Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 08-2319, 08-2320

CARMEN L. RODRÍGUEZ-GARCÍA,

Plaintiff, Appellee, Cross-Appellant,

v.

WILLIAM MIRANDA-MARÍN, MUNICIPALITY OF CAGUAS,

Defendants, Appellants, Cross-Appellees,

WILFREDO PUIG,

Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Lipez, Baldock and Howard, *

Circuit Judges.

Luis Pabón-Roca, with whom Grisselle González-Negrón and

Faccio & Pabón-Roca were on brief, for the Municipality of Caguas.

José Enrico Valenzuela-Alvarado, Assistant Solicitor

General, with whom Irene S. Soroeta-Kodesh, Solicitor General,

Leticia Casalduc-Rabell, Deputy Solicitor General, and Zaira Z.

Girón-Anadón, Deputy Solicitor General, were on brief, for William

Miranda-Marín. 

Godwin Aldarondo-Girald for Carmen L. Rodríguez-García.

June 21, 2010
 The title of this department (in Spanish, "Departamento de 1

Limpieza, Ornato y Urbanismo") has been variously translated by the

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

and Urbanism," and "Public Works." We will refer to it as Public

Works.

This is actually the third time this case has come before 2

us. Initially, the district court granted summary judgment for

defendants on the ground that Rodríguez-García's claims were timebarred. We vacated that decision and remanded the case for further

proceedings. See Rodríguez-García v. Municipality of Caguas, 354

F.3d 91, 100 (1st Cir. 2004) (Rodríguez I). 

-2-

LIPEZ, Circuit Judge. Carmen Rodríguez-García, a career

employee of the Municipality of Caguas, brought suit against Mayor

William Miranda-Marín, Vice Mayor Wilfredo Puig, and the

municipality, alleging violations of the First Amendment and Puerto

Rico law. She claimed, inter alia, that she was transferred from

her position in the Public Works Department ("Public Works") to 1

the Office of Federal Funds ("Federal Funds") in retaliation for

testimony she gave before the Puerto Rico Government Ethics Office.

In a prior appeal, we affirmed a jury verdict in favor of Puig, but

remanded for a new trial against Miranda-Marín and the

municipality. Rodríguez-García v. Municipality of Caguas

("Rodríguez II"), 495 F.3d 1 (1st Cir. 2007). On remand, a 2

magistrate judge presided over the trial by the consent of the

parties, see 28 U.S.C. § 636(c), and the jury found in RodríguezGarcía's favor and awarded her $350,000 in compensatory damages.

Miranda-Marín and the municipality appeal from the

judgment and the denial of several of their post-trial motions.
 The facts of this case substantially overlap with the facts 3

recounted in Rodríguez II. Where appropriate, we borrow verbatim

from our previous recitation of the facts and procedural history.

-3-

Rodríguez-García cross-appeals from the grant of defendants' posttrial motion to alter or amend the judgment, which had the effect

of preventing the recovery of double damages pursuant to a

provision of Puerto Rico law. We affirm in all respects.

I.

A. Factual Background

For the purpose of background, we recite here some of the

relevant facts in the light most favorable to the jury verdict.

Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 69 (1st Cir.

2008). We recount the trial evidence in more detail when we 3

analyze defendants' challenge to the sufficiency of the evidence.

1. Transfer

Rodríguez-García served as an executive secretary to

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

transfer in 2000. In the course of processing incoming mail,

Rodríguez-García noticed that Flores was receiving tickets to

political fundraisers and invitations to meetings for the Popular

Democratic Party ("PDP"), the party to which the mayor and Flores

belonged. Rodríguez-García was concerned that the receipt of this

material violated ethics rules prohibiting the use of government

resources to further political campaigns. Nevertheless, she duly

logged the materials and delivered them to Flores. 
-4-

On two occasions in 1999, Rodríguez-García raised her

concerns with Flores about the receipt of political materials in

the office. Flores ignored her complaints and continued to receive

political materials; sometimes, she stapled political fundraiser

tickets to office employees' paychecks. Rodríguez-García next

raised her concerns with Roberto Carrasquillo, a distant relative

and municipal assemblyman for the Puerto Rican Independence Party

("PIP"). Carrasquillo confirmed the merits of her concerns and

reported the matter to the Puerto Rico Government Ethics Office.

Carrasquillo also denounced the complained-of practice in press

releases, newspaper columns, and media interviews.

On December 21, 1999, Rodríguez-García was summoned to

appear before the Ethics Office, where she provided sworn testimony

regarding her complaint. As part of its investigation, the Ethics

Office issued summonses to a number of other municipal employees,

including Flores, who notified Mayor Miranda-Marín that she had

been summoned.

On February 1, 2000, Flores had a discussion with

Rodríguez-García, unrelated to the Ethics Office investigation,

about the assignment of a particular job task. Rodríguez-García

left the office upset and did not come to work the following day.

When she returned on February 3, she had a heated discussion with

Flores about the missed day of work. Shortly after that

discussion, Rodríguez-García fainted and required medical
 Medical testimony at trial revealed that Rodríguez-García 4

had a history of depression and other psychological ailments and

had been prescribed a variety of medications. 

 Rodríguez-García hand-delivered her letter to Human 5

Resources and the office of the vice mayor.

-5-

treatment. On the recommendation of her doctor, she rested at 4

home for several weeks. On February 18, she delivered a copy of

her medical release to Human Resources and then met with Vice Mayor

Puig to discuss her absence and planned return to work. She

returned to work several days later, on February 21 or 22. 

On the morning of her return, Rodríguez-García called

Puig's office to explain that she was back at the Public Works

office. She was instructed to leave Public Works and report to

Human Resources, where she was informed that she would be

transferred to another department. After initial assignment to the

Education Department, which had no work or space for her,

Rodríguez-García was transferred to Federal Funds. She had not

requested a transfer and asked to return to her position in Public

Works. Although Rodríguez-García retained the same job title and

salary in Federal Funds, her job responsibilities were

significantly reduced.

