DIANA VÁZQUEZ-VALENTÍN v. VICTOR J. SANTIAGO-DÍAZ, Individually and as Mayor of Toa Baja; MUNICIPALITY OF TOA BAJA; MILAGROS DELGADO-ORTIZ, Individually and as Human Resources Director of Toa Baja
No. 03-1949
United States Court of Appeals For the First Circuit
September 22, 2004
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before Torruella, Lynch, and Lipez, Circuit Judges.
Carlos A. Del Valle Cruz, with whom Anabelle Rodriguez, Secretary of Justice, and Ivonne Palerm Cruz, Deputy Secretary for Litigation were on brief, for appellants in their individual capacities.
Roberto Ariel Fernández for appellants in their official capacities and the Municipality of Toa Baja.
Guillermo A. Macari-Grillo, with whom Jesus M. Hernandez-Sanchez was on brief, for appellee.
I.
Drawing on the evidence presented at trial, we begin by describing the background of this case. Except where noted, this background information is undisputed.
A. The Change of Administration and Alteration of the Job Classification Plan
On November 7, 2000, general elections were held in Puerto Rico. In the municipality of Toa Baja, defendant Victor J. Santiago, the PDP candidate for mayor of Toa Baja, defeated the
Upon taking office, the new administration apparently faced several challenges. Among them were issues related to personnel actions and human resources plans that were detailed in several documents, including an audit from the Comptroller of Puerto Rico, dated June 14, 2000; a letter from the Commonwealth‘s Central Office for the Administration of Personnel and Human Resources (known by its acronym “OCALARH,” which is based on the Spanish version of the office‘s name); and another letter from the Office of the Commissioner for Municipal Affairs (similarly known as “OCAF“).1 These documents addressed personnel issues of the
From time to time, municipalities revise their job classification plans. Toa Baja undertook this task in 1997, when it altered the then-existing job classification plan that had been adopted in 1991.2 According to the Comptroller‘s report, the 1997 changes were not valid alterations to the 1991 plan because they were not first submitted for approval to OCALARH, and past municipal administrations had appointed several hundred employees in violation of the relevant state law and regulations. The report also recommended both that the municipality put in place a system for the selection and recruitment of personnel and that the
Defendants then undertook a review of the personnel files of all 1,300 or so municipal employees. Defendants claim that they did so because, according to the Comptroller‘s report, “[n]ot addressing the recommendations of the audit . . . without just cause[] may constitute a violation [of] . . . the Government Ethics Act.” Plaintiff maintains that the defendants sought to retaliate against members of the NPP. As of May 2002, at the time of the trial, around six hundred files had been evaluated, including
B. Vázquez‘s Political Activity and Employment History
Vázquez has been active in the NPP since the age of eighteen. She was president or chair of the NPP committee in her ward (Barrio Pajaros in Toa Baja), and she worked on the mobilization committee, organized rallies, and raised funds. Additionally, she was one of the NPP‘s electoral college officers.
Her employment at the municipality of Toa Baja started in 1985, when Vázquez was employed in a transitory position4 as an office clerk. On February 1, 1989, she became a career employee in the position of Office Worker/Typist I at a monthly salary of $545. On July 1, 1993, Vázquez was appointed to the position of Secretary III, with a monthly salary of $1019, at the request of David Córdova Torrech (“Córdova“), her immediate supervisor and head of the Office of Services to the Citizenry. Twenty days later, Córdova asked that Vázquez be reassigned again, this time to the position of Assistant Director of the newly created Levittown branch of the Office of Services to the Citizenry. That request was granted, and Vázquez assumed the position of Assistant Director on August 16, with a monthly salary of $1752.
