Appendix A — Vazquez-Valentin v. Santiago-Diaz

United States Court of Appeals

For the First Circuit

No. 03-1949

DIANA VAZQUEZ-VALENTIN

Plaintiff, Appellee,

Vv.

VICTOR J. SANTIAGO-DIAZ, Individually and as Mayor of

Toa Baja; MUNICIPALITY OF TOA BAJA; MILAGROS

DELGADO-ORTIZ, Individually and as Human Resources

Director of Toa Baja,

Defendants, Appellants.

APPEAL FORM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

{Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Carlos A. Del Valle Cruz, with whom Anabelle Rodriguez,

Secretary of Justice, and Ivonne Palerm Cruz, Deputy

Secretary for Litigation were on brief, for appellants in their

individual capacities.

Roberto Ariel Fernandez for appellants in their official

capacities and the Municipality of Toa Baja.

Guillermo A. Macari-Grillo, with whom Jesus M. Hernandez-

Sanchez was on brief, for appellee.

September 22, 2004

1a

Lipez, Circuit Judge. Diana Vazquez-Valentin

(“Vazquez”) brought an action against defendants - - the

Municipality of Toa Baja; its Mayor, Victor J. Santiago-Diaz

(“Santiago”); and its Director of Human Resources, Milagros

Delgado-Ortiz (“Delgado”) - - pursuant to 42 U.S.C. § 1983 for

demoting and constructively discharging her because of her

political affiliation. Following the jury verdict awarding

compensatory and punitive damages to Vazquez, defendants

seek the entry of judgment on their behalf as a matter of law or,

in the alternative, a new trial. In arguing for judgment as a

matter of law, defendants aver that plaintiff did not introduce

sufficient evidence for a jury to reasonably infer that

defendants discriminated against Vazquez on the basis of her

political affiliation. Such an argument rarely prevails after a

favorable jury verdict. However, having reviewed the record

with care, we agree that it prevails here. Accordingly, we

vacate the verdict and direct entry of judgment for defendants.

I.

Drawing on the evidence presented at trial, we begin by

describing the background of this case. Except where noted,

this background information is undisputed.

A. The Change of Administration and Alteration of the

Job Classification Plan

On November 7, 2000, general elections were

held in Puerto Rico. In the municipality of Toa Baja,

defendant Victor J. Santiago, the PDP candidate for

mayor of Toa Baja, defeated the incumbent NPP

candidate Victor Soto, who had been mayor for sixteen

years. In total, the NPP had controlled the municipal

government of Toa Baja for twenty-four years prior to

the 2000 election.

Upon taking office, the new administration

apparently faced several challenges. Among them were

issues related to personnel actions and human resources

plans that were detailed in several documents, including

an audit from the Comptroller of Puerto Rico, dated

June 14, 2000; a letter form the Commonwealth’s

Central Office for the Administration of Personnel and

Human Resources (known by its acronym

“OCALARH,” which is based on the Spanish version

of the office’s name); and another letter from the Office

of the Commissioner for Municipal Affairs (similarly

known as “OCAP”).'! These documents addressed

" The contents of these documents were not admitted below, over

defendants’ strenuous objections. The district court found that these

documents were inadmissible as hearsay and informed the jury only

that defendants sought advice about personnel actions and other

issues, and that they received such advice form these agencies.

The exclusion of these documents as hearsay is troubling. So

crucial to the defendants’ case, and offered as an explanation for the

personnel actions undertaken by the defendants rather than for the

truth of the personnel irregularities described in the documents,

these documents are not hearsay, and they were highly relevant.

Their exclusion might weil have justified a new trial. However, we do

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personnel issues of the municipality. In Puerto Rico, all

municipal jobs are governed by so-called job

classification plans that are adopted locally. These

plans set forth the occupational groups and personnel

structure of the municipality, including the primary

responsibilities and employment requirements for each

position in city government. The salaries for various

jobs are set forth in a separate salary scale that

establishes the salary for each job by classification.

From time to time, municipalities revise their

job classification plans. Toa Baja undertook this task in

1997, when it altered the then-existing job classification

not have to decide that issue because of our disposition of the case

on sufficiency of the evidence grounds. Because defendants made

an offer of proof regarding these documents at trial, we may consider

the excluded documents as part of the record on appeal for the

purpose of describing the background of this case. United States v.

McDaniel, 482 F. 2d 305, 311 (&” Cir. 1973); see also Wright and.

Graham, Federal Practice and Procedure: Evidence § 5040 91977)

and other exhibits are usually marked for identification

and become part of the record on appeal, even if exciuded.") We do

not consider these excluded documents in conducting our sufficiency

of the evidence analysis.

plan that had been adopted in 1991.7 According to the

Comptroller’s report, the 1997, changes were not valid

alterations to the 1991 plan because they were hot first

submitted for approval to OCALARH, ant past

municipal administrations had appointed several

hundred employees in violation of the relevant state law

and regulations. The report also recommend both that

the municipality put in place a system for the selection

and recruitment of personnel and that the administration

develop a corrective action plan to —e the various

illegalities cited therein.’

? The parties bitterly dispute whether this alteration was in fact an

altogether “new plan” of job classifications or simply an “amendment”

to the existing 1991 job classification plan (“the 1991 plan"). The

relevant ramifications of that distinction, as well as the approval

process and the related municipal ordinances, are not germane to

the sufficiency of the evidence claim, and we do not delve into them

here.

? On August 2, 2004, the same district court that heard this case

issued an Opinion and Order and Partial Judgment in a related case,

Maria Aldarondo Lugo v. Municipality of Toa Baja, Civil No. 02-1123

(“August 2 Opinion’). in Lugo, ninety-five employees and former

employees of Toa Baja sued the city, Santiago, and Deigado, the

latter two defendants in both their official and individual capacities,

alleging politically discriminatory personnel actions. One group of

plaintiffs alleged only political harassment. in the August 2 Opinion,

the district court granted qualified immunity to Santiago and Deigado

in their personal capacity, except with respect to the claim of the few

plaintiffs alleging only political harassment. Relying on the

; 5a

Defendants then undertook a review of the personnel

files of all 1,300 or so municipal employees.

