United States Court of Appeals

For the First Circuit

No. 05-1847

CARMEN L. RODRIGUEZ-GARCIA,

Plaintiff, Appellant,

v.

MUNICIPALITY OF CAGUAS; HON. WILLIAM MIRANDA-MARIN; WILFREDO

PUIG, AS VICE MAYOR OF CAGUAS AND IN HIS PERSONAL CAPACITY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpi, U.S. Magistrate Judge]

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

 Godwin Aldarondo-Girald, for appellant.

 Michael Craig McCall, with whom Luis E. Pabon-Roca, Grisselle

Gonzalez Negron, and Faccio & Pabon Roca, were on brief for the

Municipality of Caguas, William Miranda-Marin and Wilfredo Puig in

their official capacities.

 Leticia Casalduc-Rabell, Assistant Solicitor General, with

whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana

Negron-Vargas, Deputy Solicitor General, and Maite D. OronozRodriguez, Deputy Solicitor General, were on brief for William

Miranda-Marin and Wilfredo Puig in their personal capacities.

July 31, 2007
 The title of this department – which, in Spanish, is 1

"Limpieza, Ornato y Urbanismo" – is variously translated by the

parties as "Beautification," "Ornate," "Cleaning, Beautification

and Urbanism," and "Public Works" (among others). We will refer to

it as the Public Works Department ("Public Works").

LIPEZ, Circuit Judge. Appellant Carmen Rodriguez-Garcia,

a career employee in the Municipality of Caguas ("the

municipality"), claimed that she was transferred from the Public

Works Department ("Public Works") to the Office of Federal Funds 1

("Federal Funds") in violation of the First Amendment and Puerto

Rico law. Although she enjoyed the same title and salary in the

two positions, Rodriguez-Garcia alleged that the transfer

constituted a demotion because she had no significant work

responsibilities at Federal Funds. She further alleged that the

transfer was intended as retaliation because she complained of

improper campaign tactics by the mayor and others in the municipal

government, sparking an investigation by the Puerto Rico Office of

Ethics ("Ethics Office"). Alternatively, she asserted that the

transfer, motivated by her political affiliation, was an act of

political discrimination.

Prior to trial, the court granted summary judgment to

defendants on the political discrimination claim. At trial,

Rodriguez-Garcia proceeded against Mayor Miranda Marin and Vice

Mayor Wilfredo Puig in their personal and official capacities on

her retaliation claim, arguing that their actions supported

liability against the municipality based on their final authority

over her transfer. The court dismissed the retaliation claim
-3-

against Mayor Marin as a matter of law at the completion of

appellant's case. Although the jury found Vice Mayor Puig not

personally liable, it found the municipality liable on the

retaliation claim. Finding this jury verdict inconsistent with

Rodriguez-Garcia's theory of the case – that the liability of the

municipality was contingent on the personal liability of the mayor

or the vice mayor – the district court entered judgment as a matter

of law for the municipality. 

We affirm in part, reverse in part and remand to the

district court for further proceedings. Specifically, we affirm

the district court's grant of summary judgment to defendants on

Rodriguez-Garcia's political discrimination claim. We also affirm

the judgment in favor of Vice Mayor Puig on Rodriguez-Garcia's

retaliation claim and the decision of the district court vacating

the jury award against the municipality. However, we order a new

trial on Rodriguez-Garcia's retaliation claim against Mayor Marin

and the municipality because the district court's dismissal of the

case against the mayor rested upon an erroneous evidentiary ruling

involving the application of Federal Rule of Evidence 408 dealing

with "compromise and offers to compromise." That error was not

harmless.
 She worked for two previous Directors before Flores and had 2

been a municipal employee since 1992.

-4-

I.

A. Factual Background

1. Rodriguez-Garcia's Transfer

Rodriguez-Garcia served as Executive Secretary for the

Director of Public Works, Luisa Flores, from 1998 until her

transfer in 2000. In that position, she was required to open all 2

incoming mail and enter it into a log. In 1999, Flores began

receiving tickets to fundraisers and notices of leadership meetings

for the Popular Democratic Party ("PDP"), the party to which both

the mayor and Flores belonged. Rodriguez-Garcia suspected that the

receipt of this material violated a rule prohibiting the use of

government resources to further political campaigns. Nevertheless,

she duly logged the materials and delivered them to Flores.

Rodriguez-Garcia first discussed her concerns with Flores

in 1999, but they were ignored. She then contacted a distant

relative, Roberto Carrasquillo, who was a municipal assemblyman for

the minority Puerto Rican Independence Party, ("PIP"). He

confirmed the merit of her concerns and, with her permission,

lodged a complaint with the Ethics Office. Rodriguez-Garcia was

summoned to the Ethics Office to testify concerning her complaint

on December 21, 1999, and she complied.
Extensive medical testimony at trial established that 3

Rodriguez-Garcia had been prescribed a wide variety of

pharmaceuticals over the years to treat recurrent depression and

other psychological ills.

