Uphoff Figueroa v. Alejandro

United States Court of Appeals
For the First Circuit

No. 08-1921

JOHN A. UPHOFF FIGUEROA,

Plaintiff, Appellant,

v.

HECTOR ALEJANDRO; and NITZA VAZQUEZ RODRIGUEZ,

Defendants, Appellees.

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

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.

Raul Barrera Morales for the appellant.

Marie L. Cortes Cortes for the appellees.

March 4, 2010
 LYNCH, Chief Judge. A judge and a jury, between them,

rejected all of the multitude of employment claims John Uphoff

Figueroa, an environmental attorney, brought against his employer,

the Puerto Rico Electric Power Authority (PREPA) and at least seven

PREPA officials. His basic theory, dressed in many garbs, was that

the new Popular Democratic Party (PDP) regime discriminated against

him by denying him a permanent appointment as the administrator of

PREPA's environmental law office and by creating hostile working

conditions because he was a member of the New Progressive Party

(NPP). He alleges the NPP regime then retaliated against him after

he filed a federal lawsuit in 2003. We find no merit to his claims

and affirm.

We hold as a matter of law under Branti v. Finkel, 445

U.S. 507 (1980), and its progeny that the position of administrator

is not within First Amendment protection because it is a policy

position. PREPA officials could have considered political

affiliation when deciding whether to give Uphoff the permanent

position. Once again we remind litigants that political

discrimination and retaliation claims under the First Amendment

cannot be restated as claims under the Equal Protection Clause.

And we hold that Uphoff did not state a claim under the Fair Labor

Standards Act (FLSA) because he did not allege he was involved in

FLSA-protected activity.

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 I.

Uphoff's suit, as amended in 2004, brought First

Amendment and equal protection political discrimination claims;

First Amendment retaliation claims; FLSA retaliation claims, 27

U.S.C. § 215(a)(3); Title VII retaliation claims, 42 U.S.C.

§ 2000e-3(a); civil rights conspiracy claims, 42 U.S.C. § 1985(3);1

and state constitutional and statutory claims.2 He sued PREPA; two

of his supervisors, Hector Alejandro Navarez and Nitza Vazquez

Rodriguez; and other PREPA officials.3

The trial court dismissed on the pleadings Uphoff's First

Amendment discrimination claim that he was denied the position of

administrator of the environmental law office, holding that

political affiliation was a legitimate qualification for the job.

Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa I), No.

03-1509, 2005 WL 3095517, at *6-11 (D.P.R. Nov. 18, 2005). The

court dismissed his political discrimination and retaliation claims

1
Uphoff also sued under the Fifth Amendment's Due Process
Clause and the Ninth Amendment. He does not appeal the district
court's dismissal of these claims. See Uphoff-Figueroa I, 2005 WL
3095517, at *12.
2
Those claims were under Puerto Rico Law 100, P.R. Laws
Ann. tit. 29, §§ 146 et seq., and Puerto Rico Law 115, P.R. Laws
Ann. tit. 29, § 194a; articles 1802 and 1803 of the Puerto Rico
Code, P.R. Laws Ann. §§ 5141-42; and Article II, sections 1, 4, 6,
7, 8, and 16, of the Constitution of the Commonwealth of Puerto
Rico.
3
Those officials were Maria Mendez Rivera, Maria Torrales
Hernandez, Ana Blanes Rodriguez, Hector Rosario, Ramon Rodriguez
Melendez, and several John Does.

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against all defendants except Vazquez and Alejandro. See id. at

*12-14. It dismissed his Title VII and civil rights conspiracy

against all defendants, id. at *14-16, and his FLSA claim against

PREPA, dismissing PREPA from the case, Uphoff-Figueroa v. P.R.

Elec. Power Auth. (Uphoff-Figueroa II), No. 09-1509, 2006 WL

1663537 (D.P.R. Jun. 7, 2006). The court allowed Uphoff's FLSA and

state law claims against all individual defendants to proceed to

trial, and it allowed his political discrimination and retaliation

claims against Alejandro and Vazquez to proceed to trial as well.