Defendants claim that they did so because, according to

the Comptroller’s report, “[njot addressing the

recommendations of the audit... without just cause []

may constitute a violation [of]... the Government

Ethics Act.” Plaintiff maintains that the defendants

sought to retaliate against members of the NPP. As of

May 2002, at the time of tk trial, around six hundred

files had been evaluated, including Vazquez’s. Of

those, 281 employees had sought on informal hearing

regarding the personnel action that resulted from the

review.

documentary evidence excluded in Vazquez’s trial but admitted in

Lugo, the district court held that

[djefendants have shown with documentation and affidavits

that they had legitimate reasons 9i) to believe that the 1997 Changes

were a new plan Gincluding the view of governmental agencies) and

(ii) for re-classifying Plaintiffs. Defendants have also shown that they

did such re-classification in accordance with the law and at the

instance of the Comptroller, a man appointed by the NPP former

governor.

August 2 opinion at 23.

B. Vazquez’s Political Activity and Employment

History

Vazquez has been active in the NPP since the

age of eighteen. She was president of chair of the NPP

committee in her ward (Barrio Pajaros in Toa Baja),

and she worked on the mobilization committee,

organized rallies, and raised funds. Additionally, she

was one of the NPP’s electoral college officers.

Her employment at the municipality of Toa Baja

started in 1985, when Vazquez was employed in a

transitory position’ as an office clerk. On February 1,

1989, she became a career employee in the position of

Office Worker/Typist I at a monthly salary of $545. On

July 1, 1993, Vazquez was appointed to the position of

Secretary III, with a monthly salary of $1019, at the

request of David Cordova Torrech (“Cordova”), her

immediate supervisor and head of the Office of

Services to the Citizenry. Twenty days later, Cordova

* Goverment employees in Puerto Rico are classified as “transitory”

or “temporary,” which essentially means the employment is at-will, or

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asked that Vazquez be reassigned again, this time to the

position of Assistant Director of the newly created

Levittown branch of the Office of Services to the

Citizenry. That request was granted, and Vazquez

assumed the position of Assistant Director on August

16, with a monthly salary of $1752.

_ In 1997, the alteration to the job classification

plan eliminated the position of Assistant Director from

the employment hierarchy. In the wake of that

elimination, Vazquez was reassigned to the position of

Executive Director II. Two years later, in 1999,

Vazquez was appointed as an Administrative Assistant

to Mayor Soto, a trust position within the

administration. Following NPP’s defeat at the polls in

2000, Vazquez was reassigned to her former position of

Executive Director II.

C. Vazquez’s Demotion

as “carreer” or “permanent,” which is the equivalent of having job

tenure with attendants vested property rights.

8a

On May 22, 2001, the defendants, Mayor Santiago and

Director of Human Resources Delgado, held a meeting

with in fifteen to eighteen employees, including

Vazquez, to notify them that their classifications were

being changed pursuant to the decision to declare the

1997 plan null and void and return to the 1991

classifications. According to Vazquez, Santiago

explained at that meeting that the PDP had won the

election and, in Vazquez’s words, said that “they had to

adopt actions with employees, that they had to clean

’

house...” Santiago then explained that the affected

employees had certain nghts to administrative hearings

and, again in Vazquez’s wide: “that whomever wished

to go through attorneys, well, they then had to bear the

consequences of their actions and that we would see

each other in Court.” Vazquez testified that Delgado

then took the floor, saying that she agreed with

Santiago; Delgado then explained the appeals process

to the reclassified employees.

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Following Delgado’s explanation of the appeals

process, the employees were handed letters describing

their new classifications and explaining the reasons for

the reclassifications. The letter to Vazquez stated that

she lacked the academic preparation or experience for

her current position and was being reassigned to Office

Worker/Typist I, the position she held in 1989.

According to the defendants’ review of ek personnel

file, that was the last position to which Vazquez had

validly been appointed.

Vicia attended a hearing in front of an

administrative hearing officer on September 9,

2001.°According to Vazquez, the hearing lasted

approximately five minutes. In January 2002, the

hearing officer issued a report and recommendation to

the effect that Vazquez had been illegally hired and

° This hearing is apparently different than the hearing affected

employees could seek before the Board of Appeals of the Personnel

Administration System (which is known as “JASAP’). Vazquez was

notified of her right to request an administrative hearing before

JASAP to challenge the demotion, but she declined to seek such a

10a

promoted. Although Vazquez remained in the

Executive Director II position at the monthly salary of

$2083 pending the outcome of the hearing, she was

officially reassigned to Office Worker/Typist I by letter

of January 30, 2002. Her monthly salary was reduced

accordingly to $900, effective February 1. on march

15, 2002, Vazquez tendered her resignation to Santiago,

effective April 9. Vazquez’s employment history with

the municipality is summarized below, with

appointment date or year, job title, and monthly salary

where known.

* 1985: Office Clerk

. February 1, 1989: Office Worker/Typist I ($545

monthly salary)

. July 1, 1993: Secretary III ($1019 monthly

salary) |

. 1997: Executive Director II (change of title

because of changes in the 1997 plan)

* May 1, 1999: Administrative Assistant (trust

position)

hearing because, in her opinion, the “hearing would be futile and a

sham and would violate [her] right to a due process.”

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* January 10, 2001: Executive Director II ($2083

monthly salary)

e February 1, 2002: Office Worker/Typist I ($900

monthly salary)

® April 9, 2002: resignation effective

D. The Lawsuit

Vazquez brought this civil rights action pursuant to 42

U.S.C. § 1983. on June 13, 2001, against the

municipality of Toa Baja, mayor Santiago, and Human

Resources Director Delgado. Vazquez sued Santiago

and Delgado in both their official and personal

capacities. Vazquez alleged that she was demoted and

constructively discharged, and that these adverse

employment actions violated her First Amendment and

due process rights under the United States Constitution.

In her complaint, she sought compensatory and punitive

damages, as well as reinstatement. The defendants

denied the allegations and replied that Vazquez was

illegally appointed to her position with the city and that

they were obligated to correct the irregularity.

