Rivera-Torres v. Ortiz-Velez ( 2003 )

United States Court of Appeals
For the First Circuit
Nos. 02-2539; 03-1074
SANTOS RIVERA-TORRES; DAISY NAZARIO-SANTANA;
CONJUGAL PARTNERSHIP RIVERA-NAZARIO; YASIRA RIVERA-NAZARIO,
MINOR; ZAHIRA RIVERA-NAZARIO, MINOR,
Plaintiffs, Appellees,
v.
MIGUEL G. ORTIZ VELEZ, Mayor of the Municipality of Sabana
Grande; MUNICIPALITY OF SABANA GRANDE,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
R. Arnold, Senior Circuit Judge,*
and Lipez, Circuit Judge.
Johanna M. Emmanuelli Huertas, with whom Jorge Martínez-
Luciano, and Law Offices of Pedro E. Ortiz-Alvarez, were on brief,
for appellants.
Francisco R. Gonzalez for appellees.
August 26, 2003
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
LIPEZ, Circuit Judge. On February 21, 2001, plaintiffs
Santos Rivera-Torres ("Rivera"), his wife (Daisy Nazario-Santana),
and two daughters (Yasira Rivera-Nazario and Zahira Rivera-
Nazario),1 brought this claim against the municipality of Sabana
Grande and four municipal officers pursuant to 42 U.S.C. § 1983.
Rivera alleged that he was the victim of adverse employment actions
motivated by political animus, in violation of the First and
Fourteenth Amendments. After a series of preliminary orders
removing three of the four individual defendants from the action,
the trial began on December 3, 2002, against the municipality of
Sabana Grande and Miguel Ortiz Velez ("Ortiz"), the mayor of Sabana
Grande, who was sued in both his individual and official
capacities. At the conclusion of the four-day trial, the jury
found that "protected political activity was a substantial or
motivating factor in the defendant's decision to politically
discriminate against the plaintiff," and awarded Rivera $60,000 in
lost wages and benefits,2 $125,000 in compensatory damages, and
$250,000 in punitive damages. The jury also awarded compensatory
damages in the amount of $75,000 to plaintiff's wife, and $30,000
1
Because the claims brought by Rivera's wife and two daughters
are derivative of Rivera's political discrimination claim, we
designate Rivera the "plaintiff" and refer to the other co-
plaintiffs by name where necessary.
2
After the jury issued its verdict, the court sua sponte
reduced the award for lost wages and benefits from $60,000 to
$26,400. Rivera does not contest this reduction on appeal.
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to each of plaintiff's daughters. With several alterations, the
court entered judgment on the jury's verdict, and the defendants
filed these timely appeals.
Defendants raise a plethora of objections to the
proceedings below, challenging inter alia the court's denial of
qualified immunity, its refusal to stay proceedings pending the
resolution of an attempted interlocutory appeal, various
evidentiary rulings at trial, the court's interrogation of a
defense witness, and the validity of the jury's damage award.
After careful review of the record, we reject defendants'
challenges and affirm the judgment.
I.
In 1980, Rivera was hired by the mayor of Sabana Grande
to work in various capacities at the municipal gym.3 Plaintiff's
duties included training boxers and weight lifters, teaching self-
defense classes for children, and organizing weight lifting,
boxing, gymnastics, and karate competitions at locations around
Sabana Grande. Most municipal jobs in Puerto Rico are sub-
classified as "career positions" (akin to civil service jobs) or
"trust positions" (political appointments). Municipal employees
are similarly designated "career" or "trust" employees. At all
times, Rivera was a career employee, and his job was designated a
3
The facts presented here are intended to convey a general
impression of the case. We provide additional facts where they are
pertinent to the legal analysis.
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career position. In 1992, twelve years after plaintiff was hired,
the incumbent mayor promoted him to "be in charge of the
gymnasium." Although this managerial post was originally a "trust
position," the municipality reclassified it as a career job to
facilitate plaintiff's promotion.
At the time of the promotion, Rivera was a member of the
Popular Democratic Party ("PDP"), though his allegiances were
gradually shifting to the New Progressive Party ("NPP"). Over the
next six years, from 1992 to 1998, Rivera's tenure as manager of
the municipal gym was uneventful, and the record indicates that he
received only positive employment evaluations. In December 1998,
plaintiff formally joined the NPP, and local party leaders asked
him to run as the NPP candidate for mayor of Sabana Grande. One
week later, plaintiff publicly accepted the party's mayoral
nomination at an NPP "plebiscite" (caucus).
Rivera's candidacy created a potentially awkward work
environment. His opponent in the mayoral election was incumbent
mayor Miguel Ortiz Velez, who also happened to be plaintiff's boss
by virtue of being mayor. Rivera testified at trial that his
relationship with Ortiz changed dramatically after he announced his
candidacy. That month, after returning from a three-week vacation,
plaintiff discovered that the telephone had been removed from his
office in the gymnasium. Rivera also learned that the mayor was
requesting daily reports on his work habits from other coworkers
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stationed at the gym. In March 1999, the mayor observed Rivera
outside his "area" during working hours, and ordered his secretary
to make notations on plaintiff's time card documenting his absence
from work. When plaintiff confronted the vice-mayor of Sabana
Grande over the incident, he received a thirty-day suspension for
"being disrespectful to the vice-mayor." Rivera appealed this
suspension to the Commonwealth's Board of Appeals for the Personnel
Administration System ("JASAP"), which reversed his suspension and
awarded Rivera thirty days' back pay. The Board's decision was
affirmed on appeal to the Commonwealth's Court of Appeals, and the
Puerto Rico Supreme Court denied certiorari.
