Torres-Santiago v. Municipality of Adjuntas , 693 F.3d 230 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-2248
MYRTA TORRES-SANTIAGO; MIGDALIA RODRÍGUEZ-RIVERA;
JOSÉ RIVERA-DEL VALLE,
Plaintiffs, Appellants,
v.
MUNICIPALITY OF ADJUNTAS; JAIME H. BARLUCEA-MALDONADO, in his
official capacity as Mayor of the Municipality of Adjuntas,
Defendants, Appellees,
WALVER BÁEZ-LUGO, in his personal and official capacity; DANIEL
PORTELA, in his personal and official capacity; HERNÁN CARABALLO,
in his personal and official capacity; CLARIBEL PAGÁN, in her
personal and official capacity; JOHN DOE; RICHARD DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
José Martinez Custodio for appellants.
Luis R. Pérez Giusti, with whom Adsuar Muñiz Goyco Seda &
Pérez-Ochoa, P.S.C. was on brief, for appellees.
September 7, 2012
LIPEZ, Circuit Judge. This appeal involves an award of
$59,787.50 in attorney's fees against unsuccessful plaintiffs in a
civil rights action. Plaintiffs Myrta Torres-Santiago, Migdalia
Rodríguez-Rivera, and José Rivera-del Valle argue that their
lawsuit was not so frivolous or unreasonable as to justify an award
of fees to the defendants. We agree, except for Torres's inferior
working conditions claim against Walver Báez-Lugo and Rivera's
claims against Hernán Caraballo. There was no reasonable basis for
those claims. Hence, we vacate the fee award and remand for
further proceedings relating to any attorney's fees incurred by the
Municipality of Adjuntas in relation to those claims only.
I.
Plaintiffs brought suit pursuant to 42 U.S.C. § 1983 and
Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit 31,
§ 5141, alleging that the Municipality of Adjuntas (the
"municipality") and its Mayor, Jaime H. Barlucea-Maldonado (the
"Mayor"), engaged in unlawful political discrimination in violation
of the U.S. Constitution and the laws and Constitution of the
Commonwealth of Puerto Rico. In making these claims, the complaint
also named as defendants the plaintiffs' direct supervisors, Walver
Báez-Lugo, Daniel Portela, and Hernán Caraballo (together, the
"supervisory defendants") in their individual capacities, as well
as the Mayor in his individual capacity. The complaint included
due process and equal protection claims pursuant to the Fifth and
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Fourteenth Amendments to the Constitution. The plaintiffs sought
compensatory and punitive damages and declaratory and injunctive
relief.
The Mayor and supervisory defendants successfully moved,
in their individual capacities, to dismiss plaintiffs' due process
and equal protection claims. The municipality, the Mayor in his
official and personal capacities, and the supervisory defendants in
their personal capacities then filed a motion for summary judgment
on the remaining claims. The motion was granted in favor of the
supervisory defendants and denied as to the municipality and Mayor.
On the eve of trial - more than a year after the plaintiffs first
submitted a settlement demand - the municipality and Mayor made a
settlement offer and engaged in negotiations.1 Settlement
negotiations were unsuccessful, and the parties proceeded to trial
on January 19, 2010. On January 27, 2010, the jury returned a
verdict in favor of the municipality and Mayor.
On March 17, 2010, the municipality filed a motion for
$63,687.50 in attorney's fees pursuant to 42 U.S.C. § 1988(b),
arguing that it was entitled to fees because the "[p]laintiffs
engaged in a totally unfounded, frivolous and reiterated [sic]
1
At oral argument, plaintiffs represented that they received
the settlement offer from the municipality and Mayor on January 19,
2010, the first day of trial. The municipality and Mayor stated
that they presented the offer approximately one week before the
start of trial, but the court only became aware of and involved in
the settlement negotiations on January 19. The difference is
immaterial to our analysis.
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attempt to charge [d]efendants with political discrimination
allegations." The supervisory defendants did not seek attorney's
fees.
On September 7, 2010, the district court granted the
motion in part. In a written decision, the district court began
its analysis by listing "some important factors" that the Eleventh
Circuit has identified for consideration when making the case-by-
case determination about whether a plaintiff's claim is frivolous:
"(1) whether the plaintiff established a prima facie case; (2)
whether the defendant offered to settle; and (3) whether the trial
court dismissed the case prior to trial or held a full-blown trial
on the merits." (quoting Sullivan v. Sch. Bd., 773 F.2d 1182, 1189
(11th Cir. 1985)). Applying this law, the district court wrote the
following:
[The municipality and Mayor] allege that the
court should award them attorney['s] fees
because Plaintiffs were aware that their
claims against [Báez, Portela, and Caraballo]
lacked merit. Yet, the Plaintiffs pursued
their actions against these [supervisory]
co-defendants[,] thus multiplying the costs of
litigation. The Court agrees. After
reviewing the evidence submitted at the motion
for summary judgment stage, the Court found
that the Plaintiffs were unable to establish a
prima facie case against [the supervisory
defendants] because Báez belonged to the same
political party as Plaintiffs and because
Plaintiffs were unable to establish any
involvement on the part of Portela and/or
Caraballo with respect to the alleged adverse
employment actions complained of.
