appropriate criterion for

making decisions vis-à-vis those jobs.

The second question involves causation: whether a

plaintiff was denied, or banished from, public employment for

political reasons. This requires the plaintiff to show that

political affiliation was a substantial or motivating factor in the

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decisional calculus. Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977). If the plaintiff satisfies this

burden, the devoir of persuasion shifts to the defendants to prove

that they would have taken the same action regardless of the

plaintiff's political affiliation. See Padilla-Garcia, 212 F.3d at

74 (citing Mt. Healthy, 429 U.S. at 287). The causation question

typically is grist for the factfinder's mill. See Lewis v. City of

Boston, 321 F.3d 207, 218-19 (1st Cir. 2003); see also Dedham Water

Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir.

1992).

In these appeals, the defendants' primary contention is

that the district court committed crucial instructional and

evidentiary errors that unfairly influenced the jury's resolution

of the causation question. In the pages that follow, we discuss a

claim of instructional error, two claims of evidentiary error, and

a claim that one defendant (Rivera-Oyola) was entitled to judgment

as a matter of law.

A. Status of Law 52 Employees.

The defendants and the amicus (whose assistance we

appreciate) object to the district court's holding that Law 52

contract employees have a property interest in their continued

employment. The court originally made this holding in denying the

defendants' motion for summary judgment, Gómez I, 218 F. Supp. 2d

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at 77-79, and later instructed the jury to the same effect. We

deal first with this point.

We begin with an explanation of why it makes a difference

whether a public employee has — or does not have — a property

interest in her employment. An employer usually can dismiss an at-

will employee without any special ceremony. See Smith v. F.W.

Morse & Co., 76 F.3d 413, 426 (1st Cir. 1996) (explaining that "an

employer can give an at-will employee — even one who has been a

stellar performer — her walking papers at any time, for any reason

or no reason"). A public employee may, however, acquire a property

interest in continued employment. In that event, the employer

cannot dismiss her (and, thus, deprive her of her property) without

affording her due process.4 See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985).

Against this backdrop, we turn to the case at hand. A

constitutionally protected property interest in continued public

employment typically arises when the employee has a reasonable

expectation that her employment will continue. See, e.g., Rivera-

4
The due process issue may at first glance appear to be purely
academic, as the plaintiffs obtained complete relief on their First
Amendment claims. We nonetheless treat this issue for two reasons.
First, the case will have to be retried, see text infra, thus
wiping the slate clean. Second, the district court seems to have
grounded its denial of brevis disposition vis-à-vis the five
plaintiffs who did not seek renewal of their Law 52 contracts on
its property interest holding. Because that rationale is
insupportable, the status of these five plaintiffs will have to be
reexamined by the district court.

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Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. 1992).

Under ordinary circumstances, an at-will employee lacks a

reasonable expectation of continued employment (and, thus, has no

property interest in her job). King v. Town of Hanover, 116 F.3d

965, 969 (1st Cir. 1997). This is true of so-called transitory

public employees in Puerto Rico. See, e.g., Nieves-Villanueva v.

Soto-Rivera, 133 F.3d 92, 94 (1st Cir. 1997) (explaining that

"transitory employees generally do not have a property interest in

continued employment beyond their yearly terms of appointment");

Caro v. Aponte-Roque, 878 F.2d 1, 4 (1st Cir. 1989) (similar).

Despite this body of law, the district court concluded

that Law 52 employees enjoy a property interest in continued public

employment. In reaching this conclusion, the court recognized that

"a property interest is not generally granted to transitory

employee positions because these positions are created to fill an

employer need or to perform specific tasks of a finite duration."

Gómez I, 218 F. Supp. 2d at 78 (emphasis in original). The court

regarded positions subsidized under Law 52 as an exception to this

rule because the "transitory nature[]" of such positions is

"predicated upon the approval of Law 52 proposals and the

subsequent availability of funds and [is] not based merely on

employer need." Id. at 78-79.

Although we agree with the district court's premise — Law

52 positions do depend to some extent on DLHR's approval of annual

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proposals and the concomitant release of funds — we cannot accept

the court's conclusion that individual employees are entitled to

property interests in the positions themselves. There is nothing

in either the language or the legislative history of Law 52 that

would except positions subsidized thereunder from the operation of

the usual rule. The district court therefore erred in holding that

the plaintiffs had property interests in their Law 52 employment

beyond the stated duration of their annual contracts.5

B. Piñot's Testimony.

The next battleground that we visit concerns the district

court's decision to bar the testimony of Piñot (whom both sides had

identified in the joint pretrial order as a fact witness to the

events leading to the Mayor's actions). The court predicated its

decision on two grounds: (1) that the defendants had failed to

submit a written report detailing Piñot's intended testimony or

otherwise to satisfy the disclosure requirements imposed by Fed. R.

Civ. P. 26, and (2) that Piñot's testimony would inevitably

encompass his interpretation of Law 52, thus encroaching on the

5
This determination in no way alters the First Amendment
analysis. Public employees can never be fired in violation of their
First Amendment rights. "Thus, the fact that a transitory employee
does not have a reasonable expectation of renewal in his or her
employment . . . does not defeat a First Amendment claim." Nieves-
Villanueva, 133 F.2d at 98; accord Cheveras Pacheco v. Rivera
Gonzalez, 809 F.2d 125, 127-29 (1st Cir. 1987) (holding that
transitory employees are entitled to protection under the
Elrod/Branti line of cases).

