Sanchez-Lopez v. Fuentes-Pujols

United States Court of Appeals
For the First Circuit

Nos. 03-1865, 03-1866

ALICIA SANCHEZ-LOPEZ; HECTOR SANTIAGO-GONZALEZ; CONJUGAL
PARTNERSHIP SANTIAGO-VELEZ; ELMER SAURI-SANTIAGO; ERIC BONETA-
MARRERO; NELLY COLON-ORTIZ; IVELISSE VELEZ DE SANTIAGO,

Plaintiffs, Appellees,

v.

MARIA FUENTES-PUJOLS; GOVERNMENTAL DEVELOPMENT
BANK FOR PUERTO RICO; ADA DIAZ-RIVERA,

Defendants, Appellants.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]

Before
Lynch, Circuit Judge,
Lipez, Circuit Judge,
and Garcia-Gregory,* District Judge.

Joan S. Peters, with whom Andrés Guillemard-Noble, Monique
Guillemard-Noble, and Nachman & Guillemard were on brief, for
appellees.
Enrique J. Mendoza Méndez, with whom Mendoza Law Offices was
on brief, for the Governmental Development Bank and the individual
appellants in their official capacities.
Carlos A. Del Valle Cruz, with whom Anabelle Rodriguez and
Ivonne Palerm Cruz were on brief, for the individual appellants in
their personal capacities.

July 15, 2004

*
Of the District of Puerto Rico, sitting by designation.
 LYNCH, Circuit Judge. In this political discrimination

case from Puerto Rico, six plaintiffs were awarded a jury verdict

in the total sum of $646,000, plus reinstatement, costs, and

attorneys fees. We vacate the verdict and remand.

The appeal involves both the First Amendment prohibition

on discrimination based on political affiliation, Elrod v. Burns,

427 U.S. 347 (1976), and the Mt. Healthy defense available to

government employers, Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977). The Supreme Court's decision in Mt.

Healthy established that even if a plaintiff can demonstrate that

her political affiliation was a substantial factor in the adverse

employment action taken against her, there is no constitutional

violation if the defendant can show both (i) that it would have

taken the same action in any event, and (ii) that it would have

taken that action for reasons that are not unconstitutional. See

Mt. Healthy, 429 U.S. at 286-87. In other words, it is not true

that all a plaintiff needs to show in order to win is that

political discrimination was a motivating reason for the employment

action. The fact that the constitutionally protected activity

played a substantial part in the actual decision to take adverse

employment action does not necessarily amount to a constitutional

violation. Id.

The two distinct questions composing the Mt. Healthy

defense must be answered before a finder of fact may determine that

-2-
political discrimination was the ultimate "but for" cause of an

adverse employment action. In this case, a misapprehension of the

Mt. Healthy defense led to an error in the jury form and

instructions. There is a sufficient likelihood of jury confusion

from those errors that we vacate the judgment for plaintiffs and

remand.

I.

Puerto Rico has two major political parties that dominate

the electoral landscape: the Popular Democratic Party (PDP) and the

New Progressive Party (NPP). Control of the government

periodically switches between the two parties. Entirely too often,

the political party assuming office terminates the employment of

public employees who are affiliated with the party going out of

power and then fills those vacancies with its own members. By the

same token, the outgoing party attempts to secure the continued

tenure of its members in public jobs through a variety of devices,

such as reclassifying policy-type appointments as career positions

or making appointments in violation of Puerto Rico law.

In 1976, the United States Supreme Court held that public

employees have a First Amendment right not to lose their jobs

because of their political affiliation, unless political

affiliation is an appropriate requirement for the effective

performance of the position involved. Elrod, 427 U.S. at 372-73;

see also Cordero v. de Jesus-Mendez, 867 F.2d 1, 9 (1st Cir. 1989).

-3-
That doctrine has been refined over the years. In Branti v.

Finkel, 445 U.S. 507 (1980), for example, the Court held that an

employee need not prove that he or she was coerced into changing

political affiliation in order to prevail under the First

Amendment. Id. at 517. In Rutan v. Republican Party of Ill., 497

U.S. 62 (1990), the Court defined the scope of employment decisions

subject to scrutiny to include promotion, transfer, recall, hiring,

and firing. Id. at 78. And in O'Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712 (1996), the Court extended the protections

of Elrod and Branti to contractors and regular providers of

services to the government. Id. at 726.

In the original political discrimination cases, Branti

and Elrod, there were already findings that the employment

decisions at issue were made on political patronage grounds. See

Branti, 445 U.S. at 510; Elrod, 427 U.S. at 351. The initial issue

presented by those cases was whether historic patronage practices

violated the First Amendment at all. See Elrod, 427 U.S. at 353-

54. The next set of issues concerned whether a plaintiff needed to

show that there had been coercion to change political affiliation,

see Branti, 445 U.S. at 517, and what types of jobs and job changes

(e.g., reappointment) could give rise to claims, see Rutan, 497

U.S. at 68-69. Rutan presented the question whether a First

Amendment claim was stated where a governor had imposed an across-

the-board hiring freeze but had given his "express permission" for

-4-
exceptions to the freeze only for members of his own party, thus

denying hiring, promotion, transfer, and recall to applicants who

were members of other parties. 497 U.S. at 65-66. A majority of

the Court held that a First Amendment claim was indeed stated on

those facts. Id. at 78. For present purposes, it is important

that Rutan did not involve the uniform application of a neutral

employment policy, but rather the selective application of

exceptions according to political party affiliation. See id. at

66.

To the best of our knowledge, the Supreme Court has never

addressed the question whether a political discrimination claim may

be pursued where the new party in power uniformly applies a

personnel practice to all employees -- such as by reviewing all

personnel actions taken during a certain period to determine

whether those actions conformed to local law and undoing them in

every case in which there was a violation.