2. Attempted Reinstatement

On March 3, 2000, Rodríguez-García wrote a letter to

Human Resources requesting a written explanation for her transfer.5

In the months that followed, her attorney, Eladio Cartagena, wrote
-6-

three letters on her behalf to Mayor Miranda-Marín, who had the

final authority to transfer and reinstate municipal employees.

Cartagena's first letter to the mayor, dated March 8, requested

Rodríguez-García's reinstatement to Public Works and suggested that

her transfer was motivated by the Ethics Office complaint.

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 transfer of Mrs.

[Rodríguez-García]." The letter stated that the transfer had been

made at Rodríguez-García's request, that it was considered a

temporary transfer, and that "we would have no inconvenience in

newly reinstating Mrs. [Rodríguez-García] to her former position"

in Public Works. 

Cartagena sent a second letter to the mayor on April 10

requesting the offered reinstatement. A copy of the letter was

also sent to Heriberto Martínez, director of the Legal Advisor's

Office. In a conversation on April 10, Martínez informed Cartagena

that Rodríguez-García's reinstatement was pending and there would

be a meeting between the personnel department and RodríguezGarcía's supervisor in Public Works, Flores. Cartagena sent a

third letter to Miranda-Marín dated May 31, informing him that, on

the basis of the offered reinstatement, Rodríguez-García had met

with the interim Human Resources director and the director of

Public Works and they had refused to reinstate her. The May 31
 The petition was subsequently amended to include a political 6

discrimination claim; the amended petition did not include Flores

as a defendant as she had died in the interim. Rodríguez-García

later filed and was granted a voluntary dismissal of the petition

without prejudice.

-7-

letter further notified the mayor of Rodríguez-García's intention

to file a civil action based on the retaliatory transfer and

refusal to reinstate her. 

Later that year, in September 2000, Rodríguez-García

happened upon Mayor Miranda-Marín in a public square. She

approached him, grabbed his arm, shook him, and asked about her

case. He asked what was happening to her. Before she could

elaborate, she was escorted away by his assistants. 

 In October 2000, Rodríguez-García filed a petition

against the municipality and Flores in the Superior Court of Puerto

Rico. Cartagena spoke to the press about the suit, explaining 6

Rodríguez-García's allegations that she had been unlawfully

transferred in retaliation for her Ethics Office complaint.

Miranda-Marín responded to Rodríguez-García's claims in a

television interview.

On June 27, 2001, Rodríguez-García wrote to Miranda-Marín

a final time, complaining that she lacked significant work

responsibilities and was depressed. She entreated him to resolve

her complaint and reinstate her to her former position. She was

never reinstated to her position at Public Works. She remained in
-8-

her position at Federal Funds until sometime in 2003, when she was

transferred to the Department of Building Conservation.

B. Procedural History

On November 7, 2001, Rodríguez-García filed this action

in federal court against the municipality, Mayor Miranda-Marín, and

Vice Mayor Puig. She alleged that the defendants transferred and

refused to reinstate her because of her political affiliation and

in retaliation for her testimony before the Ethics Office, in

violation of the First Amendment and Puerto Rico law. She brought

her federal law claims pursuant to 42 U.S.C. §§ 1981, 1983 and

1985.

In August 2004, the district court granted partial

summary judgment to defendants, dismissing Rodríguez-García's

political discrimination claim and her claims under §§ 1981 and

1985. In December 2004, Rodríguez-García proceeded to trial on her

surviving retaliation claim. In a pretrial evidentiary ruling, the

court ruled that Cartagena's March 8, April 10 and May 31 letters

to the mayor, and the March 27 letter in response, could be offered

as evidence only for the limited purpose "of negating defendants'

contention that plaintiff herself requested a transfer," and not as

evidence of the mayor's knowledge of Rodríguez-García's claim. At

the close of Rodríguez-García's case, the court granted judgment as

a matter of law to Miranda-Marín in his personal capacity under

Federal Rule of Civil Procedure 50(a), concluding that the
 The court noted that Rodríguez-García had also pursued a 7

theory of municipal liability based on Miranda-Marín's conduct, but

that the court had dismissed the claims against the mayor on his

Rule 50(a) motion.

-9-

remaining evidence was insufficient as a matter of law to establish

that the mayor knew of Rodríguez-García's employment situation, and

therefore he could not be held personally liable for her transfer

or nonreinstatement.

At the trial's conclusion, the jury found in favor of

Puig, rejecting Rodríguez-García's claim that the vice mayor had

taken an adverse employment action against her. However, the jury

found that she had established municipal liability for that adverse

employment action and awarded her $285,000 in damages. The court

granted the municipality judgment as a matter of law under Federal

Rule of Civil Procedure 50(b), finding the verdict inconsistent

with Rodríguez-García's theory at trial that municipal liability

derived from Puig's retaliatory acts.7

On appeal, we affirmed the jury verdict in favor of Puig,

but held that the court erred in dismissing the case against

Miranda-Marín based on its erroneous limitation on the use of the

letters between attorney Cartagena and the mayor. Rodríguez II,

495 F.3d at 14. As we explained, if the letters had been correctly

admitted as evidence of his knowledge of Rodríguez-García's

complaint and the mayor's personal involvement in addressing it,

"she would have had a basis for arguing that the mayor knew about
-10-

and was directly involved in the disposition of her transfer and

the failure to remedy it." Id. at 13. We therefore granted

Rodríguez-García's request for a new trial against the mayor and,

because municipal liability could be premised on the mayor's

liability, against the municipality as well. Id. at 14.

Prior to the start of the second trial, Miranda-Marín and

the municipality (hereafter, "defendants") filed a motion in limine

requesting that the jury be instructed that Puig took no adverse

employment action against Rodríguez-García, based on the jury

verdict in the first trial. The court denied the motion.

Defendants also filed a motion in limine arguing that RodríguezGarcía should be barred from presenting a claim under Puerto Rico

Law 115, P.R. Laws Ann. tit. 29, § 194a, because, inter alia, she

had waived that claim by not pursuing it in the first trial. Law

115, which prohibits discrimination against employees for offering

testimony before a legislative, administrative or judicial forum,

provides that "[t]he employer's liability regarding the damages and

the unearned salaries shall be double the amount determined as

having caused the violation" of this provision. P.R. Laws Ann.

tit. 29, § 194a(a), (b). The court denied the motion, concluding

that Rodríguez-García could proceed to trial on her Law 115 claim.