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judge's domain. Gómez II, 218 F. Supp. 2d at 87. We test these

premises.

1. Fed. R. Civ. P. 26. The trial court worried that the

proffered testimony was, in the court's own words, "in actuality

that of an expert." Based on this conclusion, the court ruled that

Piñot could not testify because the defendants had neglected to

comply with the expert witness requirements of Rule 26. So viewed,

the preclusionary order was a sanction for a discovery violation,

which we review for abuse of discretion. Macaulay v. Anas, 321

F.3d 45, 51 (1st Cir. 2003); Jackson v. Harvard Univ., 900 F.2d

464, 469 (1st Cir. 1990).

We start — and, in this case, stop — with the question

whether the district court abused its discretion in invoking the

expert witness requirements of Rule 26. We approach this question

mindful that a court abuses its discretion if it ignores a material

factor deserving significant weight, relies upon an improper

factor, or assesses only the proper mix of factors but makes a

serious mistake in evaluating them. Indep. Oil and Chem. Workers

of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929

(1st Cir. 1988). Superimposed on that rubric is the principle that

"mistakes of law . . . always constitute abuses of a court's

discretion." Gay Officers Action League v. Puerto Rico, 247 F.3d

288, 292 (1st Cir. 2001). For the reasons that follow, we conclude

-15-
that the district court misclassified the proffered testimony and,

accordingly, erred as a matter of law.

Fed. R. Civ. P. 26 is an integral part of the machinery

devised to facilitate the management of pretrial discovery. Among

other things, the rule places on litigants an affirmative duty to

furnish, in advance of trial, "the name . . . of each individual

likely to have discoverable information that the disclosing party

may use to support its claims or defenses . . . [and to] identif[y]

the subjects of the information." Fed. R. Civ. P. 26(a)(1)(A).

The record demonstrates that the instant defendants complied with

this provision. In the joint pretrial order, they listed Piñot as

a potential witness, indicated his position with DLHR, and stated

that he would "testify regarding the meeting held with [the Mayor]

over the discussion of the 2001 Law No. 52 proposal approval, the

guidance requested by the [Mayor] regarding the former employees

and the criteria provided for the mentioned issue." The statement

left no doubt that Piñot was a fact witness who possessed

discoverable information. See Cusumano v. Microsoft Corp., 162

F.3d 708, 716 n.5 (1st Cir. 1998) ("[T]o be discoverable,

information need only appear to be 'reasonably calculated to lead

to the discovery of admissible evidence.'") (quoting Fed. R. Civ.

P. 26(b)(1)). No more was exigible.

It is true, of course, that Rule 26 delineates additional

safeguards with respect to expert testimony. For instance, the

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rule obligates a party who wishes to offer such testimony to

disclose, during pretrial proceedings, "the identity of any person

who may be used at trial to present evidence under Rules 702, 703

and 705 of the Federal Rules of Evidence." Fed. R. Civ. P.

26(a)(2)(A). Even more stringent requirements pertain to "a

witness who is retained or specially employed to provide expert

testimony in the case or whose duties as an employee of the party

regularly involve giving expert testimony." Fed. R. Civ. P.

26(a)(2)(B). Such a witness must submit a written report

containing, inter alia, detailed information as to the

qualifications and intended testimony of the witness. Id. The

defendants regarded Piñot as a fact witness, not an expert witness,

and therefore omitted this information.

The district court disagreed with this taxonomy. It

ruled that the defendants had misclassified Piñot and had thereby

transgressed Rule 26. We find this ruling insupportable: the

expert witness requirements do not affect a witness in Piñot's

position.

Rule 26 uses the term expert "to refer to those persons

who will testify under Rule 702 of the Federal Rules of Evidence

with respect to scientific, technical, and other specialized

matters." Fed. R. Civ. P. 26(a)(2) advisory committee's note to

the 1993 amendments. That definition does not encompass a

percipient witness who happens to be an expert. If the individual

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is not providing testimony under Rule 702, he is not an expert

witness for the purpose of Rule 26. See id.

The advisory committee specifically used the example of

a treating physician to illustrate the sort of witness who may have

specialized knowledge yet need not be considered an expert for the

purpose of submitting a report as part of pretrial discovery. See

id. By and large, courts have followed the advisory committee's

lead and ruled that a treating physician, testifying as to his

consultation with or treatment of a patient, is not an expert

witness for purposes of Rule 26. See, e.g., NGO v. Stand. Tools &

Equip. Co., 197 F.R.D. 263, 266 (D. Md. 2000); Mangla v. Univ. of

Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996); Sipes v. United

States, 111 F.R.D. 59, 61 (S.D. Cal. 1986).

The analogy is compelling. The record in this case makes

manifest that Piñot and the Mayor had met and discussed both the

procedure for filling the new Law 52 slots and the Municipality's

obligations to the former employees well before the occasion for

litigation arose. The Mayor claims that he acted on Piñot's

advice. Unquestionably, then, Piñot was a direct participant in

the events at issue, and the record confirms that his testimony was

offered to that end. Like the testimony of a treating physician,

Piñot's testimony would have been based on personal knowledge

acquired before any litigation had begun. He was an actor with

regard to the occurrences from which the tapestry of the lawsuit

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was woven, and the defendants sought to present his testimony on

that basis.

