464 F.

3d 29

Miguelina PEGUERO-MORONTA, Plaintiff,

Maribel Negrn-Almeda, et al., Plaintiffs, Appellants,
v.
Carlos Gabriel SANTIAGO, et al., Defendants, Appellees,
Vilma Jimnez, Defendant.
No. 04-2589.

United States Court of Appeals, First Circuit.

Heard May 4, 2006.
Decided September 20, 2006.

COPYRIGHT MATERIAL OMITTED Pablo Landrau Pirazzi, with

whom Aldarondo & Lpez Bras was on brief, for appellants.
Hctor Bentez-Arraiza, with whom Francisco Ros-Rivera and Llovet
Zurinaga & Lpez, P.S.C. were on brief, for appellees.
Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.
LIPEZ, Circuit Judge.

Maribel Negrn-Almeda, Aracelis Gascot-Cuadrado, and Nilda PrezMontalvo (collectively, "Plaintiffs"), former employees of Puerto Rico's
Commercial Development Administration ("CDA"), brought suit against Carlos
Gabriel Santiago, Susana Hernndez Colon, and Vilma Jimnez (collectively,
"Defendants"), officials of that agency, pursuant to 42 U.S.C. 1983 for
wrongful termination because of their political affiliation. Plaintiffs asserted
that these adverse employment actions violated their First Amendment rights
under the United States Constitution.

At trial, Plaintiffs' case focused on the circumstances of their dismissals at the

end of the probationary periods for their career positions. At the close of
Plaintiffs' case, Defendants moved for judgment as a matter of law pursuant to
Fed.R.Civ.P. 50(a), asserting that Plaintiffs had not presented a prima facie
case of political discrimination. The district court granted that motion in part

and denied it in part. After Defendants presented their case, which sought to
justify Plaintiffs' terminations because of their poor job performance,
Defendants renewed their Rule 50(a) motion. Relying on our decision in
Vzquez-Valentn v. Santiago-Daz, 385 F.3d 23 (1st Cir.2004), which has now
been vacated by the United States Supreme Court on the basis of its decision in
Unitherm Food Sys. v. Swift-Eckrich, ___ U.S. ___, 126 S.Ct. 980, 163 L.Ed.2d
974 (2006),1 the district court concluded that Plaintiffs had presented
insufficient evidence of political discrimination to get their case to the jury.2
Conducting our own review of the evidence presented at trial, which includes a
credibility contest between Plaintiffs and Defendants over the circumstances of
Plaintiffs' job loss, we vacate the district court's judgment in favor of
Defendants and remand for further proceedings.
I.
3

Before we summarize the evidence in this case, we must describe the ruling of
the trial judge at the heart of this appeal. The jury trial began on September 20,
2004. At the close of Plaintiffs' case on September 21, 2004, Defendants moved
for judgment as a matter of law under Fed. R.Civ.P. 50(a), asserting that
Plaintiffs had not presented sufficient evidence to reach the jury on their case of
political discrimination. Specifically, Defendants argued that Plaintiffs had not
demonstrated that their political affiliation was a substantial or motivating
factor in their terminations. The district court granted Defendants' Rule 50(a)
motion in part and denied it in part:

(1) All claims against Vilma Jimnez ("Jimnez"), Director of Human

Resources and Legal Services, were dismissed;

(2) The claims brought by Maribel Negrn-Almeda ("Negrn") and Aracelis

Gascot-Cuadrado ("Gascot") against Susana Hernndez Colon ("Hernndez"), a
Human Resources Officer, were dismissed; 3

(3) The First Amendment claim of Nilda Prez-Montalvo ("Prez") against

Hernndez survived;

(4) The First Amendment claims of all of the Plaintiffs against Carlos Gabriel
Santiago ("Santiago"), Administrator of the CDA, survived.

At the close of their case on September 27, 2004, Defendants moved for
judgment as a matter of law a second time on the remaining claims, on
essentially the same grounds as their first Rule 50(a) motion. Ruling from the

bench that same day, the district court granted Defendants' motion. In
presenting their renewed Rule 50(a) motion, Defendants relied heavily on our
decision in Vzquez-Valentn, which was published during the trial. It is also
apparent from the record that the district court reviewed Vzquez-Valentn
during the noon break between the morning session of the trialwhen
Defendants made their second Rule 50(a) motionand the afternoon session
when the district court ruled on the motion. The district court explained its
reading of the import of Vzquez-Valentn in these terms:
9

If this caseif the case of Vzquez-Valentin did not meet the standard of proof
for jury submission as to the fact of whether political discrimination was a
substantial or motivating factor in the challenged employment action, then this
case, that we are trying now, the one that is before us, doesn't meet it, either.

10

The truth of the matter is that the case of Vzquez . . . contained a lot more
evidence of potential discriminatory motives and of a circumstantial nature than
the one that we are trying.

11

So under those circumstances, it seems to me that I don't see how I can let this
case go to the jury.... I recognize, and I know, on the basis of my experience,
that when these things happen in the context of positions like this, usually you
have to look carefully, because there is always the good possibility that
improper political motives were behind the personnel action. But it is not what
I think; it is what the evidence sustains.

12

And obviously, the problem that I have here is that there is no evidence other
than a scintilla of evidence to let this case go to a jury, and this case [VzquezValentn] is extremely clear as to what is required. And the case before me
doesn't satisfy the standard. ....

13

So on the basis of that, I have no other alternative but to disregard my own

feelings as to what the case is and enter a judgment under Rule 50, dismissing it
on the basis of insufficiency of evidence on the issue of political discrimination
under this case of Vzquez v. Santiago [sic]. No other alternative.

14

Plaintiffs read this ruling as reflecting the district court's focus on the evidence
in their case only and a disregard of the evidence presented by Defendants. If,
in fact, the district court examined only the evidence presented in Plaintiffs'
case when granting Defendants' renewed Rule 50(a) motion, this would be an
error of law. See 9A Wright & Miller, Federal Practice and Procedure, Civil
2d 2534 (2d ed. 1994) ("A renewed [Rule 50(a)(1)] motion will be judged in

the light of the case as it stands at that time."); Potti v. Duramed Pharms, Inc.,
938 F.2d 641, 645 (6th Cir. 1991) ("Our review of whether there was
[sufficient] evidence [to survive judgment as a matter of law] . . . must be based
on the entire record, not just the record at the end of plaintiffs' case, because
[the defendant] proceeded to offer evidence in its own defense.").
15

Although Plaintiffs' reading of the district court's ruling is plausible, Defendants

advance an equally plausible readingthe district court evaluated all of the
evidence adduced during the trial when it announced its bench ruling. For
example, in an exchange with defense counsel concerning the renewed Rule
50(a) motion, the district court insisted "[r]emember, I wanted the [sic] hear the
evidence as a whole."

16

In the end, we need not decide which characterization of the district court's
ruling is accurate. Even if the district court had unambiguously focused only on
Plaintiffs' evidenceand hence had committed an error of law by disregarding
Defendants' evidence when ruling on the renewed Rule 50(a) motionwe
could not rule in Plaintiffs' favor if, in fact, the totality of the evidence did not
permit their case to go to the jury. We engage in de novo review of the district
court's decision granting judgment as a matter of law. See Webber v. Int'l Paper
Co., 417 F.3d 229, 233 (1st Cir.2005). We can affirm on any basis available in
the record because "[w]e are not wedded to the lower court's rationale, but,
rather, may affirm its order on any independent ground made manifest by the
record." InterGen N.V. v. Grina 344 F.3d 134, 141 (1st Cir.2003). Therefore,
the dispositive question on appeal is whether, in light of the totality of the
evidence, the district court correctly ruled that there was insufficient evidence
of political discrimination to permit the Plaintiffs' case to go to the jury. To
pursue this inquiry, and to provide an adequate basis for explaining our
decision, we must first set forth in some detail the evidence adduced at trial.

