
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 95-1950               95-1951               95-1952                                 JANET SCOTT-HARRIS,                                 Plaintiff, Appellee,                                          v.                             CITY OF FALL RIVER, ET AL.,                               Defendants, Appellants.                              _________________________          No. 95-2100                                 JANET SCOTT-HARRIS,                                Plaintiff, Appellant,                                          v.                             CITY OF FALL RIVER, ET AL.,                                Defendants, Appellees.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Harvey  A. Schwartz, with whom Schwartz, Shaw & Griffith was               ___________________            _________________________          on brief, for plaintiff.               Stephen C. Fulton, with whom Law Office of Bruce  R. Fox was               _________________            ___________________________          on brief, for defendant City of Fall River.               Bruce A. Assad for defendant Marilyn Roderick.               ______________               Robert J.  Marchand, with  whom Driscoll, Marchand,  Boyer &               ___________________             ____________________________          Stanton  and Mary E. O'Neil  were on brief,  for defendant Daniel          _______      ______________          Bogan.                              _________________________                                   January 15, 1997                              _________________________                    SELYA, Circuit Judge.   Although America began with the                    SELYA, Circuit Judge.                           _____________          vision of a city on a hill, not every American has shared a sense          of optimism  about our nation's  municipalities.  Indeed,  one of          the  most illustrious  of the  Framers regarded  great  cities as          "pestilential to the morals, the  health, [and] the liberties  of          man."   Christopher Tunnard, The  City of Man  34 (1970) (quoting                                       ________________          Thomas Jefferson).                    In this  vein, American  legal institutions  have begun          over time  to view cities  with a certain  constitutionally based          suspicion.   Thus,  in Monell  v. New  York City Dep't  of Social                                 ______     _______________________________          Servs.,  436 U.S. 658, 691  (1978), the Supreme  Court ruled that          ______          municipalities  could be held liable  under 42 U.S.C.    1983 for          deprivations  of  federally   protected  rights  which   occurred          "pursuant to official municipal policy of some  nature."1  Monell                                                                     ______          opened  the floodgates  for an  outpouring of such  suits against          municipalities.                                        ____________________               1The statute provides:                    Every person who, under color of any statute,                    ordinance, regulation, custom,  or usage,  of                    any State  . . .,  subjects, or causes  to be                    subjected, any citizen  of the United  States                    or  other  person  within   the  jurisdiction                    thereof to  the  deprivation of  any  rights,                    privileges,  or  immunities  secured  by  the                    Constitution and laws, shall be liable to the                    party injured  in an  action at law,  suit in                    equity,  or  other   proper  proceeding   for                    redress.          42 U.S.C.    1983 (1994).   The upshot of the  Monell decision is                                                         ______          that a municipality is  a "person" for purposes of  section 1983,          and, hence, amenable to suit for violations thereof.  See Monell,                                                                ___ ______          436 U.S. at 690.                                          2                    The  case at  hand is  one  example of  the genre.   At          trial,  a jury found  the City of  Fall River (the  City) and two          municipal officials liable under section 1983 for the  passage of          a facially neutral ordinance  that abolished the plaintiff's job.          The  defendants'  appeals  raise  a  tantalizing  question  about          whether  a  discriminatory animus  displayed  by  fewer than  the          minimum  number  of city  council  members whose  votes  would be          required to enact an ordinance can  (or should) be imputed to the          municipality  itself.     Other  interesting   questions  abound,          including  questions dealing  with  causation in  the context  of          constitutional torts and the availability of legislative immunity          defenses in that setting.  Before addressing any of these issues,          however, we must  parse Fed. R.  