
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1846                             FRANCO ACEVEDO-DIAZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                               JOSE E. APONTE, ET AL.,                                Defendants, Appellees,                                                                                      ________                                ADA N. PEREZ, ET AL.,                               Plaintiffs, Appellants.                                _____________________          No. 92-1848                             FRANCO ACEVEDO-DIAZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                               JOSE E. APONTE, ET AL.,                                Defendants, Appellees,                                                                                      ________                           DOROTEA COLLAZO RIVERA, ET AL.,                               Plaintiffs, Appellants.                                _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO,                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________               Raul Barrera Morales for appellants.               ____________________               William Reyes Elias  with whom Cesar  R. Miranda Law  Office               ___________________            _____________________________          was on brief for appellees.                                 ____________________                                    August 3, 1993                                 ____________________                                          2                    CYR, Circuit Judge.  In  November 1984, Jose E. Aponte,                    CYR, Circuit Judge.                         _____________          the  candidate  of  the  Popular Democratic  Party  ("PDP"),  was          elected mayor  of the  Municipality of Carolina  ("City"), Puerto          Rico,  defeating  the  incumbent  mayor,  Roberto  Iglesias,  the          candidate of the New Progressive Party ("NPP").  During his first          year in office,  Mayor Aponte  either terminated,  or refused  to          renew,  several  hundred  non-policymaking  city  employees hired          under the  previous administration.   In letters of  dismissal to          the employees, Aponte claimed that the City faced a severe fiscal          crisis, and  disclosed  various criteria  for  determining  which          municipal  employees were to be terminated in order to effect the          necessary economies:                    (1)  employees hired  without compliance with                         Commonwealth or municipal personnel laws                         and  regulations,  see, e.g.,  P.R. Laws                                            ___  ____                         Ann. tit. 3,    1331-1337, which dictate                         the  public  posting of  available posi-                         tions and competitive examinations;                    (2)  employees hired or  promoted during  the                         1984  "veda," or  "electoral prohibition                         period,"  a  four-month "window"  before                         and  after  a municipal  election during                         which hiring, renewals, or promotions by                         the  incumbent  administration are  pro-                         scribed by law;                    (3)  employees  who submitted  no documentary                         proof  that  they possessed  the minimum                         education  and  experience required  for                         their positions;                     (4)  employees   whose  job   positions  were                         deemed  nonessential, and  therefore ex-                         pendable; or                                          3                    (5)  employees  who had  committed employment                         infractions  (e.g., unexcused  leaves of                                       ____                         absence, chronic tardiness).                    In March 1986, 357 terminated employees, claiming poli-          tical affiliation with  the ousted NPP, brought the present civil          rights action  under  42 U.S.C.    1983 against  the City,  Mayor          Aponte, Jose A. del Valle (at times, the acting mayor), and Felix          Martinez (the personnel officer).   Plaintiffs alleged that their          dismissals were due solely to their NPP affiliation, in violation          of  their First Amendment and due process rights under the United          States  Constitution.   The  complaint demanded  compensatory and          punitive damages, as well as reinstatement.1                    The claims of 255 plaintiffs went to the jury following          a  four-month trial, and defendant  verdicts were returned on the          claims  of 240 plaintiffs.   Six plaintiffs  were awarded compen-          satory damages  (from $1700  to $10,440)  against  the City,  and          punitive damages ($25,000) against  Aponte, while nine plaintiffs                                        ____________________               1Three  municipal employee classifications  were involved in          the challenged terminations:  (1) "regular" employees,  occupying          permanent  or   career  municipal  positions,   (2)  "transitory"          employees,  appointed  without  the  usual   personnel  screening          procedures  (e.g.,  postings and  competitive  examinations), but                       ____          subject to  periodic renewals at  the expiration  of their  fixed          terms, and (3) "contractual" workers, hired for fixed terms under          federally funded  programs (e.g., HUD) administered  by the City.                                      ____          "Transitory" employees  lack tenure, or  a reasonable expectation          in  the indefinite  continuation  of their  employment after  the          expiration of their fixed term.   While their lack of  a property          interest in their  employment positions  generally precludes  due          process claims  for a politically discriminatory dismissal, First          Amendment discrimination claims are not precluded.  See Santiago-                                                              ___ _________          Negron  v. Castro-Davila,  865  F.2d 431,  436  (1st Cir.  1989);          ______     _____________          Estrada-Izquierdo  v. Aponte-Roque,  850  F.2d 10,  16 (1st  Cir.          _________________     ____________          1988).                                          4          were  awarded  nominal damages  ($1.00)  against  the City,2  and          punitive damages  ($25,000) against  Aponte.  The  district court          denied all claims for  reinstatement.  Finally, in May  1992, the          court  set aside  all fifteen  plaintiff verdicts.    The present          appeal  is brought by  eleven of the  fifteen disappointed plain-          tiffs.                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Standard of Review and Applicable Law          A.   Standard of Review and Applicable Law               _____________________________________                    A jury verdict may not be set aside as a  matter of law          under Fed. R. Civ. P. 50(b) except  on a "'determination that the          evidence could lead a reasonable person to only one conclusion.'"                                                     ____ ___ __________          Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 n.2 (1st Cir.) (quoting          ______________    ______          Conway  v.  Electro Switch  Corp., 825  F.2d  593, 598  (1st Cir.          ______      _____________________          1987)) (emphasis added), cert. denied, 112 S. Ct. 637 (1991); see                                   ____  ______                         ___          Ferrer  v. Zayas, 914 F.2d 309, 311 (1st  Cir. 1990).  On de novo          ______     _____                                          __ ____          review, the court of  appeals will uphold the verdict  unless the          facts and inferences, viewed  in the light most favorable  to the          verdict, "point so  strongly and overwhelmingly  in favor of  the          movant that a reasonable  jury could not have [returned  the ver-          dict]."  Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209,                   _________________________    ____________          214 (1st Cir.  1991); Ferrer, 914 F.2d  at 311; Mayo v.  Schooner                                ______                    ____     ________          Capital Corp., 825 F.2d 566, 568 (1st Cir. 1987).           _____________                                        ____________________               2On appeal, certain plaintiffs demand a new trial on compen-          satory damages, arguing that the jury had no choice but to credit          their testimony  on damages, especially  as it  related to  their          mental  suffering and anguish.   We summarily  reject their argu-          ment, as wholly unsupported by the record.                                          5                    In  a  political  discrimination case,  see  Branti  v.                                                            ___  ______          Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976),          ______                       _____    _____          plaintiffs must bear the threshold burden of producing sufficient          direct or  circumstantial evidence  from which a  jury reasonably          may infer that plaintiffs' constitutionally protected conduct              in  this case, political affiliation with  the NPP    was a "sub-          stantial" or  "motivating" factor  behind their dismissal.3   See                                                                        ___          Ferrer, 914  F.2d at 311; Estrada-Izquierdo  v. Aponte-Roque, 850          ______                    _________________     ____________          F.2d 10, 13  (1st Cir. 1988);  Rosaly v. Ignacio,  593 F.2d  145,                                         ______    _______          148-49 (1st Cir. 1979).  Once plaintiffs clear the threshold, the          burden shifts  to  defendants to  articulate a  nondiscriminatory                                            __________          ground  for the dismissals, and  prove by a  preponderance of the                                      ___  _____ __ _  _____________ __ ___          evidence that plaintiffs would  have been dismissed regardless of          ________          their political affiliation.  See Givhan v.  Western Line Consol.                                        ___ ______     ____________________          Sch. Dist.,  439 U.S. 410, 416 (1979); Rodriguez-Pinto v. Tirado-          __________                             _______________    _______          Delgado, 982 F.2d  34, 39  (1st Cir.  1993); Kercado-Melendez  v.          _______                                      ________________          Aponte-Roque,  829 F.2d 255,  264 (1st Cir.  1987), cert. denied,          ____________                                        ____  ______          486 U.S. 1044 (1988).   Either this "but for" causation  test, or          the defendant-employer's  "Mt. Healthy defense,"  ensures that  a                                     ___________          plaintiff-employee who would have been  dismissed in any event on          legitimate grounds is not  placed in a better position  merely by          virtue of the  exercise of a  constitutional right irrelevant  to          the adverse employment action.   See Mt. Healthy City  Sch. Dist.                                           ___ ____________________________                                        ____________________               3The  defendants  do not  contend  that  any appellant  held          either  a  confidential  or  a policymaking  position  for  which          partisan  political  affiliation  might have  been  a  legitimate          requirement. See Branti, 445 U.S. at 508; Anthony v. Sundlun, 952                       ___ ______                   _______    _______          F.2d 603, 605 (1st Cir. 1991).                                          6          Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977); Acosta-Sepulveda          ____________    _____                            ________________          v. Hernandez-Purcell, 889 F.2d 9, 13 (1st Cir. 1989); Rosaly, 593             _________________                                  ______          F.2d at 148.                    After  a careful summarization  of the  trial evidence,          the  district court  granted  defendants' Rule  50(b) motion  for          judgment  as a matter of law  because the bulk of the circumstan-          tial  evidence  relied on  by plaintiffs     namely,  their party          affiliation and  the temporal proximity between  their dismissals          and  Mayor  Aponte's  inauguration     was  too  conjectural  and          conclusory to counteract the "overwhelming"  Mt. Healthy defense,                                                       ___________          which  demonstrated  that massive  layoffs  were  compelled as  a          result of the severe  fiscal crisis brought on by  the overhiring          of City personnel  under the previous administration.  See Kauff-                                                                 ___ ______          man v.  Puerto Rico Tel. Co., 841 F.2d 1169, 1172 (1st Cir. 1988)          ___     ____________________          (finding that  plaintiffs failed to  allege the type  of specific                                                                   ________          evidence of  politically discriminatory animus required  to avoid          summary judgment).                    The district  court  opinion compares  the Mt.  Healthy                                                               ____________          burden-shifting  mechanism  to  similar  devices  used  in  other          employment discrimination  cases, such  as Title VII  cases, see,                                                                       ___          e.g., Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782 (1st Cir.          ____  __________    ________________          1990),  and ADEA cases, see,  e.g., Goldman v.  First Nat'l Bank,                                  ___   ____  _______     ________________          985 F.2d 1113, 1116-18 (1st Cir. 1993).  The opinion states that,          once  the  defendant interposes  the  Mt.  Healthy defense,  "the                                                ____________          plaintiff  then  has  the  opportunity to  demonstrate  that  the          alleged nondiscriminatory  reason is a false  pretext," which may                                          7          be accomplished either by "'persuading the [jury] that a discrim-          inatory reason  more likely motivated the  employer or indirectly          by  showing    that  [the] employer's  proffered  explanation  is          unworthy of credence.'"  Dist. Ct. Op., at 4 (quoting Texas Dep't                                                                ___________          of  Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (Title          _____________________    _______          VII  case)).   Although literally  correct, the  quoted statement          gives us pause, especially  in light of the citation  to Burdine.                                                                   _______          Since a proper allocation of the burden of persuasion is critical          to our  assessment of  the district  court's decision  under Rule          50(b), we first revisit the applicable burden-shifting procedure.                    Under  Title VII,  a plaintiff  must establish  a prima                                                                      _____          facie case  of employment discrimination,  at which point  a pre-          _____          sumption of discrimination  attaches to the plaintiff's claim.  A          limited burden of production  then passes to the employer  to ar-                                                                        ___          ticulate a legitimate, nondiscriminatory  reason for its actions,          ________          a  burden which is fully satisfied if the employer submits enough          evidence to raise a genuine issue of material fact.  The employer          need  not  submit  sufficient  evidence to  "persuade  the  [fact          finder]."   Burdine, 450 U.S. at  254.  