Despite the thirty years since Elrod, administrations in

Puerto Rico have continued to take employment actions against

public employees because of their political affiliations. With

each change in administration -- at both the commonwealth and

municipal levels -- the federal district courts in Puerto Rico are

flooded with hundreds of political discrimination cases, many of

which are appealed. See, e.g., Gomez v. Rivera Rodriguez, 344 F.3d

103 (1st Cir. 2003) (claims by 24 NPP members who were fired from

-5-
municipal jobs after the PDP won the 2000 mayoral election in

Gurabo); Acevedo-Garcia v. Vera-Monroig, 351 F.3d 547 (1st Cir.

2003) (claims by 82 NPP members who were fired from municipal jobs

after the PDP assumed power following the 1996 mayoral election in

Adjuntas); Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97 (1st

Cir. 1997) (claims by six PDP members who were fired after the NPP

won the 1992 general election); Kauffman v. P.R. Tel. Co., 841 F.2d

1169 (1st Cir. 1988) (claims by ten NPP members who were fired

after the PDP won the 1984 general election). The practice is so

pervasive that jury awards in cases of political discrimination

threaten to bankrupt local governments in Puerto Rico. See

Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49, 55 n.7 (1st Cir. 2004)

(verdict exceeded town budget). And yet the culture of political

discrimination continues.

II.

The most recent series of political discrimination cases

to reach this court arose out of the 2000 general elections, in

which the PDP prevailed over the NPP at the commonwealth level. As

a result of the 2000 elections, defendant Puerto Rico Government

Development Bank (the "Bank") came under the control of the PDP,

and the Bank's NPP board members were replaced with PDP board

members. Defendant Maria Fuentes-Pujols ("Fuentes") was appointed

the new president of the Bank and, according to plaintiffs,

-6-
defendant Ada Díaz-Rivera ("Diaz") constructively functioned as the

new director of human resources of the Bank.

Under Puerto Rico law, there is a period of time, called

the electoral moratorium period ("veda electoral"), during which no

"movement[s] of personnel" are to take place absent emergencies.

See 3 P.R. Laws Ann. § 1337. The moratorium period comprises the

two months preceding and the two months following a general

election.1 Id. The law was enacted "[f]or the purpose of

guaranteeing the faithful application of the merit principle in

public service during the period before and after elections." Id.

In early 2001, the newly-appointed Fuentes decided to

review all personnel actions taken by the former Bank regime

between August 1, 2000 (one month prior to the beginning of the

electoral moratorium) and the elections in November 2000. For

purposes of this opinion, we will simply refer to that period as

the "review period." Fuentes hired an outside consulting firm

called Applied Management Consulting, Inc. to perform the review,

and a consultant named Ana Bonet conducted the audit. A total of

twenty-three personnel actions had taken place during the review

period, and Bonet's audit determined that all twenty-three were in

violation of the Bank's personnel regulations.

1
In the case of municipalities, the moratorium period
extends until the second Monday of January after the general
elections. 3 P.R. Laws Ann. § 1337.

-7-
 The outside audit revealed that the positions of director

of human resources and director of information systems, both

formerly designated as policy-making positions (i.e., political

appointees), had been converted to career positions in violation of

the Bank's personnel regulations. Those conversions affected the

employment status of plaintiffs Hector Santiago-Gonzalez

("Santiago") and Eric Boneta-Marrero ("Boneta"), who held those

respective positions at the time of the conversions. Under the

Bank's personnel regulations, the conversion of a position from

"policy-making" to "career" cannot happen unless there is either a

structural reorganization of the Bank or a significant change in

the functions of the position being converted. According to

Applied Management's audit report, neither prerequisite was

satisfied in this case.

The report also concluded that Santiago's conversion was

invalid for additional reasons. First, because Santiago held the

position at the time the conversion occurred, it was valid under

the regulations only if he had already occupied the position for

six months before the date of the change. But Santiago had only

occupied the position for five months. Second, the announcement of

the position was deficient under the regulations because it listed

the position as requiring a master's degree when in fact the

position actually called for either a master's or a bachelor's

degree. As a result of that deficiency in the announcement, the

-8-
conversion was invalid. And because Santiago had never held a

career position at the Bank, the determination that the conversion

was invalid returned him to a policy-making position from which he

could be, and was, terminated by defendants.

The report concluded that Boneta's conversion, too, was

invalid for an additional reason. Under the regulations, a

conversion may only occur if the incumbent meets the education

criteria for the position. When Boneta's position was converted to

a career position, he had not yet obtained a bachelor's degree,

which was a requirement for holding the position. Boneta, who had

held a career position at the Bank before becoming director of

information systems, was reinstated to that prior career position

once the conversion was determined to be invalid. At trial,

defendants said that they removed both Santiago and Boneta from

their jobs because of the illegality of their appointments.

Plaintiffs countered that the conversions were not

illegal. They claimed that the outgoing administration had

commissioned an outside study on the Bank's classification and

compensation structure and that the Bank's board of directors had

approved the conversions in accordance with the findings of that

study in May 2000. Plaintiffs said that both Santiago and Boneta

had vacated their positions following the conversions, in

accordance with the Bank's regulations, and then had applied for

and had been awarded the respective reclassified positions.

-9-
According to plaintiffs, the specific requirements cited by

defendants -- the six month occupancy requirement and the

educational requirement -- only applied to conversions affecting

incumbents and thus did not apply to either Santiago or Boneta

because they had both vacated their positions.

The Applied Management report commissioned by defendants

concluded that the other twenty-one employees were either

unlawfully appointed to career positions or excessively compensated

in career positions lawfully held.

Among those twenty-one employees was plaintiff Alicia

Sanchez-Lopez ("Sanchez"), who held the position of administrative

assistant. According to the report, her appointment was in

violation of the Bank's regulations because the public announcement

for the position had only been posted for eight days, rather than

for ten days as required. The length of the posting had been

shortened in order to make sure that the position was filled before

the electoral moratorium took effect. Sanchez had not previously

held a career position at the Bank to which she could be

reinstated, so she was fired by the Fuentes regime.