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With regard to the municipality and Mayor, the district court
recognized that the Sullivan factors indicated that the plaintiffs'
claims were not frivolous or unreasonable:
Applying the Sullivan factors enumerated
above, we would be forced to conclude that the
Plaintiffs' action against Barlucea and the
Municipality [was] not frivolous inasmuch as
they were able to establish a prima facie case
at the summary judgment stage, the
[municipality and Mayor] offered settlement
and a full-blown trial on the merits was seen
as to these two co-defendants.
Nevertheless, the court noted contrary authority that supported a
different outcome:
"[C]ases that are ultimately viewed as
frivolous may well survive motions to dismiss
under a system of notice pleading that does
not require factual detail and even motions
for summary judgment in which the evidence may
be presented in sketchy fashion and
credibility may not be taken into account."
Greenberg v. Hilton Intern. Co., 870 F.2d 926,
940 (2d Cir. 1989). The Court first notes
that the only reasons the Plaintiffs survived
summary judgment were that, pursuant to the
applicable standard, the Court could not make
credibility determinations and the evidence
had to be examined in the light most favorable
to the Plaintiffs. The Plaintiffs must have
known that they would not be afforded such
indulgence at trial and to the extent they
refused to accept a sound settlement offer
prior to the commencement of the jury trial,
the Court finds that the Plaintiffs’ claim
became unreasonable thereon.
The court provided no further rationale for its decision to award
fees.
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Read one way, the district court's language suggests that
the plaintiffs' action only became unreasonable after they refused
to settle the case on the eve of trial. If that were the district
court's view, the only relevant litigation costs of the
municipality would have been those related to case preparation from
the time of the rejection of the settlement demand and the cost of
trial. But the district court awarded the municipality $59,787.50
in attorney's fees, the cost it determined to be reasonable for the
entire course of the litigation. Hence, we review the attorney's
fee award as one that does, in fact, cover the entire course of
litigation.
II.
We review fee awards for abuse of discretion.
Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 236 (1st Cir. 2010).
"[T]hus we will not lightly substitute our judgment for that of the
district court, reversing only 'if we are left with a definite and
firm conviction that the court below committed a clear error of
judgment.'" Id. (quoting Tang v. State of R.I., Dep't of Elderly
Affairs, 163 F.3d 7, 13 (1st Cir. 1998) (internal quotation mark
omitted)).
A. Legal Framework
Parties to civil litigation are generally responsible for
their own attorney's fees under the so-called "American Rule."
However, "[f]or private actions brought under 42 U.S.C. § 1983 and
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other specified measures designed to secure civil rights, Congress
established an exception to the 'American Rule.'" Sole v. Wyner,
551 U.S. 74, 77 (2007). That exception operates to facilitate
"effective access to the judicial process," Hensley v. Eckerhart,
461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1
(1976)) (internal quotation marks omitted), by granting federal
district courts the discretion to "allow the prevailing party . . .
a reasonable attorney's fee as part of the costs," 42 U.S.C.
§ 1988(b).
It is well established that "an award of fees in favor of
a prevailing plaintiff in a civil rights suit is 'the rule, whereas
fee-shifting in favor of a prevailing defendant is the exception.'"
Lamboy-Ortiz, 630 F.3d at 236 (quoting Casa Marie Hogar Geriatrico,
Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994)). Indeed,
a "prevailing defendant may be awarded fees only 'upon a finding
that the plaintiff's action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.'" Id.(quoting Rosselló-González v. Acevedo-Vilá, 483 F.3d 1, 6 (1st Cir.
2007)). This standard is, by design, a difficult one to meet.
"Congress granted parties the prospect of a reasonable attorney's
fee under 42 U.S.C. § 1988 to encourage the prosecution of
legitimate civil rights claims; to award fees to prevailing
defendants when the history of a case does not justify it undercuts
that goal and chills civil rights litigation." Id.-7-
When determining whether a plaintiff's claims were
"frivolous, unreasonable, or without foundation," or whether "the
plaintiff continued to litigate after [the claims] clearly became
so," Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 422
(1978), the court should not evaluate the reasonableness of the
suit based on its ultimate failure:
[I]t is important that a district court resist
the understandable temptation to engage in
post hoc reasoning by concluding that, because
a plaintiff did not ultimately prevail, his
action must have been unreasonable or without
foundation. This kind of hindsight logic
could discourage all but the most airtight
claims, for seldom can a prospective plaintiff
be sure of ultimate success. No matter how
honest one's belief that he has been the
victim of discrimination, no matter how
meritorious one's claim may appear at the
outset, the course of litigation is rarely
predictable. Decisive facts may not emerge
until discovery or trial. The law may change
or clarify in the midst of litigation.