The bottom line is that Piñot was a fact witness, and his

first-hand testimony should have been considered under the

standards that govern such witnesses — not under the special

provisions that apply to expert witnesses. Consequently, the trial

court's conclusion that there had been a discovery violation rested

on a mistake of law. It follows inexorably that the court lacked

authority to levy the preclusionary sanction — there was no

transgression to punish.

Let us be perfectly clear. Piñot obviously has

specialized knowledge by virtue of his position with DLHR and his

chairmanship of the board that assesses and approves Law 52

proposals. But the triggering mechanism for application of Rule

26's expert witness requirements is not the status of the witness,

but, rather, the essence of the proffered testimony. Patel v.

Gayes, 984 F.2d 214, 218 (7th Cir. 1993); Fed. R. Civ. P. 26(a)

advisory committee's note to the 1993 amendments. Accordingly, a

party need not identify a witness as an expert so long as the

witness played a personal role in the unfolding of the events at

issue and the anticipated questioning seeks only to elicit the

witness's knowledge of those events. See Patel, 984 F.2d at 217-

18. Piñot fit into this niche. Thus, Rule 26 afforded no

justification for the wholesale exclusion of his testimony.

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 2. Legal Opinion. Although we find the wholesale

exclusion of Piñot's lay testimony insupportable as a discovery

sanction, the defendants have another obstacle to overcome. When

granting the plaintiffs' motion in limine from the bench, the

district court commented that "any factual testimony that [Piñot]

may offer [would be] inextricably conjoined to expert opinion and

testimony"; that the witness would, in effect, wind up

"interpret[ing] the law for the jury"; and that this concatenation

of circumstances would infringe upon the judge's role as "the sole

interpreter of Law 52 when instructing the Jury on the law." The

court reiterated this point in rebuffing the defendants' post-trial

motions. See Gómez II, 218 F. Supp. 2d at 87 (declaring that "no

witness is allowed to interpret the law for the jury"). In voicing

these sentiments, the court leaned heavily on our decision in

Nieves-Villanueva, 133 F.3d at 99 (describing as "black-letter law"

the postulate that it is for the judge, not the witnesses, to

inform the jurors as to the applicable law). We deem this an

alternative basis for excluding Piñot's testimony, and, thus,

inquire into it.

We evaluate a trial court's decision to admit or exclude

evidence for abuse of discretion. Pendleton v. City of Haverhill,

156 F.3d 57, 64 (1st Cir. 1998). This deferential standard applies

because "[e]very trial presents a blend of idiosyncratic

circumstances" — a reality that counsels in favor of affording the

-20-
presider some appreciable latitude in making evidentiary findings.

United States v. Zaccaria, 240 F.3d 75, 78 (1st Cir. 2001).

Despite the deference that is due, we are of the view that the

court below went too far when it banned Piñot from testifying at

all on the ground that his testimony would embody inadmissible

legal opinion. Our reasoning follows.

Courts generally have held legal opinion testimony

inadmissible under Fed. R. Evid. 702. See, e.g., Specht v. Jensen,

853 F.2d 805, 807-10 (10th Cir. 1988) (en banc); Marx & Co. v.

Diners' Club, Inc., 550 F.2d 505, 508-11 (2d Cir. 1977). But these

cases are inapposite here. As we already have explained, the

defendants proposed to call Piñot as a fact witness, not an expert

witness under Rule 702. See supra Part II(B)(1).

The fact that Piñot was a percipient witness makes a

world of difference. Assuming for the sake of argument that

Nieves-Villanueva announced a general evidentiary rule to the

effect that legal opinion testimony is per se inadmissible,6 that

rule would not be implicated in these circumstances. After all,

the rationale for excluding legal opinions is directed at excluding

testimony as to ultimate legal conclusions. Thus, courts have held

that a witness cannot testify that an appointment was made in

6
There is good reason to believe that Nieves-Villanueva did
not announce such a per se rule. See Nieves-Villanueva, 133 F.3d
at 100 (discussing why expert legal opinions do not assist the
trier of fact — a discussion that would have been unnecessary if
the testimony were per se inadmissible).

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violation of the law, e.g., Nieves-Villanueva, 133 F.3d at 99, or

that a search was unreasonable and thus illegal, e.g., Specht, 853

F.2d at 808, or that contractual obligations have a particular

legal effect, e.g., Marx & Co., 550 F.2d at 508. But courts "draw

a clear line between permissible testimony on issues of fact and

testimony that articulates the ultimate principles of law governing

the deliberations of the jury." Specht, 853 F.2d at 808.

Piñot's proposed testimony clearly falls on the sunny

side of this line. While his testimony was not admissible for the

purpose of proving what obligations the law imposed upon the Mayor,

it was admissible to show the Mayor's understanding at the time and

his ensuing state of mind. See United States v. Cavin, 39 F.3d

1299, 1309 (5th Cir. 1994).

Of course, Piñot's testimony — like all testimony — would

have been subject to the balancing test mandated by Evidence Rule

403 (which allows exclusion of relevant evidence "if its probative

value is substantially outweighed by the danger of . . . confusion

of the issues[] or misleading the jury"). But the district court

did not rely upon Rule 403 in excluding Piñot's testimony, and, in

all events, the wholesale exclusion of that testimony cannot be

justified under Rule 403. The Rule 403 balancing test applies

statement by statement. See Kassel v. Gannett Co., 875 F.2d 935,

952 (1st Cir. 1989) (noting that the trial court "must balance the

prejudicial effect and probative value of each statement offered").

