United States Court of Appeals
For the First Circuit
No. 04-1492
MIRLA MIREYA RODRÍGUEZ-MARÍN;
ANA I. ESCOBAR-PABÓN,
Plaintiffs, Appellees,
v.
VÍCTOR RIVERA-GONZÁLEZ, in his personal capacity and
in his official capacity as Secretary of Corrections and
Administrator of the Administration of Corrections
of Puerto Rico; and ANA T. DÁVILA-LAO, in her personal
capacity and in her official capacity as Counsel to the
Administration of Corrections of Puerto Rico,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Isabel M. Rodríguez-Casellas, with whom Sánchez Betances,
Sifre, Muñoz-Noya & Rivera P.S.C. and Milagros del Carmen López,
were on brief, for appellants.
Francisco R. González-Colón, with whom F.R. González Law
Office, was on brief, for appellees.
February 16, 2006
TORRUELLA, Circuit Judge. Plaintiffs are employees of
the Administration of Corrections in Puerto Rico. They filed suit
under 42 U.S.C. § 1983, claiming that defendants demoted them in
violation of their First Amendment and due process rights. The
case went to trial, and a jury found in favor of plaintiffs,
awarding them compensatory and punitive damages. Defendants now
appeal. We affirm.
I. Background
Defendants are contesting the jury's verdict in favor of
the plaintiffs. In considering the issues raised on appeal, we do
not evaluate the credibility of the witnesses or weigh the
evidence. Vázquez-Valentín v. Santiago-Díaz, 385 F.3d 23, 29 (1st
Cir. 2004). Rather, we construe all rational inferences in favor
of the jury's verdict. Id. at 29-30. We now summarize the
evidence presented at trial.
Discrimination based on political-party affiliation is
rampant in government employment in Puerto Rico. See, e.g., Pérez
v. Zayas, 396 F. Supp. 2d 90 (D.P.R. 2005); Román Román v. Delgado
Altieri, 390 F. Supp. 2d 94 (D.P.R. 2005); Padilla Román v.
Hernández Pérez, 381 F. Supp. 2d 17 (D.P.R. 2005); Sueiro Vázquez
v. Torregrosa De la Rosa, 380 F. Supp. 2d 63 (D.P.R. 2005); Rovira
Rivera v. P.R. Elec. Power Auth., 364 F. Supp. 2d 154 (D.P.R.
2005); Irizarry-López v. Torres-González, 363 F. Supp. 2d 7 (D.P.R.
2005). It has cost Puerto Rican taxpayers dearly in verdicts paid
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from public funds. P.R. Laws Ann. tit. 31, § 5142. In an effort
to combat political discrimination, Puerto Rico has an Electoral
Moratorium that prohibits certain "appointments, promotions,
demotions, transfers and changes in the category of the employees"
for the two months before and after a general election. P.R. Laws
Ann. tit. 3, § 1337. In the year 2000, general elections were held
on November 8, 2000, so the Moratorium commenced on September 8,
2000 and ended on January 8, 2001.
Before the 2000 election, the Governor of Puerto Rico was
a member of the New Progressive Party ("NPP"). Immediately prior
to the commencement of the Electoral Moratorium, at least thirty-
four personnel changes took place in the Administration of
Corrections ("AOC"). These personnel changes were authorized by
the Administrator of the AOC, Zoé Laboy ("Laboy"), who had been
appointed by the NPP Governor.
In the 2000 election, a member of the Popular Democratic
Party ("PDP") was elected Governor. The new Governor appointed
defendant Víctor Rivera-González ("Rivera-González") as
Administrator of the AOC, who in turn appointed defendant Ana
Dávila-Lao ("Dávila") as his Chief Legal Advisor. The human
resources director under the former administration, who later
became Rivera-González's assistant, told Rivera-González that some
appointments made by the previous administration may have been
unlawful. Rivera-González asked Dávila to investigate the matter.
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Dávila then proceeded to conduct a review of the thirty-four
personnel changes that took place immediately before the Electoral
Moratorium. This list of thirty-four included every member of
Laboy's staff, except for one who was a PDP member.1 It was
determined that eighteen of these thirty-four personnel changes
were illegal, and these personnel changes were revoked. Two of the
eighteen people affected were plaintiffs Mirla M. Rodríguez-Marín
("Rodríguez") and Ana I. Escobar-Pabón ("Escobar"). Dávila asserts
that this review was objective and denied knowing either
Rodríguez's or Escobar's political affiliation.