-5-

 On February 1, 2000, Flores reprimanded Rodriguez-Garcia

in front of her co-workers for failing to perform one of her tasks.

Rodriguez-Garcia acknowledges that this reprimand was unrelated to

her testimony in the Ethics Office investigation. Upset,

Rodriguez-Garcia left the office early and did not return to work

the next day. Instead, she spent that day resting and on

medication. On February 3, she had a heated conversation with 3

Flores about the missed day of work; shortly after that

conversation, she passed out and required medical care. Her doctor

advised her to rest, which she did until February 18. On that

date, Rodriguez-Garcia delivered a copy of her medical release to

the Human Resources Office ("Human Resources"). She then went to

Vice Mayor Wilfredo Puig's office to discuss the doctor's

recommendations and her intention to return to work. 

The contents of the conversation between Rodriguez-Garcia

and Vice Mayor Puig are hotly contested. According to RodriguezGarcia, she told the vice mayor that, despite her doctor's

recommendation that she not return to Public Works, she wanted to

return because she thought she could work things out with Flores.

She testified that Vice Mayor Puig then told her that Flores had

showed him a copy of the mail log that Rodriguez-Garcia kept and
-6-

that the Ethics Office was investigating the use of municipal

resources to distribute political propaganda. Apparently unaware

that Rodriguez-Garcia had already testified before the Ethics

Office on this matter, Vice Mayor Puig suggested that she would be

summoned to testify and asked her what she would say. At trial,

Rodriguez-Garcia testified: "I told him that I'd tell the truth.

That I'd tell the truth because that was my job." According to

Rodriguez-Garcia, Vice Mayor Puig told her that "whatever truth I

said could affect him, the Mayor and the party, and I told him that

I was very sorry, but that was my job." He then told her that "he

could no longer count on me." Vice Mayor Puig recalled a very

different conversation. He testified that Rodriguez-Garcia

requested a transfer out of Public Works and that there was no

discussion of the Ethics Office investigation. 

Shortly after this meeting, Rodriguez-Garcia was

transferred out of her position at Public Works. After initial

assignment to the Municipal Education Department, where she had no

work to do, she was transferred to Federal Funds. Rodriguez-Garcia

claims she did "very little, practically nothing," at Federal Funds

because the office already had an Executive Secretary; she alleges

that this lack of work was intended to encourage her to quit

municipal employment altogether. Rodriguez-Garcia testified that

the lack of work made her feel "bad," "uncomfortable," "ashamed,"

and "depressed," and that it affected her home life: "I locked
 The letter indicates that a copy was also sent to Mr. 4

Armando Melendez at Human Resources.

-7-

myself in, within that problem, and I couldn't see beyond

[it]. . . . and I forgot that the kids were growing up, that I had

a husband, a mom, a family, and that became my life as a whole."

In contrast, the Director of Federal Funds, Gilberto Charriez,

testified that his office was understaffed and desperate for

workers when Rodriguez-Garcia arrived and that she seemed happy in

her new position. He also described ordering pizza on busy work

nights when Rodriguez-Garcia stayed late with the rest of the staff

to meet deadlines, lunches eaten together in a conference room,

office Christmas parties and meeting Rodriguez-Garcia's family

outside of work on social occasions.

2. Attempts at Reinstatement

Following her transfer, Rodriguez-Garcia sent a letter to

Human Resources dated March 3, 2000, requesting a written

explanation for her transfer. Her attorney, Eladio Cartagena, 4

followed up on this first letter with three additional letters.

The first of these, dated March 8, was directed to the mayor. This

letter requested Rodriguez-Garcia's reinstatement to Public Works

and suggested that her transfer was motivated by the Ethics Office

investigation. Cartagena received a reply from Human Resources

dated March 27 that began, "The Hon. William Miranda Marín, Mayor,

has referred to us your letter dated March 8, 2000 concerning the
 The letter indicates that a copy was also sent to Mr. 5

Heriberto Martinez, Director of the Legal Advisor's Office.

 For convenience, the three letters written by Rodriguez- 6

Garcia's attorney and sent on her behalf and dated March 8, April

10 and May 31 and the letter from Human Resources dated March 27

will be referred to hereinafter as "the Letters." We distinguish

these four letters from any other correspondence related to

Rodriguez-Garcia's claims because, as we will discuss, they were

the subject of a contested evidentiary ruling.