II.
17

On November 7, 2000, general elections were held in Puerto Rico. The Popular
Democratic Party's ("PDP") candidate for governor won that election, leading
to a change of administration from the incumbent New Progressive Party
("NPP") to the PDP. Defendant Santiago was appointed Administrator of the
CDA on or about January 7, 2001. As such, he was in charge of all of the
CDA's operations. At the time of the change in regime, Defendant Hernndez
served as a Human Resources Officer and Officer of Labor Relations, meaning
that she carried out hiring and termination decisions and managed payroll, with
Santiago's approval. Plaintiff Prez worked in the human resources department
of the CDA, where she maintained attendance and payroll records. Plaintiff

Negrn served as the director of the general services division. She was
responsible for supervising the maintenance of the CDA's physical plant and
equipment, obtaining supplies, and providing support for the vehicles and
equipment of her division. Plaintiff Gascot was director of the CDA's
management and entrepreneurial school. Her duties included managing the
school's equipment and physical resources, budgeting, and planning the
school's curriculum.
18

Within three to four weeks after the change of administration in early January
2001, all of the Plaintiffs had lost their jobs at the CDA. Plaintiffs' case
consisted almost entirely of descriptions of what happened to them in those
three to four weeks, and the circumstances of their terminations from the CDA.
Defendants' case consisted entirely of explanations of why they were justified
in terminating Plaintiffs. Although the trial lasted six days, and included other
witnesses,4 we summarize only the testimony of the three Plaintiffs and the two
remaining Defendants. For the testimony of each of the PlaintiffsPrez,
Negrn, and Gascotwe divide the summary of their testimony into three
sections: (1) before the change of administration; (2) after the change of
administration; and (3) political affiliation testimony. Then we summarize the
testimony of DefendantsSantiago and Hernndezwith Santiago's testimony
related as it pertains to each of the three Plaintiffs; and Hernndez's related only
as it pertains to Plaintiff Prez. As noted earlier, the First Amendment claims of
each of the three Plaintiffs against Santiago survived Defendants' first Rule
50(a) motion. But only Prez's claim against Hernndez survived that same
motion.
A. The Plaintiffs
1. Nilda Prez-Montalvo

19

a. Employment history before Santiago's arrival

20

Prez obtained a bachelor's degree in economics and a master's degree in

business administration, specializing in human resources. She worked in
government for about nine years before leaving to raise her children. At the
time she left, she served as an economist at the Statistics Bureau in the
Department of Labor. After her children matured, she decided to return to work.

21

She returned to work first in the private sector at a temporary employment

services company, Top Notch. Top Notch told her to apply for a vacant
secretarial position in the CDA administrator's office, which she obtained.

While working in the administrator's office, Prez applied for and obtained a
career position in the CDA's human resources office.5
22

Prez stated that her first task in her position in the human resources
department was to update the time cards of all CDA employees, which had
fallen behind since her predecessor's departure in December 1999. She was
"supposed to check the time cards, the weekly time cards, that all the
employees had to punch and check to see if they had worked every day, if they
had not worked every day. See if they had taken leave . . . . In other words, I
was supposed to record their attendance on a weekly basis." Prez testified that
she performed this work, at least initially, on an adding machine, which her
predecessor had done, despite her knowledge of computer programs and usage.
Subsequently, she began to use a computer to do her work. She stated that the
attendance records were current up to December 2000 at the time of her
termination.

23

As a probationary employee, Prez was subject to periodic evaluations of her

performance during the probationary period, which spanned from July 15, 2000
to January 15, 2001. She was evaluated three times prior to Santiago's
appointment as head of the CDA for the following time periods: (1) July 15,
2000 to September 15, 2000; September 18, 2000 to November 15, 2000; and
(3) November 16, 2000 to December 31, 2000. These prior evaluations, all of
which were positive, were signed by Margarita Martinez, who was the director
of the human resources department for this period (and replaced by Jimnez
when the administration changed). However, Prez understood that Hernndez,
not Martinez, was her immediate supervisor, although Prez was never
officially told this.

24

b. Employment history following Santiago's arrival and alleged performance

deficiencies

25

Prez stated that her final evaluation for her position in the human resources
department covered the period from January 1, 2001 to January 15, 2001, the
final day of her probationary period. She was evaluated by Hernndez, her
superior in the human resources office. However, Prez also stated that, during
those fifteen days, she and Hernndez were actually in the office at the same
time for only six and a half days because of weekends and holidays. On this
final written evaluation, Hernndez had written that Prez was not receptive to
instructions, unreliable, and "rarely willing to collaborate."

26

No one reviewed Prez's final evaluation with her. Also, Prez never received

any verbal admonishment or reprimand for the various mistakes reported on the
final evaluation. The written evaluation was handed to her on her final day at
the CDA, which was January 12, 2001.6
27

On cross-examination, defense counsel questioned Prez's testimony that she

had never been verbally reprimanded for errors she committed in her work.
Defense counsel also asked about the details of those instances of error. Prez
claimed that she had no recollection of having committed any errors. Defense
counsel also questioned Prez regarding the necessity of using a computer to
complete the tasks assigned to her. Prez contended that a computer was
necessary to perform her tasks "efficiently".

28

c. Political affiliations

29

Prez testified that she was affiliated with the NPP and had been since she was
a teenager. During election years, she had attended party meetings. Although
Prez testified that she knew Hernndez's political affiliation, she never
explicitly identified that affiliation for the court. As to Santiago, Prez knew
that he was the new appointee for Administrator of the CDA for the incoming
PDP administration.

30

Regarding Defendants' knowledge of her political affiliation, Prez stated that

her affiliation with the NPP was widely known at the CDA. Politics was openly
discussed at the office, particularly during the 2000 election year, and she was
"very open about [her] affiliation .... When [she] obtained the position in the
human resources office [she] spoke with [her] fellow co-workers there about
[her] political affiliation." Just before the 2000 elections, she stated that she had
left to attend an NPP meeting during her lunch hour and all of her co-workers
saw her leave. While Prez never directly discussed politics with Hernndez,
she believed that Hernndez knew her political affiliation because there were
only six people in her office at the CDA. In her prior position in the CDA
administrator's office, all of the employees were affiliated with the NPP, and
she "didn't hide [her affiliation] because [she] didn't have reason to."
2. Maribel Negrn-Almeda

31

a. Employment history before Santiago's arrival

32

Negrn had a bachelor's degree in business administration. After obtaining her

degree she began work in the private sector, where she worked until she
married and left the workforce for a time. After that break, she began working

at the CDA shortly before the change in administration. Her position, a career
position, had a six-month probationary period from August 1, 2000 to January
31, 2001.
33

Negrn testified that she was evaluated three times prior to Santiago's arrival at
the CDA for the following time periods: (1) August 1, 2000 to September 30,
2000; (2) October 1, 2000 to November 30, 2000; and (3) December 1, 2000 to
December 31, 2000. Juan Matos Gonzalez, Negrn's supervisor and the
auxiliary superintendent of the CDA prior to the change in administration,
performed these evaluations, all of which were positive. Gonzalez occupied a
trust position and tendered his resignation effective December 31, 2000. To
Negrn's knowledge, no one was appointed to replace him following Santiago's
arrival.

34

b. Employment history following Santiago's arrival and alleged performance

deficiencies

35

Plaintiffs' counsel asked Negrn about some "incidents" that occurred

following the arrival of Santiago. One incident involved changing the locks on
the door of Santiago's office. According to Negrn, Santiago's secretary
instructed her to have the lock installed a certain way, and Negrn contacted the
appropriate company and conveyed these instructions. However, the technician
installed the lock incorrectly. "The following day [Negrn] was told there was a
problem. [She] once more called the company. The company came back and
they once more reinstalled the lock." The only verbal admonishment Negrn
acknowledged "had to do with [this incident]. That was the wrong way. So we
proceeded to change it."

36

Another incident involved the placement of some file cabinets and other
furniture, including a counter/desk. Negrn testified that once she received the
requests from Santiago, she attempted to contact the two employees who
performed these duties; however, the position for one of those employees was
vacant, and the other employee was "quite old[,] and those file cabinets
weighed approximately 100 pounds." She informed Santiago of the problem,
but told him that she would ask two other employees to do the moving. Because
these two employees were not specifically tasked with this type of work, they
had to coordinate schedules to find a time that would work, which caused a
delay in the moving of the cabinets. To Negrn's recollection, Santiago was
pleased with the work that was done.