Id. at 421-22. We have stated that such "hindsight logic" may be
avoided by focusing on the reasonableness of a plaintiff's claim at
the time of filing, Lamboy-Ortiz, 630 F.3d at 237, keeping in mind
that "[e]ven when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely reasonable
ground for bringing suit," Christiansburg Garment, 434 U.S. at 422.
When reviewing the district court's decision to award
fees, we too must assess the reasonableness of the suit at the time
the complaint was filed. To do so, we must inevitably rely on the
record created after the complaint was filed. Although
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determinations about whether to award attorney's fees are generally
focused on the claims as they existed at the time the complaint was
filed, "fees also may be awarded on rare occasions where 'the
plaintiff continued to litigate after [the claims] clearly became
[frivolous, unreasonable, or groundless].'" Lamboy-Ortiz, 630 F.3d
at 241 (alteration in original) (quoting Christiansburg Garment,
434 U.S. at 422).
B. Details of Complaint
We recite the allegations of the complaint in some detail
because they are so important to the legal analysis that follows.
In the complaint, the plaintiffs stated that they are affiliated
with Puerto Rico's Popular Democratic Party ("PDP") and alleged
that the Mayor and supervisory defendants are affiliated with the
New Progressive Party ("NPP"). The plaintiffs claimed that shortly
after Barlucea, who is affiliated with the NPP, replaced the
previous mayor, who was affiliated with the PDP, they were
transferred from their jobs because of their political beliefs and
affiliation with the PDP. The plaintiffs claimed that, as a result
of the transfers, they were stripped by the Mayor and supervisory
defendants of significant responsibilities and forced to endure
inferior and unreasonable working conditions in jobs unrelated to
their previous positions. The allegations specific to each
plaintiff's employment and transfer are as follows:
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1. Myrta Torres-Santiago
Torres was employed by the municipality as an Assistant
Accountant in the Finance Department until the challenged transfer.
In the Finance Department, Torres kept financial records, verified
order statuses, and prepared buying orders. After Mayor Barlucea
replaced the previous mayor, Torres received a letter from his
office, dated January 31, 2005, stating that she was being
transferred to the Department of Recycling and Environmental
Control ("Recycling Department"). Torres alleged that Báez, her
Recycling Department supervisor, approved her transfer and, on
February 4, 2005, assigned her duties that were inferior to her
duties in the Finance Department. Torres also claimed that in the
Recycling Department, she had "inferior and unreasonable working
conditions," which were created by the Mayor and Báez.
2. Migdalia Rodríguez-Rivera
Rodríguez had been employed by the municipality since
2002, and was Manager of Municipal Facilities at the time of the
challenged transfer. In that position, Rodríguez prepared an
activity calendar for the facilities under her supervision,
supervised municipal activities, and ordered materials and
equipment. Mayor Barlucea transferred Rodríguez to the
municipality's Coliseum Rafael Llull Perez without assigning her
any duties. At the Coliseum, Rodríguez worked under Portela, who -
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with the Mayor - created for Rodríguez inferior and unreasonable
working conditions.
3. José Rivera-del Valle
Prior to the challenged transfer, Rivera was employed by
the municipality as an Assistant Accountant in the Finance
Department. There, Rivera registered orders, contracts, and
special funds; verified forms; and maintained daily inspections of
payments, orders, and cancelled checks. Mayor Barlucea transferred
Rivera to the Municipal Cemetery Luz del Gigante to work under
Caraballo. Barlucea did not assign Rivera duties at the time of
the transfer. Rivera alleged that, at the cemetery, he had
inferior and unreasonable working conditions that had been created
by the Mayor and Caraballo.
C. Reasonableness at the Time of Filing
Plaintiffs claim that their transfers, diminutions in
duties, and unreasonable working conditions violated the First
Amendment, which protects public employees who hold nonpolicymaking
positions from adverse personnel decisions rooted in partisan
political concerns. See, e.g., Barry v. Moran, 661 F.3d 696, 703
(1st Cir. 2011). Essentially, plaintiffs argue that Barlucea used
his power as Mayor to move three PDP political activists out of
offices in City Hall and deprive them of almost all meaningful
responsibilities, and that the supervisory defendants also
discriminated by refusing to assign them duties in their new
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positions and providing inferior and unreasonable workplace
conditions. To establish a prima facie case of political
discrimination under the First Amendment, a plaintiff must
establish four elements: "(1) that the plaintiff and defendant have
opposing political affiliations, (2) that the defendant is aware of
the plaintiff's affiliation, (3) that an adverse employment action
occurred, and (4) that political affiliation was a substantial or
motivating factor for the adverse employment action."