App. P. 4  (a)(6) for the  first          time  and determine  whether  the defendants  have brought  their          appeals in a timeous fashion.          I.  A TALE OF ONE CITY          I.  A TALE OF ONE CITY                    Many  of the  facts in  this case  are conflicted.   We          present them as best they have presented themselves, occasionally          resolving disparities  as the  jury permissibly might  have done.          See, e.g.,  Veranda Beach Club  Ltd. Partnership v.  Western Sur.          ___  ____   ____________________________________     ____________          Co., 936 F.2d 1364, 1375 (1st Cir. 1991) (discussing standard for          ___          appellate   review  of  post-verdict  challenges  to  evidentiary          sufficiency).                    The City hired  the plaintiff,  Janet Scott-Harris,  as          the administrator of the  newly created Department of  Health and          Human  Services  (HHS).   When  Scott-Harris  entered the  City's                                          3          service in 1987,  she became the  first African-American ever  to          hold a managerial position  in the municipal government.   By all          accounts  she performed quite  well at HHS.   Withal, she did not          enjoy  a  problem-free  relationship  with  the City's  political          hierarchs.    In  1988,  for example,  she  clashed  with Marilyn          Roderick, the  vice-president of the City  Council.  Scott-Harris          believed  that  Roderick  made  inappropriate  references  to  an          aspirant's ethnicity in the course of an employment interview and          stormed out of  the room.   Shortly thereafter, she engaged  in a          shouting  match  with Roderick.   When  Scott-Harris subsequently          attempted to apologize, Roderick hung up the telephone.                    Scott-Harris'  difficulties with  Roderick did  not end          with the aforedescribed incident.   There were periodic flare-ups             by way of  illustration, Roderick wrote  a letter  to the City          Administrator, Robert Connors, protesting  Scott-Harris' use of a          City-owned motor vehicle    but it was Scott-Harris'  reaction to          the dysphemisms spouted by  Dorothy (Dot) Biltcliffe, a nutrition          program assistant  for the  City's Council  on Aging  (COA), that          precipitated internecine warfare.   In the  fall of 1990,  Scott-          Harris  learned  that   Biltcliffe  had  been   making  offensive          comments.   In  one  instance, referring  to her  co-worker Paula          Gousie and  to Scott-Harris,  Biltcliffe remarked:   "That little          French  bitch has her  head up that  nigger's ass."   In another,          Biltcliffe  referred to  a secretary  as "a little  black bitch."          Scott-Harris spoke out against this racist invective and, because          COA operated  under her  general supervision, she  consulted with                                          4          Connors and then drew up a set of charges against Biltcliffe as a          prelude to dismissal.                    The  pendency  of   these  charges   did  not   improve          Biltcliffe's manners;  she  called Scott-Harris  "a black  nigger          bitch"  and  warned that  there  would  be repercussions  because          Biltcliffe "knew  people."   Biltcliffe  unabashedly pressed  her          case with two city councilors (Roderick and Raymond Mitchell) and          a  state senator who, in  turn, called Roderick.   After numerous          postponements the City  held a hearing  on March 27, 1991.   This          resulted in a settlement under which Biltcliffe agreed to  accept          a 60-day suspension without pay.  Mayor Daniel Bogan subsequently          intervened and pared the punishment substantially.                    During this  time frame  the  City's financial  outlook          worsened.   Municipal officials anticipated that  state aid would          decline up to 10%  in the next fiscal year (July 1,  1991 to June          30, 1992).   Mayor Bogan  directed Connors  to prepare a  list of          proposed budget cuts to  accommodate the anticipated reduction in          funding.   Connors asked  his department heads,  including Scott-          Harris, for  their input.  Scott-Harris  recommended reducing the          hours of school nurses.  Bogan rejected this suggestion and, over          Connors'  objection,  insisted  that  Scott-Harris'  position  be          eliminated.                    Because  the   post  had  been  created   by  municipal          ordinance,  its   abolition  necessitated  the   same  procedural          formalities.  The City  Charter requires the votes of  a majority          of the  nine members of the  City Council for passage  of such an                                          5          ordinance.   The mayor often submits proposed  legislation to the          City Council,  and, in  addition, he  must approve  every enacted          ordinance  (or  else the  Council must  override  his veto).   In          February  1991 Bogan  asked the  Council to  do away  with Scott-          Harris' position.  