In other  words, notwith-                      _______          standing the interim  shift in  the burden of  production to  the          employer, the plaintiff-employee in a Title VII case "retains the          burden of persuasion" at all times.  Id.                                __ ___ _____   ___                    By  contrast,  under  the  Mt.  Healthy burden-shifting                                               ____________          mechanism applicable to  a First Amendment political  discrimina-          tion  claim, the burden of persuasion itself passes to the defen-                           ______ __ __________ ______ ______ __ ___ ______          dant-employer once  the  plaintiff produces  sufficient  evidence          _____________                                          8          from which the fact  finder reasonably can infer that  the plain-          tiff's  protected conduct  was  a  "substantial" or  "motivating"                                          _          factor behind  her dismissal.   Accordingly, once  the burden  of          persuasion  shifts  to  the  defendant-employer,  the  plaintiff-          employee will prevail unless the  fact finder concludes that  the          defendant  has produced  enough  evidence to  establish that  the          plaintiff's  dismissal  would  have  occurred in  any  event  for          nondiscriminatory reasons.                    Therefore, we  can sustain a  Rule 50(b) reversal  in a          political discrimination  case only if:  (1)  the record evidence          compelled the conclusion that the  plaintiff would have been dis-          _________          missed in  any event for  nondiscriminatory reasons,  or (2)  the          plaintiff  did not  introduce  sufficient evidence  in the  first          instance to shift the burden of persuasion to the defendants.  We          address these alternatives in turn.          B.   The "Austerity" Defense          B.   The "Austerity" Defense               _______________________                    Through  numerous  expert  witnesses   and  statistical          data,4   defendants  attempted to  establish that  all the  chal-                                        ____________________               4For  example,  defendants  presented  the  following uncon-          troverted evidence:  1)  in 1985, there were  approximately 2,900          City employees, including 906 "transitory" employees, 459 of whom          had  been appointed by  the former administration  in fiscal year          1984 alone;  2) the  former mayor  had made 250-300  appointments          between July and October 1984; 3) in 1984, despite warnings about          the City's worsening budgetary problems, the former mayor renewed          all transitory employees' expiring  appointments; 4) by 1985, the          ___          personnel payroll comprised 80% of the City's budget; 5) in 1985,          defendant  Aponte inherited  a debt  of $116  million, which  has          since  been reduced to $30 million, and an accumulated deficit of          $30 million,  since reduced to $3 million;  and 6) by 1991, there          were 1,966 City  employees, only eight of whom  were "transitory"          employees.                                           9          lenged dismissals  were due  to  the fiscal  crisis inherited  by          Mayor  Aponte when he took  office in 1985,  which the defendants          attributed to mismanagement or illegal patronage hiring practices          on  the part of the previous administration.  The jury reasonably          could  have found that the dismissals made by the incoming admin-          istration resulted  in a 32%  net reduction of  approximately 900          City employees (from 2,869  to 1,966), and that no  new employees          were hired  to perform  the duties of  the dismissed  plaintiffs.          Thus, the jury reasonably  could have concluded that a  bona fide          fiscal  crisis  would have  compelled  the vast  majority  of the          challenged dismissals even if the targeted employees had not been          affiliated with the NPP.                Defendants' well-deployed          "austerity" defense apparently  thwarted the claims of 240 of the          255 plaintiffs whose cases went  to the jury.  But blunt  instru-          ments make crude scalpels,  and the Mt. Healthy defense  requires                                              ___________          individualized  scrutiny by  the jury  with a  view to  whether a          particular plaintiff's position would have  been eliminated under          Aponte's austerity  program but for the  plaintiff's NPP affilia-                                      ___ ___          tion.    In  other  words, even  though  defendants'  overarching          austerity  defense may  have established that  massive dismissals          were imperative, it did  not compel jury verdicts adverse  to all                                                                        ___          plaintiffs.   General statistical  data regarding  net work-force                                                             ___          reductions may mask individual  dismissals which were purely dis-          criminatory.   Here, some  plaintiffs testified that  their posi-          tions  remained intact after  their termination  and specifically          identified their replacements;  the jury was free to  credit this                                          10          testimony, despite testimony to the contrary.  See Veranda  Beach                                                         ___ ______________          Club  Ltd. Partnership v. Western  Sur. Co., 936  F.2d 1364, 1385          ______________________    _________________          (1st  Cir. 1991)  ("Once  the threshold  of sufficiency  has been          crossed, the credibility of a claimant and its witnesses presents          a question  for the jury, not for the  trial court    and most of          all, not for the court of appeals.").                    Credibility  determinations  and evidence  weighing are          not grist for the Rule  50(b) mill.  Hendricks, 923 F.2d  at 214.                                               _________          As defendants  were required to  carry the burden  of persuasion,                                                     ______  __ __________          and the  evidence supporting the Mt.  Healthy "austerity" defense                                           ____________          did not compel  jury acceptance of the  claims of all 255  plain-          tiffs, we turn to  the evidence bearing on the  individual claims          of the eleven appellants.          C.   The Individualized Defenses          C.   The Individualized Defenses               ___________________________                    The defendants  attempted  to establish  their  indivi-          dualized  Mt. Healthy defenses at trial based largely on the con-                    ___________          temporaneous justifications relied on  in Mayor Aponte's  letters          of dismissal.  See supra  p. 3.   Under  the Mt. Healthy  burden-                         ___ _____                     ___________          shifting mechanism, the employer's contemporaneous justifications          for an adverse  employment action  serve at  least two  important          functions.  First, to the extent the reasons given by the employ-          er at the time of the  dismissal are later proven false or frivo-          lous,  the weight of the evidence of discriminatory animus may be          enhanced, thereby contributing significantly to the threshold Mt.                                                                        ___          Healthy  showing the  plaintiff-employee  must make  in order  to          _______          shift the ultimate burden  of persuasion to the defendant-employ-                                          11          er.   Second, once  the burden of  persuasion has shifted  to the          employer, the jury would  be entitled to find for  the plaintiff-          employee  were it  to conclude  that the  employer did  not offer          sufficient evidence to demonstrate  that (i) the proffered reason          for the dismissal  was genuine or (ii) a bona  fide basis existed                                         __          which  would have  prompted the  dismissal without regard  to the          employee's political affiliation.   