37

Negrn also recalled Santiago asking her "to have an air conditioner duct

moved which was in his office." She "coordinated with the company that had
the air conditioning contract . . . [and] received the estimate for the work."
However, that work was never carried out while Negrn was at the CDA
"because [Santiago] never signed the authorization for [her]."
38

On her final evaluation, for the period from January 9, 2001 to January 31,
2001, Santiago gave her failing marks. In the written evaluation Negrn
received, Santiago stated that Negrn had ignored his instructions and
performed tasks carelessly and negligently. The evaluation contained similar
comments about her cooperativeness. Negrn stated that Santiago never
discussed his negative evaluation with her. Negrn testified that Santiago gave
the evaluation to her at the end of the work day on January 31, 2001, her final
day at the CDA, and informed her that she did not pass her probationary period.

39

On cross-examination, defense counsel questioned Negrn's account of her

performance of the tasks requested by Santiago. Specifically, he asked her:
whether the furniture and file cabinets were moved on the same day that she
was told to have them moved; for more details as to why the air conditioner
was never installed; and whether the lock had been installed improperly
because she conveyed inaccurate instructions to the technician. Negrn
responded that: any delay in moving furniture and file cabinets was caused by
unavoidable logistical issues, and the objects were moved as fast as possible;
the air conditioner was not installed because Santiago never gave proper
written authorization; and the improper installation was the result of an error by
the technician (rather than an error in her instructions) that was corrected as
soon as was possible.

40

c. Political affiliations

41

Negrn testified that she had been affiliated with the NPP since "[she] was very
young." This affiliation was formalized in June 2000 when she went to an NPP
office and filled out paperwork to that effect. Negrn stated that she knew the
political affiliation of Santiago: "[D]uring the few times that I was able to talk
to him he would stress that he enjoyed the full trust of the governor and he
would always say that he enjoyed a position of trust because he had the
governor's trust, so I understood that he hadhe was affiliated to that party
[PDP]." In particular, Negrn recalled Santiago raising this issue of political
affiliation when he asked her to change the car that had been assigned to him at
the CDA.

42

As for Defendants' knowledge of her political affiliation, Negrn believed that

her affiliation was known at the CDA because "the elections were already
approaching by that time.... [I]n my area people would talk. . . . We would talk
about who would win and who would lose . . . . We would talk and you would
talk about who you felt was going to win and everybody just knew your party."
3. Aracelis Gascot-Cuadrado
43

a. Employment history before Santiago's arrival

44

Gascot had a bachelor's degree in business administration, with a focus on

secondary education, and a master's degree in administration and supervision of
schools. She worked as a teacher in a number of high schools, and then later in
a superintendent's office until 1993 when she began working in the CDA as the
entrepreneurial director, which at that time was categorized as an "Assistant II"
position. She worked in this position for seven years. In the spring of 2000,
Gascot became aware of a posting, dated April 14, 2000, for the position of
director of the CDA's management and entrepreneurial school, a career
position. She applied for and obtained this position, which had an "eight-month
probation period [and] I was to have evaluations every two months ... the first
evaluation undertaken from June the 1st to July the 31st. The first of the first
two months of work." The probation period would end on January 31, 2001.
Gascot's duties included managing the school's equipment and physical
resources, budgeting, and planning the school's curriculum.

45

Within that eight-month period, Gascot was evaluated for the following time
periods: (1) June 1, 2000 to July 31, 2000; (2) August 1, 2000 to September 30,
2000; (3) October 1, 2000 to November 30, 2000; and (4) December 1, 2000 to
December 31, 2000. These evaluations were performed by Gonzalez. Gascot
received all positive evaluations. After Gonzalez's departure following the
change in administration, Gascot was not informed of anyone taking Gonzalez's
position.

46

b. Employment history following Santiago's arrival and alleged employment

deficiencies

47

Aside from a general, agency-wide meeting where he was introduced to the

CDA as the newly-appointed administrator on January 9, Gascot recalled only
"one occasion in which [she] met personally with Santiago," which occurred on
January 14 or 15. On that occasion she went to his office: "[a] group of
employees was dismissed [from their jobs] and he asked me to explain to him
regarding an aid program for them. I explained to him what the program was

about, and what was normally done." Gascot stated that Santiago never
discussed the nature of her work at the CDA and never conducted any
evaluation of the program she directed. Gascot testified that "during the
transitionary period a report was made for the work performed at the school
and it stated the amount of participants which had increased and the working
plan." While it is unclear from the record whether Gascot prepared this report
herself, Gascot stated that Santiago never requested from her either statistics
about the school or that working plan.
48

On her final evaluation, for the period from January 1 to January 31, Gascot
noted that as to her planning, organization, and performance, Santiago had
written the same thing: "improper utilization of funds and resources available in
the offering of courses, careless in the effective maintenance of the vehicle
assigned to the school." Gascot testified that this "evaluation was not discussed
with me at any time" and "was given to me on January 31, 2001. That was the
date that ended my probation period." On January 31, Gascot was told not to
leave work that day without going to the administrator's office. She went to the
administrator's office at 5:10 pm, where she was handed a letter that read, in
part: "[i]n view of the above, effective today, January 31, 2001, you are being
separated from the position you have been occupying at the agency. If you are
not in agreement with this decision you are entitled to discuss it within the next
ten days with the personnel administration." Gascot stated that "[w]hen the
document was given to me and I was about to talk ... [Defendant] Ms. Vilma
Gimnez [sic] tells me that that [sic] is not the forum for me to talk."

49

According to Gascot, it was only later, through Santiago's deposition, that she
learned why Santiago had given her such a negative final evaluation. Gascot
recalled that Santiago had "said that [she] had been assigned a mobile unit
[truck] ... [which] was deteriorated and [she] had used it wrongly and it was not
well used and there were badly used funds." To Gascot's knowledge, the
vehicle was purchased by a prior administrator in 1995 or 1996 for the CDA. It
was her understanding that "[a]ll agency vehicles are under the General
Services Administration. They are the ones who provide maintenance of the
vehicles." Gascot claimed that she never used the vehicle during her time as
director of the managerial school. Gascot also learned through Santiago's
deposition that rumors came to him from other business centers and business
people that the courses were "inefficient" and "nonoperative," but he could not
recall the names of anyone from whom he heard these rumors.

50

On cross-examination, Gascot again testified that she believed that the agency
vehicle for which Santiago held her responsible was, in fact, "the responsibility
of the general services department," which, as of August 2000, was run by

Negrn.
51

c. Political affiliations

52

Gascot stated that she was affiliated with the NPP, and had been since she first
voted forty (40) years ago. She participated in ladies' groups, political
reelection groups, and professional agencies. She also belonged to an NPP
group comprised of CDA employees that met outside of working hours. During
the 2000 election, Gascot participated in municipal campaigns, and served as an
election functionary, checking voter lists. Gascot testified that she knew the
political affiliations of both Hernndez and Santiagothey were both members
of the PDP. As to Hernndez, Gascot stated that Hernndez "had been working
[at the CDA] for many years. She has held high posts within her town. She's
also worked within her political party and it is known throughout all the [CDA]
employees that she belongs to the Popular Democratic Party." As to Santiago,
Gascot testified that "when he came to the [CDA] he came from COFEC
[Corporation for the Economic Development of the Capital City].... It was a
department within the municipality of San Juan created when Sila Maria
Calderon [the new PDP governor] was there."

53

Gascot testified that her affiliation was known at the CDA because she first
arrived at the CDA as a special aide under an NPP administration, a trust
position. Gascot recalled specifically that Hernndez had direct knowledge of
her affiliation. Gascot recalled an incident when she first started working as the
director of the managerial school. Hernndez, who Gascot identified as the
"institutional brain" of the CDA, asked her to identify her political affiliation.
By "institutional brain," Gascot understood Hernndez to be an individual who
"dedicate[s] themselves to identify[ing] the [political affiliation of the] people
when they come in." Hernndez was "the person who knows everybody in
there."
B. The Defendants
1. Carlos Gabriel Santiago

54

Before being appointed as head of the CDA, Santiago was appointed the
executive president of COFEC, "a corporation of economic development for
the capital city [of Puerto Rico]. It is a development company which gives
loans to small businesses in San Juan and also other municipalities in the
island." He was appointed by COFEC's board of twelve directors. He became
administrator of the CDA on January 7, 2001, and he "stopped being the

director in January 2002."