12a

On March 27, 2002, prior to trial, the defendants

moved for summary judgment, with Santiago and

Delgado raising the affirmative defense of qualified

immunity in their individual capacities. The district

court denied the motion. A jury trial began on April 30,

2002. At the close of all evidence, defendants moved

for judgment as a matter of law under Federal Rule of |

Civil Procedure 50, arguing that Vazquez did not

produce sufficient evidence to show (1) that her due

process rights were violated, (2) that her political

affiliation was a substantial or motivating factor for her

demotion, or (3) that she was constructively discharged.

The district court granted defendants’ Rule 50 motion

as to due process claim but denied it in all other

respects, including the qualified immunity defense.°

On May 14, the jury found for plaintiff,

awarding her $275,000 in compensatory damages for

mental and emotional pain and suffering, $6,828 in

° V4zquez does not appeal the district court's ruling on her due

13a

compensatory damages for lost earnings, and $42,000

in punitive damages, for a total of $323,828, plus post-

judgment interest, reasonable costs, and attorney’s

fees.’ In light of the jury finding that the defendants

discriminated against Vazquez on the basis of her

political affiliation and the jury’s award of punitive

damages the district court rejected Santiago’s and

Delgado’s affirmative defense of qualified immunity.

The district court then denied defendants’ post-trial

Rule 59 motion, which asked the court to set aside the

compensatory and punitive damages as excessive and

without a sound evidentiary basis. The district court

also ordered the defendants to reinstate Vazquez to her

previous position of Executive Director II.

The defendants raise several arguments on

appeal. First, they urge that the district court erred in

process claim.

The pain and suffering damages were apportioned among the

defendants as follows: $178,750 from the municipality; $68,750 from

Santiago; and $27,500 from Delgado. The lost eamings award was

assessed jointly and severally against all defendants, and the

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denying their Rule 50 motion as to the political

discrimination claim.’ Second, defendants argue that

the district court erred in denying admissibility of the

Comptroller’s report and agency letters, which

defendants maintain were crucial to substantiating that

political discrimination was not a factor in Vazquez’s

reassignment. Third, defendants claim that the trial

court made allegedly prejudicial remarks in front of the

jury. Fourth, defendants assert that the district court

erred in ordering plaintiff reinstated to her previously

position of Executive Director II. Finally, in their

individual capacity, defendants challenge the district

punitive damages were assessed $30,000 to Santiago and $12,000

to Deigado.

* Although defendants made a motion pursuant to Rule 50 (a0 before

the case was submitted to the jury, they failed to renew that motion

after the jury verdict. Ordinarily, that omission would mean that a

party could not seek judgment as a matter of law on appeal. See

Udemba v. Nicoli, 237 F. 3d 8, 13 (1 Cir. 2001) (“[TJo preserve for

appeal the district court's rejection of a motion for judgment as a

matter of law made at the close of the evidence, the movant must

seasonably renew that motion post-verdict’). However, “even when

@ party has failed to make the proper motion below, this court

retainst the authority to ‘inquire whether the record reflects an

absolute dearth of evidentiary support for the jury’s verdict.’ “Id. .

(quoting Faigin v. Kelly, 184 F. 3d 67, 76 91" Cir. 1999)). We invoke

our authority to assess the sufficiency of the evidence here. We also

15a

court’s denial of the qualified immunity defense.

Because of our disposition of the sufficiency of the

evidence claim, we do not reach defendants’ other

arguments.

II.

A. Standard of Review

The standard for setting aside a jury verdict pursuant to

Federal Rule of Civil Procedure 50 (b0 is a stringent one:

“(W]e must examine the evidence in the light most favorable to

the plaintiff and determine whether there are facts and

inferences reasonably drawn from those facts which lead to but

one conclusion - - that there is a total failure of evidence to

prove plaintiff's case.” Mayo v. Schooner Capital Corp., 825

F. 2d 566, 568 91% Cir. 1987) (quotation and citation omitted).

In reviewing the record, we will evaluate neither the credibility

of the witnesses nor the weight of the evidence. Santiago-

Negron v. Castro —Davila, 865 F. 2d 431, 445 (1* Cir. 1989).

Even though we draw all rational inferences from the facts in

note that plaintiff hes failed to allege defendants’ forfeiture of the

16a

faver of plaintiff, “the plaintiff is not entitled to inferences

based on speculation and conjecture.” Ferrer v. Zayas, 914 F.

2d 309, 311, (1* Cir. 1990). A non-moving party who bears

the burden of proof, as Vazquez does here, must have

presented “more than a mere scintilla of evidence in its favor”

to withstand a motion for judgment as a matter of law. Invest

Almaz v. Temple-Inland Forest Prod. Corp., 243 F. 3d 57, 76

(1* Cir. 2001) (quotation and citation omitted). Additionally,

we are not obligated to disregard inccianaitial evidence

offered by defendants. Santiago-Negron, 865 F. 2d at 445.

B. Analysis of Political Discrimination Claims

A governmental employee who is not in a policy-

making position of confidence and trust is shielded form

adverse employment decisions because of the employee’s

political affiliation. Fiqueroa-Serrano v. Ramos-Alverio, 221

F. 3d 1,7 (1* Cir. 2000) (citing Branti v. Finkel, 445 U.S. 507,

517-19 (1980), and Rutan v. Republican Party of Illinois, 497

Sufficiency of the evidence issue.

17a

U.S. 62, 75 (1990)). ° When a plaintiff brings a political

discrimination claim, she bears the burden of “producing

sufficient direct or circumstantial evidence form which a jury

reasonably may infer that plaintiff[‘s] constitutionally protected

conduct - - in this case, political affiliation with the NPP - -

was a ‘substantial’ i ‘motivating’ factor behind [her]

dismissal.” Acevedo-Diaz v. Aponte, | F. 3d 62, 66 (1" Cir.

1993); see also Figueroa-Serrano, 221 F. 3d at 7 (citing Mt.

Healthy City Bd. Of Educ. v. _Doyle, 429 U.S. 274 (1977))

(“Yo prevail on a free speech claim, a public employee must

show that she engaged in constitutionally-protected conduct

and that this conduct was a substantial factor in te adverse

employment decision.”). The plaintiff bears the burden of

persuasion on these issues throughout the case.