After trial, the court granted judgment as a matter of

law (JMOL), Fed. R. Civ. P. 50(a), in favor of all defendants,

including Alejandro and Vazquez, on Uphoff's FLSA claims and on one

of his state law claims, under Puerto Rico Law 115 (Law 115).

Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa III),

No. 09-1509, slip op. at 4-10 (D.P.R. Jun. 2, 2008). It also held

Uphoff had not presented sufficient evidence for a jury to find the

individual defendants except Alejandro and Vazquez liable on any of

the remaining (state law) claims, and it dismissed those defendants

from the case. Id. at 10-11.

Only Alejandro and Vazquez were left in the case.

Uphoff's remaining claims against them, for political

discrimination and retaliation and for violations of state law,

went to a jury. A jury rejected all of Uphoff's claims against

Alejandro and Vazquez. The trial court denied his new trial motion

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for purported errors in the jury instructions and verdict form and

his motion to amend the verdict.

Uphoff appeals the court's dismissal of his claims on the

pleadings, its grants of judgment as a matter of law, the jury

instructions and verdict form, and the court's denial of his motion

for a new trial or to amend the verdict. We affirm.

II.

In 1996, Uphoff started as principal environmental

attorney at PREPA, a position just below the position of

administrator of the environmental office. He handled the office's

more complex cases. Just before the 2000 elections, he was

temporarily appointed the administrator of the office.

After the PDP took power in the 2000 elections, two PDP

members, defendants Hector Alejandro and Nitza Vazquez, became

Uphoff's supervisors. The environmental law office was moved to

Alejandro's directorate in September 2001. In June 2002, Alejandro

appointed Vazquez as administrator without allowing Uphoff to apply

for the permanent position; Uphoff returned to being the principal

attorney. Alejandro was promoted in September 2003 and no longer

supervised Uphoff or Vazquez.

Uphoff apparently claimed that Alejandro and Vazquez

began a campaign to mistreat him because he was an NPP member.4 He

4
The briefs and trial transcript do not clearly explain
how all of Uphoff's factual allegations supported his legal
theories. We briefly recite his core factual claims as we

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testified that they excluded him from meetings, blocked him from

attending professional seminars, reduced his workload and

responsibilities, and maligned him to other employees, destroying

his relationships with his colleagues.

Before he became Uphoff's supervisor, Alejandro's

directorate often consulted the environmental law office, and

Alejandro and Uphoff worked together. In early 2001, Uphoff and

Alejandro already began disagreeing over how to handle several

cases. Alejandro testified that Uphoff did not obtain approval

before improperly awarding a $3.4 million contract, failed to

timely negotiate a contract, and failed to send documents to

federal authorities upon request.

Uphoff, in turn, asserted that Alejandro and Vazquez

limited his autonomy at work. They ordered him to arrive promptly

at the start of business, 7:30 a.m. Uphoff sometimes credited

hours he worked late to morning hours on his time sheet without

obtaining prior permission to do so, as PREPA regulations required.

Alejandro and Vazquez ordered him to accurately report his arrival

time. Once Alejandro refused to sign a time sheet, after Uphoff

missed a 10:00 a.m. conference call about a federal regulatory

matter but reported on his sheet that he had arrived at 7:30 a.m.

Uphoff also testified that Alejandro and Vazquez denied

him vacation leave. Vazquez and Alejandro testified, however, that

understand them.

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in 2002 PREPA began requiring all executive and managerial

personnel to accept payment for vacation time in excess of 450

hours and that Uphoff refused to comply.

Uphoff claimed that his immediate supervisor, Nitza

Vazquez, tried to isolate him. In late 2003 Vazquez prevented

Uphoff's secretary from using a computer to edit Uphoff's work.

Vazquez also changed the locks to the environmental law office

(then on the sixth floor) for security reasons. Uphoff claimed he

was the only attorney not given a key; Vazquez, Alejandro, and

other employees, however, testified that no attorneys were given

keys. When the office later moved to the seventh floor, all

attorneys, including Uphoff, were given keys.

