Vazquez-Valentin v. Santiago-Diaz

United States Court of Appeals
For the First Circuit

No. 03-1949
DIANA VÁZQUEZ-VALENTÍN,

Plaintiff, Appellee,

v.

VICTOR J. SANTIAGO-DÍAZ, Individually and as Mayor of Toa Baja;
MUNICIPALITY OF TOA BAJA; MILAGROS DELGADO-ORTIZ,
Individually and as Human Resources Director of Toa Baja,

Defendants, Appellants.

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

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

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Carlos A. Del Valle Cruz, with whom Anabelle Rodriguez,
Secretary of Justice, and Ivonne Palerm Cruz, Deputy Secretary for
Litigation were on brief, for appellants in their individual
capacities.

Roberto Ariel Fernández for appellants in their official
capacities and the Municipality of Toa Baja.

Guillermo A. Macari-Grillo, with whom Jesus M. Hernandez-
Sanchez was on brief, for appellee.

September 22, 2004
 LIPEZ, Circuit Judge. Diana Vázquez-Valentín ("Vázquez")

brought an action against defendants -- the Municipality of Toa

Baja; its Mayor, Victor J. Santiago-Díaz ("Santiago"); and its

Director of Human Resources, Milagros Delgado-Ortiz ("Delgado") --

pursuant to 42 U.S.C. § 1983 for demoting and constructively

discharging her because of her political affiliation. Following

the jury verdict awarding compensatory and punitive damages to

Vázquez, defendants seek the entry of judgment on their behalf as

a matter of law or, in the alternative, a new trial. In arguing

for judgment as a matter of law, defendants aver that plaintiff did

not introduce sufficient evidence for a jury to reasonably infer

that defendants discriminated against Vázquez on the basis of her

political affiliation. Such an argument rarely prevails after a

favorable jury verdict. However, having reviewed the record with

care, we agree that it prevails here. Accordingly, we vacate the

verdict and direct entry of judgment for defendants.

I.

Drawing on the evidence presented at trial, we begin by

describing the background of this case. Except where noted, this

background information is undisputed.

A. The Change of Administration and Alteration
of the Job Classification Plan

On November 7, 2000, general elections were held in

Puerto Rico. In the municipality of Toa Baja, defendant Victor J.

Santiago, the PDP candidate for mayor of Toa Baja, defeated the

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incumbent NPP candidate, Víctor Soto, who had been mayor for

sixteen years. In total, the NPP had controlled the municipal

government of Toa Baja for twenty-four years prior to the 2000

election.

Upon taking office, the new administration apparently

faced several challenges. Among them were issues related to

personnel actions and human resources plans that were detailed in

several documents, including an audit from the Comptroller of

Puerto Rico, dated June 14, 2000; a letter from the Commonwealth's

Central Office for the Administration of Personnel and Human

Resources (known by its acronym "OCALARH," which is based on the

Spanish version of the office's name); and another letter from the

Office of the Commissioner for Municipal Affairs (similarly known

as "OCAP").1 These documents addressed personnel issues of the

1
The contents of these documents were not admitted below, over
defendants' strenuous objections. The district court found that
these documents were inadmissible as hearsay and informed the jury
only that defendants sought advice about personnel actions and
other issues, and that they received such advice from these
agencies. The exclusion of these documents as hearsay is
troubling. So crucial to the defendants’ case, and offered as an
explanation for the personnel actions undertaken by the defendants
rather than for the truth of the personnel irregularities described
in the documents, these documents are not hearsay, and they were
highly relevant. Their exclusion might well have justified a new
trial. However, we do not have to decide that issue because of our
disposition of the case on sufficiency of the evidence grounds.
Because defendants made an offer of proof regarding these documents
at trial, we may consider the excluded documents as part of the
record on appeal for the purpose of describing the background of
this case. United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.
1973); see also Wright and Graham, Federal Practice and Procedure:
Evidence § 5040 (1977) ("Documents and other exhibits are usually

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municipality. In Puerto Rico, all municipal jobs are governed by

so-called job classification plans that are adopted locally. These

plans set forth the occupational groups and personnel structure of

the municipality, including the primary responsibilities and

employment requirements for each position in city government. The

salaries for various jobs are set forth in a separate salary scale

that establishes the salary for each job by classification.

From time to time, municipalities revise their job

classification plans. Toa Baja undertook this task in 1997, when

it altered the then-existing job classification plan that had been

adopted in 1991.2 According to the Comptroller's report, the 1997

changes were not valid alterations to the 1991 plan because they

were not first submitted for approval to OCALARH, and past

municipal administrations had appointed several hundred employees

in violation of the relevant state law and regulations. The report

also recommended both that the municipality put in place a system

for the selection and recruitment of personnel and that the

marked for identification and become part of the record on appeal,
even if excluded."). We do not consider these excluded documents
in conducting our sufficiency of the evidence analysis.
2
The parties bitterly dispute whether this alteration was in
fact an altogether "new plan" of job classifications or simply an
"amendment" to the existing 1991 job classification plan ("the 1991
plan"). The relevant ramifications of that distinction, as well as
the approval process and the related municipal ordinances, are not
germane to the sufficiency of the evidence claim, and we do not
delve into them here.

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administration develop a corrective action plan to remedy the

various illegalities cited therein.3

Defendants then undertook a review of the personnel files

of all 1,300 or so municipal employees. Defendants claim that they

did so because, according to the Comptroller's report, "[n]ot

addressing the recommendations of the audit . . . without just

cause[] may constitute a violation [of] . . . the Government Ethics

Act." Plaintiff maintains that the defendants sought to retaliate

against members of the NPP. As of May 2002, at the time of the

trial, around six hundred files had been evaluated, including

3
On August 2, 2004, the same district court that heard this
case issued an Opinion and Order and Partial Judgment in a related
case, Maria Aldarondo Lugo v. Municipality of Toa Baja, Civil No.
02-1123 (“August 2 Opinion”). In Lugo, ninety-five employees and
former employees of Toa Baja sued the city, Santiago, and Delgado,
the latter two defendants in both their official and individual
capacities, alleging politically discriminatory personnel actions.
One group of plaintiffs alleged only political harassment. In the
August 2 Opinion, the district court granted qualified immunity to
Santiago and Delgado in their personal capacity, except with
respect to the claim of the few plaintiffs alleging only political
harassment. Relying on the documentary evidence excluded in
Vázquez’s trial but admitted in Lugo, the district court held that

[d]efendants have shown with documentation and
affidavits that they had legitimate reasons
(i) to believe that the 1997 Changes were a
new plan (including the view of governmental
agencies) and (ii) for re-classifying
Plaintiffs. Defendants have also shown that
they did such re-classification in accordance
with the law and at the instance of the
Comptroller, a man appointed by the NPP former
governor.