At trial, plaintiffs maintained that there was no

illegality in the appointment. They said that there was an urgent

need to fill the administrative assistant position prior to the

electoral moratorium and that the Bank's president approved the

-10-
shortened posting period as an emergency exception, in compliance

with the regulations.

The Applied Management audit revealed that plaintiff

Nelly Colon-Ortiz ("Colon") was granted a salary that exceeded by

almost fifty percent the lawful maximum compensation for her

position. Following the audit, the Bank corrected her salary to

reflect the maximum compensation allowed for her position.

Plaintiffs argued that Colon's salary was justified by an

exception in the regulations that allows for a higher salary to be

paid where the employee was already receiving a higher salary or

possesses qualifications exceeding those required, or where the

position is difficult to fill.

The audit determined that plaintiff Elmer Sauri-Santiago

("Sauri") occupied a policy-making position in January 1999 and

that, in December 2000, he had exercised his right to be reinstated

to his prior career position as allowed by Puerto Rico law.

However, instead of being reinstated to his prior career position,

Sauri was assigned to a higher position with higher compensation.

As a result, the "reinstatement" effectively amounted to a

promotion, and because it was done during the electoral moratorium,

it was null and void under Puerto Rico law. Consequently,

defendants reinstated Sauri to the position to which he was

entitled under the regulation, and his salary was reduced

-11-
accordingly. Unhappy with his new position, Sauri subsequently

resigned.

Plaintiffs argued at trial that under the regulations,

Sauri had a right to be reinstated to a position "similar or equal

to" his last career position. They contended that the position to

which he was originally reinstated was indeed similar to his

previous career position, but the position to which he was

reinstated by the Fuentes regime was not similar.

At the time of the audit, the Bank had just over 180

employees, of whom about 80% were NPP members and about 20% were

PDP members. There is no evidence that the review process

undertaken by defendants and their outside consultant itself was

applied differentially or in a discriminatory manner; all twenty-

three personnel actions taken during the review period were audited

and corrective action was taken as to all twenty-three employees

affected.

Of the twenty-three employees as to whom corrective

action was taken, the five described above now claim that the

corrective actions that followed the audit were taken against them

due to impermissible political discrimination. The defendants'

rejoinder is that this case is an instance of reverse political

discrimination where the losing party, the NPP, attempted to embed

permanently its employees in public jobs by making appointments and

reclassifying positions in violation of local law. Defendants say

-12-
that they took the corrective actions simply because the personnel

actions taken during the review period were illegal; they claim

that they would have taken the same actions based on such

illegality regardless of the party affiliation of the employees

affected. They say they were trying to reinforce, not defeat, the

merit system. Defendants also argue that two of the plaintiffs,

Santiago and Boneta, do not even have First Amendment claims

because they only held policy-making positions, for which political

affiliation is an appropriate requirement, and the attempts to

convert their positions to career positions were null and void.

III.

The five employees and one of their spouses brought suit

in federal court under 42 U.S.C. § 1983, asserting both due process

claims and First Amendment political discrimination claims. The

suit was brought against the Bank, as well as against Fuentes and

Diaz in both their official and individual capacities. The suit

against the two individuals in their official capacities is in

reality a suit against the Bank. Rosario-Urdaz v. Rivera-

Hernandez, 350 F.3d 219, 222 (1st Cir. 2003). Fuentes and Diaz in

their individual capacities were represented by separate counsel.

The district court dismissed all of plaintiffs' due

process claims on summary judgment. The court held that even if

plaintiffs did have a property interest in their jobs (and thus

could satisfy the first prong of the due process test), they

-13-
nevertheless had not shown that adequate post-deprivation remedies

were unavailable to them (and thus could not satisfy the second

prong of the due process test).

As to the First Amendment claims, the district court

denied defendants' motion for summary judgment on the ground that

defendants' evidence did not compel the conclusion that political

discrimination was not the "but for" cause of the personnel

actions. Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st Cir. 1994).

Defendants argue to us, quite erroneously, that the

district court necessarily must have found that the personnel

actions taken during the review period were null and void under

local law in order to enter judgment on the due process claims.

But the district court was clear that it considered there to be a

material dispute of fact as to whether the appointments were null

and void under Puerto Rico law and that it need not resolve that

dispute in order to rule on the summary judgment motion.

Plaintiffs have not cross-appealed the dismissal of their due

process claims.

Defendant Fuentes, the president of the Bank, also filed

a motion for summary judgment, claiming that she was entitled to

qualified immunity. Inexplicably, the motion did not include

defendant Diaz. The district court denied the motion, finding that

there were several disputed issues of fact.

-14-
 This left the First Amendment claims to be tried to a

jury. At the trial, which lasted seven days, defendants' position

was that the personnel actions taken during the review period were

null and void under local law and that this had two consequences:

first, it meant that there was insufficient evidence that political

discrimination was a contributing cause to the corrective actions

taken by the new regime, and second, it meant that even if

political discrimination were a motivating factor, defendants would

have authorized the audit in any event and uniformly corrected the

irregular appointments under Puerto Rico law. The second argument

is the Mt. Healthy defense. 429 U.S. at 285-87.

At the close of the evidence, Fuentes moved to renew her

claim for qualified immunity, which was again denied.2 The case

was submitted to the jury, which returned a verdict against

defendants on March 18, 2003. The jury awarded compensatory

damages to plaintiffs as follows: $321,000 to Santiago, $90,000 to

Sauri, $50,000 to Colon, $85,000 to Boneta, $70,000 to Sanchez, and

$10,000 to Ivelisse Velez de Santiago (Santiago's wife). The jury

also assessed punitive damages against Fuentes in the amount of

$2,500 for each employee-plaintiff (a total of $12,500) and against

Diaz in the amount of $1,500 for each employee-plaintiff (a total

of $7,500).