-22-
To use the rule as an instrument for the wholesale exclusion of a

percipient witness's testimony would be tantamount to allowing the

presider to cut down the entire tree out of fear that some of the

fruit might prove rotten. Rule 403 requires more delicate pruning

of evidentiary proffers.7 See id. (warning against throwing "out

the baby with the bath water").

That ends this aspect of the matter. Although Piñot may

well have testified as to the legal advice that he gave the Mayor,

that is not the kind of legal opinion testimony that the case law

deems wholly inadmissible. Accordingly, the blanket exclusion of

Piñot's testimony constituted an abuse of the trial court's

discretion.

C. The Mayor's Wife.

The defendants also assert that the trial court erred in

allowing Morales's testimony as to the substance of discussions she

claims to have had with the Mayor's wife (Pinero). Morales

testified over objection that Pinero interviewed her in an office

in the town hall; that Pinero queried Morales's escort as to

whether she (Morales) was a member of the PDP; and that, after

receiving an assurance of Morales's political fealty, Pinero

expressed an interest in hiring Morales as her secretary. She then

7
By the same token, Piñot's testimony would have been subject
to limiting instructions. See United States v. Nivica, 887 F.2d
1110, 1119 (1st Cir. 1989). But the need to limit the jury's use
of certain testimony does not give the trial court carte blanche to
exclude it entirely.

-23-
asked for Morales's full name, stated that "Law 52 was going to be

approved," and indicated that this created an opportunity for the

new administration to hire PDP adherents.

The plaintiffs offered this testimony to prove the truth

of the matter asserted, i.e., that the defendants acted out of a

politically discriminatory animus in allowing the plaintiffs' Law

52 contracts to expire and in filling the new jobs with PDP

partisans. Because Pinero was not a party to the case, the

testimony, on its face, was garden-variety hearsay. See Fed. R.

Evid. 801(c) ("'Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted."). As such, it

was inadmissible unless it somehow escaped the normal hearsay

prohibition. To avoid this bar, the plaintiffs posited that

Pinero's statements were not hearsay because they constituted

admissions of a party-opponent.8 The defendants objected, pointing

to the lack of an adequate foundation. To counter this objection,

the plaintiffs insisted that Pinero was a member of the Mayor's

inner circle (and, therefore, an agent of the defendants).

8
The applicable Evidence Rule provides in relevant part that
a "statement is not hearsay if . . . [it] is offered against a
party and is . . . a statement by the party's agent or servant
concerning a matter within the scope of the agency or employment,
made during the existence of the relationship." Fed. R. Evid.
801(d).

-24-
 The district court overruled the defendants' objections,

reasoning that "Mayor Rivera's wife was in fact an extension of the

Mayor, and did in fact hold a position within the Municipality of

Gurabo that was akin to his alter ego." The jury was then allowed

to hear Morales's version of the conversation. The district court

reiterated its earlier conclusion in the course of denying the

defendants' post-trial motions, recalling that it had heard

"repeated testimony that [Pinero] occupied an office at the

Municipality" and that she "was conducting interviews of

prospective employees on behalf of the Mayor." Gómez II, 281 F.

Supp. 2d at 88. The court then stated that it was "common

knowledge that wives of politicians often occupy positions of power

and prestige within the government alongside their husbands." Id.

We examine this ruling for abuse of discretion. See Pendleton, 156

F.3d at 64.

Parties wishing to introduce statements into evidence

under the aegis of Rule 801(d)(2)(D) must establish, by a

preponderance of the evidence, (1) that an agency relationship

existed; (2) that the statements were made during the course of the

relationship; and (3) that the statements relate to matters within

the scope of the agency. Larch v. Mansfield Mun. Elec. Dep't, 272

F.3d 63, 72 (1st Cir. 2001). Although the Evidence Rules do not

define "agent" or "servant," federal courts grappling with Rule

801(d)(2)(D) proffers have adopted and applied the traditional

-25-
meanings of those terms as reflected in the federal common law of

agency. See, e.g., City of Tuscaloosa v. Harcros Chems., Inc., 158

F.3d 548, 557 n.9 (11th Cir. 1998); Lippay v. Christos, 996 F.2d

1490, 1497 (3d Cir. 1993).9

It is hornbook law that an agency cannot be proven solely

by the unsupported out-of-court statements of the claimed agent.

Although the contents of the putative agent's out-of-court

statements may be considered in the decisional calculus, the

statements "are not alone sufficient to establish the declarant's

authority." Fed. R. Evid. 801(d)(2). For present purposes, then,

Morales's testimony cannot be viewed as self-authenticating. An

agency relationship must be shown to exist by independent evidence

before out-of-court statements by a purported agent can be deemed

admissions by a party-opponent. Mackey v. Burke, 751 F.2d 322, 326

n.3 (10th Cir. 1984); United States v. Portsmouth Paving Corp., 694

F.2d 312, 321 (4th Cir. 1982).

Faced with the need to identify independent foundational

facts, the plaintiffs point out that the determination of whether

a party has built a proper foundation is left principally to the

9
There is some play in the joints as to what a proponent must
adduce to show that an agency relationship in fact existed.
Compare, e.g., United States v. Rioux, 97 F.3d 648, 660 (2d Cir.
1996) (requiring only that one is answerable and responsible to
another), with, e.g., Lippay, 996 F.2d at 1499 (requiring
"continuous, supervisory control"). We need not dwell upon such
fine distinctions: the record here is devoid of any evidence
sufficient to support a finding of agency under either standard.

