Martinez-Velez v. Rey-Hernandez

United States Court of Appeals
For the First Circuit

No. 06-1409

JESÚS MARTINEZ-VÉLEZ; JUAN F. MARTÍNEZ-NIEVES; HARRY J. RIVERA-
LUGO; MIGUEL A. VEGA-BARREIRO; RICARDO J. CASTILLO-MONTESINO;
JOSÉ R. CASTILLO-MONTESINO; ORLANDO TOLLENS-ORTIZ; EDITH PÉREZ-
POSSO; LUIS A. GARCÍA-GONZÁLEZ; SOCORRO AVILÉS-PÉREZ;
MARANGELI RIVERA-COLLAZO,

Plaintiffs, Appellees,

JOSÉ A. REYES-CAÑADA; JOSÉ A. RIVERA-TORRES; ROBERTO RAMÍREZ-
SANTOS; ISRAEL L. PABÓN-TORRES; IRIS RIVERA-RUIZ,

Plaintiffs,

v.

CÉSAR REY-HERNÁNDEZ, in his official capacity as Secretary of the
Puerto Rico Department of Education and in his personal capacity;
LIZZETTE PILLICH-OTERO, in her official capacity as Assistant
Secretary for Human Resources of the Puerto Rico Department of
Education and in her personal capacity; MARÍA CELIA RIVERA, in
her official capacity as Assistant Secretary for General Services
of the Puerto Rico Department of Education and in her personal
capacity; RAFAEL ARAGUNDE,

Defendants,

CARMEN I. MOTTA-MONTAÑEZ, in her official capacity as Director of
the Legal Division of the Puerto Rico Department of Education and
in her personal capacity; JOSÉ A. RIVERA-SAURÍ, in his official
capacity as Transportation Supervisor of the Puerto Rico
Department of Education and his personal capacity,

Defendants, Appellants.

___________________
No. 06-1410

JESÚS MARTÍNEZ-VÉLEZ; JUAN F. MARTÍNEZ-NIEVES; HARRY J. RIVERA-
LUGO; MIGUEL A. VEGA-BARREIRO; RICARDO J. CASTILLO-MONTESINO;
JOSÉ R. CASTILLO-MONTESINO; ORLANDO TOLLENS-ORTIZ; EDITH PÉREZ-
POSSO; LUIS A. GARCÍA-GONZÁLEZ; SOCORRO AVILÉS-PÉREZ;
MARANGELI RIVERA-COLLAZO,

Plaintiffs, Appellees,

JOSÉ A. RIVERA-TORRES; ROBERTO RAMÍREZ-SANTOS; ISRAEL I. PABÓN-
TORRES; JOSÉ A. REYES-CAÑADA; IRIS RIVERA-RUIZ,

Plaintiffs,

CÉSAR REY-HERNÁNDEZ, in his official capacity as Secretary of the
Puerto Rico Department of Education and in his personal capacity;
CARMEN I. MOTTA-MONTAÑEZ, in her official capacity as Director of
the Legal Division of the Puerto Rico Department of Education and
in her personal capacity; MARÍA CELIA RIVERA, in her official
capacity as Assistant Secretary for General Services of the
Puerto Rico Department of Education and in her personal capacity;
JOSÉ A. RIVERA-SAURÍ, in his official capacity as Transportation
Supervisor of the Puerto Rico Department of Education and his
personal capacity; RAFAEL ARAGUNDE,

Defendants,

LIZZETTE PILLICH-OTERO, in her official capacity as Assistant
Secretary for Human Resources of the Puerto Rico Department of
Education and in her personal capacity,

Defendant, Appellant.
____________________

No. 06-1411

JESÚS MARTÍNEZ-VÉLEZ; JUAN F. MARTÍNEZ-NIEVES; HARRY J. RIVERA-
LUGO; MIGUEL A. VEGA-BARREIRO; RICARDO J. CASTILLO-MONTESINO;
ORLANDO TOLLENS-ORTIZ; EDITH PÉREZ-POSSO; LUIS A. GARCÍA-
GONZÁLEZ; SOCORRO AVILÉS-PÉREZ; MARANGELI RIVERA-COLLAZO; JOSÉ R.
CASTILLO-MONTESINO,

Plaintiffs, Appellees,

JOSÉ A. RIVERA-TORRES; ROBERTO RAMÍREZ-SANTOS; ISRAEL I. PABÓN-
TORRES; JOSÉ A. REYES-CAÑADA; IRIS RIVERA-RUIZ,

Plaintiffs,
 v.