At the close of Rodríguez-García's case, defendants moved

for judgment as a matter of law under Rule 50(a), which the court

denied. The jury returned a verdict in her favor against both the
 Defendants' motion for a new trial under Rule 59 focused on 8

the requested jury instruction and the damages award. Although the

motion contained a conclusory statement that the verdict was

against the weight of the evidence, it made no argument on this

point. Accordingly, the trial court treated defendants' motion for

judgment as a matter of law as raising a challenge to the

sufficiency of the evidence, and their motion for a new trial as

raising challenges to the damages award and the court's refusal to

give the requested jury instruction. 

-11-

mayor and the municipality and awarded Rodríguez-García $350,000 in

compensatory damages for emotional pain and suffering. The court

doubled the damages award pursuant to Law 115, issuing a judgment

against defendants in the amount of $700,000. 

In post-trial motions, defendants challenged both the

verdict and the damages award. Defendants filed a renewed motion

for judgment as a matter of law under Rule 50(b), contending that

the evidence was insufficient to support a finding of liability as

to either the mayor or the municipality. Defendants also moved for

a new trial and for remittitur of the damages award under Federal

Rule of Civil Procedure 59, contending that the court erred in

refusing to give the requested jury instruction as to Puig and that

the $350,000 damages award was excessive. Finally, defendants

moved to alter or amend the judgment under Rule 59(e) on the ground

that Rodríguez-García had waived her Law 115 claim and therefore

the court should not have doubled the jury award.8

The court denied defendants' motions for judgment as a

matter of law, a new trial, and remittitur, but granted their

motion under Rule 59(e) on the ground that Rodríguez-García had
-12-

waived her Law 115 claim. Accordingly, it entered an amended

judgment in the amount of $350,000.

Miranda-Marín and the municipality appeal, contending

that (1) the evidence was insufficient to support the finding of

liability, (2) the court erred in failing to give the requested

jury instruction as to Puig, and (3) the damages award was grossly

excessive. As a result, defendants argue, the court erred in

denying their motions under Rules 50(b) and 59 for judgment as a

matter of law, a new trial, and remittitur. Rodríguez-García

cross-appeals, contending that she did not waive her Law 115 claim

and therefore the court erred in granting defendants' Rule 59(e)

motion to amend the judgment. 

II.

A. Standard of Review

We review the denial of a renewed motion for judgment as

a matter of law de novo as to questions of law. Valentín-Almeyda

v. Municipality of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006). As

to matters of fact, we view the evidence "in the light most

favorable to the verdict, making no determinations of our own as to

the credibility of witnesses or the weight of the evidence,

reversing only if a reasonable person could not have reached the

conclusion of the jury." Id. at 95-96 (internal quotation marks

and citation omitted). We review the denial of a motion for a new

trial for abuse of discretion. Jennings v. Jones, 587 F.3d 430,
 Such a violation of First Amendment rights by a state actor 9

is actionable under section 1983, which imposes liability on any

person who, under color of state law, "subjects, or causes to be

subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws . . . ." 42 U.S.C. § 1983.

-13-

436-37 & n.7 (1st Cir. 2009). The district court "has the power

and duty to order a new trial whenever, in its judgment, the action

is required in order to prevent injustice." Id. at 436 (quotation

marks and citation omitted). We likewise review the denial of a

motion for remittitur for abuse of discretion, reversing only if

"the jury's verdict exceeds any rational appraisal or estimate of

the damages that could be based on the evidence before the jury."

Astro-Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 13 (1st

Cir. 2009) (internal quotation marks and citation omitted).

B. Sufficiency of the Evidence

Defendants contend that the court erred in concluding

that there was sufficient evidence to sustain the jury's finding

that defendants retaliated against her for speaking out against the

receipt of political materials in her office.9

"Public employees do not lose their First Amendment

rights to speak on matters of public concern simply because they

are public employees." Curran v. Cousins, 509 F.3d 36, 44 (1st

Cir. 2007). Instead, "[t]he First Amendment prevents the

government, except in the most compelling circumstances, from

wielding its power to interfere with its employees' freedom to
-14-

believe and associate, or to not believe and not associate." Rutan

v. Repub. Party of Ill., 497 U.S. 62, 76 (1990). We have

articulated a three-part test for determining whether a challenged

employment action violated a public employee's First Amendment

right to freedom of speech. First, the court examines "'whether

the employee spoke as a citizen on a matter of public concern.'"

Curran, 509 F.3d at 45 (quoting Garcetti v. Ceballos, 547 U.S. 410,

418 (2006)). Second, the court must "balance . . . the interests

of the [employee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through

its employees." Id. at 44 (quoting Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968)). Third, the employee must "show that the

protected expression was a substantial or motivating factor in the

adverse employment decision." Id. at 45. If the employee

demonstrates that the speech was a substantial or motivating factor

in the employer's retaliatory action, the employer may avoid

liability by showing that it would have reached the same decision

even absent the protected conduct. Id. This is the so-called Mt.

Healthy defense. See Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977).

Defendants primarily contend that the evidence presented

at trial is insufficient to support the jury finding that (1)

Rodríguez-García suffered an adverse employment action sufficient
 Defendants also claim that Rodríguez-García's sworn 10

testimony before the Ethics Office does not constitute speech on a

"matter of public concern," see Connick v. Myers, 461 U.S. 138, 146

(1983), because Carrasquillo, not Rodríguez-García, initiated the

complaint with the Ethics Office. Defendants did not raise this

argument in the district court, in either their Rule 50(a) or 50(b)

motions, and it is therefore waived. See Parker v. Gerrish, 547

F.3d 1, 12 (1st Cir. 2008) (issue is waived on appeal if not

pressed in Rule 50 motion). Defendants also direct our attention

to Garcetti, in which the Supreme Court held that "when public

employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their

communications from employer discipline." 547 U.S. at 421.