Uphoff testified that his position as principal attorney

eroded in 2004 and 2005. As principal attorney, Uphoff was

accustomed to having a larger office than the other lawyers. When

the environmental law office moved floors in 2004, Uphoff tried to

claim the second-largest office but was told it would become a

conference room. He was left to choose among five identical, small

offices designated for attorneys.

In 2005 PREPA instituted an agency-wide reclassification

plan, based on recommendations by an outside consultant, which made

Uphoff and all the attorneys "senior attorneys." The other

attorneys received raises to match Uphoff's salary; Uphoff received

no raise. Several of his colleagues received promotions even

-7-
before the reclassification plan; the defendants offered

nondiscriminatory reasons for those promotions.

Uphoff attempted to tie all these incidents to political

animus. He showed that Alejandro, Vazquez, and a few of the other

individual defendants were PDP members but had little evidence they

felt animosity toward NPP members. His secretary testified that

Alejandro had told her the executive director of the agency was

pressuring him to oust Uphoff. Uphoff also testified that

Alejandro had said he, Alejandro, had experienced "real"

discrimination when the NPP was in power.

The defendants denied that Uphoff was mistreated and that

his political affiliation made any difference. Vazquez testified

that she gave Uphoff many complex cases and that she and Alejandro

let Uphoff attend appropriate meetings and seminars. She explained

that she only stripped him of cases after he failed to execute

assignments. Alejandro admitted telling Uphoff and others that

Uphoff was "Machiavellic," after a particular incident in which he

disapproved of what Uphoff had done. Otherwise, Alejandro,

Vazquez, and other employees denied that Uphoff's supervisors

undermined his work relationships.

Alejandro and Vazquez testified that tensions arose

because Uphoff was insubordinate, displayed a bad attitude, and

often lost his temper. They also testified that Uphoff never

respected Nitza Vazquez's authority over him as the administrator,

-8-
and Uphoff did not properly complete assignments that Vazquez

assigned him. Alejandro testified that Uphoff did not work well

with supervisors, colleagues, or state and federal agencies.

III.

A. The District Court Properly Dismissed Several of Uphoff's
Claims under Rule 12(b)(6)

Uphoff appeals the district court's dismissal under Rule

12(b)(6) of his First Amendment discrimination claim based on his

removal as administrator; his FLSA, Title VII, and civil rights

conspiracy claims; and his First Amendment retaliation claim

against all defendants except Alejandro and Vazquez.5

We review a district court's decision dismissing claims

under Rule 12(b)(6) de novo, "accepting as true all well-pleaded

facts in the complaint and drawing all reasonable inferences in the

plaintiff['s] favor." Sutliffe v. Epping Sch. Dist, 584 F.3d 314,

325 (1st Cir. 2009). "[A] complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face." Id. (quoting Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009)) (internal quotation marks omitted). "[W]e

may affirm on any basis apparent in the record." Id.

5
Uphoff does not challenge the district court's dismissal
of his Fourteenth Amendment political discrimination claims against
all defendants except Alejandro and Vazquez or its ruling that res
judicata barred several claims.

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1. Uphoff Stated No First Amendment Political Discrimination
Claim as to the Position of Administrator

When a position is one for which political affiliation

may be considered is a question of law for the courts. Flynn v.

City of Boston, 140 F.3d 42, 44 (1st Cir. 1998). Whether or not

Alejandro considered political affiliation when he replaced Uphoff

with Vazquez as administrator, political affiliation was a

permissible consideration for that position.

The First Amendment does not bar public employers from

considering political affiliation for positions for "which

political affiliation is an 'appropriate requirement for . . .

effective performance.'" Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.

2004) (quoting Branti, 445 U.S. at 518). The Supreme Court crafted

this "policymaking" or "position-of-trust" exception because

political officials must be able to hire staff who will help them

execute their policy goals--and so effectuate voters' wishes. Id.

Uphoff was not dismissed from, but rather was not

appointed to, the permanent administrator's position. We have

regularly upheld even "the dismissal on political grounds of mid-

or upper-level officials or employees who are significantly

connected to policy-making," either as policymakers or by working

closely with policymakers. Flynn, 140 F.3d at 45. The official

may be a subordinate and need not be "the ultimate decisionmaker in

the agency;" "it is enough that the official [is] involved in

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policy, even if only as an adviser, implementer, or spokesperson."