CÉSAR REY-HERNÁNDEZ, in his official capacity as Secretary of the
Puerto Rico Department of Education and in his personal capacity,

Defendant, Appellant,

LIZZETTE PILLICH-OTERO, in her official capacity as Assistant
Secretary for Human Resources of the Puerto Rico Department of
Education and in her personal capacity; CARMEN I. MOTTA-MONTAÑEZ,
in her official capacity as Director of the Legal Division of the
Puerto Rico Department of Education and in her personal capacity;
MARÍA CELIA RIVERA, in her official capacity as Assistant
Secretary for General Services of the Puerto Rico Department of
Education and in her personal capacity; JOSÉ A. RIVERA-SAURÍ, in
his official capacity as Transportation Supervisor of the Puerto
Rico Department of Education and his personal capacity;
RAFAEL ARAGUNDE,

Defendants.
____________________

No. 06-1412

JESÚS MARTÍNEZ-VÉLEZ; JUAN F. MARTÍNEZ-NIEVES; HARRY J. RIVERA-
LUGO; MIGUEL A. VEGA-BARREIRO; JOSÉ R. CASTILLO-MONTESINO;
ORLANDO TOLLENS-ORTIZ; LUIS A. GARCÍA-GONZÁLEZ; RICARDO J.
CASTILLO-MONTESINO; EDITH PÉREZ-POSSO; SOCORRO AVILÉS-PÉREZ;
MARANGELI RIVERA-COLLAZO,

Plaintiffs, Appellees,

JOSÉ A. RIVERA-TORRES; ROBERTO RAMÍREZ-SANTOS; ISRAEL L. PABÓN-
TORRES; IRIS RIVERA-RUIZ; JOSÉ A. REYES-CAÑADA,

Plaintiffs,

v.

CÉSAR REY-HERNÁNDEZ, in his official capacity as Secretary of the
Puerto Rico Department of Education and in his personal capacity;
LIZZETTE PILLICH-OTERO, in her official capacity as Assistant
Secretary for Human Resources of the Puerto Rico Department of
Education and in her personal capacity; CARMEN I. MOTTA-MONTAÑEZ,
in her official capacity as Director of the Legal Division of the
Puerto Rico Department of Education and in her personal capacity;
MARÍA CELIA RIVERA, in her official capacity as Assistant
Secretary for General Services of the Puerto Rico Department of
Education and in her personal capacity; JOSÉ A. RIVERA-SAURÍ, in
his official capacity as Transportation Supervisor of the Puerto
Rico Department of Education and his personal capacity,

Defendants,

RAFAEL ARAGUNDE; SECRETARY OF EDUCATION,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
____________________

Before

Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Howard, Circuit Judge.
___________________

Edward W. Hill-Tollinche with whom Quiñones & Sánchez, P.S.C.
was on brief for Lizzette Pillich-Otero.
Luis A. Rodríguez-Muñoz with whom Roberto Sánchez-Ramos,
Secretary of Justice, Salvador Antonetti-Stutts, Solicitor General,
Eileen Landrón-Guardiola, Eduardo Vera-Ramírez and Landrón & Vera,
LLP were on brief for César Rey-Hernández, Carmen I. Motta-Montañez
and José A. Rivera-Saurí.
Zulema E. Martínez-Alvarez with whom Salvador J. Antonetti-
Stutts, Solicitor General, Mariana D. Negrón-Vargas, Deputy
Solicitor General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor
General, were on brief for Rafael Aragunde, in his official
capacity as Secretary of Education.
Michael Craig McCall with whom Eliezer Aldarondo-Ortiz, Iván
Castro-Ortiz, Sheila Torres-Delgado and Aldarondo & López Bras were
on brief for plaintiffs, appellees.

October 23, 2007
 BOUDIN, Chief Judge. On November 7, 2000, Puerto Rico's

incumbent New Progressive Party ("NPP") was defeated by its primary

opponent, the Popular Democratic Party ("PDP"), in the

gubernatorial election. The governor-elect chose Cesar Rey-

Hernandez to serve as Secretary of Education in the new

administration, and Rey took office on January 8, 2001. Events,

mostly occurring after Rey took office, led certain employees of

the department to file section 1983 claims, 42 U.S.C. § 1983

(2000), in the federal district court for Puerto Rico.

The suit was filed against Rey and others by a group of

drivers (and two of their spouses1), by a probationary attorney

(Edith Perez-Posso) and by Luis Garcia-Gonzalez, an investigator

who had served the secretary in the previous administration. Each

plaintiff claimed to have suffered injury resulting from political

discrimination in violation of the first amendment and subject to

redress under section 1983. Rutan v. Republican Party of Ill., 497

U.S. 62, 74-76 (1990).

The case was tried twice. On the first attempt, in May

and June 2004, the jury deadlocked and a mistrial was declared. In

a retrial in October and November 2005, the jury returned a verdict

largely in the plaintiffs' favor on November 23, 2005. Because the

1
The spouses filed pendent claims under articles 1802 and 1803
of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-42.
These judgments stand or fall with the drivers' section 1983 claims
and need no separate discussion.

-5-
case embraced four different "mini trials" with different parties

and different episodes, we do no more here than summarize the

verdicts as modified after post-trial motions.

1. Seven drivers obtained verdicts
against Rey and Lizzette Pillich-Otero, who
was Rey's Assistant Secretary for Human
Resources, based on the drivers' transfer to a
central transportation pool and loss of
overtime pay. The awards ranged from $1 to $
25,000 in compensatory damages with nominal
awards for punitive damages.

