Rivera-Torres v. Ortiz-Velez

United States Court of Appeals

For the First Circuit

Nos. 02-2539; 03-1074

SANTOS RIVERA-TORRES; DAISY NAZARIO-SANTANA;

CONJUGAL PARTNERSHIP RIVERA-NAZARIO; YASIRA RIVERA-NAZARIO,

MINOR; ZAHIRA RIVERA-NAZARIO, MINOR,

Plaintiffs, Appellees,

v.

MIGUEL G. ORTIZ VELEZ, Mayor of the Municipality of Sabana

Grande; MUNICIPALITY OF SABANA GRANDE,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Selya, Circuit Judge,

R. Arnold, Senior Circuit Judge,*

and Lipez, Circuit Judge.

Johanna M. Emmanuelli Huertas, with whom Jorge Martínez-

Luciano, and Law Offices of Pedro E. Ortiz-Alvarez, were on brief,

for appellants.

Francisco R. Gonzalez for appellees.

August 26, 2003

*

Of the United States Court of Appeals for the Eighth Circuit,

sitting by designation.

LIPEZ, Circuit Judge. On February 21, 2001, plaintiffs

Santos Rivera-Torres ("Rivera"), his wife (Daisy Nazario-Santana),

and two daughters (Yasira Rivera-Nazario and Zahira Rivera-

Nazario),1 brought this claim against the municipality of Sabana

Grande and four municipal officers pursuant to 42 U.S.C. § 1983.

Rivera alleged that he was the victim of adverse employment actions

motivated by political animus, in violation of the First and

Fourteenth Amendments. After a series of preliminary orders

removing three of the four individual defendants from the action,

the trial began on December 3, 2002, against the municipality of

Sabana Grande and Miguel Ortiz Velez ("Ortiz"), the mayor of Sabana

Grande, who was sued in both his individual and official

capacities. At the conclusion of the four-day trial, the jury

found that "protected political activity was a substantial or

motivating factor in the defendant's decision to politically

discriminate against the plaintiff," and awarded Rivera $60,000 in

lost wages and benefits,2 $125,000 in compensatory damages, and

$250,000 in punitive damages. The jury also awarded compensatory

damages in the amount of $75,000 to plaintiff's wife, and $30,000

1

Because the claims brought by Rivera's wife and two daughters

are derivative of Rivera's political discrimination claim, we

designate Rivera the "plaintiff" and refer to the other co-

plaintiffs by name where necessary.

2

After the jury issued its verdict, the court sua sponte

reduced the award for lost wages and benefits from $60,000 to

$26,400. Rivera does not contest this reduction on appeal.

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to each of plaintiff's daughters. With several alterations, the

court entered judgment on the jury's verdict, and the defendants

filed these timely appeals.

Defendants raise a plethora of objections to the

proceedings below, challenging inter alia the court's denial of

qualified immunity, its refusal to stay proceedings pending the

resolution of an attempted interlocutory appeal, various

evidentiary rulings at trial, the court's interrogation of a

defense witness, and the validity of the jury's damage award.

After careful review of the record, we reject defendants'

challenges and affirm the judgment.

I.

In 1980, Rivera was hired by the mayor of Sabana Grande

to work in various capacities at the municipal gym.3 Plaintiff's

duties included training boxers and weight lifters, teaching self-

defense classes for children, and organizing weight lifting,

boxing, gymnastics, and karate competitions at locations around

Sabana Grande. Most municipal jobs in Puerto Rico are sub-

classified as "career positions" (akin to civil service jobs) or

"trust positions" (political appointments). Municipal employees

are similarly designated "career" or "trust" employees. At all

times, Rivera was a career employee, and his job was designated a

3

The facts presented here are intended to convey a general

impression of the case. We provide additional facts where they are

pertinent to the legal analysis.

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career position. In 1992, twelve years after plaintiff was hired,

the incumbent mayor promoted him to "be in charge of the

gymnasium." Although this managerial post was originally a "trust

position," the municipality reclassified it as a career job to

facilitate plaintiff's promotion.

At the time of the promotion, Rivera was a member of the

Popular Democratic Party ("PDP"), though his allegiances were

gradually shifting to the New Progressive Party ("NPP"). Over the

next six years, from 1992 to 1998, Rivera's tenure as manager of

the municipal gym was uneventful, and the record indicates that he

received only positive employment evaluations. In December 1998,

plaintiff formally joined the NPP, and local party leaders asked

him to run as the NPP candidate for mayor of Sabana Grande. One

week later, plaintiff publicly accepted the party's mayoral

nomination at an NPP "plebiscite" (caucus).

Rivera's candidacy created a potentially awkward work

environment. His opponent in the mayoral election was incumbent

mayor Miguel Ortiz Velez, who also happened to be plaintiff's boss

by virtue of being mayor. Rivera testified at trial that his

relationship with Ortiz changed dramatically after he announced his

candidacy. That month, after returning from a three-week vacation,

plaintiff discovered that the telephone had been removed from his

office in the gymnasium. Rivera also learned that the mayor was

requesting daily reports on his work habits from other coworkers

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stationed at the gym. In March 1999, the mayor observed Rivera

outside his "area" during working hours, and ordered his secretary

to make notations on plaintiff's time card documenting his absence

from work. When plaintiff confronted the vice-mayor of Sabana

Grande over the incident, he received a thirty-day suspension for

"being disrespectful to the vice-mayor." Rivera appealed this

suspension to the Commonwealth's Board of Appeals for the Personnel

Administration System ("JASAP"), which reversed his suspension and

awarded Rivera thirty days' back pay. The Board's decision was

affirmed on appeal to the Commonwealth's Court of Appeals, and the

Puerto Rico Supreme Court denied certiorari.