A. Mirla M. Rodríguez-Marín
Rodríguez began working for the AOC in 1994 in the
position of Social-Penal Technician I, a career position.2 Over
the years, she was promoted to a number of trust positions: Special
Assistant II, Director of Legal Affairs, and Executive Aide of
Correctional Services. In the summer of 2000, the AOC implemented
a Classification and Compensation Plan ("the Plan"), whereby
employees were evaluated and reclassified into appropriate
1
The trial testimony did not clearly indicate whether this list
of thirty-four consisted entirely of NPP supporters or affiliates,
but it is a reasonable inference to make from the testimony.
2
A career position is subject to the merit principle, whereby a
competitive process is used to fill the position. An employee in
a career position has a due process right to that position and
cannot be removed without cause. In contrast, a trust position is
not subject to the merit principle, and an employee in a trust
position may be removed without cause. Ruiz-Casillas v.
Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005).
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positions. Under the Plan, Rodríguez was classified as Director of
the Legal Division, a trust position. Rodríguez met with Laboy and
requested to be classified into the career position of attorney.
On September 7, 2000, one day before the commencement of the
Electoral Moratorium, Rodríguez received four letters notifying her
of changes in her employment status. The first letter reinstated
her to the career position of Social-Penal Technician I; the second
promoted her to the career position of Attorney I, with a one-year
probationary period; the third raised her salary to the maximum
allowable for that position; and the fourth ordered her to continue
serving in her current trust position, indicating that her
probation term for the Attorney I position would begin at the
conclusion of the trust position.
When Rivera-González was appointed Administrator in
January 2001, he became Rodríguez's direct supervisor. She
testified that during this time, Rivera-González made several
comments to her to the effect that he was under political pressure
for leaving too many NPP members in cushy positions at the AOC.
Rivera-González denied making such statements. In March 2001,
Rivera-González removed Rodríguez from her trust position and
reinstated her to her career position of Attorney I. Rodríguez
does not contest the removal from her trust position.
Rodríguez alleges that she was mistreated because of her
political affiliation. At one point, she went to her office and
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discovered that her desk had been taken away, with her computer and
other belongings strewn across the floor. After she complained, an
old, surplus desk was placed in the office. The person in charge
of maintenance refused to clean her office because she was a member
of the NPP. Because of this mistreatment, Rodríguez asked to be
transferred to Ponce.
In Ponce, Rodríguez was litigating cases for the AOC and
Dávila was her supervisor. In June 2001, four agents came to her
desk to deliver a letter annulling her promotion to Attorney I and
reinstating her as a Social-Penal Technician I. She found it
humiliating that four agents would be sent, implying that she was
a dangerous person. She was not given a hearing or any warning
before being demoted. She received another letter assigning her to
the Ponce maximum security facility, where dangerous criminals were
held and against whom she had litigated cases. Because of this,
she feared working there.
Rodríguez went to see Rivera-González, and he referred
her to Dávila because she was the chairperson of the committee
reviewing the promotions and she had issued the recommendation that
the promotion was unlawful. Dávila told her that she was not
entitled to a hearing because the appointment was illegal.
Rodríguez testified that Dávila told her that she could not be left
in such a cushy position with such a high salary, but Dávila denied
saying this.
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The demotion letter stated that "there [was] no evidence
on file of compliance with the due process of law in the
recruitment and selection for [her] appointment." When Rodríguez
went to examine her personnel file, she discovered that it was
being held by Dávila, even though access to a personnel file
requires the employee's authorization, and Rodríguez had not given
authorization. Rodríguez discovered that papers documenting her
promotion were missing from her file. This was corroborated by
Marie Rivera, an employee in the human resources office, who
testified that documents were missing from Rodríguez's file.
Rodríguez had the original versions of these missing papers, and
she showed them to Rivera-González. Rodríguez threatened legal
action over the missing documents, and the missing documents
mysteriously reappeared in her file. Dávila insisted that even
though the missing documents had been replaced, Rodríguez's
appointment was still illegal. The director of recruitment, Héctor
Rivera-Rivera, testified that he certified that Rodríguez's
appointment to Attorney I had been lawful.