2. The same seven drivers prevailed
against Jose Rivera-Sauri, the supervisor of
the office to which they were transferred, for
alleged acts of harassment. Sauri was held
liable with Rey and Pillich with no allocation
of damages as between transfer and harassment
claims.

3. Edith Perez-Posso, who worked as a
probationary attorney in the legal division of
the department, was awarded $11,000 plus
nominal punitive damages against Carmen Motta-
Montanez, the new director of the division who
had evaluated and terminated Perez-Posso.

4. Luis Garcia-Gonzalez was awarded
$10,000 in compensatory damages against Rey
and Motta and a further $10,000 in punitive
damages against Motta. Garcia had accused
both of fostering administrative charges
against him that led to temporary suspension
and delayed his intended retirement.

The district court also granted equitable relief in light

of the jury's findings. Specifically, the court ordered that a

plan be adopted to ensure that overtime work not be distributed to

career drivers based on political affiliation; that Perez be

reinstated; and that an admonishment be expunged from Garcia's

-6-
employment file. Plaintiffs' counsel were awarded attorneys' fees

in the amount of $ 949,631.40.

All four defendants (Rey, Motta, Pillich and Sauri) now

appeal, contesting the money judgments against them and the award

of attorneys' fees. The current education secretary, who has

succeeded Rey, seeks review only of the attorneys' fees awarded

against the secretary in his official capacity. No one has sought

to overturn the equitable relief. Before examining the four

different episodes one by one, we begin with the common legal

framework.

The Supreme Court, in a set of decisions beginning with

Elrod v. Burns, 427 U.S. 347 (1976), has declared it to be a

violation of the first amendment for government officials to take

adverse actions--at least of a certain level of severity and with

certain exceptions--against other government employees based on

their political party affiliation.2 The rationale is to avoid

chilling the employees' rights of political free speech and

association. Rutan, 497 U.S. at 73.

Inevitably, the case law recognizes that political

affiliation is a legitimate touchstone for policy-makers or those

who serve in a confidential capacity. Elrod, 427 U.S. at 367-68.

(Often, but not always, this category overlaps with those not

2
Elrod, 427 U.S. at 373 (patronage dismissals); Branti v.
Finkel, 445 U.S. 507, 519-20 (1980) (same); Rutan, 497 U.S. at 65
(promotion, transfer, recall, and hiring decisions).

-7-
protected by civil service laws, called "trust" employees in Puerto

Rico.) Nor does liability attach where an adverse employment

action, even though resting in part on political motives, would

have been taken anyway for permissible reasons (e.g., misconduct or

incompetence). Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 285-87 (1977).

A prima facie case requires evidence that "(1) the

plaintiff and the defendant belong to opposing political

affiliations; (2) the defendant has knowledge of the plaintiff's .

. . affiliation; (3) . . . a challenged employment action

[occurred]; and (4) . . . 'political affiliation was a substantial

or motivating factor'" behind it. Peguero-Moronta v. Santiago, 464

F.3d 29, 48 (1st Cir. 2006) (quoting Gonzalez-de-Blasini v. Family

Dept., 377 F.3d 81, 85-86 (1st Cir. 2004)). A defendant may

contest this showing, offer a Mt. Healthy defense or both.

The usual vehicle for such claims against state actors is

section 1983, whose remedy embraces actual and (sometimes) punitive

damages, as well as attorneys' fees.3 Because of the eleventh

amendment, the damages claims are usually brought against

individual government officials in their personal capacities while

3
Carey v. Piphus, 435 U.S. 247, 255-57 (1978) (ordinary
principles of compensation apply); Smith v. Wade, 461 U.S. 30, 55-
56 (1983) (punitive damages available against individual officers
if their conduct was motivated by evil intent or involved reckless
or callous indifference to constitutional rights); see also 42
U.S.C. § 1988(b) (attorneys' fees). But see City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (municipal
governments cannot be liable for punitive damages).

-8-
equitable relief runs against officers in their official capacities

(i.e., effectively against the state entity itself). Will v. Mich.

Dep't of State Police, 491 U.S. 58, 66 (1989); Quern v. Jordan, 440

U.S. 332, 337 (1979).

Where the sufficiency of the evidence is contested, the

question is whether, drawing reasonable inferences and resolving

credibility in favor of the prevailing party, a rational jury could

have found in favor of the plaintiff. Bisbal-Ramos v. City of

Mayaguez, 467 F.3d 16, 22 (1st Cir. 2006). Other issues, such as

jury instructions or evidentiary rulings, are judged on appeal by

the standards applicable to the issue. E.g., Diaz-Rivera v.

Rivera-Rodriguez, 377 F.3d 119, 123 (1st Cir. 2004) (evidentiary

issues).

Driver claims against Rey and Pillich. Prior to December

2000, all seven driver-plaintiffs worked at the Office of the

Secretary, on the twelfth floor of the main Department of Education

building in San Juan. All were affiliated with the NPP.