Méndez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011) (quoting
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011))
(internal quotation marks omitted). In order to determine the
reasonableness of the plaintiffs' claims, we address the factual
support for each element on the basis of the summary judgment
record.2
2
In the analysis that follows, we rely on the summary
judgment record, including exhibits submitted by the parties with
their motions for and opposing summary judgment. The district
court excluded from consideration "some of the materials submitted
by both [parties]" because of the "lack [of] an authenticating
affidavit" or the "fail[ure] to indicate whether they stem from
discovery materials on file." Given the way the court described
its exclusions, we cannot tell which rejected pieces of evidence we
may have included in our analysis. However, our inability to make
that determination is not important. We consider this evidence
only for its relevance to the reasonableness of the plaintiffs'
lawsuit at the time it was filed. See Lamboy-Ortiz, 630 F.3d at
238. We do not suggest that the excluded evidence developed
through discovery should have been considered at summary judgment.
See id. We do not rely on trial evidence because no transcripts
from the trial were prepared. Plaintiffs did not appeal the
adverse trial determinations. In defending the reasonableness of
their claims in this appeal, plaintiffs rely on the summary
judgment record.
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1. Opposing Political Affiliations
As the district court noted in its summary judgment
decision, it was uncontested that all of the plaintiffs are
affiliated with the PDP and that Mayor Barlucea and Rivera's
supervisor, Caraballo, are affiliated with the NPP. Rodríguez's
supervisor, Portela, stated in his deposition that although he had
been affiliated with the PDP in the past, he supported NPP
candidate Barlucea for Mayor and was given a trust position in
Barlucea's cabinet. Similarly, Torres's supervisor, Báez, stated
in his deposition that although he was affiliated with the PDP in
2000, he did not participate in PDP election activities in 2004
because he had issues with the PDP mayor who preceded Barlucea.
Báez said that he was appointed by Barlucea in 2005 to a trust
position in Barlucea's cabinet. With regard to Portela and Báez,
the plaintiffs could have reasonably inferred from their
supervisory trust positions in an NPP administration that their
supervisors were members of - or were at least now affiliated with
- the opposing party. See Grajales v. P.R. Ports Auth., 682 F.3d
40, 47-48 (1st Cir. 2012) (stating that it was plausible to infer
defendants' knowledge of plaintiff's political affiliation where
"the plaintiff . . . was named to a prestigious trust position by
a PDP hierarch under a PDP administration"). Given the information
known to the plaintiffs at the time they filed their lawsuit, there
was a reasonable basis for the plaintiffs' belief that they could
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successfully satisfy the opposing political affiliation element of
their claim.
2. Barlucea's and the Supervisory Defendants'
Awareness of Plaintiffs' Political Affiliations
In its summary judgment order, the district court
summarized the evidence that provided a reasonable basis for the
plaintiffs' belief that Barlucea and the supervisory defendants
were aware of the plaintiffs' political affiliations:
It stems from the record that all three
Plaintiffs active[ly] and publicly campaigned
in favor of the PDP and were polling unit
officers or members of electoral colleges.
Specifically, it is plaintiff Torres'[s]
contention that Barlucea knows her political
affiliation because he voted in the electoral
college where she worked as a poll watcher.
Plaintiff Rodríguez asserts that she and
codefendant Portela worked together in the
past in political campaigns, and thus, he is
aware of her political affiliation. As to
co-defendant Barlucea, Rodríguez claims that
he knows her political affiliation because of
her active campaigning, her work as a poll
watcher, and because Adjuntas is a small
close-knit community. Plaintiff Rivera
purports that Barlucea knows his political
affiliation because they used to be neighbors
and talked openly about politics. As to
co-defendant Caraballo, Rivera asserts that
they saw each other at the local state
election commission office where they worked
for their respective parties during elections.
Moreover, in their
opposition, Plaintiffs proffered, by means of
deposition testimony, that their political
affiliations were well-known within the
Municipality of Adjuntas and its municipal
employees. Plaintiffs’ evidence portrays a
relatively small community where most everyone
knew who everyone else was and political
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affiliations were common knowledge. In light
of all of the foregoing, this Court finds that
a reasonable jury could conclude that
Defendants knew of Plaintiffs’ political
affiliations.
We agree with the district court that based on the
information known to the plaintiffs at the time they filed their
lawsuit, the plaintiffs had a reasonable basis for believing that
they could satisfy the awareness element of their claim.
3. Adverse Employment Actions
To satisfy the third prong of the political
discrimination test, a plaintiff must show that an adverse
employment action took place. Actions short of discharge,
including a substantial alteration in responsibilities, may satisfy
the adverse employment action element. Morales-Vallellanes v.