-8-

transfer of Mrs. [Rodriguez-Garcia]," and stated that: (1) the

transfer had been made at Rodriguez-Garcia's request because of

differences she had with her direct supervisor; (2) it was

considered a temporary transfer; and (3) that "we would have no

inconvenience in newly reinstating Mrs. [Rodriguez-Garcia] to her

former position." Cartagena sent a second letter to the mayor on

April 10, requesting the offered reinstatement. Receiving no 5

response, he penned a third letter on May 31 informing the mayor

that, on the basis of the offered reinstatement, Rodriguez-Garcia

had met with the interim Human Resources director and the director

of Public Works and that they had refused to reinstate her. The

May 31 letter also notified the mayor of Rodriguez-Garcia's

intention to file a civil action based on Mayor Marin's failure to

reinstate her.6

Sometime thereafter, Rodriguez-Garcia happened upon the

mayor in a public square, where she approached him and asked about

the resolution of her complaint. According to Rodriguez-Garcia's

testimony, she "grabbed him strongly" and asked about her case. He
 However, in April 2003, Rodriguez-Garcia was transferred to 7

the Department for Conservation of Buildings and, shortly

thereafter, she secured a position as an executive secretary in the

Technical Services Division for Maintenance and Energy. She

testified that she was happily employed in both of these positions.

-9-

responded "what was my case, what was happening?" Before she could

elaborate, she was escorted back to her office by his assistants.

Finally, on June 21, 2001, Rodriguez-Garcia wrote to the mayor

again, complaining that she lacked significant work

responsibilities and was depressed; she entreated him to resolve

her complaint and reinstate her to her former position. RodriguezGarcia was never reinstated to her position at Public Works.7

In his testimony as part of the defendants' case, Vice

Mayor Puig maintained that he was never informed that RodriguezGarcia opposed her transfer after their initial meeting, where he

says she requested the change. He was asked: "there are many

documents stating that Ms. Rodriguez did not want the transfer, did

you know that?" He replied: "They never came to my attention, none

of them, stating that she did not want to go." 

Armando Melendez, an executive in Human Resources who had

met with Rodriguez-Garcia at Vice Mayor Puig's behest, testified

that Rodriguez-Garcia expressed her desire not to be transferred

during their meeting; however, she called later that same day and

said she did want the transfer. Melendez's written report on this
 It states: "Mrs. Rodriguez states she does not want to be 8

transferred; however, during the afternoon she contacts us and

tells us she has thought it over and does want the transfer."

-10-

meeting, dated February 22, 2000, and submitted as evidence at the

trial, supports his testimony.8

Finally, Heriberto Martinez, who was director of the

Legal Advisor's Office at the time of the transfer, testified that,

upon Rodriguez-Garcia's request, he contacted Human Resources to

look into her case. In a conversation with Melendez, Martinez was

led to believe that Rodriguez-Garcia would be reinstated to her

position. Martinez also spoke directly with Vice Mayor Puig, who

reiterated that Rodriguez-Garcia had requested her initial

transfer. When Martinez reported to Rodriguez-Garcia what he had

been told, she reiterated that she wanted to return to Public

Works. Rodriguez-Garcia's counsel pressed Martinez on whether

Rodriguez-Garcia had said that she did not request the initial

transfer, but Martinez would testify only to her statement that she

wanted to return to Public Works.

Thus, there is a direct conflict between RodriguezGarcia's testimony and the account of the defendants. According to

her, she never requested a transfer, and the transfer that was

imposed upon her, to an office where she had no responsibilities,

was in retaliation for her complaint to the Ethics Office.

According to Vice Mayor Puig, Rodriguez-Garcia requested a

transfer, supposedly because of her conflict with Flores, and that
 The petition was later amended to include a political 9

discrimination claim under the First Amendment; the amended

petition did not include Flores as a defendant, as she had died in

the interim. 

-11-

was the last he heard of her employment predicament. According to

Melendez, Rodriguez-Garcia initially requested not to be

transferred but later called and requested a transfer.

Furthermore, according to her supervisor at Federal Funds,

Rodriguez-Garcia joined a busy office that was short-staffed at the

time of her transfer and where there was plenty of work to keep her

busy. 

B. Procedural Background

In October 2000, Rodriguez-Garcia filed a petition in the

Superior Court of Puerto Rico seeking an injunction against the

municipality and Luisa Flores, alleging that she had been

transferred in retaliation for her Ethics Office complaint, in

violation of Puerto Rico law. Rodriguez-Garcia later filed and 9

was granted a voluntary dismissal without prejudice. On November

7, 2001, she filed a new action in federal court against the

municipality, Mayor Marin and Vice Mayor Puig, claiming that she

had been transferred and demoted on the basis of her political

affiliation ("the political discrimination claim") and her

involvement in the Ethics Office investigation ("the retaliation

claim"), in violation of the First Amendment and Puerto Rico law.
 Defendants previously had moved for summary judgment on 10

several grounds, including that the statute of limitations had run.

The district court granted the motion on that basis, but we vacated

the decision in January 2004 and remanded the case for further

proceedings. See Rodriguez-Garcia v. Municipality of Caguas, 354

F.3d 91 (1st Cir. 2004). 

