USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1846
FRANCO ACEVEDO-DIAZ, ET AL.,
Plaintiffs, Appellees,
v.
JOSE E. APONTE, ET AL.,
Defendants, Appellees,
________
ADA N. PEREZ, ET AL.,
Plaintiffs, Appellants.
_____________________
No. 92-1848
FRANCO ACEVEDO-DIAZ, ET AL.,
Plaintiffs, Appellees,
v.
JOSE E. APONTE, ET AL.,
Defendants, Appellees,
________
DOROTEA COLLAZO RIVERA, ET AL.,
Plaintiffs, Appellants.
_____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO,
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Stahl,
Circuit Judges.
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____________________
Raul Barrera Morales for appellants.
____________________
William Reyes Elias with whom Cesar R. Miranda Law Office
___________________ _____________________________
was on brief for appellees.
____________________
August 3, 1993
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2
CYR, Circuit Judge. In November 1984, Jose E. Aponte,
CYR, Circuit Judge.
_____________
the candidate of the Popular Democratic Party ("PDP"), was
elected mayor of the Municipality of Carolina ("City"), Puerto
Rico, defeating the incumbent mayor, Roberto Iglesias, the
candidate of the New Progressive Party ("NPP"). During his first
year in office, Mayor Aponte either terminated, or refused to
renew, several hundred non-policymaking city employees hired
under the previous administration. In letters of dismissal to
the employees, Aponte claimed that the City faced a severe fiscal
crisis, and disclosed various criteria for determining which
municipal employees were to be terminated in order to effect the
necessary economies:
(1) employees hired without compliance with
Commonwealth or municipal personnel laws
and regulations, see, e.g., P.R. Laws
___ ____
Ann. tit. 3, 1331-1337, which dictate
the public posting of available posi-
tions and competitive examinations;
(2) employees hired or promoted during the
1984 "veda," or "electoral prohibition
period," a four-month "window" before
and after a municipal election during
which hiring, renewals, or promotions by
the incumbent administration are pro-
scribed by law;
(3) employees who submitted no documentary
proof that they possessed the minimum
education and experience required for
their positions;
(4) employees whose job positions were
deemed nonessential, and therefore ex-
pendable; or
3
(5) employees who had committed employment
infractions (e.g., unexcused leaves of
____
absence, chronic tardiness).
In March 1986, 357 terminated employees, claiming poli-
tical affiliation with the ousted NPP, brought the present civil
rights action under 42 U.S.C. 1983 against the City, Mayor
Aponte, Jose A. del Valle (at times, the acting mayor), and Felix
Martinez (the personnel officer). Plaintiffs alleged that their
dismissals were due solely to their NPP affiliation, in violation
of their First Amendment and due process rights under the United
States Constitution. The complaint demanded compensatory and
punitive damages, as well as reinstatement.1
The claims of 255 plaintiffs went to the jury following
a four-month trial, and defendant verdicts were returned on the
claims of 240 plaintiffs. Six plaintiffs were awarded compen-
satory damages (from $1700 to $10,440) against the City, and
punitive damages ($25,000) against Aponte, while nine plaintiffs
____________________
1Three municipal employee classifications were involved in
the challenged terminations: (1) "regular" employees, occupying
permanent or career municipal positions, (2) "transitory"
employees, appointed without the usual personnel screening
procedures (e.g., postings and competitive examinations), but
____
subject to periodic renewals at the expiration of their fixed
terms, and (3) "contractual" workers, hired for fixed terms under
federally funded programs (e.g., HUD) administered by the City.
____
"Transitory" employees lack tenure, or a reasonable expectation
in the indefinite continuation of their employment after the
expiration of their fixed term. While their lack of a property
interest in their employment positions generally precludes due
process claims for a politically discriminatory dismissal, First
Amendment discrimination claims are not precluded. See Santiago-
___ _________
Negron v. Castro-Davila, 865 F.2d 431, 436 (1st Cir. 1989);
______ _____________
Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 16 (1st Cir.
_________________ ____________
1988).
4
were awarded nominal damages ($1.00) against the City,2 and
punitive damages ($25,000) against Aponte. The district court
denied all claims for reinstatement. Finally, in May 1992, the
court set aside all fifteen plaintiff verdicts. The present
appeal is brought by eleven of the fifteen disappointed plain-
tiffs.
DISCUSSION
DISCUSSION
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A. Standard of Review and Applicable Law
A. Standard of Review and Applicable Law
_____________________________________
A jury verdict may not be set aside as a matter of law
under Fed. R. Civ. P. 50(b) except on a "'determination that the
evidence could lead a reasonable person to only one conclusion.'"
____ ___ __________
Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 n.2 (1st Cir.) (quoting
______________ ______
Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.
______ _____________________
1987)) (emphasis added), cert. denied, 112 S. Ct. 637 (1991); see
____ ______ ___
Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir. 1990). On de novo
______ _____ __ ____
review, the court of appeals will uphold the verdict unless the
facts and inferences, viewed in the light most favorable to the
verdict, "point so strongly and overwhelmingly in favor of the
movant that a reasonable jury could not have [returned the ver-
dict]." Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209,
_________________________ ____________
214 (1st Cir. 1991); Ferrer, 914 F.2d at 311; Mayo v. Schooner
______ ____ ________
Capital Corp., 825 F.2d 566, 568 (1st Cir. 1987).