On March 5 the ordinance committee, chaired by          Roderick,  reported  out  an  emendatory  ordinance  designed  to          achieve  this end and recommended its passage.  Three weeks later          the  City  Council voted  six-to-two  (Roderick  voting with  the          majority) to  approve the position-elimination ordinance.   Bogan          signed it into law.                    At  about the  same time  that he  moved to  incinerate          Scott-Harris'  job, Bogan  offered  her a  different portfolio             Public Health  Director    which paid approximately  $12,000 less          per annum.    Scott-Harris accepted  the  offer by  letter  dated          February 28,  1991, but a  follow-up communiqu  from  Bogan added          extra duties and shifted Scott-Harris to a less desirable office.          Disappointed,  Scott-Harris  drafted a  letter rejecting  the job          offer.   That letter mysteriously  arrived at the  mayor's office          and was  acted upon  by  Bogan despite  Scott-Harris' efforts  to          retract it.   Scott-Harris' tour of  duty with the City  ended on          March  29,  1991    two  days  after  the  hearing  that  led  to          Biltcliffe's suspension.  She filed suit several months later.          II.  THE LITIGATION          II.  THE LITIGATION                    Solon, the fabled  Greek legislator, once characterized          the best type of city as one "in which those who are not wronged,          no  less than those who  are wronged, exert  themselves to punish                                          6          the  wrongdoers."   Plutarch,  Plutarch's  Lives 455  (Bernadotte                                         _________________          Perrin trans., 1914).  Here, the plaintiff's complaint alleged in          substance that the City and certain municipal officials2 inverted          the Solonic ideal:   when the plaintiff responded forcefully (but          appropriately) to Biltcliffe's racial slurs, the defendants sided          with the  wrongdoer and instead punished  Scott-Harris by ousting          her from her  position under  a blatant pretext.   The  plaintiff          alleged  that, in  so doing,  the  defendants abridged  her First          Amendment  rights and  set the  stage for  redress under  section          1983.  See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429                 ___ ________________________________________    _____          U.S. 274, 287  (1977) (explaining that in  order to prevail on  a          section 1983  claim based on  the First Amendment,  the plaintiff          must  prove  that her  protected  speech  was  a  substantial  or          motivating factor in the decision to eliminate her job).                    At trial the defendants  asserted that their motives in          passing the  challenged ordinance  were exclusively fiscal.   The          plaintiff disagreed,  contending that racial animus  and a desire          to punish  her for  protected speech, not  budgetary constraints,          spurred  the introduction and passage  of the ordinance.   On May          26,  1994,  evidently persuaded  by  the  plaintiff's efforts  to          connect Dot to her dismissal, the jury returned a verdict against                                        ____________________               2The  plaintiff  originally sued  a plethora  of defendants.          She quickly narrowed  the field to Connors,  Roderick, Bogan, and          the City.  During the ensuing trial, the judge directed a verdict          in  Connors' favor.  The plaintiff has not contested that ruling,          and  we discuss these appeals as if Bogan, Roderick, and the City          were the sole defendants.                                          7          all three defendants.3                    The  verdict form  memorialized the  jury's conclusions          (1) that the plaintiff's  constitutionally protected speech was a          substantial  or motivating  factor  both in  Bogan's decision  to          recommend enactment  of the ordinance and  in Roderick's decision          to work for its  passage, and (2) that these  actions proximately          caused  the  extirpation  of the  HHS  director's  position.   As          originally  returned,  the  verdict form  added  an  inconvenient          wrinkle;  it indicated that the plaintiff had not proven that the          City's  professed desire  to  enact the  ordinance for  budgetary          reasons was pretextual.   Out  of the jury's  earshot, the  judge          expressed her  concern that  the jury's findings  were internally          inconsistent.   After a brief  colloquy, she resubmitted the case          to the jury with  appropriate supplemental instructions.  Shortly          thereafter  the  jury  returned  a  revised  verdict  form  which          reiterated everything except the  "no pretext" finding.   In that          wise,  the jury,  having reconsidered  the matter,  now concluded          that  the  City's  stated  reason for  wanting  the  ordinance             budgetary concerns   was not its true reason.                    