August 2 Opinion at 23.

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Vázquez's. Of those, 281 employees had sought an informal hearing

regarding the personnel action that resulted from the review.

B. Vázquez's Political Activity and Employment History

Vázquez has been active in the NPP since the age of

eighteen. She was president or chair of the NPP committee in her

ward (Barrio Pajaros in Toa Baja), and she worked on the

mobilization committee, organized rallies, and raised funds.

Additionally, she was one of the NPP's electoral college officers.

Her employment at the municipality of Toa Baja started in

1985, when Vázquez was employed in a transitory position4 as an

office clerk. On February 1, 1989, she became a career employee in

the position of Office Worker/Typist I at a monthly salary of $545.

On July 1, 1993, Vázquez was appointed to the position of Secretary

III, with a monthly salary of $1019, at the request of David

Córdova Torrech ("Córdova"), her immediate supervisor and head of

the Office of Services to the Citizenry. Twenty days later,

Córdova asked that Vázquez be reassigned again, this time to the

position of Assistant Director of the newly created Levittown

branch of the Office of Services to the Citizenry. That request

was granted, and Vázquez assumed the position of Assistant Director

on August 16, with a monthly salary of $1752.

4
Government employees in Puerto Rico are classified as
"transitory" or "temporary," which essentially means the employment
is at-will, or as "career" or "permanent," which is the equivalent
of having job tenure with attendant vested property rights.

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 In 1997, the alteration to the job classification plan

eliminated the position of Assistant Director from the employment

hierarchy. In the wake of that elimination, Vázquez was reassigned

to the position of Executive Director II. Two years later, in

1999, Vázquez was appointed as an Administrative Assistant to Mayor

Soto, a trust position within the administration. Following NPP's

defeat at the polls in 2000, Vázquez was reassigned to her former

position of Executive Director II.

C. Vázquez's Demotion

On May 22, 2001, the defendants, Mayor Santiago and

Director of Human Resources Delgado, held a meeting with fifteen to

eighteen employees, including Vázquez, to notify them that their

classifications were being changed pursuant to the decision to

declare the 1997 plan null and void and return to the 1991

classifications. According to Vázquez, Santiago explained at that

meeting that the PDP had won the election and, in Vázquez's words,

said that "they had to adopt actions with employees, that they had

to clean house . . . ." Santiago then explained that the affected

employees had certain rights to administrative hearings and, again

in Vázquez's words, "that whomever wished to go through attorneys,

well, they then had to bear the consequences of their actions and

that we would see each other in Court." Vázquez testified that

Delgado then took the floor, saying that she agreed with Santiago;

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Delgado then explained the appeals process to the reclassified

employees.

Following Delgado's explanation of the appeals process,

the employees were handed letters describing their new

classifications and explaining the reasons for the

reclassifications. The letter to Vázquez stated that she lacked

the academic preparation or experience for her current position and

was being reassigned to Office Worker/Typist I, the position she

held in 1989. According to the defendants' review of her personnel

file, that was the last position to which Vázquez had validly been

appointed.

Vázquez attended a hearing in front of an administrative

hearing officer on September 9, 2001.5 According to Vázquez, the

hearing lasted approximately five minutes. In January 2002, the

hearing officer issued a report and recommendation to the effect

that Vázquez had been illegally hired and promoted. Although

Vázquez remained in the Executive Director II position at the

monthly salary of $2083 pending the outcome of the hearing, she was

officially reassigned to Office Worker/Typist I by letter of

January 30, 2002. Her monthly salary was reduced accordingly to

5
This hearing is apparently different than the hearing
affected employees could seek before the Board of Appeals of the
Personnel Administration System (which is known as "JASAP").
Vázquez was notified of her right to request an administrative
hearing before JASAP to challenge the demotion, but she declined to
seek such a hearing because, in her opinion, the "hearing would be
futile and a sham and would violate [her] right to a due process."

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$900, effective February 1. On March 15, 2002, Vázquez tendered

her resignation to Santiago, effective April 9. Vázquez's

employment history with the municipality is summarized below, with

appointment date or year, job title, and monthly salary where

known.

• 1985: Office clerk

• February 1, 1989: Office Worker/Typist I ($545
monthly salary)

• July 1, 1993: Secretary III ($1019 monthly salary)

• August 16, 1993: Assistant Director ($1752 monthly
salary)

• 1997: Executive Director II (change of title because
of changes in the 1997 plan)

• May 1, 1999: Administrative Assistant (trust
position)

• January 10, 2001: Executive Director II ($2083
monthly salary)

• February 1, 2002: Office Worker/Typist I ($900
monthly salary)

• April 9, 2002: resignation effective

D. The Lawsuit

Vázquez brought this civil rights action pursuant to 42

U.S.C. § 1983 on June 13, 2001, against the municipality of Toa

Baja, Mayor Santiago, and Human Resources Director Delgado.

Vázquez sued Santiago and Delgado in both their official and

personal capacities. Vázquez alleged that she was demoted and

constructively discharged, and that these adverse employment

-9-
actions violated her First Amendment and due process rights under

the United States Constitution. In her complaint, she sought

compensatory and punitive damages, as well as reinstatement. The

defendants denied the allegations and replied that Vázquez was

illegally appointed to her position with the city and that they

were obligated to correct the irregularity.

