United States Court of Appeals

For the First Circuit

No. 03-1949

DIANA VÁZQUEZ-VALENTÍN,

Plaintiff, Appellee,

v.

VICTOR J. SANTIAGO-DÍAZ, Individually and as Mayor of Toa Baja;

MUNICIPALITY OF TOA BAJA; MILAGROS DELGADO-ORTIZ, 

Individually and as Human Resources Director of Toa Baja,

Defendants, Appellants.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before

 Torruella, Lynch, and Lipez, 

Circuit Judges.

Salvador J. Antonetti-Stutts, Solicitor General, Mariana

Negrón-Vargas and Maite D. Oronoz-Rodríguez, Deputy Solicitors

General, and Susana I. Peñagarícano-Brown, Assistant Solicitor

General, on supplemental brief for appellants in their individual

capacities.

Jesus M. Hernández-Sánchez and Guillermo A. Macari-Grillo on

supplemental brief for appellee.

August 22, 2006
 During a jury trial under the federal rules, a party may 1

move during trial and/or at the conclusion of the evidence for

judgment as a matter of law. Fed. R. Civ. P. 50(a). If the

district court denies a Rule 50(a) motion made at the close of all

the evidence, the party may submit a "renewed" motion, under Rule

50(b), after the jury returns its verdict. See also Proposed

Amendment to Rule 50, Subdivisions (a) and (b), effective December

1, 2006, absent contrary Congressional action, Advisory Committee

Notes ("Rule 50(b) is amended to permit renewal of any Rule 50(a)

motion for judgment as a matter of law, deleting the requirement

that a motion be made at the close of all the evidence."). In

addition to not filing a Rule 50(b) motion, the defendants also did

not address the sufficiency or weight of the evidence in a motion

for a new trial pursuant to Rule 59.

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LIPEZ, Circuit Judge. In Vázquez-Valentín v. SantiagoDíaz, 385 F.3d 23 (1st Cir. 2004) (Vázquez I), we reversed a jury's

verdict that Diana Vázquez-Valentín (Vázquez) had been subjected to

political discrimination by her former employers, the municipality

of Toa Baja and its mayor and human resources director. We

reviewed the denial of the defendants' Rule 50(a) motion for

judgment as a matter of law based on the sufficiency of the

evidence, despite the defendants' failure to preserve that ground

of appeal pursuant to Fedg. R. Civ. P. 50(b). Vázquez petitioned 1

for certiorari. After its decision in Unitherm Food Sys., Inc. v.

Swift-Eckrich, Inc., 126 S. Ct. 980 (2006), the Supreme Court

granted Vázquez's petition for certiorari, vacated our 2004

decision, and remanded the case to us for reconsideration. See

Vázquez-Valentín v. Santiago-Díaz, 126 S. Ct. 1329 (2006).

Unitherm established that a party "may not challenge the

sufficiency of the evidence on appeal on the basis of the District
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Court's denial of its Rule 50(a) motion" alone. Unitherm, 126 S.

Ct. at 988.

Upon reconsideration, we conclude that the jury's verdict

in favor of Vázquez must now be vacated because of the district

court's exclusion of certain evidence presented by the defendants

-- a point argued by the defendants in Vázquez I but not decided by

us because of our focus on the sufficiency of the evidence. Our

decision to vacate on this ground also requires that we remand this

case for further proceedings in the district court.

I.

After the Supreme Court's remand, we instructed the

parties to brief further "the following three issues addressed in

the original appellate briefs: (1) the district court's evidentiary

rulings, (2) the district court's order that the plaintiff be

reinstated, and (3) the qualified immunity issue." Despite our

instruction, the parties used much of their supplemental briefing

to argue about the scope of the Supreme Court's remand order and of

the applicability of the Unitherm decision to this case. Vázquez

argues that we have to reinstate the jury's verdict in her favor in

light of the Supreme Court's decision. The defendants argue that

we may still order judgment as a matter of law in their favor, on

sufficiency of the evidence grounds. We pause briefly to explain

that the parties have misunderstood the significance of the Supreme

Court's remand order.
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The complete text of the Supreme Court's order in this

case is as follows:

The petition for writ of certiorari is

granted. The judgment is vacated and the case

is remanded to the United States Court of

Appeals for the First Circuit for further

consideration in light of Unitherm Food Sys.

v. Swift Eckrich, 546 U.S. ___ (2006). 