 42 U.S.C. § 1981 states, in pertinent part, that "[a]ll 11

persons within the jurisdiction of the United States shall have the

same right . . . to make and enforce contracts . . . as is enjoyed

by white citizens." Section 1985(3) provides a damages remedy in

the event that "two or more persons . . . conspire . . . for the

purpose of depriving . . . any person or class of persons of the

equal protection of the laws." The court found that RodriguezGarcia's claim did not fit within the language of either statutory

section. Rodriguez-Garcia does not appeal these rulings.

-12-

She brought her federal law claims under 42 U.S.C. §§ 1981, 1983

and 1985. 

Defendants moved for summary judgment on a number of

grounds. In an August 2004 opinion and order, the district court

granted the motion in part and denied it in part. In particular, 10

the court found that Rodriguez-Garcia had not established a prima

facie case of political discrimination under the First Amendment

and that her claims under §§ 1981 and 1985 were inapt because she

had not alleged any discriminatory action based on race or class.11

However, the district court found that Rodriguez-Garcia had placed

sufficient facts in dispute to warrant a jury trial on the

retaliation claim and that these factual disputes foreclosed a

ruling at that stage on the mayor's and vice mayor's claimed
 The court is referring to Rodriguez-Garcia's March 3 letter 12

to Human Resources requesting a written explanation for her

transfer. This letter was not excluded under the court's Rule 408

ruling.

-13-

entitlement to qualified immunity. Motions and cross-motions for

reconsideration were filed and denied.

Before the trial commenced, defendants filed a motion in

limine to exclude the testimony of several witnesses and the

Letters under Federal Rule of Evidence 408, which excludes "conduct

or statements made in compromise negotiations regarding" a "claim

that was disputed." Fed. R. Evid. 408(a)(2), (a). The court

denied the motion as to the testimony and allowed the Letters into

evidence, but only "for the limited purpose of negating defendants'

contention that plaintiff herself requested a transfer."

At the close of the plaintiff's case, Mayor Marin

requested and was granted judgment as a matter of law in his

personal capacity under Federal Rule of Civil Procedure 50(a).

Noting that the Letters could not be relied upon as evidence of the

mayor's notice of her claim because of the limited ground of their

admission, the court explained that the remaining evidence, "[a]

mere letter of protest and request [to Human Resources] for

investigation which [was] ignored by a supervising authority," was 12

insufficient as a matter of law to establish that the mayor knew of

Rodriguez-Garcia's employment situation and thus he could not be
-14-

found liable for any participation in her transfer and lack of

reinstatement.

At the trial's conclusion, the jury rejected RodriguezGarcia's claim that Vice Mayor Puig had taken an adverse employment

action against her. However, it did find that she had established

municipal liability for that adverse employment action and awarded

her $285,000.00 in damages. In response to the municipality's

motion, the court granted judgment as a matter of law under Federal

Rule of Civil Procedure 50(b), finding the jury's verdict

inconsistent with Rodriguez-Garcia's theory of the case. The court

denied Rodriguez-Garcia's motion to vacate judgment and,

alternatively, for a new trial, and she proceeded with this appeal.

Rodriguez-Garcia challenges each of the district court's

dispositive rulings: (1) the grant of summary judgment for

defendants on her political discrimination claim; (2) the grant of

the Rule 50(a) motion dismissing the case against Mayor Marin in

his personal capacity; and (3) the decision to grant judgment as a

matter of law to the municipality. She also challenges the jury

verdict in favor of Vice Mayor Puig. With respect to the

municipality, she contends that either the jury verdict should be

restored or that she is entitled to a new trial on her claim

against Mayor Marin, Vice Mayor Puig and the municipality. She

insists that the verdict in favor of Vice Mayor Puig was against

the weight of the evidence. 
 We limit our review to the record as it stood before the 13

district court when it granted summary judgment. See J. Geils Band

Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245,

1250 (1st Cir. 1996).

-15-

II.

A. The Political Discrimination Claim

We review the grant of summary judgment on the political

discrimination claim de novo, drawing all reasonable inferences in

favor of Rodriguez-Garcia. Aguiar-Carrasquillo v. Agosto-Alicea,

445 F.3d 19, 25 (1st Cir. 2006). As a necessary element of

establishing a prima facie case of political discrimination, a

plaintiff must show that party affiliation or advocacy of political

ideas was a substantial or motivating factor behind the challenged

employment action. Peguero-Moronta v. Santiago, 464 F.3d 29, 45

(1st Cir. 2006).