-26-
sound discretion of the presider. See United States v. Saccoccia,

58 F.3d 754, 782 (1st Cir. 1995). Although we accept that truism,

the trial court's discretion is not boundless. See Ruiz-Troche v.

Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998).

At a bare minimum, the requisite foundation demands something more

than intuitive judgments emanating from broad generalities. See

Kissinger v. Lofgren, 836 F.2d 678, 683 (1st Cir. 1988) (stating

that a proper foundation requires the proponent to adduce

"'evidence sufficient to support a finding' that the evidence is

what the proponent claims it to be") (quoting 5 J. Weinstein & M.

Berger, Weinstein's Evidence, ¶ 901(a)); see also Fed. R. Evid.

104(b). Here, there is no "more."

We have combed the record in this case and discovered no

independent evidence sufficient to establish the requisite

foundation. To be sure, the district court said that Pinero was

conducting interviews of prospective employees on the Mayor's

behalf. Apart from Morales's testimony, however, there is nothing

to show that Pinero interviewed Morales (or any other prospective

employee, for that matter) on behalf of the Mayor. By like token,

the court suggested that it "ha[d] to allow [the] testimony"

because, "as the wife of the new Mayor," Pinero "was in charge of

the political operations of the Municipality of Gurabo at the

time." This too is an uncorroborated ipse dixit; there is simply

no proof that the Municipality, as a governmental entity, engaged

-27-
in "political operations" under the hegemony of the Mayor's wife

either in this administration or as a matter of custom and

practice. Nor is the fact that Pinero had a town hall office at

her disposal sufficient to furnish the missing foundational

support. In the ordinary course of events, many persons are

assigned offices at the seat of government — but that placement

does not confer wide-ranging authority upon all of them. To the

extent that Pinero had political duties or responsibilities, the

record does not contain any enumeration of them.

Similarly, Pinero's marriage to the Mayor, without more,

does not demonstrate the formation of an agency relationship

between them. The mere existence of a marital bond cannot serve as

a proxy for competent proof of an agency relationship. Cf. Gannett

v. Carp (In re Carp), ___ F.3d ___, ___ (1st Cir. 2003) [No. 02-

2323, slip op. at 17] (noting that "[t]he sins of the husband are

not automatically visited upon the wife"). While we are not blind

to political realities — we recognize that spouses of elected

officials can, and often do, exercise influence in matters of

public concern — generalizations are no substitute for hard facts.

See Blake v. Pellegrino, 329 F.3d 43, 48 (1st Cir. 2003). In this

case, the absence of particularized evidence dooms the plaintiffs'

argument.

In making this assessment, we find unhelpful the district

court's statement that Pinero "was part of the political group that

-28-
had taken over the new administration." For aught that appears,

that statement is based only on Pinero's PDP ties and her support

for her husband's candidacy. If this were sufficient to make

Pinero an agent of either the Mayor or the Municipality, then any

member of the PDP would so qualify. That is not the law. See

Restatement (Second) of Agency § 1 (1958) (defining agency).

In an effort to locate the missing link, the plaintiffs

note that the Mayor testified during his deposition that his wife

regularly collects information for him. That comment, offered in

response to a question asking "in what way does your wife help you

in . . . municipal affairs?," fails to prove the plaintiffs' point.

When the interrogator inquired further, the Mayor made it clear

that his wife's role was social in nature and that she played no

part in the making of employment decisions.

To say more on this point would be supererogatory.

Because the record reveals no evidence sufficient to sustain a

finding that Pinero acted as an agent for either the Mayor or the

Municipality in connection with the hiring of Law 52 employees, the

district court abused its discretion in failing to exclude

Morales's testimony as hearsay. See, e.g., Am. Eagle Ins. Co. v.

Thompson, 85 F.3d 327, 333 (8th Cir. 1996); Lippay, 996 F.2d at

1496-99.

-29-
 D. Effect of the Errors.

We turn now to the cumulative effect of these errors.

The analytic framework is familiar: a district court's error

necessitates a new trial only if it affects the complaining party's

substantial rights. See Fed. R. Civ. P. 61. In general — the

exceptions are not applicable here — this standard requires that

the challenged ruling has had a substantial and injurious effect or

influence upon the jury's verdict. Ruiz-Troche, 161 F.3d at 87.

To make this determination, a reviewing court must scrutinize the

record as a whole and aggregate the collective effects of multiple

errors. See United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st

Cir. 1993). If the verdict is to stand, the court must be able to

say with a fair degree of assurance that the error(s) did not skew

the verdict. Ruiz-Troche, 161 F.3d at 87.

We have thus far identified three errors, but the first

of these is anchored in quicksand. The district court's erroneous

"property interest" ruling first manifested itself in its denial of

summary judgment. Gómez I, 218 F. Supp. 2d at 78-79. That order

is unappealable at this juncture. The law is clear that, after

trial, the denial of summary judgment merges into the verdict and

cannot be assigned as error. See Rivera-Torres v. Ortiz-Velez, ___

F.3d ___, ___ (1st Cir. 2003) [No. 02-2539, slip op. at 9-11];

Iacobucci v. Boulter, 193 F.3d 14, 22 (1st Cir. 1999).