The  jury  assessed  compensatory  damages  against all          three  defendants,  jointly  and  severally,  in  the  amount  of          $156,000;  found Bogan liable for  punitive damages in the amount          of $60,000; and found Roderick liable for punitive damages in the                                        ____________________               3The  jury   found  against   the  plaintiff  on   her  race          discrimination claim, and she does not contest that finding here.                                          8          amount  of   $15,000.4     The  court  subsequently   denied  the          defendants' motions  for  judgment notwithstanding  the  verdict.          These appeals followed   but not without a  perturbing procedural          prelude.          III.  THE NOTICES OF APPEAL          III.  THE NOTICES OF APPEAL                    Rule  4(a)(1)  of  the   Federal  Rules  of   Appellate          Procedure  requires that  notices of  appeal  "be filed  with the          clerk  of the  district court within  30 days  after the  date of          entry of the judgment  or order appealed from."   Compliance with          this  rule is  mandatory and  jurisdictional; while  a court  may          construe  the rule's  strictures  liberally, it  may not  wink at          them.  See  Torres v.  Oakland Scavenger Co.,  487 U.S. 312,  315                 ___  ______     _____________________          (1988); Air Line Pilots Ass'n v. Precision Valley Aviation, Inc.,                  _____________________    _______________________________          26 F.3d 220, 223 (1st Cir. 1994).                    In  this  instance  the   district  court  entered  the          appealable order    the order denying  the defendants' post-trial          motions  for  judgment  n.o.v.     on  January  30,  1995.    The          defendants did not file  their notices of appeal until  August of          that  year.  Without more, Rule 4(a)(1) would bar the maintenance          of these appeals.                    The  appeal  period  denominated by  Rule  4(a)(1)  is,                                        ____________________               4Although punitive damages may  lie against individuals in a          section 1983 action,  see, e.g., Keenan v.  City of Philadelphia,                                ___  ____  ______     ____________________          983 F.2d 459, 469-70 (3d Cir. 1992); Davet v. Maccarone, 973 F.2d                                               _____    _________          22,  27 (1st  Cir.  1992),  they  are  not  available  against  a          municipality.   See City of  Newport v. Fact  Concerts, Inc., 453                          ___ ________________    ____________________          U.S. 247, 271 (1981).                                          9          however, subject to an occasional exception.  One such exception,          added to the Appellate Rules in 1991, provides:                    The district  court, if  it finds (a)  that a                    party entitled  to notice  of the entry  of a                    judgment or order did not receive such notice                    from the clerk or any party within 21 days of                    its  entry and  (b)  that no  party would  be                    prejudiced, may, upon motion filed within 180                    days  of entry  of the  judgment or  order or                    within  7  days of  receipt  of  such notice,                    whichever  is  earlier, reopen  the  time for                    appeal for a period of 14 days from  the date                    of the entry of  the order reopening the time                    for appeal.          Fed. R. App. P. 4(a)(6).  The mention of "notice" in Rule 4(a)(6)          is a reference to Fed. R. Civ. P. 77(d), which provides:                    Immediately  upon the  entry of  an order  or                    judgment the  clerk shall serve  a notice  of                    entry by  mail in the manner  provided for in                    Rule 5 upon  each party who is not in default                    for failure to appear,  and shall make a note                    in the docket of the mailing.   Any party may                    in addition  serve a notice of  such entry in                    the manner provided in Rule 5 for the service                    of papers.   Lack of  notice of the  entry by                    the clerk does not  affect the time to appeal                    or  relieve or authorize the court to relieve                    a party for failure to appeal within the time                    allowed, except  as permitted in Rule 4(a) of                    the Federal Rules of Appellate Procedure.                    These  rules lie  at the  center of  the jurisdictional          jumble  that  confronts us.    On  the defendants'  motions,  the          district court held a hearing and determined that Fed. R. App. P.          4(a)(6) appropriately could be  invoked to excuse the defendants'          seeming tardiness.  The  plaintiff's cross-appeal challenges this          determination.  Because Rule  4(a)(6) is relatively new, we  have          not yet had occasion to construe it.  