The district court granted summary judgment to defendants

because it found that "plaintiff's fluid political affiliation

makes it difficult for the Court to find that defendants were well

aware and motivated by her alleged support for the [party in

opposition to the mayor's party]." Indeed, Rodriguez-Garcia

testified at her pre-trial deposition that, while she claims to be

a member of the PIP, she voted for candidates from several parties

in the 2000 elections. She also admitted that she acted as an 13

electoral college official for the mayor’s party, the PDP, in the

1996 elections. 
-16-

On appeal, Rodriguez-Garcia does not contest the court’s

characterization of her partisan affiliation; rather, she attempts

to shift the basis of her political discrimination claim from

political affiliation to political speech. However, this attempt

at recharacterization makes her political discrimination claim

indistinguishable from her retaliation claim, which focuses on the

defendants' reaction to her discussions with the Ethics Office. As

presented to the district court at the time of its summary judgment

ruling, her political discrimination claim was dependent upon

establishing that defendants were aware of and motivated by her

political affiliation. We agree with the district court that the

plaintiff did not establish a genuine issue of material fact on the

relationship between her transfer and her political affiliation.

We therefore affirm the district court's grant of summary judgment

for defendants on this claim.

B. Reinstatement of the Jury Verdict

Rodriguez-Garcia urges us to reinstate the jury's verdict

against the municipality, arguing that the court erred when it

found the verdict inconsistent with her theory of the case. The

district court characterized Rodriguez-Garcia's case as depending

on retaliation taken against her by Mayor Marin and Vice Mayor

Puig, as parties with "final authority" to bind the municipality.

Since the claim against the mayor had already been dismissed, the

court viewed municipal liability as contingent upon Vice Mayor
 Although it is not entirely clear, Rodriguez-Garcia's brief 14

also could be read to allege a theory of liability arising from the

municipality's general custom or practice of retaliating against

workers who voice complaints against the mayor's party. Her brief

cites Monell, 436 U.S. at 691, which holds that municipalities can

be found liable under 42 U.S.C. § 1983 when either official policy

or "'custom' even though such a custom has not received formal

approval through the body's official decisionmaking channels"

operates to deprive a plaintiff of her constitutional rights. Such

a theory was not developed in the district court and therefore is

not available on appeal. At trial, the court specifically stated:

"In the pre-trial, I don't have any theory of the plaintiff's that

could establish liability against the Municipality that there was

a previous pattern, and the Municipality was engaged . . . .

That's not a theory that is stated here." Rodriguez-Garcia agreed.

-17-

Puig's liability. Therefore, the jury's rejection of the claim

against Vice Mayor Puig made municipal liability inconsistent with

Rodriguez-Garcia's theory of the case. 

On appeal, Rodriguez-Garcia argues that the jury could

have based municipal liability on the actions of a conspiracy of

municipal workers, including but not limited to Vice Mayor Puig.

Seen through the lens of this alternative theory, the jury's

verdicts are not necessarily inconsistent, and the judgment against

the municipality should be reinstated.14

The municipality argues that Rodriguez-Garcia's failure

to object to the judge's inconsistency determination before the

jury was dismissed bars our review of this issue. We agree. We

have followed an "iron-clad rule" that a party that fails to raise

an objection based on verdict inconsistency before the jury is

dismissed waives the issue. See Wennik v. Polygram Group
-18-

Distribution, Inc., 304 F.3d 123, 130 (1st Cir. 2002); CamposOrrego v. Rivera, 175 F.3d 89, 98 (1st Cir. 1999); Toucet v. Mar.

Overseas Corp., 991 F.2d 5, 8 (1st Cir. 1993) (collecting cases).

Here we confront the opposite situation: Rodriguez-Garcia failed to

specifically voice her opinion that the verdict was consistent

before the jury was dismissed.

In the typical case, it would be pointless to require a

party to assert that a favorable verdict was consistent. However,

this is not the typical case. Here, the district court had twice

indicated that, if the jury found Vice Mayor Puig not liable and

the municipality liable, it would enter judgment for the

municipality as a matter of law. 

First, after the jury instructions were read, the defense

noted that the instructions did not preclude the jury from finding

in favor of Vice Mayor Puig but against the municipality. The

court responded: "If they don't find [Vice] Mayor Puig liable and

for some reason they find the municipality liable . . . the

municipality is not liable." Rodriguez-Garcia did not object to

this statement at the time; she also failed to object to this

statement shortly thereafter, when specifically asked if she had

objections to preserve. 

Second, after closing arguments, the court gave the

parties an opportunity to "represerve" their earlier objections.

The defense again raised its concern that the jury instructions
-19-

allowed for a mixed verdict. The court responded: "Okay, but I

told you that if for all purposes they find Mr. Puig not liable, as

a matter of law I am going to have the municipality dismissed. So

that is not going to be a problem." The defense then stated: "I

understand, Your Honor, and I think that we all agree with that

matter, the parties agree, the plaintiff agreed also, so no

problem." Rodriguez-Garcia again raised no objection on this

point, though she preserved other objections. 