2
Fuentes thereafter made no motion under Fed. R. Civ. P.
50(b) for entry of judgment on qualified immunity.

-15-
 The court required plaintiffs to indicate by March 26,

2003 which of them would seek injunctive relief (i.e.,

reinstatement). On March 20, defendants moved to be heard fully on

reinstatement, pointing out that they needed to know who was

seeking reinstatement and on what grounds. On Tuesday, March 25,

the plaintiffs filed their motion for reinstatement, but their

motion was not received by defendants until March 29, a Saturday.

On Tuesday, April 1, defendants filed their opposition to

reinstatement. It was too late: on Monday, March 31, the district

court, without hearing from defendants, had issued the judgment,

which included an order allowing the reinstatement of all five

employee-plaintiffs.

Defendants moved on April 10 to alter or amend the

judgment to deny reinstatement, arguing that they had not been

heard on that issue. On May 5, the court denied the motion without

comment. Also on May 5, the court denied defendants' motion for a

new trial and motion for judgment as a matter of law.

IV.

The Bank, together with Fuentes and Diaz in their

official capacities, appeals from the jury verdict and also

challenges the reinstatement of three of the plaintiffs (Santiago,

Boneta, and Sauri). Fuentes and Diaz in their individual

capacities appeal from the denial of qualified immunity.

-16-
 Before addressing defendants' specific claims on appeal,

we describe the Mt. Healthy defense.

A. The Mt. Healthy Defense

Although Mt. Healthy was a freedom of speech case, it is

routinely applied to political discrimination cases of the

Elrod/Branti/Rutan variety. Padilla-Garcia v. Guillermo Rodriguez,

212 F.3d 69, 74 (1st Cir. 2000). In the aftermath of Mt. Healthy,

confusion still sometimes arises about the issue of causation.

On top of several subsidiary layers of causation, there

is an ultimate constitutional question of "but for" causation. See

Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 417 (1979)

(referring to "but for" causation); Acevedo-Diaz v. Aponte, 1 F.3d

62, 66 (1st Cir. 1993). As the Supreme Court clarified in

Crawford-El v. Britton, 523 U.S. 574 (1998),

[A]t least with certain types of claims, proof of an
improper motive is not sufficient to establish a
constitutional violation -- there must also be evidence
of causation. Accordingly, when a public employee shows
that protected [conduct] was a "motivating factor" in an
adverse employment decision, the employer still prevails
by showing that it would have reached the same decision
in the absence of the protected conduct.

Id. at 593 (emphasis added). Thus, even if a plaintiff meets his

or her initial burden of showing that political affiliation was a

motivating factor for an employment decision, that is insufficient

to establish discrimination as a matter of law because the

plaintiff's case at that point does not "distinguish[] between a

result caused by a constitutional violation and one not so caused."

-17-
Mt. Healthy, 429 U.S. at 286. As the Supreme Court noted, to adopt

a view of causation that focuses solely on whether protected

conduct played a part in an employment decision -- the view that

plaintiffs argued here -- would put an "employee in a better

position as a result of the exercise of constitutionally protected

conduct than he would have occupied [otherwise]." Id. at 285.

To give an example, a plaintiff's political affiliation

may have been an employer's motivating reason for terminating the

plaintiff. Nevertheless, the employer may still defeat liability

for that termination by meeting its dual burden under Mt. Healthy

-- by proving, for example, that the plaintiff had been caught

stealing from the employer and that the employer fires every

employee who steals from it. Carrying that line of argument to

this case, defendants here were entitled to defeat liability by

showing that plaintiffs' positions were obtained in violation of

Puerto Rico law and that, even if political animus was a factor,

defendants would have taken corrective action anyway against every

employee whose position was obtained in violation of law.3 If

there is no dispute that the positions were obtained in violation

of Puerto Rico law, then the only question left is whether

3
The illegality-of-appointment argument was the primary
component of defendants' Mt. Healthy defense. Defendants also
raised a cost-cutting justification for the corrective actions, but
that justification is severely undercut by their prompt hiring, it
appears, of members of their own party to fill the positions
vacated as a result of the corrective actions.

-18-
defendants would have fired all employees holding such positions in

any event. If defendants demonstrated that they in fact have a

practice of taking corrective action against all employees in such

positions, or could otherwise show that they would have taken the

corrective action anyway, then they were entitled to prevail.

There are obvious difficulties with this model, which the

Supreme Court may one day address. The first is that when an

employer asserts a Mt. Healthy defense in a political

discrimination case, the trier of fact (absent a prior

determination under state law) essentially becomes a kind of super-

personnel board making determinations about whether particular

personnel actions violated state or local personnel laws. There is

no evidence here that plaintiffs, if they had any administrative

appeal rights under Puerto Rico law, ever exercised them, though

each of the employee plaintiffs received a pre-termination hearing.

It would be different if this were a case in which a duly

authorized agency determination had been made of the legality of

the personnel actions under local law. The second difficulty

concerns whether the Supreme Court would in the end, once the

illegality of the personnel action to be corrected had been

established under local law, require an employer who had shown a

consistently applied practice of remedying all such illegal

appointments to show anything more.

-19-
 Defendants argue that the law has recently shifted in

their favor. They lean heavily on the Supreme Court's decision in

Texas v. Lesage, 528 U.S. 18 (1999), which they argue requires only

that they show that plaintiffs' appointments were in violation of

law. They view Lesage as excusing them from meeting their burden

under Mt. Healthy of showing that they would have acted to remove

plaintiffs based on the illegality of their appointments in any

event.

Lesage is important, but it does not carry defendants as

far as they would have it take them. Lesage involved a challenge

to a university's affirmative action policy by an applicant for

admission who, it was undisputed, would not have met the

university's admission criteria even if the university had not

applied its challenged affirmative action criteria. 528 U.S. at

19. The Court held that the applicant alleged no cognizable

injury. Id. at 22. Lesage has been most commonly applied in

similar "applicant" situations and is sometimes interpreted as

holding that an applicant lacks Article III standing to sue for

damages if she cannot show that she would have benefitted in the

absence of the challenged government conduct. See Cotter v. City

of Boston, 323 F.3d 160, 166-67 (1st Cir. 2003); Donahue v. City of

Boston, 304 F.3d 110, 116-17 (1st Cir. 2002).