On March 27, 2002, prior to trial, the defendants moved

for summary judgment, with Santiago and Delgado raising the

affirmative defense of qualified immunity in their individual

capacities. The district court denied the motion. A jury trial

began on April 30, 2002. At the close of all evidence, defendants

moved for judgment as a matter of law under Federal Rule of Civil

Procedure 50, arguing that Vázquez did not produce sufficient

evidence to show (1) that her due process rights were violated, (2)

that her political affiliation was a substantial or motivating

factor for her demotion, or (3) that she was constructively

discharged. The district court granted defendants' Rule 50 motion

as to the due process claim but denied it in all other respects,

including the qualified immunity defense.6

On May 14, the jury found for plaintiff, awarding her

$275,000 in compensatory damages for mental and emotional pain and

suffering, $6,828 in compensatory damages for lost earnings, and

6
Vázquez does not appeal the district court's ruling on her
due process claim.

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$42,000 in punitive damages, for a total of $323,828, plus post-

judgment interest, reasonable costs, and attorney's fees.7 In

light of the jury finding that the defendants discriminated against

Vázquez on the basis of her political affiliation and the jury's

award of punitive damages, the district court rejected Santiago's

and Delgado's affirmative defense of qualified immunity. The

district court then denied defendants' post-trial Rule 59 motion,

which asked the court to set aside the compensatory and punitive

damages as excessive and without a sound evidentiary basis. The

district court also ordered the defendants to reinstate Vázquez to

her previous position of Executive Director II.

The defendants raise several arguments on appeal. First,

they urge that the district court erred in denying their Rule 50

motion as to the political discrimination claim.8 Second,

7
The pain and suffering damages were apportioned among the
defendants as follows: $178,750 from the municipality; $68,750 from
Santiago; and $27,500 from Delgado. The lost earnings award was
assessed jointly and severally against all defendants, and the
punitive damages were assessed $30,000 to Santiago and $12,000 to
Delgado.
8
Although defendants made a motion pursuant to Rule 50(a)
before the case was submitted to the jury, they failed to renew
that motion after the jury verdict. Ordinarily, that omission
would mean that a party could not seek judgment as a matter of law
on appeal. See Udemba v. Nicoli, 237 F.3d 8, 13 (1st Cir. 2001)
("[T]o preserve for appeal the district court's rejection of a
motion for judgment as a matter of law made at the close of the
evidence, the movant must seasonably renew that motion post-
verdict"). However, "even when a party has failed to make the
proper motion below, this court retains the authority to 'inquire
whether the record reflects an absolute dearth of evidentiary
support for the jury's verdict.'" Id. (quoting Faigin v. Kelly,

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defendants argue that the district court erred in denying

admissibility of the Comptroller's report and agency letters, which

defendants maintain were crucial to substantiating that political

discrimination was not a factor in Vázquez's reassignment. Third,

defendants claim that the trial court made allegedly prejudicial

remarks in front of the jury. Fourth, defendants assert that the

district court erred in ordering plaintiff reinstated to her

previous position of Executive Director II. Finally, in their

individual capacity, defendants challenge the district court's

denial of the qualified immunity defense. Because of our

disposition of the sufficiency of the evidence claim, we do not

reach defendants' other arguments.

II.

A. Standard of Review

The standard for setting aside a jury verdict pursuant to

Federal Rule of Civil Procedure 50(b) is a stringent one: "[W]e

must examine the evidence in the light most favorable to the

plaintiff and determine whether there are facts and inferences

reasonably drawn from those facts which lead to but one conclusion

-- that there is a total failure of evidence to prove plaintiff's

case." Mayo v. Schooner Capital Corp., 825 F.2d 566, 568 (1st Cir.

184 F.3d 67, 76 (1st Cir. 1999)). We invoke our authority to
assess the sufficiency of the evidence here. We also note that
plaintiff has failed to allege defendants' forfeiture of the
sufficiency of the evidence issue.

-12-
1987) (quotation and citation omitted). In reviewing the record,

we will evaluate neither the credibility of the witnesses nor the

weight of the evidence. Santiago-Negron v. Castro-Davila, 865 F.2d

431, 445 (1st Cir. 1989). Even though we draw all rational

inferences from the facts in favor of plaintiff, "the plaintiff is

not entitled to inferences based on speculation and conjecture."

Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir. 1990). A non-moving

party who bears the burden of proof, as Vázquez does here, must

have presented "more than a mere scintilla of evidence in its

favor" to withstand a motion for judgment as a matter of law.

Invest Almaz v. Temple-Inland Forest Prod. Corp., 243 F.3d 57, 76

(1st Cir. 2001) (quotation and citation omitted). Additionally, we

are not obligated to disregard uncontradicted evidence offered by

defendants. Santiago-Negron, 865 F.2d at 445.

B. Analysis of Political Discrimination Claims

A governmental employee who is not in a policy-making

position of confidence and trust is shielded from adverse

employment decisions because of the employee's political

affiliation. Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 7 (1st

Cir. 2000) (citing Branti v. Finkel, 445 U.S. 507, 517-19 (1980),

and Rutan v. Republican Party of Illinois, 497 U.S. 62, 75

(1990)).9 When a plaintiff brings a political discrimination

9
Although Vázquez held a trust position in the previous
administration from May 1, 1999, to January 10, 2001, her removal
from that position and restoration to Executive Director II are not

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claim, she bears the burden of "producing sufficient direct or

circumstantial evidence from which a jury reasonably may infer that

plaintiff['s] constitutionally protected conduct -- in this case,

political affiliation with the NPP -- was a 'substantial' or

'motivating' factor behind [her] dismissal." Acevedo-Diaz v.

Aponte, 1 F.3d 62, 66 (1st Cir. 1993); see also Figueroa-Serrano,

221 F.3d at 7 (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429

U.S. 274 (1977)) ("To prevail on a free speech claim, a public

employee must show that she engaged in constitutionally-protected

conduct and that this conduct was a substantial factor in the

adverse employment decision."). The plaintiff bears the burden of

persuasion on these issues throughout the case.