We reserve these  individual-          ized defenses for consideration with plaintiffs' evidence.                    Leaving  aside  certain  proffered  justifications  for          employee dismissals in the First  Amendment political discrimina-          tion context,5  only two  individualized defenses remain  for our                                        ____________________               5Some  of  the  proffered  justifications   for  defendants'          employment  actions must be pared  to accord with applicable law.          Although  evidence that  an employee  was hired  in violation  of          Commonwealth law precludes a  finding that the employee possessed          a property interest in continued employment, and hence a cogniza-          ble  due process claim, Kauffman, 841 F.2d at 1173, evidence that               ___ _______        ________          an employee's appointment  was a "nullity" under  Puerto Rico law          ab initio  does not control a  claim alleging a violation  of the          __ ______          employee's  First Amendment  right of political  affiliation, see                                                                        ___          Hiraldo-Cancel, 925  F.2d at 13  ("'We do  not think  that a  new          ______________          administration can use the  "nullity" of appointments doctrine as          a  cover  for  discharges,  transfers,  and discrimination  based          solely  on political  affiliation'") (quoting  Santiago-Negron v.                                                         _______________          Castro-Davila, 865  F.2d 431, 436-37 (1st Cir.  1989)).  Although          _____________          defendants argue  that the  rationale of  Santiago-Negron applies                                                    _______________          only if the new administration continues to hire new personnel in                                         _________          violation  of the  Personnel Act,  Santiago-Negron rested  on the                                             _______________          ground  that state law does not and cannot define First Amendment                                                     ______          rights.   Santiago-Negron, 865 F.2d at  436.  We do  not suggest,                    _______________          however,  that  evidence  relating  to  the  plaintiff-employee's                          ________          qualifications  under  the  applicable personnel  regulations  is          immaterial.   For example,  an employee's lack  of qualifications          for  the position,  at the  time of  the  dismissal, may  well be                              __ ___  ____ __  ___  _________          considered a nondiscriminatory basis for the dismissal.  The jury          must determine whether such  a lack of qualifications was  a real          or pretextual justification for the dismissal.                 On analogous  reasoning, we  discount two variations  on the          same  defensive theme.  First, the fact that some plaintiffs were          appointed or  promoted during the "veda,"  the electoral prohibi-                                          12          consideration in the present case, based on the evidence relating          to  each appellant's claim:  (1) whether the plaintiff was quali-          fied for the  position at the time of the  dismissal, and (2), if          so, whether  the  position was  eliminated for  nondiscriminatory          reasons.          D.   Plaintiffs' Evidence          D.   Plaintiffs' Evidence               ____________________                    Plaintiffs offered little direct evidence of discrimin-          atory  animus.  But see  infra notes 6 & 8.   Nevertheless, as we                          ___ ___  _____          have held,  "circumstantial evidence alone can  support a finding          of political discrimination."  Anthony, 952 F.2d at 605; Estrada-                                         _______                   ________          Izquierdo, 850 F.2d at  14.  Certain general observations  can be          _________          made concerning the circumstantial evidence bearing on the claims          of  all eleven  plaintiffs.   Mere temporal  proximity between  a          change  of administration  and a  public employee's  dismissal is          insufficient  to  establish  discriminatory  animus.  Cf. Aviles-                                                                ___ _______                                        ____________________          tion  period, is not necessarily  controlling in the First Amend-          ment context.  "Puerto Rico law is not controlling in the area of                                             ___ ___________          first amendment law," Santiago-Negron,  865 F.2d at 436 (emphasis                                _______________          added), and, in  this respect, we  see no principled  distinction          between the Commonwealth's personnel and electoral laws.  Second,          it is not necessarily  a sufficient defense that a  plaintiff did          not  meet the  legally  mandated minimum  qualifications for  the          position at  the time of  appointment.   See Hiraldo-Cancel,  925                   __  ___ ____ __  ___________    ___ ______________          F.2d at  13; Santiago-Negron, 865  F.2d at  436.  Although,  as a                       _______________          general  rule, an  employee's  continuing inability  to meet  the                                         __________          established  minimum qualifications  for  the position  can be  a          sufficient  nondiscriminatory ground for  dismissal, cf. Hiraldo-                                                               ___ ________          Cancel,  925 F.2d  at 14 (reinstatement  is a  meaningless remedy          ______                    _____________          where  the employer,  "under the  aegis of valid  personnel stan-          dards, is empowered to terminate  reinstated employees as soon as          they  dust  off  their  desks"),  Santiago-Negron's  proscription                                            _______________          against  post  hoc  "nullification"  would suggest  that,  to  be                   ____  ___          controlling, the employee's qualifications should be measured  as                                                                         __          of the challenged dismissal.          __ ___ __________ _________                                          13          Martinez  v. Monroig,  963  F.2d 2,  5  (1st Cir.  1992)  (citing          ________     _______          Kauffman, 841  F.2d at 1172).   On the other hand,  we have noted          ________          that the "highly charged  political atmosphere" occasioned by the          major  political shift  from the  NPP to  the PDP  throughout the          Commonwealth of Puerto Rico  in 1984, coupled with the  fact that          plaintiffs and defendants are of competing political persuasions,          may be probative of discriminatory animus.  See Kercado-Melendez,                 _________                            ___ ________________          829 F.2d at 264; see  also Anthony, 952 F.2d at 606  ("timing" of                           ___  ____ _______          dismissal may  be suggestive of discriminatory  animus); Estrada-                                                                   ________          Izquierdo, 850 F.2d at 15 (same).  Moreover, the record discloses          _________          that  these  eleven  appellants,  for the  most  part,  were  not          quiescent  NPP members but played very  active or prominent roles          in its political activities,  publicly and vocally supporting the          reelection campaign of the former mayor.  See Nereida-Gonzalez v.                                                    ___ ________________          Tirado-Delgado, 990  F.2d 701, 706  (1st Cir. 1993)  (noting evi-          ______________          dence that plaintiff was "known" party  member); Ferrer, 914 F.2d                                                           ______          at  312 (noting  that plaintiffs'  political affiliation  was not          only "well  known" but,  in some instances,  notorious); Kercado-                                                                   ________          Melendez, 829 F.2d at 264 (noting plaintiff's "long, active,  and          ________          visible membership" in the opposition party).                    Appellants variously  testified at trial that they were          (1) members of the  former mayor's elite "advance team,"  a corps          of uniformed  functionaries  responsible for  arranging  campaign          appearances; (2) organizers or participants  in pro-NPP political          rallies; (3) NPP  women and  youth coordinators;  or (4)  polling          unit officers or members  of electoral colleges.  Thus,  the jury                                          14          reasonably could  have concluded  that those appellants  who were          publicly identified as  close political allies of  the former NPP          mayor were more conspicuous targets for political discrimination.          Standing alone, even the circumstantial evidence that some plain-          tiffs  were  especially  conspicuous  targets  for discriminatory          employment  action by  defendants  would give  us serious  pause.          With  but two exceptions, however,  a careful review  of the evi-          dence reveals  that appellants  plainly presented  other evidence          sufficient to  shift the burden of  persuasion, effectively fore-          closing any realistic claim for Rule 50(b) relief by  defendants.          We briefly  recount  the dispositive  evidentiary  considerations          bearing on each appellant's claim.               1.   Brenda Aponte Osorio               1.   Brenda Aponte Osorio                    ____________________                    Ms.  Aponte was dismissed  from her "regular" position,          as an  Executive Officer IV, in  May 1985.  In  addition to other          direct evidence of discriminatory animus,6 the letter of dismiss-          al  from Mayor Aponte stated  that Ms. Aponte  apparently did not          possess the qualifications for her  position    in particular,  a          college degree  and "considerable" relevant work  experience.  In          fact, the written  job description  for an  Executive Officer  IV          lists a  college degree as "desirable  preparation," but provides          that a "combination of preparation and experience will be accept-          able"; it  defines  "experience"  as  "positions  of  progressive                                        ____________________               6Ms. Aponte states that she was constructively dismissed one          day after the new administration took office, when she was denied          access to  her office, told that she was "not a person of trust,"          and given no further duties.  Her protests went unanswered.                                          15          responsibility . . .  in the public service,  including consider-          able  administrative  or  supervision  experience."     (Emphasis                                    ___________  __________          added.)  At trial, Ms. Aponte testified that she attended college          for  three years,  and began working  for the  City in  1978 as a          supervisor in the Human Resources Department.7          __________                    Ms.  Aponte presented  sufficient evidence to  enable a          jury to find that she possessed the required qualifications, both                                                                       ____          at the  time of her  appointment and  dismissal.  The  jury could          have  concluded,  therefore,  that   defendants'  contemporaneous          justification was a  mere pretext  for political  discrimination.          Cf. Aponte-Santiago  v. Lopez-Rivera, 957  F.2d 40, 43  (1st Cir.          ___ _______________     ____________          1992)  (reversing summary  judgment  for defendant;  noting  that          proof  that defendant's  asserted  nondiscriminatory  reason  for          dismissal  was pretextual is a "link in a chain of circumstantial          evidence" of  political discrimination  which, when  coupled with          allegedly "conclusory" evidence as to the  timing of demotion and          the parties' political affiliation, creates a triable issue which          the fact finder might resolve in plaintiff's favor); Anthony, 952                                                               _______          F.2d at  606 (plaintiff's  obvious qualifications can  be circum-          stantial evidence  of discriminatory  animus); cf. also  Burns v.                                                         ___ ____  _____          Gadsden  State Community College, 908 F.2d  1512, 1519 (11th Cir.          ________________________________          1990)  (employer's exceedingly  narrow interpretation  of minimum          "experience" required  for position, coupled with  other evidence                                        ____________________               7Even though their individualized defenses, in many instanc-          es, succumbed  to this  same "equivalency" virus,  permitting the          jury  to make  reasonable  substitutions of  work experience  for          educational  background,  defendants  have  not  challenged these          substitutions on appeal.                                          16          of discriminatory  animus, creates genuine dispute  as to whether          employer "invented" excuse as pretext to mask improper motive for          dismissal  in  ADEA  action).   The  circumstantial  evidence  of          pretext,  coupled  with  the  direct  evidence of  discriminatory          animus, was  sufficient  to shift  the  burden of  persuasion  to          defendants.   As there was no conclusive evidence that Ms. Aponte          would have been  dismissed in any  event for a  nondiscriminatory          reason, the jury verdict must be sustained.               2.   Dorotea Collazo Rivera               2.   Dorotea Collazo Rivera                    ______________________                    Ms. Collazo  was dismissed from her "regular" position,          as an Administrative Assistant I, in January 1986.8  The dismiss-          al letter  asserted that  Collazo's termination was  based on  an          absence of evidence that she was ever qualified for her position.          However, Collazo's job description merely required  a "desirable"          (high  school  diploma)  education/experience   ("general  office          work") mix.  Collazo  testified that she met the  posted academic          preparation component  of the  job description.   Moreover, there          was  no  dispute that  Collazo, who  was  appointed to  her final                                                              __  ___ _____          position with the City  in 1981, previously had been  employed as          ________          an  office clerk for the City since 1976.  Thus, Collazo likewise                                        _____ ____          succeeded in shifting the burden of persuasion to the defendants,          and defendants simply failed to persuade the jury.                                        ____________________               8When the  new administration took over, Collazo's secretary          was transferred to another department and  Collazo was locked out          of her office without warning.  Collazo's husband, who was  a NPP          unit chairman, and  her daughter, were also dismissed  from their          positions with the City in 1985-86.                                          17               3.   Maria Colon de Jesus               3.   Maria Colon de Jesus                    ____________________                    Ms. Colon was dismissed from her "regular" position, as          a Messenger, in July 1985.   The letter of dismissal stated  that          the  City's  messenger  service,  with  forty-two employees,  was          "excessive and  unnecessary,"  that it  must  be reduced  to  ten          employees as an economy measure, and that the ten employees to be          retained  had been  chosen based  on an  evaluation of  their job          performance and seniority.                    