Primarily, they drove department officials, but in practice, their

work included many other duties--everything from messenger service

to answering the phones--and each of them performed a substantial

amount of overtime work, in some cases almost doubling their base

salaries.

-9-
 When Rey took office in January 2001, two of the seven

drivers had transferred to another facility4 but the other five

testified that they then received less work and that several PDP

members appeared on the twelfth floor and were doing some of the

duties that the seven had earlier done. In February 2001 Rey

approved a plan whereby drivers, whether assigned to the twelfth

floor or not, were re-assigned to a general pool--ultimately

comprising some 25 drivers--centrally supervised in an annex to the

main building.

The seven drivers were reassigned to this pool effective

February 20, 2001. In the subsequent weeks, several more PDP

drivers were assigned work on the twelfth floor and thereafter

enjoyed substantial overtime. Various officials on the twelfth

floor often sought assignment of particular drivers who were PDP

members and the overtime flowed to these drivers. None of the

seven driver-plaintiffs thereafter enjoyed substantial overtime.

The drivers' theory at trial was that the sequence of

events just described added up to a plan, for which Rey and Pillich

were responsible, to displace the NPP drivers on the twelfth floor

(and the two brothers who had transferred to Naranjito) with PDP

drivers who would thereafter enjoy the overtime, and that the

motive was political discrimination against the former and in favor

4
In December 2000, for personal reasons two of the driver-
plaintiffs, brothers Jose and Ricardo Castillo, requested a
transfer to a department facility in Naranjito, which is located
about an hour from San Juan.

-10-
of the latter. Rey and Pillich say that the evidence for such a

determination was lacking.

The jury could have concluded that overtime did shift

from the five drivers who initially remained on the twelfth floor

to PDP drivers and that the two brothers who had transferred (see

note 4, above) were seriously inconvenienced by their re-transfer

to the pool, impairing their ability to keep non-government evening

jobs. That there was no entitlement to overtime or to a particular

location is no barrier under the precedents and their rationale.

Rutan, 497 U.S. at 72.

Probably the jury was also entitled to conclude that the

NPP affiliation of the seven was sufficiently well known that Rey

and Pillich were aware of it, cf. Peguero-Moronta, 464 F.3d at 48;

perhaps, also, that after the transfer the defendants were aware

that overtime previously available to the NPP drivers now went to

PDP drivers. No one disputes that the pool plan was approved by

Rey and the transfers (pursuant to the plan) of all seven driver-

plaintiffs were signed by Pillich.

But fatally, there is no evidence that Rey or Pillich

conceived the pool plan or transfers as a means of favoring PDP

drivers over NPP drivers or that they approved or fostered the re-

direction of twelfth floor work or overtime to PDP drivers. The

pool arrangements merely centralized supervision of the drivers.

So far as the record reveals, the PDP drivers achieved such

-11-
benefits almost entirely as a result of decisions by various other

twelfth floor officials who, on an individual basis, requested

particular drivers generally or for specific assignments.

On this record, Rey and Pillich cannot be held liable for

discrimination by others. Section 1983 does not impose purely

supervisory liability, Rizzo v. Goode, 423 U.S. 362, 375-77

(1976); it aims at "persons who have actually abused their

positions of authority," Dunham v. Crosby, 435 F.2d 1177, 1180 (1st

Cir. 1970), and hence "only persons who were directly involved in

the wrongdoing may be held liable." Kostka v. Hogg, 560 F.2d 37,

39 (1st Cir. 1977). Exceptions exist but are either irrelevant

here or have not been invoked.5

True enough, a couple of PDP members showed up on the

twelfth floor early in the new administration to do some of the

work done by the NPP drivers; but there was no proof as to who had

assigned them (or that they earned overtime pay). Three more

appeared after the February transfer, but again there is no proof

who sought them. Plaintiffs at trial pointed to two more PDP

drivers, but one was clearly requested by the Office of

5
Officers can be held liable for the acts of their
subordinates if they engaged in "'supervisory encouragement,
condonation or acquiescence' or 'gross negligence amounting to
deliberate indifference,'" Lipsett v. Univ. of Puerto Rico, 864
F.2d 881, 902 (1st Cir. 1988) (citation omitted), but that is a
demanding standard, see Seekamp v. Michaud, 109 F.3d 802, 808 (1st
Cir. 1997). Municipalities, but not states, can be held liable for
acts of municipal employees only if those actions constitute a
"policy or custom" of the government. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978).

-12-
Communications, and another appears to have worked in San German,

not in San Juan.

Pillich in an administrative capacity signed off for

overtime earned by various PDP drivers on the twelfth floor but

there is no indication that she chose the drivers. Indeed, in some

cases the officials who actually ordered the overtime were

Pillich's superiors in the department. The sign-offs suggest that

Pillich knew that PDP drivers were doing well at the expense of NPP

drivers but not that she caused them to be so favored.