Importantly, in Lesage it was undisputed that the

plaintiff did not otherwise meet the admission criteria. See

-20-
Lesage, 528 U.S. at 21. In cases such as this one, by contrast,

plaintiffs frequently dispute whether there were any irregularities

in their appointments and, even if there were, whether those

irregularities would have led to their removal were it not for the

employer's alleged bad motive. Defendants' argument is that Lesage

has sub silentio overruled the second prong of Mt. Healthy. We

think not. The Supreme Court was explicit about the limits of its

holding in Lesage: "Simply put, where a plaintiff challenges a

discrete governmental decision as being based on an impermissible

criterion and it is undisputed that the government would have made

the same decision regardless, there is no cognizable injury

warranting relief under § 1983." Id. at 21 (emphasis added).4

Our cases have often presented situations in which

defendants have not uniformly applied a neutral basis, such as

illegality of appointment, for taking employment actions, but

rather have taken action against members of the opposing party but

not against similarly situated members of defendants' own party.

See, e.g., Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 10-11 (1st

Cir. 2000) (discriminatory application of an otherwise lawful

layoff plan). By contrast, we have also affirmed entry of summary

judgment for defendants in situations where plaintiffs had no

evidence of differential treatment in the personnel actions taken

4
Even if there were tension between the two cases, we are
bound by Mt. Healthy, which has not been overruled.

-21-
against those who were illegally appointed. See, e.g., Kauffman,

841 F.2d at 1172-73. And we have allowed for a possible claim of

discrimination where, in the guise of restructuring, defendants

eliminated only one job, but not others. Padilla-Garcia, 212 F.3d

at 78. Those holdings are consistent with the notion that simply

showing that an appointment was illegal under local law does not

suffice to meet defendants' Mt. Healthy burden.

B. Jury Instruction and Jury Form Issues

Two of defendants' arguments on appeal involve the

district court's refusal to give certain jury instructions. Our

examination of jury instructions focuses on "whether they

adequately explained the law or whether they tended to confuse or

mislead the jury on controlling issues." Federico v. Order of

Saint Benedict, 64 F.3d 1, 4 (1st Cir. 1995); Brown v. Trs. of

Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989). A properly

preserved objection to the failure to give a requested jury

instruction is reviewed de novo, Gray v. Genlyte Group, Inc., 289

F.3d 128, 133 (1st Cir. 2002), and such a refusal constitutes

reversible error only if it was prejudicial in light of the entire

record, Tum v. Barber Foods, Inc., 360 F.3d 274, 282 (1st Cir.

2004); see also Sheek v. Asia Badger, Inc., 235 F.3d 687, 697 (1st

Cir. 2000). A court's choice of language in jury instructions, by

comparison, is reviewed only for abuse of discretion. Gray, 289

F.3d at 133.

-22-
 1. Kauffman Instruction

Defendants' initial argument is that the district court

erred in refusing to give their requested instruction based on

Kauffman v. Puerto Rico Telephone Co., 841 F.2d 1169 (1st Cir.

1988). Kauffman was a case alleging political terminations in

violation of both the First Amendment and due process rights.

Here, defendants requested an instruction under Kauffman to the

effect that a public employee's expectations of permanent

employment as a result of holding a position for a period of time

have no bearing on the illegality of his or her appointment and

thus that an appointment made in violation of the regulations is

necessarily null and void. The record reflects the following

exchange:

[COUNSEL FOR DEFENDANTS]: Your Honor, in the case
of Kauffman -- Kauffman vs. Puerto Rico Telephone, and I
argued it is clear that an employee ignores the fact that
his employment might be null and void, that doesn't go to
the issue of nullity, and neither having occupied the
position for some time period. It is an expectation to
be kept in the position.

THE COURT: I think that the principles that I
instructed the jury on are consistent with the case that
is tried.

While the language referenced in the proposed instruction derives

from the due process section of analysis in Kauffman, 841 F.2d at

1173 ("[U]nder Puerto Rico law any property right associated with

a career position is rendered null and void if a violation of the

-23-
Personnel Act attends the filling of such a position."), portions

of it are also applicable to a First Amendment Mt. Healthy defense.

The defense was entitled to an instruction that

illegality of appointment was a neutral reason for corrective

action, whatever the employee's subjective expectation. But the

requested instruction went beyond that to suggest that a mere

showing of illegality of appointment sufficed to meet their

defense. Defendants overreached.

2. Policy-making Position Instruction

Defendants equate the term "trust position" ("puesto de

confianza") with "policy-making position" and use the term to

signify a position for which political affiliation is an

appropriate requirement. For purposes of this opinion, we refer to

such a position as a "policy-making position." A new government in

power can replace employees in such positions without violating the

First Amendment. See Branti, 445 U.S. at 517.

One of the Bank's defenses was that two of the plaintiffs

had been in such policy-making positions until the former

administration changed those positions to career positions ("puesto

de carrera") in violation of local law. Defendants argued that

because the change had been illegal, the two plaintiffs affected

(Santiago and Boneta) should have been considered as holding only

such policy-making positions, from which they could be removed

without any First Amendment issue.

-24-
 Defendants introduced evidence to this effect and

requested a jury instruction that a First Amendment claim is not

stated as to positions for which political affiliation is an

appropriate requirement. The requested instruction was rejected,

and defendants properly preserved their objection. See Fed. R.

Civ. P. 51; Connelly v. Hyundai Motor Co., 351 F.3d 535, 544 (1st

Cir. 2003). In rejecting the instruction as irrelevant, the

district court said:

Those positions were career positions. Whether it was
advisable or wise to convert them is a different story,
but they were converted to career.

When you took the adverse employment action, they were
career positions, and we have to start from that.

This reasoning was error in light of defendants' Mt. Healthy

defense. The theory of defendants' case was that these formerly

policy-making positions had been illegally converted into career

positions, that the illegality of the conversions, in turn, meant

that the positions remained only policy-making positions, and thus

that no violation of the First Amendment had occurred.

