United States Court of Appeals

For the First Circuit

No. 17-1653

ELBA I. FALTO DE ROMÁN,

Plaintiff, Appellant,

v.

MUNICIPAL GOVERNMENT OF MAYAGÜEZ; JOSE GUILLERMO RODRIGUEZ, as 

Mayor of the City of Mayagüez,

Defendants, Appellees,

ELENA MARTINEZ, as Member of the Board of Directors of the HeadStart Program, Mayagüez; LUIS OLIVERAS, as Member of the Board 

of Directors of the Head-Start Program, Mayagüez; LUIS OJEDA, as 

Member of the Board of Directors of the Head-Start Program, 

Mayagüez; CARLOS GONZALEZ, as Member of the Board of Directors 

of the Head-Start Program, Mayagüez; EFRAIN DE JESUS; LISAIRA 

DIAZ-NADAL; LUIS BALAGUER; ELIDA CARABALLO; FRANCISCO FIGUEROA; 

LOURDES FELICIANO; NITZIA LAMBERTY; LUIS RAMOS; RICHARD ROE, as 

Member of the Council of Policy Rules, Mayagüez; JOHN DOE, as 

Member of the Council of Policy Rules, Mayagüez; JANE DOE, as 

Member of the Board of Directors of the Head-Start Program, 

Mayagüez; JANE DOE, as Member of the Council of Policy Rules, 

Mayagüez; RICHARD ROE, as Member of the Board of Directors of 

the Head-Start Program, Mayagüez; JOHN DOE, as Member of the 

Board of Directors of the Head-Start Program, Mayagüez; JANE 

DOE, as Member of the Council of Policy Rules, Mayagüez,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Bruce J. McGiverin, Magistrate Judge]
Before

Kayatta and Howard,

Circuit Judges.*

Israel Roldan-Gonzalez for appellant.

Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz, 

Eliezer A. Aldarondo-López, and Aldarondo & López-Bras were on 

brief, for appellees.

Carlos Lugo-Fiol for appellee Jose Guillermo Rodriguez in his 

personal capacity.

August 22, 2022

*Judge Torruella heard argument in this appeal, but he did 

not participate in the decision.
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HOWARD, Circuit Judge. In this appeal from post-trial 

rulings in a § 1983 action, the former director of a local "Head 

Start" program in Mayagüez, Puerto Rico seeks reversal of the 

district court's denial of her motion for judgment as a matter of 

law, or alternatively for a new trial. A jury awarded Elba I. 

Falto De Román only nominal damages against the Municipal 

Government of Mayagüez and against its mayor Jose Guillermo 

Rodriguez, after she was terminated from her position without 

having been afforded a due process hearing. Falto De Román now 

argues that she was entitled to greater damages or to a new trial,

on the ground that, had she been afforded a hearing, she would not 

have been removed from her position. But Falto De Román has waived 

her right to challenge the denial of her motion for judgment, and

she is unable to clear the high bar for finding error in the denial 

of her request for a new trial. Accordingly, we affirm.

I.

In 1981, Congress enacted and the President signed the 

Head Start Act. Pub. L. No. 97–35, 95 Stat. 499 (codified as 

amended at 42 U.S.C. §§ 9831–9852c). The Act authorizes the 

Department of Health and Human Services ("HHS") to allocate federal 

funding to local organizations, dubbed "Head Start programs," 

which provide early childhood education and support services to 

children from low-income families. 42 U.S.C. §§ 9833-9836. Every 

three years, Head Start programs undergo a review by HHS to assess 
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their compliance with statutory and regulatory requirements. Id.

§ 9836a(c); see 45 C.F.R. pt. 1304. Programs must timely correct 

any "deficiencies" identified, or else be at risk of having their 

program designation terminated. 42 U.S.C. § 9836a(d)-(e). 

Historically, a Head Start program's grant would 

automatically renew every five years. But Congress amended the 

Act in 2007 to instruct HHS to promulgate regulations requiring 

underperforming programs to compete for grant money. Pub. L. No. 

110–134, 121 Stat. 1363; see 42 U.S.C. §§ 9836(c)(6)-(7), (d). 

HHS promulgated a final rule in November 2011, setting forth a 

designation renewal system. 45 C.F.R. § 1307.

The Municipal Government of Mayagüez, Puerto Rico, has 

a Head Start program (the "Program"). In 2001, Falto De Román 

became the Program Director, which made her responsible for 

administering the Program and contracting with vendors, including 

for the leasing of buildings. Additional Program management, as 

required by the Act, consisted of a Policy Council designed to 

contribute to the decision-making of the Program, see 42 U.S.C. 