In the aftermath of the JASAP proceedings, Rivera
continued to experience harassment at work. The locks on the gym
were changed to inhibit his access, and on one occasion Rivera
found a stack of his personal and office documents torn up next to
a trash can near his office. He was stripped of authority to
direct the activities of subordinates at the gym, and he had
several prolonged arguments with Ortiz at the gymnasium. On one
occasion, the mayor ordered him to complete maintenance tasks that
were not within the scope of his duties. The defendants did not
seriously dispute these incidents at trial.
In May 2000, Rivera sought and received an offer of
state-level employment at the Commonwealth Department of Sports and
Recreation in nearby Mayaguez. At the time, the head of the Sport
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Administration Department was Eric Labrador, a fellow member of the
NPP. Because Puerto Rico law prohibits individuals from
simultaneously holding state and municipal-level employment, Rivera
petitioned the municipality for a transfer. However, Mayor Ortiz
refused to approve Rivera's transfer. Rivera testified that the
mayor's secretary informed him that "the mayor would not sign
unimportant papers."
Rivera was anxious to accept the state-level position
before the November 2000 elections, anticipating that the
employment offer would be rescinded if a PDP administration were
elected into office. Thus, on June 5, 2000, Rivera submitted an
irrevocable letter of resignation to the municipality. The
consequences of resigning in lieu of obtaining a transfer were
severe. Plaintiff stood to sacrifice the twenty years of seniority
he had accumulated since 1980 for salary and benefit purposes.
However, even this initiative proved unavailing when Ortiz refused
to accept Rivera's resignation, citing an ongoing investigation
into Rivera's excessive absenteeism over the previous five months.
Mayor Ortiz testified at trial that under Puerto Rico law, a
municipality loses the authority to discipline a municipal employee
once that employee has been transferred to a state agency. Hence,
it was critical to delay plaintiff's transfer request until the
administrative investigation into his absenteeism had been
resolved.
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Rivera insisted that his absences were due to work-
related illnesses, and he instructed his doctor, Silva Cherena, to
submit medical reports to the municipality documenting his
symptoms. Indeed, Dr. Cherena had sent plaintiff's medical
information to the municipality on July 1, 2000. However, Mayor
Ortiz's office claimed not to have received the doctor's letter
until October 31, 2000. Two weeks later, Mayor Ortiz finally
accepted Rivera's irrevocable resignation, nearly five-and-a-half
months after it was tendered. In the intervening period, the NPP
party had been voted out of key Commonwealth positions, and the job
offer at the Commonwealth Department of Sports and Recreation was
no longer available. Rivera was unable to find other work, and his
family suffered significant financial and emotional hardship as a
result.
In the opinion accompanying its November 26, 2002 order
granting partial summary judgment to defendants, the district court
distilled Rivera's accusations into five discrete allegations of
political discrimination:
1) In January 1999, Defendants removed the phone
from Plaintiff's office;
2) In January 1999, Defendant Ortiz ordered Arenas,
another employee of the Municipality, to take on
Plaintiff's job duties, supervise Plaintiff, and
track his movements;
3) In March 1999, Defendants falsely accused and
unjustly suspended Plaintiff for leaving his
work-area and being absent from work;
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4) In April 2000, Defendant Ortiz refused to approve
Plaintiff's transfer to the Commonwealth's Sports
and Recreation Department in Mayaguez;
5) On June 28, 2000, Defendant Ortiz declined to
accept Plaintiff's resignation and then
intentionally deferred the decision, accepting
the resignation only after the elections.
The defendants conceded that Rivera had properly preserved
allegations 4 and 5, but argued that the first three allegations
were time-barred. The district court agreed, and dismissed
allegations 1, 2 and 3 in its partial order of summary judgment on
November 26, 2000. Of particular relevance to this case, the
district court's November 26 order also denied Mayor Ortiz's
request for qualified immunity. On December 3, 2002, the case
proceeded to trial on Rivera's two preserved allegations of
discrimination. The jury delivered its verdict on December 9, and
these appeals followed.
II.
A. Pre-Trial Rulings
1. Denial of Summary Judgment
The defendants level a three-pronged attack on the
district court's failure to dismiss Rivera's case outright on
summary judgment. First, they argue that "the determination of the
Court that plaintiffs had made out a prima facie case rested on
evidence that was ultimately inadmissible at trial and on
inferences from facts not properly on the summary judgment record."
See Finn v. Consolidated Rail Corp. 782 F.2d 13, 16 (1st Cir. 1986)
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("Material that would be inadmissible at trial cannot be considered
on a motion for summary judgment because, if offered at trial, it
would not serve to establish a genuine issue of material fact.").
Second, defendants allege that Rivera failed as a matter of law to
proffer evidence sufficient to overcome summary judgment. Finally,
defendants challenge the district court's denial of qualified
immunity at the summary judgment stage.
These objections are unavailing. Because the appeal in
this case follows a full trial and verdict, the district court's
rulings at the summary judgment stage were "overtaken by subsequent
events":
We need not address the merits of [a]
preverdict challenge to the sufficiency of the
evidence on the motion for summary judgment.
Such an attack on the denial of defendant's
motion for summary judgment "has been
overtaken by subsequent events, namely, a
full-dress trial and an adverse jury verdict"
. . . . The rationale for this rule has been
based on the procedural fact that a denial of
a motion for summary judgment "is merely a
judge's determination that genuine issues of
material fact exist. It is not a judgment,
and does not foreclose trial on issues on
which summary judgment was sought." Hence, a
challenge to the sufficiency of the evidence
adduced on the motion to support the district
court's conclusion that genuine issues of
material fact exist will not lie on appeal.
Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams, Co., 40
F.3d 492, 500 (1st Cir. 1994) (internal citations omitted).
Although Eastern Mountain specifically references sufficiency of
the evidence challenges, objections to the court's pre-trial denial
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of qualified immunity in its summary judgment ruling are subject to
the same rule of trial preemption. As we noted in Iacobucci v.