However, defendants make no effort to explain how Garcetti applies,

if at all, to the facts of this case, and we thus deem this

argument waived for lack of appellate development. United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-15-

to support her § 1983 claim, (2) defendants would not have taken

the same adverse employment action in the absence of her protected

conduct, (3) the mayor is personally liable for retaliation under

§ 1983, and (4) the municipality is liable under § 1983. We

address each challenge in turn.10

1. Adverse Employment Action

Actions short of dismissal or demotion, including denials

of promotions, transfers, and failures to recall after layoff, can

constitute adverse employment actions. Rutan, 497 U.S. at 75; see

also Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 19 (1st

Cir. 2008). Employment actions are sufficiently adverse to support

a First Amendment § 1983 claim "if those actions, objectively

evaluated, would 'place substantial pressure on even one of thick

skin to conform to the prevailing political view.'" Bergeron v.
-16-

Cabral, 560 F.3d 1, 8 (1st Cir. 2009) (quoting Agosto-de-Feliciano

v. Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989) (en banc)),

abrogated on other grounds by Maldonado v. Fontanes, 568 F.3d 263

(1st Cir. 2009). This standard is met "when the employer's

challenged actions result in a work situation 'unreasonably

inferior' to the norm for the position." Agosto-de-Feliciano, 889

F.2d at 1218; see also id. at 1218, 1220 (explaining that

factfinder must "canvass the specific ways in which the plaintiff's

job has changed" and "determine whether the employee has retained

duties, perquisites and a working environment appropriate for his

or her rank and title"). 

Emphasizing that Rodríguez-García did not receive a

reduction in salary or change in job title when she was transferred

to Federal Funds, defendants contend that the evidence does not

support a finding that her transfer and nonreinstatement amounted

to an adverse employment action. We disagree. Although she

retained the same job title and salary after her transfer to

Federal Funds, her job duties and working environment were

substantially altered. In Public Works, a large, active office,

Rodríguez-García had a variety of job responsibilities including

logging incoming mail, maintaining the director's schedule,

organizing files, taking dictation, creating letters, and working

with other departments on human resources and administrative

matters. After her transfer to Federal Funds, a small office that
 Defendants also suggest, based largely on the testimony of 11

the director of Federal Funds, Gilberto Charriez, that RodríguezGarcía performed many job tasks in Federal Funds and seemed happy

in her position there. However, the jury was free to credit

Rodríguez-García's description of her working conditions and reject

Charriez's conflicting testimony. 

-17-

already had an executive secretary, Rodríguez-García had few tasks

assigned to her. Although she occasionally scanned the newspaper

for announcements of Federal Funds proposals, opened incoming mail,

made photocopies, or answered the phone if the other executive

secretary was absent, she spent most of her time doing nothing.

She could not assist in many office tasks, such as performing

Internet searches and taking dictation in English, because she was

not proficient in English, and she could not compete for employment

awards or bonuses because she performed few job duties. In

addition, she was assigned to work in a windowless storage area

alongside cleaning materials and inactive files. A reasonable jury

could conclude that these assignments and working conditions were

unreasonably inferior to the norm for Rodríguez-García's position

of executive secretary.11

2. Mt. Healthy Defense

Defendants do not contend that Rodríguez-García failed to

establish that her protected conduct was a substantial or

motivating factor in the adverse employment decision. Instead,

they argue that no reasonable jury could have rejected their Mt.

Healthy affirmative defense. A defendant seeking the protection of
-18-

the Mt. Healthy defense bears the burden of persuasion "to prove by

a preponderance of the evidence that the adverse employment action

would have been taken 'even in the absence of the protected

conduct.'" Guilloty Perez v. Pierluisi, 339 F.3d 43, 56 (1st Cir.

2003) (quoting Mt. Healthy, 429 U.S. at 287). Thus, even if the

defendant's actions were motivated in part by the plaintiff's

protected conduct, the defendant can still prevail if he or she can

show that the protected conduct was not the "but-for" cause of the

adverse action. Rodríguez-Marín v. Rivera-González, 438 F.3d 72,

81 (1st Cir. 2006). 

Defendants argue that the evidence conclusively

established that Rodríguez-García would have been transferred even

absent her involvement in the Ethics Office investigation. Their

Mt. Healthy defense relies primarily on testimony from Vice Mayor

Puig. Puig testified that in early February 2002, Rodríguez-García

came to his office distraught and informed him that she had had a

heated argument with Flores and did not want to return to Public

Works and that, for health reasons, her doctor had recommended that

she be transferred out of that department. Puig further testified

that he then arranged for her transfer to accommodate this request.

Rodríguez-García presented a different account of her

transfer. She testified at trial that she had not requested the

transfer, her doctor had not recommended it for health reasons, and

she preferred to stay in her position in Public Works. She also
 In addition, there is no evidence indicating that Rodríguez- 12

García's repeated requests for reinstatement between February 2000

and 2003 would have been refused even in the absence of her

protected conduct.

 Defendants also suggest that, under the second prong of our 13

test outlined above, the First Amendment interests in this case are

outweighed by a legitimate government interest in curtailing

plaintiff's speech. See Pickering, 391 U.S. at 568. However,

instead of addressing the nature of Rodríguez-García's speech and

why they had legitimate interests in curtailing it, defendants

simply reiterate their contention that Rodríguez-García was

transferred at her own request rather than in retaliation for her

Ethics Office complaint. This contention relates to defendants'

motivation for the adverse employment action, not to the balancing

of employee speech and government interests. To the extent that

defendants intend to raise a distinct argument under Pickering, it

is deemed waived for lack of appellate development. Zannino, 895

F.2d at 17.

-19-

offered the letters she and her attorney had sent to Human

Resources and Mayor Miranda-Marín shortly after her transfer, which

sought an explanation for the transfer and requested reinstatement

to her position in Public Works. Given this conflicting evidence,

a reasonable jury could find that Rodríguez-García's testimony

before the Ethics Office, and not her purported transfer request,

was the but-for cause of the transfer. We conclude that the jury 12

could reasonably reject defendants' Mt. Healthy defense. 