_____________
____________________
2On appeal, certain plaintiffs demand a new trial on compen-
satory damages, arguing that the jury had no choice but to credit
their testimony on damages, especially as it related to their
mental suffering and anguish. We summarily reject their argu-
ment, as wholly unsupported by the record.
5
In a political discrimination case, see Branti v.
___ ______
Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976),
______ _____ _____
plaintiffs must bear the threshold burden of producing sufficient
direct or circumstantial evidence from which a jury reasonably
may infer that plaintiffs' constitutionally protected conduct
in this case, political affiliation with the NPP was a "sub-
stantial" or "motivating" factor behind their dismissal.3 See
___
Ferrer, 914 F.2d at 311; Estrada-Izquierdo v. Aponte-Roque, 850
______ _________________ ____________
F.2d 10, 13 (1st Cir. 1988); Rosaly v. Ignacio, 593 F.2d 145,
______ _______
148-49 (1st Cir. 1979). Once plaintiffs clear the threshold, the
burden shifts to defendants to articulate a nondiscriminatory
__________
ground for the dismissals, and prove by a preponderance of the
___ _____ __ _ _____________ __ ___
evidence that plaintiffs would have been dismissed regardless of
________
their political affiliation. See Givhan v. Western Line Consol.
___ ______ ____________________
Sch. Dist., 439 U.S. 410, 416 (1979); Rodriguez-Pinto v. Tirado-
__________ _______________ _______
Delgado, 982 F.2d 34, 39 (1st Cir. 1993); Kercado-Melendez v.
_______ ________________
Aponte-Roque, 829 F.2d 255, 264 (1st Cir. 1987), cert. denied,
____________ ____ ______
486 U.S. 1044 (1988). Either this "but for" causation test, or
the defendant-employer's "Mt. Healthy defense," ensures that a
___________
plaintiff-employee who would have been dismissed in any event on
legitimate grounds is not placed in a better position merely by
virtue of the exercise of a constitutional right irrelevant to
the adverse employment action. See Mt. Healthy City Sch. Dist.
___ ____________________________
____________________
3The defendants do not contend that any appellant held
either a confidential or a policymaking position for which
partisan political affiliation might have been a legitimate
requirement. See Branti, 445 U.S. at 508; Anthony v. Sundlun, 952
___ ______ _______ _______
F.2d 603, 605 (1st Cir. 1991).
6
Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977); Acosta-Sepulveda
____________ _____ ________________
v. Hernandez-Purcell, 889 F.2d 9, 13 (1st Cir. 1989); Rosaly, 593
_________________ ______
F.2d at 148.
After a careful summarization of the trial evidence,
the district court granted defendants' Rule 50(b) motion for
judgment as a matter of law because the bulk of the circumstan-
tial evidence relied on by plaintiffs namely, their party
affiliation and the temporal proximity between their dismissals
and Mayor Aponte's inauguration was too conjectural and
conclusory to counteract the "overwhelming" Mt. Healthy defense,
___________
which demonstrated that massive layoffs were compelled as a
result of the severe fiscal crisis brought on by the overhiring
of City personnel under the previous administration. See Kauff-
___ ______
man v. Puerto Rico Tel. Co., 841 F.2d 1169, 1172 (1st Cir. 1988)
___ ____________________
(finding that plaintiffs failed to allege the type of specific
________
evidence of politically discriminatory animus required to avoid
summary judgment).
The district court opinion compares the Mt. Healthy
____________
burden-shifting mechanism to similar devices used in other
employment discrimination cases, such as Title VII cases, see,
___
e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782 (1st Cir.
____ __________ ________________
1990), and ADEA cases, see, e.g., Goldman v. First Nat'l Bank,
___ ____ _______ ________________
985 F.2d 1113, 1116-18 (1st Cir. 1993). The opinion states that,
once the defendant interposes the Mt. Healthy defense, "the
____________
plaintiff then has the opportunity to demonstrate that the
alleged nondiscriminatory reason is a false pretext," which may
7
be accomplished either by "'persuading the [jury] that a discrim-
inatory reason more likely motivated the employer or indirectly
by showing that [the] employer's proffered explanation is
unworthy of credence.'" Dist. Ct. Op., at 4 (quoting Texas Dep't
___________
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (Title
_____________________ _______
VII case)). Although literally correct, the quoted statement
gives us pause, especially in light of the citation to Burdine.
_______
Since a proper allocation of the burden of persuasion is critical
to our assessment of the district court's decision under Rule
50(b), we first revisit the applicable burden-shifting procedure.
Under Title VII, a plaintiff must establish a prima
_____
facie case of employment discrimination, at which point a pre-
_____
sumption of discrimination attaches to the plaintiff's claim. A
limited burden of production then passes to the employer to ar-
___
ticulate a legitimate, nondiscriminatory reason for its actions,
________
a burden which is fully satisfied if the employer submits enough
evidence to raise a genuine issue of material fact. The employer
need not submit sufficient evidence to "persuade the [fact
finder]." Burdine, 450 U.S. at 254. In other words, notwith-
_______
standing the interim shift in the burden of production to the
employer, the plaintiff-employee in a Title VII case "retains the
burden of persuasion" at all times. Id.