Potter, 605 F.3d 27, 36 (1st Cir. 2010); see also Welch v. Ciampa,
542 F.3d 927, 936 (1st Cir. 2008).
The complaint alleges that "the Municipality of Adjuntas
. . . ordered the illegal transfer[s]" and the supervisory
defendants "approved the transfer to their departments and assigned
duties to the plaintiffs which were inferior to their original
duties." It is not contested that Mayor Barlucea ordered the
transfers. Plaintiffs presented no evidence that the supervisory
defendants had any part in those transfer decisions. Instead,
plaintiffs allege that the supervisory defendants, subsequent to
those transfers, discriminated against them by subjecting them to
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"inferior and unreasonable working conditions," and by implementing
policies which resulted in the assignment of inferior duties to the
plaintiffs or no work at all.
We first address the transfers ordered by the Mayor and
the claims that those transfers were actually demotions to jobs
with little or no responsibilities. We then examine the
allegations against the individual supervisory defendants.
a. Barlucea's Transfer Orders
After being transferred by the Mayor, each of the
plaintiffs performed fewer and more menial duties. That pattern is
unmistakable.
1. Myrta Torres-Santiago
Torres claims that there was no accounting work in the
Recycling Department and, as a result, she performed no duties
pertaining to what she describes as her official function. While
many of the duties nominally assigned to Torres after her transfer
to the Recycling Department were similar to those that she had
performed in the Finance Office, her supervisor, Báez, acknowledged
in his deposition that Torres did not perform those duties because
they continued to be done by Finance Office employees. Torres also
stated that, on numerous occasions, the Mayor's assistant called
the Recycling Department and said that, per the Mayor's orders,
Torres could not leave the office to get breakfast or to attend
municipal events.
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2. Migdalia Rodríguez-Rivera
Rodríguez stated that during a meeting in January 2005,
Barlucea asked Rodríguez what her title was. After hearing her
answer, Barlucea told Rodríguez that she could not remain in the
Office of Citizens' Affairs. After her transfer to the Coliseum,
Rodríguez stated that she had no work and voluntarily resorted to
collecting trash. According to Portela, Barlucea told him that
Portela would receive Rodríguez's duties list from Claribel Pagán,3
the Personnel Director in the municipality's Human Resources
Department. Portela did not timely receive the list. In a letter
dated February 11, 2005, Rodríguez lamented to Barlucea that she
had yet to be assigned any duties. Portela stated that he
eventually went to Pagán around March 16 and secured Rodríguez's
duties list. After that date, Portela stated that Rodríguez
"coordinat[ed] and supervis[ed] the conservation and maintenance
activities of the Coliseum," including "coordinating the pick up of
solid waste." Barlucea acknowledged that prior to Rodríguez's
transfer to the Coliseum, he had visited the Coliseum and was aware
that there was no desk or office there.
3
Pagán was not a party to this action, although she was
listed on the docket as a defendant. The district court denied
plaintiffs' motion to amend the complaint to add her as a
defendant.
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3. José Rivera-del Valle
Rivera stated that his responsibilities were diminished
significantly after Barlucea's transfer order. Despite the
numerous tasks described in Rivera's duties memorandum, he and his
supervisor Caraballo both stated in their depositions that the only
duty Rivera actually performed at the cemetery was keeping a ledger
of the burials.
b. Supervisory Defendants' Actions
We agree with the district court that the mere fact that
the supervisory defendants "approved" the plaintiffs' transfers by
accepting the placements is insufficient to show that the
supervisory defendants were involved in the transfer decision-
making process. A defendant may not be held liable for political
discrimination merely because the defendant supervises the
department to which a plaintiff alleging political discrimination
is transferred. See Ayala-Rodríguez v. Rullán, 511 F.3d 232, 236
(1st Cir. 2007). Rather, "only persons who were directly involved
in the wrongdoing may be held liable." Martinez-Vélez v.
Rey-Hernández, 506 F.3d 32, 41 (1st Cir. 2007) (quoting Kostka v.
Hogg, 560 F.2d 37, 39 (1st Cir. 1977)).
Plaintiffs' claims against the supervisory defendants go
beyond the initial transfer. They allege that the supervisory
defendants abused their positions of authority by creating inferior
and unreasonable working conditions and failing to assign the
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plaintiffs proper duties. As such, there are allegations of
continuing post-transfer adverse employment actions at the hands of
the supervisory defendants.
1. Torres and Báez
Báez stated in his deposition that he received a call
from Pagán telling him that Torres was going to be sent to the
Recycling Department. Báez stated that Pagán gave him the duties
list, which he signed and gave to Torres, telling Torres that Pagán
"gave me the assignments and duties that you have to perform."
Torres stated in her deposition that Báez gave her the list
"knowing well that none of those functions would be carried out [in
the Recycling Department]."
Torres sent a letter to Mayor Barlucea and Báez saying
that the duties assigned to her "cannot be performed and have never
been performed at the Recycling Department, but rather in . . . the
Finance [Office], and therefore, there is no work to be done."