55

a. Prez

56

While Santiago acknowledged that Hernndez made the final decision on

Prez's retention of her position following her probationary period, he stated
that Hernndez had consulted with him. Hernndez told him that she "wasn't
satisfied with the inefficient way that Prez was performing the task of her job,
and [Hernndez] understood that [Prez] wasn't going to fulfill the expectations
of the position." Santiago ultimately endorsed Hernndez's dismissal of Prez.

57

On cross-examination by Plaintiff's counsel, Santiago conceded that prior to

Prez's termination, Santiago did not speak to her to discuss his intentions to
terminate her. He admitted that he did not remember if Hernndez had told him
about Prez's educational qualifications or the fact that Prez's position had
been vacant for six months prior to her filling that position.

58

b. Negrn

59

Santiago stated that he got to know Negrn and that "her performance was low,
very low ... more than poor. It was just bad." He testified that he gave her
instructions to move furniture and file cabinets, change locks, and repair air
conditioners. As to the moving of furniture and file cabinets, he stated that he
gave Negrn the instruction personally, but she did not comply. Moreover,
Santiago stated that Negrn misplaced the file cabinets "because it was more
than an issue of instructions or permission. It was more of [Negrn] started
establishing territory in the agency.... So it was more of hostility to me." He
stated that the file cabinets were misplaced and Negrn's reaction was simply "
[t]hat there was no space anywhere else except in my office." On another
occasion involving the moving of files, according to Santiago, it "took a few
days, three or four days, because the argument was the same: There was no
space, so those had to remain there."

60

As to the counter/desk, Santiago stated that Negrn "counterordered" the

moving of the counter from a location preferred by Santiago. He felt
"concerned and even pressured psychologically because the situation was more
than just me saying things one way and things happening another. And it was
more of a controversy." As to the air conditioning duct, Santiago confirmed
that the air conditioning in his office was never repaired. He also confirmed
that the reason "was that the order had to be in writing." However, Santiago
testified that he thought this was unreasonable. "[Negrn] insisted that every

task that she was ordered to do, even if it was the simplest of tasks, had to be in
writing ... it wasn't enough that it had to be [in] a memorandum for [Negrn],
but it also had to bethe requisition had to be signed .... the process was done
twice for whatever was needed." According to him, he asked Negrn three
times to fix the air conditioning duct, and it was never done.
61

As to the installation of a new lock on his office door, Santiago recalled that he
was in his office when it was installed. After the installation, when he went to
leave, "the lock [was] installed inside out, meaning that the lock that has the
key is on the inside, and on the outside is the part where you can do it
manually.... And so I am locked in my office. I am trapped." His specific
complaint was that Negrn did not remain to supervise the installation of the
lock. In his opinion, with the lock incident as an exemplar, "it was impossible
to articulate a particular operational plan with [Negrn] because, if things this
simple could not be solved and saying that this was simply a mistake ... it was
something that would concern any supervisor .... it even got to the point in my
mind that I concluded that, if ever there was a person that was not going to
cooperate . . . it was [Negrn]."

62

On his final evaluation of Negrn, regarding the "performance" factor, Santiago

stated that Negrn "did not meet the goals and objectives, be them small as they
could be, and also the effective solutions of unforeseen situations like the one
regarding the lock.... It shouldn't be the duty of a director to constantly be in
controversy with the head of an agency. It [was her duty] to keep in operational
conditions the physical facilities of the agency, which [Negrn] did not
perform, did not do." As to the "cooperation" factor, "[Negrn] didn't have the
appropriate attitude. It was more of a serious problem in terms of personality in
terms of trying to be in controversy all the time. And also to collaborate ... that
never happened.... And to obtain the maximum effort from the personnel.
[Negrn] never complied with this. On the contrary, she prevented things from
happening." According to Santiago, the period from January 9 to January 31
was "more than enough" time to observe Negrn's performance. He treated this
stretch of time as 20 days.

63

On cross-examination, Santiago revised this number of days for observing

Negrn to 16. He also admitted that his office was isolated from Negrn's (a
floor away) such that he only observed her when the two had direct interaction.
Santiago conceded that one of the pieces of furniture that he requested be
moved, a counter, was something that Negrn could not move on her own. As
to the lock, Plaintiffs' counsel asked, among other things, why Santiago did not
prevent the incorrect installation of the lock since he was in his office when it
was installed. Santiago stated that he was occupied with work and that the door

was actually some distance from his desk. As to the air conditioning problem,
Plaintiffs' counsel asked Santiago whether it was in fact reasonable policy for
Negrn to have written authorization for work done in order to keep a record
for accounting purposes, and because checks were issued by a separate
department of the CDA. Santiago replied that Negrn's paperwork "was
additional," meaning redundant. Plaintiffs' counsel also questioned Santiago as
to the difficulty of completing Negrn's paperwork (essentially, writing
"Approved"). Santiago responded that it would set a problematic precedent,
requiring signatures for everything.
2. Gascot
64

Santiago stated that he had an opportunity to evaluate Gascot's performance,

which he described as "`poor,' that it did not meet the standard." He claimed
that as far as planning, coordinating, and directing the entrepreneurial school,
Gascot "peformed duties that were more of a routine, more of a day-to-day
operational basis and instead of planning and coordinating and looking to the
future, that effort did not exist." As to the agency vehicle in dispute, Santiago
stated that Gascot "and I had had our differences in how to use the mobile truck
to the entrepreneurial school, the fact that it had been abandoned in the parking
lot of the agency to be deteriorated." He testified that the vehicle was assigned
to the entrepreneurial school; the funds for it came from the entrepreneurial
school; and the side of the vehicle said "Commercial Development,
Entrepreneurial School." Santiago identified documents confirming the
disrepair of the vehicle, dated December 28, 2000 and January 11, 2001.
Additionally, auditors from the controller's office requested documents and
information from Negrn regarding the purchase, maintenance, and future use
of the agency vehicle in question.

65

Santiago stated that he believed that no one in the CDA wanted to be

responsible for the vehicle"[t]he entrepreneurial school said it was from
general services, and general services said it belonged to the entrepreneurial
school." In summary, Santiago expected Gascot "[t]o assume responsibility, to
assume responsibility for things that are under her direct supervision ... [b]ut
that didn't even happen." Santiago also claimed that he "never saw [an] annual
plan [for training services] from" Gascot. He continued "I honestly think that ...
Gascot didn't have the capacity to prepare such a plan."

66

Santiago also testified that Gascot failed to develop or propose a number of

plans: a "capacitation plan" for communication between the central school in
San Juan and centers throughout the island; "a study of needs ... to develop a
study determining the needs for training which is offered to businessmen"; a

"promotion advertising plan" for "what was going to be published in the

advertisements." Additionally, he criticized Gascot for allowing "the course of
offering of the entrepreneurial school [to] become obsolete or inefficient in
terms to what the businessmen wanted."
67

Santiago claimed that he spoke to Gascot about all of these failures, but she
gave her "usual response, that she didn't give me a clueor she didn't give me
any way that I could believe that she was going to be in charge of that, that she
would take care of it." He conceded that "[c]ertainly there were other issues" on
his mind during the transition period, but that he devoted "from five to 10
hours" to the entrepreneurial school and Gascot. He stated that he "saw the
[prior] evaluations in the file, but those evaluations were not in agreement with
what [he] saw ... of Gascot's work performance." He performed the final
evaluation of Gascot with the help of Hernndez and Jimnez.

68

On cross-examination, Santiago admitted that his office was a number of floors

away from that of Gascot, and he only observed her when the two had direct
interaction. He also identified a transition report that was given to him on his
arrival at the CDA, which stated that the agency vehicle for which Gascot was
responsible was purchased from "General Services by Commercial
Development Services" and that the vehicle was already eight years old when it
was purchased, meaning it was twelve years old when Santiago first saw it.
Santiago also conceded that evaluations of an employee's probationary period
should only take into account actions performed during that period.

69

Plaintiffs' counsel also questioned Santiago about an apparent inconsistency

between his testimony on direct examination and his response to an
interrogatory prior to trial. The interrogatory had asked for any and all reasons
for dismissing Gascot; Santiago listed and explained only the vehicle incident.
He did not mention any inability to engage in planning. Santiago also stated
that, even though he was an accountant, he did not check the agency's property
ledger to determine, ultimately, who was responsible for the vehicle, but that he
"must have sent somebody to check it."