C. Vázquez‘s Demotion
On May 22, 2001, the defendants, Mayor Santiago and Director of Human Resources Delgado, held a meeting with fifteen to eighteen employees, including Vázquez, to notify them that their classifications were being changed pursuant to the decision to declare the 1997 plan null and void and return to the 1991 classifications. According to Vázquez, Santiago explained at that meeting that the PDP had won the election and, in Vázquez‘s words, said that “they had to adopt actions with employees, that they had to clean house . . . .” Santiago then explained that the affected employees had certain rights to administrative hearings and, again in Vázquez‘s words, “that whomever wished to go through attorneys, well, they then had to bear the consequences of their actions and that we would see each other in Court.” Vázquez testified that Delgado then took the floor, saying that she agreed with Santiago;
Following Delgado‘s explanation of the appeals process, the employees were handed letters describing their new classifications and explaining the reasons for the reclassifications. The letter to Vázquez stated that she lacked the academic preparation or experience for her current position and was being reassigned to Office Worker/Typist I, the position she held in 1989. According to the defendants’ review of her personnel file, that was the last position to which Vázquez had validly been appointed.
Vázquez attended a hearing in front of an administrative hearing officer on September 9, 2001.5 According to Vázquez, the hearing lasted approximately five minutes. In January 2002, the hearing officer issued a report and recommendation to the effect that Vázquez had been illegally hired and promoted. Although Vázquez remained in the Executive Director II position at the monthly salary of $2083 pending the outcome of the hearing, she was officially reassigned to Office Worker/Typist I by letter of January 30, 2002. Her monthly salary was reduced accordingly to
- 1985: Office clerk
- February 1, 1989: Office Worker/Typist I ($545 monthly salary)
- July 1, 1993: Secretary III ($1019 monthly salary)
- August 16, 1993: Assistant Director ($1752 monthly salary)
- 1997: Executive Director II (change of title because of changes in the 1997 plan)
- May 1, 1999: Administrative Assistant (trust position)
- January 10, 2001: Executive Director II ($2083 monthly salary)
- February 1, 2002: Office Worker/Typist I ($900 monthly salary)
- April 9, 2002: resignation effective
D. The Lawsuit
Vázquez brought this civil rights action pursuant to
On March 27, 2002, prior to trial, the defendants moved for summary judgment, with Santiago and Delgado raising the affirmative defense of qualified immunity in their individual capacities. The district court denied the motion. A jury trial began on April 30, 2002. At the close of all evidence, defendants moved for judgment as a matter of law under
On May 14, the jury found for plaintiff, awarding her $275,000 in compensatory damages for mental and emotional pain and suffering, $6,828 in compensatory damages for lost earnings, and
The defendants raise several arguments on appeal. First, they urge that the district court erred in denying their Rule 50 motion as to the political discrimination claim.8 Second,
II.
A. Standard of Review
The standard for setting aside a jury verdict pursuant to
B. Analysis of Political Discrimination Claims
A governmental employee who is not in a policy-making position of confidence and trust is shielded from adverse employment decisions because of the employee‘s political affiliation. Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 7 (1st Cir. 2000) (citing Branti v. Finkel, 445 U.S. 507, 517-19 (1980), and Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990)).9 When a plaintiff brings a political discrimination
The defendant, of course, may offer rebuttal evidence to attempt to disprove that political affiliation played a substantial role in the adverse employment action. Additionally, even if the plaintiff establishes that proposition by a preponderance of the evidence, the defendant may raise an affirmative defense: it may attempt to “prove by a preponderance of the evidence that plaintiff[] would have been dismissed regardless of [her] political affiliation.” Acevedo-Diaz, 1 F.3d at 66; see also Mt. Healthy, 429 U.S. at 287; Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 124 (1st Cir. 2004). In other words, even if the plaintiff has shown that her political affiliation was a substantial or motivating
C. The Evidence Adduced at Trial
We will reverse a jury verdict in a case such as this “only if: (1) the record evidence compelled the conclusion that the plaintiff would have been dismissed in any event for nondiscriminatory reasons [in other words, the Mt. Healthy defense prevails as a matter of law], or (2) the plaintiff did not introduce sufficient evidence in the first instance to shift the
1. Plaintiff‘s Witnesses
Plaintiff offered testimony from four witnesses: (1) María Sánchez Coraliza (“Sánchez“), Assistant Director of the Human Resources Office and author of both the 1991 and 1997 job classification plans; (2) David Córdova Torrech (“Córdova“), now retired after fourteen years of municipal service that included serving as director of the Citizen‘s Office for the Mayor and as Vázquez‘s direct supervisor; (3) Linda E. Rivera Vega (“Rivera“), who was purchasing and procurement bids director for the municipality during six months relevant to this litigation; and (4) Vázquez herself.