__ ___ _____ ___
By contrast, under the Mt. Healthy burden-shifting
____________
mechanism applicable to a First Amendment political discrimina-
tion claim, the burden of persuasion itself passes to the defen-
______ __ __________ ______ ______ __ ___ ______
dant-employer once the plaintiff produces sufficient evidence
_____________
8
from which the fact finder reasonably can infer that the plain-
tiff's protected conduct was a "substantial" or "motivating"
_
factor behind her dismissal. Accordingly, once the burden of
persuasion shifts to the defendant-employer, the plaintiff-
employee will prevail unless the fact finder concludes that the
defendant has produced enough evidence to establish that the
plaintiff's dismissal would have occurred in any event for
nondiscriminatory reasons.
Therefore, we can sustain a Rule 50(b) reversal in a
political discrimination case only if: (1) the record evidence
compelled the conclusion that the plaintiff would have been dis-
_________
missed in any event for nondiscriminatory reasons, or (2) the
plaintiff did not introduce sufficient evidence in the first
instance to shift the burden of persuasion to the defendants. We
address these alternatives in turn.
B. The "Austerity" Defense
B. The "Austerity" Defense
_______________________
Through numerous expert witnesses and statistical
data,4 defendants attempted to establish that all the chal-
____________________
4For example, defendants presented the following uncon-
troverted evidence: 1) in 1985, there were approximately 2,900
City employees, including 906 "transitory" employees, 459 of whom
had been appointed by the former administration in fiscal year
1984 alone; 2) the former mayor had made 250-300 appointments
between July and October 1984; 3) in 1984, despite warnings about
the City's worsening budgetary problems, the former mayor renewed
all transitory employees' expiring appointments; 4) by 1985, the
___
personnel payroll comprised 80% of the City's budget; 5) in 1985,
defendant Aponte inherited a debt of $116 million, which has
since been reduced to $30 million, and an accumulated deficit of
$30 million, since reduced to $3 million; and 6) by 1991, there
were 1,966 City employees, only eight of whom were "transitory"
employees.
9
lenged dismissals were due to the fiscal crisis inherited by
Mayor Aponte when he took office in 1985, which the defendants
attributed to mismanagement or illegal patronage hiring practices
on the part of the previous administration. The jury reasonably
could have found that the dismissals made by the incoming admin-
istration resulted in a 32% net reduction of approximately 900
City employees (from 2,869 to 1,966), and that no new employees
were hired to perform the duties of the dismissed plaintiffs.
Thus, the jury reasonably could have concluded that a bona fide
fiscal crisis would have compelled the vast majority of the
challenged dismissals even if the targeted employees had not been
affiliated with the NPP. Defendants' well-deployed
"austerity" defense apparently thwarted the claims of 240 of the
255 plaintiffs whose cases went to the jury. But blunt instru-
ments make crude scalpels, and the Mt. Healthy defense requires
___________
individualized scrutiny by the jury with a view to whether a
particular plaintiff's position would have been eliminated under
Aponte's austerity program but for the plaintiff's NPP affilia-
___ ___
tion. In other words, even though defendants' overarching
austerity defense may have established that massive dismissals
were imperative, it did not compel jury verdicts adverse to all
___
plaintiffs. General statistical data regarding net work-force
___
reductions may mask individual dismissals which were purely dis-
criminatory. Here, some plaintiffs testified that their posi-
tions remained intact after their termination and specifically
identified their replacements; the jury was free to credit this
10
testimony, despite testimony to the contrary. See Veranda Beach
___ ______________
Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1385
______________________ _________________
(1st Cir. 1991) ("Once the threshold of sufficiency has been
crossed, the credibility of a claimant and its witnesses presents
a question for the jury, not for the trial court and most of
all, not for the court of appeals.").
Credibility determinations and evidence weighing are
not grist for the Rule 50(b) mill. Hendricks, 923 F.2d at 214.
_________
As defendants were required to carry the burden of persuasion,
______ __ __________
and the evidence supporting the Mt. Healthy "austerity" defense
____________
did not compel jury acceptance of the claims of all 255 plain-
tiffs, we turn to the evidence bearing on the individual claims
of the eleven appellants.
C. The Individualized Defenses
C. The Individualized Defenses
___________________________
The defendants attempted to establish their indivi-
dualized Mt. Healthy defenses at trial based largely on the con-
___________
temporaneous justifications relied on in Mayor Aponte's letters
of dismissal. See supra p. 3. Under the Mt. Healthy burden-
___ _____ ___________
shifting mechanism, the employer's contemporaneous justifications
for an adverse employment action serve at least two important
functions. First, to the extent the reasons given by the employ-
er at the time of the dismissal are later proven false or frivo-
lous, the weight of the evidence of discriminatory animus may be
enhanced, thereby contributing significantly to the threshold Mt.
___
Healthy showing the plaintiff-employee must make in order to
_______
shift the ultimate burden of persuasion to the defendant-employ-
11
er. Second, once the burden of persuasion has shifted to the
employer, the jury would be entitled to find for the plaintiff-
employee were it to conclude that the employer did not offer
sufficient evidence to demonstrate that (i) the proffered reason
for the dismissal was genuine or (ii) a bona fide basis existed
__
which would have prompted the dismissal without regard to the
employee's political affiliation. We reserve these individual-
ized defenses for consideration with plaintiffs' evidence.