Id. at 46 (internal citation omitted).6

"Actual functions of the job, not titles, control, and an

official description of job functions is a presumptively reliable

basis for determining those functions." Olmeda v. Ortíz-Quiñónez,

434 F.3d 62, 66 (1st Cir. 2006) (internal citation omitted).7

The job description says the duty of the administrator of

the environmental law office is to develop and formulate PREPA's

legal strategy for all environmental law issues and cases and

advise the legal advisor's office about that strategy. The

administrator implements PREPA's policies by directing how the

agency litigates and resolves cases. Candidates must have

"[e]xtensive knowledge of the general policy of the Authority."

6
"Thus, we have upheld political discharges of the
regional director of an administrative agency, the municipal
secretary in a mayor's office, an officer in charge of human
resources, a director of public relations, a superintendent of
public works, a director of a city's federal programs office, and
a director of a satellite office of the Massachusetts Secretary of
State." Flynn, 140 F.3d at 45; see also, e.g., Ruiz-Cassillas, 415
F.3d at 132-33 (holding the second-ranking officer in a
municipality's Federal Programs Division was a policymaker);
Galloza, 389 F.3d at 30-32 (holding the regional administrator for
the state's municipal tax collection agency was a policymaker).
7
Puerto Rico law classifies government positions as either
"career" or "trust." Costa-Urena v. Segarra, 590 F.3d 18, 22 (1st
Cir. 2009). "Trust" employees participate in policymaking and can
be hired and fired on political grounds. Id. "Career" employees
must be selected and terminated based on merit, not politics. Id.
How Puerto Rico law classifies a position is not dispositive on
whether the position is a policymaking one under the First
Amendment. See Ruiz-Casillas v. Coamacho-Morales, 415 F.3d 127,
133 (1st Cir. 2005).

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 Also telling is that the administrator is subject only to

"general supervision" and must exercise "a high degree of . . .

independent judgment." The administrator meets with other PREPA

officers and state and federal agencies, serves on relevant

committees, and coordinates with other departments. And candidates

must have a law degree, a license to practice, and experience

practicing environmental law.

In short, PREPA relies on the administrator to develop,

understand, and execute its environmental-policy goals. Those

policy goals may change with different administrations, and

political affiliation is a relevant consideration.8

8
The mistreatment claims that proceeded to trial against
Alejandro and Vazquez were improperly classified under the rubric
of the Equal Protection Clause rather than the First Amendment. An
equal protection claim alleging political discrimination merely
restates a First Amendment political discrimination claim and, as
we have said repeatedly, should have been considered under the
First Amendment. See, e.g., Morales-Santiago v. Hernández-Pérez,
488 F.3d 465, 471 (1st Cir. 2007); Pagán v. Calderón, 448 F.3d 16,
36 (1st Cir. 2006). We discuss the disposition of those claims
later.
The Supreme Court has held that plaintiffs can bring political
discrimination claims based on employment action beyond hiring and
firing, but it has not precisely articulated what actions qualify.
See Rutan v. Republican Party of Ill., 497 U.S. 62, 64-65 (1990).
It is unclear under current law whether many incidents of
mistreatment Uphoff has alleged qualify. See id. But we need not
reach that question; Uphoff does not appeal the district court's
ruling that he failed to plead sufficient facts supporting
political discrimination claims against the defendants except
Alejandro and Vazquez, and the jury rejected his claims against
Alejandro and Vazquez.

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2. Uphoff Stated No FLSA Retaliation Claim against the
Defendants

The FLSA regulates certain adult employees' minimum wages

and maximum hours. See 29 U.S.C. §§ 206-07. Uphoff's amended

complaint purported to sue under § 215(a)(3), which prohibits

employers from retaliating against employees who "filed any

complaint or instituted or caused to be instituted any proceeding

under or related to" the FLSA. Plaintiffs must prove (1) that they

"engaged in statutorily protected activity" and (2) that their

employers afterward took "adverse employment action" against them

(3) "as a reprisal for having engaged in the protected activity."

Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102

(1st Cir. 2004).