Boulter, 193 F.3d 14 (1st Cir. 1999), that rule generally bars non-
interlocutory appeals grounded solely in error at the summary
judgment stage:
Although [the defendant] tried in this forum
to assign error to the denial of that motion,
a pair of procedural impediments frustrates
the attempt. For one thing, an order denying
summary judgment typically does not merge into
the final judgment and therefore is not an
independently appealable event if the case
thereafter proceeds to trial.
Id. at 22 (citing Eastern Mountain, 40 F.3d at 497).
Consequently, although a post-trial grant of immunity
would still confer a benefit on defendants by shielding them from
any liability for monetary damages awarded by the jury, a defendant
determined to persist in challenging the court's denial of
qualified immunity cannot rest on the objection lodged at the
summary judgment stage, but must move for judgment as a matter of
law at the conclusion of the trial. If the court adheres to its
original position, the defendant may then appeal from the denial of
judgment as a matter of law. A contrary rule would contradict the
principle enshrined in our jurisprudence that facts elicited at
trial are often probative of the defendant's entitlement to
qualified immunity. See Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.
1995) (declining to permit interlocutory appeals from a court's
rejection of qualified immunity "to the extent that it turns on
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either an issue of fact or an issue perceived by the trial court to
be an issue of fact"); 15A Wright, Miller & Cooper, Federal
Practice and Procedure § 3914.10. ("[O]nce trial has been had, the
availability of official immunity [on final judgment of appeal]
should be determined by the trial record, not the pleadings nor the
summary judgment record.").
Here, defendants failed to properly preserve their
challenge to the court's denial of qualified immunity by restating
their objections in a post-trial motion for judgment as a matter of
law. Accordingly, we deem the defendants' challenge waived.
2. A Forsyth Appeal
On December 2, 2002 -- nearly one week after the district
court's ruling granting partial summary judgment and denying
qualified immunity -- Ortiz filed a notice of appeal of the
district court's decision to deny qualified immunity. In Mitchell
v. Forsyth, 472 U.S. 511 (1985), the Supreme Court ruled that a
defendant denied qualified immunity by a district court could file
an interlocutory appeal to obtain review of any disputed question
of law. "[W]e hold that a district court's denial of a claim of
qualified immunity, to the extent that it turns on an issue of law,
is an appealable 'final decision' within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment." Forsyth,
Id. at 530. The Forsyth Court reasoned that "the entitlement [to
qualified immunity] is an immunity from suit rather than a mere
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defense to liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted to go to
trial." Id. at 526 (emphasis in original).
The act of filing an interlocutory appeal has
jurisdictional implications:
The filing of . . . an interlocutory appeal,
"confers jurisdiction on the court of appeals
and divests the district court of control over
those aspects of the case involved in the
appeal." Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) (per
curiam). The district court does not regain
jurisdiction over those issues until the court
of appeals issues its mandate. Courts have
carved out a few narrow exceptions to this
rule, such as where the defendant frivolously
appeals or takes an interlocutory appeal from
a non-appealable order.
United States v. Defries, 129 F.3d 1293, 1302-03 (D.C. Cir. 1997)
(emphasis added). These exceptions to the jurisdictional rule
recited in Defries figure prominently in the post-Forsyth
jurisprudence of several circuits. In Apostol v. Gallion, 870 F.2d
1335 (7th Cir. 1989), the court of appeals observed that
although [Forsyth] protects the interests of
the defendants claiming qualified immunity, it
may injure the legitimate interests of other
litigants and the judicial system . . . .
Defendants may seek to stall because they gain
from delay at plaintiffs' expense, an
incentive yielding unjustified appeals.
Defendants may take Forsyth appeals for
tactical as well as strategic reasons:
disappointed by the denial of a continuance,
they may help themselves to a postponement by
lodging a notice of appeal.
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Id. at 1338-39. In a subset of interlocutory appeals of qualified
immunity rulings, the "notice of appeal may be so baseless that it
does not invoke appellate jurisdiction" even when filed. Id. at
1339. To address other "sham" appeals whose lack of merit is not
so transparent as to preclude the transfer of jurisdiction to the
appellate court in the first instance, the Seventh Circuit
developed a "certification" process whereby "a district court may
certify to the court of appeals that the appeal is frivolous and
[retrieve jurisdiction to] get on with the trial." Id. The court
admonished that
[s]uch a power must be used with restraint,
just as the power to dismiss a complaint for
lack of jurisdiction because it is frivolous
is anomalous and must be used with restraint.
But it is there, and it may be valuable in
cutting short the deleterious effects of
unfounded appeals.
Id. Following the Seventh Circuit's lead, the Sixth, Ninth, and
Tenth circuits established similar certification procedures to
address interlocutory appeals challenging the denial of qualified
immunity ("Forsyth appeals"). See Yates v. City of Cleveland, 941
F.2d 444, 448-49 (6th Cir. 1991); Chuman v. Wright, 960 F.2d 104,
105 (9th Cir. 1992); Stewart v. Donges, 915 F.2d 572, 577 (10th
Cir. 1990).
The circuits adopting this certification procedure have
held or implied that the district court's act of filing the
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certification of frivolousness is an event of jurisdictional
significance.
[I]t is the district court's certification of
the defendant's appeal as frivolous or
forfeited rather than merely the fact that the
appeal is frivolous which allows the district
court to retain jurisdiction to conduct a
trial . . . . Once a notice of appeal on an
appealable issue such as qualified immunity is
filed, the status quo is that the district
court has lost jurisdiction to proceed. To
regain jurisdiction, it must take the
affirmative step of certifying the appeal as
frivolous or forfeited, and until that step is
taken it simply lacks jurisdiction to proceed
with the trial.
Stewart, 915 F.2d at 577-78 (emphasis in original); see also
Chuman, 960 F.2d at 105; Yates, 941 F.2d at 449; Apostol, 870 F.2d
at 1339.