The defendant, of course, may offer rebuttal evidence to

attempt to disprove that political affiliation played a substantial

role in the adverse employment action. Additionally, even if the

plaintiff establishes that proposition by a preponderance of the

evidence, the defendant may raise an affirmative defense: it may

attempt to "prove by a preponderance of the evidence that

plaintiff[] would have been dismissed regardless of [her] political

affiliation." Acevedo-Diaz, 1 F.3d at 66; see also Mt. Healthy,

429 U.S. at 287; Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 124

(1st Cir. 2004). In other words, even if the plaintiff has shown

that her political affiliation was a substantial or motivating

at issue here.

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factor in the adverse employment decision, the defendant will not

be held liable if it can persuade the factfinder that it would have

taken the same course of action anyway, without regard to

plaintiff's political affiliation. The Supreme Court has made

clear that defendant’s Mt. Healthy defense serves to prevent an

employee who would have received an adverse employment decision

based on legitimate reasons from being "in a better position as a

result of the exercise of constitutionally protected conduct than

he would have occupied had he done nothing." Mt. Healthy, 429 U.S.

at 285. However, if a plaintiff does not produce evidence

sufficient to allow a reasonable inference that political

discrimination was a substantial or motivating factor in the

challenged employment action, we need not analyze defendant's Mt.

Healthy defense. Accordingly, we turn now to evaluating whether

plaintiff produced sufficient evidence for a reasonable jury to

find that her political affiliation was a substantial or motivating

cause of her demotion and alleged constructive discharge.

C. The Evidence Adduced at Trial

We will reverse a jury verdict in a case such as this

"only if: (1) the record evidence compelled the conclusion that the

plaintiff would have been dismissed in any event for

nondiscriminatory reasons [in other words, the Mt. Healthy defense

prevails as a matter of law], or (2) the plaintiff did not

introduce sufficient evidence in the first instance to shift the

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burden of persuasion to the defendants." Acevedo-Diaz, 1 F.3d at

67. Here, we are presented with the rare case that requires

reversing a jury verdict on appeal because plaintiff's evidence

failed to establish that political discrimination was a substantial

or motivating factor in the challenged employment action. Because

the court's dismissal of the due process claim was not appealed, we

include in our analysis only testimony relevant to the First

Amendment claim.

1. Plaintiff's Witnesses

Plaintiff offered testimony from four witnesses: (1)

María Sánchez Coraliza ("Sánchez"), Assistant Director of the Human

Resources Office and author of both the 1991 and 1997 job

classification plans; (2) David Córdova Torrech ("Córdova"), now

retired after fourteen years of municipal service that included

serving as director of the Citizen's Office for the Mayor and as

Vázquez's direct supervisor; (3) Linda E. Rivera Vega ("Rivera"),

who was purchasing and procurement bids director for the

municipality during six months relevant to this litigation; and (4)

Vázquez herself.

a. Sánchez

Sánchez testified that when she became aware that

Santiago was considering rescinding the 1997 plan and restoring

staffing in accordance with the 1991 plan, she told him "that I did

not believe that he should take upon himself to do the action that

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he intended to do . . . since there were explanations for

everything that had taken place and that could entail certain

employees might sue him and that he might have to appear in court."

According to Sánchez, Santiago replied that "if he had to go to

court and the court assigned him to pay, that he would pay."

Sánchez further testified that she advised him that "the 1997 plan

had been approved by a municipality ordinance and that he should

seek guidance in that sense."

In answer to questions about how many employees were

switched from career employee status to transitory employee status

as a result of the Mayor's decision to rescind the 1997 plan,

Sánchez could not give a numerical estimate. Instead, she

mentioned some names of affected people whom she personally knew.

After listing five people by name and saying that she "would have

to mention a whole bunch of them because there were many," Sánchez

testified that "all these people" belonged to the NPP.

Plaintiff also elicited testimony from Sánchez regarding

Vázquez's qualifications for the positions to which she had been

appointed. In sum, Sánchez testified that Vázquez was qualified

for all the positions she had held at the municipality. However,

Sánchez admitted on cross-examination that Commonwealth law

requires, with some exceptions, that before a position is filled it

must be posted or advertised; that the vacancy must be filled using

a system called the "register of eligible" or some alternative

-17-
equivalent system; that the hired personnel must serve a

probationary period of three to six months; and that an employee

may only become a career employee after satisfactorily completing

the probationary period. Sánchez also testified on cross that the

municipality had not followed these hiring procedures as a general

matter.

b. Córdova

Córdova, director of the Citizen's Office for the Mayor

and Vázquez's direct supervisor, testified to Vázquez's increasing

responsibilities and growth as an employee during her tenure with

him. During Vázquez's thirteen years under Córdova, he made two

written evaluations of her job performance. Additionally, Córdova

explained that he petitioned the former mayor to appoint Vázquez as

Assistant Director of a branch of the Citizen's Office. For

purposes of our appellate review, we will assume that Córdova's

testimony regarding Vázquez's job responsibilities established that

she met the minimum stated requirements for the positions of

Secretary III and Assistant Director (a position that was

essentially renamed Executive Director II in 1997).

c. Rivera

Rivera, a member of the PDP, testified that she told

Delgado "that I am a person who under no circumstances will

persecute anyone because as she [Delgado] knows, I have been

persecuted for more than seventeen years by the NPPers and the

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Populares [PDP party members] who have allowed that I be persecuted

and that I would under no circumstances would [sic] allow that and

if I saw anything or understood that there would be any

persecution, that I would rather resign and that is what I did."

Rivera also testified about her understanding and

observations of political persecution during her time at the

municipality. She explained her "understanding that persecution

involves leaving an employee without work," and when Rivera passed

Vázquez's desk, she often observed that Vázquez had no work to do.