(alteration in deposition transcript). Báez acknowledged receipt
of the letter, and stated in his deposition that he had felt it was
important to respond to the letter. He just forgot to do so. Báez
agreed that many of the listed duties were performed in the Finance
Department, he and stated that in the Recycling Department office,
"[s]ometimes I have seen [Torres] doing some things, and sometimes
I have seen her not doing anything." Despite seeing Torres doing
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nothing on numerous occasions, Báez did nothing to change the
situation.
Torres also said that the Mayor's office called the
Recycling Department numerous times to instruct that Torres could
not leave the office to, for example, get breakfast or attend
activities such as inaugurations, an apparent change in her working
conditions. She stated in her deposition that Báez told one of
Torres's co-workers that "by order of the [M]ayor to avoid
problems" neither Torres nor the co-worker was permitted to leave
the office area.
Under the circumstances described, Torres could have
reasonably believed that Báez had discretion to assign her duties
that could actually be performed at the Department of Recycling,
and he chose not to do it. However, she had no reasonable basis
for believing that Báez was responsible for the restrictions on her
leaving the office. By her own deposition, she knew that Báez was
implementing the Mayor's orders with these restrictions.
2. Rodríguez and Portela
In a letter to the Mayor dated February 11, 2005,
Rodríguez complained that she was forced to work alone, the only
telephone was in an isolated area, and she did not have an office,
desk, or chair. Rodríguez stated in her deposition that she also
made these complaints to Portela. Portela responded to Rodríguez's
complaints by letting her use the Coliseum's small ticket booth and
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a room behind it that contained a table.4 He did not provide a
chair.
Rodríguez also stated that she made numerous complaints
to Portela about ongoing political and sexual harassment of her by
the man responsible for opening the Coliseum door each morning.
She said that Portela refused to engage in a conversation on the
issue and her complaints went unaddressed.
Also, on approximately four mornings in 2005, Rodríguez
had to call Pagán from outside the Coliseum to get someone to
unlock it so that Rodríguez could get inside to begin her workday,
which, according to Rodríguez, generally consisted of sitting on a
bench with nothing to do, or collecting trash. Although Portela
said that Rodríguez never worked alone, Rodríguez's calls to Pagán
in Human Resources asking for someone to open the door suggested
otherwise.
Under the circumstances described, Rodríguez could have
reasonably believed that Portela had discretion to assign her
duties that could actually be performed at the Coliseum, and he
chose not to do it. She could also have reasonably believed that
he was responsible for the inferior working conditions that she was
experiencing, including the ongoing political and sexual harassment
by a co-worker.
4
We cannot tell from the record how much time passed between
Rodríguez's complaint and Portela's provision of a table.
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3. Rivera and Caraballo
Caraballo stated in his deposition that he learned that
Rivera was being transferred to the cemetery during a meeting with
Pagán, who gave Caraballo a duty sheet and told him to sign it and
give it to Rivera. Although Caraballo said that he read the sheet,
he was new to the department at the time, having been there only
one month, and he did not know whether the functions listed were
carried out at the cemetery and appropriately assigned to Rivera.
Rivera stated in his deposition that the list included tasks that
could not be done at the cemetery. There is, however, no evidence
that Rivera complained to Caraballo about the diminution of his
duties. Moreover, Rivera stated in his deposition that he had a
good working relationship with Caraballo, and that he originally
intended only to sue the municipality and not Caraballo. He was
instructed by his attorney, however, that Caraballo should be
included in the complaint. This pro forma inclusion of Caraballo
in the complaint simply because he was Rivera's supervisor was
unreasonable. See Tang, 163 F.3d at 14 n.9 (stating that "the
plaintiff's reliance on a lawyer's advice is not a complete defense
to attorney's fees claims by defendants").
4. Political Affiliation as a Substantial
or Motivating Factor for the Adverse
Employment Actions
We have often observed that it is rare that a "smoking
gun" will be found in political discrimination cases. Lamboy-
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Ortiz, 630 F.3d at 240. Thus, "circumstantial evidence alone may
support a finding of political discrimination. Moreover, the
quantum of circumstantial evidence needed to prevail at trial will
be considerably greater than that which will provide a plaintiff
with reasonable grounds for filing suit." Id. (citation omitted).
While mere temporal proximity between a change of administration
and an adverse employment action is insufficient to establish
discriminatory animus, Ocasio-Hernández, 640 F.3d at 18, it is
relevant to whether political affiliation was a substantial or
motivating factor in that adverse employment decision,
Peguero-Moronta v. Santiago, 464 F.3d 29, 53 (1st Cir. 2006). Also
probative of discriminatory animus is "a politically charged
employment atmosphere occasioned by [a] major political shift . . .
coupled with the fact that plaintiffs and defendants are of
competing political persuasions." Ocasio-Hernández, 640 F.3d at
17-18 (quoting Acevedo-Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir.
1993)) (internal quotation mark omitted).