a. Sánchez
Sánchez testified that when she became aware that Santiago was considering rescinding the 1997 plan and restoring staffing in accordance with the 1991 plan, she told him “that I did not believe that he should take upon himself to do the action that
In answer to questions about how many employees were switched from career employee status to transitory employee status as a result of the Mayor‘s decision to rescind the 1997 plan, Sánchez could not give a numerical estimate. Instead, she mentioned some names of affected people whom she personally knew. After listing five people by name and saying that she “would have to mention a whole bunch of them because there were many,” Sánchez testified that “all these people” belonged to the NPP.
Plaintiff also elicited testimony from Sánchez regarding Vázquez‘s qualifications for the positions to which she had been appointed. In sum, Sánchez testified that Vázquez was qualified for all the positions she had held at the municipality. However, Sánchez admitted on cross-examination that Commonwealth law requires, with some exceptions, that before a position is filled it must be posted or advertised; that the vacancy must be filled using a system called the “register of eligible” or some alternative
b. Córdova
Córdova, director of the Citizen‘s Office for the Mayor and Vázquez‘s direct supervisor, testified to Vázquez‘s increasing responsibilities and growth as an employee during her tenure with him. During Vázquez‘s thirteen years under Córdova, he made two written evaluations of her job performance. Additionally, Córdova explained that he petitioned the former mayor to appoint Vázquez as Assistant Director of a branch of the Citizen‘s Office. For purposes of our appellate review, we will assume that Córdova‘s testimony regarding Vázquez‘s job responsibilities established that she met the minimum stated requirements for the positions of Secretary III and Assistant Director (a position that was essentially renamed Executive Director II in 1997).
c. Rivera
Rivera, a member of the PDP, testified that she told Delgado “that I am a person who under no circumstances will persecute anyone because as she [Delgado] knows, I have been persecuted for more than seventeen years by the NPPers and the
Rivera also testified about her understanding and observations of political persecution during her time at the municipality. She explained her “understanding that persecution involves leaving an employee without work,” and when Rivera passed Vázquez‘s desk, she often observed that Vázquez had no work to do. Rivera made the same observation about one other employee. In consequence, Rivera told the municipal secretary, Dora Martinez Torres (“Martinez“),10 to “‘watch out,’ because since she belongs to another party, and was not giving them any work it could be understood that it was political persecution.” Rivera said that Martinez was a member of the PDP and that she began work after the new administration took office. Additionally, she explained that while at first she did not have an adverse relationship with Martinez, their working relationship later soured because of Martinez‘s “persecution with the employees.”
According to Rivera, she used to have lunch with Martinez and Delgado, but “upon seeing that they thought differently than the way I thought, well, then I understood that it was best not to have lunch to avoid taking any decisions, well, leave my job, be a
Rivera was asked whether she “could tell the jury if the members of the New Progressive Party employees were targeted for this personnel action” of receiving the reassignment letters. Rivera replied: “Yes, because the employees who were given permanence in ‘97, well, those were the employees who would be subjected to the application of the law in which their permanence would be taken away from them.” Upon prompting, Rivera said that those employees belonged to the NPP party.