In the aftermath of the JASAP proceedings, Rivera

continued to experience harassment at work. The locks on the gym

were changed to inhibit his access, and on one occasion Rivera

found a stack of his personal and office documents torn up next to

a trash can near his office. He was stripped of authority to

direct the activities of subordinates at the gym, and he had

several prolonged arguments with Ortiz at the gymnasium. On one

occasion, the mayor ordered him to complete maintenance tasks that

were not within the scope of his duties. The defendants did not

seriously dispute these incidents at trial.

In May 2000, Rivera sought and received an offer of

state-level employment at the Commonwealth Department of Sports and

Recreation in nearby Mayaguez. At the time, the head of the Sport

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Administration Department was Eric Labrador, a fellow member of the

NPP. Because Puerto Rico law prohibits individuals from

simultaneously holding state and municipal-level employment, Rivera

petitioned the municipality for a transfer. However, Mayor Ortiz

refused to approve Rivera's transfer. Rivera testified that the

mayor's secretary informed him that "the mayor would not sign

unimportant papers."

Rivera was anxious to accept the state-level position

before the November 2000 elections, anticipating that the

employment offer would be rescinded if a PDP administration were

elected into office. Thus, on June 5, 2000, Rivera submitted an

irrevocable letter of resignation to the municipality. The

consequences of resigning in lieu of obtaining a transfer were

severe. Plaintiff stood to sacrifice the twenty years of seniority

he had accumulated since 1980 for salary and benefit purposes.

However, even this initiative proved unavailing when Ortiz refused

to accept Rivera's resignation, citing an ongoing investigation

into Rivera's excessive absenteeism over the previous five months.

Mayor Ortiz testified at trial that under Puerto Rico law, a

municipality loses the authority to discipline a municipal employee

once that employee has been transferred to a state agency. Hence,

it was critical to delay plaintiff's transfer request until the

administrative investigation into his absenteeism had been

resolved.

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Rivera insisted that his absences were due to work-

related illnesses, and he instructed his doctor, Silva Cherena, to

submit medical reports to the municipality documenting his

symptoms. Indeed, Dr. Cherena had sent plaintiff's medical

information to the municipality on July 1, 2000. However, Mayor

Ortiz's office claimed not to have received the doctor's letter

until October 31, 2000. Two weeks later, Mayor Ortiz finally

accepted Rivera's irrevocable resignation, nearly five-and-a-half

months after it was tendered. In the intervening period, the NPP

party had been voted out of key Commonwealth positions, and the job

offer at the Commonwealth Department of Sports and Recreation was

no longer available. Rivera was unable to find other work, and his

family suffered significant financial and emotional hardship as a

result.

In the opinion accompanying its November 26, 2002 order

granting partial summary judgment to defendants, the district court

distilled Rivera's accusations into five discrete allegations of

political discrimination:

1) In January 1999, Defendants removed the phone

from Plaintiff's office;

2) In January 1999, Defendant Ortiz ordered Arenas,

another employee of the Municipality, to take on

Plaintiff's job duties, supervise Plaintiff, and

track his movements;

3) In March 1999, Defendants falsely accused and

unjustly suspended Plaintiff for leaving his

work-area and being absent from work;

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4) In April 2000, Defendant Ortiz refused to approve

Plaintiff's transfer to the Commonwealth's Sports

and Recreation Department in Mayaguez;

5) On June 28, 2000, Defendant Ortiz declined to

accept Plaintiff's resignation and then

intentionally deferred the decision, accepting

the resignation only after the elections.

The defendants conceded that Rivera had properly preserved

allegations 4 and 5, but argued that the first three allegations

were time-barred. The district court agreed, and dismissed

allegations 1, 2 and 3 in its partial order of summary judgment on

November 26, 2000. Of particular relevance to this case, the

district court's November 26 order also denied Mayor Ortiz's

request for qualified immunity. On December 3, 2002, the case

proceeded to trial on Rivera's two preserved allegations of

discrimination. The jury delivered its verdict on December 9, and

these appeals followed.

II.

A. Pre-Trial Rulings

1. Denial of Summary Judgment

The defendants level a three-pronged attack on the

district court's failure to dismiss Rivera's case outright on

summary judgment. First, they argue that "the determination of the

Court that plaintiffs had made out a prima facie case rested on

evidence that was ultimately inadmissible at trial and on

inferences from facts not properly on the summary judgment record."

See Finn v. Consolidated Rail Corp. 782 F.2d 13, 16 (1st Cir. 1986)

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("Material that would be inadmissible at trial cannot be considered

on a motion for summary judgment because, if offered at trial, it

would not serve to establish a genuine issue of material fact.").

Second, defendants allege that Rivera failed as a matter of law to

proffer evidence sufficient to overcome summary judgment. Finally,

defendants challenge the district court's denial of qualified

immunity at the summary judgment stage.

These objections are unavailing. Because the appeal in

this case follows a full trial and verdict, the district court's

rulings at the summary judgment stage were "overtaken by subsequent

events":

We need not address the merits of [a]

preverdict challenge to the sufficiency of the

evidence on the motion for summary judgment.

Such an attack on the denial of defendant's

motion for summary judgment "has been

overtaken by subsequent events, namely, a

full-dress trial and an adverse jury verdict"

. . . . The rationale for this rule has been

based on the procedural fact that a denial of

a motion for summary judgment "is merely a

judge's determination that genuine issues of

material fact exist. It is not a judgment,

and does not foreclose trial on issues on

which summary judgment was sought." Hence, a

challenge to the sufficiency of the evidence

adduced on the motion to support the district

court's conclusion that genuine issues of

material fact exist will not lie on appeal.

Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams, Co., 40

F.3d 492, 500 (1st Cir. 1994) (internal citations omitted).

Although Eastern Mountain specifically references sufficiency of

the evidence challenges, objections to the court's pre-trial denial

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of qualified immunity in its summary judgment ruling are subject to

the same rule of trial preemption. As we noted in Iacobucci v.