In this case, it is undisputed that each of the
plaintiffs was a prominent opponent to Barlucea's candidacy for
Mayor of Adjuntas. See Acevedo-Diaz, 1 F.3d at 69 (noting that an
"active or prominent role[] in [the party's] political activities"
may suggest political animus where "plaintiffs and defendants are
of competing political persuasions"). Moreover, as the district
court noted in its summary judgment opinion, there was a highly-
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charged political atmosphere "inasmuch as there was a political
shift in the Municipality of Adjuntas when Barlucea, a NPP member,
followed Roberto Vera Monroig, a PDP member, as Mayor." The
temporal proximity between Barlucea's inauguration and the
plaintiffs' transfers and subsequent diminution of duties and
workplace conditions is undeniable - Barlucea took office in
January 2005, and each of the plaintiffs was transferred on January
31, 2005. This evidence was sufficient to establish the reasonable
belief of the plaintiffs that their political affiliation was a
substantial or motivating factor in the decision of the Mayor to
transfer them to a job with diminished or no responsibilities,
under inferior working conditions.
The evidence relating to the political animus of the
supervisory defendants Báez and Portela includes the same
background facts, supplemented by the adverse employment actions
that Torres and Rodríguez experienced at the hands of Báez and
Portela in the form of little or no work, and Rodríguez experienced
under Portela's watch in the form of inferior working conditions.
To be sure, it would have been difficult for Torres and Rodríguez
to know at the time that they filed their complaint whether Báez
and Portela were simply carrying out the Mayor's orders, or whether
Báez and Portela had a free hand in the work assignments and
Portela in the inferior working conditions, and hence were imposing
these adverse employment actions out of their own political animus.
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Given the timing of the municipal elections, the charged political
atmosphere in the municipality, and the experiences of Torres and
Rodríguez while under the supervision of Báez and Portela, the
plaintiffs could at least have reasonably believed at the time that
they filed their lawsuit that Báez and Portela, like the Mayor,
were motivated by their own political animus in depriving Torres
and Rodríguez of meaningful work and that Portela was similarly
motivated in imposing inferior working conditions on Rodríguez.
See Gomez v. Rivera Rodriguez, 344 F.3d 103, 122 (1st Cir. 2003)
(stating that political discrimination claims "require[] proof that
the actor . . . intended to discriminate"); see also Rivera-Torres
v. Ortiz-Velez, 341 F.3d 86, 97 (1st Cir. 2003) (stating that
"subjective intent is an essential element of political
discrimination"). Whether they could substantiate that reasonable
belief through the discovery process would be another matter.
D. The Municipality's Arguments
We have concluded that there was a reasonable basis for
the plaintiffs' claims, except for Torres's inferior working
conditions claim against Báez and Rivera's claims against
Caraballo. In arguing to the contrary, the municipality asserts
that the failure of the plaintiffs' claims against the supervisory
defendants to survive summary judgment demonstrates that the claims
as a whole were frivolous. As noted, the court granted summary
judgment for Báez based on its determination that there was no
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genuine issue of material fact as to whether Báez was a member of
an opposing party. Báez had not - unlike Portela - supported
Barlucea's mayoral candidacy. The district court granted summary
judgment to Portela and Caraballo based on the plaintiffs' failure
to generate a genuine issue of material fact on the role of the
supervisors in the "acts complained of by the [p]laintiffs,
[including] the transfers, the absence of duties, the lack of
office equipment or the lack of authorization to leave the office
or attend municipal activities," which it concluded were "the
result of Barlucea's acts and/or orders."
The district court's grant of summary judgment, however,
does not mean that the diminished duties claim against Báez or the
diminished duties and inferior working conditions claims against
Portela were unreasonable at the outset of the litigation. The
standards governing summary judgment and reasonableness for
purposes of attorney's fees under § 1988 are different; "[s]imply
because the district court granted the defendants' motion for
summary judgment does not mean that the plaintiffs' action was
frivolous" or unreasonable. O'Neal v. DeKalb County, 850 F.2d 653,
658 (11th Cir. 1988). Báez's inclusion in the Mayor's cabinet,
even if he was not a member of the NPP, suggested that he now had
a political affiliation opposed to the plaintiffs'. Báez and
Portela were actively involved, at the very least, in the
implementation of policies that significantly reduced the
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responsibilities of Torres and Rodríguez and, in the case of
Portela, subjected Rodríguez to inferior working conditions that
continued even after direct complaints to Portela. Whether the
supervisory defendants' involvement was simply the implementation
of the policies of the Mayor by loyal lieutenants or involved those
defendants' own decisions based on their own political animus was
an appropriate subject for discovery. See Gomez, 344 F.3d at 122(stating that political discrimination claims "require[] proof that
the actor . . . intended to discriminate"). After discovery was
complete, the district court concluded that there was not enough
evidence in the summary judgment record to let the case against the
supervisory defendants go forward. We do not fault the district
court's judgment on that score. There is no necessary
incompatibility between the district court's decision to grant
summary judgment to Báez and Portela and our conclusion that, at
the outset of this litigation, there was a reasonable basis for the
political discrimination claims against Báez (in part) and Portela.