d. Vázquez
Vázquez was on the stand for three days. In addition to detailing her work history and the responsibilities of her
employment with the municipality, Vázquez testified that her academic preparation and experiences qualified her for all of the municipal positions that she had held. Vázquez also testified that her immediate supervisor, Martinez, both made politically discriminatory remarks, including stating that “[w]ell, hopefully they will kill all the NPPers” and failed to give her any work from January to August of 2001. On August 24, 2001, Vázquez sent a letter and an accompanying table to Martinez detailing her work assignments since January 15, 2001 (excluding one month of vacation and one month of sick leave over the seven-month period). The letter informed Martinez that of the remaining five months of that period, Vázquez performed tasks on forty-two of the 106 work days. On cross-examination, Vázquez admitted that she never informed Delgado or Santiago of her lack of work, saying that it is “not the mechanism, and that would be gossip.” She further admitted that after Martinez received her letter of August 24, Vázquez was given sufficient work to occupy her work days.Vázquez testified about the meeting on May 22 when between fifteen and eighteen employees were given their reassignment letters. She said that all of the employees at the meeting were members of the NPP who “held positions of hierarchy in the previous administration.” According to Vázquez, “the Mayor began the meeting indicating that he was the person in power, that the Popular Democratic Party had won. That they had to adopt
Vázquez also recounted the details of what appears to be the only other time she met Santiago. When Santiago was campaigning and seeking votes, he visited the community where Vázquez lived. According to Vázquez, “[h]e came up the stairs. At that point he introduced himself as a candidate for the Popular Democratic Party and at that point I told him that I belonged to the New Progressive Party, that I campaigned for the NPP from 1984. That I was a militant and that I had held assorted positions with the administration of Mayor Victor Soto and as all candidates he told me that he was counting on my vote.” Plaintiff‘s counsel then asked Vázquez whether Santiago “was able to recognize you that you
Vázquez also testified about her activity on behalf of the NPP. She had been an electoral college officer since the age of eighteen and president of the committee for her local ward in Toa Baja. Vázquez participated in mobilization, fundraising, organizing, and “all kinds of activities related to politics and the NPP.”
2. Defendants’ Uncontradicted Testimony
Before considering this testimony, we observe that a strong case could be made that defendants’ motion for judgment as a matter of law at the close of plaintiff‘s case should have been granted. Of course, defendants do not make this argument on appeal. Having put on a defense at trial, they are foreclosed from doing so. See Gillentine v. McKeand, 426 F.2d 717, 723 (1st Cir. 1970) (“defendant‘s motion for a directed verdict at the close of plaintiff‘s case expired” upon the introduction of substantial defense evidence and was not preserved for appeal). Accordingly, in evaluating defendants’ appeal from the district court‘s denial of their motion for judgment as a matter of law after the close of all evidence, we consider both plaintiff‘s evidence and the uncontroverted evidence offered by defendants. Santiago-Negron, 865 F.2d at 445.
a. Delgado
Delgado further testified that Vázquez‘s personnel file contained no indication that the Human Resources Department followed the procedures and analysis required to reclassify an employee, without competition for the position, based on the
b. Santiago
In uncontradicted testimony from Santiago, he explained that he sought advice regarding the effect and legality of the 1997 plan, and that he acted on that advice. As noted, the evidentiary rulings below prevented the defense from putting before the jury the nature of the advice the defendants received.
Santiago further testified that of the municipal employees who received letters adjusting their status, “nearly half of them, their salaries have increased, others have gone down.” He also testified that he retained several members of the opposing party in trust positions after he took office and that he took only one of his people into the mayor‘s office with him. According to Santiago, “the rest of them, I honored their position and I allowed them to remain, despite the fact that it‘s a high confidentiality position . . . .”
Santiago was asked on cross-examination whether he knew the party of the employees who lost permanent status and became transitory employees by virtue of declaring the 1997 plan void. He replied that “[t]here are members of all three parties.” When pressed for an estimated percentage break-down among the parties, Santiago could not provide one, but he agreed that there were more NPP members than PDP members in that group. When counsel asked
D. Topical Summary of the Evidence
On topics important to establishing a political discrimination claim, the evidence that we have reviewed through the
1. Personnel Actions
Defendants rescinded the 1997 plan and reassigned several hundred employees, including Vázquez, in accordance with the 1991 plan. Sánchez testified that she advised Santiago to seek advice before deciding to rescind the 1997 plan. Santiago‘s uncontradicted testimony was that he did indeed seek such advice. As we have described, the nature of that advice was kept from the jury at trial.