Supreme Court orders of this type, colloquially termed "GVRs,"

meaning "granted, vacated, and remanded," do not resolve a case.

See Gonzalez v. Justices of the Municipal Court of Boston, 420 F.3d

5, 7 (1st Cir. 2005). Rather, they tell us that we misapprehended

the law when we entered the judgment now vacated, and that we must

reconsider the case now remanded to us in light of the Supreme

Court's opinion. Id. Sometimes, despite the intervening

precedent, we will enter the same judgment because, after due

consideration, we conclude that the new precedent does not require

a different outcome. See, e.g., United States v. Burnette, 423

F.3d 22 (1st Cir. 2005). Other times, the intervening precedent

will result in a different outcome.

Here, the Supreme Court's decision in Unitherm does not

permit us to conclude once again that a judgment must be entered

for the defendants because of the insufficiency of Vázquez's

evidence. Under Unitherm, we cannot review the denial of a Rule

50(a) motion based on the sufficiency of the evidence when the

party appealing the verdict failed to renew its sufficiency

challenge in the district court pursuant to Rule 50(b). See
 Unitherm does not mean that a party has to file a post 2

verdict motion in order to preserve an evidentiary objection for

appeal. Unitherm does not change the rule "that once the district

court 'makes a definitive ruling on the record admitting . . .

evidence, either at or before trial, a party need not renew an

objection . . . to preserve a claim of error for appeal.'" Zachar

v. Lee, 363 F.3d 70, 75 (1st Cir. 2004) (quoting Fed. R. Evid.

103(a)(2)). See also Wright & Graham, Federal Practice and

Procedure: Evidence 2d §§ 5032-5034.

 To be clear, we do not rely on the vacated legal conclusions 3

in Vázquez I for our decision here.

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Unitherm, 126 S. Ct. at 987 ("[A] party's Rule 50(a) motion . . .

cannot be appealed unless that motion is renewed pursuant to Rule

50(b).").

Vázquez is equally wrong in arguing that we must

reinstate the jury's verdict. In our 2004 decision, we did not

reach the merits of several of the defendants' arguments for a new

trial because we focused instead on the sufficiency of the

evidence. In fact, we noted that we had doubts about the district

court's evidentiary rulings but we did "not have to decide the

issue." Vázquez I, 385 F.3d at 25 n.1. In light of the remand

from the Supreme Court, we must now address the rulings that

prompted those doubts. See Gonzalez, 420 F.3d at 8.2

II.

We recited the facts at length in Vázquez I, 385 F.3d at

23-29. We incorporate those facts by reference, summarizing only

briefly the details most pertinent to our discussion here.3

Vázquez claimed that she was demoted as a result of the defendants'
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animus against her political affiliation. The defendants, members

of the municipal administration of Toa Baja that took charge in

January 2001, claimed that she was demoted because the previous

municipal administration had promoted her illegally and the

Commonwealth of Puerto Rico had mandated corrective action. 

In support of this defense, the defendants invoked an

audit of municipal personnel practices that the Comptroller of

Puerto Rico had completed during the last months of the previous

administration. See Vázquez I, 385 F.3d at 25 n.1. The audit

revealed that Toa Baja had run afoul of numerous Commonwealth laws

relating to the appointment and promotion of municipal employees.

Under Puerto Rico law, "all municipal jobs are governed by socalled job classification plans that are adopted locally. These

plans set forth the occupational groups and personnel structure of

the municipality, including the primary responsibilities and

employment requirements for each position in city government."

Vázquez I, 385 F.3d at 26. These job classification plans

generally must be approved by the Commonwealth of Puerto Rico

before they can be implemented. Once a job classification plan has

been approved, municipalities normally must use a merit system to

fill the career positions the plan creates. See

Gonzalez-De-Blasini v. Family Dept., 377 F.3d 81, 86 (1st Cir.