On its face, the pool plan was a plausible piece of

agency reorganization, centralizing some 25 or so drivers including

both NPP and PDP members under one office. If Rey or Pillich had

instigated or approved the subsequent favoring of PDP members, it

might be inferred that they had conceived the plan for this

purpose. But there was no such evidence. The officials who

systematically summoned PDP drivers for overtime might perhaps have

been sued but they were not.

The drivers did show, and the jury was free to believe,

that defendants were committed political partisans. More pertinent

to a discrimination claim, Pillich (but not Rey) was accused of

uttering two arguably hostile political remarks and the jury may

have credited the testimony (although the remarks were pretty mild

by current standards).6 But this hardly shows that either Rey or

6
One of Pillich's two remarks dated back to 1996, and the
other--that Pillich warned a colleague not to trust one of the

-13-
Pillich devised the pool plan to mask a discriminatory scheme to be

executed by others.

Contrast this with Fernandez v. Chardon, 681 F.2d 42 (1st

Cir. 1982), which also concerned a facially neutral policy

promulgated by a then-Secretary of Education. Although the policy

had the ultimate result of demoting employees of one party in favor

of those belonging to the other, the "critical evidence" against

the then-secretary, id. at 56, comprised his comments that his

party would ensure that its political opponents would not fill any

vacancies.

If the reorganization in this case was hatched as a plan

to clear the decks of NPP drivers so that PDP drivers could be

favored, it was up to plaintiffs to conduct the necessary discovery

and offer the evidence. Liability without such proof would

effectively preclude any post-election reorganization that happens

to affect adversely employees connected to the previously dominant

party. Cf. Marin-Piazza v. Aponte-Roque, 873 F.2d 432, 434 (1st

Cir. 1989). The verdicts for the drivers (and for the spouses)

cannot stand as against Rey and Pillich.

Driver claims against Sauri. The claim of the seven

drivers against Sauri is this: that after their transfer to his

pool he harassed them because of their political affiliation--

drivers because he was a remnant of the former administration--is
not particularly probative of anything beyond her knowledge of his
political affiliation.

-14-
specifically, by subjecting them but not PDP drivers to humiliating

roll calls, by following them to the cafeteria on their breaks, by

selectively blaming them when things went amiss, by falsely

altering their time sheets and by forcing them to sit inside an

office that was too small.

Actions of informal harassment, as opposed to formal

employment actions like transfers or demotions, can be the basis

for first amendment claims if the motive was political

discrimination; but this is so only if the discriminatory acts are

"sufficiently severe to cause reasonably hardy individuals to

compromise their political beliefs and associations in favor of the

prevailing party." Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d

1209, 1217 (1st Cir. 1989) (en banc).

This threshold is implicit in the rationale for granting

Rutan protection--to safeguard political speech and association--

and distinguishes "the wheat" of real impairments from "the chaff

of minor irritants and frustrations" in any workplace. Agosto-de-

Feliciano, 889 F.2d at 1214. An ambiguous footnote in Rutan, 497

U.S. at 76 n.8, could imply that even withholding of a birthday

party might be enough; but Rutan's text does not so suggest and our

cases have "continued to apply the Agosto-de-Feliciano standard,"

Bisbal-Ramos, 467 F.3d at 22.7

7
Miranda Otero v. P.R. Indus. Comm'n, 441 F.3d 18, 22 n.4 (1st
Cir. 2006); Rosario-Urdaz v. Velazco, 433 F.3d 174, 178 n.3 (1st
Cir. 2006); Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431 n.2 (1st
Cir. 2005); Ortiz Garcia v. Fernandez, 405 F.3d 21, 23 n.4 (1st

-15-
 If everything alleged by the drivers was supported by the

record, we would agree such actions could, taken together, be

deemed by a jury sufficiently weighty to discourage political

affiliation or speech; and then, if improper motivation were

expressed or reasonably inferred, a first amendment claim would be

made out--although it is puzzling how such harassment could have

caused substantial economic damages unless altering the time sheets

caused a loss of pay (for which no proof was offered).

But the drivers' case substantially weakens as one

examines the evidence. There was no proof that Sauri ordered

selective roll calls; they were conducted by a secretary and ceased

within days after complaints were made. The alleged casting of

blame by Sauri concerns one offhand, isolated, sarcastic comment by

Sauri that the Castillo brothers would know the location of a

missing key; the drivers also testified that Sauri tended to

suspect them whenever a car broke down, but no specific incidents

were described.

The room assigned to the drivers waiting for tasks may

well have been too small but it was shared by all drivers, PDP and

NPP alike. The district judge found no evidence to suggest that

Cir. 2005); Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101
n.5 (1st Cir. 1997); accord Lybrook v. Members of Farmington Mun.
Sch. Bd. of Educ., 232 F.3d 1334, 1340 n.2 (10th Cir. 2000); Pierce
v. Tex. Dep't of Criminal Justice, 37 F.3d 1146, 1149 n.1 (5th Cir.
1994), cert. denied, 514 U.S. 1107 (1995). But see Tao v. Freeh,
27 F.3d 635, 639 (D.C. Cir. 1994); Rodriguez-Pinto v. Tirado-
Delgado, 982 F.2d 34, 42 (1st Cir. 1993) (Torruella, J.,
concurring).