The defendant, of course, may offer rebuttal evidence to

attempt to disprove that political affiliation played a substantial

role in the adverse employment action. Additionally, even if

* Although Vézquez held a trust position in the previous

administration form may 1, 1999, to January 10, 2001, her removal

from that position and restoration to Executive Director Ii are not at

issue here.

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the plaintiff establishes that proposition by 2 preponderance of

the evidence, the defendant may raise an affirmative defense:

it may attempt to “prove by a preponderance of the evidence

that plaintiff [] would have been dismissed regardless of [her]

political affiliation.” Acevedo-Diaz, | F. 3d at 66; see also Mt.

Healthy, 429 U.S. at 287; Sanchez-Lopez v. Fuentes-Pujols,

375 F. 3d 121, 124 (1st Cir. 2004). In other words, even if the

plaintiff has shown that her political affiliation was a

substantial or motivating factor in the adverse employment

decision, the defendant will not be held liable if it can persuade

the fact finder that it would have taken the same course of

action anyway, without regard to plaintiff's political affiliation.

The Supreme Court has made clear that defendant’s Mt.

Healthy defense serves to prevent an employee who would

have received an adverse employment decision based on

legitimate reasons from being “in a better position as a result of

the exercise of constitutionally protected conduct than he

would have occupied had he done nothing.” Mt. Healthy, 429

U.S. at 285. However, if a plaintiff does not produce evidence

19a

sufficient to allow a reasonable inference that political

discrimination was a substantial or motivating factor in the

challenged employment action, we need not analyze

defendant’s Mt. Healthy defense. Accordingly, we turn now to

evaluating whether plaintiff produced sufficient evidence for a

reasonable jury to find that her political affiliation was a

substantial or motivating cause of her demotion and alleged

constructive discharge.

| C. The Evidence Adduced at Trial

We will reverse a jury verdict in a case such as this

“only if: (1) the record evidence compelled the conclusion that

the plaintiff would have been dismissed in any event for

nondiscriminatory reasons [in other words, the Mt. Healthy

. defense prevails as a matter of law], or (2) the plaintiff did not

introduce sufficient evidence in the first instance to shift the

burden of persuasion to the defendants.” Acevedo-Diaz, 1 F.

3d at 67. Here, we are presented with the rare case that

requires reversing a jury verdict on appeal because plaintiff's

evidence failed to establish that political discrimination was a

20a

substantial or motivating factor in the challenged employment

action. Because the court’s dismissal of the due process claim

was not appealed, we include in our analysis only testimony

relevant to the First Amendment claim.

1. Plaintiff's Witnesses

Plaintiff offered testimony from four witnesses: (1)

Maria Sanchez Coraliza (“Sanchez”), Assistant Director

of the Human Resources Office and author of both the

1991 and 1997 job classification plans; (2) David

Cérdova Torrech (“Cérdova”’), now retired after

fourteen years of municipal service that included

serving as director of the Citizen’s Office for the Mayor

and as Vazquez’s direct supervisor; (3) Linda E. Rivera

Vega (“Rivera”), who was purchasing and procurement

bids director for the municipality during six months

relevant to this litigation; and (4) Vazquez herself.

a. Sanchez

Sanchez testified that when she became aware that

Santiago was considering rescinding the 1997 plan and

21a

restoring staffing in accordance with the 1991 plan, she told

him “that I did not believe that he should take upon himself to

do the action that he intended to do... since there were

explanations for everything that had taken place and that could

entail certain employees might sue him and that he might have

to appear in court.” According to Sanchez, Santiago replied

that “if he had to go to court and the court assigned him to pay,

that he would pay.” Sanchez further testified that she advised

him that “the 1997 plan had been approved by a municipality

ordinance and that he should seek guidance in that sense.’

In answer to questions about how many employees

were switched from career employee status to transitory

employee status as a result of the Mayor’s decision to rescind

the 1997 plan, Sanchez could not give a numerical estimate.

Instead, she mentioned some names of affected people whom

“she personally knew. After listing five people by name and

saying that she “would have to mention a whole bunch of them

because there were many,” Sanchez testified that “all these

people” belonged to the NPP.

22a

Plaintiff also elicited testimony form Sanchez regarding

Vazquez’s qualifications for the positions to which she had

been aun In sum, Sanchez testified that Vazquez was

qualified for all the positions she had held at the municipality.

However, Sanchez admitted on cross-examination that

Commonwealth law requires, with some exceptions, that

before a position is filled it must be posted or advertised; that

the vacancy must be filled using a system called the “register

of eligible’ or some alternative equivalent system; that the

hired personnel must serve a probationary period of three to six

months; und that an employee may only become a career

employee after satisfactorily completing the probationary

period. Sanchez also testified on cross that the municipality

had not followed these hiring procedures as a general matter.

b. Cérdova

_ Cérdova, director of the Citizen’s Office for the Mayor

and V=quez’s direct supervisor, testified to Vazquez’s

increasing responsibilities and growth as an employee during

her tenure with him. During Vazquez’s thirteen years under

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Cérdova, he made two written evaluations of her job

performance. Additionally, Cérdova explained that he

petitioned the former mayor to appoint Vazquez as Assistant

Director of a branch of the Citizen’s Office. For purposes of

our appellate review, we will assume that Cordova’s testimony

regarding iiss a reebaneibilities established that she

met the minimum stated requirements for the positions of

Secretary III and Assistant Director (a position that was

essentially renamed Executive Director II in 1997).

c. Rivera

Rivera, a member of the PDP, testified that she told

Delgado “that I am a person who under no circumstances will

persecute anyone because as she [Delgado] knows, I have been

persecuted for more-than seventeen years by the NPPers and

the Populares (PDP party members) who have allowed that I be

persecuted and that I would under no circumstances would

[sic] allow that and if I saw anything or understood that there

would be any persecution, that I would rather resign and that is

wmlgg?