-30-
 The erroneous "property interest" ruling also cropped up

in the district court's jury instructions. An incorrect jury

instruction is, of course, appealable. Here, however, the

defendants did not interpose a contemporaneous objection to the

faulty instruction. See Fed. R. Civ. P. 51. Consequently, they

did not preserve their claim of error. We have held fast to the

proposition that "silence after instructions . . . typically

constitutes a waiver of any objections." Wilson v. Maritime

Overseas Corp., 150 F.3d 1, 9 (1st Cir. 1998) (citing Putnam

Resources v. Pateman, 958 F.2d 448, 456 (1st Cir. 1992)). That is

precisely what transpired here.

While a forfeited claim of error (such as a claim of

instructional error unaccompanied by a contemporaneous objection)

is almost always subject to plain error review, Chestnut v. City of

Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam),

that is a rigorous standard to satisfy, see United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001) (explaining that "[r]eview

for plain error entails four showings: (1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings"). In a nutshell, the defendants would have to show

not only that the instructional error was obvious but also that the

injustice was great.

-31-
 Courts ought not to decide difficult, highly nuanced

issues unnecessarily. In this instance, prudence dictates that we

refrain from opining whether the defective instruction sinks to the

level of plain error. Because the record contains other cognizable

errors that in and of themselves require a new trial, see text

infra, we are content to allow our comments on the "property

interest" ruling to stand as a guide to the district court on

retrial. See Rosaly v. Ignacio, 593 F.2d 145, 147-48 (1st Cir.

1979) (employing a similar strategy).

This brings us to the two evidentiary bevues (both of

which were properly preserved). In employment discrimination

cases, the factors that motivate a decision are central to the

decisionmaker's liability in his personal capacity.10 See Acevedo-

Garcia v. Vera-Monroig, 204 F.3d 1, 11 (1st Cir. 2000) (stating

that a political discrimination claim "has no meaning absent the

allegation of impermissible motivation"); see also Gómez I, 218 F.

Supp. 2d at 77 (recognizing that "the information possessed by the

defendant" is an important variable in that equation) (quoting

Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002)). So viewed, the

trial court's order barring Piñot's testimony in its entirety went

to the heart of the contested issue. That testimony was the

10
Because the Mayor sets policy for the Municipality, Rivera-
Torres, ___ F.3d at ___ [slip op. at 33-36], the preclusion of
Piñot's testimony also impacted the Municipality (and, thus, the
"official capacity" defendants).

-32-
linchpin of the Mayor's claim that his actions were objectively

reasonable; it would have corroborated the Mayor's version of why

he did what he did. Consequently, its exclusion was plainly

prejudicial. See Cavin, 39 F.3d at 1309 (finding that the

exclusion of expert testimony regarding the considerations that

face an attorney whose client is using his services to perpetrate

fraud was reversible error as it "prevent[ed] the lawyer from

effectively presenting his defense"); cf. Blake, 329 F.3d at 49

(finding prejudicial error when the trial court withheld evidence

from the jury on matters that were vital to the case).

Here, moreover, the nisi prius court compounded the

harmful effect of this error by refusing to allow the Mayor to

testify as to the particular advice that he received from Piñot.

When defense counsel pointedly protested that the aim of this line

of questioning "was to ask [the Mayor] what did he do and what his

understanding, good or wrong," might be, the court responded that

the Mayor could not "say anything as to the law . . . [or why] he

thought he was not violating any law." That ruling was erroneous,

see supra Part II(B)(2), and accentuated the harm resulting from

the wholesale exclusion of Piñot's testimony.

In fairness, the court did allow the Mayor to "testify

that after he prepared the proposal[,] he asked for advice of the

Secretary of Labor and after the advice given, he implemented the

proposal accordingly. . . . He can say that he followed the advice

-33-
. . . without explaining . . . ." Although this was a step in the

right direction, we agree with the defendants that it was not in

any sense a satisfactory surrogate for Piñot's testimony. A

reasonable juror could as easily draw from this skeletal framework

the conclusion that the Mayor sought legal advice on how to slake

his thirst for political revenge in a way that would survive a

legal challenge. The disallowance of Piñot's testimony prevented

the Mayor from placing factual flesh on these bare bones.

The trial court's error in allowing Morales's testimony

was the final nail in the coffin. Without Pinero's statements, the

plaintiffs' case was entirely circumstantial. With that evidence,

the plaintiffs had the benefit of the proverbial "smoking gun."

While circumstantial evidence can be sufficient for burden-shifting

purposes in a discrimination case, see Desert Palace, Inc. v.

Costa, 123 S. Ct. 2148, 2154-55 (2003), the distinction between

circumstantial evidence and direct evidence can still be extremely

important in front of a jury. Among other things, direct evidence

can play a pivotal role in shifting the factfinder's attention from

the credibility of the employee's complaint to the credibility of

the employer's affirmative defense. See Tyler v. Bethlehem Steel

Corp., 958 F.2d 1176, 1185 (2d Cir. 1992). Given the likely impact

of this rather powerful evidence, we cannot say with confidence

that the jury would have reached the same verdict had it been

excluded.

-34-
 To summarize succinctly, we hold that the court's

wholesale exclusion of Piñot's testimony, coupled with the

admission of Morales's hearsay testimony, constituted prejudicial

error. Since there is an unacceptably high risk that these rulings

in cumulation tipped the decisional scales, the verdict cannot

stand.