70

Under further questioning from Plaintiffs' counsel, Santiago identified a

2000/2001 work plan for the entrepreneurial school, but stated that he had
never seen the document. He also conceded that when he left the CDA a year
after becoming its administrator, the courses being offered by the
entrepreneurial school had not changed.
3. Susana Hernndez Colon

71

Hernndez's testimony focused only on Prez.7 On direct examination,

Hernndez testified to a number of instances where Prez "worked []
attendance sheets without being duly authorized by the immediate supervisor ...
meaning that the agency would pay employees that had not been working."
However, on questioning by the district court as to whether "somebody else
could have been at fault," Hernndez conceded that it was possible "that more
than one person may have been involved in this negligence." Hernndez also
recounted incidents where she directly asked Prez to review the vacation
("leave") records of certain employees, including some outgoing ones.
According to Hernndez, Prez committed errors on these types of records as
well, the consequence being that "we would have paid the employee less days
when the employee would have had a right to be paid their full days." Prez
was working on nine cases during her final probation period in January 2001,
and Hernndez testified that "this work area is simple. It is simple math that
one has to do, but you are not simply calculating work days . . . out of nine
cases, six cases that weren't worked right ... I mean more than half the work
that she did was bad."

72

Hernndez testified that the only equipment necessary for attendance work was
a calculator; a computer was unnecessary. Hernndez also stated that Prez
used a computer to do this work when other employees in the human resources
department required use of a computer. Later, Hernndez "approached [Prez],
and [told her] that instructions had been given so that she would leave the desk
that had the computer, move to another desk, so that the computer could be
used by the human resources analyst." According to Hernndez, Prez refused
to move.

73

In her final evaluation of Prez, covering January 1 to January 15, Hernndez

found Prez had not been compliant in three areas: availability to learn,
reliability, and cooperation. As to availability to learn, Hernndez stated that
Prez "was given instructions toward her work, toward specific functions . . .
and she worked them wrong." As to reliability, Hernndez testified Prez
"didn't prove capable of following instructions. Also . . . it is more that . . . she
didn't want to do what was said to her. She didn't assume the responsibilities of
the position." As for cooperation, Hernndez recalled specifically Prez's
refusal to allow others to use the computer that she was using.

74

On cross-examination, Hernndez admitted that during Prez's final period of

probation, she actually supervised Prez a total of only six to seven days. She
conceded that the final evaluation report was supposed to be given, in accord
with regulations, ten days before the date of separation. In Prez's case, the
final evaluation was only given on the date of separation, which was January

12. Although in her final evaluation she speculated that Prez did not want to
continue working at the CDA, she acknowledged that four years ago she had
considered Prez a hard worker who would never leave her position.
75

Plaintiffs' counsel also questioned Hernndez about Prez's apparent errors.

Hernndez testified that some of the "errors" she testified to on direct
examination occurred before she became Prez's supervisor; that it is improper
to evaluate an employee based on things that were done during a period for
which the employee had already been evaluated; and that one type of error had
nothing to do with Prez at all. Hernndez also stated that all of the attendance
and payment records are recalculated at the end of a calendar year or when an
employee leaves the agency before the end of the year. Errors made in the
initial calculation are usually caught and corrected to avoid improper payment.

III.
76

In light of this evidence, we must now decide if the district court ruled correctly
that there was insufficient evidence of political discrimination for Plaintiffs'
case to reach the jury. In conducting this review, we keep in mind that Rule
50(a) motions:

77

will be granted only in those instances where, after having examined the
evidence as well as all permissible inferences drawn therefrom in the light most
favorable to non-movant, the court finds that a reasonable jury could not render
a verdict to the party's favor. In carrying out this analysis the court may not take
into account the credibility of witnesses, resolve evidentiary conflicts, nor
ponder the weight of the evidence introduced at trial.

78

Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 273 (1st Cir.2000) (quoting

Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 316-17 (1st
Cir.1999)). Even though we draw all rational inferences from the facts in favor
of the non-moving party, that party "is not entitled to inferences based on
speculation and conjecture." Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir.1990).
A non-moving party who bears the burden of proof, as Plaintiffs do here, must
have presented "more than a mere scintilla of evidence in its favor" to withstand
a motion for judgment as a matter of law. Invest Almaz v. Temple-Inland Forest
Prods. Corp., 243 F.3d 57, 76 (1st Cir.2001). Additionally, we are not
obligated to disregard uncontradicted evidence offered by defendants.
Santiago-Negron v. Castro-Davila, 865 F.2d 431, 445 (1st Cir.1989).

79

A. Proving and defending political discrimination claims

80

A government employee who does not occupy a policy-making position of

confidence and trust, such as Plaintiffs here, is protected from adverse
employment decisions based on the employee's political affiliation. See
Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 7 (1st Cir. 2000). A plaintiff
bringing a political discrimination claim bears the burden of "producing
sufficient direct or circumstantial evidence from which a jury reasonably may
infer that [his] constitutionally protected conductin this case, political
affiliation . . . was a substantial or motivating factor behind [his] dismissal."
Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.1993) (internal quotation marks
omitted); see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 97
S.Ct. 568, 50 L.Ed.2d 471 (1977). A plaintiff bears the burden of persuasion on
this issue throughout the case.

81

Proving that political affiliation was a substantial or motivating factor in an

adverse employment decision requires more than "[m]erely juxtaposing a
protected characteristicsomeone else's politicswith the fact that the
plaintiff was treated unfairly." Padilla-Garca v. Guillermo Rodrguez, 212
F.3d 69, 74 (1st Cir. 2000) (internal citation omitted); see also Mercado-Alicea
v. P.R. Tourism Co., 396 F.3d 46, 52 (1st Cir.2005) ("Statements of political
affiliationunaccompanied by any specific factual information to support the
claim and unrelated to any employment action taken by defendant against
plaintiff are patently insufficient to establish an act of political discrimination.")
(citing Lpez-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir.2000)
(internal citation and quotation marks omitted)). The Supreme Court has
cautioned that the mere fact that an adverse action was taken after an employee
exercises First Amendment rights is not enough by itself to establish a prima
facie case. See Board of County Comm'rs v. Umbehr, 518 U.S. 668, 684-85,
116 S.Ct. 2342, 135 L.Ed.2d 843 (1996).

82

To meet this burden, political discrimination plaintiffs often present evidence of

verbal or written statements of political or personal animus. See, e.g.,
Rodrguez-Marn v. Rivera-Gonzlez, 438 F.3d 72, 76 (1st Cir.2006) (witness
testified that a defendant had "made several comments to her to the effect that
he was under political pressure for leaving too many NPP members in cushy
positions"); id. at 78 (witness testified that a defendant insisted that she use
phraseology consistent with a particular political party); id. at 81 (witness
testified that the defendants "made statements to her indicating that her
demotion was politically motivated"). Plaintiffs who have lost their jobs also
present evidence about the hiring practices of the defendant in the wake of an
election generallyi.e., evidence that the defendants filled all, or most,
recently vacated positions with supporters of their political affiliationor, more
specifically, evidence that the plaintiff's immediate successor had the same

affiliation as the defendant. For example, in Acosta-Orozco v. Rodriguez-deRivera, 132 F.3d 97 (1st Cir.1997), where "the plaintiffs were all members of
the adverse party . . . their superiors knew this, and . . . their duties were given
to active supporters of the party in power," we found there was ample evidence
for the plaintiffs' case to avoid summary judgment. Id. at 101; see also
Rodriguez-Rios v. Cordero, 138 F.3d 22, 24 ("[O]ther evidence adduced by
plaintiff established a prima facie case . . . . [P]laintiff adduced that every
employment task for which she had been responsible prior to her demotion was
performed thereafter by an NPP member and that at least three new recruits . . .
were NPP members.").
83

A defendant, of course, can offer evidence challenging the claim that political
affiliation played a substantial or motivating factor in the adverse employment
action. Additionally, even if a plaintiff establishes by a preponderance of the
evidence that political affiliation played a substantial or motivating factor in the
adverse employment action, a defendant can raise an affirmative defense
specific to this type of case: that is, a defendant can attempt "to prove by a
preponderance of the evidence that [the] plaintiff [ ] would have been dismissed
regardless of [his] political affiliation." Acevedo-Diaz, 1 F.3d at 66; see also Mt.
Healthy, 429 U.S. at 287, 97 S.Ct. 568; Sanchez-Lopez v. Fuentes-Pujols, 375
F.3d 121, 124 (1st Cir.2004).