Leaving aside certain proffered justifications for
employee dismissals in the First Amendment political discrimina-
tion context,5 only two individualized defenses remain for our
____________________
5Some of the proffered justifications for defendants'
employment actions must be pared to accord with applicable law.
Although evidence that an employee was hired in violation of
Commonwealth law precludes a finding that the employee possessed
a property interest in continued employment, and hence a cogniza-
ble due process claim, Kauffman, 841 F.2d at 1173, evidence that
___ _______ ________
an employee's appointment was a "nullity" under Puerto Rico law
ab initio does not control a claim alleging a violation of the
__ ______
employee's First Amendment right of political affiliation, see
___
Hiraldo-Cancel, 925 F.2d at 13 ("'We do not think that a new
______________
administration can use the "nullity" of appointments doctrine as
a cover for discharges, transfers, and discrimination based
solely on political affiliation'") (quoting Santiago-Negron v.
_______________
Castro-Davila, 865 F.2d 431, 436-37 (1st Cir. 1989)). Although
_____________
defendants argue that the rationale of Santiago-Negron applies
_______________
only if the new administration continues to hire new personnel in
_________
violation of the Personnel Act, Santiago-Negron rested on the
_______________
ground that state law does not and cannot define First Amendment
______
rights. Santiago-Negron, 865 F.2d at 436. We do not suggest,
_______________
however, that evidence relating to the plaintiff-employee's
________
qualifications under the applicable personnel regulations is
immaterial. For example, an employee's lack of qualifications
for the position, at the time of the dismissal, may well be
__ ___ ____ __ ___ _________
considered a nondiscriminatory basis for the dismissal. The jury
must determine whether such a lack of qualifications was a real
or pretextual justification for the dismissal.
On analogous reasoning, we discount two variations on the
same defensive theme. First, the fact that some plaintiffs were
appointed or promoted during the "veda," the electoral prohibi-
12
consideration in the present case, based on the evidence relating
to each appellant's claim: (1) whether the plaintiff was quali-
fied for the position at the time of the dismissal, and (2), if
so, whether the position was eliminated for nondiscriminatory
reasons.
D. Plaintiffs' Evidence
D. Plaintiffs' Evidence
____________________
Plaintiffs offered little direct evidence of discrimin-
atory animus. But see infra notes 6 & 8. Nevertheless, as we
___ ___ _____
have held, "circumstantial evidence alone can support a finding
of political discrimination." Anthony, 952 F.2d at 605; Estrada-
_______ ________
Izquierdo, 850 F.2d at 14. Certain general observations can be
_________
made concerning the circumstantial evidence bearing on the claims
of all eleven plaintiffs. Mere temporal proximity between a
change of administration and a public employee's dismissal is
insufficient to establish discriminatory animus. Cf. Aviles-
___ _______
____________________
tion period, is not necessarily controlling in the First Amend-
ment context. "Puerto Rico law is not controlling in the area of
___ ___________
first amendment law," Santiago-Negron, 865 F.2d at 436 (emphasis
_______________
added), and, in this respect, we see no principled distinction
between the Commonwealth's personnel and electoral laws. Second,
it is not necessarily a sufficient defense that a plaintiff did
not meet the legally mandated minimum qualifications for the
position at the time of appointment. See Hiraldo-Cancel, 925
__ ___ ____ __ ___________ ___ ______________
F.2d at 13; Santiago-Negron, 865 F.2d at 436. Although, as a
_______________
general rule, an employee's continuing inability to meet the
__________
established minimum qualifications for the position can be a
sufficient nondiscriminatory ground for dismissal, cf. Hiraldo-
___ ________
Cancel, 925 F.2d at 14 (reinstatement is a meaningless remedy
______ _____________
where the employer, "under the aegis of valid personnel stan-
dards, is empowered to terminate reinstated employees as soon as
they dust off their desks"), Santiago-Negron's proscription
_______________
against post hoc "nullification" would suggest that, to be
____ ___
controlling, the employee's qualifications should be measured as
__
of the challenged dismissal.
__ ___ __________ _________
13
Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992) (citing
________ _______
Kauffman, 841 F.2d at 1172). On the other hand, we have noted
________
that the "highly charged political atmosphere" occasioned by the
major political shift from the NPP to the PDP throughout the
Commonwealth of Puerto Rico in 1984, coupled with the fact that
plaintiffs and defendants are of competing political persuasions,
may be probative of discriminatory animus. See Kercado-Melendez,
_________ ___ ________________
829 F.2d at 264; see also Anthony, 952 F.2d at 606 ("timing" of
___ ____ _______
dismissal may be suggestive of discriminatory animus); Estrada-
________
Izquierdo, 850 F.2d at 15 (same). Moreover, the record discloses
_________
that these eleven appellants, for the most part, were not
quiescent NPP members but played very active or prominent roles
in its political activities, publicly and vocally supporting the
reelection campaign of the former mayor. See Nereida-Gonzalez v.
___ ________________
Tirado-Delgado, 990 F.2d 701, 706 (1st Cir. 1993) (noting evi-
______________
dence that plaintiff was "known" party member); Ferrer, 914 F.2d
______
at 312 (noting that plaintiffs' political affiliation was not
only "well known" but, in some instances, notorious); Kercado-
________
Melendez, 829 F.2d at 264 (noting plaintiff's "long, active, and
________
visible membership" in the opposition party).