Boulter, 193 F.3d 14 (1st Cir. 1999), that rule generally bars non-

interlocutory appeals grounded solely in error at the summary

judgment stage:

Although [the defendant] tried in this forum

to assign error to the denial of that motion,

a pair of procedural impediments frustrates

the attempt. For one thing, an order denying

summary judgment typically does not merge into

the final judgment and therefore is not an

independently appealable event if the case

thereafter proceeds to trial.

Id. at 22 (citing Eastern Mountain, 40 F.3d at 497).

Consequently, although a post-trial grant of immunity

would still confer a benefit on defendants by shielding them from

any liability for monetary damages awarded by the jury, a defendant

determined to persist in challenging the court's denial of

qualified immunity cannot rest on the objection lodged at the

summary judgment stage, but must move for judgment as a matter of

law at the conclusion of the trial. If the court adheres to its

original position, the defendant may then appeal from the denial of

judgment as a matter of law. A contrary rule would contradict the

principle enshrined in our jurisprudence that facts elicited at

trial are often probative of the defendant's entitlement to

qualified immunity. See Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.

1995) (declining to permit interlocutory appeals from a court's

rejection of qualified immunity "to the extent that it turns on

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either an issue of fact or an issue perceived by the trial court to

be an issue of fact"); 15A Wright, Miller & Cooper, Federal

Practice and Procedure § 3914.10. ("[O]nce trial has been had, the

availability of official immunity [on final judgment of appeal]

should be determined by the trial record, not the pleadings nor the

summary judgment record.").

Here, defendants failed to properly preserve their

challenge to the court's denial of qualified immunity by restating

their objections in a post-trial motion for judgment as a matter of

law. Accordingly, we deem the defendants' challenge waived.

2. A Forsyth Appeal

On December 2, 2002 -- nearly one week after the district

court's ruling granting partial summary judgment and denying

qualified immunity -- Ortiz filed a notice of appeal of the

district court's decision to deny qualified immunity. In Mitchell

v. Forsyth, 472 U.S. 511 (1985), the Supreme Court ruled that a

defendant denied qualified immunity by a district court could file

an interlocutory appeal to obtain review of any disputed question

of law. "[W]e hold that a district court's denial of a claim of

qualified immunity, to the extent that it turns on an issue of law,

is an appealable 'final decision' within the meaning of 28 U.S.C.

§ 1291 notwithstanding the absence of a final judgment." Forsyth,

Id. at 530. The Forsyth Court reasoned that "the entitlement [to

qualified immunity] is an immunity from suit rather than a mere

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defense to liability; and like an absolute immunity, it is

effectively lost if a case is erroneously permitted to go to

trial." Id. at 526 (emphasis in original).

The act of filing an interlocutory appeal has

jurisdictional implications:

The filing of . . . an interlocutory appeal,

"confers jurisdiction on the court of appeals

and divests the district court of control over

those aspects of the case involved in the

appeal." Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 58 (1982) (per

curiam). The district court does not regain

jurisdiction over those issues until the court

of appeals issues its mandate. Courts have

carved out a few narrow exceptions to this

rule, such as where the defendant frivolously

appeals or takes an interlocutory appeal from

a non-appealable order.

United States v. Defries, 129 F.3d 1293, 1302-03 (D.C. Cir. 1997)

(emphasis added). These exceptions to the jurisdictional rule

recited in Defries figure prominently in the post-Forsyth

jurisprudence of several circuits. In Apostol v. Gallion, 870 F.2d

1335 (7th Cir. 1989), the court of appeals observed that

although [Forsyth] protects the interests of

the defendants claiming qualified immunity, it

may injure the legitimate interests of other

litigants and the judicial system . . . .

Defendants may seek to stall because they gain

from delay at plaintiffs' expense, an

incentive yielding unjustified appeals.

Defendants may take Forsyth appeals for

tactical as well as strategic reasons:

disappointed by the denial of a continuance,

they may help themselves to a postponement by

lodging a notice of appeal.

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Id. at 1338-39. In a subset of interlocutory appeals of qualified

immunity rulings, the "notice of appeal may be so baseless that it

does not invoke appellate jurisdiction" even when filed. Id. at

1339. To address other "sham" appeals whose lack of merit is not

so transparent as to preclude the transfer of jurisdiction to the

appellate court in the first instance, the Seventh Circuit

developed a "certification" process whereby "a district court may

certify to the court of appeals that the appeal is frivolous and

[retrieve jurisdiction to] get on with the trial." Id. The court

admonished that

[s]uch a power must be used with restraint,

just as the power to dismiss a complaint for

lack of jurisdiction because it is frivolous

is anomalous and must be used with restraint.

But it is there, and it may be valuable in

cutting short the deleterious effects of

unfounded appeals.

Id. Following the Seventh Circuit's lead, the Sixth, Ninth, and

Tenth circuits established similar certification procedures to

address interlocutory appeals challenging the denial of qualified

immunity ("Forsyth appeals"). See Yates v. City of Cleveland, 941

F.2d 444, 448-49 (6th Cir. 1991); Chuman v. Wright, 960 F.2d 104,

105 (9th Cir. 1992); Stewart v. Donges, 915 F.2d 572, 577 (10th

Cir. 1990).

The circuits adopting this certification procedure have

held or implied that the district court's act of filing the

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certification of frivolousness is an event of jurisdictional

significance.

[I]t is the district court's certification of

the defendant's appeal as frivolous or

forfeited rather than merely the fact that the

appeal is frivolous which allows the district

court to retain jurisdiction to conduct a

trial . . . . Once a notice of appeal on an

appealable issue such as qualified immunity is

filed, the status quo is that the district

court has lost jurisdiction to proceed. To

regain jurisdiction, it must take the

affirmative step of certifying the appeal as

frivolous or forfeited, and until that step is

taken it simply lacks jurisdiction to proceed

with the trial.

Stewart, 915 F.2d at 577-78 (emphasis in original); see also

Chuman, 960 F.2d at 105; Yates, 941 F.2d at 449; Apostol, 870 F.2d

at 1339.