Rivera also testified about her understanding and

observations of political persecution during her time at the

municipality. She explained her “ understanding that

persecution involves leaving an employee without work,” and

when Rivera passed Vazquez’s desk, she often observed that

Vazquez had no work to do. Rivera made the same

observation about one other employee. In consequence, Rivera

told the municipal secretary, Dora Martinez Torres

(“Martinez”), '° to “watch out, ‘ because since she belongs to

another party, and was not giving them any work it could be

understood that it was political persecution.” Rivera said that

Martinez was a member of the PDP and that she began work

after the new administration took office. Additionally, she

explained that while at first she did not have an adverse

relationship with Martinez, their working relationship later

soured because of Martinez’s “persecution with the

employees.”

"° Martinez is not a party in this case.

25a

According to Rivera, she used to have lunch with

nnn and Delgado, but “upon seeing that they though

differently than the way I though, well, then I understood that it

was best not to have lunch to avoid taking any decisions, well,

leave my job, be a part of a persecution, and remarks that might

be out of oaies* When pressed as to what Delgado

specifically said that convinced Rivera that they should no

longer lunch together, Rivera said that “[o]ne of Mrs.

Delgado’s remarks had to do with the process when letters

were to be delivered that there would be equality - - let’s say

that the salaries were going to be lowered or if their

permanency was going to be removed, well, then it would be

the same for everyone notwithstanding the person involved.” |!

Later, Rivera testified that she and Delgado had lunch together

perhaps two or three times and that they did not talk about

politics.

"' Plaintiffs counsel asked whether the translation might be more

accurate as “regardless of the pressure involved” instead of

‘regardless of the person involved.” The court replied that it “had no

objection to that.” |

26a

Rivera was asked whether she “could tell the jury if the

members of the New Progressive Party employees were

targeted for this personnel action” of receiving the

reassignment letters. Rivera replied: “Yes, because the

employees who were given permanence in ’97, well, those

were the employees who would be subjected to the application

of the law in which their permanence would be taken away

from them.” Upon prompting, Rivera said that those

employees belonged to the NPP party.

d. Vazquez

Vazquez was on the stand for three days. In addition to

detailing her work history and the responsibilities of her

employment with the municipality, Vazquez testified that her

academic preparation and experiences qualified her for all of

the municipal positions that she had held. Vazquez also

testified that her immediate supervisor, Martinez, both made

politically discriminatory remarks, including stating that

‘[w]ell, hopefully they will kill all the NPPers” and failed to

give her any work from January to August of 2001. on August

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24, 2001, Vazquez sent a letter and an accompanying table to

Martinez detailing her work assignments since January 15,

2001 (excluding one month of vacation and one month of sick

leave over the seven-month period). The letter informed

Martinez that of the remaining five months of that period,

Vazquez performed tasks on forty-two of the 106 work days.

On cross-examination, Vazquez admitted that she never

informed Delgado or Santiago of her lack of work, saying that

it is “not the mechanism, and that would be gossip.” She

further admitted that after Martinez received her letter of

August 24, Vazquez was given sufficient work to occupy her

work days.

Vazquez testified about the meeting on May 22 when

between fifteen and eighteen employees were given their

reassignment letters. She said that all of the employees at the

meeting were members of the NPP who “held positions of

hierarchy in the previous administration.” According to

Vazquez, “the Mayor began the meeting indicating that he was

the person in power, that the Popular Democratic Party had

28a

won. That they had to adopt actions with employees, that they

iii scciicdiacokcieitsltis Miabcieieeaiton se dite teneets

us in which there would be changes in our salaries or our

permanence; that whomever wished to go to JASAP had 30

days to do so, that whomever wished to go through attorneys,

well, they then had to bear the consequences of their actions

and that we would see each other in Court.”'? Vazquez

continued recounting the events of the meeting, noting that

Delgado “began indicating that she was seconding what the

Mayor had stated and she explained the meets process.

Vazquez also recounted the details of what appears to

be the only other time she met Santiago. When Santiago was

campaigning and seeking votes, he visited the community

where Vazquez lived. According to Véowes, “(h] e came up

the stairs. At that point he introduced himself as a candidate

for the Popular Democratic Party and at that point I told him

"2 Santiago disputes that he said that they were going to “clean

house.” Instead, Santiago testified that at the May 22 meeting, he

said that “it is my obligation [to] correct what the previous

administration did wrong and that... very much in spite of what |

might want to do, | had to do it morally.” Of course, under the Rule

29a

that I belonged to the New Progressive Party, that I

campaigned for the NPP from 1984. That I was a militant and

that I had held assorted positions with the administration of

Mayor Victor Soto and as all candidates he told me that he was

counting on my vote.” Plaintiff's counsel then asked Vazquez

whether Santiago “was able to recognize you that you were a

member of the New Progressive Party” at the May 22 meeting.

Vazquez responded, “He shook hands with me and greeted

me.”

Vazquez also testified about her activity on behalf of

the NPP. She had been an electoral college officer since the

age of eighteen and president of the committee for her local

ward in Toa Baja. Vazquez participated in mobilization,

fundraising, organizing, and “all kinds of activities related to

politics and the NPP.”

2. Defendants’ Uncontradicted Testimony

Before considering this testimony, we observe that a

strong case could be made that defendants’ motion for

50 standard, we credit Vazquez's version of events over Santiago's

30a

judgment as a matter of law at the close of plaintiff's case

should have been granted. Of course, defendants do not make

this argument on appeal. Having put on a defense at trial, they

are foreclosed from doing so. See Gillentine v. McKeand, 426

F. 2d 717, 723, (1" Cir. 1970) (“defendant’s motion for a

directed verdict at the close of plaintiff's case expired” upon

the introduction of substantial defense evidence and was not

preserved for appeal). Accordingly, in evaluating defendants’

appeal form the district court’s denial of their motion for

judgment as a matter of law after the close of all evidence, we

consider both plaintiff's evidence and the uncontroverted

evidence offered by defendants. Santiago-Negron, 865 F. 2d at

Ads

a. Delgado

Delgado testified that at the time of transition between

the two administrations, the municipality had 1,343 employees

on its roster. Delgado’s uncontradicted testimony also

established that there was no evidence in Vazquez’s personnel

for purposes of our analysis here.