84

In the language of burden-shifting, we have explained the Mt. Healthy

affirmative defense as follows:

85

[w]e stress that under the Mt. Healthy burden shifting scheme, unlike Title VII
cases, the burden of persuasion actually shifts to defendants after plaintiff
establishes a prima facie case. Under Title VII, once the plaintiff establishes a
prima facie case, the employer need only submit enough evidence to raise a
genuine issue of material facti.e., only the burden of production shifts to the
employer. However, in a First Amendment political discrimination case, in
which the Mt. Healthy scheme is applicable, the burden of persuasion shifts to
the defendant, and the plaintiff-employee will prevail unless the fact finder
concludes that the defendant has produced enough evidence to establish that the
plaintiff's dismissal would have occurred in any event for nondiscriminatory
reasons.

86

Cepero-Rivera v. Fagundo, 414 F.3d 124, 133 n. 1 (1st Cir.2005) (internal

citations and quotation marks omitted).

87

B. The nature of Plaintiffs' and Defendants' cases

1. Plaintiffs' case
88

Plaintiffs presented an unusual case of political discrimination. They did not

present any evidence of overt statements of political discrimination. They also
did not present evidence that employees of their political affiliation had been
replaced predominantly by employees with an opposing political affiliation.
Plaintiffs did not even show that their own replacements, if any, had an
opposing political affiliation. Instead, after showing that Defendants had
opposing political affiliations and had knowledge of their political affiliations,
Plaintiffs focused almost exclusively on the suspicious way they were treated
by Defendants near the end of their probationary periods, and the allegedly
spurious reasons supplied by Defendants for their failure to survive their
respective probationary periods. Plaintiffs saw in this evidence a circumstantial
case of political discrimination.
2. Defendants' case

89

Aware of the Mt. Healthy line of cases, Defendants presented a case that also
focused on the reasons for Plaintiffs' dismissal. In their view, they were
attempting to establish that regardless of any political discrimination, Plaintiffs'
dismissals would have occurred anyhow for nondiscriminatory reasons. When
they renewed their Rule 50(a) motion, Defendants stated that "[i]t is defendant's
[sic] position that we have presented to the Honorable Court a strong Mt.
Healthy defense." Defendants' counsel continued: "Defendants produced
sufficient facts about plaintiffs [sic] failure to properly perform their duties, and
will [sic] have rendered the same evaluations and will [sic] have taken the same
termination decision for the reasons that are nondiscriminatory, in other words,
Mt. Healthy defense."

90

C. Vzquez-Valentn and the district court's decision

91

In concluding that Plaintiffs had not made the requisite showings to get to the
jury on their political discrimination claims, the district court relied on our
Vzquez-Valentn decision. In Vzquez-Valentn, the plaintiff attempted to
challenge her demotion in the wake of a change in political administration by
relying on some of the typical indicia of political discrimination. See generally
385 F.3d at 23. The defendants in that case "reassigned several hundred
employees, including [the plaintiff]." Id. at 35. The plaintiff asserted that her
reassignment to a lower position was based on improper political discrimination
rather than the defendants' claim of a systematic reclassification of existing
positions. Id. at 28-29. To demonstrate that the defendants had knowledge of

her political affiliation, the plaintiff referred to a single encounter during

routine campaign canvassing, and testimony about her prior activities and
positions under a previous administration. Id. at 37-38. As to political animus,
the plaintiff offered two comments made by the defendants, id. at 36, 38. The
plaintiff also presented evidence about her qualifications for the job at issue,
and the gradual erosion of her responsibilities when the new administration
took charge.
92

In concluding that Vzquez-Valentn presented insufficient evidence to get to

the jury on her political discrimination claim, we specified the following
deficiencies: (1) she had not presented evidence creating a reasonable inference
that the defendants were even aware of her political affiliation when her
personnel file was reviewed and she was reassigned to another position; (2) her
evidence fell short of proving that she had been treated in a discriminatory
manner because of undisputed testimony that she did not meet the statutory
procedural requirements for her present position; (3) one of the statements she
relied onthe mayor's comment about "cleaning house"was not a direct
statement about NPP employees; (4) her supervisor's statement of political
animus was a stray comment that could not be attributed to the defendant city
officials; (5) the actions of her supervisor in failing to provide her with
adequate work for five months similarly could not be attributed to the
defendants; and (6) importantly, the plaintiff offered no evidence that PDP
members were hired to replace the reassigned NPP members. VzquezValentn, 385 F.3d at 37-40.

93

Apparently focusing on these deficiencies, the district court saw VzquezValentn as a baseline for the amount of evidence a political discrimination
plaintiff must present in order to reach the jury:

94

If this caseif the case of Vzquez-Valentn did not meet the standard of proof
for jury submission . . . then this case, that we are trying now . . . doesn't meet
it either. . . . The truth of the matter is that the case of Vzquez . . . contained a
lot more evidence of potential discriminatory motives and of a circumstantial
nature than the one that we are trying.

95

The district court's statement is a fair observation as far as it goes. As already

noted, there is no evidence in this case of politically discriminatory remarks.
There is no evidence of large scale demotions or firings of the members of one
political party. But the court's focus on some of the more familiar indicia of
political discrimination described in Vzquez-Valentn may have prevented the
district court from recognizing that the evidence of political discrimination
presented by Plaintiffs had produced a political discrimination case very

different from Vzquez-Valentn.

D. The sufficiency of the evidence
96

A plaintiff must typically make four showings to prove a case of political

discrimination: (1) the plaintiff and the defendant belong to opposing political
affiliations; (2) the defendant has knowledge of the plaintiff's opposing political
affiliation; (3) there is a challenged employment action; and (4) "sufficient
evidence, whether direct or circumstantial . . . that political affiliation was a
substantial or motivating factor . . . that the challenged employment action
stemmed from politically based animus." Gonzlez-de-Blasini v. Family Dept.,
377 F.3d 81, 85-86 (1st Cir.2004) (internal citations and quotation marks
omitted).

97

Plaintiffs testified, on direct examination, that they were all affiliated with the
NPP. They presented enough circumstantial evidence of Santiago and
Hernndez's affiliation to permit a reasonable factfinder to conclude that
Defendants were affiliated with the PDP. Plaintiffs proffered testimony that
their political affiliations were well-known within the CDA itself, and
Hernndez, one of the Defendants, asked one of the Plaintiffs to identify her
political affiliation. Also, Plaintiffs' evidence portrays a relatively small
workplace where everyone knew who everyone else was and political
affiliations were common office knowledge. Given this evidence, a reasonable
jury could conclude that Defendants knew of Plaintiffs' political affiliations.
There is no dispute that Plaintiffs were terminated from their career positions at
the end of their probationary periods.

98

Therefore, not surprisingly, this appeal turns on the fourth showing required to
prove political discriminationthat political discrimination was a substantial or
motivating factor in the challenged employment action. Before evaluating the
evidence on this issue for each Plaintiff, we must make some preliminary
points applicable to each Plaintiff's case. We are reviewing a district court's
decision to grant judgment as a matter of law. As a result, we must evaluate the
evidence in the light most favorable to the non-moving party, here Plaintiffs,
and we draw all reasonable inferences in their favor. See Figueroa-Torres, 232
F.3d at 273. We "may not take into account the credibility of witnesses, resolve
evidentiary conflicts, nor ponder the weight of the evidence introduced at trial."
Id. That is the province of the jury.