In July 2002, one year after she had been demoted,
Rodríguez filed this suit. In September 2002, after learning from
Héctor Rivera-Rivera that the appointment had been lawful, Rivera-
González ordered that Rodríguez be reinstated. Rivera-González
testified that she was a competent employee. She received a letter
informing her of the reinstatement, which stated that her salary
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would be determined later. For the first two months after being
reinstated, she was not paid and was not given an office. She then
went to Rivera-González, and he assigned attorney Gloria Ortiz-
Martínez to evaluate the situation. Ortiz testified that she was
unable to work on the case because she needed Rodríguez's personnel
file and Dávila did not give it to her despite being asked to do
so. Rodríguez testified that, after again going to Rivera-
González, he advised her to wait until Dávila's forthcoming
transfer to another government agency. He denied making this
statement.
Rodríguez also testified as to Dávila's personal
involvement in revoking her promotion. She testified that Rivera-
González and Raymond Mira, the director of human resources, stated
in depositions that Dávila was a member of the transition committee
of the PDP for the corrections administration and was also a
political liaison between the governor's office and the corrections
administration. She also testified that personnel directors stated
in their depositions that Dávila initiated the review of the
thirty-four personnel changes, and that José Ortiz, who was
director of human resources at the time, stated that her
appointment was legal.
As a result of her demotion, Rodríguez suffered
emotionally and financially. She suffered depression from the
stigma of the demotion, which caused her to have nightmares and
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fight with her family. She underwent emotional therapy for one
year. With her greatly diminished salary, she was unable to pay
her bills and her credit was damaged.
B. Ana I. Escobar-Pabón
Escobar began working for the AOC in 1986 in the career
position of Social-Penal Technician I, and she was later promoted
to Social-Penal Technician IV. Beginning in 1994, she was
appointed to a number of trust positions. In June 2000, the AOC
created a new career position of Regional Head of Programs and
Services ("Regional Head"). After this position was announced, the
AOC decided to revise the job requirements because of complaints
that the requirements were not appropriate. Laboy approved the
revised job requirements on September 7, 2000 and made them
effective as of June 1, 2000. Laboy appointed Escobar Regional
Head on September 6, 2000, which was one day before the approval of
the revised requirements and two days before the commencement of
the Electoral Moratorium.
Escobar testified that after the election on November 7,
2000, her co-workers started harassing her because of her political
affiliation, stating that they would "ravage" NPP members. She
testified that her supervisor, Ramón Díaz-Ferrera, was an active
member of the PDP and would criticize her when she used the term
"government of Puerto Rico" and insisted that she say "Commonwealth
of Puerto Rico," a term preferred by the PDP. He denied making
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such statements on a regular basis but did admit to once correcting
an employee who used the term "state government" and instructed him
to use the term "central government" when referring to the
Commonwealth of Puerto Rico. Another officer of the agency, José
Cordero-Padró, told her that they were going to "drag away" NPP
members and put an end to corruption.
In July 2001, four employees came to her desk to deliver
a letter informing her that her appointment as Regional Head had
been declared null. She was reinstated to her previous vested
career position of Social-Penal Technician IV. She had no notice
that her appointment was being evaluated. Her letter also stated
"there [was] no evidence on file of compliance with the due process
of law in the recruitment and selection for [her] appointment."
She met with Dávila, who told her that necessary documentation was
not present in her file. She had copies of these missing documents
and gave them to Dávila. Dávila later told her that even with all
of the documentation she had not complied with all the requirements
for the position. Héctor Rivera-Rivera, the director of
recruitment, testified that he certified that Escobar satisfied the
originally posted requirements for the position of Regional Head
and also that she was qualified under the amended job requirements
dated September 7, 2001. Raymond Mira, the director of human
resources, testified that Escobar's appointment was void because
the job description was amended after her appointment and that this
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violated the principle of merit. Neither Rivera-Rivera nor Mira
gave further explanation as to the legality or illegality of
Escobar's appointment.
As a result of her demotion, Escobar testified that she
had to seek psychological help, was unable to sleep, and because
she could not afford to pay her bills, her credit was harmed.
While this lawsuit was pending, she was promoted to Correctional
Facilities Superintendent II, but was then again demoted to her
current position of Social Penal Technician IV.