After the verdict was delivered and the jurors were duly

polled, Rodriguez-Garcia again remained silent. The court

discharged the jury and then declared that it would enter judgment

for the municipality. Although Rodriguez-Garcia finally tried to

argue that the jury verdict was consistent, it was too late. By

failing to preserve an objection to the court's inconsistent

verdict determination before the jury was discharged, RodriguezGarcia has waived her right to argue on appeal that the court erred

in that determination. See Torres-Arroyo v. Rullan, 436 F.3d 1, 6

(1st Cir. 2006) (finding failure to object before the moment of

jury discharge constituted a waiver); Correia v. Fitzgerald, 354

F.3d 47, 57 (1st Cir. 2003) (holding that a failure to object to an

alleged inconsistency while the jury is still empaneled constituted

waiver). 
-20-

C. Arguments for a New Trial

Rodriguez-Garcia argues that, in the event we decline to

reinstate the verdict against the municipality, we should grant her

a new trial against all parties, claiming that the district court

erred in dismissing the claims against Mayor Marin and that a new

trial is warranted against Vice Mayor Puig because the jury verdict

in his favor was against the weight of the evidence.

1. Dismissal of the Case Against Mayor Marin

The court dismissed the claims against Mayor Marin in his

personal capacity, finding that, while the "Mayor can in principle

be held liable under a theory of failing to act or take necessary

steps to remedy [her] predicament," Rodriguez-Garcia had not

provided sufficient evidence to establish that the mayor was aware

of her situation. Municipal officials may only be held liable

under § 1983 in their personal capacity if the plaintiff can

establish that her constitutional injury resulted from the direct

acts or omissions of the official, or from indirect "conduct that

amounts to condonation or tacit authorization." Whitfield v.

Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005). On either theory,

the plaintiff must show that the official had actual or

constructive notice of the constitutional violation. See Lipsett

v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988) ("An important

factor in making the determination of liability is whether the

official was put on some kind of notice of the alleged violations,
-21-

for one cannot make a 'deliberate' or 'conscious' choice to act or

not to act unless confronted with a problem that requires the

taking of affirmative steps." (quoting Pembaur v. City of

Cincinnati, 475 U.S. 469, 483-84 (1986))).

In seeking to convince the court that the mayor knew of

her employment situation, Rodriguez-Garcia relied principally on

the Letters, particularly the March 27 letter from Human Resources

suggesting that the mayor had referred her claim to its attention.

Rejecting this argument, the court noted that it had admitted the

Letters for the limited purpose of establishing that RodriguezGarcia did not request a transfer from Public Works and thus the

Letters could not be used to establish the mayor's knowledge of her

situation. With the Letters excluded, the court found that the

remaining evidence was insufficient to establish that the mayor was

aware of her situation and hence had any direct or indirect

involvement in her transfer, lack of reinstatement, or minimal work

assignments.

We review the court's Rule 50(a) ruling de novo, viewing

the evidence in the light most favorable to Rodriguez-Garcia.

DiRico v. City of Quincy, 404 F.3d 464, 468 (1st Cir. 2005).

However, because that ruling depends upon the correctness of the

court's decision to limit the admissibility of the Letters, we must

first evaluate the court's evidentiary ruling, which we review for
-22-

abuse of discretion. See Pelletier v. Main St. Textiles, LP, 470

F.3d 48, 52 (1st Cir. 2006). 

a. Admission of the Letters for a Limited Purpose

In their motion in limine, appellees argued that the

Letters should be excluded under Federal Rule of Evidence 408,

which prohibits the use of "statements made in compromise

negotiations regarding the claim" as evidence of a party's

"liability for . . . a claim that was disputed as to validity or

amount." Fed. R. Evid. 408(a)(2), (a). At a hearing on the

motion, the court initially stated: 

[I]t is my impression that these do not fall

under Rule 408. . . . These are the sort of

letters that when anything happens regarding

personnel, the attorney starts to write the

agency to put them on notice. The agency, the

municipality in this case, will respond,

'We've noted your letter. We are going to

look into this.' Then . . . the attorney will

say, 'Oh, you have done this or you haven't

done that.'

Although the court seemed inclined to reject defendants' arguments

that the Letters were covered by Rule 408, Rodriguez-Garcia's

attorney began her arguments against the motion in limine by

focusing on an exception to Rule 408 that allows evidence offered

for a purpose other than showing liability. Specifically, she

argued that "[t]he letters [were] being introduced into evidence

for the limited purpose of proving that defendants in fact knew

that Ms. Rodriguez[-Garcia] did not want the transfer and that they

were aware that she did not want the transfer." 
-23-

Despite this inauspicious beginning, Rodriguez-Garcia's

attorney's arguments developed over the course of the hearing on

the motion. By the end, she clearly contested the relevance of

Rule 408 to the Letters. Indeed, just before the court announced

that it would recess to deliberate, her attorney urged the court to

examine the four Letters together:

You cannot look at each letter

individually . . . . You see, Mr. Cartagena

directed a letter to the mayor. And the

mayor, and very wisely by his counsel, is

trying to take himself out of the picture

saying it has nothing to do with me, I didn't

exercise any action, I didn't do anything, I

didn't sign the letter, I didn't send the

letter. But you read [the letter from Human

Resources], the first thing that it says is,

'The Honorable William Miranda Marin, Mayor,

has referred to us your letter dated March 8,

2000, concerning the transfer of Ms.