We consider the question of prejudice in light of

defendants' claims of cumulative error.

3. Deficient Jury Form

Despite the fact that defendants asserted a Mt. Healthy

defense and the court provided an instruction on that defense, the

jury verdict form did not reflect the law under Mt. Healthy.

-25-
Instead, the form asked only the following questions as to

liability with respect to each plaintiff:

Do you find from a preponderance of the evidence:

1. That the Plaintiff engaged in constitutionally-
protected political activity, a form of free speech, as
defined in this court's instructions?

. . . .

2. That such protected political activity by the
Plaintiff was a substantial or motivating factor in the
Defendants' decision to politically discriminate against
the Plaintiff?

. . . .

3. That the Defendants' acts were the proximate or legal
cause of damages sustained by Plaintiff?

. . . .

6. [As to Fuentes and Diaz,] [t]hat the Defendants acted
with malice or with reckless indifference to the
Plaintiff's federally-protected rights . . . .

a. Standard of Review

"A verdict form must be reasonably capable of an

interpretation that would allow the jury to address all factual

issues essential to the judgment." Sheek, 235 F.3d at 699

(internal quotation marks omitted). To determine whether the

issues were fairly presented to the jury, we examine the court's

instructions and the wording of the verdict form as a whole. Id.;

Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996).

We review the court's instructions de novo, unless the objection to

the instructions was not preserved, in which case our review is for

-26-
plain error only. Gray, 289 F.3d at 133; see Reynolds v. Green,

184 F.3d 589, 594 (6th Cir. 1999).

There is a threshold issue of whether defendants waived

their objection to the jury form. Defense counsel represented to

us at oral argument that he saw the verdict form for the first time

when it was read and explained to the jurors at the end of the

charge. Plaintiffs do not dispute that.5 Defendants immediately

objected to the form on the ground that it did not include a

question about the Mt. Healthy defense -- about whether defendants

would have taken the challenged personnel actions anyway because

the appointments violated Puerto Rico law. The district court

rejected defendants' objection and stated that the instructions on

the affirmative defense had been repeated at least three times in

the charge and that those instructions were very clear. The court

also stated that the second question on the jury form addressed

defendants' concern because it required a finding that plaintiffs'

political activity was a substantial or motivating factor. For

reasons described earlier, this explanation was insufficient.

Where a Mt. Healthy defense has been presented we suggest

that, to the extent it may not be a common practice, district

courts use a verdict form that has at least one question explicitly

5
There is no mention of the verdict form in the trial
transcript before the district court's instructions to the jury,
and the record does not indicate the point at which the form was
given to the parties.

-27-
addressed to that defense. We also suggest that proposed verdict

forms always be shared with counsel and discussed together with the

proposed jury instructions before the jury charge and explanation

of the verdict form in open court. Here, the deficiency in the

form could have been avoided altogether had the district court

followed these suggested procedures.

Defendants had an opportunity to provide a draft jury

form to the district court, which they did not take. They also had

the opportunity to request that the district court provide them

with a copy of the form in advance of its explanation to the jury;

again, they did not request it. By the same token (and taking

defendants' representation as accurate), it would have been better

practice for the district court to review the form with counsel

before explaining it to the jurors.6

When the district court told defense counsel that it was

disinclined to substitute a new form or question, defendants could

and should have requested supplemental jury instructions addressed

to any possible jury confusion. For example, defendants could have

requested that the jury be instructed that even if it found that

political discrimination was a motivating factor, it could not on

6
Once the form was read to the jurors, the district court
was caught in a bit of a dilemma. The withdrawal of the form and
substitution of a new form or belated addition of a new question to
the form may have raised the risk of unduly emphasizing the Mt.
Healthy defense. The district court did not, though, express that
concern, and instead refused to alter the form on the ground that
doing so was unnecessary.

-28-
that basis alone award damages without first addressing the Mt.

Healthy defense. The jury could have been instructed that if it

found that the corrective actions would have been taken against

plaintiffs in any event, then under Mt. Healthy, it could not go on

to damages. Defendants did not request any such instructions. It

is reasonable to infer, however, from the colloquy between court

and counsel in the record, that the district court would have

rejected such a request.

In light of the peculiar circumstances giving rise to the

deficiency in the form, this case does not fit neatly into the

usual doctrine of waiver. So we proceed to ask, on this record,

whether there was a realistic prospect of jury confusion on the Mt.

Healthy issue.

b. Analysis of Potential Confusion Caused by the Form

In response to defense counsel's protestation about the

jury form, the court stated, erroneously in our view, that to

answer the second verdict form question "yes," the jury would need

to have rejected the Mt. Healthy defense. We repeat the court's

instructions on the second verdict form question:

Second, do you find from a preponderance of the evidence
that such protected political activity by the plaintiff
was a substantial or motivating factor in the defendants'
decision to politically discriminate against the
plaintiff?

For the reasons that follow, we agree with defendants that the form

was not adequate and that it had the potential to mislead the jury.

-29-
 We start with this observation: defendants' illegality-

of-appointment argument was far from frivolous. Defendants were

able to point to specific alleged violations of Bank regulations

for the personnel actions taken during the review period as to each

of the employee plaintiffs. But it is also true that some of the

alleged violations could have been seen by the jury as involving

technical niceties that might normally have been overlooked. Yet

other alleged violations were clearly more serious -- for example,

the conversions of the two positions from policy-making status to

career status when, allegedly, there was neither a change in the

nature of the positions nor in the Bank's structure that would have

justified the conversions.

The theme of plaintiffs' opening statement was that the

real motivation for the personnel actions that were taken against

the employee plaintiffs was that they were NPP members and that

defendants' stated reasons for the actions were untrue and trivial.