13

3. Personal Liability of Mayor Miranda-Marín

Although government officials "'may not be held liable

for the unconstitutional conduct of their subordinates under a

theory of respondeat superior,'" Sanchez v. Pereira-Castillo, 590

F.3d 31, 49 (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

(2009)), officials may be held liable "if the plaintiff can
-20-

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," Rodríguez II, 495

F.3d at 10 (internal quotation marks and citation omitted). Under

either a direct or indirect theory of liability, "the plaintiff

must show that the official had actual or constructive notice of

the constitutional violation." Id. (citing 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, 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.")).

Defendants maintain that the mayor cannot be held

personally liable because he knew nothing about Rodríguez-García's

Ethics Office complaint, her claim that she was transferred in

retaliation for that complaint, or her request for reinstatement

until after this action was filed in federal court. However, ample

evidence supports a finding to the contrary. The jury heard

evidence that Rodríguez-García's attorney sent at least three

letters to Miranda-Marín regarding her transfer and request for

reinstatement, dated March 8, April 19, and May 31, 2000. Human

Resources responded to the March 8 letter, stating that the letter

had been referred by the mayor and that Rodríguez-García would be
-21-

reinstated. In addition, Rodríguez-García herself sent a letter to

the mayor dated June 27, 2001, again complaining of her transfer

and requesting reinstatement. Defendants insist that the mayor

never personally received any of these letters, pointing to

evidence that correspondence addressed to the mayor was routinely

diverted to the appropriate municipal office or department before

reaching him. However, as we determined in Rodríguez II, whether

the mayor personally received the letters sent to him is "a factual

question appropriate for jury determination," id. at 13, and here

the jury heard the evidence and rejected the mayor's claim of lack

of notice. 

Furthermore, apart from Rodríguez-García's letters to the

mayor, the record contains additional evidence that the mayor was

aware of the Ethics Office investigation, her claim of retaliatory

transfer, and her request for reinstatement. Sometime after

Rodríguez-García testified before the Ethics Office in December

1999, Flores informed Miranda-Marín that she had been summoned by

the Ethics Office, and the mayor offered to help her secure legal

representation. In September 2000, Rodríguez-García confronted the

mayor in a public square, grabbed him, and asked what he intended

to do about her case. In October 2000, Rodríguez-García filed a

lawsuit against the municipality in Superior Court, alleging that

her transfer and nonreinstatement were in retaliation for her

Ethics Office complaint. Shortly thereafter, the mayor commented
Miranda-Marín asserted that the lawsuit was part of a scheme 14

by Rodríguez-García's lawyer, who had appeared in an earlier

political commercial against the mayor, and that Rodríguez-García

was related to Carrasquillo, who allegedly had a personal agenda

against the mayor. 

-22-

on Rodríguez-García's lawsuit in a television interview. Although 14

the mayor testified at trial that he remained unaware of RodríguezGarcía's employment situation or the subject of her complaint

despite these events, the jury was free to reject that testimony.

Thus presented, the evidence adduced at trial is

sufficient to sustain the imposition of § 1983 liability on the

mayor for his own direct acts or omissions with respect to

Rodríguez-García's nonreinstatement. See id. A reasonable jury

could find that Miranda-Marín had knowledge of the Ethics Office

investigation, had knowledge of Rodríguez-García's claim that she

was transferred and deprived of duties in retaliation for her

testimony before the Ethics Office, and received her repeated

requests for reinstatement. Moreover, as mayor, Miranda-Marín had

final authority over transfers and reinstatements of municipal

employees. Nevertheless, the mayor declined to reinstate

Rodríguez-García to her position in Public Works in response to her

repeated requests. 

4. Liability of the Municipality

As with government officials, a municipality cannot be

held liable for the constitutional violations of municipal

employees on a respondeat superior theory. Monell v. Dep't of Soc.
 Relying on our decision in Fabiano v. Hopkins, 352 F.3d 447 15

(1st Cir. 2003), defendants suggest that a single incident of

misconduct cannot expose a municipality to § 1983 liability. We

squarely rejected this same argument in Welch. See 542 F.3d at

942.

-23-

Servs., 436 U.S. 658, 691 (1978). Instead, liability attaches to

a municipality under § 1983 "only if the violation occurs pursuant

to an official policy or custom." Welch v. Ciampa, 542 F.3d 927,

941 (1st Cir. 2008). A plaintiff can establish an official policy

"by showing that the alleged constitutional injury was caused by

. . . a person with final policymaking authority." Id.; see also

Rodríguez II, 495 F.3d at 13 ("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 liability."). Although liability may not be

imposed on a municipality for a single instance of misconduct by an

official without final policymaking authority, liability may be

imposed on a municipality for "a single decision by a final

policymaker." Welch, 542 F.3d at 942 (citing Pembaur v. City of

Cincinnati, 475 U.S. 469, 480 (1986)).15

We have recognized on a number of occasions that "mayors

in Puerto Rico are the government officials ultimately responsible

for employment decisions of the municipality." Rodríguez II, 495

F.3d at 13 (quotation marks and citations omitted); see also

Acevedo-Garcia v. Monroig, 351 F.3d 547, 553 n.1 (1st Cir. 2003)

(noting that under Puerto Rico law, mayors of municipalities have
 Defendants further contend that the mayor is entitled to 16

qualified immunity because he did not cause any violation of a

constitutional right. In support of this position, defendants

simply reiterate their contentions that Rodríguez-García was

transferred based on her own request and not in retaliation for her

Ethics Office testimony and that the mayor had no knowledge of her

transfer and request for reinstatement. As discussed above, ample

evidence supports a jury finding to the contrary on both of these

points.

-24-

the power to appoint and remove municipal officials and employees,

and thus mayor's "employment decisions ipso facto constituted the

official policy of the municipality" (internal quotation marks and

citation omitted)). Therefore, liability can be imposed on the

municipality for Miranda-Marín's own direct acts or omissions with

respect to Rodríguez-García.16

C. Requested Jury Instruction as to Vice Mayor Puig

Recounting what happened in the first jury trial in this

case, defendants contend that the court erroneously declined to

instruct the jury in the second trial that Vice Mayor Puig had not

taken an adverse employment action against Rodríguez-García.