E. The Stipulation.

Although we have found a new trial necessary, we still

must address Rivera-Oyola's claim that she should not be part of

that proceeding. She asserts that she is entitled to judgment

because of Stipulated Fact No. 19 (the Stipulation), which states:

"While executing or implementing the Mayor's order to not renew the

Plaintiffs' contracts, defendant Rivera-Oyola was strictly

following orders. She had no participation in the act or official

decision not to renew Plaintiffs' contracts." She questions

whether, in light of this stipulation, she could be found to have

been culpably involved in any constitutional violation.

The district court determined that the Stipulation

conflicted with Stipulated Fact No. 22 (reciting that Rivera-Oyola

"drafted the Law 52 employees' termination letters") and Stipulated

Fact No. 23 (reciting that she and the Mayor "discussed Plaintiffs'

employment"). Additionally, the court reasoned that Rivera-Oyola's

position required her to share her views with the Mayor and

-35-
collaborate with him in the formulation of policy.11 Accordingly,

the court denied Rivera-Oyola's timely motions for summary judgment

and judgment as a matter of law. Rivera-Oyola renewed the latter

motion after trial, but the district court again denied it. Gómez

II, 278 F. Supp. 2d at 86.

Because the court erroneously found a conflict where none

existed and thus declined to enter judgment as a matter of law, we

reverse and order the claims against Rivera-Oyola in her individual

capacity dismissed.12 We explain briefly.

Stipulations in litigation are favored because they tend

to expedite trial proceedings, eliminate the need for proving

essentially uncontested facts, and husband scarce judicial

resources. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928

(1st Cir. 1995). Determining the meaning and effect of a

stipulation presents a question of law, engendering de novo review.

Braxton v. United States, 500 U.S. 344, 350 (1991). The question

11
In this regard, the court noted that Rivera-Oyola held a
position that was classified as a position of trust or confidence
under local law, see generally Vazquez Rios, 819 F.2d at 322-26,
and cited a statute indicating that such employees "collaborate
substantially in the formulation of . . . public policy" and
"advise directly" the head of the governmental unit. 3 P.R. Laws
Ann. § 1350 (2000).
12
The claims against Rivera-Oyola in her official capacity are
essentially claims against the Municipality, see, e.g., Nereida-
Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir. 1993) ("An
official capacity suit is, in reality, a suit against a government
entity, not against the governmental actor."), and are thus
unaffected by this conclusion.

-36-
is not whether the stipulation can be read in a way that supports

the decision of the trial court, but, rather, whether the trial

court read the stipulation correctly. Id.

Stipulations are best "understood as the analogue of

terms binding parties to a contract." T I Fed. Credit Union, 72

F.3d at 928. Accordingly, the interpretation of a stipulation

follows general contract law principles. See id. It is axiomatic

that a contractual term should be construed in the context of the

contract as a whole. See Newport Plaza Assocs. v. Durfee Attleboro

Bank (In re Newport Plaza Assocs.), 985 F.2d 640, 646 (1st Cir.

1993). Every term should be given effect, and, thus, separate

clauses should be reconciled whenever possible. See FDIC v. Singh,

977 F.2d 18, 24 (1st Cir. 1992); see also Keystone Fabric

Laminates, Inc. v. Fed. Ins. Co., 407 F.2d 1353, 1356 (3d Cir.

1969).

Rivera-Oyola asseverates that the Stipulation made it

crystal clear that her role was purely ministerial (and, thus, non-

culpable). The district court rejected this asseveration,

concluding that the Stipulation conflicted with other stipulated

facts and, therefore, left a jury question. But a fair reading of

the Stipulation reveals no conflict at all. A person (say, a

secretary) can draft a dismissal letter and discuss the terminated

employment with her boss without in any way participating in the

decision to discharge the affected employee.

-37-
 The statutory job description relied on by the district

court, see supra note 11, in no way alters this analysis. As a

matter of interpretation, specific terms typically trump general

ones. See Edmond v. United States, 520 U.S. 651, 657 (1997); Paul

Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15, 21

n.8 (1st Cir. 2000). Here, the parties crafted the Stipulation to

capture what had occurred on a particular occasion. That certainly

carries far more weight than does a general statutory description

that applies to a myriad of situations and a host of government

employees.

In all events, the statutory description is not in

conflict with the Stipulation. Rivera-Oyola may well formulate

policy and provide advice in a large number of areas (including

personnel matters). The Stipulation simply acknowledges that she

took no part in a particular set of employment decisions.

Counseled parties freely agreed upon this language, and we see no

reason either to disturb or to distort the plain meaning of the

language that they chose.

The plaintiffs argue that the Stipulation should be

discounted because there are facts in evidence that conflict with

it. That argument lacks force. For one thing, the plaintiffs do

not point to any specific piece of evidence that actually

contradicts the Stipulation. For another thing, the very purpose

of a stipulation is to dispense with the need for proof of the

-38-
stipulated fact. Burstein v. United States, 232 F.2d 19, 23 (8th

Cir. 1956). Thus, no evidence tending to establish facts contrary

to the facts stipulated can be considered. See Gander v. Livoti,

250 F.3d 606, 609 (8th Cir. 2001). If the plaintiffs wished to

show Rivera-Oyola's personal involvement in the decisionmaking

process — a fact that would have conflicted directly with the

Stipulation — they were obliged to seek relief from the

Stipulation. See Burstein, 232 F.2d at 23. Absent such a request

— and none was made in this case — the Stipulation is binding upon

the parties and the court. See FDIC v. St. Paul Fire & Marine Ins.

Co., 942 F.2d 1032, 1038 (6th Cir. 1991).