The theme of the opening statement for the Bank and the

two individuals in their official capacities was that they had

followed the rules and regulations of Puerto Rico law without

exception and that the personnel actions that the former NPP regime

had taken as to each of the plaintiffs were unlawful. The theme of

the opening statement for Fuentes and Diaz in their individual

capacities was that plaintiffs "were dismissed or changed from

their positions because they were illegally appointed to those

-30-
positions, and they did not comply with the law." Indeed, the

argument was that it was plaintiffs' party, the NPP, that had

discriminated -- that no one from the PDP party had been assigned

to any positions by the prior administration during the moratorium

period. But if a PDP party member had been unlawfully appointed

during the review period, the defense argued, then the new

administration would have taken corrective action against that

person due to the violation of Puerto Rico law.

In his closing argument, plaintiffs' counsel told the

jury that they would be instructed by the court that even if

plaintiffs

had been wrongly appointed and wrongly transferred, if it
was motivated by politics, you have to find for
plaintiffs. In other words, it wouldn't even matter if,
as they claimed, these plaintiffs had been fired . . .
because the prior appointment had been wrong. Even if
that was so, if you decide that politics was a motivating
factor, you must find for plaintiffs.

As that portion of the closing demonstrates, plaintiffs' case was

tried on a theory of causation directly in conflict with Mt.

Healthy. Their theory was that even if defendants would have taken

the disputed actions anyway because the plaintiffs' appointments

violated Puerto Rico law, that fact was irrelevant if political

discrimination was a motivating factor in the decision. This

argument fundamentally misunderstands Mt. Healthy.7

7
By the same token, defendants argued to the district
judge a theory, described earlier, that also fundamentally
misunderstands Mt. Healthy as being overruled by Lesage.

-31-
 The court correctly instructed the jury that plaintiffs

first had to show that their protected political activity was a

substantial or motivating factor for the disputed personnel

actions. The court also instructed the jury that the burden then

shifted to defendants to show that they would have made the same

decisions based on "some other reason . . . standing alone and in

the absence of political discrimination."8 This second instruction

8
The jury instructions were a slight variation on standard
recommended instructions:

If you find that the plaintiff's protected speech
(or act of expression) was a substantial or motivating
factor in the defendant's decision to take action against
the plaintiff, you must consider whether the defendant
has presented an adequate defense to the plaintiff's
case.
The defendant presents an adequate defense to the
plaintiff's case if the defendant can show, by a
preponderance of the evidence, that it would have reached
the same decision to take action against the plaintiff
even in the absence of the plaintiff's protected speech.
In other words, the defendant must show by a
preponderance of the evidence that it would have made the
same decision without considering the plaintiff's
protected speech.
If the defendant shows by a preponderance of the
evidence that it would have reached the same decision
without considering the plaintiff's protected speech,
then you must find in favor of the defendant.
It is important for you to realize that the
defendant has not presented an adequate defense if it
shows merely that it had other, valid reasons for taking
action against the plaintiff. It is a defense only if
the defendant would have acted on those other reasons in
the absence of the plaintiff's protected speech.
Therefore, if the defendant offers other, valid reasons
for taking action against the plaintiff, the defendant
must further show that it would have acted on those
reasons. Otherwise, it has not presented an adequate
defense.

-32-
was at odds with the jury form, which did not provide any question

addressed to whether defendants had carried their burden. And

although not technically incorrect by itself, that second

instruction became susceptible to an incorrect interpretation by

the jury when considered in conjunction with the jury form.

Because there was no question on the jury form about

whether defendants had carried their two part burden under Mt.

Healthy, the jurors might have thought that if they answered the

first two question on the form "yes" -- i.e., that there was

protected political activity and that it was a substantial or

motivating factor in defendants' decisions -- then those findings

alone could or even must lead to an affirmative finding on question

three -- that defendants' "acts were the proximate or legal cause

of damages sustained by Plaintiff" -- and thus that the affirmative

defense was irrelevant. That understanding of the form was

consistent with a plausible, though incorrect, interpretation of

the court's instruction that defendants had to show that they would

have taken the same actions "in the absence of political

discrimination." Considered in conjunction with the absence of

guidance about the Mt. Healthy defense on the jury form, it becomes

apparent that the jurors could have understood that language as

suggesting that defendants had to prove that there was an "absence

5 L. Sand et al., Modern Federal Jury Instructions 87-284 (Matthew
Bender 2000).

-33-
of political discrimination" before they could take advantage of

the affirmative defense and show that they would have acted the

same way for a different reason.

The possibility that the jurors might have misinterpreted

the instructions in this way is bolstered by the fact that

plaintiffs' counsel himself misunderstood the law in precisely that

way and characterized it as such in his closing argument.

Plaintiffs' counsel erroneously told the jury that "it wouldn't

even matter if, as [defendants] claimed, these plaintiffs had been

fired . . . , because the prior appointment had been wrong. Even

if this was so, if you find that politics was a motivating factor,

you must find for plaintiffs."

Had the court's instruction been accompanied by a

separate Mt. Healthy question on the jury form, the potential

confusion most likely would have been avoided. But the court

rejected defendants' objection to the form, on the ground that the

second question required that the jury find that the plaintiffs'

political activity was "a substantial or motivating factor." The

court added that the jury would need to have rejected the Mt.

Healthy defense in order to answer "yes" to that question. For the

reasons explained earlier, an affirmative answer to that second

question did not eliminate the need to go on to ask whether, even

if defendants were politically motivated as to these actions, they

would nevertheless have taken the same actions based on the

-34-
illegality of the appointments. The court did, in fact, tell the

jury in a short instruction during the charge that even if it

answered the second question "yes," it still needed to go on to the

third question, which asked whether "Defendants' acts were the

proximate or legal cause of damages sustained by Plaintiff[s]," and

that it could answer that question "yes" or "no." At least

arguably, that third question embraced Mt. Healthy causation and

implicated defendants' burden. But if the court did indeed

understand the question in that way, then that interpretation

simply cannot be reconciled with the court's comment to defense

counsel about the meaning of the second question. And in any case,

we cannot say with any assurance that the third question and the

applicable instruction adequately corrected for the significant

jury confusion that could have arisen from the misstatements and

omissions described above.