Appellants variously testified at trial that they were
(1) members of the former mayor's elite "advance team," a corps
of uniformed functionaries responsible for arranging campaign
appearances; (2) organizers or participants in pro-NPP political
rallies; (3) NPP women and youth coordinators; or (4) polling
unit officers or members of electoral colleges. Thus, the jury
14
reasonably could have concluded that those appellants who were
publicly identified as close political allies of the former NPP
mayor were more conspicuous targets for political discrimination.
Standing alone, even the circumstantial evidence that some plain-
tiffs were especially conspicuous targets for discriminatory
employment action by defendants would give us serious pause.
With but two exceptions, however, a careful review of the evi-
dence reveals that appellants plainly presented other evidence
sufficient to shift the burden of persuasion, effectively fore-
closing any realistic claim for Rule 50(b) relief by defendants.
We briefly recount the dispositive evidentiary considerations
bearing on each appellant's claim.
1. Brenda Aponte Osorio
1. Brenda Aponte Osorio
____________________
Ms. Aponte was dismissed from her "regular" position,
as an Executive Officer IV, in May 1985. In addition to other
direct evidence of discriminatory animus,6 the letter of dismiss-
al from Mayor Aponte stated that Ms. Aponte apparently did not
possess the qualifications for her position in particular, a
college degree and "considerable" relevant work experience. In
fact, the written job description for an Executive Officer IV
lists a college degree as "desirable preparation," but provides
that a "combination of preparation and experience will be accept-
able"; it defines "experience" as "positions of progressive
____________________
6Ms. Aponte states that she was constructively dismissed one
day after the new administration took office, when she was denied
access to her office, told that she was "not a person of trust,"
and given no further duties. Her protests went unanswered.
15
responsibility . . . in the public service, including consider-
able administrative or supervision experience." (Emphasis
___________ __________
added.) At trial, Ms. Aponte testified that she attended college
for three years, and began working for the City in 1978 as a
supervisor in the Human Resources Department.7
__________
Ms. Aponte presented sufficient evidence to enable a
jury to find that she possessed the required qualifications, both
____
at the time of her appointment and dismissal. The jury could
have concluded, therefore, that defendants' contemporaneous
justification was a mere pretext for political discrimination.
Cf. Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43 (1st Cir.
___ _______________ ____________
1992) (reversing summary judgment for defendant; noting that
proof that defendant's asserted nondiscriminatory reason for
dismissal was pretextual is a "link in a chain of circumstantial
evidence" of political discrimination which, when coupled with
allegedly "conclusory" evidence as to the timing of demotion and
the parties' political affiliation, creates a triable issue which
the fact finder might resolve in plaintiff's favor); Anthony, 952
_______
F.2d at 606 (plaintiff's obvious qualifications can be circum-
stantial evidence of discriminatory animus); cf. also Burns v.
___ ____ _____
Gadsden State Community College, 908 F.2d 1512, 1519 (11th Cir.
________________________________
1990) (employer's exceedingly narrow interpretation of minimum
"experience" required for position, coupled with other evidence
____________________
7Even though their individualized defenses, in many instanc-
es, succumbed to this same "equivalency" virus, permitting the
jury to make reasonable substitutions of work experience for
educational background, defendants have not challenged these
substitutions on appeal.
16
of discriminatory animus, creates genuine dispute as to whether
employer "invented" excuse as pretext to mask improper motive for
dismissal in ADEA action). The circumstantial evidence of
pretext, coupled with the direct evidence of discriminatory
animus, was sufficient to shift the burden of persuasion to
defendants. As there was no conclusive evidence that Ms. Aponte
would have been dismissed in any event for a nondiscriminatory
reason, the jury verdict must be sustained.
2. Dorotea Collazo Rivera
2. Dorotea Collazo Rivera
______________________
Ms. Collazo was dismissed from her "regular" position,
as an Administrative Assistant I, in January 1986.8 The dismiss-
al letter asserted that Collazo's termination was based on an
absence of evidence that she was ever qualified for her position.
However, Collazo's job description merely required a "desirable"
(high school diploma) education/experience ("general office
work") mix. Collazo testified that she met the posted academic
preparation component of the job description. Moreover, there
was no dispute that Collazo, who was appointed to her final
__ ___ _____
position with the City in 1981, previously had been employed as
________
an office clerk for the City since 1976. Thus, Collazo likewise
_____ ____
succeeded in shifting the burden of persuasion to the defendants,
and defendants simply failed to persuade the jury.
____________________
8When the new administration took over, Collazo's secretary
was transferred to another department and Collazo was locked out
of her office without warning. Collazo's husband, who was a NPP
unit chairman, and her daughter, were also dismissed from their
positions with the City in 1985-86.
17
3. Maria Colon de Jesus
3. Maria Colon de Jesus
____________________
Ms. Colon was dismissed from her "regular" position, as
a Messenger, in July 1985. The letter of dismissal stated that
the City's messenger service, with forty-two employees, was
"excessive and unnecessary," that it must be reduced to ten
employees as an economy measure, and that the ten employees to be
retained had been chosen based on an evaluation of their job
performance and seniority.