Ms.  Colon conceded  that  the reduction  in force  did          occur as defendants indicated, and that she lacked the  requisite          seniority to qualify for one of the ten remaining positions.  She          points  to no  particular  discriminatory conduct,  nor does  she          contend that (1)  messengers with less seniority or lower perfor-          mance ratings were retained,9  (2) the City needed more  than ten          messengers in 1985, or (3) defendants replaced any of the thirty-          two dismissed  messengers.  As Colon's  political affiliation and          the timing of  her dismissal were the only  significant probative          evidence  supporting her  claim,10  and there  was  no direct  or                                        ____________________               9While conceding that she was among the dismissed messengers          with  the  least seniority,  Colon  nonetheless  argues that  the                     _____          selection criteria were suspect because Commonwealth law requires          that  reductions  in force  be justified  first  on the  basis of          employee performance ratings, and  only then on seniority consid-          erations.  See Delbrey  v. Municipio de Carolina, 111  P.R.R. 492                     ___ _______     _____________________          (1984).   The  record  indicates, however,  that defendants  made          their selections  only after  "considering the criteria  of effi-                                                                      _____          ciency in the  performance of  messenger duties and  the time  of          ______          services rendered in that capacity." (Emphasis added.)               10In view of Colon's  concession that she lacked  the requi-          site seniority, the other  circumstantial evidence was altogether          too  weak to  vault  the initial  Mt.  Healthy hurdle.    Colon's                                            ____________          political participation was much  less frequent and activist than                                          18          circumstantial  evidence of  pretext,  the  burden of  persuasion          never shifted to defendants.  As no factual dispute was generated          concerning the  legitimacy of the austerity  measures, or Colon's          failure to  meet the  criteria for  retention, the verdict  could          only have been based on conjecture that Colon would not have been          terminated  but for  her political  affiliation. See  Ferrer, 914                                                           ___  ______          F.2d  at 311 ("plaintiff is  not entitled to  inferences based on          speculation and conjecture").11               4.   Hector L. Encarnacion Matos               4.   Hector L. Encarnacion Matos                    ___________________________                    Encarnacion was dismissed  from his "regular" position,          as  a Computer Operator I, in  August 1985.  The dismissal letter          stated  that he lacked  the minimum qualifications  for the posi-          tion, which  defendants characterized at  trial and on  appeal as          requiring an "associate degree"  in accounting or computer opera-                                        ____________________          most other  appellants.   According to her  undisputed testimony,          she merely  participated  "at  the  polling places,  and  on  the          marches  in [her] spare time,"  and served as  "secretary for the          electoral board" in 1984.               11There are important public  policy considerations at stake          in  these circumstances.    First, legitimate  efforts by  newly-          elected  officials to  impose  fiscal constraints  and to  foster          operating efficiencies should not be hamstrung.  See Marin-Piazza                                                           ___ ____________          v. Aponte-Roque, 873  F.2d 432,  434 (1st Cir.  1989) ("[W]e  are             ____________          inclined  to give a certain  amount of leeway  to personnel deci-          sions of new administration  officials which implement a facially          politically  neutral reorganization of structure or procedure.").          Newly-elected officials, however well meaning, might be  deterred          from  needed measures  to  effect economies  and efficiencies  in          governmental  operations if  a  discharged  employee's  political          affiliation alone were  enough to  carry her claim  to the  jury.          Second, though  there was  ample opportunity  to raise  a genuine          factual  dispute  regarding  the  legitimacy  of the  defendants'          "austerity" program, the  defendants demonstrated, without rebut-                                                             _______ ______          tal,  that the City  has operated for  at least six  years with a          ___          vastly streamlined messenger staff.                                          19          tion.  The  job description  called for a  "high school  diploma,          supplemented by  courses in mechanized accounting  or programming          and one year of experience in that field," or "[a] combination of                                                     __          academic background  and experience."   Thus, contrary  to defen-          dants' mischaracterization at trial,  the job description did not          require  post-secondary  school  courses  sufficient  to  qualify          Encarnacion for  an associate degree.   Moreover, although Encar-          nacion conceded  at trial that his  post-secondary school courses          were not in accounting or programming, and that he had  no exper-          ience in computer  programming prior to  his appointment, he  had                                         _____ __  ___ ___________          acquired two years' working  experience on the job before  he was          dismissed  in 1985,  during  which time  he had  received several          "excellent"  job  performance evaluations.    See  id. at  312-13                                                        ___  ___          (noting  that jury  could  credit  circumstantial  evidence  that          plaintiff "performed  her duties very  well"); Estrada-Izquierdo,                                                         _________________          850 F.2d  at 14 (finding "probative"  the circumstantial evidence          that  plaintiff  "successfully  carried  out her  job"  for  many          years).   Encarnacion's  job description  was flexible  enough to          permit the  jury to  determine  that he  possessed the  necessary          qualifications, and that the stated  reason for his dismissal was          pretextual.               5.   Maria de Lourdes Escute-Levest               5.   Maria de Lourdes Escute-Levest                    ______________________________                    Ms.  Escute-Levest was  dismissed  from  her  "regular"          position,  as a Computer Operator I, in October 1985.  Initially,          defendants  contended   that  she  was  unqualified,   but  later          retreated to  their "nullity  of appointment"  justification when                                          20          she  protested that  she  had  an  associate degree  in  computer          programming.  See supra note  5.  Escute, a member of  the former                        ___ _____          mayor's "advance  team," testified at trial     without objection          as to  the basis  of her  knowledge12     that  her position  was          refilled following her dismissal, suggesting  that it was not  as          expendable  as  defendants contend  on  appeal.   The  cumulative          circumstantial evidence  of discriminatory animus and pretext was          sufficient to shift the burden of persuasion to defendants and to          support the jury verdict.               6.   Jesus Garcia Delgado               6.   Jesus Garcia Delgado                    ____________________                    Garcia was dismissed from  his "regular" position, as a          Computer Operator I, in November 1985.  