This proposition -- that a district court must actually
file the certification of frivolousness to retrieve jurisdiction
over the proceedings -- is the springboard for defendants' argument
that the trial in this case was a nullity. On November 26, 2002,
the district court initially entered an Opinion and Order denying
defendants' pre-trial request for qualified immunity. On December
2, defendants responded by filing a notice of appeal from the
denial of immunity and moving the district court to stay the
proceedings pending the resolution of the appeal. Immediately
thereafter they petitioned this court for a stay of the district
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court proceedings.4 Without the benefit of an order from the
district court denying the motion to stay, we denied the requested
stay in a summary order issued that same day:
The motion to stay trial is denied. In
denying appellants' motion for summary
judgment based on qualified immunity, the
district court stated that "Ortiz's motivation
for denying and deferring Plaintiff's
resignation is an unresolved issue of material
fact." As appellants have not adequately
explained why the denial is immediately
appealable, see Stella v. Kelley, 63 F.3d 71,
74 (1st Cir. 1995) ("a district court's
pretrial rejection of a qualified immunity
defense is not immediately appealable to the
extent that it turns on either an issue of
fact or an issue perceived by the trial court
to be an issue of fact"), the motion for stay
is denied.
On December 3, 2002, the district court began the trial.
Meanwhile, defendants had filed a motion for reconsideration of our
December 2, 2002 order denying the stay. By order dated December
6, 2002, we rejected the defendants' motion for reconsideration:
To the extent that defendant is asking this
court to immediately stay any further trial,
the request is denied. We request the
district court, however, to expressly act on
defendant's motion for stay. See Hegarty v.
Somerset County, 25 F.3d 17, 18 (1st Cir.
1994); Chuman v. Wright, 960 F.2d 104, 105
(9th Cir. 1992) ("Should the district court
find that the defendants' claim of qualified
immunity is frivolous or has been waived, the
4
The district court's order of December 6, 2002 indicates that
defendants filed both their notice of appeal and request for a stay
with the district court at 4:48 p.m. on December 2. Defendants
also petitioned this court for a stay of the district court
proceedings that same day, although the precise time this request
was filed is not clear from the record.
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district court may certify, in writing, that
defendants have forfeited their right to
pretrial appeal, and may proceed with trial").
Any renewed request for a stay filed in the
court of appeals must be accompanied by
sufficient portions of the record to allow for
intelligent review.
In the interim, however, the district court had nearly completed
the trial. On December 6, after entertaining closing arguments and
issuing instructions to the jury, the district court denied the
defendants' motion for stay in an order dated that day:
[O]ur denial of summary judgment turned on an
unresolved issue of fact in a clearly
established legal scenario strongly indicative
of improper political discrimination. Under
these circumstances, an appeal of an
unresolved factual question is baseless and is
not immediately appealable. Therefore, we
necessarily certify that Defendant's appeal is
frivolous under the present circumstances.
Rivera-Torres v. Ortiz-Velez, Civil No. 01-1244 at 5-6 (D.P.R.
December 6, 2002). Defendants now insist that "[g]iven the
uncontested fact that the Trial Court proceeded without
jurisdiction, the judgment entered in the instant case suffers from
the incurable vice of nullity and must be vacated."
This jurisdictional dispute might have been avoided if
the district court had promptly ruled on the defendants' motion to
continue the trial pending the resolution of their Forsyth appeal.
See Fed. R. App. P. 8(a) ("A party must ordinarily move first in
the district court for . . . a stay of the judgment or order of a
district court pending appeal."). Under well-settled law, courts
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entertaining a motion for stay are compelled to evaluate the merits
of the petition and anticipate its disposition on appeal. See
Acevedo Garcia v. Vera-Monroig, 296 F.3d 13, 16 (1st Cir. 2002)
("The sine qua non of the stay pending appeal standard is whether
the movants are likely to succeed on the merits.") (internal
quotation marks and citation omitted). This evaluation closely
resembles the frivolousness analysis required under the Apostol
certification procedure, as the court's order of December 6 noting
the unappealability of its qualified immunity ruling demonstrates.
See supra. If the court had entered that order denying the stay on
December 2, prior to beginning the trial, its jurisdiction over the
proceedings would have been clearly established even without the
inclusion of certification language in the opinion.
We have never adopted the Apostol certification procedure
in this circuit. Although appellants urge us to do so here in the
hopes of adding fuel to their trial nullity argument, we decline
their invitation. Whatever the merits of the certification
procedure may be, its primary innovation -- permitting the district
court to reclaim jurisdiction from the court of appeals in the wake
of a Forsyth appeal -- has no relevance to this case. The
defendants' notice of appeal was patently meritless, and therefore
failed to divest the district court of jurisdiction in the first
instance. As we observed in United States v. Brooks, 145 F.3d 446(1st Cir. 1998):
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[l]ike most rules, the rule that either the
trial or the appellate court - but not both -
may have jurisdiction over a case at any given
point in time admits of some exceptions.
Thus, a district court can proceed,
notwithstanding the filing of an appeal, if
the notice of appeal is defective in some
substantial and easily discernible way (if,
for example, it is based on an unappealable
order) or if it otherwise constitutes a
transparently frivolous attempt to impede the
progress of the case.
Id. at 456. In this case, the defendants' interlocutory appeal was
based on an unappealable order. As we ruled in Stella:
a district court's pretrial rejection of a
qualified immunity defense is not immediately
appealable to the extent that it turns on
either an issue of fact or an issue perceived
by the trial court to be an issue of fact . .
. in such a situation, the movant must await
the entry of final judgment before appealing
the adverse ruling.
Stella, 63 F.3d at 74 (emphasis added). This principle, which we
reiterated in our initial order denying defendants' request for
stay, rendered the district court's denial of qualified immunity
unappealable.