Ms. Colon conceded that the reduction in force did
occur as defendants indicated, and that she lacked the requisite
seniority to qualify for one of the ten remaining positions. She
points to no particular discriminatory conduct, nor does she
contend that (1) messengers with less seniority or lower perfor-
mance ratings were retained,9 (2) the City needed more than ten
messengers in 1985, or (3) defendants replaced any of the thirty-
two dismissed messengers. As Colon's political affiliation and
the timing of her dismissal were the only significant probative
evidence supporting her claim,10 and there was no direct or
____________________
9While conceding that she was among the dismissed messengers
with the least seniority, Colon nonetheless argues that the
_____
selection criteria were suspect because Commonwealth law requires
that reductions in force be justified first on the basis of
employee performance ratings, and only then on seniority consid-
erations. See Delbrey v. Municipio de Carolina, 111 P.R.R. 492
___ _______ _____________________
(1984). The record indicates, however, that defendants made
their selections only after "considering the criteria of effi-
_____
ciency in the performance of messenger duties and the time of
______
services rendered in that capacity." (Emphasis added.)
10In view of Colon's concession that she lacked the requi-
site seniority, the other circumstantial evidence was altogether
too weak to vault the initial Mt. Healthy hurdle. Colon's
____________
political participation was much less frequent and activist than
18
circumstantial evidence of pretext, the burden of persuasion
never shifted to defendants. As no factual dispute was generated
concerning the legitimacy of the austerity measures, or Colon's
failure to meet the criteria for retention, the verdict could
only have been based on conjecture that Colon would not have been
terminated but for her political affiliation. See Ferrer, 914
___ ______
F.2d at 311 ("plaintiff is not entitled to inferences based on
speculation and conjecture").11
4. Hector L. Encarnacion Matos
4. Hector L. Encarnacion Matos
___________________________
Encarnacion was dismissed from his "regular" position,
as a Computer Operator I, in August 1985. The dismissal letter
stated that he lacked the minimum qualifications for the posi-
tion, which defendants characterized at trial and on appeal as
requiring an "associate degree" in accounting or computer opera-
____________________
most other appellants. According to her undisputed testimony,
she merely participated "at the polling places, and on the
marches in [her] spare time," and served as "secretary for the
electoral board" in 1984.
11There are important public policy considerations at stake
in these circumstances. First, legitimate efforts by newly-
elected officials to impose fiscal constraints and to foster
operating efficiencies should not be hamstrung. See Marin-Piazza
___ ____________
v. Aponte-Roque, 873 F.2d 432, 434 (1st Cir. 1989) ("[W]e are
____________
inclined to give a certain amount of leeway to personnel deci-
sions of new administration officials which implement a facially
politically neutral reorganization of structure or procedure.").
Newly-elected officials, however well meaning, might be deterred
from needed measures to effect economies and efficiencies in
governmental operations if a discharged employee's political
affiliation alone were enough to carry her claim to the jury.
Second, though there was ample opportunity to raise a genuine
factual dispute regarding the legitimacy of the defendants'
"austerity" program, the defendants demonstrated, without rebut-
_______ ______
tal, that the City has operated for at least six years with a
___
vastly streamlined messenger staff.
19
tion. The job description called for a "high school diploma,
supplemented by courses in mechanized accounting or programming
and one year of experience in that field," or "[a] combination of
__
academic background and experience." Thus, contrary to defen-
dants' mischaracterization at trial, the job description did not
require post-secondary school courses sufficient to qualify
Encarnacion for an associate degree. Moreover, although Encar-
nacion conceded at trial that his post-secondary school courses
were not in accounting or programming, and that he had no exper-
ience in computer programming prior to his appointment, he had
_____ __ ___ ___________
acquired two years' working experience on the job before he was
dismissed in 1985, during which time he had received several
"excellent" job performance evaluations. See id. at 312-13
___ ___
(noting that jury could credit circumstantial evidence that
plaintiff "performed her duties very well"); Estrada-Izquierdo,
_________________
850 F.2d at 14 (finding "probative" the circumstantial evidence
that plaintiff "successfully carried out her job" for many
years). Encarnacion's job description was flexible enough to
permit the jury to determine that he possessed the necessary
qualifications, and that the stated reason for his dismissal was
pretextual.
5. Maria de Lourdes Escute-Levest
5. Maria de Lourdes Escute-Levest
______________________________
Ms. Escute-Levest was dismissed from her "regular"
position, as a Computer Operator I, in October 1985. Initially,
defendants contended that she was unqualified, but later
retreated to their "nullity of appointment" justification when
20
she protested that she had an associate degree in computer
programming. See supra note 5. Escute, a member of the former
___ _____
mayor's "advance team," testified at trial without objection
as to the basis of her knowledge12 that her position was
refilled following her dismissal, suggesting that it was not as
expendable as defendants contend on appeal. The cumulative
circumstantial evidence of discriminatory animus and pretext was
sufficient to shift the burden of persuasion to defendants and to
support the jury verdict.
6. Jesus Garcia Delgado
6. Jesus Garcia Delgado
____________________
Garcia was dismissed from his "regular" position, as a
Computer Operator I, in November 1985. Defendants contended that
Garcia, who possessed an associate degree in computer program-
ming, did not have the required year of experience in a "related
field" at the time he was appointed in 1978. Even so, he had
accumulated seven years' experience by the time he was dismissed,
and plainly met all qualifications for the position long before
his dismissal. As the jury could have inferred that the justifi-
cation offered for the dismissal was pretextual, there was enough
evidence to shift the burden of persuasion to defendants.