We are left only to determine the legal effect of the

Stipulation. For the plaintiffs to show a deprivation of their

constitutional rights — a finding necessary to recover under

section 1983 — they had to prove that discrimination substantially

motivated the defendant's adverse employment decisions. Mt.

Healthy, 429 U.S. at 287. In a political discrimination case, this

required proof that the actor (here, Rivera-Oyola) intended to

discriminate. Rivera-Torres, ___ F.3d at ___ [slip op. at 19-20];

Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 45-46 (1st Cir.

1988); cf. Chavez v. Martinez, 123 S. Ct. 1994, 2000 (2003) ("In

deciding whether an officer is entitled to qualified immunity, we

must first determine whether the officer's alleged conduct violated

a constitutional right.").

-39-
 For purposes of this case, then, Rivera-Oyola cannot be

personally liable to the plaintiffs unless she had a hand in the

decision not to renew their Law 52 contracts and/or honor their

applications for the newly created positions. There is no evidence

at all that she participated in the hiring process. Thus, the case

against her hinges on her role in the termination of the existing

Law 52 agreements. The Stipulation defines that role. Giving the

words their natural meaning, the Stipulation makes manifest that

Rivera-Oyola had no hand in the relevant decisionmaking.

Consequently, there is no way that the plaintiffs can carry their

burden of showing that she was motivated by a constitutionally

impermissible animus (and, thus, that she is subject to section

1983 liability). For this reason, the district court should have

granted her motion for judgment as a matter of law and dismissed

the claims against her in her individual capacity.

III. CONCLUSION

We need go no further.13 This was an enormously difficult

case, and the able trial judge was forced to wrestle with a

seemingly endless series of complex decisions. In such cases,

perfect judicial scorecards are rare. Here, the court's errors

were of sufficient magnitude to undermine confidence in the jury's

13
Although the appellants advance other assignments of error,
they involve either matters that are informed by this opinion (and,
thus, unlikely to be repeated) or matters relating to remediation
(and, thus, mooted by the vacation of the judgment). Consequently,
we need not deal with them.

-40-
verdict. We have no principled choice, therefore, but to reverse

the judgment and to direct that the case be retried. The

exception, of course, is the action against Rivera-Oyola in her

individual capacity, which ought to be dismissed.

Reversed and remanded with instructions. Costs shall be

taxed in favor of the defendants.

-41-
 APPENDIX

PLAINTIFF DEFENDANT* AMOUNT AWARDED

1. María Gómez Candelaria Municipality $30,000

(compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

2. Abraham Vázquez Municipality $30,000

Martínez (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)

Rivera-Oyola $150 (punitive)

3. Claribel Rodríguez Municipality $25,000

Molina (compensatory)

*
Damages awarded against the Municipality also run against the
other defendants in their official capacities. Amounts awarded
against the individual defendants were awarded against them in
their personal capacities.

-42-
 $15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

4. Grisel I. Calderin Municipality $25,000

Laboy (compensatory)
$15,000 (back

pay)- $1,500

(failure to

mitigate) =

$13,500
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

5. Abraham Carrasquillo Municipality $32,000

Rodríguez (compensatory)
$15,000 (back pay)

- $750 (failure to

mitigate) =

$14,250

-43-
 Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

6. Rafael Coss Orellana Municipality $27,000

(compensatory)
$15,000 (back pay)

- $750 (failure to

mitigate) =

$14,250
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

7. Olga Marín González Municipality $32,000

(compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

-44-
8. Edna G. Rivera Medína Municipality $30,000

(compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

9. Raquel Barbosa Cortés Municipality $35,000

(compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

10. Debby Soto Viera Municipality $25,000

(compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

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11. Santos Román Municipality $33,000

Rodríguez (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

12. José L. Cadiz Picart Municipality $30,000

(compensatory)
$15,000 (back pay)

- $1,500 (failure

to mitigate) =

$13,500
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

13. José L. Cortés Municipality $35,000

Morales (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez

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 $2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)
14. Luis E. Ortiz Delgado Municipality $30,000

(compensatory)
$15,000 (back pay)

- $3,750 (failure

to mitigate) =

$11,250
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

15. Zenaida Pérez Vega Municipality $33,000

(compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

16. Mariel Adorno Municipality $30,000

Santiago (compensatory)

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 $15,000 (back pay)

- $4,500 (failure

to mitigate) =

$10,500
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

17. María V. Amadeo Municipality $27,000

Huertas (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

18. Inés Hernández Municipality $30,000

Barbosa (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

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19. Brenda L. Alamo Municipality $40,000

Sánchez (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,999 (punitive)
Rivera-Oyola $1 (nominal)
$249 (punitive)
20. Carlos J. Hidalgo Municipality $30,000

(compensatory)
$15,000 (back pay)

- $3,0000 (failure

to mitigate) =

$12,000
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

21. Angel Luis Arroyo Municipality $30,000

Guzmán (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)

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 Rivera-Oyola $1 (nominal)
$149 (punitive)

22. Rafael Nazario Municipality $32,000

Rodríguez (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

23. Jackeline Delgado Municipality $25,000

Burgos (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,499 (punitive)
Rivera-Oyola $1 (nominal)
$149 (punitive)

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24. Shirley M. Morales Municipality $30,000

Rivera (compensatory)
$15,000 (back pay)
Rivera- $1 (nominal)

Rodríguez
$2,999 (punitive)
Rivera-Oyola $1 (nominal)
$249 (punitive)

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