C. Procedural History
Rodríguez and Escobar filed suit against Rivera-González
and Dávila, claiming political discrimination and a violation of
procedural due process rights. After a five-day trial, the jury
found in favor of Rodríguez and Escobar on both their political
discrimination and procedural due process claims. The jury awarded
Rodríguez back pay of $3,500 per month, $180,000 in compensatory
damages, and $120,000 in punitive damages against Dávila. The jury
awarded Escobar back pay of $3,306 per month, $105,000 in
compensatory damages, and $195,000 in punitive damages against
Dávila.
Defendants made the full panoply of motions, moving for
dismissal under Rule 12(b)(6), judgment as a matter of law under
Rules 50(a) and 50(b), a new trial under Rule 59(a), and an altered
judgment under Rule 59(e). The district court denied all of their
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motions. Defendants now appeal the denial of all of their motions
on various grounds: (1) the denial of their Rule 50(a), 50(b),
59(a), and 59(e) motions contesting the jury's finding that
defendants violated plaintiffs' procedural due process rights; (2)
the denial of their Rule 50(a), 50(b), 59(a), and 59(e) motions
contesting the jury's finding that defendants politically
discriminated against plaintiffs; (3) the denial of their Rule
12(b)(6), 50(a), 50(b), 59(a), and 59(e) motions asserting the
qualified immunity defense; and (4) the denial of their Rule 50(b),
59(a), and 59(e) motions contesting the compensatory and punitive
damages awards as excessive. Because we affirm the jury's verdict
that defendants politically discriminated against plaintiffs, we
decline to consider the alternative ground that defendants violated
plaintiffs' due process rights. We address defendants' arguments
in turn.
II. Political Discrimination
The jury found that defendants discriminated against both
plaintiffs on the basis of their political affiliation. On appeal,
defendants challenge the jury's verdict on three grounds: (1) there
was insufficient evidence of discriminatory animus;3 (2) the
district court erred in instructing the jury on the defense
3
Defendants separately argue that Escobar presented insufficient
evidence that defendants had knowledge of her political
affiliation. We consider this argument along with the argument
alleging insufficient evidence of discriminatory animus.
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articulated in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977); and (3) there was sufficient evidence for a
jury to grant the Mt. Healthy defense.
A. Insufficient Evidence of Discriminatory Animus
The First Amendment protects the right of public career
employees -- those not in trust or policy-making positions -- to
engage in political activities without fear of adverse employment
actions. Padilla-García v. José Guillermo Rodríguez, 212 F.3d 69,
74 (1st Cir. 2000). It is undisputed that Rodríguez and Escobar
were public career employees at the time they suffered adverse
employment actions. The plaintiffs here "bear[] the burden of
producing sufficient direct or circumstantial evidence from which
a jury reasonably may infer that [their] constitutionally protected
conduct -- in this case, political affiliation with the NPP -- was
a 'substantial' or 'motivating' factor behind [their demotions]."
Vázquez-Valentín, 385 F.3d at 30 (internal quotation marks and
alterations omitted).
Defendants assert on appeal that the district court
improperly denied their Rule 50(a), 50(b), 59(a), and 59(e) motions
contesting the jury's finding of political discrimination. In
their brief, defendants developed only the argument that the
evidence was insufficient for a jury to find discriminatory animus.
We thus address only defendants' Rule 50 argument and consider the
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other arguments waived.4 Acevedo-García v. Monroig, 351 F.3d 547,
561 (1st Cir. 2003) ("We have steadfastly deemed waived issues
raised on appeal in a perfunctory manner, not accompanied by
developed argumentation." (internal quotation marks omitted)). We
review the denial of a Rule 50 motion for judgment as a matter of
law de novo. Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004). We
will affirm "unless the evidence, together with all reasonable
inferences in favor of the verdict, could lead a reasonable person
to only one conclusion, namely, that the moving party was entitled
to judgment." Sheils Title Co. v. Commonwealth Land Title Ins.
Co., 184 F.3d 10, 19 (1st Cir. 1999) (internal quotation marks and
citation omitted). We have no trouble finding that plaintiffs
presented sufficient evidence for a reasonable jury to find that
plaintiffs' political affiliations were a substantial or motivating
factor behind their demotions.
First, plaintiffs presented ample evidence that their
demotions were improper and the result of discrimination.