This proposition -- that a district court must actually

file the certification of frivolousness to retrieve jurisdiction

over the proceedings -- is the springboard for defendants' argument

that the trial in this case was a nullity. On November 26, 2002,

the district court initially entered an Opinion and Order denying

defendants' pre-trial request for qualified immunity. On December

2, defendants responded by filing a notice of appeal from the

denial of immunity and moving the district court to stay the

proceedings pending the resolution of the appeal. Immediately

thereafter they petitioned this court for a stay of the district

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court proceedings.4 Without the benefit of an order from the

district court denying the motion to stay, we denied the requested

stay in a summary order issued that same day:

The motion to stay trial is denied. In

denying appellants' motion for summary

judgment based on qualified immunity, the

district court stated that "Ortiz's motivation

for denying and deferring Plaintiff's

resignation is an unresolved issue of material

fact." As appellants have not adequately

explained why the denial is immediately

appealable, see Stella v. Kelley, 63 F.3d 71,

74 (1st Cir. 1995) ("a district court's

pretrial rejection of a qualified immunity

defense is not immediately appealable to the

extent that it turns on either an issue of

fact or an issue perceived by the trial court

to be an issue of fact"), the motion for stay

is denied.

On December 3, 2002, the district court began the trial.

Meanwhile, defendants had filed a motion for reconsideration of our

December 2, 2002 order denying the stay. By order dated December

6, 2002, we rejected the defendants' motion for reconsideration:

To the extent that defendant is asking this

court to immediately stay any further trial,

the request is denied. We request the

district court, however, to expressly act on

defendant's motion for stay. See Hegarty v.

Somerset County, 25 F.3d 17, 18 (1st Cir.

1994); Chuman v. Wright, 960 F.2d 104, 105

(9th Cir. 1992) ("Should the district court

find that the defendants' claim of qualified

immunity is frivolous or has been waived, the

4

The district court's order of December 6, 2002 indicates that

defendants filed both their notice of appeal and request for a stay

with the district court at 4:48 p.m. on December 2. Defendants

also petitioned this court for a stay of the district court

proceedings that same day, although the precise time this request

was filed is not clear from the record.

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district court may certify, in writing, that

defendants have forfeited their right to

pretrial appeal, and may proceed with trial").

Any renewed request for a stay filed in the

court of appeals must be accompanied by

sufficient portions of the record to allow for

intelligent review.

In the interim, however, the district court had nearly completed

the trial. On December 6, after entertaining closing arguments and

issuing instructions to the jury, the district court denied the

defendants' motion for stay in an order dated that day:

[O]ur denial of summary judgment turned on an

unresolved issue of fact in a clearly

established legal scenario strongly indicative

of improper political discrimination. Under

these circumstances, an appeal of an

unresolved factual question is baseless and is

not immediately appealable. Therefore, we

necessarily certify that Defendant's appeal is

frivolous under the present circumstances.

Rivera-Torres v. Ortiz-Velez, Civil No. 01-1244 at 5-6 (D.P.R.

December 6, 2002). Defendants now insist that "[g]iven the

uncontested fact that the Trial Court proceeded without

jurisdiction, the judgment entered in the instant case suffers from

the incurable vice of nullity and must be vacated."

This jurisdictional dispute might have been avoided if

the district court had promptly ruled on the defendants' motion to

continue the trial pending the resolution of their Forsyth appeal.

See Fed. R. App. P. 8(a) ("A party must ordinarily move first in

the district court for . . . a stay of the judgment or order of a

district court pending appeal."). Under well-settled law, courts

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entertaining a motion for stay are compelled to evaluate the merits

of the petition and anticipate its disposition on appeal. See

Acevedo Garcia v. Vera-Monroig, 296 F.3d 13, 16 (1st Cir. 2002)

("The sine qua non of the stay pending appeal standard is whether

the movants are likely to succeed on the merits.") (internal

quotation marks and citation omitted). This evaluation closely

resembles the frivolousness analysis required under the Apostol

certification procedure, as the court's order of December 6 noting

the unappealability of its qualified immunity ruling demonstrates.

See supra. If the court had entered that order denying the stay on

December 2, prior to beginning the trial, its jurisdiction over the

proceedings would have been clearly established even without the

inclusion of certification language in the opinion.

We have never adopted the Apostol certification procedure

in this circuit. Although appellants urge us to do so here in the

hopes of adding fuel to their trial nullity argument, we decline

their invitation. Whatever the merits of the certification

procedure may be, its primary innovation -- permitting the district

court to reclaim jurisdiction from the court of appeals in the wake

of a Forsyth appeal -- has no relevance to this case. The

defendants' notice of appeal was patently meritless, and therefore

failed to divest the district court of jurisdiction in the first

instance. As we observed in United States v. Brooks, 145 F.3d 446

(1st Cir. 1998):

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[l]ike most rules, the rule that either the

trial or the appellate court - but not both -

may have jurisdiction over a case at any given

point in time admits of some exceptions.

Thus, a district court can proceed,

notwithstanding the filing of an appeal, if

the notice of appeal is defective in some

substantial and easily discernible way (if,

for example, it is based on an unappealable

order) or if it otherwise constitutes a

transparently frivolous attempt to impede the

progress of the case.

Id. at 456. In this case, the defendants' interlocutory appeal was

based on an unappealable order. As we ruled in Stella:

a district court's pretrial rejection of a

qualified immunity defense is not immediately

appealable to the extent that it turns on

either an issue of fact or an issue perceived

by the trial court to be an issue of fact . .

. in such a situation, the movant must await

the entry of final judgment before appealing

the adverse ruling.

Stella, 63 F.3d at 74 (emphasis added). This principle, which we

reiterated in our initial order denying defendants' request for

stay, rendered the district court's denial of qualified immunity

unappealable.