Rivera made the same observation about one other employee. In

consequence, Rivera told the municipal secretary, Dora Martinez

Torres ("Martinez"),10 to "'watch out,' because since she belongs

to another party, and was not giving them any work it could be

understood that it was political persecution." Rivera said that

Martinez was a member of the PDP and that she began work after the

new administration took office. Additionally, she explained that

while at first she did not have an adverse relationship with

Martinez, their working relationship later soured because of

Martinez's "persecution with the employees."

According to Rivera, she used to have lunch with Martinez

and Delgado, but "upon seeing that they thought differently than

the way I thought, well, then I understood that it was best not to

have lunch to avoid taking any decisions, well, leave my job, be a

10
Martinez is not a party in this case.

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part of a persecution, and remarks that might be out of order."

When pressed as to what Delgado specifically said that convinced

Rivera that they should no longer lunch together, Rivera said that

"[o]ne of Mrs. Delgado's remarks had to do with the process when

letters were to be delivered that there would be equality -- let's

say that the salaries were going to be lowered or if their

permanency was going to be removed, well, then it would be the same

for everyone notwithstanding the person involved."11 Later, Rivera

testified that she and Delgado had lunch together perhaps two or

three times and that they did not talk about politics.

Rivera was asked whether she "could tell the jury if the

members of the New Progressive Party employees were targeted for

this personnel action" of receiving the reassignment letters.

Rivera replied: "Yes, because the employees who were given

permanence in '97, well, those were the employees who would be

subjected to the application of the law in which their permanence

would be taken away from them." Upon prompting, Rivera said that

those employees belonged to the NPP party.

d. Vázquez

Vázquez was on the stand for three days. In addition to

detailing her work history and the responsibilities of her

11
Plaintiff's counsel asked whether the translation might be
more accurate as "regardless of the pressure involved" instead of
"regardless of the person involved." The court replied that it
"had no objection to that."

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employment with the municipality, Vázquez testified that her

academic preparation and experiences qualified her for all of the

municipal positions that she had held. Vázquez also testified that

her immediate supervisor, Martinez, both made politically

discriminatory remarks, including stating that "[w]ell, hopefully

they will kill all the NPPers" and failed to give her any work from

January to August of 2001. On August 24, 2001, Vázquez sent a

letter and an accompanying table to Martinez detailing her work

assignments since January 15, 2001 (excluding one month of vacation

and one month of sick leave over the seven-month period). The

letter informed Martinez that of the remaining five months of that

period, Vázquez performed tasks on forty-two of the 106 work days.

On cross-examination, Vázquez admitted that she never informed

Delgado or Santiago of her lack of work, saying that it is "not the

mechanism, and that would be gossip." She further admitted that

after Martinez received her letter of August 24, Vázquez was given

sufficient work to occupy her work days.

Vázquez testified about the meeting on May 22 when

between fifteen and eighteen employees were given their

reassignment letters. She said that all of the employees at the

meeting were members of the NPP who "held positions of hierarchy in

the previous administration." According to Vázquez, "the Mayor

began the meeting indicating that he was the person in power, that

the Popular Democratic Party had won. That they had to adopt

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actions with employees, that they had to clean house and that they

were going to deliver letters to us in which there would be changes

in our salaries or our permanence; that whomever wished to go to

JASAP had 30 days to do so, that whomever wished to go through

attorneys, well, they then had to bear the consequences of their

actions and that we would see each other in Court."12 Vázquez

continued recounting the events of the meeting, noting that Delgado

"began indicating that she was seconding what the Mayor had stated

and she explained the appeals process."

Vázquez also recounted the details of what appears to be

the only other time she met Santiago. When Santiago was

campaigning and seeking votes, he visited the community where

Vázquez lived. According to Vázquez, "[h]e came up the stairs. At

that point he introduced himself as a candidate for the Popular

Democratic Party and at that point I told him that I belonged to

the New Progressive Party, that I campaigned for the NPP from 1984.

That I was a militant and that I had held assorted positions with

the administration of Mayor Victor Soto and as all candidates he

told me that he was counting on my vote." Plaintiff's counsel then

asked Vázquez whether Santiago "was able to recognize you that you

12
Santiago disputes that he said that they were going to "clean
house." Instead, Santiago testified that at the May 22 meeting, he
said that "it is my obligation [to] correct what the previous
administration did wrong and that . . . very much in spite of what
I might want to do, I had to do it morally." Of course, under the
Rule 50 standard, we credit Vázquez's version of events over
Santiago's for purposes of our analysis here.

-22-
were a member of the New Progressive Party" at the May 22 meeting.

Vázquez responded, "He shook hands with me and greeted me."

Vázquez also testified about her activity on behalf of

the NPP. She had been an electoral college officer since the age

of eighteen and president of the committee for her local ward in

Toa Baja. Vázquez participated in mobilization, fundraising,

organizing, and "all kinds of activities related to politics and

the NPP."

2. Defendants' Uncontradicted Testimony

Before considering this testimony, we observe that a

strong case could be made that defendants' motion for judgment as

a matter of law at the close of plaintiff's case should have been

granted. Of course, defendants do not make this argument on

appeal. Having put on a defense at trial, they are foreclosed from

doing so. See Gillentine v. McKeand, 426 F.2d 717, 723 (1st Cir.

1970) ("defendant's motion for a directed verdict at the close of

plaintiff's case expired" upon the introduction of substantial

defense evidence and was not preserved for appeal). Accordingly,

in evaluating defendants' appeal from the district court's denial

of their motion for judgment as a matter of law after the close of

all evidence, we consider both plaintiff's evidence and the

uncontroverted evidence offered by defendants. Santiago-Negron,

865 F.2d at 445.

a. Delgado

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 Delgado testified that at the time of transition between

the two administrations, the municipality had 1,343 employees on

its roster. Delgado's uncontradicted testimony also established

that there was no evidence in Vázquez's personnel file establishing

that Vázquez met the minimum requirements for appointment to

Secretary III or Assistant Director, or that she served the

requisite probationary period for either position.13 Delgado

testified that according to the documents in Vázquez's personnel

file, Vázquez lacked the commercial or secretarial training

required to be appointed to Secretary III in 1993. On cross,

plaintiff's counsel drew Delgado's attention to Córdova's letter

asking that Vázquez be appointed to Secretary III, which, taking

the evidence in the light most favorable to the plaintiff, could

establish her eligibility for the position. Upon questioning,

Delgado testified that she cannot explain why that document was not

contained in Vázquez's personnel file.