2004). "Under this system, career employees must, among other
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requirements, pass a competitive examination to be eligible for

appointment or promotion to a career position." Id. 

According to the Comptroller's audit report, Toa Baja had

adhered neither to the requirement that it submit its job

classification plans to the Commonwealth for approval, nor the

requirement that it use a merit system to fill jobs and make

promotions. The municipality's main structural violations were its

use of an unapproved 1997 job classification plan (Toa Baja's most

recent properly-approved plan dated from 1991) and its habit of

ignoring the normal merit-based appointment system in favor of a

system by which relatives and allies of the mayor routinely

received desirable posts.

Under Puerto Rico law, personnel appointments made in

violation of Commonwealth laws and regulations normally "are null

and void ab initio.” Gonzalez-De-Blasini, 377 F.3d at 86 (internal

quotation marks omitted). Accordingly, the Comptroller's audit

report "recommended" that the municipality take corrective action

to undo any illegal personnel actions. The same report warned that

"[f]ailure to heed a recommendation in an audit report from this

Office, without just cause, may constitute a violation of [Puerto

Rico law]."

In reaction to the audit report, the outgoing municipal

administration began reviewing personnel files and, according to a

letter it sent to Commonwealth officials, "encountered cases of
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employees that did not meet the requirements of their position."

Commonwealth officials responded that these employees would "need

to be re-routed to a classification for which they meet the

requirements." Before any reclassifications took place, the

November 2000 election happened, and the previous administration --

the one responsible for the violations cited by the audit report --

was replaced by an administration headed by the defendant mayor.

Upon taking office, the defendants made several inquiries

to Commonwealth officials about the audit report and its

recommendations. In particular, the defendants asked whether all

employee appointments pursuant to the municipality's 1997 personnel

plan, which had not been properly approved, would have to be

rescinded. The Commonwealth's answer was that "the 1997 plans have

no validity" so "we recommend [] the alternative of reclassifying

[the affected employees] into positions for which they meet the

requirements in accordance with the 1991 plan." In light of this

guidance, the new administration adopted a corrective action plan

that called for a thorough review of personnel files and

reassignment of any improperly-promoted employees.

The resulting reviews and reclassifications had a large

effect on municipal employees. As we noted in Vázquez I, by the

time of the trial, "around six hundred files had been evaluated."

385 F.3d at 26. This number represented slightly less than half of

the municipality's workforce. Of those employees whose files had
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been evaluated, roughly half "had sought an informal hearing

regarding the personnel action that resulted from the review." Id.

Vázquez was one of the many employees who was reclassified as a

result of the new administration's review and who sought a hearing.

Vázquez started working for Toa Baja while a college

student in 1985, as a "transitory" office clerk. She was appointed

to the career position of "Office Worker / Typist I" in 1989. She

held that post until the summer of 1993, when she was elevated to

"Secretary III." Less than two months later, she was promoted

again to "Assistant Director." The post "Assistant Director" was

later renamed "Executive Director II," the position Vázquez held

when the new administration took office. See Vázquez I, 385 F.3d

at 28. When the defendants reviewed Vázquez's personnel records,

they decided that both of her 1993 promotions had been in violation

of the 1991 plan. Specifically, the defendants later explained to

Vázquez that her promotion from "Office Worker / Typist I" to

"Secretary III" had been improper because she had not had the

required courses in business skills or typing, and because she had

not spent the required year as a "Secretary II" or equivalent. Her

second promotion, they said, was improper for want of the required

experience and because it had occurred so soon after the previous

promotion. In the spring of 2001, the defendants informed Vázquez

that the illegality of her 1993 promotions meant that she would

have to be demoted to the position of "Office Worker / Typist I,"
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the same post that she had assumed in 1989. That job had no

supervisory responsibilities and paid less than half as much as her

"Executive Director II" position.