Rodriguez.' This is evidence of liability

against the mayor. (Emphasis added).

Defense counsel responded: "That's why [Rule] 408 does not permit

the letter to come into evidence." Rodriguez-Garcia's attorney

countered: "This letter is not an admission . . . . It is not a

compromise. Read it." Thus, by the end of the hearing, the court

was on notice that Rodriguez-Garcia intended to use the Letters as

proof of the mayor's liability and not merely as evidence that she

did not request her transfer. Nonetheless, in a written ruling

after the recess, the court "[a]ssume[d] that the communications at

issue [were] indeed compromise related" and it admitted the Letters
-24-

"for the limited purpose of negating defendants' contention that

plaintiff herself requested a transfer."

This limitation, erroneous as a matter of law, was an

abuse of discretion. See Charlesbank Equity Fund II v. Blinds To

Go, Inc., 370 F.3d 151, 158 (1st Cir. 2004) (noting that legal

error always constitutes abuse of discretion). The court's initial

impression that these letters do not fall under Rule 408 was

correct. These Letters cannot reasonably be viewed as "statements

made in compromise negotiations regarding [a] claim" that was in

dispute. Fed. R. Evid. 408(a)(2). The March 8 letter from

Rodriguez-Garcia's attorney to the mayor's office served the

purpose of giving the defendants notice of a claim. Indeed,

appellees acknowledged that Rodriguez-Garcia's attorney had to

write such a letter to comply with local pre-litigation notice

requirements. The March 27 letter from Human Resources, which said

that "The Hon. William Miranda Marín, Mayor, has referred to us

your letter dated March 8, 2000 concerning the transfer of Mrs.

[Rodriguez-Garcia]," simply acknowledged that notice of the claim

had been received and expressed the willingness of Human Resources

to grant Rodriguez-Garcia's request for reinstatement. 

Although Human Resources disputed a factual matter (that

Rodriguez-Garcia had not requested a transfer), that disagreement

did not affect their willingness to grant to her, without

qualification or condition, the reinstatement that she sought.
-25-

With Rodriguez-Garcia receiving in this letter exactly what she

wanted, it could easily be thought there were no "compromise

negotiations" taking place in this exchange of correspondence

within the meaning of Rule 408. See, e.g., Merriam-Webster's

Collegiate Dictionary 984 (10th ed. 1998) (defining "compromise" as

"a settlement of differences . . . reached by mutual

concessions."); see also Sandlin v. Shapiro & Fishman, 919 F. Supp.

1564, 1569 (D. Fla. 1996) (finding that letters whose contents

offered no concessions did not meet the definition of "compromise"

and thus were outside the scope of the state analog to Rule 408).

Relatedly, the statement at issue here ("The Hon. William Miranda

Marin, Mayor, has referred to us your letter dated March 8, 2000,

concerning the transfer of Mrs. Rodriguez") is not the kind of

statement that one would be reluctant to make to a potential

adversary in an effort to reach an agreement about a dispute

without the protection of Rule 408. Indeed, if a stand-alone

letter of acknowledgment had been written confirming receipt and

noting that the mayor's office had referred the claim to Human

Resources, there is no question that the letter would have been

admissible as evidence of notice to the mayor of Rodriguez-Garcia's

claim. Thus, admitting this evidence complies with both the letter

and spirit of Rule 408.

The second letter from Rodriguez-Garcia's attorney to

the mayor, dated April 10, simply reiterated the request for the
 While the March 3 letter indicated that a copy was sent to 15

the vice mayor, it does not mention the mayor. 

-26-

transfer. When no reinstatement was forthcoming, her attorney sent

a third letter dated May 31, 2000 announcing his intention to file

a lawsuit. These letters too are outside the ambit of Rule 408.