We do so today, deciding at          the outset that the standard of review which governs a district's                                          10          court's determinations under Rule 4(a)(6) is abuse of discretion.          Accord Nunley  v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir.          ______ ______     ___________________          1995).                    Certain  elements  of  the  Rule  4(a)(6) calculus  are          essentially undisputed:  the  defendants were parties entitled to          notice of the  entry of  the appealable final  order; their  Rule          4(a)(6) motions,  filed on April 10 and 11, 1995, came within 180          days of  the entry of that order; and no party would be subjected          to  cognizable prejudice by the  granting of the  motions.  Thus,          the  decisive  questions  in  this  case  relate  to  whether the          defendants  received notice of the  entry of the  order within 21          days, and if not,  whether they filed their Rule  4(a)(6) motions          within  seven days of the time when they eventually received such          notice.                    Both of these questions  involve an appreciation of the          kind  of notice that Rule  4(a)(6) contemplates.   In terms, Rule          4(a)(6)  advances a unitary concept of notice; its two references          to "such notice" plainly relate back to the phrase "notice of the          entry of a judgment or order."   The problem, exemplified by this          case, is that the rule does not specify whether that  notice must          be written notice or  actual notice.  That problem  defies facile          solutions, and the courts of appeals which have addressed it thus          far have not  achieved consensus.   Compare Avolio  v. County  of                                              _______ ______     __________          Suffolk, 29 F.3d  50, 53  (2d Cir. 1994)  (holding that the  rule          _______          contemplates written notice) with Nunley, 52 F.3d at 794 (holding                                       ____ ______          that actual notice suffices) and Zimmer St. Louis, Inc. v. Zimmer                                           ______________________    ______                                          11          Co.,  32  F.3d 357,  359  (8th  Cir.  1994) (same).    Though  we          ___          acknowledge  that  the  phrase, simpliciter,  is  susceptible  of                                          ___________          multiple  interpretations,  we  believe  that the  references  to          "notice"  in Rule  4(a)(6), taken  in context,  are best  read as          requiring written notice.                    Our starting  point is  our  perception that  Appellate          Rule  4(a)(6) and  Civil Rule 77(d)  must be read  in pari passu.                                                             __ ____ _____          Accord Nunley, 52 F.3d at  795.  The text of Rule  77(d) requires          ______ ______          the clerk  to serve the notice  of entry of an  order or judgment          "by mail."   Because a  mailed notice is  invariably written,  it          seems  logical to conclude that  when reference is  made later in          the  text  to  "lack of  notice  of  the  entry," that  reference          contemplates lack of written notice.                               _______                    We think that further evidence  to the same effect  can          be gleaned from the  scrivenings of the Advisory Committee.   The          Advisory Committee's Notes are entitled to weight in interpreting          federal  rules of practice and procedure.  See Whitehouse v. U.S.                                                     ___ __________    ____          Dist. Ct.  for Dist.  of R.I.,  53 F.3d 1349,  1364-65 (1st  Cir.          _____________________________          1995).  Here, they tell us that Rule 4(a)(6)                    provides a limited opportunity for  relief in                    circumstances where the notice of  entry of a                    judgment or order, required  to be mailed  by                    the  clerk of the  district court pursuant to                    [Rule  77(d)], is  either not  received by  a                    party or is received so late as to impair the                    opportunity  to  file  a  timely   notice  of                    appeal.          Fed.  R.  App.  P.  4(a)(6), Advisory  Committee's  Notes.    The          statement "required to be mailed" refers to "notice of entry of a          judgment or order," again  suggesting that the notice must  be in                                          12          writing.  We believe that when a procedural rule uses the precise          phrase employed by  the Advisory Committee, it  can reasonably be          inferred that the phrase means the same thing in both contexts.                    Policy  concerns  point  us  in  the   same  direction.          Reading  Rule 4(a)(6)  to  require written  notice will  simplify          future  proceedings.   As  the familiar  request  to "put  it  in          writing" suggests, writings are more readily susceptible to proof          than  oral communications.  