Defendants contended that          Garcia, who  possessed an  associate degree in  computer program-          ming, did not have the required year of experience in  a "related          field" at  the time he  was appointed in 1978.   Even so,  he had          accumulated seven years' experience by the time he was dismissed,          and  plainly met all qualifications  for the position long before          his dismissal.  As the jury could have inferred that the justifi-          cation offered for the dismissal was pretextual, there was enough          evidence to shift the burden of persuasion to defendants.                                        ____________________               12At  oral argument,  defendants contended  that plaintiffs'          trial testimony  regarding their replacements was  too conclusory          and lacked factual foundation.  However, at trial the defense did          not object  to plaintiffs' testimony based on lack of foundation.          Thus, the jury was entitled to  resolve these issues on the basis          of its  credibility determinations and weighing  of the evidence.          As the  evidence was not challenged at  trial, and there has been          no showing of "plain error,"  Doty v. Sewall, 908 F.2d 1053, 1057                                        ____    ______          (1st Cir. 1990), we reject their claim on appeal.                                          21               7.   Victor M. Guadalupe Bobonis               7.   Victor M. Guadalupe Bobonis                    ___________________________                    Guadalupe was  dismissed for  the second time  from his          "transitory" position, as a municipal guard, in October 1985.  In          January  1985,  the occasion  of  the first  dismissal,  the only          justifications  defendants  offered  were  that   his  transitory          appointment  had  already  lapsed  and the  position  was  deemed          expendable under the "austerity"  program.  Mayor Aponte abruptly          rescinded the first  dismissal letter  on January 25,  1985.   In          June  1985, however,  Aponte  sent another  letter of  dismissal,          asserting that Guadalupe did  not meet the minimum qualifications          for the position, and that his original appointment therefore had          been illegal.  As  there was no  evidence that Guadalupe did  not          meet the  minimum job  qualifications, the jury  reasonably could          have  concluded  that  defendants'  shifting  justifications  for          Guadalupe's dismissal amounted to pretextual posturing.                    Furthermore, Guadalupe testified that twelve or fifteen          more  policemen were  hired after  his  dismissal.   See Nereida-                                                               ___ ________          Gonzalez, 990 F.2d  at 706 (noting that  evidence suggesting that          ________          defendants' reorganization was a  "sham" may be considered proba-          tive of discriminatory  animus); Ferrer, 914 F.2d  at 311 ("over-                                           ______          staffing"  defense undermined  by competent  evidence  from which          jury could  conclude that defendants later  hired replacements to          perform  same functions  entailed by  plaintiff's position);  see                                                                        ___          also supra note 12.          ____ _____               8.   Ada N. Perez Colon               8.   Ada N. Perez Colon                    __________________                                          22                    Ms. Perez was dismissed from her "regular" position, as          an Executive Officer I, in  September 1985.  Defendants contended          that she was not qualified, and alleged that she had taken an un-          authorized  medical leave, without pay,  to undergo surgery.  The          Executive Officer I position  requires a four-year college degree          and administrative or  supervisory experience, or  an "equivalent          combination of  academic background and experience."   Perez, who          was a member of  the former mayor's "advance team,"  had attended          college for two years, and had  worked for the City since 1980 as                                                              _____ ____          an officer for  the CETA program and  a coordinator at  the Human          Resources  Department.   Thus,  the  jury  reasonably could  have          determined that her five-year City work experience was sufficient          to  offset the two-year deficit in education.   See supra note 7.                                                          ___ _____          The jury therefore was free to conclude  that both justifications          for her dismissal were pretextual.               9.   Evelyn Quinones Osorio               9.   Evelyn Quinones Osorio                    ______________________                    Ms. Quinones was dismissed from her "regular" position,          as an Executive  Secretary III,  in September 1985.   Within  two          weeks after taking office, Mayor Aponte called all mayor's office          employees together and advised  that they were "persons  who were          in trust to the former mayor," and that they would be replaced or          transferred in  "due time."   Defendant  Martinez also  told Qui-          nones,  a member of the  former mayor's "advance  team," that she          "didn't have  his trust."   After training her  replacement, Qui-          nones accepted a transfer out of the mayor's office.   She testi-          fied that  officials of  the new  administration erased her  time                                          23          cards  and, on one occasion, retained her paycheck for six weeks.          Defendant  Martinez,  City  personnel  officer,   told  Quinones:          "[T]hose are injustices but I follow orders from above."  (Empha-                                  ___ _ ______ ______ ____ _____          sis added.)                     In July 1985, after Quinones'  brief tenure in the  new          secretarial position,  Aponte notified her that she would be ter-          minated  because she was unqualified for the position.  The rele-          vant job  description called  for a two-year  secretarial course,          and four  years' secretarial  experience, but  two years  of work          experience could be substituted for educational experience.  When          Quinones  provided satisfactory documentation  of her educational          qualifications,  defendants fell  back on  their "nullity  of ap-          pointment"  defense as  the sole  ground for  her  September 1985          dismissal.   See supra note  5.  Moreover,  Osario testified that                       ___ _____          she had worked  as a secretary since 1980, and  her final year as          an  Executive  Secretary III  clearly qualified  her for  her new          position.  Thus, Quinones presented sufficient direct and circum-          stantial evidence  of discriminatory animus and  pretext to shift          the burden of persuasion.                10.  Carmen Rivera Guadalupe               10.  Carmen Rivera Guadalupe                    _______________________                    Ms. Rivera Guadalupe was dismissed from  her "transito-          ry" positions,  as Child  Care worker  and Secretary,  in January          1986.  She was notified that she was being terminated because her          transitory appointment had  lapsed, and the City  could no longer          afford to  fund the position.  Her  husband continued to work for          the  Aponte administration for another  five or six  years.  Like                                          24          plaintiff Colon, Ms. Rivera offered no evidence that the elimina-          tion of  her position was in any way pretextual, nor that she was          ever replaced, let alone by a PDP member.   As political affilia-          tion and the timing of the dismissal were insufficient to satisfy          her  threshold burden of  production,13 the jury  verdict must be          set aside as conjectural.               11.  Luisa Rivera Serrano               11.  