Moreover, the wording of the second verdict form question

was not precise, and that lack of precision might have affected the

jurors' understanding of the interplay between verdict form

questions two and three. The second question asked whether

plaintiffs' political activity was a substantial or motivating

factor "in the defendants' decision to politically discriminate

against the plaintiff[s]" (emphasis added). It did not more

precisely say "in the defendants' decision to take adverse

employment action against the plaintiff[s]." The wording of the

-35-
question thus assumed a conclusion that was meant for the jury, and

accordingly, could have contributed to juror confusion about

whether defendants could meet their burden once there had been a

finding of any political motivation.

If the evidence were very clearly in plaintiffs' favor

that the Mt. Healthy defense failed, that might influence our

assessment of the risk that the jury was misled. But our reading

of the record is that defendants presented a very strong Mt.

Healthy defense. Each of the defense witnesses reinforced the

defense position that the personnel actions taken by the NPP regime

during the review period were unlawful and that the Fuentes regime

uniformly and fairly took corrective actions in accordance with the

outside report from Applied Management.

Ana Bonet, who was primarily responsible for conducting

the Applied Management audit, testified that she had extensive

experience in Puerto Rico personnel services and explained that she

had done similar audit work for about three other Puerto Rico

agencies after the elections. She described in great detail the

irregularities associated with the personnel actions taken as to

each of the five plaintiffs during the review period, and she

described in more general terms the irregularities associated with

the personnel actions taken as to eighteen other employees during

the review period. Bonet also testified about how her task was

presented to her. She explained that she "was told that [Fuentes

-36-
and the executive committee] only wanted to verify whether [the

twenty-three personnel actions during the review period] were

correct. And if they were correct, everything was fine. And, if

not, [Fuentes and the committee] would have to correct it." That

description of the presentation supported the defense theory that

the Fuentes regime applied the audit in a neutral way and would

have taken corrective action regardless of political affiliation.

The jury also heard from Fuentes, the president of the

Bank. She testified in detail about her decision to conduct the

audit. Upon assuming the position, she explained, she learned that

personnel salaries accounted for one of the Bank's highest

expenses. As a result, she decided, in conjunction with the

executive committee, that the Bank should verify whether its

personnel actions were legitimate and hired Applied Management for

that purpose. Legal counsel advised her and the committee that the

best way to start the review process was to begin with the period

of time closest to the electoral moratorium. Fuentes testified

that she and the committee adhered strictly to the determinations

in the outside report and did not involve themselves in the process

of analyzing the legality of the personnel actions. They followed

Bonet's recommendations, and as to the group of personnel actions

involving irregularities in reinstatement, also consulted the

Puerto Rico Department of Justice for an opinion.

-37-
 Another defense witness, Aixa Diaz Montijo, who was the

vice president of operations and supervised the Bank's division of

human resources, testified that Applied Management was hired "to

conduct [the audit] process as objectively as possible." Her

testimony also made it clear that every one of the personnel

actions taken during the review period were analyzed as part of the

audit.

To be sure, plaintiffs contested the illegality of the

personnel actions taken during the review period and suggested that

political discrimination was the motivating factor for the actions

taken by the Fuentes regime. But the point here is simply that the

affirmative defense was clearly viable given the testimony and thus

that the existence of jury confusion as to the Mt. Healthy defense

was not at all beside the point.

C. Assessment of Prejudice

The combination of the failure to give the policy-making-

position instruction and the failure of the jury verdict form to

ask a distinct Mt. Healthy question is fatal to plaintiffs'

verdict. We are not convinced that the jurors necessarily and

implicitly concluded by their verdict that defendants had failed to

establish a Mt. Healthy defense and that political discrimination

was the "but for" cause of defendants' actions. We cannot say that

we are confident that the jury properly understood the task before

it, especially in light of the deficient verdict form.

-38-
 V.

Defendants have asked that we reverse the verdict or send

the case back for a new trial. If we were confident that no

rational, properly instructed jury could conclude anything other

than that defendants had established their Mt. Healthy defense,

then defendants would have a strong argument for entry of judgment

in their favor. But we cannot reach that conclusion. Plaintiffs

disputed defendants' claim that their appointments were in

violation of Puerto Rico law, so there was a material dispute about

whether defendants even had a neutral reason for the corrective

actions taken.

If, on remand, defendants can persuade a factfinder that

they did indeed have neutral reasons for the personnel actions,

then they will still need to satisfy the second prong of the Mt.

Healthy defense. As to that prong, defendants argue that the

evidence shows that they reviewed all appointments made during the

review period and that they took corrective action against all

employees whose appointments had any defect during that period. If

defendants in fact would have adopted a policy of remedying all

illegality during the review period regardless of the political

affiliation of the affected personnel, and then uniformly applied

that policy, they will be entitled to prevail.

Plaintiffs rely on the fact that all of the employees

affected by defendants' actions were NPP members. That argument

-39-
misunderstands the law under the Elrod/Branti line of cases. While

a jury might consider this impact as evidence that defendants would

not have taken the same action anyway, there is simply not a claim

of "disparate impact" available under this First Amendment

doctrine. If uniformly applied personnel practices, predicated on

legitimate reasons, result in terminations, those terminations are

not unconstitutional because those affiliated with one political

party are disproportionately impacted. It is in the nature of a

change in administrations that job actions by the new party in

power will have a disparate impact on members of the outgoing

party.

Nor does the fact that the new regime focused on a period

of time closely tracking the electoral moratorium period

necessarily help plaintiffs, as they contend. The selection of

that period for review here was perfectly rational -- Puerto Rico

law itself recognizes the electoral moratorium period as the period

of greatest risk of disregard for normal personnel practices. See

3 P.R. Laws Ann. § 1337.

The jury verdict is vacated. The denial of qualified

immunity and the reinstatement order are also vacated. The case is

remanded for proceedings consistent with this opinion.

So ordered. No costs are awarded.

-40-