Vázquez protested that she was a college graduate with

many years of experience in municipal government, and that her

college transcript clearly showed that she had taken typewriting

and shorthand courses. (Apparently, the transcript was not in her

personnel file.) When she learned that she would be demoted

despite her educational credentials and experience, Vázquez asked

for and was granted a hearing before an administrative hearing

officer. Vázquez later testified that the hearing lasted about

five minutes. The hearing officer determined in a written decision

that Vázquez had been hired and promoted illegally. Shortly after

her demotion became effective, Vázquez resigned her new position.

Suspecting that the true reason for her demotion was her political

affiliation with the party that had lost the 2000 election, she

timely filed this case alleging political discrimination. 

III.

At the trial in April and May 2002, to demonstrate that

they had acted in good faith in demoting Vázquez, the defendants

sought to introduce as evidence the Comptroller's audit and the

communications between the municipal administration and

Commonwealth officials that followed. The defendants made these

efforts during the testimony of their two principal witnesses,
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defendant Milagros Delgado-Ortiz (Delgado), who was the new

administration's human resources director, and the defendant mayor,

Victor Santiago-Díaz (Díaz). During Delgado's testimony, the

defendants attempted to introduce the audit report itself and a

four-page letter to her from the Commonwealth Office of Municipal

Affairs explaining that the 1997 personnel plan was invalid. The

defendants also attempted to have Delgado testify as to the

contents of these documents. During Díaz's testimony, the

defendants attempted to introduce a letter Díaz sent to

Commonwealth officials asking what the municipality should do in

light of the earlier documents, and two letters from the

Commonwealth in response, giving the advice that the municipality

should reclassify its employees. Alternatively, the defendants

sought to have Díaz testify about these letters.

The district court excluded all of this proffered

evidence on two grounds. The district court cited the hearsay rule

and also noted generally that it did not want to expose the jury to

the legal conclusions in the documents. Referring specifically to

the letter from the Commonwealth officials to Delgado, the district

court stated that the document "is a conclusion of law and is

hearsay [and] for this reason [] cannot be admitted as evidence."

The district court also expressed concern that the audit report

could be unfairly prejudicial to Vázquez because it contained many

statements that did not pertain to her appointment specifically.
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See Fed. R. Evid. 403. On appeal, Vázquez echoes these rationales,

which are unpersuasive.

As the defendants point out, the excluded documents were

not hearsay because they were not "offered in evidence to prove the

truth of the matter asserted." Fed. R. Evid. 801(c); see also

Ramírez-Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc.,

425 F.3d 67, 76-77 (1st Cir. 2005). We indicated as much in

Vázquez I: "The exclusion of these documents as hearsay is

troubling. So crucial to the defendants' case, and offered as an

explanation for the personnel actions undertaken by the defendants

rather than for the truth of the personnel irregularities described

in the documents, these documents are not hearsay, and they were

highly relevant. Their exclusion might well have justified a new

trial." 385 F.3d at 25 n.1. The "matters asserted" in the

documents were that many Toa Baja employees had been hired without

due regard for procedures, that the Mayor and his administration

would be liable under the Commonwealth's ethics laws if they did

not take measures to remedy the hiring abuses of the previous

administration, and that the approach of reviewing personnel files

and reclassifying employees was consistent with the Commonwealth's

guidance. The defendants "offer[ed] these assertions to explain

the basis for [their] decision to [demote Vázquez]." RamírezRodriguez, 425 F.3d at 77. The issue at trial was not whether

Vázquez was appointed properly or whether the new administration
 Vázquez's due process claim, which the district court 4

dismissed on the defendants' Rule 50(a) motion, after the

presentation of evidence but before the case went to the jury, also

did not hinge on the propriety of her appointment. As the district

court noted, Vázquez's claim was "based upon the theory that [her

pre-demotion] hearing was previously determined and was in and of

itself a sham."

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was legally liable for the abuses of its predecessors. Rather, the

issue for the jury was whether the defendants had demoted Vázquez

as a result of her political affiliation, or for some other reason.

"In short, the documents were not offered to prove" that the new

administration was legally obligated to demote Vázquez, "but rather

to demonstrate that h[er] superiors had reason, based on a thorough

investigation, to believe that [they were required to demote her]."

Id. Accordingly, the documents were not hearsay.