Following that first trial, in which Puig and the municipality were

defendants, the jury rejected Rodríguez-García's claim that the

vice mayor had taken an adverse employment action against her.

Presented with a special jury verdict form that asked, "Did

Plaintiff establish by preponderance of the evidence that defendant

Wilfredo Puig took adverse employment action against her?", the

jury answered in the negative. Prior to the second trial,

defendants Miranda-Marín and the municipality invoked collateral
-25-

estoppel and moved that the court instruct the jury that Puig took

no adverse employment action against Rodríguez-García. The court

denied the motion in limine in a thorough written order, concluding

that the requested instruction would likely confuse and unduly

influence the jury and would not promote judicial economy because

closely related issues remaining in the case would require that

much of the same evidence be presented to the jury. 

Collateral estoppel, now often called issue preclusion,

prevents a party from relitigating issues that have been previously

adjudicated. Enica v. Principi, 544 F.3d 328, 336 (1st Cir. 2008).

The doctrine serves the twin goals of "protecting litigants from

the burden of relitigating an identical issue" and "promoting

judicial economy by preventing needless litigation." Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Collateral

estoppel may be applied where "(1) the issue sought to be precluded

in the later action is the same as that involved in the earlier

action; (2) the issue was actually litigated; (3) the issue was

determined by a valid and binding final judgment; and (4) the

determination of the issue was essential to the judgment." Ramallo

Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86 (1st Cir. 2007).

In the past, courts "adhered to the doctrine of

'mutuality of estoppel,' which ordained that 'unless both parties

(or their privies) in a second action are bound by a judgment in a

previous case, neither party (nor his privy) in the second action
-26-

may use the prior judgment as determinative of an issue in a second

action.'" Acevedo-Garcia, 351 F.3d at 573 (quoting Blonder-Tongue

Labs. v. Univ. of Ill. Found., 402 U.S. 313, 320-21 (1971)).

However, mutuality is no longer strictly required for the

application of collateral estoppel in federal courts. Fiumara v.

Fireman's Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir. 1984).

Instead, the central question is "whether a party has had a full

and fair opportunity for judicial resolution of the same issue."

Id. Nonmutual collateral estoppel may be invoked either

offensively, by a plaintiff who "seeks to foreclose the defendant

from litigating an issue the defendant has previously litigated

unsuccessfully in an action with another party," or, as in this

case, defensively, by a defendant who "seeks to prevent a plaintiff

from asserting a claim the plaintiff has previously litigated and

lost against another defendant." Parklane Hosiery, 439 U.S. at 326

n.4; see id. at 329-32. We have also recognized that collateral

estoppel is "no longer limited to ultimate issues: necessary

intermediate findings can now be used to preclude relitigation."

Biggins v. Hazen Paper Co., 111 F.3d 205, 210 (1st Cir. 1997); see

also Restatement (Second) of Judgments § 27, cmt. j (1982).

Rodríguez-García makes two arguments in support of the

court's decision not to apply collateral estoppel. First, she

argues that collateral estoppel cannot be applied in this case

because the parties in the two proceedings were not identical.
-27-

This argument is foreclosed by the precedent permitting defensive

nonmutual collateral estoppel. Second, Rodríguez-García argues

that the issue litigated and decided in the first trial, whether

Vice Mayor Puig took an adverse employment action against her, is

not the same as the issue to be decided in the second trial,

whether Mayor Miranda-Marín is personally liable for the alleged

retaliation. 

As we explained in Rodríguez II, Miranda-Marín could be

held liable either based on his own "direct acts or omissions,"

that is, his direct participation in the unconstitutional conduct,

or based on his indirect "condonation or tacit authorization" of

unconstitutional conduct by his subordinates. 495 F.3d at 10

(internal quotation marks omitted); see also Whitfield v. MeléndezRivera, 431 F.3d 1, 14 (1st Cir. 2005). A finding of liability

under the former theory, that Miranda-Marín directly participated

in the refusal to reinstate Rodriguez-Garcia, would not depend in

any way on whether the vice mayor took an adverse employment action

against her. However, a finding of liability under the latter

theory, that Miranda-Marín condoned or tacitly authorized an

adverse employment action taken by a subordinate such as Vice Mayor

Puig, could require the jury to decide precisely the same issue

that was decided by the jury in the first trial -- whether the vice

mayor took an adverse employment action against Rodríguez-García.
 The special verdict form used in the second trial asked the 17

jury whether they found "by a preponderance of the evidence that

plaintiff's transfer, or failure to be reinstated, resulted from

Mayor William Miranda Marín's direct acts or omissions, or from his

indirect conduct that amounted to condonation or tacit

authorization." Thus, the verdict form does not indicate whether

the jury found the mayor liable on a direct or indirect theory of

liability. Where a general verdict or special verdict question

encompasses multiple claims or multiple theories of liability, one

of which is unsupported by the evidence or otherwise defective, "a

new trial is usually warranted." See Mass. Eye & Ear Infirmary v.

QLT Phototherapeutics, Inc., 552 F.3d 47, 73 (1st Cir. 2009); see

also David v. Rennie, 264 F.3d 86, 105-06 (1st Cir. 2001).

However, this rule is "by no means rigid;" instead, "we apply a

generous harmless error analysis in order to determine whether it

is reasonably likely that the jury in fact relied on a theory with

adequate evidentiary support." Mass. Eye & Ear, 552 F.3d at 73.

Rodríguez-García's evidence and argument at trial focused entirely

on a direct rather than an indirect theory of liability.

Therefore, it is reasonably likely that the jury relied on a direct

theory of liability, a theory amply supported by the evidence.