§ 9837(c)(2), and a Governing Board (the "Board") responsible for 

overseeing the Program and its use of funds, see id. § 9837(a), 

(c)(1). 

In February 2011, the Board and Policy Council met to 

discuss several concerns about the Program under Falto De Román's 
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leadership.1 The Chairman of the Policy Council reported that: 

(1) most centers were deteriorating and abandoned; (2) the Program 

irregularly provided educational materials and equipment; 

(3) parents complained that the Program refused to help with the 

needs of their children; (4) the Program had a "[p]oor and 

inefficient work plan"; (5) Falto de Román's administration failed 

to present proposals to the Policy Council for evaluation and 

approval; and (6) her administration made illegal, unauthorized 

appointments. The Chairman also relayed that Falto De Román had 

completely isolated the Board and Policy Council, taken autonomous 

control over the Program's projects, and withheld the Policy 

Council's correspondence. The Secretary of the Policy Council 

similarly conveyed that dialogue with Falto De Román was 

"completely null." 

Thereafter, in March 2011, the Board and Policy Council 

asked Falto De Román for various inventory reports pertaining to 

purchases of educational and construction materials. Luis 

Olivares Lopez, Chairman of the Board at that time, testified that 

the information requested was intended to aid in examining the 

issues raised at the February 2011 meeting. Falto De Román 

1 This was described in the February 2011 meeting minutes, 

which were admitted into evidence at trial. 
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responded by asking the Board and Policy Council to first explain 

the "purpose or end" of their request before she would comply. 

The Board and Policy Council met again later that month.2 

The Program's Executive Director (a position senior to that of 

Program Director) expressed that Falto De Román's administration 

had manipulated information that the Executive Director had 

requested, including the number of children who did not meet 

Program expectations. She also reported that Falto De Román made 

unjustified and "exorbitant expenses and purchases" while most 

centers lacked materials and equipment, and that Falto De Román's 

administration had failed to act against a teacher accused of child 

abuse because the teacher was Falto De Román's relative. At the 

same meeting, the former Assistant Manager of an affiliated entity, 

the Family and Community Alliance, alleged that Falto De Román had 

fired her in retaliation for including certain information about 

the Program in the monthly reports that she was required to file.

Additionally, following a December 2010 on-site 

monitoring review, HHS reported a deficiency in the Program in 

April 2011: a "systematic or substantial material failure in . . . 

performance that . . . involves a threat to the health, safety, or 

civil rights of children and staff." At childcare centers, HHS 

2 This was described in meeting minutes from March 7, 2011, 

which were admitted into evidence at trial. 
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observed hazardous outdoor play areas, classrooms without multiple 

exits, and children who lacked daily outdoor activities. Most 

notably, HHS discovered that the Program had operated one childcare 

center without running water for more than a day, yet neither 

canceled classes nor provided the children with water for drinking 

and hygiene. HHS reported eleven other areas of noncompliance 

with applicable standards, laws, and regulations. 

HHS gave the Program 30 days to correct the deficiency

and 120 days to correct the areas of noncompliance. After 30 days, 

but before 120 days, Chairman Lopez asked Falto De Román by letter 

to certify, within 24 hours, that she had resolved these issues. 

Falto De Román responded a month later, stating that sick leave 

and service leave prevented her from meeting the 24-hour deadline. 

She wrote that she had already addressed the findings and discussed 

some of her efforts with the Chairman. She also wrote that the 

Board's request did "not foster a prudent or reasonable work 

environment" and that it was "an act of harassment, persecution 

and disrespect" to her and her "professional integrity." 

Frustrated by this letter, the Board immediately voted 

to remove Falto De Román. The Policy Council adopted the Board's 

decision, and the Board formally recommended that the Mayor dismiss 

Falto De Román for a litany of reasons, including that Falto De 

Román ignored or belatedly complied with their requests, refused 

to send them draft fiscal budgets, and made illegal appointments 
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and layoffs, among other misconduct. The Mayor adopted this 

decision one week later and informed Falto De Román. HHS later 

stripped the Program of its automatic funding renewal because of 

its deficiency, making it the only such program in Puerto Rico to 

lose its automatic renewal.

Falto De Román dismisses the foregoing narrative as 

pretext and asserts that the Mayor terminated her as an act of 

retaliation for an entirely unrelated matter. According to Falto 

De Román's testimony at trial, in the summer of 2010 the Mayor 

improperly halted the Program's attempt to rent space from a 

company with close ties to his political rivals. After the company 

filed suit in July 2011 the Mayor confronted her, and Falto De 

Román told him that she had disclosed his impropriety and would 

testify against him if called to do so. The Mayor then reproved 

her for being disloyal and vowed that he would have the Board 

dismiss her. 