Rodríguez and Escobar were long-standing employees of the AOC --
Rodríguez since 1994 and Escobar since 1986 -- and both were
considered competent employees. It is suspicious that both of them
were demoted without being given any notice or opportunity to
4
Defendants also assert in their Rule 50 argument that the
district court erred in allowing hearsay testimony and other
improper evidence. These arguments are also not developed and
considered waived.
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defend their promotions, especially since the initial explanation
offered for the demotions was simply missing documentation. One
would expect that Rodríguez and Escobar would first be consulted to
determine if the necessary documentation had been misplaced.
Further, these missing documents mysteriously reappeared after
Rodríguez and Escobar presented their copies of the missing
documents, and Rodríguez threatened an investigation over the
missing documents. Even after the missing documents were replaced,
Rodríguez and Escobar were not reinstated; rather, other
justifications were given for their demotions. Finally, Rodríguez
and Escobar's demotions appeared to be punitive. Rodríguez --
despite her competency, experience, law degree, and notary
certification -- was reinstated into the low position of Social-
Penal Technician I and placed in a dangerous environment at the
maximum security prison in Ponce. Similarly, Escobar -- despite
her 14 years of experience with the AOC and having nearly finished
her probationary period as Regional Head -- was demoted to Social-
Penal Technician IV.
Second, plaintiffs presented sufficient evidence that
Dávila made the decision to demote them. Dávila wrote a letter to
the human resources department, asking that the personnel files of
thirty-four employees, including Rodríguez and Escobar, be
evaluated. After Rodríguez was demoted, she went to see Rivera-
González, and he referred her to Dávila. Dávila told her that her
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promotion was unlawful and that she was not entitled to a hearing.
When Rodríguez sought to examine her personnel file, she discovered
that Dávila was in possession of it. When another attorney, Gloria
Ortiz, was assigned to evaluate Rodríguez's case, Dávila did not
give Ortiz the file despite being asked to do so. Escobar also
consulted Rivera-González after being demoted, and he advised her
to speak with Dávila. Dávila told her that documents were missing
from her file, and Escobar supplied Dávila with the missing
documents. At a later meeting, Dávila told her that even with all
the documentation, her demotion would stand because she had not met
all the requirements for the position.
Third, plaintiffs presented sufficient evidence that the
discrimination was based on political affiliation. The review was
instigated by Dávila (acting on behalf of the incoming PDP
administration) and every employee of Zoé Laboy (a member of the
outgoing NPP administration) had his or her file reviewed except
for one, who happened to be a member of the PDP. Such a review is
not necessarily improper, as the PDP administration may certainly
investigate potential illegal appointments by the NPP
administration. However, it suggests that Dávila knew that both
Rodríguez and Escobar were NPP supporters. Rodríguez testified
that both Rivera-González and Dávila made statements to her
indicating that her demotion was politically motivated. Rivera-
González and Dávila denied making such statements, but it is for
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the jury to resolve such issues of credibility. Finally, both
Rodríguez and Escobar testified that co-workers harassed them
because of their political affiliation. This harassment provides
further evidence that Rodríguez and Escobar's political affiliation
was known among the employees of the AOC and indirect evidence that
Dávila would also have been aware of their political affiliation.
B. Mt. Healthy Defense
Under certain circumstances, defendants may still prevail
even if plaintiffs show that their political affiliations were a
substantial or motivating factor behind their demotions. Mt.
Healthy, 429 U.S. at 287. The Mt. Healthy defense is an
affirmative defense available to defendants, whereby defendants
must prove by a preponderance of the evidence that the plaintiffs
would have been dismissed regardless of their political
affiliation. Id.; Vázquez-Valentín, 385 F.3d at 30. Thus, even if
political affiliation was an improper consideration, defendants
will prevail if they can show that plaintiffs' political
affiliation was not the "but-for" cause of their demotions.
Tejada-Batista v. Morales, 424 F.3d 97, 102 (1st Cir. 2005);
Sánchez-López v. Fuentes-Pujols, 375 F.3d 121, 130 (1st Cir. 2004).
The purpose of the defense is to prevent a plaintiff from being put
"in a better position as a result of the exercise of
constitutionally protected conduct than [she] would have occupied
had [she] done nothing." Mt. Healthy, 429 U.S. at 285.