-28-

Here, although the special verdict form used in the

second trial does not indicate whether the jury found Miranda-Marín

liable on a direct or indirect theory of liability, we can be

reasonably sure that the jury found the mayor liable on a direct

liability theory. Rodríguez-García's theory of liability at the 17

second trial was that Miranda-Marín was directly involved in her

nonreinstatement, not that the mayor condoned or tacitly authorized

any alleged adverse action by Puig. She offered evidence that

Miranda-Marín had the ultimate authority to transfer and reinstate

municipal employees, knew that she had been transferred in

retaliation for her Ethics Office complaint, knew of her repeated

requests for reinstatement, and nevertheless refused to reinstate

her. She did not offer any evidence that Puig received her
-29-

requests for reinstatement or was involved in the decision not to

reinstate her. As the trial court explained in its order denying

defendants' motion for a new trial: 

Defendants overstate the importance of Puig's

actions as they relate to plaintiff's theory

of the case as it was presented through

evidence in the second trial. . . . Although

there was evidence (elicited mainly by the

defendants) that Puig authorized plaintiff's

initial transfer in February 2000, no evidence

was presented that Puig received any of

plaintiff's requests for reinstatement, or

that he was involved in any decision not to

reinstate her from February 2000 until early

2003; rather, the evidence presented at trial

indicated that all such requests were made to

Miranda-Marín and were referred to the head of

Human Resources.

Rodríguez-García's opening and closing arguments similarly focused

on the mayor's direct participation in Rodríguez-García's

nonreinstatement, rather than any indirect authorization of alleged

adverse actions by Puig. Thus, a finding of liability under the

theory Rodríguez-García pressed at the second trial, that the mayor

was directly involved in the decision not to reinstate her, is

consistent with the jury verdict in favor of Puig in the first

trial.

Moreover, "[n]onmutual issue preclusion is not available

as a matter of right." 18A Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper, Federal Practice & Procedure § 4465 (2d ed.

2010). Instead, a district court may refuse to apply nonmutual

collateral estoppel when, for example, its application "would badly
-30-

distort matters" before the jury, Biggins, 111 F.3d at 210 (citing

Federal Rule of Evidence 403), or would "not result in efficiency

gains because litigation of the 'live' issue may require

introduction of some of the same evidence pertinent to the estopped

issues," Acevedo-Garcia, 351 F.3d at 577. Although, as defendants

point out, Biggins and Acevedo-Garcia involved offensive nonmutual

collateral estoppel, concerns about juror confusion and judicial

economy are relevant to defensive nonmutual collateral estoppel as

well. See 18A Wright, Miller & Cooper, supra, at § 4465 ("Whatever

values may be gained by nonmutual preclusion are substantially

diminished when the need to try related issues requires

consideration of much the same evidence as bears on the issue

tendered for preclusion. . . . Beyond the lack of time saving,

moreover, preclusion on one issue while closely related issues must

be tried may substantially distort decision of the issues that

remain open." (footnote omitted)); Restatement (Second) of

Judgments § 29(6). 

The district court carefully weighed the merits of the

requested jury instruction and concluded that it was not

appropriate in this case. Citing Federal Rule of Evidence 403, the

court found that the requested instruction could lead the jury to

make improper inferences as to related issues remaining in the

case, such as whether Rodríguez-García's transfer or

nonreinstatement constituted an adverse employment action, whether
-31-

she was transferred at her own request rather than in retaliation

for her protected activity, and whether municipal actors other than

the vice mayor took an adverse employment action against her. The

court further found that the instruction would not promote judicial

economy because these remaining, closely intertwined issues would

require introduction of much of the same evidence at trial. In

view of the court's well-supported concerns about juror confusion

and judicial economy, we conclude that the court did not err in

refusing to instruct the jury that Vice Mayor Puig had not taken an

adverse employment action against Rodríguez-García. 

D. Damages

Finally, defendants argue that the trial court erred in

declining to reduce the damages award, asserting that the award was

grossly excessive. The jury awarded Rodríguez-García $350,000 in

compensatory damages for her emotional pain and suffering. 

We may overturn a damages award only if it is "grossly

excessive or so high as to shock the conscience of this court."

Valentín-Almeyda, 447 F.3d at 103. We accord "broad discretion to

the trial court's decision to affirm the jury's award of damages

because of that court's greater familiarity with local community

standards and with the witnesses' demeanor at the trial." Id.

(quotation marks and citation omitted). Damages for pain and

suffering, in particular, "defy exact mathematical computation and
-32-

are not susceptible to proof by a dollar amount." Acevedo-Garcia,

351 F.3d at 571 (internal quotation marks and citations omitted).

At trial, Rodríguez-García and her psychiatrist, Dr.

Julio Fontanez, testified at length about the suffering she endured

as a result of her transfer and nonreinstatement. Rodríguez-García

explained that the lack of duties in her new position made her feel

"very bad," "depressed," "like I was nothing, like I wasn't there.

. . . I continued being Executive Secretary 1, but I wasn't that.

In practice, I wasn't that. And they let me know that everyday,

having me there." The transfer affected her home life as well,

causing her to "withdr[a]w from my family, from my children, my

daily life. From my mother, my family. I wanted to be alone,

withdrawn, just thinking. . . . I tried to get away . . . from what

was me." 

Dr. Fontanez, who treated Rodríguez-García from July 1997

until December 2002, testified that her psychological condition

deteriorated over this period. Although Rodríguez-García had

typical symptoms of depression as of 1997, over time her condition

grew "more acute," requiring increased medication and, beginning in

June 2000, repeated hospitalizations. Fontanez testified to

Rodríguez-García's recurring complaints about her work situation

after the transfer, and identified that situation as an important

factor in her deteriorating condition. 
-33-

In light of this evidence, we cannot say that the court

abused its discretion in affirming the damages award. Although

generous, the award of $350,000 was not grossly excessive or so

high as to shock the conscience. Moreover, this award is similar

to noneconomic compensatory damages awards we have upheld in other

employment discrimination and retaliation contexts. See, e.g.,

Monteagudo v. Asociación de Empleados del Estado Libre Asociado de

P.R., 554 F.3d 164, 174-75 (1st Cir. 2009) (upholding $333,000

damages award in sexual harassment case where plaintiff testified

that she suffered from depression, cried every evening and was

unable to sleep); McDonough v. City of Quincy, 452 F.3d 8, 22 (1st

Cir. 2006) (affirming $300,000 damages award in Title VII

retaliation case, "the bulk" of which was for emotional distress in

the form of humiliation and damage to reputation and family

relationships). 