In particular, the receipt of written          notice (or its  absence) should be more  easily demonstrable than          attempting to discern whether (and, if so, when) a party received          actual  notice.    Such a  scheme  not  only  takes  much of  the          guesswork  out of  the  equation, but  also,  because Rule  77(d)          specifically provides that parties  who do not wish to  rely upon          the  clerk to  transmit the  requisite written  notice may  do so          themselves,  the  scheme  confers  certitude  without  leaving  a          victorious litigant at the mercy of a slipshod clerk.                    To sum up, we  hold that written notice is  required to          trigger  the  relevant  time  period  under  Rule  4(a)(6);  oral          communications or other  forms of actual  notice will not  serve.          We now apply this holding to the facts at hand.                    The district  court found  that the defendants  did not          receive  written notice of the entry of the operative order until          April  7, 1995, when the  plaintiff's counsel sent  them a demand          letter  seeking satisfaction  of the  judgments.  The  court made          this  finding  against  a  backdrop  of   unusual  events.    The          defendants' motions for judgment  n.o.v. were argued on September                                          13          29, 1994.  During that session, an unrecorded sidebar  conference          occurred.   The  court's  comments at  that  conference left  all          counsel  with the  distinct impression  that an  appealable final          judgment would not  enter until the court decided the plaintiff's          pending application for attorneys' fees.  Although the impression          was  mistaken, see Budinich v.  Becton Dickinson &  Co., 486 U.S.                         ___ ________     _______________________          196, 202-03 (1988) (holding that the appeal period commences once          a  final decision on the merits has been entered, irrespective of          any  claim  for attorneys'  fees),  it  proved persistent.    The          plaintiff's lawyer,  no less than defense  counsel, labored under          the  misimpression; he wrote to  the defense team  on February 2,          1995,  stating  in  relevant  part:    "I  received  the  Court's          memorandum  and order on the defendants' motion for J.N.O.V.  The          only  remaining  issue  before  judgment can  be  entered  is the                                  _________________________________          plaintiff's  unopposed  motion  for attorney's  fees."  (Emphasis          supplied).                    Unbeknownst  to  the parties,  however,  the  court had          granted the plaintiff's motion for  attorneys' fees in late 1994.          The  clerk  entered this  order  on the  docket  but, apparently,          neglected to serve  copies of the  order or the  docket entry  on          counsel.   To  complicate matters  further, when  defense counsel          made  inquiries to the clerk in February  and March of 1995 as to          whether  an  order  had  been   entered  disposing  of  the   fee          application, the clerk said that one had not.                    Last  but not least, although all counsel in one way or          another  had  actual   notice  of  the  order  that   denied  the                                          14          defendants'  motions for  judgment  n.o.v. by  February 1,  1995,          cases discussing Rule 4(a)(6)  differentiate between notice of an          order and notice of the  entry of the order, indicating that  the          rule contemplates  the latter.   See  Virella-Nieves v. Briggs  &                                           ___  ______________    _________          Stratton Corp.,  53 F.3d 451,  452-54 (1st  Cir. 1995).   In this          ______________          instance the clerk attempted to furnish such notice, but one copy          of the court's  order was addressed  incorrectly and returned  by          the  Post Office as undeliverable, while another copy, plucked by          a different lawyer from the clerk's office, bore no notation that          it had been entered on the docket.  From this  tangled record the          district  court  concluded  that,  though at  least  one  defense          attorney  received actual  notice of  the entry  of the  order on          February 24, 1995,5  it was not  until April 7,  1995   when  the          plaintiff's  attorney demanded  satisfaction of  the  judgments            that  the  defendants received  a  written  notice sufficient  to          animate Rule 4(a)(6).  They filed their excusatory motions within          seven days of their receipt of this notice.                    Given these facts, and given the confused circumstances          that  contributed to the muddle, the district court did not abuse          its discretion in  finding that the requirements  of Rule 4(a)(6)          had been  met and in  reopening the time  for appeal.   