31a

file establishing that Vazquez met the minimum requirements

for appointment to Secretary III or Assistant Director, or that

she served the requisite probationary period for either

position.'? Delgado testified that according to the documents

in Vazquez’s personnel file. Vazquez lacked the commercial or

secretarial training required to be appointed to Secretary III in

1993. On cross, plaintiff's counsel drew Delgado’s attention to

Cérdova’s letter asking that Vazquez be appointed to Secretary

III, which, taking the evidence in the light most favorable to

the plaintiff, could establish her eligibility for the position.

Upon questioning, Delgado testified that she cannot explain

why that document was not contained in Vazquez’s personnel

file.

Delgado further testified that Vazquez’s personnel file

contained no indication that the Human Resources Department

followed the procedures and analysis required to reclassify an

3 We do not make this point to question Vazquez's qualifications for

her positions. As noted in our discussion of Cérdova's testimony, we

have assumed that she met the stated qualifications for the positions

of Secretary lil and Assistant Director. We simply make the point

here that anyone reviewing her personnel file would not find

evidence of these qualifications in the file.

32a

employee, without competition for the position, based on the

employees assumption of greater responsibility and obtaining

further credential.

bh. Santiago

In uncontradicted testimony from Santiago, he

explained that he coughs advice vaqnatian the efleet andi lequiity

of the 1997 plan, and that he acted on that advice. As noted,

the evidentiary rulings below prevented the defense from

putting before the jury the nature of the advice the defendants

received.

Santiago further testified that of the municipal

employees who received letter adjusting their status, “nearly

half of them, their salaries have increased, others have gone

down.” He also testified that he retained several members of

the opposing party in trust positions after he took office and

that he took only one of his people into the mayor’s office with

him. According to Santiago, “the rest of them, | honored their

position and I allowed them to remain, despite the fact that it’s

a high confidentiality position. ”

33a

Santiago was asked on cross-examination whether he

knew the party of the employees who lost permanent status and

became transitory employees by virtue of declaring the 1997

plan void. He replied that “[t]here are members of all three

parties.” When pressed for an estimated percentage break-

down among the parties, Santiago could not provide one, but

he agreed that there were more NPP members than PDP

members in that group. When counsel asked whether it is “a

true fact that, more or less, form 75 to 80 percent of the

employees of Toa Baja are members of the New Progressive

Party,” Santiago agreed that “[t]hat might be.” Acccrding to

Santiago’s uncontradicted testimony, he had not appointed

anyone to a career position since he took office.

D. Topical Summary of the Evidence

On topics important to establishing a political

discrimination claim, the evidence that we have reviewed

through the Rule 50 lens establishes the following propositions.

1. Personnel Actions

Defendants rescinded the 1997 plan and reassigned

several hundred employees, including Vazquez, in accordance

with the 1991 plan. Sanchez testified that she ein Santiago

to seek advice before deciding to rescind the 1997 plan.

Santiago’s uncontradicted testimony was that he did indeed

seek such advice. As we have described, the nature of that

advice was kept form the jury at trial. |

Sanchez testified that the people whom she knew who

were affected by the reclassification plan were NPP members.

Rivera also testified that affected employees belonged to the

NPP. However, the kind of personnel review undertaken by

defendants necessarily would impact more NPP members

because of the long dominance of the NPP over municipal

affairs. Indeed, Santiago agreed with plaintiff's counsel that

approximately seventy-five to eighty percent of the employees

of Toa Baja are members of the NPP, and Rivera herself

explained, ‘because the employees who were given

semaines in °97 [when the NPP had been in control of the

city government for over twenty years], well, those were the

35a

employees who would be subjected to the application of the

law in which their permanence would be taken away form

them.”

Santiago’s uncontradicted testimony was that nearly

half of the employees affected by the ouebisied changes

actually received higher salaries. Plaintiff neither rebutted this

testimony nor offefed any evidence that there was a disparity —

by political affiliation or otherwise — between those who

received higher salaries and those who received lower salaries

14

under the new reclassifications.

2. Treatment of Vazquez

Vazquez lacked sufficient work to occupy her time

from January through August 2001 (less the two months when

she was on leave). When Vazquez sent a letter to her

immediate supervisor, Martinez, detailing her lack of work

projects during this time, Martinez began assigning Vazquez

"* As we recently explained in Sanchez-Lopez, while “there is simply

not a claim of ‘disparate impact’ available under this First

Amendment doctrine” of political retaliation, evidence that “all of the

employees affected by defendants’ actions were NPP members”

might be considered evidence that defendants harbored

discriminatory animus. Sanchez-Lopez, 375 F. 3d at 140.

36a

Ne aan

adequate work. Additionally, Vazquez was demoted from

Executive Director II to Office Worker/Typist I effective

February 1, 2002. A _ hearing officer found that the

reassignment was valid because Vazquez previously had been

illegally hired and promoted.

Sanchez and Cérdova testified that Vazquez met the

minimum qualifications for each of the positions to which she

had been appointed. However, Sanchez admitted that the

municipality generally did not follow the procedural

requirements for personnel actions. Plaintiff never offered any

clear evidence or testimony that her appointments either met

these procedural requirements or were eligible for an exception

to any of the requirements. In fact, Vazquez admitted that she

was promoted without going through the regular competitive

process or serving the normally required probationary period.

Furthermore, Delgado’s uncontradicted testimony was that

there was no material in Vazquez’s personnel file to show

either that the procedural requirements were followed or that

37a

Vazquez’s appointments were eligible for an exception to the

usual procedural requirements.

Taking the evidence in the light most favorable to the

plaintiff, Vazquez arguably established that she did not need to

comply with the normal appointment procedures when she

assumed the position of Executive Director II because that

position was simply a reclassification of the position of

Assistant Director. However, Vazquez’s demotion to Office

Worker/Typist I was premised on the alleged illegality of her

appointment to Secretary III, not on any ineligibility to be ©

reassigned form Assistant Director to Executive Director II.