The suggestion that the documents were inadmissible legal

opinions fails for similar reasons. The documents did contain

legal conclusions about the propriety of the previous municipal

administration's personnel decisions. But this is not a case about

the propriety of Vázquez's appointment. The critical issue in 4

this case -- the ultimate issue for the jury -- was determining the

defendants' motivations for demoting Vázquez. The documents

offered no legal conclusions about those motivations. Rather, they

described a neutral evaluation of the municipality's personnel

policies that, if truly relied upon, provided a non-discriminatory

basis for Vázquez's demotion. As we explained in a case involving

a similar situation, while the documents were "not admissible for
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the purpose of proving what obligations the law imposed upon the

Mayor, [they were] admissible to show the Mayor's understanding at

the time and his ensuing state of mind." Gómez v. Rivera

Rodríguez, 344 F.3d 103, 115 (1st Cir. 2003). 

Gómez also refutes Vázquez's suggestion that the

documents could have been excluded, in toto, pursuant to Rule 403.

In Gómez we noted that:

The Rule 403 balancing test applies statement

by statement. See Kassel v. Gannett Co., 875

F.2d 935, 952 (1st Cir.1989) (noting that the

trial court “must balance the prejudicial

effect and probative value of each statement

offered”). To use the rule as an instrument

for the wholesale exclusion of a percipient

witness's testimony would be tantamount to

allowing the presider to cut down the entire

tree out of fear that some of the fruit might

prove rotten. Rule 403 requires more delicate

pruning of evidentiary proffers. See id.

(warning against throwing “out the baby with

the bath water”).

Id. at 115 (footnote omitted); see also id. at 115 n.7 ("[T]he need

to limit the jury's use of certain testimony does not give the

trial court carte blanche to exclude it entirely."). Here, there

would be a similar calculus. If, as the district court suggested,

there was some material in the audit report that was unfairly

prejudicial to Vázquez, the remedy should have been to redact the

offending statements from the jury's view, not to exclude the

document entirely.

Anticipating the possible rejection of her arguments,

Vázquez asserts that any error in excluding the documents was not
-15-

prejudicial to the defendants given other material that was

admitted in evidence. She points particularly to the statements

that the district court read to the jury summarizing some of the

excluded material. After refusing to let Delgado testify as to the

contents of the audit report, the district court told the jury

that:

The Comptroller of the Commonwealth of Puerto

Rico performed an audit in which his staff

examined a sample of personnel files. The

report stated that certain irregularities in

the placement of some employees for the

Municipality of Toa Baja had been found. The

report should not be taken as evidence of the

truth or veracity of the statement found

therein, but rather only that the report was

made.

In regard to the letter to Delgado about the illegality of the 1997

personnel plan, the district court told the jury that:

Mrs. Delgado sought advice from [the

Commonwealth]. Mrs Delgado received a letter

in reply to this petition for advice. The

letter received by Mrs. Delgado is evidence

only that she sought and received advice. The

letter in no way proves that the advice she

received was true or legal.

The district court also told the jury, as part of its charge, that:

. . . according to the defendant, plaintiff's

demotion was based on legitimate policy and

administrative consideration devoid of any

political motivation. They contend that their

demotion was a direct result of the

implementation of a plan to reorganize the

working positions within the municipality.

Defendants further claim that the Comptroller

of Puerto Rico concluded that the

municipality's previous administration had
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illegally appointed many employees and had

illegally raised the compensation of others.

Finally, Vázquez points out that during cross-examination of her

own testimony, the defendants persuaded the district court that

Vázquez should read to the jury a letter the defendants had sent

her after she submitted her resignation. The letter stated:

I wish to clarify that the undertakings being

carried out by this municipality with respect

to personnel transactions are due to the

findings made by the Comptroller of Puerto

Rico in his audit report [] and the corrective

action plan, which we are required to submit

to said office, correcting the findings of

irregularities in the proceedings involving

appointment and selection of personnel.

Although these statements by the court and the admission

of this letter reflect a laudable attempt by the court to be fair

to all parties, they were not enough to render the exclusions by

the court inconsequential. The court's third statement and the

letter to Vázquez merely paraphrase the defendants' position at

trial. They did nothing to show that the Commonwealth authorities

had in fact given the legal opinions in question. The district

court's summaries of the audit and one letter also failed to put

the jury on notice of the contents of the excluded documents.