Falto De Román sued the Mayor, Municipality, Board, and 

Policy Council for, among other things, violating her Fourteenth 

Amendment due process rights by terminating her without a hearing. 

The Mayor and Municipality conceded that Falto de Román did not 

receive a hearing prior to discharge. After an appeal to this 

court and remand,3 the district court dismissed Falto De Román's 

3 See Falto de Roman v. Oliveras, 637 F. App'x 616 (1st Cir. 2016).
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claims against the Board and Policy Council and held a trial on 

the narrow issue of whether Falto de Román was entitled to 

compensatory or punitive damages or back pay as a result of not 

receiving a hearing. 

The jury found the defendants not liable for any 

damages. Falto de Román then moved for nominal damages, and the 

district court entered judgment of $1.00 in her favor. Falto De 

Román subsequently filed a motion for judgment as a matter of law 

under Rule 50(b) of the Federal Rules of Civil Procedure or 

alternatively for a new trial under Rule 59. The district court 

denied the motion, and Falto De Román timely appealed. 

II.

On appeal, Falto De Román claims that the district court 

erred by denying her motion for judgment or a new trial because a 

reasonable jury would have awarded her damages. But we must affirm 

because Falto De Román has waived her Rule 50(b) arguments, and 

she does not meet the high bar for a new trial.

A.

Falto De Román may not challenge the district court's 

denial of her Rule 50(b) motion because she failed to move for 

judgment before her case was submitted to the jury. Rule "50(a)(2) 

requires that a party first file a motion for judgment as a matter 

of law 'any time before the case is submitted to the jury.'" Jones 

ex rel. United States v. Mass. Gen. Hosp., 780 F.3d 479, 487 (1st 
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Cir. 2015) (quoting Fed. R. Civ. P. 50(a)(2)). If the district 

court denies this initial motion, "following the verdict a party 

may file a motion under Rule 50(b) to renew the claims." Id. But 

timing is everything, for "[w]e have held in no uncertain terms 

. . . that a failure to raise an issue prior to a Rule 50(b) motion 

for judgment as a matter of law, without more, results in a waiver 

of that issue on appeal." Id. (internal quotation marks omitted) 

(quoting Muñoz v. Sociedad Española de Auxilio Mutuo y 

Beneficiencia de P.R., 671 F.3d 49, 58 (1st Cir. 2012)). Here, 

Falto De Román failed to make an initial Rule 50(a) motion; she 

thereby did not preserve any issues for renewal in her 50(b) 

motion. See id. at 488; see also Santos-Arrieta v. Hosp. del 

Maestro, 14 F.4th 1, 8-9 (1st Cir. 2021). 

Nevertheless, Falto De Román contends that her arguments 

on record should satisfy her duty under Rule 50. "Even were we to 

agree that a rigid invocation of the phrase 'Rule 50(a)' may not 

be necessary in all circumstances," Jones, 780 F.3d at 488, the 

brief portion of the trial record that Falto De Román cites does 

not amount to developed argument for judgment as a matter of law. 

And it "did nothing to put the district court or defendants on 

notice that [Falto De Román] would argue that, as a matter of law, 

the defendants had failed 'to put forth sufficient admissible 

evidence' such that no reasonable jury could return a verdict in 

defendants' favor.'" Id. at 489-90 (quoting Casillas–Díaz v. 
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Palau, 463 F.3d 77, 81 (1st Cir. 2006). Falto De Román therefore 

cannot save her Rule 50(b) request from waiver.

B.

Falto De Román's motion for a new trial is, however,

preserved. See Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 

2009) (explaining that “[a] district court’s power to grant a 

motion for a new trial is much broader than its power to grant a 

[Rule50(b) motion]”); 9B Charles Alan Wright & Arthur R. Miller, 

Federal Practice and Procedure § 2537 (3d ed. Apr. 2022 Update) 