Uphoff pled no facts supporting an FLSA retaliation claim

because he did not allege that he engaged in protected activity.9

That suffices to affirm the district court's dismissal of Uphoff's

FLSA claims against PREPA under Rule 12(b)(6). Uphoff-Figueroa II,

2006 WL 1663537, at *1.10 For that reason, the dismissal of

9
His original federal court complaint did not set forth a
cause of action under the FLSA, and his amended complaint did not
erase that problem by purporting to add a retaliation claim.
In any event, as we explain below, the district court properly
held that Uphoff presented no evidence showing the individual
defendants except Alejandro and Vazquez were liable on any claim.
And the jury found, in a special verdict in favor of Alejandro and
Vazquez, that Uphoff did not suffer retaliation.
10
Once the FLSA claim was dismissed, the district court
declined to exercise supplemental jurisdiction over the remaining
state law claims against PREPA. Uphoff-Figueroa II, 2006 WL

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Uphoff's FLSA claims against all other defendants under Rule 50(a)

was also appropriate. Uphoff-Figueroa III, slip op. at 3-7. Not

only did Uphoff not plead such a claim, but he had no claim under

the FLSA's wage and hours provisions. He pled he was lawyer for

PREPA, and all of the jobs he held were within the "learned

professional" exemption to the FLSA.11 See 29 U.S.C. § 213(a)(1).

3. The Title VII Retaliation Claims Were Properly Dismissed

Uphoff appeals the district court's dismissal of his

Title VII retaliation claims against all defendants. Because

plaintiffs may not bring Title VII suits against individual

employees, Fantini v. Salem State Coll., 557 F.3d 22, 28-31 (1st

Cir. 2009), the dismissal against all individual defendants was

proper.

1663537, at *3. Uphoff asserts the district court erred by doing
so, but he has waived this argument by failing to develop it any
further in his brief. Regardless, a district court has discretion
to decline to exercise supplemental jurisdiction after dismissing
"all claims over which it ha[d] original jurisdiction." 28 U.S.C.
§ 1367(c)(3); see also Alvarez-Torres v. Ryder Mem. Hosp., Inc.,
582 F.3d 47, 53 (1st Cir. 2009).
11
The FLSA exempts from its wage and hours requirements,
inter alia, "any employee employed in a bona fide executive,
administrative, or professional capacity." 29 U.S.C. § 213(a)(1).
Federal regulations define "professional" to include "learned
professionals" and establish a three-part test to determine whether
employees are "learned professionals." See 29 C.F.R. § 541.301(a).
Employees must "perform work requiring advanced knowledge." Id.
§ 541.301(a), (b). That advanced knowledge "must be in a field of
science or learning," which "includes the traditional professions
of law, medicine, theology," and the like. Id. § 541.301(a), (c).
And it "must be customarily acquired by a prolonged course of
specialized intellectual instruction," generally an academic
degree. Id. § 541.301(a), (d).

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 The dismissal of Uphoff's claim against PREPA was also

proper. Uphoff was required to exhaust his administrative remedies

before suing in federal court, including by filing a complaint with

the Equal Opportunity Employment Commission (EEOC). Frederique-

Alexandre v. Dep't of Natural & Envtl. Res., 478 F.3d 433, 440 (1st

Cir. 2007); Jorge v. Rumsfeld, 404 F.3d 556, 564-65 (1st Cir.

2005). Nothing in Uphoff's complaint or the record shows Uphoff

ever filed any complaint with the EEOC, let alone any claim of

retaliation.

4. The Civil Rights Conspiracy Claims under 42 U.S.C. § 1985
Were Properly Dismissed

A plaintiff suing under 42 U.S.C. § 1985(3) must allege

(1) a conspiracy existed, (2) the defendants had "a conspiratorial

purpose to deprive the plaintiff of the equal protection of the

laws," (3) the defendants committed an "overt act in furtherance of

the conspiracy," and (4) the plaintiff suffered "injury to person

or property, or a deprivation of a constitutionally protected

right." Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st

Cir. 2008). Uphoff's complaint set forth no facts alleging a

conspiracy. And he only alleged political discrimination, which is

not actionable under § 1985(3). Id. at 109.