Delgado further testified that Vázquez's personnel file

contained no indication that the Human Resources Department

followed the procedures and analysis required to reclassify an

employee, without competition for the position, based on the

13
We do not make this point to question Vazquez's
qualifications for her positions. As noted in our discussion of
Córdova's testimony, we have assumed that she met the stated
qualifications for the positions of Secretary III and Assistant
Director. We simply make the point here that anyone reviewing her
personnel file would not find evidence of these qualifications in
the file.

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employee's assumption of greater responsibility and obtaining

further credentials.

b. Santiago

In uncontradicted testimony from Santiago, he explained

that he sought advice regarding the effect and legality of the 1997

plan, and that he acted on that advice. As noted, the evidentiary

rulings below prevented the defense from putting before the jury

the nature of the advice the defendants received.

Santiago further testified that of the municipal

employees who received letters adjusting their status, "nearly half

of them, their salaries have increased, others have gone down." He

also testified that he retained several members of the opposing

party in trust positions after he took office and that he took only

one of his people into the mayor's office with him. According to

Santiago, "the rest of them, I honored their position and I allowed

them to remain, despite the fact that it's a high confidentiality

position . . . ."

Santiago was asked on cross-examination whether he knew

the party of the employees who lost permanent status and became

transitory employees by virtue of declaring the 1997 plan void. He

replied that "[t]here are members of all three parties." When

pressed for an estimated percentage break-down among the parties,

Santiago could not provide one, but he agreed that there were more

NPP members than PDP members in that group. When counsel asked

-25-
whether it is "a true fact that, more or less, from 75 to 80

percent of the employees of Tao Baja are members of the New

Progressive Party," Santiago agreed that "[t]hat might be."

According to Santiago’s uncontradicted testimony, he had not

appointed anyone to a career position since he took office.

D. Topical Summary of the Evidence

On topics important to establishing a political

discrimination claim, the evidence that we have reviewed through

the Rule 50 lens establishes the following propositions.

1. Personnel Actions

Defendants rescinded the 1997 plan and reassigned several

hundred employees, including Vázquez, in accordance with the 1991

plan. Sánchez testified that she advised Santiago to seek advice

before deciding to rescind the 1997 plan. Santiago's

uncontradicted testimony was that he did indeed seek such advice.

As we have described, the nature of that advice was kept from the

jury at trial.

Sánchez testified that the people whom she knew who were

affected by the reclassification plan were NPP members. Rivera

also testified that affected employees belonged to the NPP.

However, the kind of personnel review undertaken by defendants

necessarily would impact more NPP members because of the long

dominance of the NPP over municipal affairs. Indeed, Santiago

agreed with plaintiff's counsel that approximately seventy-five to

-26-
eighty percent of the employees of Toa Baja are members of the NPP,

and Rivera herself explained, "because the employees who were given

permanence in '97 [when the NPP had been in control of the city

government for over twenty years], well, those were the employees

who would be subjected to the application of the law in which their

permanence would be taken away from them."

Santiago's uncontradicted testimony was that nearly half

of the employees affected by the personnel changes actually

received higher salaries. Plaintiff neither rebutted this

testimony nor offered any evidence that there was a disparity -- by

political affiliation or otherwise -- between those who received

higher salaries and those who received lower salaries under the new

reclassifications.14

2. Treatment of Vázquez

Vázquez lacked sufficient work to occupy her time from

January through August 2001 (less the two months when she was on

leave). When Vázquez sent a letter to her immediate supervisor,

Martinez, detailing her lack of work projects during this time,

Martinez began assigning Vázquez adequate work. Additionally,

Vázquez was demoted from Executive Director II to Office

14
As we recently explained in Sanchez-Lopez, while "there is
simply not a claim of 'disparate impact' available under this First
Amendment doctrine" of political retaliation, evidence that "all of
the employees affected by defendants' actions were NPP members"
might be considered evidence that defendants harbored
discriminatory animus. Sanchez-Lopez, 375 F.3d at 140.

-27-
Worker/Typist I effective February 1, 2002. A hearing officer

found that the reassignment was valid because Vázquez previously

had been illegally hired and promoted.

Sánchez and Córdova testified that Vázquez met the

minimum qualifications for each of the positions to which she had

been appointed. However, Sánchez admitted that the municipality

generally did not follow the procedural requirements for personnel

actions. Plaintiff never offered any clear evidence or testimony

that her appointments either met these procedural requirements or

were eligible for an exception to any of the requirements. In

fact, Vázquez admitted that she was promoted without going through

the regular competitive process or serving the normally required

probationary period. Furthermore, Delgado's uncontradicted

testimony was that there was no material in Vázquez's personnel

file to show either that the procedural requirements were followed

or that Vázquez's appointments were eligible for an exception to

the usual procedural requirements.

Taking the evidence in the light most favorable to the

plaintiff, Vázquez arguably established that she did not need to

comply with the normal appointment procedures when she assumed the

position of Executive Director II because that position was simply

a reclassification of the position of Assistant Director. However,

Vázquez's demotion to Office Worker/Typist I was premised on the

alleged illegality of her appointment to Secretary III, not on any

-28-
ineligibility to be reassigned from Assistant Director to Executive

Director II.

3. Statements of Discriminatory Intent

At the May 22 meeting, where fifteen to eighteen NPP

employees received letters adjusting their positions within the

municipality, the Mayor stated that the "Popular Democratic Party

had won. That they had to adopt actions with employees, that they

had to clean house and that they were going to deliver letters to

us in which there would be changes in our salaries or our

permanence . . . ."15 Plaintiff presented evidence of one other

statement evincing discriminatory intent or animus: Martinez,

plaintiff’s direct supervisor and a non-party in this case, said at

a gathering something like "[w]ell, hopefully they will kill all

the NPPers."