("[I]f the verdict winner's evidence was insufficient as a matter 

of law but no motion for judgment as a matter of law was made under 

Rule 50(a), even though the district court cannot grant judgment 

as a matter of law under Rule 50(b) for the party against whom the 

verdict is rendered, it can set aside the verdict and order a new 

trial."). We review the denial of such motions for abuse of 

discretion, disturbing only verdicts that are "against the 

demonstrable weight of the credible evidence or result[] in a 

blatant miscarriage of justice." Whitfield v. Melendez-Rivera, 

431 F.3d 1, 9 (1st Cir. 2005) (quoting Acevedo-Garcia v. Monroig, 

351 F.3d 547, 565 (1st Cir. 2003)), abrogated on other grounds by

Pearson v. Callahan, 555 U.S. 223 (2009). "Our review is 

circumscribed because '[c]ircuit judges, reading the dry pages of 

the record, do not experience the tenor of the testimony at 

trial,'" and we therefore "take 'both the facts and the reasonable 
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inferences therefrom in the light most hospitable to the jury's 

verdict.'" Mejías-Aguayo v. Doreste-Rodriguez, 863 F.3d 50, 54 

(1st Cir. 2017) "(first quoting Jones, 78F.3d at 492, then quoting 

Poy v. Boutselis, 352 F.3d 479, 485 (1st Cir. 2003))." See BB 

5.2(f)(ii), (iii) (only permitting the omission of quoting 

parentheticals beyond the first level); BB 10.6.3 (same).

Careful review of the record shows that the verdict did 

not overstep this high bar. First, the jury had been instructed 

that, in order to receive compensatory damages Falto de Román had 

to demonstrate damages "caused exclusively by the denial of a pretermination hearing," meaning "damages that flow naturally from 

the deprivation of the constitutionally protected right to due 

process itself."4 Falto de Román’s counsel conceded at trial that 

they had not now presented such evidence, and Falto de Román does 

not argue otherwise. 

Second, the jury was also instructed that, in order to 

receive back pay Falto de Román needed to prove that her "discharge 

would not have occurred if [her] procedural due process rights had 

been observed." Yet the Mayor testified that he would have fired 

Falto de Román even if she had received a hearing due to her 

4 The parties did not object to the jury instructions, which 

"[o]n their face . . . are not patently wrong." Milone v. Moceri 

Family, Inc., 847 F.2d 35, 38-39 (1st Cir. 1988). They therefore 

have become "the law of the case." Id. at 39; see also Muñiz v. 

Rovira, 373 F.3d 1, 7 (1st Cir. 2004). 
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"insubordination," "failure to follow instructions" and provide 

required information, and "the lack of communication" between 

Falto de Román and the governing bodies. And appellees presented 

ample evidence that these reasons did in fact drive the Policy 

Council and Board to seek her termination. Falto de Román points 

to contrary evidence indicating that she did provide requested 

documents, and she argues that other factors (such as the Head 

Start Program's loss of its automatic renewal status and the 

Mayor's "retaliatory animus" towards her) are not legitimate 

reasons for her dismissal. But the existence of, at best, 

competing evidence surrounding her termination does not allow us 

to conclude that "the verdict is so seriously mistaken, so clearly 

against the law or the evidence, as to constitute a miscarriage of 

justice." Finally, the jury was instructed that if it found Rinsky

v. Cushman & Wakefield, Inc., 918 F.3d 8, 27 (1st Cir. 2019) 

(quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 558 (1st 

Cir. 1989)).

Finally, if the jury found "that the conduct of [the 

Mayor] was recklessly and callously indifferent to [Falto de 

Román's] right to procedural due process," it was permitted—but 

not required—to award punitive damages as "appropriate to punish 

[the Mayor] or deter [him] and others from like conduct in the 

future." Falto de Román argues on appeal that "a reasonable jury 

could . . . not have concluded that a punitive damages award was 
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not warranted in this case," given that she was deprived of a 

hearing and that "her dismissal was nothing more than a pretext 

for retaliation." But, as discussed above, appellants presented 

considerable evidence that the Policy Council and Board expressed 

serious and repeated concerns about Falto De Román's leadership, 

resulting in an independent recommendation of dismissal that the 

Mayor adopted. In this context, we cannot say that it was "against 

the demonstrable weight of the credible evidence" for the jury to 

decline to exercise its discretion to award punitive damages. 

Whitfield, 431 F.3d at 9 (1st Cir. 2005) (quoting Monroig, 351 

F.3d at 565). 

In sum, from the foregoing we cannot say that the 

district court exceeded the bounds of its discretion in refusing

to disturb the jury verdict.5

III.

Accordingly, the district court's denial of Falto De 

Román's motion for judgment as a matter of law or alternatively 

for a new trial is affirmed.

5 At oral argument before us, Falto De Román argued for the 

first time that a reasonable jury could not have believed that the 

Mayor was credible because he admitted that he had not intended to

fire Falto De Román. But this is of no consequence, for even if 

Falto De Román offered such evidence at trial, the Mayor's 

credibility was for the jury to decide.