5. The Dismissal of Uphoff's First Amendment Retaliation
Claims against All Defendants Save Alejandro and Vazquez
Was Proper

The dismissal of Uphoff's claims against all defendants

except Alejandro and Vazquez that he suffered retaliatory adverse

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employment action for exercising his First Amendment right to file

suit was proper. (And as for Alejandro and Vazquez, the jury found

them not liable.) Plaintiffs may sue under 42 U.S.C. § 1983 if

they suffered adverse employment action after exercising their

First Amendment rights. Powell v. Alexander, 391 F.3d 1, 16-17

(1st Cir. 2004); see Rosado-Quiñones v. Toledo, 528 F.3d 1, 5-7

(1st Cir. 2008) (discussing the scope of public employees' right to

petition). Plaintiffs must show they "engaged in constitutionally

protected conduct and that this conduct was a substantial or

motivating factor in the alleged adverse employment decision."

Welch v. Ciampa, 542 F.3d 927, 936 (1st Cir. 2008).

Assuming arguendo that Uphoff's filing his 2003 federal

court complaint was protected activity, see Rosado-Quiñones, 528

F.3d at 5-7, the 2004 amended complaint's factual allegations

against the other defendants failed to connect them to his filing

of the 2003 complaint.

B. The District Court Properly Granted Judgment as a Matter
of Law for All Defendants on Uphoff's Law 115 Claims and
for All Remaining State Law Claims against the Defendants
Save Alejandro and Vazquez

The court granted JMOL on Uphoff's Law 115 claims against

all the defendants and dismissed the other state law claims against

all defendants except Alejandro and Vazquez. Uphoff-Figueroa III,

at 4-9.

We review de novo a district court's decision granting

JMOL. Acevedo-Feliciano v. Ruiz-Hernandez, 447 F.3d 115, 121 (1st

-16-
Cir. 2006). Taking all inferences in favor of Uphoff, we review

the evidence at trial and ask whether a reasonable jury could have

found these defendants liable. Id.; see also Jennings v. Jones,

587 F.3d 430, 435-39 (1st Cir. 2009). We may affirm the district

court "on any independently sufficient ground" in the record.

Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 75

(1st Cir. 2001) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d

151, 172 (1st Cir. 1998)).

1. JMOL Was Properly Granted on State Law 115 Claims and
Dismissal against Alejandro and Vazquez Was Otherwise
Warranted

Puerto Rico Law 115 prohibits employers from

discriminating against employees for "offer[ing] or attempt[ing] to

offer, verbally or in writing, any testimony, expression or

information before a legislative, administrative or judicial forum

in Puerto Rico." P.R. Laws Ann. tit. 29 § 194a(a). Employees must

establish they engaged in activity protected under Law 115 and then

suffered discrimination at work. Velez v. Janssen Ortho, LLC, 467

F.3d 802, 809 (1st Cir. 2006); MVM, Inc. v. Rodriguez, 568 F. Supp.

2d 158, 176-77 (D.P.R. 2008).

Assuming arguendo that Law 115 applies to the filing of

a federal court complaint in Puerto Rico, Uphoff presented no

evidence, other than his evidence against Alejandro and Vazquez,

that any of the individual defendants retaliated against him for

filing the 2003 complaint.

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 There is a different reason to affirm the ultimate

dismissal of the Law 115 claims against Alejandro and Vazquez. An

identical retaliation claim went to the jury under federal law, and

the jury rejected Uphoff's claim of retaliation against Alejandro

and Vazquez. In the special verdict asking whether Uphoff had

suffered any retaliation after filing his 2003 complaint, the jury

found he had not met his burden. Thus, even if there was error in

entering JMOL on the Law 115 claims, it was harmless. See Molloy

v. Blanchard, 115 F.3d 86, 90 (1st Cir. 1997) (holding that any

error the district court committed in granting JMOL was harmless

because it did not affect the plaintiff's damages); see also, e.g.,

Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124

(3d Cir. 2003) (holding that any error in dismissing a claim on

JMOL was harmless because the jury rejected a legal theory

necessary to the claim); Snyder v. Ag Trucking, Inc., 57 F.3d 484,

491 (6th Cir. 1995) (same); 11 Wright, Miller & Kane, Federal

Practice and Procedure § 2888, at 479, 485 (2d ed. 1995).