4. Rivera's Perception of Political Retaliation

Rivera, a member of the PDP, offered what is best

characterized as lay opinion testimony: she thought political

retaliation was occurring in her department under Martinez, based

on her observation that Vázquez and one other employee were not

fully occupied with work, at least for some period of time. Rivera

testified that "if I saw anything or understood that there would be

any persecution, that I would rather resign and that is what I

15
Again, we note that although this evidence is contradicted
by Santiago’s testimony, we take it as true for purposes of the
Rule 50 analysis.

-29-
did." Additionally, Rivera said at one point that after having

lunch with Delgado and Martinez, she saw "that they thought

differently than the way I thought." There is also an ambiguous

reference to "remarks that might be out of order" in Rivera’s

testimony. Rivera also testified that her relationship with

Martinez soured over Rivera's perception of political persecution

in the workplace.

However, Rivera also testified that she and Delgado did

not talk about politics, and that the only political comment

Delgado made to her was one that "had to do with the process when

letters were to be delivered that there would be equality -- let's

say that the salaries were going to be lowered or if their

permanency was going to be removed, well, then it would be the same

for everyone notwithstanding the person [or regardless of the

pressure] involved." This testimony by plaintiff's own witness

establishes that Delgado indicated that the reclassifications

would be done with "equality" and that changes in permanence or

salaries would be implemented regardless of the people affected (or

the pressure involved). This testimony -- elicited by plaintiff's

counsel during her case-in-chief -- supports defendants' claims

that they implemented the reclassifications in a neutral manner.

E. Analysis of the Evidence

This evidence is not sufficient to show that plaintiff's

political affiliation was a substantial or motivating factor in

-30-
defendants' decision to reclassify her under the 1991 plan. In

fact, the evidence presented at trial does not create a reasonable

inference that defendants were even aware of Vázquez’s political

affiliation at the time her personnel file was reviewed and she was

reassigned according to the 1991 plan. We encountered a factually

similar situation in Gonzáles-De Blasini v. Family Dept., 377 F.3d

81 (1st Cir. 2004). There, we affirmed dismissal of a plaintiff's

political discrimination claim because plaintiff

adduced no evidence that the defendants knew
she was a member of the NPP. She attempts to
bolster her political discrimination cause of
action by alleging that [defendants] must have
been aware of her political affiliation
because she was a well-known supporter of the
NPP in the community, had held a previous
trust position under the NPP administration,
and was allegedly demoted shortly after the
PDP assumed power. [Plaintiff] points to
[defendant's] statement that she wanted
[plaintiff's] office and position to go to an
employee of her trust as indication of a
causal link between her political beliefs and
the change in her employment conditions.

Id. at 85-86. In Gonzáles-De Blasini, we held that such evidence

was "insufficient to show that political affiliation was a

substantial factor in the challenged employment action." Id. at

86.

Vázquez has shown no more here. The fact that Santiago

met Vázquez during routine campaign canvassing, and that Vázquez

then identified herself as a member of the NPP and an employee of

Mayor Soto's, does not lead to a reasonable inference that Santiago

-31-
or Delgado knew that she was a member of the NPP when they

conducted their review of all personnel files for irregularities or

when they met with her on May 22 as part of a group. Nor does

Vázquez’s testimony about her NPP activities or positions held

under the previous administration support such an inference. Toa

Baja is a city with almost 100,000 residents, and the city employed

approximately 1,300 people. While Vázquez did occupy a trust

position for about twenty months under Mayor Soto, she provided no

evidence that her trust position was of such a high nature that

defendants necessarily would have known who she was and her party

affiliation. In fact, when asked on direct examination whether

Santiago recognized her as an NPP member at the May 22 meeting,

five or six months after Santiago introduced himself while

campaigning, Vázquez did not answer in the affirmative. Instead,

she stated only that "[h]e shook hands with me and greeted me."

Even if a jury could reasonably infer that defendants

knew that plaintiff was a member of the NPP, that still is

insufficient. Proving that her political affiliation was a

substantial or motivating factor in the adverse decision requires

more than "[m]erely juxtaposing a protected characteristic --

someone else's politics -- with the fact that the plaintiff was

treated unfairly." Correa-Martinez v. Arrillaga-Beléndez, 903 F.2d

49, 58 (1st Cir. 1990). Indeed, the evidence falls short of even

showing that Vázquez was treated "unfairly." Regardless of whether

-32-
she met the minimum educational and experiential qualifications, a

disputed point on which we take Vázquez's version of events, the

undisputed testimony establishes that Vázquez did not meet the

statutory procedural requirements -- such as applying for and being

interviewed for an advertised job in competition with other

candidates, or serving the required probationary period -- for the

Secretary III and Assistant Director appointments. Plaintiff's own

witness, Sánchez, testified that the municipality simply did not

hire personnel in accordance with these various provisions.

The mayor's alleged comment about "cleaning house" also

is not sufficient to sustain plaintiff's burden. In Figueroa-

Serrano, a plaintiff testified that the mayor said that "he was

going to clean City Hall of most NPP employees. . . ." Figueroa-

Serrano, 221 F.3d at 4.16 In granting defendants' summary judgment

motion, we observed that the plaintiffs relied on "generalized

assertions of the defendants' affiliation with the rival political

party" and the enactment of a personnel policy change after the

elections. Id. at 8. "The only specific evidence that they offer

is the sworn statement of a single plaintiff that [the mayor]

16
In Figueroa-Serrano, we found that plaintiffs failed to
proffer sufficient evidence of political discrimination to defeat
a summary judgment motion. Because the "standard for granting
summary judgment 'mirrors' the standard for judgment as a matter of
law, such that the 'inquiry under each is the same,'" Reeves v.
Sanderson Plumbing Prod. Inc., 530 U.S. 133, 150 (2000) (citation
omitted), we find our reasoning in Figueroa-Serrano instructive
here.