Therefore, Rodriguez-Garcia should have been permitted to use the

Letters as evidence that the mayor personally had notice of her

claims, an indispensable element of her theory of liability, rather

than simply as evidence that she had not requested a transfer from

Public Works.

b. Harmless Error 

It is a short step from the determination that the

district court erred in its decision to limit the admissibility of

the Letters to a determination that it erred in granting the mayor

judgment as a matter of law. The district court, having excluded

the Letters, determined that the remaining evidence – the March 3

complaint letter Rodriguez-Garcia sent to Human Resources and the 15

encounter between Rodriguez-Garcia and the mayor in a public square

– was insufficient to establish supervisory liability. The court

explained: "'[i]f mere receipt of a letter or similar complaint

were enough, without more, to constitute personal involvement, it

would result in liability merely for being a supervisor, which is

contrary to the black-letter law that [§] 1983 does not impose

respondeat superior liability.'" (quoting Johnson v. Wright, 234 F.
-27-

Supp. 2d 352, 363 (S.D.N.Y. 2002)). Given the state of the record

that prompted this observation, we understand the court's reference

to the "mere receipt of a letter" to be a reference to the March 3

letter to the acting director of Human Resources. 

We appreciate the reluctance to permit a jury to draw an

inference about the personal involvement of the mayor on the basis

of a letter sent to a department head. However, if the court had

correctly admitted the Letters as evidence of the mayor's knowledge

of Rodriguez-Garcia's complaint and his personal involvement in

dealing with it, the court could no longer maintain that RodriguezGarcia was attempting to establish the mayor's liability based

simply on his role as the supervisor of a department head.

Instead, she would have had a basis for arguing that the mayor knew

about and was directly involved in the disposition of her transfer

and the failure to remedy it. Although appellees argue strenuously

that there was no evidence that the mayor personally received the

Letters sent to him, this is a factual question appropriate for

jury determination. 

Moreover, because the district court erred in dismissing

the case against the mayor in his personal capacity, it also

improperly hindered Rodriguez-Garcia's case against the

municipality. It is well established that the deliberate acts or

omissions of a municipal policymaker with final authority over the

subject matter in question may expose the municipality itself to
-28-

liability. See Pembaur 475 U.S. at 481-83 (explaining that

municipal liability can be found on a plaintiff's showing of a

"deliberate choice to follow a course of action [] made . . . by

the official or officials responsible for establishing final policy

with respect to the subject matter in question"). We have

repeatedly recognized that "mayors in Puerto Rico are the

government officials ultimately responsible for the employment

decisions of the municipality." Rivera-Torres v. Ortiz Velez, 341

F.3d 86, 103 (1st Cir. 2003); see also Cordero v. De Jesus-Mendez,

867 F.2d 1, 7 (1st Cir. 1989). If Rodriguez-Garcia could establish

the mayor's liability in his personal capacity, she would have a

plausible argument for municipal liability as well. Under these

circumstances, the limited relevance accorded by the district court

to the Letters on the basis of Rule 408 was not a harmless error.

2. The Verdict in Favor of Vice Mayor Puig

Rodriguez-Garcia also urges us to overturn the verdict in

favor of Vice Mayor Puig, arguing that the jury could not have made

a credibility determination in favor of Vice Mayor Puig given the

weight of the evidence suggesting that Rodriguez-Garcia had

consistently opposed her transfer. We disagree. 

The question of Vice Mayor Puig's liability turned

largely on whether the jury credited Vice Mayor Puig's or

Rodriguez-Garcia's testimony concerning the conversations that
-29-

allegedly took place between them. Indeed, Rodriguez-Garcia's

closing argument featured a series of rhetorical questions, asking:

Who do you believe? You heard Carmen, but no,

the Vice Mayor tells us that on February 18th

Carmen Rodriguez requested a transfer to

Federal Funds. Who hears him? Who remembers?

. . . Who do you believe? . . . Shall we

believe Wilfredo Puig, who very conveniently

remembers that Carmen requested to go to

Federal Funds . . . Should we believe Wilfredo

Puig, that conveniently understood that Carmen

had no hospitalizations after getting to

Federal Funds? . . . Who will we believe?

Wilfredo Puig, who again, understood that he

could testify as to assigned personnel action,

that he later stipulated that did not exist,

and that he later admitted that he had never

seen. Who do we believe? What happened on

February 18th, what?

Assessing witness credibility is "within the unique province of the

jury." United States v. Thomas, 467 F.3d 49, 55 (1st Cir. 2006).

We will not disturb its verdict in favor of Vice Mayor Puig.

III.

For the reasons set forth above, we affirm the district

court's grant of summary judgment for defendants on RodriguezGarcia's political discrimination claim. We also reject RodriguezGarcia's request that we order reinstatement of the verdict against

the municipality, concluding that Rodriguez-Garcia failed to make

the necessary objection before the jury was discharged. However,

we find that the court erred when it dismissed the case against the

mayor based on its Rule 408 ruling limiting the use of the Letters
-30-

that were so critical to Rodriguez-Garcia's case. We therefore

grant Rodriguez-Garcia's request for a new trial against the mayor

and, because municipal liability may be premised upon the mayor's

liability, against the Municipality of Caguas, as well. Finally,

we decline to disturb the jury's verdict in favor of Wilfredo Puig.

Affirmed in part, reversed in part, and remanded for

further proceedings. The parties shall bear their own costs.