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Defendants assert on appeal that the district court
improperly denied their Rule 50(a), 50(b), 59(a), and 59(e) motions
regarding their Mt. Healthy defense. In their brief, they develop
only two arguments: first, that they presented sufficient evidence
for a jury to find a successful Mt. Healthy defense, and second,
that the district court improperly refused to include a jury
instruction describing the Mt. Healthy defense. We address these
arguments in turn.
We first address defendants' argument of sufficient
evidence for the Mt. Healthy defense. In their brief, defendants
state the "evidence was sufficient for a reasonable jury to find
that Defendants prevailed in their Mt. Healthy defense." They
further note that they "presented evidence proving that they would
have made the same employment determinations based on the
legitimate nondiscriminatory justification of complying with Puerto
Rico personnel law." In support of this argument, defendants cite
only one case, Vázquez-Valentín, for their proposition that "the
demotion of a public employee resulting from the failure of her
appointment to comply with personnel laws and regulations,
constituted sufficient evidence to satisfy Mt. Healthy."
Defendants' argument, however, does not address the
required legal standard. In order for defendants to prevail on
this Rule 50 or sufficiency of the evidence claim, they need to
show that no reasonable jury could have denied their Mt. Healthy
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defense. See Sheils Title Co., 184 F.3d at 19. A showing that
defendants presented sufficient evidence for a jury to grant their
Mt. Healthy defense clearly does not meet this burden. The case
they rely on, Vázquez-Valentín, does not support the proposition
they cite it for and did not even reach the Mt. Healthy defense.
In Vázquez-Valentín, we found that no reasonable jury could have
found "that plaintiff's political affiliation was a substantial or
motivating factor in [the] adverse employment action." 385 F.3d at
40.
Even if defendants had argued that no reasonable jury
could deny their Mt. Healthy defense under the appropriate legal
standard, they would be incorrect. At trial, plaintiffs and
defendants presented conflicting evidence as to the legality of
plaintiffs' appointments. Notably, Héctor Rivera-Rivera, the
director of recruitment, testified that he certified that
plaintiffs' appointments were legal. A reasonable jury could
certainly find that political affiliation, not the legality of the
appointments, was the "but-for" cause of the demotions. Therefore,
defendants' Mt. Healthy defense must fail.
We next address defendants' contention that the district
court improperly refused to include a jury instruction describing
the Mt. Healthy defense. Defendants submitted proposed jury
instructions for the Mt. Healthy defense. Defendants contend that
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they properly preserved this issue for appeal. The portion of the
transcript cited by defendants follows:
MS. RODRIGUEZ: Okay. And regarding the good
faith defense and the personal --
THE COURT: What do you mean by "good faith"?
MS. RODRIGUEZ: It is the defendants'
reasonable belief that they were acting by
authority of a valid statute.
THE COURT: I gave the instruction that says,
"If there were other reasons, whether good or
bad, proper or improper, likeable or
unlikeable, that motivated their actions, that
were not political discrimination, there is no
case." I said that.
THE COURT: That's it. Very well.
To preserve an objection to a jury instruction for appeal, a party
must "stat[e] distinctly the matter objected to and the grounds of
the objection." Fed. R. Civ. P. 51(c)(1). Defendants' statement
above does not constitute an objection to the Mt. Healthy
instruction. Indeed, in another portion of defendants' brief, they
argue that this exact same language constitutes an objection to the
district court's jury instructions on qualified immunity.
Because defendants did not object to the district court's
jury instructions regarding the Mt. Healthy defense, we review for
plain error. Drohan v. Vaughn, 176 F.3d 17, 21 (1st Cir. 1999).
"Thus, we reverse only if there is a 'plain' or 'obvious' error
that 'affect[s] substantial rights' and which has resulted in a
'miscarriage of justice or has undermined the integrity of the
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judicial process.'" Id. (quoting Wilson v. Maritime Overseas
Corp., 150 F.3d 1, 6-7 (1st Cir. 1998)).