-16-
Sauri discriminated with respect to the allocation of duties. As

for following the drivers to the cafeteria, Sauri agrees that he

did so on occasion because he was concerned that the seven drivers,

or at least some of them, were abusing their breaks. None of this

adds up to culpable harassment by Sauri.

Turning to the time sheets, false alterations for

improper purposes would be close to fraud, and the economic

consequences for the drivers could be serious. But Sauri

apparently reviewed time sheets as part of his job and made

adjustments both for and against the seven drivers; the evidence is

very muddled but we are given no basis to infer that his changes

were deliberately false or formed a suspicious pattern.

Wrongdoing might perhaps have been inferred if the

driver-plaintiffs had shown that the changes adversely affected

their pay or tenure. But it appears from the record that the

drivers had fixed salaries for their basic work and that Sauri

confirmed on the time sheets that they had satisfied all their work

requirements. The drivers countered with only the vague and

undetailed suggestion that somehow their benefits might have been

affected. This is hardly enough.

Unlike the verdict against Rey and Pillich, the verdict

against Sauri has no single glaring flaw, and we are reluctant to

second guess a jury on a confusing record. But even resolving

doubts in favor of the plaintiffs, what remains--after the hopeless

-17-
allegations are stripped away--is just too thin to support a

finding of liability. Allowing a judgment to rest on this

collection of complaints would "trivialize the First Amendment."

Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).

Perez' claim against Motta. Perez' claim is by far the

most straightforward discrimination claim presented. Perez, then

serving as a probationary employee doing legal work, says that

Motta, the new department head and a PDP supporter, gave Perez a

failing evaluation because of Perez' affiliation with the NPP. On

appeal, Motta says that the evidence was insufficient. We think

that the case is close but that the jury was within bounds in

imposing liability.

Perez testified that she had been given a favorable

evaluation prior to the PDP election, that Motta took over the

legal department in January 2001, and that Perez received no work

for about two weeks thereafter. Then she got a batch of contracts

to review, which took about three days, and thereafter got no new

assignments until February 27, when Motta gave her a new evaluation

ranking her unsatisfactory. In consequence, Perez lost her

position.

Perez also claimed that she had sought repeatedly to

contact Motta during the intervening weeks, first by leaving

messages with her secretary and later by slipping a memo under

Motta's office door. Perez said that her evaluation meeting with

-18-
Motta lasted only five minutes, while her prior evaluation meeting

lasted over an hour. Perez also alleged that Motta had made two

politically charged remarks (during a single incident) prior to the

general election.

Motta responded by giving detailed reasons for the

evaluation: that Perez erroneously cited statutes, did not accept

constructive criticism, was frequently absent from the office

without explanation, and did not fulfill tasks that she was asked

to perform. Motta denied making the hostile remarks attributed to

her, claimed she did meet with Perez, and explained that Perez

received work not from Motta but whenever contracts to review were

forwarded by others.

On appeal, Motta argues that there was no direct evidence

that she was even aware of Perez' party affiliation, but based on

Perez' testimony that she spoke openly about her political views

and sat in the NPP portion of the de facto segregated cafeteria, a

reasonable jury could infer that Motta, who worked alongside Perez

for about six months, was aware of Perez' affiliation. See

Peguero-Moronta, 464 F.3d at 48.

The evidence that Motta gave an unduly low recommendation

for political reasons is more debatable. We must assume that Motta

made the two remarks that Perez reported.8 Worse still for Motta,

8
The first of these--that if someone put a bomb in the
Department of Education, half of the NPP electorate would disappear
--is not highly probative of likely discrimination; the second--
that if the PDP were successful in the elections then Motta would

-19-
stronger motive evidence as to Motta's involvement with Garcia

(which we discuss next) resulted not only in liability but also

substantial punitive damages against Motta. The jury was free to

draw inferences from this episode as well--including the

particularly damaging testimony by Garcia that Motta indicated her

intent to "fire all the NPPs" in the office.

That Perez was given a favorable evaluation immediately

before the change in administration also could raise doubts about

the fairness of Motta's evaluation and therefore its motive,

although this inference is tempered by the circumstances: in

particular, Perez' positive evaluation was rendered under the NPP

regime on December 31, 2000, which was a Sunday, New Year's Eve,

and only a few days before Rey began his term. Still, the jury

could have found that the earlier evaluation was not a white-wash.

The most troubling concern about the verdict is that

Motta's explanation for her evaluation is coherent and much of it

not directly contradicted. But the jury was not obliged to credit

Motta's good faith or veracity. In addition to Perez' prior

favorable evaluation and the damaging motive evidence against

Motta, the two contradicted each other directly as to whether Motta

had made the two remarks and whether she had evaded Perez; and the

jury may have been doubtful about Motta's explanation for Perez'

prolonged idleness since Motta headed the office.

be "chopping heads down"--is more telling in relation to what
happened to Perez.