To avoid the application of this principle, appellants
now lamely defend the legitimacy of their interlocutory appeal by
arguing that the district court's qualified immunity determination
turned on the legal question of whether a municipal officer's
subjective intent is relevant to the qualified immunity analysis,
and insisting that the court "improperly considered the element of
subjective intent as part of the qualified immunity inquiry."
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Superficially, Ortiz draws support for his opposition from the
Supreme Court's decision in Crawford-El v. Britton, 523 U.S. 574(1998), and our post-Crawford-El jurisprudence. See Tower v.
Leslie-Brown, 326 F.3d 290, 296 (1st Cir. 2003); Abreu-Guzman v.
Ford, 241 F.3d 69, 73 (1st Cir. 2001) ("Evidence concerning the
officer's subjective intent is simply irrelevant to a qualified
immunity defense."); Sheehy v. Town of Plymouth, 191 F.3d 15, 19
(1st Cir. 1999). To illustrate the flaw in Ortiz's argument, one
must differentiate between constitutional violations that are
strictly a product of the perpetrator's actions, and offenses where
the perpetrator's subjective intent is an essential element of the
violation. For example, an individual's Fourth Amendment rights
are violated by the very fact that a police officer arrests him
without probable cause, regardless of the officer's subjective
intentions at the time of the arrest. See Abreu-Guzman, 241 F.3d
at 73. Similarly, a suspect who is interrogated by the police
without being advised of his right to counsel suffers a Fifth
Amendment injury regardless of the questioning officer's intent or
motives. In these situations, the rule of Crawford-El sensibly
excludes evidence of the officer's intent from the qualified
immunity analysis.
On the other hand, subjective intent is an essential
element of political discrimination. We have previously observed
that
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[w]hen a former government employee brings a
First Amendment suit against his employer for
taking an adverse employment action against
him on the basis of his speech, the premier
precedent is Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274 (1977). Under
the Mt. Healthy paradigm, the plaintiff must
show both that his speech was constitutionally
protected, and that it was a "substantial" or
"motivating" factor for the adverse action
taken against him.
Stella, 63 F.3d at 74-75 (emphasis added). In other words, an
employee's First Amendment right to be free from political
discrimination is violated when the employer's adverse employment
decision is motivated by the employee's political speech. Hence,
the employer's subjective motive is an essential element of the
constitutional violation itself, and cannot be divorced from the
qualified immunity inquiry. Our previous decisions underscore the
importance of the employer's subjective intent in political
discrimination cases:
Harlow does not rule out the need to inquire
into the actual reasons behind an official's
conduct when the official's state of mind is a
necessary component of the constitutional
violation he allegedly committed . . . . [T]he
official's abnormal expertise in law, or his
subjective, below par, lack of expertise,
makes no difference. But determining whether
defendant fired an employee for a
discriminatory reason . . . is an altogether
different matter.
Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 45 (1st Cir. 1988).
In Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1 (1st Cir. 2000), we
similarly dismissed defendants' contention that subjective intent
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is irrelevant to qualified immunity, explaining that "[t]he
plaintiffs allege that they were terminated because of their
political affiliation, a constitutional claim that has no meaning
absent the allegation of impermissible motivation." Id. at 11.
Accordingly, the proffered legal basis for the defendants' Forsyth
appeal is meritless, having been foreclosed by our prior decisions
in Feliciano-Angulo and Acevedo-Garcia, see supra, properly cited
by the district court in its order denying defendants' request for
a stay, and characterizing the interlocutory appeal as frivolous.
Finally, we must note that the circumstances surrounding
the defendants' Forsyth appeal betray its frivolousness. The
district court's order of December 6 denying Ortiz's motion to stay
the proceedings recounts that after the defendants' motion for
summary judgment was denied on November 26, 2002, counsel for
defendants failed to appear in court on December 2, the day the
trial was scheduled to begin. Defendants insisted that they were
unable to proceed because Johanna M. Emmanuelli-Huertas, the
counsel of record for defendants, was simultaneously involved in
another trial. The court rejected this excuse, sanctioned
Emmanuelli's law firm, and rescheduled the trial for December 3.
Later that day, Ortiz filed his notice of appeal, and immediately
thereafter moved to stay the proceedings in the district court,
asserting to the judge that "this Honorable Court lacks subject
matter jurisdiction to submit co-defendant Ortiz-Velez to the
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rigors of trial."5 The timing and haste of the defendants' notice
of appeal reveals its intended purpose -- to cloak a request for
postponement in Forsyth interlocutory raiments. See Apostol, 870
F.2d at 1338-39 ("Defendants may take Forsyth appeals for tactical
as well as strategic reasons: disappointed by the denial of a
continuance, they may help themselves to a postponement by lodging
a notice of appeal.").
In summary, we conclude that appellants' notice of appeal
never divested the district court of jurisdiction, and we reject
the claim that the entire trial was a nullity.
B. The Trial
Defendants raise a handful of objections to the district
court's evidentiary rulings and conduct at trial. We address these
claims in the order they were raised on appeal.
1. The District Court's Admission of Evidence Regarding
Dismissed Claims
Defendants argue that the district court erred in
permitting the plaintiff to introduce evidence pertaining to
5
On appeal, defendants argue that they were prejudiced by the
district court's insistence on moving ahead with the trial
notwithstanding attorney Emmanuelli-Huertas's simultaneous
engagement. "Attorney Martinez was faced with the daunting task of
preparing to represent defendants at trial with less than 24 hours
of preparation . . . . This situation put plaintiffs in an unfairly
advantageous position, as they were represented by the attorney who
handled their claims from the beginning while defendants were not."
While we reject the merits of this argument, see infra, it plainly
reveals the tactical considerations motivating the defendants'
Forsyth appeal.
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allegations that were dismissed before trial as time-barred. "In
general, we review judgment calls that certain evidence is either
irrelevant or cumulative for abuse of discretion." Yankee Candle
Co., Inc. v. Bridgewater Candle Co., LLC, 259 F.3d 25, 47 (1st Cir.