We find no plain error. The district court gave a jury
instruction regarding the Mt. Healthy defense: "It is sufficient if
the plaintiffs prove that their protected political activities were
the determinative factor in the consideration that was made, and
that it made a difference in the defendants' decision." This
instruction contains the substance of the Mt. Healthy defense. In
order to prevail on the Mt. Healthy defense, defendants must show
that plaintiffs would have been demoted regardless of their
political affiliation. Thus, if plaintiffs' political affiliation
was a "determinative factor" or "made a difference," defendants
cannot claim that plaintiffs would have been demoted regardless of
their political affiliation. Although the district court could
have been clearer in instructing the jury on the Mt. Healthy
defense and should have included the Mt. Healthy defense on the
verdict form,5 the trial was certainly not a "miscarriage of
justice" and did not "undermine[] the integrity of the judicial
process." Wilson, 150 F.3d at 7 (internal quotation marks
omitted).
5
We suggested in Sánchez-López (published after the trial in this
case) that district courts include a question on the jury verdict
form that explicitly incorporates the Mt. Healthy defense.
Sánchez-López, 375 F.3d at 135. Defendants have not contested the
jury verdict form on appeal.
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III. Qualified Immunity
"Qualified immunity specially protects public officials
from the specter of damages liability for judgment calls made in a
legally uncertain environment." Ryder v. United States, 515 U.S.
177, 185 (1995). An official is entitled to qualified immunity
unless (1) "the plaintiffs' allegations, if true, establish a
constitutional violation," (2) "the right was clearly established
at the time of the alleged violation," and (3) "a reasonable
[official], similarly situated, would understand that the
challenged conduct violated that established right." Suboh v.
Dist. Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002). The
first two prongs of this test are questions of law for the court
to decide. Id. The third prong is also a question of law, but
factual questions, to the extent they are antecedent to this
determination, must be determined by a jury. Id. While
preliminary factual questions regarding qualified immunity are sent
to the jury, the legal question of the availability of qualified
immunity is "ultimately committed to the court's judgment."
Acevedo-García, 351 F.3d at 563.
Defendants first contend that the district court erred in
failing to instruct the jury on qualified immunity. Defendants,
however, are not entitled to a jury instruction regarding qualified
immunity, since it is a legal question for the court to decide.
See id. Defendants are entitled to have a jury determine any
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preliminary factual questions, but defendants have not stated,
either at trial or on appeal, precisely what factual questions
would need to be resolved before the court could determine the
legal issue of the official's reasonableness. In finding that
defendants politically discriminated against plaintiffs, the jury
found that defendants intentionally violated plaintiffs'
constitutional rights. Thus, it appears that any factual finding
the jury could make would not benefit defendants. We find no
error.
Defendants also argue that the court erred in failing to
grant them qualified immunity. We review de novo the district
court's denial of a qualified immunity defense. Suboh, 298 F.3d at
90. Defendants remarkably contest all three prongs of the
qualified immunity analysis. We need not long consider the first
two prongs. Plaintiffs' allegations, if true, clearly established
a violation of their First Amendment rights, and such right was
well established at the time of the violation. See Acevedo-García,
351 F.3d at 564. In light of the jury's verdict and our affirmance
of it, the third prong is also unavailing. As just mentioned, the
jury found that defendants intentionally violated plaintiffs'
constitutional rights. Any reasonable official would clearly
understand that it is improper to intentionally violate an
employee's First Amendment rights. See id. at 564-65. Defendants
were not entitled to qualified immunity.
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IV. Excessive Damages
A. Compensatory Damages
Defendants contend that the compensatory damages award
lacked evidentiary support and also that it was excessive. In
making these claims, they do not cite any First Circuit precedent.
They do cite a Fourth Circuit case, Price v. City of Charlotte, 93
F.3d 1241 (4th Cir. 1996), which they miscite as a First Circuit
case, and an unpublished decision from the District of Puerto Rico,
Laracuente-Pabón v. Rodríguez, No. 95-1528, 1998 U.S. Dist. Lexis
22430 (D.P.R. Mar. 30, 1998). They also cite three Supreme Court
cases for the proposition that actual injury is required for an
award of compensatory damages. Further, in making this argument,
defendants were obliged to present the facts in the light most
favorable to the verdict but failed to do so.6 See Anthony v.
G.M.D. Airline Servs., Inc., 17 F.3d 490, 493 (1st Cir. 1994).
Given the defendants' failure to specify the applicable law and
their failure to present the facts in the light most favorable to
the verdict, this argument is not sufficiently developed and thus
6
Rodríguez testified that as a result of her demotion and
transfer to a dangerous, high-security prison, she sought emotional
therapy through state insurance. Defendants stated that Rodríguez
voluntarily decided to seek state benefits and was not compelled to
do so. Escobar testified that as a result of her demotion she was
forced to seek psychological help, she needed medication to sleep
well, and her credit was harmed. Defendants argue, without any
evidentiary support, that Escobar's emotional condition was not the
result defendants' actions but caused by her poor credit history
and divorce.