2. JMOL Was Properly Granted on Other State Law Claims
against Defendants Rosario, Rodriguez, Mendez, Blanes,
and Hernandez

The only claims remaining against the defendants Rosario,

Rodriguez, Blanes, Mendez, and Hernandez were state law claims

under Law 100, articles 1802 and 1803, and Article II of the Puerto

Rican constitution. We affirm the district court's dismissal of

these claims. Uphoff did not present sufficient evidence for a

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reasonable jury to find these defendants liable for discriminating

or retaliating against him.12

Uphoff presented no evidence that Rosario, PREPA's

executive director, was involved in any activity Uphoff alleged was

improper or even that Rosario knew Uphoff's political affiliation.

The only evidence against Rosario was Uphoff's secretary's

testimony that Alejandro told her the executive director was

pressuring him to remove Uphoff. Even if true, without more, that

evidence is insufficient to show retaliation or discrimination.

As for the remaining four defendants, Uphoff offered no

evidence against any of them except Blanes, the human resources

director. Uphoff merely showed that Blanes supported the PDP and

administered the agency-wide reclassification plan; he presented no

evidence that she made decisions about Uphoff's reclassification.

C. The Jury Instructions and Special Verdict Form Were Not
an Abuse of Discretion and Uphoff Waived Any Challenge to
the Jury Verdict

Uphoff's case at trial, in the end, came down to First

Amendment political discrimination (styled as equal protection)

12
Law 100 prohibits employment discrimination, including
because of political affiliation. P.R. Laws Ann. tit. 29, § 146;
Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 15 n.6 (1st Cir.
2001). Uphoff sued under several Puerto Rican constitutional
provisions that also bar employment discrimination and retaliation.
See P.R. Const. art. II, §§ 1, 4, 6, 7, 8, 16. Articles 1802 and
1803 are derivative tort statutes that depend on "the viability of
the underlying employment discrimination claim." Costa-Urena, 590
F.3d at 30; see also P.R. Laws Ann. tit. 31, §§ 5141-42.

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claims and retaliation claims against Alejandro and Vazquez.13 At

the charge conference, Uphoff offered a list of eleven incidents of

what he alleged were discrimination and retaliation he had suffered

at their hands.14 He primarily appeals the district court's

decision not to include that list in the jury instructions and

special verdict form.

1. Jury Instructions

To the extent Uphoff is challenging the jury

instructions, his argument fails. We review de novo preserved

claims of legal error in jury instructions, but we review for abuse

of discretion claimed errors in instructions' form or wording.

Goodman v. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004). We ask

"whether the charge in its entirety--and in the context of the

evidence--presented the relevant issues to the jury fairly and

adequately." Id.

13
The jury also rejected the remaining state law claims
against Alejandro and Vazquez.
14
The parties dispute whether Uphoff preserved his
objections. Uphoff preserved his objection to the jury
instructions on political retaliation; he asked the district court
to use his list of eleven incidents in that instruction.
Uphoff arguably waived his objection to how the verdict form
presented his political discrimination claims. He asked the court
to include his list in question 7 but argues on appeal the court
should have included his list in question 6. Because question 6
contained materially identical language to question 7, we will
assume arguendo that Uphoff preserved an objection to question 6.
Uphoff agrees he did not preserve his objection that the
verdict form prevented the jury from reaching question 7 and
accepts we must review it for plain error.

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 The court did not abuse its discretion here. Uphoff

argues that the court erred when instructing the jury on his

retaliation claim by including only three of the eleven items on

his list: that he was not assigned duties, that work assigned to

him was not complex, and that he was not invited to staff meetings.