First, the district court did not allow the jury to know that the

audit report had contained the admonition that "[f]ailure to heed

a recommendation in an audit report from this Office, without just

cause, may constitute a violation of [Puerto Rico law]." Second,

the court's summary of the letter to Delgado did not let the jury
 Given this outcome, there is no need for us to discuss the 5

defendants' contentions that the district court committed error in

making certain remarks during the trial or in ordering the

defendant to reinstate Vázquez as an Executive Director II. 

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know that the Commonwealth had recommended "reclassifying [the

affected employees] into positions for which they meet the

requirements in accordance with the 1991 plan," which is precisely

the course the defendants claimed that they took in regard to

Vázquez. Indeed, the district court's summary of the letter did

not even let the jury know that the Commonwealth had advised the

defendants to reclassify employees at all. In short, the summaries

by the court simply were insufficient to convey the seriousness

with which the Commonwealth had insisted that the defendants remedy

the previous administration's abuses, and the specific measures

they urged the defendants to take. For these reasons, the

exclusion of the documentary evidence was not harmless, and we must

vacate the jury's verdict and remand for a new trial.5

IV.

Several times during the proceedings, the individual

defendants asked the district court to rule that they were entitled

to qualified immunity. They asked for summary judgment on that

ground, a request that the district court denied because there were

disputed issues of fact relating to the defendants' actual

motivations for Vázquez's demotion. The district court explained

that the defendants would not be entitled to qualified immunity if
"This Court has identified a three-step process for 6

evaluating qualified immunity claims: (1) whether the claimant has

alleged the deprivation of an actual constitutional right; (2)

whether the right was clearly established at the time of the

alleged action or inaction; and (3) if both of these questions are

answered in the affirmative, whether an objectively reasonable

official would have believed that the action taken violated that

clearly established constitutional right." Wilson v. City of

Boston, 421 F.3d 45, 52-53 (1st Cir. 2005). In the district

court's view, because a municipal employee's right to be free of

political discrimination is a clearly-established constitutional

right, only the third part of the test was at issue in this case.

 The defendants did not make any post-trial motion on the 7

issue; the district court issued a thorough written order denying

qualified immunity the same day the jury returned its verdict.

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the jury concluded that they had demoted Vázquez because of

political animus. In the court's view, such a finding would

establish that an objectively reasonable municipal official would

not have acted as the defendants did. The defendants also sought 6

to invoke qualified immunity at trial, asking the district court to

rule in their favor on that issue after Vázquez's case in chief and

again at the close of the evidence. The district court reserved

its decision pending the jury's findings on the defendants'

motivations. 

In the end, according to the verdict form, the jury found

that Vázquez's "political affiliation was a substantial or a

motivating factor in the decision to demote her from her position

as Executive Director II." On the basis of this finding, the

district court denied the defendants' motion for qualified

immunity. We have now concluded that the jury verdict must be 7
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vacated because of the exclusion of evidence that the jury was

entitled to hear. Given the centrality of the jury verdict to the

district court's denial of qualified immunity, the district court

should reexamine the qualified immunity issue as well. Indeed, we

note here, as we did in Vázquez I, that the same district court

judge who heard this case presided over a second political

discrimination case from Toa Baja, involving the same defendants

and a group of plaintiffs who brought claims similar to Vázquez's.

See Lugo v. Toa Baja, 329 F. Supp. 2d 221 (D.P.R. 2004). In Lugo,

which reached trial after our decision in Gómez, the district court

appropriately allowed in evidence the same documents that it

excluded in this case. Presumably in light of that evidence, the

district court concluded that the defendants in Lugo (the same

defendants as here) were entitled to qualified immunity. The

documents that we discussed above clearly are relevant to the

qualified immunity analysis and should be evaluated by the district

court when it considers that issue again.

Judgment vacated. Remanded for further proceedings

consistent with this opinion. The parties shall bear their own

costs.