3. Statements of Discriminatory Intent

At the May 22 meeting, where fifteen to eighteen NPP

employees received letters adjusting their positions within the

municipality, the Mayor stated that the “Popular Democratic

Party had won. That they had to adopt actions with employees,

that they had to clean house and that they were going to deliver

letters to us in which there would be changes in our salaries or

our permanence.... ' Plaintiff presented evidence of one other

statement evincing discriminatory intent or animus: Martinez,

plaintiff's direct supervisor and a non-party in this case, said at

a gathering something like “[w]ell, hopefully they will kill all

the NPPers.” |

4. Rivera’s Perception of Political Retaliation

. Rivera, a member of the PDP, offered what is best

characterized as lay opinion testimony: she thought political

retaliation was occurring in her department under Martinez,

based on her observation that Vazquez and one other employee

were not fully occupied with work, at least for some period of

time. Rivera testified that “if I say anything or understood that

there would be any persecution, that I would rather resign and

that is what I did.” Additionally, Rivera said at one point that

after having lunch with Delgado and Martinez, she saw “that

they thought differently than the way I thought.’ There is also

an ambiguous reference to “remarks that might be out of order”

"® Again, we note that although this evidence is contradicted by

Santiago's testimony, we take it as true for purposes of the Rule 50

analysis.

39a

in Rivera’s testimony. Rivera also testified that her

relationship with Martinez soured over Rivera’s perception of

political persecution in the workplace.

However, Rivera also testified that she and Delgado did

not talk about politics, and that the only political comment

Delgado made to her was one that “had to do with the process

when letters were to be delivered that there would be equality—

let’s say that the salaries were going to be lowered or if their

permanency was going to be removed, well, then it would be

the same for everyone notwithstanding the person [or

regardless of the pressure] involved.” This testimony by

plaintiff's own witnesses establishes that Delgado indicated

that the reclassifications would be done with “equality” and

that changes inn permanence or salaries would be implemented

regardless of the people affected 9or the pressure involved).

This testimony — elicited by plaintiff's counsel during her case-

in-chief — supports defendants’ claims that they implemented

the reclassifications in a neutral manner.

E. Analysis of the Evidence

40a

This evidence is not sufficient to show that plaintiffs

political affiliation was a substantial or motivating

factor in defendants’ decision to reclassify her under the

1991 plan. In fact, the evidence presented at trial does

not create a reasonable inference that defendants were

even aware of Vazquez’s political affiliation at the time

her personnel file was reviewed and she was reassigned

according to the 1991 plan. We encountered a factually

similar situation in Gonzales-De Blasini v. Family

Dept., 377 F. 3d 81 (1* Cir. 2004). ‘There, we affirmed

dismissal of a plaintiffs political discrimination claim

because plaintiff

adduced no evidence that the defendants knew she was

a member of the NPP. She attempts to bolster her

political discrimination cause of action by alleging

that [defendants] must have been aware of her

political affiliation because she was a well-known

supporter of the NPP in the community, had held a

previous trust position under the NPP administration,

and was allegedly demoted shortly after the PDP

assumed power. [Plaintiff] points to [defendant’s]

statement that she wanted [plaintiff's] office and -

position to go to an employee of her trust as indication

of a causal link between her political beliefs and the

change in her employment conditions.

41a

Id. At 85-86. In Gonzalez-De Blasini, we held that

such evidence was “insufficient to show that political

affiliation was a substantial factor in the challenged

employment action.” Id. At 86.

| Vazquez has shown no more here. The fact that

Santiago met Vazquez during routine campaign

canvassing, and that Vazquez then identified herself as

a ember of the NPP and an employee of Mayor Soto’s,

does not lead to a reasonable inference that Santiago or

Delgado knew that she was a member of the NPP when

they conducted their review of all personnel files for

irregularities or when they met with her on May 22 as

part of a group. Nor does Vazquez’s testimony about

her NPP activities or positions held under the previous

administration support such an inference. Toa Baja is a

city with almost 100,000 residents, and the city

employed approximately 1,300 people. While Vazquez

did occupy a trust position for about twenty months

under Mayor Soto, she provided no evidence that her

42a

trust position was of such a high nature that defendants

necessarily would have known who she was and her

party affiliation. In fact, when asked on direct

examination whether Santiago recognized her as an

NPP member at the May 22 meeting, five or six months

after Santiago introduced himself while campaigning,

Vazquez did not answer in the affirmative. Instead, she

stated only that “[h]e shook hands with me and greeted

me.”

Even if a jury could reasonably infer that

defendants knew that plaintiff was a member of the

NPP, that still is insufficient. Proving that her political

affiliation was a substantial or motivating factor in the

adverse decision requires more than “([mJerely

juxtaposing a protected characteristic—someone else’s

politics—with the fact that the plaintiff was treated

unfairly.” Correa-Martinez v. Arrillaga-Beléndez, 903

F. 2d 49, 58 (1* Cir. 1990). Indeed, the evidence falls

short of even showing that Vazquez was treated

43a

“unfairly.” Regardless of whether she met the

minimum educational and experiential qualifications, a

disputed point on which we take Vazquez’s version of

events, the undisputed testimony establishes that

Vazquez did not meet the statutory procedural

requirements — such as applying for and being

interviewed for an advertised job in competition with

other candidates, or serving the required probationary

period — for the Secretary III and Assistant Director

appointments. Plaintiff's own witness, Sanchez,

testified that the municipality simply did not hire

personnel in accordance with these various provisions.

The mayor’s alleged comment about “cleaning

house” also is not sufficient to sustain plaintiffs

burden. In Figueroa-Serrano, a plaintiff testified that

the mayor said that “he was going to clean City Hall of

most NPP employees...” Figueroa-Serrano, 221 F. 3d

at 4.'° In granting defendants’ summary judgment ;

motion, we observed that the plaintiffs relied on

“generalized assertions of the defendants’ affiliation

with the rival political party; and the enactment of a

personnel policy change after the elections. Id. We

then characterized this evidence as a “meager showing”

and held that it was ‘patently insufficient to generate a

genuine issue of material fact on a causal connection

between the political affiliation of the plaintiffs and the

adverse employment actions alleged.” Id.