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waived. See Colón v. R.K. Grace & Co., 358 F.3d 1, 5 (1st Cir.
2003). Even assuming that this argument was sufficiently
developed, the jury's award of compensatory damages was amply
supported by the record.
B. Punitive Damages
The jury awarded punitive damages of $120,000 to
Rodríguez and $195,000 to Escobar. The punitive damages were
assessed against Dávila. Dávila argues that the punitive damages
award was excessive. We review this claim de novo. Romano v. U-
Haul Int'l, 233 F.3d 655, 672 (1st Cir. 2000). The purpose of
punitive damages is to punish and deter reprehensible conduct. Id.
A punitive damages award will stand unless we find it "certain that
the amount in question exceeds that necessary to punish and deter
the alleged misconduct." Id. (internal quotation marks omitted).
The Supreme Court has presented three guideposts to consider in
determining the excessiveness of a punitive damages award: "(1) the
degree of reprehensibility of a defendant's conduct; (2) the ratio
between punitive and actual and potential damages; and (3) a
comparison of the punitive damages figure and other civil and
criminal penalties imposed for comparable conduct." Id. at 672-73
(citing BMW of N. Am. v. Gore, 517 U.S. 559, 574-75 (1996)).
The first guidepost is "perhaps the most important" in
this determination. BMW of N. Am., 517 U.S. at 575. Punitive
damages are justified "'when the defendant's conduct is shown to be
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motivated by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of others.'"
Kolstad v. Ada, 527 U.S. 526, 536 (1999) (quoting Smith v. Wade,
461 U.S. 30, 56 (1983)). We have previously affirmed the award
punitive damages to state employees suffering adverse employments
actions in violation of their First and Fourteenth Amendment
rights. Acevedo-García, 351 F.3d at 571; Rivera-Torres v. Ortiz
Vélez, 341 F.3d 86, 102 (1st Cir. 2003).
Defendants' only argument against punitive damages is
that they did not violate plaintiffs' First or Fourteenth Amendment
rights. Since the jury found otherwise and we construe all
evidence in favor of the jury's verdict, this argument is to no
avail. The jury found that Dávila intentionally demoted plaintiffs
because of their political affiliation. Dávila's act also
jeopardized plaintiffs' livelihood. As a result of their
demotions, Rodríguez's salary was reduced by 60 percent and
Escobar's salary was reduced by 43 percent. Both plaintiffs
suffered harms to their professional careers, were unable to meet
their financial obligations because of their reduced salaries, and
suffered emotional distress for which they sought medical
attention.
Dávila addresses only the first guidepost, but the other
two guideposts also favor plaintiffs. In addition to back pay, the
jury awarded Rodríguez compensatory damages of $180,000 and Escobar
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compensatory damages of $105,000. Thus, for Rodríguez, the
punitive damages were less than the compensatory damages, and for
Escobar, the punitive damages were less than twice the compensatory
damages. The ratio of punitive to compensatory damages and the
magnitude of the punitive damages are far from extraordinary. See
Rivera-Torres, 341 F.3d at 102 (finding punitive damages "well
within acceptable bounds" in a political employment discrimination
suit where the jury awarded $185,000 in compensatory damages to the
plaintiff, $135,000 in compensatory damages to plaintiff's family,
and $250,000 in punitive damages); see also Tapalian v. Tusino, 377
F.3d 1, 8-9 (1st Cir. 2004) (upholding an award $58,843 in
compensatory damages and $150,000 in punitive damages); Davis v.
Rennie, 264 F.3d 86, 117 (1st Cir. 2001) (awarding punitive damages
of about one million dollars, ten times the amount of compensatory
damages); Romano, 233 F.3d at 673 (awarding punitive damages
nineteen times greater than compensatory damages).
V. Conclusion
At the conclusion of the trial, the district court stated
"it is incredible that anybody would believe that there was not the
slightest political motivation in what happened in this case. It
is just unbelievable. It is an insult to the intelligence of the
human being to think otherwise." We agree.
Affirmed.
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