To avoid the application of this principle, appellants

now lamely defend the legitimacy of their interlocutory appeal by

arguing that the district court's qualified immunity determination

turned on the legal question of whether a municipal officer's

subjective intent is relevant to the qualified immunity analysis,

and insisting that the court "improperly considered the element of

subjective intent as part of the qualified immunity inquiry."

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Superficially, Ortiz draws support for his opposition from the

Supreme Court's decision in Crawford-El v. Britton, 523 U.S. 574

(1998), and our post-Crawford-El jurisprudence. See Tower v.

Leslie-Brown, 326 F.3d 290, 296 (1st Cir. 2003); Abreu-Guzman v.

Ford, 241 F.3d 69, 73 (1st Cir. 2001) ("Evidence concerning the

officer's subjective intent is simply irrelevant to a qualified

immunity defense."); Sheehy v. Town of Plymouth, 191 F.3d 15, 19

(1st Cir. 1999). To illustrate the flaw in Ortiz's argument, one

must differentiate between constitutional violations that are

strictly a product of the perpetrator's actions, and offenses where

the perpetrator's subjective intent is an essential element of the

violation. For example, an individual's Fourth Amendment rights

are violated by the very fact that a police officer arrests him

without probable cause, regardless of the officer's subjective

intentions at the time of the arrest. See Abreu-Guzman, 241 F.3d

at 73. Similarly, a suspect who is interrogated by the police

without being advised of his right to counsel suffers a Fifth

Amendment injury regardless of the questioning officer's intent or

motives. In these situations, the rule of Crawford-El sensibly

excludes evidence of the officer's intent from the qualified

immunity analysis.

On the other hand, subjective intent is an essential

element of political discrimination. We have previously observed

that

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[w]hen a former government employee brings a

First Amendment suit against his employer for

taking an adverse employment action against

him on the basis of his speech, the premier

precedent is Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274 (1977). Under

the Mt. Healthy paradigm, the plaintiff must

show both that his speech was constitutionally

protected, and that it was a "substantial" or

"motivating" factor for the adverse action

taken against him.

Stella, 63 F.3d at 74-75 (emphasis added). In other words, an

employee's First Amendment right to be free from political

discrimination is violated when the employer's adverse employment

decision is motivated by the employee's political speech. Hence,

the employer's subjective motive is an essential element of the

constitutional violation itself, and cannot be divorced from the

qualified immunity inquiry. Our previous decisions underscore the

importance of the employer's subjective intent in political

discrimination cases:

Harlow does not rule out the need to inquire

into the actual reasons behind an official's

conduct when the official's state of mind is a

necessary component of the constitutional

violation he allegedly committed . . . . [T]he

official's abnormal expertise in law, or his

subjective, below par, lack of expertise,

makes no difference. But determining whether

defendant fired an employee for a

discriminatory reason . . . is an altogether

different matter.

Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 45 (1st Cir. 1988).

In Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1 (1st Cir. 2000), we

similarly dismissed defendants' contention that subjective intent

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is irrelevant to qualified immunity, explaining that "[t]he

plaintiffs allege that they were terminated because of their

political affiliation, a constitutional claim that has no meaning

absent the allegation of impermissible motivation." Id. at 11.

Accordingly, the proffered legal basis for the defendants' Forsyth

appeal is meritless, having been foreclosed by our prior decisions

in Feliciano-Angulo and Acevedo-Garcia, see supra, properly cited

by the district court in its order denying defendants' request for

a stay, and characterizing the interlocutory appeal as frivolous.

Finally, we must note that the circumstances surrounding

the defendants' Forsyth appeal betray its frivolousness. The

district court's order of December 6 denying Ortiz's motion to stay

the proceedings recounts that after the defendants' motion for

summary judgment was denied on November 26, 2002, counsel for

defendants failed to appear in court on December 2, the day the

trial was scheduled to begin. Defendants insisted that they were

unable to proceed because Johanna M. Emmanuelli-Huertas, the

counsel of record for defendants, was simultaneously involved in

another trial. The court rejected this excuse, sanctioned

Emmanuelli's law firm, and rescheduled the trial for December 3.

Later that day, Ortiz filed his notice of appeal, and immediately

thereafter moved to stay the proceedings in the district court,

asserting to the judge that "this Honorable Court lacks subject

matter jurisdiction to submit co-defendant Ortiz-Velez to the

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rigors of trial."5 The timing and haste of the defendants' notice

of appeal reveals its intended purpose -- to cloak a request for

postponement in Forsyth interlocutory raiments. See Apostol, 870

F.2d at 1338-39 ("Defendants may take Forsyth appeals for tactical

as well as strategic reasons: disappointed by the denial of a

continuance, they may help themselves to a postponement by lodging

a notice of appeal.").

In summary, we conclude that appellants' notice of appeal

never divested the district court of jurisdiction, and we reject

the claim that the entire trial was a nullity.

B. The Trial

Defendants raise a handful of objections to the district

court's evidentiary rulings and conduct at trial. We address these

claims in the order they were raised on appeal.

1. The District Court's Admission of Evidence Regarding

Dismissed Claims

Defendants argue that the district court erred in

permitting the plaintiff to introduce evidence pertaining to

5

On appeal, defendants argue that they were prejudiced by the

district court's insistence on moving ahead with the trial

notwithstanding attorney Emmanuelli-Huertas's simultaneous

engagement. "Attorney Martinez was faced with the daunting task of

preparing to represent defendants at trial with less than 24 hours

of preparation . . . . This situation put plaintiffs in an unfairly

advantageous position, as they were represented by the attorney who

handled their claims from the beginning while defendants were not."

While we reject the merits of this argument, see infra, it plainly

reveals the tactical considerations motivating the defendants'

Forsyth appeal.

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allegations that were dismissed before trial as time-barred. "In

general, we review judgment calls that certain evidence is either

irrelevant or cumulative for abuse of discretion." Yankee Candle

Co., Inc. v. Bridgewater Candle Co., LLC, 259 F.3d 25, 47 (1st Cir.