____________________
12At oral argument, defendants contended that plaintiffs'
trial testimony regarding their replacements was too conclusory
and lacked factual foundation. However, at trial the defense did
not object to plaintiffs' testimony based on lack of foundation.
Thus, the jury was entitled to resolve these issues on the basis
of its credibility determinations and weighing of the evidence.
As the evidence was not challenged at trial, and there has been
no showing of "plain error," Doty v. Sewall, 908 F.2d 1053, 1057
____ ______
(1st Cir. 1990), we reject their claim on appeal.
21
7. Victor M. Guadalupe Bobonis
7. Victor M. Guadalupe Bobonis
___________________________
Guadalupe was dismissed for the second time from his
"transitory" position, as a municipal guard, in October 1985. In
January 1985, the occasion of the first dismissal, the only
justifications defendants offered were that his transitory
appointment had already lapsed and the position was deemed
expendable under the "austerity" program. Mayor Aponte abruptly
rescinded the first dismissal letter on January 25, 1985. In
June 1985, however, Aponte sent another letter of dismissal,
asserting that Guadalupe did not meet the minimum qualifications
for the position, and that his original appointment therefore had
been illegal. As there was no evidence that Guadalupe did not
meet the minimum job qualifications, the jury reasonably could
have concluded that defendants' shifting justifications for
Guadalupe's dismissal amounted to pretextual posturing.
Furthermore, Guadalupe testified that twelve or fifteen
more policemen were hired after his dismissal. See Nereida-
___ ________
Gonzalez, 990 F.2d at 706 (noting that evidence suggesting that
________
defendants' reorganization was a "sham" may be considered proba-
tive of discriminatory animus); Ferrer, 914 F.2d at 311 ("over-
______
staffing" defense undermined by competent evidence from which
jury could conclude that defendants later hired replacements to
perform same functions entailed by plaintiff's position); see
___
also supra note 12.
____ _____
8. Ada N. Perez Colon
8. Ada N. Perez Colon
__________________
22
Ms. Perez was dismissed from her "regular" position, as
an Executive Officer I, in September 1985. Defendants contended
that she was not qualified, and alleged that she had taken an un-
authorized medical leave, without pay, to undergo surgery. The
Executive Officer I position requires a four-year college degree
and administrative or supervisory experience, or an "equivalent
combination of academic background and experience." Perez, who
was a member of the former mayor's "advance team," had attended
college for two years, and had worked for the City since 1980 as
_____ ____
an officer for the CETA program and a coordinator at the Human
Resources Department. Thus, the jury reasonably could have
determined that her five-year City work experience was sufficient
to offset the two-year deficit in education. See supra note 7.
___ _____
The jury therefore was free to conclude that both justifications
for her dismissal were pretextual.
9. Evelyn Quinones Osorio
9. Evelyn Quinones Osorio
______________________
Ms. Quinones was dismissed from her "regular" position,
as an Executive Secretary III, in September 1985. Within two
weeks after taking office, Mayor Aponte called all mayor's office
employees together and advised that they were "persons who were
in trust to the former mayor," and that they would be replaced or
transferred in "due time." Defendant Martinez also told Qui-
nones, a member of the former mayor's "advance team," that she
"didn't have his trust." After training her replacement, Qui-
nones accepted a transfer out of the mayor's office. She testi-
fied that officials of the new administration erased her time
23
cards and, on one occasion, retained her paycheck for six weeks.
Defendant Martinez, City personnel officer, told Quinones:
"[T]hose are injustices but I follow orders from above." (Empha-
___ _ ______ ______ ____ _____
sis added.)
In July 1985, after Quinones' brief tenure in the new
secretarial position, Aponte notified her that she would be ter-
minated because she was unqualified for the position. The rele-
vant job description called for a two-year secretarial course,
and four years' secretarial experience, but two years of work
experience could be substituted for educational experience. When
Quinones provided satisfactory documentation of her educational
qualifications, defendants fell back on their "nullity of ap-
pointment" defense as the sole ground for her September 1985
dismissal. See supra note 5. Moreover, Osario testified that
___ _____
she had worked as a secretary since 1980, and her final year as
an Executive Secretary III clearly qualified her for her new
position. Thus, Quinones presented sufficient direct and circum-
stantial evidence of discriminatory animus and pretext to shift
the burden of persuasion.
10. Carmen Rivera Guadalupe
10. Carmen Rivera Guadalupe
_______________________
Ms. Rivera Guadalupe was dismissed from her "transito-
ry" positions, as Child Care worker and Secretary, in January
1986. She was notified that she was being terminated because her
transitory appointment had lapsed, and the City could no longer
afford to fund the position. Her husband continued to work for
the Aponte administration for another five or six years. Like
24
plaintiff Colon, Ms. Rivera offered no evidence that the elimina-
tion of her position was in any way pretextual, nor that she was
ever replaced, let alone by a PDP member. As political affilia-
tion and the timing of the dismissal were insufficient to satisfy
her threshold burden of production,13 the jury verdict must be
set aside as conjectural.