2001). As noted above, the district court's grant of partial
summary judgment disposed of Rivera's claims arising from 1) the
January 1999 deprivation of office equipment, 2) the mayor's
January 1999 decision to strip Rivera of his duties and authority,
and 3) Rivera's March 1999 suspension for "disrespecting" the vice-
mayor. Significantly, the district court's summary judgment order
anticipated that evidence concerning these dismissed claims could
still be admissible at trial as relevant background: "Although we
need not decide the issue at this time, it is possible that the
time-barred prior incidents will be admissible as relevant
background evidence." Rivera-Torres v. Ortiz-Velez, Civil No. 01-
1244 at 16 n.5 (D.P.R. November 26, 2002) (citing O'Rourke v. City
of Providence, 235 F.3d 713, 726 (1st Cir. 2001)). Indeed, the
Supreme Court has observed that "[a] discriminatory act which is
not made the basis for a timely charge . . . may constitute
relevant background evidence in a proceeding in which the status of
a current practice is at issue." United Air Lines, Inc. v. Evans,
431 U.S. 553, 558 (1977); see also O'Rourke, 235 F.3d at 726;
Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 439 (1st
Cir. 1997). The district court's prerogative to admit evidence of
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dismissed claims insofar as it provides relevant background for
surviving claims is firmly established by our precedents, and we
discern no abuse of discretion in the court's exercise of this
prerogative.
The defendants also ground their objections to the
admissibility of "dismissed claims" evidence in Federal Rule of
Evidence 403, arguing that "[o]nce a jury has heard about all these
alleged, and time-barred, actions taken against plaintiff . . . it
becomes almost impossible to make a fair assessment of the
subsequent issues, which are the ones actually being tried." We
disagree. The nature and severity of the events underlying the
dismissed claims (including the confiscation of Rivera's personal
telephone, the gradual erosion of his authority, and his thirty-day
suspension) pale in significance to events that form the predicate
of his surviving claims -- the refusal to approve Rivera's
transfer, and the delayed acceptance of his letter of resignation.
The dismissed claims involve employment decisions that resulted in
inconvenience or brief financial hardship; the surviving claims
implicate adverse employment acts that threatened plaintiff's
livelihood. Accordingly, there was no abuse of discretion in the
district court's implicit determination that the unfairly
prejudicial effect of this evidence did not outweigh its probative
value.
2. Cross Examination by the Judge
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During the cross examination of Mayor Ortiz, counsel for
Rivera interrogated the mayor about why he insisted on
investigating plaintiff's sick leave absences in lieu of permitting
his transfer to a position with the Commonwealth. In the midst of
this line of questioning, the judge interjected with several of his
own questions, resulting in the following exchange between the
judge and the witness:
JUDGE: Well, there was no impediment in you giving
him the transfer authorization irrespective
of the investigation, correct?
WITNESS: Well, the fact of the matter is that the
investigation had reflected that there had
been improper use of the sick leave days.
We would have to go to the municipality's
regulations regarding the possibility of a
violation of those regulations or of any
law. And not doing so could have entailed a
finding against us by the controller's
office. It could be called negligence in
the fulfillment of a supervisor's duties.
JUDGE: But even if he had been transferred, you
could always have obtained relief from him
if he had taken those days for the wrong
reasons?
WITNESS: Well, at least regarding that aspect, he
could have raised that matter when the
letter was sent to Dr. Silva on June 25th.
And then we would have consulted the
attorney himself . . . or from OCALAR, which
is the personnel agency for the Commonwealth
which deals with these personnel affairs.
And if they said this was okay, we would
have issued the letter.
JUDGE: At this time when these things were
happening had he already changed parties?
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WITNESS: Yes, he was already a candidate. This was
the year 2000.
JUDGE: Don't you think it would have been prudent
to allow him to go to the Commonwealth and
out of Sabana Grande so that you wouldn't
have any more problems with him?
WITNESS: If we were to look at it from that point of
view, it would have been beneficial for the
municipality because we then would have had
a regular position that we could have
filled. But the problem was that since he
was under investigation we could not do so.
On appeal, defendants argue that
this grilling of codefendant Ortiz, far from
aiding the jury in understanding the evidence,
was a cross examination, comprised mostly of
leading and argumentative questions geared
towards making the following point: the Mayor
had no legal basis for denying plaintiff's
transfer, this action was carried out while
plaintiff was a candidate for Mayor, and
defendant was not prudent in making this
decision.
The Federal Rules of Evidence provide that "[t]he court may
interrogate witnesses, whether called by itself or by a party."
Fed. R. Evid. 614(b); see also United States v. Gonzalez-Soberal,
109 F.3d 64, 72 (1st Cir. 1997) ("It is well settled that the trial
judge has a perfect right -- albeit a right that should be
exercised with care -- to participate actively in the trial
proper."). The judge's discretion to participate in the direct and
cross examination of witnesses is cabined by the importance of
maintaining an appearance of impartiality:
There are, however, limits to the behavior
that is permitted judges. For example, the
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judge's participation must be balanced; he
cannot become an advocate or otherwise use his
judicial powers to advantage or disadvantage a
party unfairly. An inquiry into the judge's
conduct of the trial necessarily turns on the
question of whether the complaining party can
show serious prejudice.
Id. (internal citations and quotation marks omitted).
On the cold record before us, the district court's
questions suggest some skepticism about the mayor's proffered
justification for denying Rivera's transfer. Ideally, the district
court should have avoided this suggestion. However, given the
brevity of the exchange and the mild nature of the questioning, we
conclude that the district court's interjections did not result in
"serious prejudice." Id. Furthermore, we find it significant that
the judge issued a lengthy instruction to the jury that mitigated
any prejudice arising from his interrogation of Ortiz.