2001). As noted above, the district court's grant of partial

summary judgment disposed of Rivera's claims arising from 1) the

January 1999 deprivation of office equipment, 2) the mayor's

January 1999 decision to strip Rivera of his duties and authority,

and 3) Rivera's March 1999 suspension for "disrespecting" the vice-

mayor. Significantly, the district court's summary judgment order

anticipated that evidence concerning these dismissed claims could

still be admissible at trial as relevant background: "Although we

need not decide the issue at this time, it is possible that the

time-barred prior incidents will be admissible as relevant

background evidence." Rivera-Torres v. Ortiz-Velez, Civil No. 01-

1244 at 16 n.5 (D.P.R. November 26, 2002) (citing O'Rourke v. City

of Providence, 235 F.3d 713, 726 (1st Cir. 2001)). Indeed, the

Supreme Court has observed that "[a] discriminatory act which is

not made the basis for a timely charge . . . may constitute

relevant background evidence in a proceeding in which the status of

a current practice is at issue." United Air Lines, Inc. v. Evans,

431 U.S. 553, 558 (1977); see also O'Rourke, 235 F.3d at 726;

Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 439 (1st

Cir. 1997). The district court's prerogative to admit evidence of

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dismissed claims insofar as it provides relevant background for

surviving claims is firmly established by our precedents, and we

discern no abuse of discretion in the court's exercise of this

prerogative.

The defendants also ground their objections to the

admissibility of "dismissed claims" evidence in Federal Rule of

Evidence 403, arguing that "[o]nce a jury has heard about all these

alleged, and time-barred, actions taken against plaintiff . . . it

becomes almost impossible to make a fair assessment of the

subsequent issues, which are the ones actually being tried." We

disagree. The nature and severity of the events underlying the

dismissed claims (including the confiscation of Rivera's personal

telephone, the gradual erosion of his authority, and his thirty-day

suspension) pale in significance to events that form the predicate

of his surviving claims -- the refusal to approve Rivera's

transfer, and the delayed acceptance of his letter of resignation.

The dismissed claims involve employment decisions that resulted in

inconvenience or brief financial hardship; the surviving claims

implicate adverse employment acts that threatened plaintiff's

livelihood. Accordingly, there was no abuse of discretion in the

district court's implicit determination that the unfairly

prejudicial effect of this evidence did not outweigh its probative

value.

2. Cross Examination by the Judge

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During the cross examination of Mayor Ortiz, counsel for

Rivera interrogated the mayor about why he insisted on

investigating plaintiff's sick leave absences in lieu of permitting

his transfer to a position with the Commonwealth. In the midst of

this line of questioning, the judge interjected with several of his

own questions, resulting in the following exchange between the

judge and the witness:

JUDGE: Well, there was no impediment in you giving

him the transfer authorization irrespective

of the investigation, correct?

WITNESS: Well, the fact of the matter is that the

investigation had reflected that there had

been improper use of the sick leave days.

We would have to go to the municipality's

regulations regarding the possibility of a

violation of those regulations or of any

law. And not doing so could have entailed a

finding against us by the controller's

office. It could be called negligence in

the fulfillment of a supervisor's duties.

JUDGE: But even if he had been transferred, you

could always have obtained relief from him

if he had taken those days for the wrong

reasons?

WITNESS: Well, at least regarding that aspect, he

could have raised that matter when the

letter was sent to Dr. Silva on June 25th.

And then we would have consulted the

attorney himself . . . or from OCALAR, which

is the personnel agency for the Commonwealth

which deals with these personnel affairs.

And if they said this was okay, we would

have issued the letter.

JUDGE: At this time when these things were

happening had he already changed parties?

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WITNESS: Yes, he was already a candidate. This was

the year 2000.

JUDGE: Don't you think it would have been prudent

to allow him to go to the Commonwealth and

out of Sabana Grande so that you wouldn't

have any more problems with him?

WITNESS: If we were to look at it from that point of

view, it would have been beneficial for the

municipality because we then would have had

a regular position that we could have

filled. But the problem was that since he

was under investigation we could not do so.

On appeal, defendants argue that

this grilling of codefendant Ortiz, far from

aiding the jury in understanding the evidence,

was a cross examination, comprised mostly of

leading and argumentative questions geared

towards making the following point: the Mayor

had no legal basis for denying plaintiff's

transfer, this action was carried out while

plaintiff was a candidate for Mayor, and

defendant was not prudent in making this

decision.

The Federal Rules of Evidence provide that "[t]he court may

interrogate witnesses, whether called by itself or by a party."

Fed. R. Evid. 614(b); see also United States v. Gonzalez-Soberal,

109 F.3d 64, 72 (1st Cir. 1997) ("It is well settled that the trial

judge has a perfect right -- albeit a right that should be

exercised with care -- to participate actively in the trial

proper."). The judge's discretion to participate in the direct and

cross examination of witnesses is cabined by the importance of

maintaining an appearance of impartiality:

There are, however, limits to the behavior

that is permitted judges. For example, the

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judge's participation must be balanced; he

cannot become an advocate or otherwise use his

judicial powers to advantage or disadvantage a

party unfairly. An inquiry into the judge's

conduct of the trial necessarily turns on the

question of whether the complaining party can

show serious prejudice.

Id. (internal citations and quotation marks omitted).

On the cold record before us, the district court's

questions suggest some skepticism about the mayor's proffered

justification for denying Rivera's transfer. Ideally, the district

court should have avoided this suggestion. However, given the

brevity of the exchange and the mild nature of the questioning, we

conclude that the district court's interjections did not result in

"serious prejudice." Id. Furthermore, we find it significant that

the judge issued a lengthy instruction to the jury that mitigated

any prejudice arising from his interrogation of Ortiz.

If I asked any questions, and I did ask

questions in this case, which it is my duty to

do so if I have to, you should not be

influenced by anything that I said or did.