99

Moreover, in political discrimination cases where the defendants present

evidence of the non-discriminatory reasons for the adverse employment

decisions at issue, the falsity of those reasons can provide circumstantial

evidence that political discrimination was a substantial or motivating factor in
the adverse employment decision. This proposition is well-established in Title
VII law. In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct.
2097, 147 L.Ed.2d 105 (2000), the Supreme Court stated that "[p]roof that the
defendant's explanation is unworthy of credence is simply one form of
circumstantial evidence that is quite probative of intentional discrimination, and
it may be quite persuasive . . . . In appropriate circumstances, the trier of fact
can reasonably infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose." Id. at 147, 120 S.Ct. 2097
(internal quotation marks and citation omitted.); see also St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 517, 113 S.Ct. 2742, 125 L.Ed.2d 407 ("
[P]roving the employer's reason false becomes part of (and often considerably
assists) the greater enterprise of proving that the real reason was intentional
discrimination"); McDonough v. City of Quincy, 452 F.3d 8, 17 (1st Cir.2006)
("Evidence that the defendant's reason was pretext may . . . ground a finding of
liability."); Fite v. Digital Equipment Corp., 232 F.3d 3, 7 (1st Cir.2000). The
evidentiary significance of a false explanation for an employment decision is
based on a general proposition of evidence law. As the Supreme Court
explained in Reeves: "[s]uch an inference [of falsity] is consistent with the
general principle of evidence law that the factfinder is entitled to consider a
party's dishonesty about a material fact as `affirmative evidence of guilt.'"
Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (emphasis added). This general
proposition applies in this case. However, we are not suggesting that a jury's
finding that Defendants gave false explanations for their adverse employment
decisions would be sufficient alone to establish that political discrimination was
a substantial or motivating factor in those employment decisions. We are
simply saying that such a finding would be circumstantial evidence of such
discrimination.
100 We may also consider the circumstances surrounding the adverse employment
decisions affecting the Plaintiffs. Prior to the change in administrations, all
three Plaintiffs had uneventful probationary periods with only positive
evaluations. Their final evaluations were the only negative marks on their
records. These final evaluations were conducted over a brief period of time
for as little as two weeks (Prez) to four weeks (Gascot), at a time when
Santiago and Hernndez faced many other demands for their attention because
of the transition in administrations. Although not required to do so, Santiago
conceded that he did not take into account Plaintiffs' prior, positive evaluations
in reaching his termination decisions. Plaintiffs were never admonished for
their alleged performance deficiencies at the time of their occurrences, and they
received their negative evaluations on the day of their respective terminations,

in contravention of a regulation requiring that the termination and final

evaluation "be given to the employee no less than 10 days before the date of
separation." Again, we are not suggesting that this evidence alone establishes
that political discrimination was a substantial or motivating factor in the adverse
employment decision of Defendants. Still, the three employees who described
these strikingly similar stories were members of the same political party, now
out of power. See, e.g., Rodrguez-Marn v. Rivera-Gonzlez, 438 F.3d 72, 80
(1st Cir.2006) ("It is suspicious that both of [the NPP plaintiffs] were demoted
without being given any notice or opportunity to defend their promotions,
especially since the initial explanation offered for the demotions was simply
missing documentation. . . . Further, these missing documents mysteriously
reappeared after [the plaintiffs] presented their copies of the missing
documents. . . . Even after the missing documents were replaced, [the plaintiffs]
were not reinstated; rather, other justifications were given for their
demotions.").
101 Importantly, Defendants presented no evidence that they were conducting final
evaluations of all probationary employees in the CDA. They presented no
evidence that these three employees were the only probationary employees in
the department. They presented no evidence that they were engaged in a
systematic review of the personnel files of all employees in search of hiring or
promotion irregularities. Under the circumstances, a jury could conclude that
the common denominator that explains the strikingly similar stories of
Plaintiffs was their shared political affiliation.
102 Without repeating the summaries of the evidence already presented, we turn
now to a closer examination of the evidence presented by each Plaintiff, with a
particular focus on the points of conflict in the testimony of the parties.
1. Prez
103 In her testimony, Prez described her job duties and responsibilities, said that
she performed them well, and noted that all of her prior evaluations during the
probationary period were positive. Prez used a computer in compiling the
wage and vacation information for which she was responsible. She said a
computer was "indispensable . . . to do it efficiently". Hernndez painted a
different picture of Prez's performance, stating that she performed her duties
deficiently, committed computational errors, insisted unnecessarily on the use
of a computer, and was insubordinate when told to cease using a particular
computer.
104 Prez challenged Hernndez's account in several ways. On cross-examination,

104 Prez challenged Hernndez's account in several ways. On cross-examination,

Hernndez acknowledged that she disregarded a regulation requiring that a
probationary employee receive the last evaluation ten days before the date of
separation.8 Prez received her last evaluation on the day of her separation.
Hernndez admitted that by not following the applicable regulation prescribing
when evaluations are given to an employee, she increased the number of days
she had to conduct Prez's final evaluation from two days to twelve days. With
respect to the computational errors attributed to Prez, Hernndez admitted, on
questioning by the district court, that other employees could have been
responsible for Prez's errors. On cross-examination, Hernndez also
acknowledged that she exaggerated the severity of the consequences of any
errors Prez might have committed in her wage calculations. Finally, Hernndez
admitted that she included in her final evaluation alleged errors that would have
been accounted for in the November 16 to December 31 evaluation, thereby
inappropriately considering job performance outside of the final evaluation
period. (Additionally, these prior evaluations were positive in spite of those
errors.)
105 In light of these challenges to Hernndez's account of Prez's performance
deficiencies, and the responsibility of the jury for assessing the credibility of
witnesses, we conclude that a reasonable jury could choose to believe Prez's
account of her performance and reject Hernndez's account.9
2. Negrn
106 Much like Prez, Negrn testified about her job duties and her satisfactory
performance of those duties. Also like Prez, Negrn discovered the specific
objections to her work at the end of the final day of her probationary period, a
violation of the ten-day notice required by the regulation prescribing
procedures for probationary periods described above. Negrn also described a
number of specific tasks she was asked to perform for Santiago on his arrival as
CDA Administrator. The three tasks at issue were: the installation of a new
door lock for Santiago's office; the moving of certain furniture and file
cabinets; and the repair of an air conditioning duct in Santiago's office. Because
of the content of her final probationary evaluation, Negrn anticipated
Santiago's negative account of her performance of these tasks and provided
explanations in her direct testimony for the way she performed them. These
explanations for her performance were never given directly to Santiago or
anyone else at the agency because she was never given the opportunity to do
so.
107 Santiago testified to a starkly different version of Negrn's performance of

these tasks. On cross-examination, Plaintiffs' counsel challenged the basis for

Santiago's objections. As to the moving of the furniture and file cabinets,
Negrn had explained that the furniture and file cabinets were moved as fast as
possible, and that the delay was caused by the lack of personnel to move the
objects. Santiago conceded that Negrn had to wait for additional personnel
because she could not have moved the objects on her own. As to the installation
of the lock on Santiago's office door, Negrn maintained in her direct testimony
that the technician installed the lock improperly despite the specific
instructions that she provided. When she was notified of this error, she
promptly had the lock reinstalled properly. On cross-examination, Santiago
was asked whether Negrn ordered the technician to install the lock backwards.
He admitted, "I didn't say that she did it." Instead, he complained that she
should have checked the installation when the work was completed. But he also
conceded that installing a lock is "not that complex" and that it was not
necessary for her to observe the entire installation. As to the repair of the
office's air conditioning, Santiago acknowledged that the only reason the air
conditioning was not fixed was because he refused to provide the written
authorization requested by Negrn. When Plaintiffs' counsel asked Santiago the
reason for his refusal, Santiago said that Negrn's paperwork was "redundant"
and it would set a bad precedent. He never said the request was improper or
against CDA policy.
108 Based on Negrn's points of contention with Santiago's account of her job
performance, including the violation of the ten day requirement, we conclude
that a reasonable jury could choose to believe Negrn's account of her work and
reject Santiago's account as a false explanation.
3. Gascot
109 Like her fellow Plaintiffs, Gascot described a relatively uneventful probationary
period. She detailed her duties as head of the managerial/entrepreneurial school
and recounted her satisfactory performance of those duties, as evidenced by her
prior positive evaluations. Like Negrn, based on the contents of her final
negative evaluation, Gascot anticipated the objections that Santiago had with
the performance of her duties. In his evaluation, Santiago stated as reasons for
Gascot's dismissal: "Improper utilization of funds and resources available in the
offering of courses, careless in the effective mantenance of the vehicle in the
school." Later, in response to an interrogatory requesting all of the reasons for
Gascot's dismissal, Santiago mentioned only a single reason: her
mismanagement of a CDA vehicle. In his deposition testimony, he elaborated
to some degree on his dissatisfaction with Gascot's job performance. He
referred to Gascot's mishandling of the CDA vehicle; he said that the school's