If I asked any questions, and I did ask
questions in this case, which it is my duty to
do so if I have to, you should not be
influenced by anything that I said or did.
The purpose of asking questions by me was to
either highlight something that I thought was
unclear from the evidence, something that was
not developed by the lawyers that I thought
should be developed or simply to give some
perspective to the actual issue before the
Court at that time.
Judges, federal judges, have the right to ask
questions. They have the right to call
witnesses. They have the right to actually
comment into [sic] the evidence if they want
to comment on the evidence. And there is
nothing wrong with that. The important thing
is that I am not here to lead you into any
particular result. I am here to just try to
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give you, with the assistance of the lawyer,
the presentation of the best evidence possible
so that you can decide the issues of fact.
(emphasis added). We have previously held that instructions of
this nature may cure prejudice arising from a judge's active trial
participation: "[A]ny possible risk of prejudice to [defendant] as
a result of the judge's questions was abated by the clear
instruction to the jury that it should ignore any impression that
his questions might have made on them." United States v. Henry,
136 F.3d 12, 19 (1st Cir. 1998); see also Van Leirsburg v. Sioux
Valley Hosp., 831 F.2d 169, 173 (8th Cir. 1987). In the end, we
conclude that the district court's questioning of Ortiz did not
give rise to reversible error.
3. Judicial Notice
At trial, the defense attempted to characterize the
Commonwealth job for which Rivera sought a transfer as a "demotion"
from his tenured position with the municipality. While the
Commonwealth position was designated a "transitory," or temporary
position, Rivera testified on cross examination that he stood to
receive tenure from the Commonwealth after he had held the new
position for "some months." To counter the impact of this
testimony, the defendants asked the district court to take judicial
notice of the fact that under Puerto Rico law transitory
appointments may not be converted into tenured appointments. The
judge, however, rejected defense counsel's request:
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I can't take judicial notice of that for a
reason. I have been dealing with this kind of
case for over 16 years. And believe me, there
are many instances in which a situation like
this where the Puerto Rico government takes a
person like this and takes a transitory
position, puts the person in and down the road
in two or three months they change it to a
career position. That happens all the time .
. . . It may be illegal. But I live in the
real world. In the real world this happens
every day in the Puerto Rico government. And
this is -- this has been established by the
case law. You have thousands of examples and
there is no way I am going to instruct this
jury about something that is not realistic.
Under the Federal Rules of Evidence, "[a] judicially
noticed fact must be one not subject to reasonable dispute in that
it is either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Fed. R. Evid. 201(b)(emphasis added).
The district court is obligated to take judicial notice of such
facts "if requested by a party and supplied with the necessary
information." Fed. R. Evid. 201(d). Here the court, drawing upon
its experience, determined that the fact offered for judicial
notice did not fulfill the requirements of Rule 201(b) because
Puerto Rico law governing the duration of "transitory" government
appointments does not always correspond to the realities of
government practice. Therefore, in the court's view, taking
judicial notice of the letter of the law would have misled the
jury. On appeal, defendants offer no persuasive rationale for
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reversing the court's reasonable application of Rule 201, and we
decline to disturb the jury verdict on this ground.6
4. Refusal to Continue Proceedings
Finally, defendants argue that the district court abused
its discretion in refusing to continue the proceedings to avoid a
trial conflict involving the defendants' counsel of record. See
Macaulay v. Anas, 321 F.3d 45, 48 (1st Cir. 2003). The record
reflects that both parties filed a joint pre-trial memorandum on
July 21, 2002, and that the pre-trial conference was approved by
the district court on July 31, 2002. On August 1, 2002, the
district court docketed its order setting December 2, 2002 as the
starting date of the trial. Attorney Emmanuelli's law firm, which
employs fifteen attorneys, accordingly had four months' notice of
the trial date, and four months to bring another attorney up to
speed on the specifics of this case. Instead, Emmanuelli waited
until the day the trial was scheduled to begin to move the court
for a continuance citing an irreconcilable conflict. These
circumstances preclude any finding that the district court abused
its discretion in denying the continuance.
6
Defendants cursorily argue that the district court erred in
admitting tape recordings of disparaging statements about plaintiff
made by Ortiz during his election campaign. They intimate that the
tapes were not properly authenticated, but provide no developed
analysis or legal authority to support their assertion.
Accordingly, we deem the argument waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory fashion, unaccompanied by some effort at developed
argumentation, are deemed waived.").
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C. Post-Trial Rulings
1. Damages
At the conclusion of the trial, the jury awarded Rivera
and his family the following damages: 1) $60,000 to Rivera for lost
wages and benefits; 2) $125,000 in compensatory damages to Rivera
"for emotional pain and mental anguish" (pain and suffering); 3)
$75,000 in compensatory damages to Rivera's wife for pain and
suffering; 4) $30,000 in compensatory damages to each of
plaintiff's daughters for pain and suffering; and 5) $250,000 in
punitive damages to Rivera alone. Hence, the jury's award of back
pay was the only component of the damage award compensating an
economic injury. In a post-trial order, the district court sua
sponte reduced this element of the damages from $60,000 to $26,400,
ruling that "the verdict has to be adjusted on the issue of lost
wages because the only evidence is lost wages. There is no
evidence of loss of benefits." Plaintiffs do not contest the
court's reduction of this award on appeal.
Where defendants properly preserve a challenge to the
amount of compensatory damages awarded by the jury, "our inquiry is
limited to determining 'whether the trial court abused its
discretion in refusing to set aside the verdict as excessive.'"
Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 493 (1st Cir.