11. Luisa Rivera Serrano
11. Luisa Rivera Serrano
____________________
Ms. Rivera Serrano was dismissed from her "transitory"
position, as a Clerk I, in August 1985, ostensibly because her
fixed term of employment had expired. Although the jury reason-
ably could have inferred that her position, like that of Ms.
Rivera Guadalupe, would be eliminated on austerity grounds, the
implicit rationale for her dismissal was undermined by Ms. Rivera
Serrano's testimony that she was replaced by Rosa Mattos, a PDP
member. Defendants' attempt to undermine Rivera's testimony, by
noting that she previously had identified a different person
(Inez) as her replacement, fails. Not only are we precluded from
credibility determinations, see Hendricks & Assocs., 923 F.2d at
___ ____________________
214, but Rivera offered a plausible explanation for her inconsis-
tent responses: both individuals applied for her former posi-
tion. As there was ample basis for a reasonable inference that
the proffered ground for the dismissal was pretextual, the jury
verdict must be upheld.
____________________
13Like Ms. Colon, see supra text accompanying notes 9-11,
___ _____
Ms. Rivera's NPP activities were peripheral and relatively incon-
spicuous. She served as a polling unit officer for the NPP, and
chaired the NPP Womens' Movement at her local union.
25
CONCLUSION
CONCLUSION
__________
We acknowledge the careful attention the district court
has given the evidence in this case.14 In the Rule 50(b) con-
text, however, we are required to recognize that evidence does
not pass through the jury "lens" unrefracted. Our review con-
vinces us that these jury verdicts, with two exceptions, must
____________________
14In February 1992, the district court denied defendants'
first Rule 50(b) motion. After carefully reviewing its "notes,
defense arguments and the jury verdicts," the court based its
ruling on the fact that "the jury individually and meticulously
considered each [of the 255] claim[s]." The closeness of these
questions is demonstrated by the district court's equally pain-
staking reconsideration, as well as our own review.
We nevertheless reject plaintiffs' appeals from the district
court ruling denying their reinstatement. A denial of reinstate-
ment is reviewed for "abuse of discretion," Hiraldo-Cancel, 925
______________
F.2d at 13, and we will reverse "only if we are left with a firm
conviction that [the district court] has committed 'a meaningful
error in judgment.'" Rosario-Torres, 889 F.2d 314, 323 (1st Cir.
______________
1989) (en banc) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910,
________ _____________
923 (1st Cir. 1988)). It did not. After assiduously weighing
the equities, the district court rejected the reinstatement
claims on several sustainable grounds. First, federally com-
pelled reinstatements to municipal positions implicate serious
comity and federalism concerns, especially in light of the
compelling evidence that plaintiffs' appointments were made in
blatant disregard of Commonwealth and municipal personnel and
electoral laws, and that the City was operating under severe
fiscal constraints, both at the time of the dismissals. Id.
___
(noting that, "[i]n shaping equitable remedies, comity concerns
can loom large," and that "court-ordered reinstatement of ille-
gally-hired . . . workers strikes a particularly jarring note").
Second, significant periods of time elapsed after their dismiss-
als before plaintiffs requested injunctive relief. Id. at 324.
__
Finally, some of the harshness inherent in a refusal to reinstate
is diminished where the employee has been awarded significant
monetary relief. See Rosario-Torres, 889 F.2d at 322, 324
___ ______________
(contrasting Title VII cases, which do not permit recovery of
compensatory or punitive damages, with First Amendment political
discrimination cases, which offer a fuller "palette of available
make-whole remedies" to offset a denial of reinstatement).
26
therefore be reinstated.15
Judgment in accordance with the verdicts must be rein-
_______________________________________________________
stated for all appellants, with the exception of Maria Colon de
_________________________________________________________________
Jesus and Carmen Rivera Guadalupe. In all other respects, the
__________________________________ ___________________________
district court judgment is affirmed. The case is remanded to the
___________________________________ ___________________________
district court for further proceedings not inconsistent herewith.
_________________________________________________________________
Costs are awarded to the nine prevailing appellants.
____________________________________________________
____________________
15Aponte also asserts that the verdicts should be vacated as
inconsistent, since the special verdict did not label Aponte
"liable" for political discrimination and yet found him liable
for punitive damages. We reject this contention. A facially
inconsistent verdict in a civil action no rare phenomenon
is not an automatic ground for vacating the verdict. See Fair-
___ _____
mount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485 (1933).
_________________ _________________
The court "must attempt to reconcile the jury's findings, by
exegesis if necessary . . . before [it is] free to disregard
[them]." Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119
_______ ________________________
(1963).
Here, the findings are readily reconcilable. The jury
charge, to which there was no relevant objection, suggested that
Aponte's liability and the municipality's liability could go hand
in hand. Since the special verdict form did not specify the need
for dual findings on liability, the jury may have reasoned that
branding the City "liable" necessarily incorporated a finding of
Aponte's liability as well. Accordingly, in view of the jury's
clear imposition of liability for punitive damages on Aponte, we
cannot conclude that the verdict naming only the City "liable"
for discrimination unambiguously or completely exonerated
Aponte. Compare DeFeliciano v. DeJesus, 873 F.2d 447, 452 (1st
_______ ___________ _______
Cir.) (citing cases in which employee was completely exonerated,
but employer, whose liability could only derive from employee's
liability, was found liable), cert. denied, 493 U.S. 850 (1989).
____ ______
27