The denial of summary judgment for the municipality and
Mayor, while not determinative of the reasonableness of the claims
against them, was highly probative of the reasonableness of those
claims, and the district court was wrong to conclude otherwise:
In the run of cases, . . . most claims that
would warrant an award of attorney's fees
under section 1988's relatively stringent
standards — those that are truly "frivolous,
unreasonable, or without foundation,"
Christiansburg Garment, 434 U.S. at 421 — will
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not survive summary judgment. To overcome a
summary judgment motion, a plaintiff must
introduce evidence that creates a "genuine
issue of material fact" as to the substance of
her claims, i.e., one that "could be resolved
in favor of either party" and "has the
potential of affecting the outcome of the
case." Vera v. McHugh, 622 F.3d 17, 26 (1st
Cir. 2010) (internal quotation marks omitted).
The plaintiff's ability to make such a showing
surely reflects on the question of whether the
claim was, at the time, clearly frivolous,
unreasonable, or without foundation.
Lamboy-Ortiz, 630 F.3d at 242. Here the plaintiffs did generate
genuine issues of material fact in their case against the Mayor
that were appropriately resolved at trial. The jury found that
Torres and Rodríguez had failed to prove by a preponderance of the
evidence that Barlucea had knowledge of their political
affiliation. Rivera established that element, but the jury
determined that he had failed to prove that his political
affiliation was a substantial or motivating factor in the
employment actions against him. The jury was entitled to make
those judgments. But there was abundant evidence in the summary
judgment record that would have supported different conclusions.
E. Reasonableness of Plaintiffs' Decision to Continue to Trial
After Settlement Offer
In its fee decision, the district court awarded fees
based at least partially on the plaintiffs' refusal to accept what
the district court characterized as a "sound settlement offer."5
5
See supra Part I.
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The district court concluded that "the Plaintiffs' claim became
unreasonable thereon." The court did not explain, however, why it
concluded that the plaintiffs' rejection of the settlement offer or
any other factors made further pursuit of their claims
unreasonable. Indeed, the defendants did not argue that the court
should consider the failure to settle as a factor in assessing
whether the standards of § 1988(b) were met. Rather, the district
court sua sponte injected that factor into its decision.
As the Supreme Court explained in Christiansburg Garment,
431 U.S. at 422, "a plaintiff should not be assessed his opponent's
attorney's fees unless a court finds that his claim was frivolous,
unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so." The mere failure to accept
even a "sound settlement offer" does not convert a reasonable claim
into a frivolous one, and neither the municipality nor the district
court explained why the reasonable claims that we have described
had become unreasonable or groundless by the time trial approached.
See Casa Marie Hogar Geriatrico, 38 F.3d at 618 (stating that a
prevailing defendant bears the burden of "establish[ing] that the
plaintiffs' suit was totally unfounded, frivolous, or otherwise
unreasonable"). Thus, on this record, we can only conclude that
the district court's award of attorney's fees in the amount stated
constituted "a clear error of judgment." Lamboy-Ortiz, 630 F.3d at
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236 (quoting Tang, 163 F.3d at 13 (internal quotation mark
omitted)).
III.
For the reasons stated, we have concluded that there was
a reasonable basis for the plaintiffs' claims against the
municipality, Mayor Barlucea, Báez (in part), and Portela when
filed, and there remained a reasonable basis for the claims against
the municipality and Mayor Barlucea throughout the trial process.
We have also concluded that the inferior working conditions claim
against Báez and the claims against Caraballo were unreasonable
when filed. Hence, the district court abused its discretion in
awarding attorney's fees to the municipality other than those that
would not have been incurred but for the inclusion of those
unreasonable claims.
In cases such as this, where there are both frivolous and
non-frivolous claims, the award must include "only . . . fees the
prevailing defendant would not have paid but for the frivolous
claim." Efron v. Mora Dev. Corp., 675 F.3d 45, 47 (1st Cir. 2012);
see also Fox v. Vice, 131 S. Ct. 2205, 2215 (2011) ("Section 1988
allows a defendant to recover reasonable attorney's fees incurred
because of, but only because of, a frivolous claim."). Any fees
that the defendant would have nevertheless incurred to defend
against non-frivolous claims may not be awarded. Fox, 131 S. Ct.
at 2215. Thus, fees incurred to defend the municipality - even if
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the work also benefitted Báez and Caraballo - are unrecoverable.
The district court may in its discretion award to defendants the
fees, if any, that are attributable solely to the additional costs
associated with the unreasonable claims against Báez and Caraballo.
We vacate the fee award and remand for a determination of
any award consistent with this decision.
So ordered. Each party shall bear its own costs.
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