-20-
 Thus, unlike the case of the drivers against Sauri, this

claim was about a concrete job loss and the dispute here was

largely about whom to believe. Here our deference to the jury is

at its zenith: they are closer to the gritty detail and see and

hear the witnesses. Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d

72, 75 (1st Cir. 2006). Neither story was implausible nor clearly

confirmed (or negated) by objective evidence, and so the jury's

judgment as to who told the truth must stand.

Garcia's claim against Rey and Motta. Garcia's claim is

that Rey and Motta fostered administrative charges against him

because of Garcia's political support of the NPP. Garcia held a

trust position and, when the new administration took over, Rey

notified Garcia that he would be returned to his career position as

an administrative complaints investigator. Trust positions are

often unprotected under Rutan; anyway, Garcia does not now

challenge his re-assignment.

Rather, at trial in the district court, Garcia testified

that on the day he received the letter from Rey removing him from

his trust position, he encountered Motta--whom he had long known--

who said that she was going to fire all the NPP supporters and that

she was going to fire him "and take you off your motor bike so you

won't do any more politics." Garcia said that Motta repeated the

threat later that day. Thereafter, Garcia tendered his resignation

to Motta. In response, Garcia received a letter on February 13,

-21-
2001, from Rey saying that Garcia could not resign because of a

pending harassment complaint filed against him by another employee.

A previous Secretary of Education had found "no cause" to

discipline Garcia for "sexual harassment" but it is unclear whether

the earlier complaint remained pending on other charges

(specifically, labor harassment). Later Rey notified Garcia that

he intended to pursue the charges.

Thereafter, Rey signed a letter adding an additional

charge of insubordination, and Garcia was suspended with pay

pending a final disciplinary decision. Both of the two "intent"

letters appear to have been typed by one of Motta's secretaries.

After a hearing before an examiner, who concluded that some but not

all of the charges had basis in fact, Garcia was terminated on July

16, 2002.

After Garcia brought his federal claim, the charges were

settled within the administrative process on terms largely

(although not wholly) favorable to Garcia: Garcia accepted a

reprimand on one of the charges, was allowed to resign, and

received full pay for the period between his termination and

ultimate resignation. As part of the settlement, Garcia agreed not

to seek reinstatement or back pay in federal court but otherwise

reserved his federal claim:

The agreements contained in this document do
not constitute a waiver of the claim filed by
the Appellant before the Federal District
Court of San Juan, Puerto Rico, except that

-22-
 which regards the compensation for the wages
not received, as stated previously, and the
reinstatement to the position from which he
resigned, however, it does constitute a waiver
of any other cause of action that the
Appellant may have against the Agency, its
officers or employees in their official
capacity.

On this appeal, remarkably Rey and Motta first challenge

the verdict against them on the ground that the claim is barred by

res judicata. The res judicata argument rests on the assertion

that the settlement waiver provision block-quoted above disposed of

the present claim against Rey and Motta. Res judicata is a

doubtful label for the issue,9 but the label does not matter; the

question is the scope of the waiver provision.

The quoted language in the agreement makes clear that

Garcia's federal court claim against Rey and Motta in their

personal capacities was neither settled nor waived. We find hard

to understand, and impossible to accept, defendants' argument that

the agreement only purports to preserve claims unrelated to the

administrative charges. It reserves "the claim" filed by Garcia in

federal court and, although he offered multiple theories, the

9
Whether and when res judicata operates in administrative
proceedings is complicated; so, too, the question when a settlement
of administrative proceeding has res judicata effect. E.g., Diaz-
Seijo v. Fajardo-Velez, 397 F.3d 53, 55-56 (1st Cir. 2005); DeSario
v. Thomas, 139 F.3d 80, 87 n.4 (2d Cir. 1998), vacated on other
grounds sub nom., Slekis v. Thomas, 525 U.S. 1098 (1999); see also
Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986). See generally
18B Wright, Miller & Cooper, Federal Practice & Procedure:
Jurisdiction 2d § 4471.3 (2002).

-23-
misuse of the administrative proceedings was encompassed by his

federal complaint.

This argument is followed in the defendants' brief by

four paragraphs which mingle what might be a defense on the merits

if it had been developed--"Garcia failed to present evidence that

the actions of Rey or Motta were not reasonable with regards to the

initiation of the administrative proceedings nor did political

animus exist[]."--with assertions that "they are both entitled to

qualified immunity."

In order to challenge the sufficiency of the evidence,

the defendants would need to identify the weak elements in Garcia's

case, substantially develop the record evidence on the key issues,

provide relevant background and offer a serious analysis of the

inferences that the jury might or might not reasonably have drawn.

Virtually none of this is furnished in the brief--indeed, the four

paragraphs are primarily directed to urging qualified immunity--a

claim to which we will return.

The failure to make a serious sufficiency argument may

have been a mistake--at least as to Rey. That Rey formally caused

the charges against Garcia is patent; but, of course, he may merely

have followed procedures and taken advice from lawyers instead of

acting from an improper motive. Nor did he make inflammatory

threats from which a discriminatory intent could readily be

-24-
inferred. Garcia's evidence of Rey's animus (e.g., that Rey

appointed PDP partisans) is unimpressive.