It was not necessary for the court to instruct as to the minutiae

of Uphoff's case, which might well have confused the jury or overly

emphasized Uphoff's version of events. Uphoff's counsel had a full

opportunity to argue every detail of his mistreatment claims. The

court's instructions accurately captured the law that plaintiffs

must show that working conditions were "unreasonably inferior to

the norm for the position." Bergeron v. Cabral, 560 F.3d 1, 8 (1st

Cir. 2009) (internal quotation marks omitted), abrogated on other

grounds by Estrada v. Rhode Island, No. 09-1149, 2010 WL 376978

(1st Cir. Feb. 4, 2010), and Maldonado v. Fontanes, 568 F.3d 263

(1st Cir. 2009).

2. Jury Special Verdict Form

We review preserved objections to special verdict forms

for abuse of discretion and objections not raised in the district

court for plain error. Arthur D. Little, Inc. v. Dooyang Corp.,

147 F.3d 47, 53 (1st Cir. 1998). District courts have

"considerable discretion about the formulation, nature, and scope

of the issues" on a special verdict form. 9B Wright, Miller &

Kane, supra § 2506, at 119. The form must "present the case fairly

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and accurately," id., and "address all factual issues essential to

judgment," Santos v. Posadas de P.R. Assocs., Inc., 452 F.3d 59, 65

(1st Cir. 2006). "[W]e examine the court's instructions and the

wording of the verdict form as a whole." Sanchez-Lopez v. Fuentes-

Pujols, 375 F.3d 121, 134 (1st Cir. 2004).

Uphoff objects to questions 6 and 7 of the form. After

question 5 asked if Uphoff suffered discriminatory treatment

because of his political views, question 6 asked whether

the removal of the keys to the main door of
the 6th floor, the moving and change of the
office to the 7th floor, and the instructions
to liquidate excess vacation leave were
nondiscriminatory and reasonable
administrative decisions based on [PREPA's]
needs to conduct its operations?

The verdict form then said that only if the jury answered "no"

could it consider, in question 7, whether PREPA's nondiscriminatory

reasons were pretextual.

Question 6, Uphoff argues, (1) did not reflect his real

point, that these actions were discriminatory as they were applied

to him; (2) should not have grouped all allegations together

because the jury needed to consider each allegation separately; and

(3) was incomplete and should have included his eleven points. The

district court correctly instructed the jury that it had to

consider whether the defendants had a valid reason other than

Uphoff's political affiliation for their actions, and the court did

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not abuse its discretion by concluding that question 6 fairly

presented this issue.

As to the first objection, after hearing all the

evidence, the jury would have understood Uphoff's interpretation of

the events question 6 listed. Second, the court did not need to

separately list each factual allegation for the jury to consider

the core legal issue. Third, given the many instances of purported

discrimination Uphoff offered at trial, the jury could have

understood this list was representative and was asking the larger,

important question--whether the defendants had nondiscriminatory

reasons for their conduct.

Uphoff did not preserve his objection that the verdict

form prevented the jury from considering whether these reasons were

pretextual in question 7. The jury may well have done this in

question 6 after the court's instruction to consider whether the

defendants' justifications were pretextual. Uphoff cannot meet his

burden to show plain error.15

15
Uphoff also argues the jury's discrimination verdict was
inconsistent because it found he was treated differently because of
his political affiliation (in some undefined way) but found the
defendants' actions described were nondiscriminatory. Parties must
object that a jury verdict was inconsistent before the jury is
dismissed to preserve that objection. E.g., Wennik v. Polygram
Group Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002). Uphoff
does not dispute that he did not object before the jury was
discharged, and this claim is waived.

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D. The District Court Did Not Abuse Its Discretion by
Refusing to Grant a New Trial or Set Aside the Verdict

We review denials of motions for a new trial and motions

to set aside a verdict for abuse of discretion and "rarely" reverse

district courts. Jennings, 587 F.3d at 436-37 & n.7 (new trial);

Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001)

(set aside verdict). The trial court did not abuse its discretion.

Uphoff argues that the district court abused its

discretion by not recognizing that errors at trial with the

instructions, verdict form, and verdict entitled him to a new

trial. As we explained, the instructions and verdict form fairly

presented the core issues. The verdict was certainly not against

the weight of the evidence. See Jennings, 587 F.3d at 436.

We affirm the district court's entry of judgment for all

defendants.

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