III.

In her cross-appeal, Rodríguez-García contends that the

court erred in concluding that she waived her claim under Law 115.

Law 115 prohibits an employer from discriminating against an

employee for offering testimony before a legislative,

administrative or judicial forum in Puerto Rico and, importantly,

provides for double damages for a violation of this provision. 29

P.R. Laws Ann. tit. 29, § 194a(a), (b).
-34-

Following our decision in Rodríguez II remanding the case

for a new trial against the mayor and municipality, RodríguezGarcía raised a Law 115 claim in the joint proposed pretrial order

("2007 pretrial order"). Defendants objected, arguing that she had

waived this claim by failing to include it in the joint pretrial

order filed by the parties and approved by the court prior to the

first trial ("2004 pretrial order"). The court concluded that

Rodríguez-García could proceed to trial on her Law 115 claim, and

it subsequently doubled the $350,000 compensatory damages award

pursuant to that provision. However, on defendants' post-judgment

motion to alter or amend the judgment under Rule 59(e), the court

determined that its prior ruling was in error. In a written order,

the court thoroughly analyzed the record and concluded that

Rodríguez-García had waived her Law 115 claim by not including it

in the 2004 pretrial order or successfully moving to modify the

order, and she had not shown any manifest injustice that would

result from not permitting her to modify the 2004 pretrial order to

include this claim. The court then entered an amended judgment in

the amount of $350,000. 

We review the court's decision on a Rule 59(e) motion for

abuse of discretion. See Negrón-Almeda v. Santiago, 528 F.3d 15,

25 (1st Cir. 2008). A final pretrial order "is intended to

'control the subsequent course of the action,' and can be modified

only 'to prevent manifest injustice.'" Correa v. Hosp. San
 Rodríguez-García's complaint contained one mention of Law 18

115, invoking supplemental jurisdiction "for causes of action

arising under the Puerto Rico Constitution and laws of the

Commonwealth of Puerto Rico, among them, Act 115 . . . ." 

However, the complaint's asserted causes of action included several

claims arising under Puerto Rico law, but did not include a claim

under Law 115. The complaint's prayer for relief likewise did not

request double damages under Law 115, although it generally

requested "all damages to which [Rodríguez-García] is entitled."

 In the 2004 pretrial order, in addition to her federal law 19

claims, Rodríguez-García asserted claims under Article II, §§ 1, 6

and 7 of the Puerto Rico Constitution; the Puerto Rico Public

Service Personnel Act, Act No. 5 of Oct. 14, 1975, P.R. Laws Ann.,

tit. 3, §§ 1301-1323 (repealed Aug. 3, 2004); and Articles 1802 and

1803 of the Puerto Rico Civil Code, P.R. Laws Ann., tit. 31, §§

5141, 5142.

-35-

Francisco, 69 F.3d 1184, 1195 (1st Cir. 1995) (quoting Fed. R. Civ.

P. 16(e)). Therefore, "[a]n appellate court should not lightly

relieve a litigant from the condign consequences of its failure to

list a theory . . . at that critical stage of the proceedings,"

id., and "issues not included in the final pretrial order are

generally waived," id. (citing Ramirez-Pomales v. Becton Dickinson

& Co., 839 F.2d 1, 3 (1st Cir. 1988)). 

As the court explained in its detailed order granting

defendants' Rule 59(e) motion, even assuming that RodríguezGarcía's complaint adequately raised a Law 115 claim, she waived 18

that claim by failing to include it in the 2004 proceedings. In

the 2004 pretrial order, Rodríguez-García raised several claims

arising under Puerto Rico law, but did not assert a Law 115 claim 19

and did not request double damages. Defendants noted this

omission, stating in the pretrial order that Rodríguez-García had
 The following day, Rodríguez-García objected to the jury 20

instructions, requesting an instruction under Law 115. The court

did not rule on this objection, and Rodríguez-García did not raise

the issue again.

-36-

not sought a remedy under Law 115. Thereafter, Rodríguez-García

made no objection to the language of the 2004 pretrial order and

did not seek to modify the order prior to the first trial.

Furthermore, at the first trial, the court rejected her attempt to

proceed under Law 115. After the close of evidence, RodríguezGarcía argued to the court that Law 115's three-year statute of

limitations governed the action. However, defense counsel argued

that "this is not a Law 115 case" and opposed any attempt by

plaintiff to amend her complaint to include a Law 115 claim. The

court agreed, ruling that "they are not amending their case to be

Law 115."20

Rodríguez-García takes issue with the trial court's

analysis, contending that she did not waive her Law 115 claim prior

to the first trial. She points to statements in the 2004 pretrial

order, by the judge during the first trial, and in our opinion in

Rodríguez II, that refer to her claims under "state law" or "Puerto

Rico law." See, e.g., Rodríguez II, 495 F.3d at 2, 6. For

example, the court instructed the jury in the first trial that

plaintiff's claim "under Puerto Rico law" was "identical for all

practical purposes to the federal claim," and if the jury found

defendants liable under federal law, they would also be liable
-37-

under Puerto Rico law. However, as noted above, the complaint and

the 2004 pretrial order expressly included several claims arising

under Puerto Rico law. There is nothing to suggest that the

statements Rodríguez-García points to, which refer generally to

state or Puerto Rico law, encompassed Law 115. 

In sum, we conclude that the court's determination that

Rodríguez-García waived her Law 115 claim, and that its earlier

ruling to the contrary was erroneous, was not an abuse of

discretion. See Ruiz-Rivera v. Pfizer Pharmaceuticals, LLC, 521

F.3d 76, 81-82 (1st Cir. 2008) (a court may grant a Rule 59(e)

motion "where the movant shows a manifest error of law or newly

discovered evidence" (quotation marks and citation omitted)).

IV. 

For the foregoing reasons, the judgment is affirmed. 

Each party shall be responsible for its own costs.

So ordered.