Sánchez testified that the people whom she knew who were affected by the reclassification plan were NPP members. Rivera also testified that affected employees belonged to the NPP. However, the kind of personnel review undertaken by defendants necessarily would impact more NPP members because of the long dominance of the NPP over municipal affairs. Indeed, Santiago agreed with plaintiff‘s counsel that approximately seventy-five to
Santiago‘s uncontradicted testimony was that nearly half of the employees affected by the personnel changes actually received higher salaries. Plaintiff neither rebutted this testimony nor offered any evidence that there was a disparity -- by political affiliation or otherwise -- between those who received higher salaries and those who received lower salaries under the new reclassifications.14
2. Treatment of Vázquez
Vázquez lacked sufficient work to occupy her time from January through August 2001 (less the two months when she was on leave). When Vázquez sent a letter to her immediate supervisor, Martinez, detailing her lack of work projects during this time, Martinez began assigning Vázquez adequate work. Additionally, Vázquez was demoted from Executive Director II to Office
Sánchez and Córdova testified that Vázquez met the minimum qualifications for each of the positions to which she had been appointed. However, Sánchez admitted that the municipality generally did not follow the procedural requirements for personnel actions. Plaintiff never offered any clear evidence or testimony that her appointments either met these procedural requirements or were eligible for an exception to any of the requirements. In fact, Vázquez admitted that she was promoted without going through the regular competitive process or serving the normally required probationary period. Furthermore, Delgado‘s uncontradicted testimony was that there was no material in Vázquez‘s personnel file to show either that the procedural requirements were followed or that Vázquez‘s appointments were eligible for an exception to the usual procedural requirements.
Taking the evidence in the light most favorable to the plaintiff, Vázquez arguably established that she did not need to comply with the normal appointment procedures when she assumed the position of Executive Director II because that position was simply a reclassification of the position of Assistant Director. However, Vázquez‘s demotion to Office Worker/Typist I was premised on the alleged illegality of her appointment to Secretary III, not on any
3. Statements of Discriminatory Intent
At the May 22 meeting, where fifteen to eighteen NPP employees received letters adjusting their positions within the municipality, the Mayor stated that the “Popular Democratic Party had won. That they had to adopt actions with employees, that they had to clean house and that they were going to deliver letters to us in which there would be changes in our salaries or our permanence . . . .”15 Plaintiff presented evidence of one other statement evincing discriminatory intent or animus: Martinez, plaintiff‘s direct supervisor and a non-party in this case, said at a gathering something like “[w]ell, hopefully they will kill all the NPPers.”
4. Rivera‘s Perception of Political Retaliation
Rivera, a member of the PDP, offered what is best characterized as lay opinion testimony: she thought political retaliation was occurring in her department under Martinez, based on her observation that Vázquez and one other employee were not fully occupied with work, at least for some period of time. Rivera testified that “if I saw anything or understood that there would be any persecution, that I would rather resign and that is what I
However, Rivera also testified that she and Delgado did not talk about politics, and that the only political comment Delgado made to her was one that “had to do with the process when letters were to be delivered that there would be equality -- let‘s say that the salaries were going to be lowered or if their permanence was going to be removed, well, then it would be the same for everyone notwithstanding the person [or regardless of the pressure] involved.” This testimony by plaintiff‘s own witness establishes that Delgado indicated that the reclassifications would be done with “equality” and that changes in permanence or salaries would be implemented regardless of the people affected (or the pressure involved). This testimony -- elicited by plaintiff‘s counsel during her case-in-chief -- supports defendants’ claims that they implemented the reclassifications in a neutral manner.
E. Analysis of the Evidence
This evidence is not sufficient to show that plaintiff‘s political affiliation was a substantial or motivating factor in
adduced no evidence that the defendants knew she was a member of the NPP. She attempts to bolster her political discrimination cause of action by alleging that [defendants] must have been aware of her political affiliation because she was a well-known supporter of the NPP in the community, had held a previous trust position under the NPP administration, and was allegedly demoted shortly after the PDP assumed power. [Plaintiff] points to [defendant‘s] statement that she wanted [plaintiff‘s] office and position to go to an employee of her trust as indication of a causal link between her political beliefs and the change in her employment conditions.