The purpose of asking questions by me was to

either highlight something that I thought was

unclear from the evidence, something that was

not developed by the lawyers that I thought

should be developed or simply to give some

perspective to the actual issue before the

Court at that time.

Judges, federal judges, have the right to ask

questions. They have the right to call

witnesses. They have the right to actually

comment into [sic] the evidence if they want

to comment on the evidence. And there is

nothing wrong with that. The important thing

is that I am not here to lead you into any

particular result. I am here to just try to

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give you, with the assistance of the lawyer,

the presentation of the best evidence possible

so that you can decide the issues of fact.

(emphasis added). We have previously held that instructions of

this nature may cure prejudice arising from a judge's active trial

participation: "[A]ny possible risk of prejudice to [defendant] as

a result of the judge's questions was abated by the clear

instruction to the jury that it should ignore any impression that

his questions might have made on them." United States v. Henry,

136 F.3d 12, 19 (1st Cir. 1998); see also Van Leirsburg v. Sioux

Valley Hosp., 831 F.2d 169, 173 (8th Cir. 1987). In the end, we

conclude that the district court's questioning of Ortiz did not

give rise to reversible error.

3. Judicial Notice

At trial, the defense attempted to characterize the

Commonwealth job for which Rivera sought a transfer as a "demotion"

from his tenured position with the municipality. While the

Commonwealth position was designated a "transitory," or temporary

position, Rivera testified on cross examination that he stood to

receive tenure from the Commonwealth after he had held the new

position for "some months." To counter the impact of this

testimony, the defendants asked the district court to take judicial

notice of the fact that under Puerto Rico law transitory

appointments may not be converted into tenured appointments. The

judge, however, rejected defense counsel's request:

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I can't take judicial notice of that for a

reason. I have been dealing with this kind of

case for over 16 years. And believe me, there

are many instances in which a situation like

this where the Puerto Rico government takes a

person like this and takes a transitory

position, puts the person in and down the road

in two or three months they change it to a

career position. That happens all the time .

. . . It may be illegal. But I live in the

real world. In the real world this happens

every day in the Puerto Rico government. And

this is -- this has been established by the

case law. You have thousands of examples and

there is no way I am going to instruct this

jury about something that is not realistic.

Under the Federal Rules of Evidence, "[a] judicially

noticed fact must be one not subject to reasonable dispute in that

it is either (1) generally known within the territorial

jurisdiction of the trial court, or (2) capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned." Fed. R. Evid. 201(b)(emphasis added).

The district court is obligated to take judicial notice of such

facts "if requested by a party and supplied with the necessary

information." Fed. R. Evid. 201(d). Here the court, drawing upon

its experience, determined that the fact offered for judicial

notice did not fulfill the requirements of Rule 201(b) because

Puerto Rico law governing the duration of "transitory" government

appointments does not always correspond to the realities of

government practice. Therefore, in the court's view, taking

judicial notice of the letter of the law would have misled the

jury. On appeal, defendants offer no persuasive rationale for

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reversing the court's reasonable application of Rule 201, and we

decline to disturb the jury verdict on this ground.6

4. Refusal to Continue Proceedings

Finally, defendants argue that the district court abused

its discretion in refusing to continue the proceedings to avoid a

trial conflict involving the defendants' counsel of record. See

Macaulay v. Anas, 321 F.3d 45, 48 (1st Cir. 2003). The record

reflects that both parties filed a joint pre-trial memorandum on

July 21, 2002, and that the pre-trial conference was approved by

the district court on July 31, 2002. On August 1, 2002, the

district court docketed its order setting December 2, 2002 as the

starting date of the trial. Attorney Emmanuelli's law firm, which

employs fifteen attorneys, accordingly had four months' notice of

the trial date, and four months to bring another attorney up to

speed on the specifics of this case. Instead, Emmanuelli waited

until the day the trial was scheduled to begin to move the court

for a continuance citing an irreconcilable conflict. These

circumstances preclude any finding that the district court abused

its discretion in denying the continuance.

6

Defendants cursorily argue that the district court erred in

admitting tape recordings of disparaging statements about plaintiff

made by Ortiz during his election campaign. They intimate that the

tapes were not properly authenticated, but provide no developed

analysis or legal authority to support their assertion.

Accordingly, we deem the argument waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in

a perfunctory fashion, unaccompanied by some effort at developed

argumentation, are deemed waived.").

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C. Post-Trial Rulings

1. Damages

At the conclusion of the trial, the jury awarded Rivera

and his family the following damages: 1) $60,000 to Rivera for lost

wages and benefits; 2) $125,000 in compensatory damages to Rivera

"for emotional pain and mental anguish" (pain and suffering); 3)

$75,000 in compensatory damages to Rivera's wife for pain and

suffering; 4) $30,000 in compensatory damages to each of

plaintiff's daughters for pain and suffering; and 5) $250,000 in

punitive damages to Rivera alone. Hence, the jury's award of back

pay was the only component of the damage award compensating an

economic injury. In a post-trial order, the district court sua

sponte reduced this element of the damages from $60,000 to $26,400,

ruling that "the verdict has to be adjusted on the issue of lost

wages because the only evidence is lost wages. There is no

evidence of loss of benefits." Plaintiffs do not contest the

court's reduction of this award on appeal.

Where defendants properly preserve a challenge to the

amount of compensatory damages awarded by the jury, "our inquiry is

limited to determining 'whether the trial court abused its

discretion in refusing to set aside the verdict as excessive.'"

Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 493 (1st Cir.