1994) (quoting McDonald v. Fed. Labs., Inc. 724 F.2d 243, 246 (1st
Cir. 1984)). The review of a preserved challenge to a punitive
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damages award "is de novo, and the award will stand unless we find
it 'certain' that the amount in question exceeds that necessary to
punish and deter the alleged misconduct." Romano v. U-Haul Int'l,
233 F.3d 655, 672 (1st Cir. 2000). In this case, however, Ortiz
and the municipality did not move for a new trial after the jury
delivered its verdict, or file a post-trial motion to reduce or set
aside the verdict as excessive. We have long held that defendants
who fail to preserve challenges to the jury verdict below forfeit
review of those claims on appeal: "We generally will not review a
party's contention that the damages award is excessive or
insufficient where the party has failed to allow the district court
to rule on the matter." O'Connor v. Huard, 117 F.3d 12, 18 (1st
Cir. 1997); see Carlton v. H.C. Price Co., 640 F.2d 573, 577 (5th
Cir. 1981) (no appellate review of allegedly excessive or
inadequate damages available where trial court was not given the
opportunity to exercise its discretion on the matter), cited with
approval in Wells Real Estate, Inc. v. Greater Lowell Bd. of
Realtors, 850 F.2d 803, 811 (1st Cir. 1988); Braunstein v.
Massachusetts Bank & Trust Co., 443 F.2d 1281, 1285 (1st Cir. 1971)
(denying review of claim that award was excessive because appellant
failed to raise the issue before the district court).
In this circuit, claims "forfeit[ed] through ignorance or
neglect" may still be subject to plain error review on appeal.
Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en
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banc) ("Failures to object, unless a true waiver is involved, are
almost always subject to review for plain error."). However, after
reviewing the record, we discern no plain error that "resulted in
a miscarriage of justice or seriously affected the fairness,
integrity, or public reputation of the judicial proceedings."
Smith v. Kmart Corp., 177 F.3d 19, 28 (1st Cir. 1999). The jury's
award of compensatory damages was amply supported by the record,
particularly the trial testimony of Daisy Nazario-Santana (Rivera's
wife), Yasira Rivera-Nazario (Rivera's elder daughter), and Zahira
Rivera-Nazario (Rivera's younger daughter), as well as Rivera's own
description of the mental and emotional suffering he endured after
losing his job. The jury's punitive damage award was also well
within acceptable bounds, given the reprehensibility of defendants'
conduct and the resultant injuries inflicted on Rivera and his
family. See State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct.
1513, 1520-21 (2003); BMW of North America, Inc. v. Gore, 517 U.S.
559, 574-76 (1996).
2. Municipal Liability
Question #1 on the special verdict form asked the jurors
to determine whether "the actions of the defendant were under the
color of the authority of the state." The jury responded in the
affirmative. Question #9 then inquired whether "the claimed
unconstitutional conduct of the mayor as a higher authority was
done pursuant to the policy of the municipality of Sabana Grande."
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The jury responded to this question in the negative. Initially
limiting its focus to Question #9, the court remarked after hearing
the verdict in its entirety that "According to [the special verdict
form] the municipality did not have a policy. This thing was
basically the mayor's thing. And I will then enter the appropriate
judgment [in favor of the municipality]."
Upon further reflection, the court, citing to our
decision in Cordero v. De Jesus-Mendez, 867 F.2d 1 (1st Cir. 1989),
determined that it had erred in including Question #9 on the
special verdict form. In Cordero, we acknowledged the Supreme
Court's holding in Pembaur v. City of Cincinnati, 475 U.S. 469(1986) that "municipality liability under § 1983 attaches where .
. . a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials responsible
for establishing final policy with respect to the subject matter in
question." Id. at 483-84 (emphasis added). The Cordero court
subsequently noted that mayors in Puerto Rico are the government
officials ultimately responsible for the employment decisions of
the municipality:
Under Puerto Rico law, one of the express
powers given to mayors of municipalities is:
"To appoint all the officials and employees of
the municipal executive branch, and remove
them from office whenever necessary for the
good of the service, pursuant to the
procedures provided herein." P.R. Laws Ann.
tit. 21, ch. 155 § 3002(15) (1980).
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Id. at 7. Hence, Mayor Ortiz's employment decisions in the context
of this case ipso facto "constituted the official policy of the
municipality." Id. Therefore, as the district court correctly
realized, the liability of the municipality could not be divorced
from the mayor's liability in his official capacity. Because the
jury expressly found in response to Question #1 that "the
[unlawful] actions of the defendant were under the color of the
authority of the state," municipal liability automatically
attached.
We applaud the district court's prompt efforts to cure
its initial error, and affirm its decision to disregard Question #9
on the special verdict form and enter judgment against the
municipality. Significantly, the jury's responses to Question #1
and Question #9 did not create an inconsistent verdict to be
resolved in accordance with Rule 49 of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 49. The jury's response to Question #9
reflected its determination that the municipality had no
freestanding laws or policies that allowed or encouraged the
adverse employment decisions at issue. This determination was in
no way inconsistent with its previous finding that the mayor,
acting on his own initiative, discriminated against Rivera while
discharging his duties as mayor. In the absence of a proper
instruction, the jurors were unaware that Ortiz's actions as mayor
were themselves the "policy" of the municipality. Given these
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circumstances, the district court's decision to disregard the
jury's response to Question #9 is in accord with our resolution of
the identical problem in Cordero, see Cordero, 867 F.2d at 8, and
did not unfairly prejudice the municipality.
We reiterate that the municipality's contention that
"[t]here is no evidence in the record, suggestive of the Mayor
implementing any sort of municipal policy," simply misses the
point. Ortiz had the authority to control the conditions of
Rivera's employment by virtue of being the Mayor of Sabana Grande.
The employment decisions he made in that capacity constituted the
policy of the municipality under well-established precedent. See
Pembaur, 475 U.S. at 483; Cordero, 867 F.2d at 7.
III.
Our exhaustive review of the record and the arguments
raised on appeal reveals no basis for disturbing the jury's
liability determination or damage awards. The district court's
entry of judgment on the verdict is affirmed.
So ordered.
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