Luisa Rivera Serrano                    ____________________                    Ms. Rivera Serrano was dismissed from her  "transitory"          position,  as a Clerk I,  in August 1985,  ostensibly because her          fixed  term of employment had expired.  Although the jury reason-          ably  could have  inferred that  her position,  like that  of Ms.          Rivera Guadalupe,  would be eliminated on  austerity grounds, the          implicit rationale for her dismissal was undermined by Ms. Rivera          Serrano's testimony that she  was replaced by Rosa Mattos,  a PDP          member.  Defendants' attempt  to undermine Rivera's testimony, by          noting  that she  previously  had identified  a different  person          (Inez) as her replacement, fails.  Not only are we precluded from          credibility determinations, see Hendricks  & Assocs., 923 F.2d at                                      ___ ____________________          214, but Rivera offered a plausible explanation for her inconsis-          tent responses:   both individuals applied  for her former  posi-          tion.  As  there was ample basis for a  reasonable inference that          the proffered ground  for the dismissal was  pretextual, the jury          verdict must be upheld.                                        ____________________               13Like Ms.  Colon, see  supra text accompanying  notes 9-11,                                  ___  _____          Ms. Rivera's NPP activities were peripheral and relatively incon-          spicuous.   She served as a polling unit officer for the NPP, and          chaired the NPP Womens' Movement at her local union.                                          25                                      CONCLUSION                                      CONCLUSION                                      __________                    We acknowledge the careful attention the district court          has given  the evidence in this  case.14  In the  Rule 50(b) con-          text, however,  we are required  to recognize that  evidence does          not  pass through the jury  "lens" unrefracted.   Our review con-          vinces us  that these  jury verdicts,  with two  exceptions, must                                        ____________________               14In  February 1992,  the district court  denied defendants'          first Rule  50(b) motion.  After carefully  reviewing its "notes,          defense  arguments and  the jury  verdicts," the court  based its          ruling on the  fact that "the jury  individually and meticulously          considered each [of the 255] claim[s]."   The  closeness of these          questions is  demonstrated by the district  court's equally pain-          staking reconsideration, as well as our own review.               We nevertheless reject plaintiffs' appeals from the district          court ruling denying their reinstatement.  A denial of reinstate-          ment is  reviewed for "abuse of  discretion," Hiraldo-Cancel, 925                                                        ______________          F.2d at 13, and we will reverse "only if  we are left with a firm          conviction that [the district  court] has committed 'a meaningful          error in judgment.'"  Rosario-Torres, 889 F.2d 314, 323 (1st Cir.                                ______________          1989) (en banc) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910,                                   ________    _____________          923 (1st Cir.  1988)).  It did  not.  After assiduously  weighing          the  equities,  the  district  court rejected  the  reinstatement          claims  on several  sustainable grounds.   First,  federally com-          pelled  reinstatements to  municipal positions  implicate serious          comity  and  federalism  concerns,  especially in  light  of  the          compelling evidence  that plaintiffs' appointments  were made  in          blatant  disregard of  Commonwealth and  municipal personnel  and          electoral  laws, and  that the  City was  operating under  severe          fiscal  constraints, both  at the  time of  the dismissals.   Id.                                                                        ___          (noting that, "[i]n shaping  equitable remedies, comity  concerns          can loom  large," and that "court-ordered  reinstatement of ille-          gally-hired . .  . workers strikes a particularly jarring note").          Second, significant periods of  time elapsed after their dismiss-          als before plaintiffs requested injunctive  relief.  Id. at  324.                                                               __          Finally, some of the harshness inherent in a refusal to reinstate          is  diminished where  the employee  has been  awarded significant          monetary  relief.   See  Rosario-Torres,  889  F.2d at  322,  324                              ___  ______________          (contrasting Title VII  cases, which  do not  permit recovery  of          compensatory or punitive damages,  with First Amendment political          discrimination cases, which offer  a fuller "palette of available          make-whole remedies" to offset a denial of reinstatement).                                          26          therefore be reinstated.15                    Judgment in accordance with  the verdicts must be rein-                    _______________________________________________________          stated for all appellants,  with the exception of Maria  Colon de          _________________________________________________________________          Jesus  and Carmen Rivera Guadalupe.   In all  other respects, the          __________________________________    ___________________________          district court judgment is affirmed.  The case is remanded to the          ___________________________________   ___________________________          district court for further proceedings not inconsistent herewith.          _________________________________________________________________          Costs are awarded to the nine prevailing appellants.          ____________________________________________________                                        ____________________               15Aponte also asserts that the verdicts should be vacated as          inconsistent,  since the  special  verdict did  not label  Aponte          "liable" for  political discrimination  and yet found  him liable          for punitive damages.   We  reject this contention.   A  facially          inconsistent verdict in a  civil action    no rare  phenomenon             is  not an automatic ground for  vacating the verdict.  See Fair-                                                                  ___ _____          mount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485 (1933).          _________________    _________________          The  court "must  attempt to  reconcile the  jury's findings,  by          exegesis if  necessary  . . . before  [it is]  free to  disregard          [them]."   Gallick v. Baltimore & Ohio  R. Co., 372 U.S. 108, 119                     _______    ________________________          (1963).               Here,  the  findings are  readily  reconcilable.   The  jury          charge, to which there was no  relevant objection, suggested that          Aponte's liability and the municipality's liability could go hand          in hand.  Since the special verdict form did not specify the need          for dual findings on  liability, the jury may have  reasoned that          branding the City "liable"  necessarily incorporated a finding of          Aponte's liability as well.   Accordingly, in view of  the jury's          clear imposition of liability for punitive damages on Aponte,  we          cannot conclude that the verdict    naming only the City "liable"          for  discrimination      unambiguously  or  completely exonerated          Aponte.  Compare DeFeliciano  v. DeJesus, 873 F.2d 447,  452 (1st                   _______ ___________     _______          Cir.) (citing cases in  which employee was completely exonerated,          but employer,  whose liability could only  derive from employee's          liability, was found liable), cert. denied, 493 U.S. 850 (1989).                                        ____  ______                                          27