The case against Motta is stronger but not airtight.

Garcia testified about her threats (the award of punitive damages

suggests this was believed). But all that links her directly to

Garcia's travails are her secretary's initials on Rey's letters and

Motta disclaimed involvement. Yet the jury may not have believed

her and, given her position and legal training, it might be

inferred that she was Rey's natural advisor on whether charges

should be brought.

But the defendants' failure to develop the sufficiency

issue on appeal and supply the necessary information is a fatal

forfeiture. Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 43

(1st Cir. 1998). Because of this, we cannot be sure that our own

initial hesitation has fairly captured the evidence on both sides.

In addition, the failure seriously to brief the sufficiency issue

meant that Garcia was handicapped in his efforts to respond

although he did make more of an effort than the defendants' brief

on this issue deserved.

Defendants' four paragraphs do more clearly make a

different and simpler argument, namely, that qualified immunity

protects them, whatever their subjective motives, because a

"reasonable" official would have thought that there was a basis for

the charges. Even here, background information is not supplied,

-25-
but in all events in political discrimination cases--where wrongful

motive is an element of the claim--the case law has regularly

rejected this objective-reasonableness argument.10

Rey also disputes two of the district court's rulings

admitting evidence that Rey wanted excluded under Federal Rule of

Evidence 403. That rule requires district judges to weigh the

probative value of the challenged evidence against the unfair

prejudice that would result if it were admitted. We review the

district judge's evidentiary rulings under Rule 403 for abuse of

discretion. United States v. Bradshaw, 281 F.3d 278, 284 (1st Cir.

2002).

At trial, Rey testified that beyond casting his vote for

the PDP, he had no connection to the party or to partisan

activities. He claimed not to be aware of the political

affiliations of the plaintiffs, including Garcia--whom he removed

from his trust position and reinstated as a career employee. On

cross examination, plaintiffs' counsel was permitted to question

Rey about the trust officials he had appointed upon taking office;

of course, they were revealed to be PDP supporters, although Rey

denied knowing their affiliations.

On appeal, Rey argues that because he was legally

entitled to prefer PDP members when selecting these senior policy-

10
Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 96-97 (1st Cir.
2003), cert. denied, 541 U.S. 972 (2004); Feliciano-Angulo v.
Rivera-Cruz, 858 F.2d 40, 45-47 (1st Cir. 1988). But see Crawford-
El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting).

-26-
making officials, allowing that line of questioning was error. But

Rey also claimed that he was entirely independent of party

politics, and the questions were quite relevant in impeaching Rey

as to his own (seemingly unnecessary) defense. In short, the

questions went directly to Rey's own characterization of his

relationship to partisan politics.

This is also true of evidence that Garcia adduced from

Pillich, who was called as a hostile witness. Pillich was

questioned about a paragraph in her affidavit in another case that

elaborated on her knowledge of Rey's participation and involvement

in PDP partisan activities. Rey says that Pillich's allegations in

the prior case were not "resolved or adjudicated"; but it was for

the jury to evaluate whether Pillich's testimony should be

believed.

Attorneys' Fees. Because attorneys' fees depend in large

part on which parties won the case and the extent of their victory,

see Hensley v. Eckerhart, 461 U.S. 424, 434-37 (1983), they will

now have to be recalculated, but we address now two concerns raised

by defendants that are unlikely to disappear on remand.

Part of the fees calculation is the selection of an

appropriate hourly rate for each attorney. Rates should be "those

prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience and reputation." Blum v.

Stenson, 465 U.S. 886, 895 n.11 (1984). Defendants argue that the

-27-
hourly rates accepted by the district judge were excessive under

that standard. But we review fee awards only for "manifest abuse

of discretion." Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 124

(1st Cir. 2004).

The order granting attorneys' fees cites precisely the

factors that the Supreme Court has deemed relevant. Defendants

point to prior cases that have authorized lower rates, but each

case is unique and rates inflate over time; indeed, the district

court reduced the total award by two percent because much work had

occurred in earlier years. The rates in this case do not fall

outside the trial court's "extremely broad" discretion. Lipsett v.

Blanco, 975 F.2d 934, 937 (1st Cir. 1992).

Defendants also argue that the documentation provided by

plaintiffs' counsel was not contemporaneous. Counsel never claimed

it was; the exhibit to their motion said it was "prepared from

contemporaneous time records," adjusted to filter out work done for

unsuccessful plaintiffs or on unsuccessful claims. If defendants

suspected tampering or inaccuracy, they should have sought

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

288, 297 (1st Cir. 2001).

The judgments in favor of the drivers (and spouses) are

reversed; those in favor of Perez and Garcia are affirmed. The

award of counsel fees is vacated and remanded for reconsideration

-28-
in light of the reversal of the judgments as to the drivers. All

parties will bear their own costs and attorneys' fees on appeal.

It is so ordered.

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