Plaintiff has done no better here. Indeed,

Vazquez’s testimony regarding Santiago’s “cleaning

house” comment is even less forceful than the

plaintiff's testimony in Figueroa-Serrano. There, the

mayor allegedly said specifically that he intended to get

rid of NPP members. Here, Vazquez did not even

"6 In Figueroa-Serrano, we found that plaintiffs failed to proffer

sufficient evidence of political discrimination to defeat a summary

judgment motion. Because the “standard for granting summary

judgment ‘mirrors’ the standard for judgment as a matter of law, such

that the ‘inquiry under each is the same,’ “ Reeves v. Sanderson

45a

allege that kind of direct statement from Santiago. In

contrast to Vazquez’s case, we have upheld a district

court’s denial of motion for a judgment notwithstanding

the verdict when the plaintiffs presented “ample

evidence that [the defendant mayor] (1) knew plaintiffs

were affiliated with NPP, (2) gave instructions to ‘chop

off the heads of the NPP members, ‘ and (4) told

municipal employees to switch to the PDP.” Hiraldo-

Cancel v. Aponte, 925 F. 2d 10, 12 (1* Cir. 1991).

Vazqeuz has produced no comparable evidence here.

Importantly, Vazquez also offered no evidence

that PDP memers were hired to replace the reassigned

NPP members. In fact, Santiago’s uncontradicted

testimony was that he had not appointed anyone to a

career position since he took office. Vazquez also

offered no evidence that the reassignments were

effectuated in a discriminatory of differential manner,

or that they were targeted at NPP employees.

Plumbing Prod. Inc., 530 U.S. 133, 150 (2000) Scitation omitted), we

46a

Plaintiff's own witness, Rivera, stated that Delgado told

her that if the result of reassigning people according to

the 1991 plan was that it would be done with “equality”

and if ‘the salaries were going to be lowered or if their

permanency was going to be removed, well, then it

would be the same for everyone notwithstanding the

person [or regardless of the pressure] involved.” The

defendants presented uncontradicted testimony that

they were reviewing every personnel file in the

municipality and that members of all parties were

affected by the reassignments. These facts distinguish

this case from the scenario presented in Acevedo-

Garcia v. Monroig, 351 F. 3d 547 (1 Cir. 2003).

There, “[pjlaintiffs... produced evidence supporting

_ their theory that the termination plan was implemented

in a way designed to target members of the NPP while

sparing most members of the PDP. Further, the pry

heard evidence that the vast majority of people hired

find our reasoning in Figueroa-Serrano instructive here.

47a

with extra —municipal funds belonged to the PDP.” Id.

at 565.66. Vazquez has made no such showing.

At first blush, the actions and statements by

Martinez, Vazquez’s supervisor, are troublesome.

Martinez failed to provide adequate work to keep

Vazquez occupied for five months, and Martinez also

allegedly stated that “[wJell, hopefully they will kill all

the NPPers.” However, Vazquez makes no showing as

to why defendants should be held liable for Martinez’s

actions.'’ Vazquez admitted that she informed neither

Delgado nor Santiago about her lack of work, and she

admitted that Martinez gave her sufficient work after

Vazquez’s memo of August 24, 2001. Vazquez offered

no evidence that Martinez’s actions reflected a

municipal “custom or practice [that] is so well settled

and widespread that the policy-making officials of the

municipality can be said to have either actual or

constructive knowledge of it yet did nothing to end the

48a

practice.” Silva v. Worden, 130 F. 3d 26, 31 (1* Cir.

1997) (quotations and citations omitted) (cited in

Acevedo-Garcia v. Monroig, 30 F. Supp. 2d 141, 152

(D. P.R. 1998). Unlike in Acevedo-Garcia, where

discriminating supervisors “claimed to be acting on the

orders of ‘higher up’ officials within the Municipality,

including [the defendants],” id., Vazquez has produced

no such evidence here. Furthermore, Martinez’s

alleged comment is akin to the kind of isolated stray

remark by a nondecisionmaker that we have held has

limited probative value in other contexts. See, e.q.,

Gonzalez v. El Dia, Inc., 304 F. 3d 63 91* Cir. 2002)

(explaining that in the context of an age discrimination

claim, “’stray workplace remarks,’ as well as

statements made either by nondecisionmakers or by

decisionmakers not involved in the decisional process,

normally are insufficient, standing alone, to establish

either pretext or the requisite discriminatory animus”).

'’ For purposes of our analysis here, we will assume that Martinez's

49a

While Martinez was the decisionmaker regarding

Vazquez’s workload, plaintiff offered no testimony that

Martinez was involved in any way in the decision to

rescind the 1997 plan as null and void or in the review

of Vazquez’s personnel file and reassignment.

The plaintiff presented no evidence that

Santiago or Delgado created an atmosphere of

discrimination or a policy of leaving NPP employees

without work, and she made no claim that Martinez was

implementing any such policy during the months that

Vazquez had insufficient work. In fact, plaintiff's

witness Rivera testified that the fourteen NPP

employees she supervised were always provided with

adequate work. In sum, whatever problems Vazquez

may iit had with her immediate supervisor, Vazquez

presented no evidence that any comment or action by

Martinez is fairly attributable to the defendants in this

case, and, on these facts, Martinez’s statement is not

actions actually amount to political retaliation.

50a

probative of whether defendants acted with

discriminatory animus.

In short, plaintiff failed to show that her

political affiliation was a substantial or motivating

factor in her demotion or alleged constructive

discharge. Although plaintiff's allegations of “political

discrimination can ue built on circumstantial evidence

of constitutionally suspect motivations” for the adverse

employment action, Vazquez has offered only a mere

scintilla of evidence of political discrimination. Her

evidence does not amount to “the specific facts

necessary to take the asserted claim out of the realm of

speculative, general allegations.” Kauffman v. P.R.

Tel. Co., 841 F. 2d 1169, 1173 n. 5 (1 Cir. 1988)

Il.

We do not set aside jury verdicts lightly. Nevertheless,

when plaintiff fails to adduce sufficient evidence for a jury to

reasonably infer that plaintiff's political affiliation was a

substantial or motivating factor in an adverse employment

51a

action, we must do so. For the forgoing reasons, we vacate the

judgment and order the entry of judgment for defendants. The

parties shall bear their own costs.

So ordered.

52a