"courses were ineffective"; and he said that Gascot "did not have an organized
working plan for the school." On direct examination at trial, Santiago
significantly expanded on the deficiencies in Gascot's performance, listing a
number of other "plans" that Gascot had failed to produce, including a
"capacitation plan," a "study of needs," and a "promotional advertising plan."
On cross-examination, Santiago admitted that his answer to the interrogatory
had not included many of the problems with Gascot's performance that he was
now describing.
110 Curiously, when Defendants' counsel cross-examined Gascot, he permitted her
to testify that she had prepared a training and service plan for the school and
had submitted it as part of transition procedures to Santiago. Moreover, Gascot
stated in response to that same cross-examination that Santiago "had no criteria
for rendering" his negative evaluation because "[h]e did not meet with me and
ask for the plan. He did not ask me for the study or the research of needs. He
didn't . . . [say] let's see where are the studies. If he had asked me I would have
given them all to him and would have avoided all of this."
111 On cross-examination, Santiago admitted to receiving a transition report,
introduced into evidence by Plaintiff's counsel, which included a document that
Santiago identified as a "working plan" for the school, though he claimed to
have never seen that working plan before. This exchange suggested that
Santiago criticized Gascot for her failure to plan, yet he had received a
document from her reflecting such planning. Additionally, Santiago conceded
that while he criticized Gascot for not updating the entrepreneurial school's
curriculum, that curriculum had remained unchanged at the time of Santiago's
departure from the CDA one year later, well after Gascot's departure. Also, he
acknowledged that the contents of the transition report he received called into
question Santiago's claim that the disrepair of the CDA vehicle was caused by
Gascot's neglect because the vehicle was already old when Gascot assumed her
responsibilities.
112 Because of these challenges to Santiago's account of Gascot's performance, we
conclude that a reasonable jury could choose to believe Gascot's account of her
performance and reject Santiago's account as a false explanation.
4. Summary
113 In essence, Plaintiffs described satisfactory job performances throughout their
probationary periods until the new administration arrived with a different
political affiliation. Then they received negative evaluations based on a limited

period of observation. Those negative evaluations were presented to them on

the last day of their probationary periods when they were terminated from their
positions, in violation of a regulation requiring that such evaluations be
presented to the probationary employees ten days before separation. In their
testimony, Defendants explained the deficiencies in the job performance of
Plaintiffs justifying these adverse employment decisions. In both their direct
testimony, which anticipated some of the explanations by Defendants, and in
cross-examination of Defendants, Plaintiffs challenged the authenticity of these
accounts. In the presence of this conflicting testimony, a reasonable jury could
believe Plaintiffs and disbelieve Defendants. As we have already explained, the
fact that a jury could find that Defendants gave false explanations has
evidentiary significance. See Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (stating
that "the factfinder is entitled to consider a party's dishonesty about a material
fact as `affirmative evidence of guilt'").
114 However, Plaintiffs cannot establish their case of political discrimination solely
by persuading a jury that Defendants' explanations were false. Plaintiffs have
the burden of establishing specifically that political discrimination was a
substantial or motivating factor for the adverse employment action. See
Acevedo-Diaz, 1 F.3d at 66. On this issue, there was other relevant evidence
that a jury could consider to supplement a jury finding of false explanations for
the adverse employment decisions.
115 These three dismissals all happened within one month of a change in political
administrations. The temporal proximity between a change in political
administrations and an adverse employment action is relevant to the issue of
whether political affiliation was a substantial or motivating factor in the adverse
employment decision. See Acevedo-Diaz, 1 F.3d at 69 ("Mere temporal
proximity between a change of administration and a public employee's
dismissal is insufficient to establish discriminatory animus" (emphasis added).).
Moreover, a jury could conclude that it was more than coincidence that the
three probationary employees who lost their jobs were members of the same
political party now out of power. For unexplained reasons, these three
employees became the focus of hurried evaluations that, in some important
respects, did not conform to the regulations for such evaluations of probationary
employees. These hurried evaluations gave the appearance of a coordinated
effort to rid the agency of three employees who shared a different political
affiliation than the party now in power.
116 Under these circumstances, a reasonable fact finder could conclude that
Plaintiffs have established that political discrimination was a substantial or
motivating factor in the loss of their jobs. Therefore, it was an error of law for

the court to grant Defendants' second Rule 50(a) motion and keep from the jury
Prez's claim against Hernndez, and the claims of Negrn and Gascot against
Santiago.
117 In summary, we affirm the district court's dismissal of Prez's claim against
Santiago. We vacate its dismissal of Prez's claim against Hernndez, and the
claims of Negrn and Gascot against Santiago. Each party is to bear its own
costs.
So ordered.
118
Notes:
1

See Vzquez-Valentn v. Santiago-Daz, ___ U.S. ___, 126 S.Ct. 1329, 164
L.Ed.2d 43 (2006).

Vzquez-Valentn v. Santiago-Daz was another political discrimination case

from Puerto Rico. There, we reviewed a district court's denial of the defendants'
motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a). The
defendants asserted that the plaintiff had presented insufficient evidence of
political discrimination to permit the case to go to the jury. We agreed. See
generally 385 F.3d at 23. However, in order to conduct that evaluation of the
defendants' motion, we excused the defendants' failure to preserve that ground
pursuant to Fed.R.Civ.P. 50(b), which requires renewal of a Rule 50(a) motion
after the jury has returned a verdict. In Unitherm, the Supreme Court ruled that
a party must renew its Rule 50(a) motion pursuant to Rule 50(b), or that ground
for appeal is waived. See generally 126 S.Ct. at 980.

Plaintiffs do not appeal these dismissals prompted by Defendants' first Rule

50(a) motion. Plaintiffs had also brought claims pursuant to Articles 1802 and
1803 of the Puerto Rico Civil Code, 31 LPRA 5141 and 5142. These claims
also did not survive the district court's first Rule 50(a) ruling, and Plaintiffs did
not appeal that ruling. We also note that the court dismissed the claims of
another plaintiff, Miguelina Peguero-Moronta, prior to trial in an Opinion and
Order dated March 31, 2004. She is not involved in this appeal

The other witnesses were the respective Plaintiffs' spouses. Their testimony
included their observations of their spouses in the aftermath of their dismissals
from the CDA, and the impact those dismissals had on their households

"Puerto Rico law distinguishes between `career' employees and `trust'

employees. Career employees are permanent and may only be removed from
their positions for just cause after due filing of charges. By contrast, trust
employees shall be of free selection and removal, i.e., removable with or
without cause."Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 23 n. 2 (1st
Cir.2006) (internal citations and quotation marks omitted).
6

Defendants' Exhibit Number 9, Circular Number 580entitled "Guidelines on

Probationary Periods"from the Central Office of Administration of Personnel
for the Commonwealth of Puerto Rico, which Santiago reviewed during his
testimony under direct examination, states in relevant part:
It would be enough to warrant a separation of an employee in a probationary
period when an intermediate evaluation or a final evaluation of the employee
doesn't reach the expected level in one or more of the factors for evaluation ...
if, in the supervisor's criteria, most of the deficiencies constitute sufficient
cause to justify such separation.... If the employee has had more than one
supervisor in different periods of evaluation, it can be enough to use the criteria
of one of the supervisors for separation if this one considers such action is to be
taken.

As noted earlier, the claims of the other two Plaintiffs against Hernndez had
been dismissed by the district court in response to Defendants' first Rule 50(a)
motion

From the trial transcript, we discern that this regulation, which Hernndez
described as "the regulations of essential areas and merits, and it establishes the
probationary period," was entered as Defendant's Exhibit Number 10.
Paragraph number five stated that:
Any employee can be separated from the position during or at the end of the
probationary period after being duly oriented and trained, if it is determined
that his progress adaptability to the guidelines in the public service has not been
satisfactory.
The separation must be done through an official communication signed by the
secretary, accompanied by the last evaluation. Said communication should be
given to the employee no less than 10 days before the date of separation.

There is essentially no credibility contest between Prez and Santiago. Prez

offered virtually no testimony implicating Santiago in her adverse employment
action. Her only particularized evidence consists of Santiago's testimony that he
relied on Hernndez's evaluation of Prez and approved Hernndez's decision to

dismiss her. Santiago essentially "rubber-stamped" Hernndez's termination of

Prez. This is not enough evidence to permit a reasonable jury to conclude that
political discrimination was a substantial or motivating factor in Santiago's
decision to terminate Prez. We must affirm the court's dismissal of Prez's
claim against Santiago