Id. at 85-86. In Gonzáles-De Blasini, we held that such evidence was “insufficient to show that political affiliation was a substantial factor in the challenged employment action.” Id. at 86.
Vázquez has shown no more here. The fact that Santiago met Vázquez during routine campaign canvassing, and that Vázquez then identified herself as a member of the NPP and an employee of Mayor Soto‘s, does not lead to a reasonable inference that Santiago
Even if a jury could reasonably infer that defendants knew that plaintiff was a member of the NPP, that still is insufficient. Proving that her political affiliation was a substantial or motivating factor in the adverse decision requires more than “[m]erely juxtaposing a protected characteristic -- someone else‘s politics -- with the fact that the plaintiff was treated unfairly.” Correa-Martinez v. Arrillaga-Beléndez, 903 F.2d 49, 58 (1st Cir. 1990). Indeed, the evidence falls short of even showing that Vázquez was treated “unfairly.” Regardless of whether
The mayor‘s alleged comment about “cleaning house” also is not sufficient to sustain plaintiff‘s burden. In Figueroa-Serrano, a plaintiff testified that the mayor said that “he was going to clean City Hall of most NPP employees . . . .” Figueroa-Serrano, 221 F.3d at 4.16 In granting defendants’ summary judgment motion, we observed that the plaintiffs relied on “generalized assertions of the defendants’ affiliation with the rival political party” and the enactment of a personnel policy change after the elections. Id. at 8. “The only specific evidence that they offer is the sworn statement of a single plaintiff that [the mayor]
Plaintiff has done no better here. Indeed, Vázquez‘s testimony regarding Santiago‘s “cleaning house” comment is even less forceful than the plaintiff‘s testimony in Figueroa-Serrano. There, the mayor allegedly said specifically that he intended to get rid of NPP members. Here, Vázquez did not even allege that kind of direct statement from Santiago. In contrast to Vázquez‘s case, we have upheld a district court‘s denial of motion for a judgment notwithstanding the verdict when the plaintiffs presented “ample evidence that [the defendant mayor] (1) knew plaintiffs were affiliated with NPP, (2) vowed to rid the [municipal] government of NPP members, (3) gave instructions to ‘chop off the heads of the NPP members,’ and (4) told municipal employees to switch to the PDP.” Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 (1st Cir. 1991). Vázquez has produced no comparable evidence here.
Importantly, Vázquez also offered no evidence that PDP members were hired to replace the reassigned NPP members. In fact,
At first blush, the actions and statements by Martinez, Vázquez‘s supervisor, are troublesome. Martinez failed to provide adequate work to keep Vázquez occupied for five months, and
The plaintiff presented no evidence that Santiago or Delgado created an atmosphere of discrimination or a policy of leaving NPP employees without work, and she made no claim that Martinez was implementing any such policy during the months that Vázquez had insufficient work. In fact, plaintiff‘s witness Rivera testified that the fourteen NPP employees she supervised were always provided with adequate work. In sum, whatever problems Vázquez may have had with her immediate supervisor, Vázquez presented no evidence that any comment or action by Martinez is fairly attributable to the defendants in this case, and, on these facts, Martinez‘s statement is not probative of whether defendants acted with discriminatory animus.
In short, plaintiff failed to show that her political affiliation was a substantial or motivating factor in her demotion or alleged constructive discharge. Although plaintiff‘s allegations of “political discrimination can be built on
III.
We do not set aside jury verdicts lightly. Nevertheless, when plaintiff fails to adduce sufficient evidence for a jury to reasonably infer that plaintiff‘s political affiliation was a substantial or motivating factor in an adverse employment action, we must do so. For the forgoing reasons, we vacate the judgment and order the entry of judgment for defendants. The parties shall bear their own costs.
So ordered.
Notes
August 2 Opinion at 23.[d]efendants have shown with documentation and affidavits that they had legitimate reasons (i) to believe that the 1997 Changes were a new plan (including the view of governmental agencies) and (ii) for re-classifying Plaintiffs. Defendants have also shown that they did such re-classification in accordance with the law and at the instance of the Comptroller, a man appointed by the NPP former governor.