1994) (quoting McDonald v. Fed. Labs., Inc. 724 F.2d 243, 246 (1st

Cir. 1984)). The review of a preserved challenge to a punitive

-31-

damages award "is de novo, and the award will stand unless we find

it 'certain' that the amount in question exceeds that necessary to

punish and deter the alleged misconduct." Romano v. U-Haul Int'l,

233 F.3d 655, 672 (1st Cir. 2000). In this case, however, Ortiz

and the municipality did not move for a new trial after the jury

delivered its verdict, or file a post-trial motion to reduce or set

aside the verdict as excessive. We have long held that defendants

who fail to preserve challenges to the jury verdict below forfeit

review of those claims on appeal: "We generally will not review a

party's contention that the damages award is excessive or

insufficient where the party has failed to allow the district court

to rule on the matter." O'Connor v. Huard, 117 F.3d 12, 18 (1st

Cir. 1997); see Carlton v. H.C. Price Co., 640 F.2d 573, 577 (5th

Cir. 1981) (no appellate review of allegedly excessive or

inadequate damages available where trial court was not given the

opportunity to exercise its discretion on the matter), cited with

approval in Wells Real Estate, Inc. v. Greater Lowell Bd. of

Realtors, 850 F.2d 803, 811 (1st Cir. 1988); Braunstein v.

Massachusetts Bank & Trust Co., 443 F.2d 1281, 1285 (1st Cir. 1971)

(denying review of claim that award was excessive because appellant

failed to raise the issue before the district court).

In this circuit, claims "forfeit[ed] through ignorance or

neglect" may still be subject to plain error review on appeal.

Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en

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banc) ("Failures to object, unless a true waiver is involved, are

almost always subject to review for plain error."). However, after

reviewing the record, we discern no plain error that "resulted in

a miscarriage of justice or seriously affected the fairness,

integrity, or public reputation of the judicial proceedings."

Smith v. Kmart Corp., 177 F.3d 19, 28 (1st Cir. 1999). The jury's

award of compensatory damages was amply supported by the record,

particularly the trial testimony of Daisy Nazario-Santana (Rivera's

wife), Yasira Rivera-Nazario (Rivera's elder daughter), and Zahira

Rivera-Nazario (Rivera's younger daughter), as well as Rivera's own

description of the mental and emotional suffering he endured after

losing his job. The jury's punitive damage award was also well

within acceptable bounds, given the reprehensibility of defendants'

conduct and the resultant injuries inflicted on Rivera and his

family. See State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct.

1513, 1520-21 (2003); BMW of North America, Inc. v. Gore, 517 U.S.

559, 574-76 (1996).

2. Municipal Liability

Question #1 on the special verdict form asked the jurors

to determine whether "the actions of the defendant were under the

color of the authority of the state." The jury responded in the

affirmative. Question #9 then inquired whether "the claimed

unconstitutional conduct of the mayor as a higher authority was

done pursuant to the policy of the municipality of Sabana Grande."

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The jury responded to this question in the negative. Initially

limiting its focus to Question #9, the court remarked after hearing

the verdict in its entirety that "According to [the special verdict

form] the municipality did not have a policy. This thing was

basically the mayor's thing. And I will then enter the appropriate

judgment [in favor of the municipality]."

Upon further reflection, the court, citing to our

decision in Cordero v. De Jesus-Mendez, 867 F.2d 1 (1st Cir. 1989),

determined that it had erred in including Question #9 on the

special verdict form. In Cordero, we acknowledged the Supreme

Court's holding in Pembaur v. City of Cincinnati, 475 U.S. 469

(1986) that "municipality liability under § 1983 attaches where .

. . a deliberate choice to follow a course of action is made from

among various alternatives by the official or officials responsible

for establishing final policy with respect to the subject matter in

question." Id. at 483-84 (emphasis added). The Cordero court

subsequently noted that mayors in Puerto Rico are the government

officials ultimately responsible for the employment decisions of

the municipality:

Under Puerto Rico law, one of the express

powers given to mayors of municipalities is:

"To appoint all the officials and employees of

the municipal executive branch, and remove

them from office whenever necessary for the

good of the service, pursuant to the

procedures provided herein." P.R. Laws Ann.

tit. 21, ch. 155 § 3002(15) (1980).

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Id. at 7. Hence, Mayor Ortiz's employment decisions in the context

of this case ipso facto "constituted the official policy of the

municipality." Id. Therefore, as the district court correctly

realized, the liability of the municipality could not be divorced

from the mayor's liability in his official capacity. Because the

jury expressly found in response to Question #1 that "the

[unlawful] actions of the defendant were under the color of the

authority of the state," municipal liability automatically

attached.

We applaud the district court's prompt efforts to cure

its initial error, and affirm its decision to disregard Question #9

on the special verdict form and enter judgment against the

municipality. Significantly, the jury's responses to Question #1

and Question #9 did not create an inconsistent verdict to be

resolved in accordance with Rule 49 of the Federal Rules of Civil

Procedure. Fed. R. Civ. P. 49. The jury's response to Question #9

reflected its determination that the municipality had no

freestanding laws or policies that allowed or encouraged the

adverse employment decisions at issue. This determination was in

no way inconsistent with its previous finding that the mayor,

acting on his own initiative, discriminated against Rivera while

discharging his duties as mayor. In the absence of a proper

instruction, the jurors were unaware that Ortiz's actions as mayor

were themselves the "policy" of the municipality. Given these

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circumstances, the district court's decision to disregard the

jury's response to Question #9 is in accord with our resolution of

the identical problem in Cordero, see Cordero, 867 F.2d at 8, and

did not unfairly prejudice the municipality.

We reiterate that the municipality's contention that

"[t]here is no evidence in the record, suggestive of the Mayor

implementing any sort of municipal policy," simply misses the

point. Ortiz had the authority to control the conditions of

Rivera's employment by virtue of being the Mayor of Sabana Grande.

The employment decisions he made in that capacity constituted the

policy of the municipality under well-established precedent. See

Pembaur, 475 U.S. at 483; Cordero, 867 F.2d at 7.

III.

Our exhaustive review of the record and the arguments

raised on appeal reveals no basis for disturbing the jury's

liability determination or damage awards. The district court's

entry of judgment on the verdict is affirmed.

So ordered.

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