-33-
voiced his intention to rid City Hall of NPP employees. They have

failed to provide names or other specific factual information

supporting their claim that the Municipality replaced them with new

hires from the PDP." Id. We then characterized this evidence as

a "meager showing" and held that it was "patently insufficient to

generate a genuine issue of material fact on a causal connection

between the political affiliation of the plaintiffs and the adverse

employment actions alleged." Id.

Plaintiff has done no better here. Indeed, Vázquez's

testimony regarding Santiago's "cleaning house" comment is even

less forceful than the plaintiff's testimony in Figueroa-Serrano.

There, the mayor allegedly said specifically that he intended to

get rid of NPP members. Here, Vázquez did not even allege that

kind of direct statement from Santiago. In contrast to Vázquez's

case, we have upheld a district court's denial of motion for a

judgment notwithstanding the verdict when the plaintiffs presented

"ample evidence that [the defendant mayor] (1) knew plaintiffs were

affiliated with NPP, (2) vowed to rid the [municipal] government of

NPP members, (3) gave instructions to 'chop off the heads of the

NPP members,' and (4) told municipal employees to switch to the

PDP." Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 (1st Cir. 1991).

Vázquez has produced no comparable evidence here.

Importantly, Vázquez also offered no evidence that PDP

members were hired to replace the reassigned NPP members. In fact,

-34-
Santiago's uncontradicted testimony was that he had not appointed

anyone to a career position since he took office. Vázquez also

offered no evidence that the reassignments were effectuated in a

discriminatory or differential manner, or that they were targeted

at NPP employees. Plaintiff's own witness, Rivera, stated that

Delgado told her that if the result of reassigning people according

to the 1991 plan was that it would be done with "equality" and if

"the salaries were going to be lowered or if their permanency was

going to be removed, well, then it would be the same for everyone

notwithstanding the person [or regardless of the pressure]

involved." The defendants presented uncontradicted testimony that

they were reviewing every personnel file in the municipality and

that members of all parties were affected by the reassignments.

These facts distinguish this case from the scenario presented in

Acevedo-Garcia v. Monroig, 351 F.3d 547 (1st Cir. 2003). There,

"[p]laintiffs . . . produced evidence supporting their theory that

the termination plan was implemented in a way designed to target

members of the NPP while sparing most members of the PDP. Further,

the jury heard evidence that the vast majority of people hired with

extra-municipal funds belonged to the PDP." Id. at 565-66.

Vázquez has made no such showing.

At first blush, the actions and statements by Martinez,

Vázquez's supervisor, are troublesome. Martinez failed to provide

adequate work to keep Vázquez occupied for five months, and

-35-
Martinez also allegedly stated that "[w]ell, hopefully they will

kill all the NPPers." However, Vázquez makes no showing as to why

defendants should be held liable for Martinez's actions.17 Vázquez

admitted that she informed neither Delgado nor Santiago about her

lack of work, and she admitted that Martinez gave her sufficient

work after Vázquez's memo of August 24, 2001. Vázquez offered no

evidence that Martinez's actions reflected a municipal "custom or

practice [that] is so well settled and widespread that the policy-

making officials of the municipality can be said to have either

actual or constructive knowledge of it yet did nothing to end the

practice." Silva v. Worden, 130 F.3d 26, 31 (1st Cir. 1997)

(quotations and citations omitted) (cited in Acevedo-Garcia v.

Monroig, 30 F. Supp. 2d 141, 152 (D. P.R. 1998). Unlike in

Acevedo-Garcia, where discriminating supervisors "claimed to be

acting on the orders of 'higher up' officials within the

Municipality, including [the defendants]," id., Vázquez has

produced no such evidence here. Furthermore, Martinez's alleged

comment is akin to the kind of isolated stray remark by a

nondecisionmaker that we have held has limited probative value in

other contexts. See, e.g., Gonzalez v. El Día, Inc., 304 F.3d 63

(1st Cir. 2002) (explaining that in the context of an age

discrimination claim, "'stray workplace remarks,' as well as

17
For purposes of our analysis here, we will assume that
Martinez's actions actually amount to political retaliation.

-36-
statements made either by nondecisionmakers or by decisionmakers

not involved in the decisional process, normally are insufficient,

standing alone, to establish either pretext or the requisite

discriminatory animus"). While Martinez was the decisionmaker

regarding Vázquez's workload, plaintiff offered no testimony that

Martinez was involved in any way in the decision to rescind the

1997 plan as null and void or in the review of Vázquez's personnel

file and reassignment.

The plaintiff presented no evidence that Santiago or

Delgado created an atmosphere of discrimination or a policy of

leaving NPP employees without work, and she made no claim that

Martinez was implementing any such policy during the months that

Vázquez had insufficient work. In fact, plaintiff's witness Rivera

testified that the fourteen NPP employees she supervised were

always provided with adequate work. In sum, whatever problems

Vázquez may have had with her immediate supervisor, Vázquez

presented no evidence that any comment or action by Martinez is

fairly attributable to the defendants in this case, and, on these

facts, Martinez's statement is not probative of whether defendants

acted with discriminatory animus.

In short, plaintiff failed to show that her political

affiliation was a substantial or motivating factor in her demotion

or alleged constructive discharge. Although plaintiff's

allegations of "political discrimination can be built on

-37-
circumstantial evidence of constitutionally suspect motivations"

for the adverse employment action, Vázquez has offered only a mere

scintilla of evidence of political discrimination. Her evidence

does not amount to "the specific facts necessary to take the

asserted claim out of the realm of speculative, general

allegations." Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 n.5

(1st Cir. 1988).

III.

We do not set aside jury verdicts lightly. Nevertheless,

when plaintiff fails to adduce sufficient evidence for a jury to

reasonably infer that plaintiff's political affiliation was a

substantial or motivating factor in an adverse employment action,

we must do so. For the forgoing reasons, we vacate the judgment

and order the entry of judgment for defendants. The parties shall

bear their own costs.

So ordered.

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