Since the          defendants all filed  their notices of  appeal within the  14-day          period  that began on August  14, 1995, when  Judge Saris entered          her  order reopening the time for doing  so, we conclude that the                                        ____________________               5We note, parenthetically, that  even this notice came after          the 21-day period specified by Rule 4(a)(6) had elapsed.                                          15          appeals are properly before us.          IV.  THE VERDICT FORM          IV.  THE VERDICT FORM                    The  defendants collectively  assert that  the district          court erred in refusing to declare a mistrial when presented with          the  original  verdict  form  and added  impudence  to  injury by          resubmitting the  case for further  deliberation.  We  review the          district court's denial of the defendants' motions for a mistrial          for abuse  of discretion.   See Clemente  v. Carnicon-P.R.  Mgmt.                                      ___ ________     ____________________          Assocs., 52  F.3d 383,  388  (1st Cir.  1995).   We evaluate  the          _______          judge's  related actions,  namely,  her decisions  to reject  the          original  verdict form and to resubmit the matter, under the same          standard of  review.   See Santiago-Negron v.  Castro-Davila, 865                                 ___ _______________     _____________          F.2d 431, 444 (1st Cir. 1989).                    The defendants' argument on this point boils  down to a          claim that the  district court  crafted a verdict  form that  was          structurally flawed; that the  jury responded to it  by returning          two  irreconcilable  findings; and  that, therefore,  Judge Saris          should  have granted the defendants' motions for a mistrial.  But          it  is not enough to  preserve the defendants'  point that, after          the jury  first returned  with the  verdict form,  the defendants          pounced  on the  perceived  inconsistency and  moved to  pass the          case.   Rather, the viability  of this assignment  of error harks          back  to  the  circumstances  surrounding the  emergence  of  the          verdict  form.   Although the  defendants now  say that  the form          tempted potential confusion, they failed to object when the judge          initially submitted it to the jury.  The failure to object to the                                          16          structure of a  verdict form  before the jury  retires, like  the          failure to object  to any  other portion of  the judge's  charge,          constitutes  a waiver.  See Fed. R. Civ.  P. 51; see also Phav v.                                  ___                      ___ ____ ____          Trueblood,  Inc., 915 F.2d 764, 769 (1st Cir. 1990) (holding that          ________________          Rule 51  applies to verdict forms as well as to the trial court's          oral instructions);  Anderson v. Cryovac, Inc., 862 F.2d 910, 918                               ________    _____________          (1st   Cir.  1988)  ("If  a  slip  has  been  made,  the  parties          detrimentally affected must act expeditiously to cure it, not lie          in wait  and ask for another  trial when matters turn  out not to          their liking.").                    We need not probe this point too profoundly, for in all          events  the  judge  handled   the  perceived  incongruity  in  an          agreeable manner.    When  a verdict  appears  to  be  internally          inconsistent, the safest course    in the absence of  irreparable          damage,  and  none appears  here    is  to defer  its acceptance,          consult with  counsel, give  the jury  supplemental instructions,          and recommit the matter for further consideration.  See Hafner v.                                                              ___ ______          Brown, 983  F.2d 570, 575 (4th Cir. 1992) ("If the district judge          _____          concludes that an inconsistent verdict reflects jury confusion or          uncertainty, he or she has the duty to clarify the  law governing          the case and resubmit the verdict for a jury decision."); Poduska                                                                    _______          v. Ward, 895 F.2d 854, 856 (1st Cir. 1990) (deeming it "precisely             ____          correct" for a judge, faced with an unclear and inconsistent jury          verdict, to provide  supplemental instructions and then  recommit          the matter  to the jury).   This is exactly the  course of action          that  Judge Saris  followed.   The  actual instructions  that she                                          17          gave,  first orally  and then  in  a written  response to  a jury          question,  were   unimpugnable.6     We  discern  no   error,  no          unfairness,  and no  abuse  of discretion  either in  the judge's          handling  of matters related to the verdict form or in her denial          of the defendants' motions for a mistrial.          V.  MUNICIPAL LIABILITY          V.  MUNICIPAL LIABILITY                    We  turn  now to  the  City's  principal assignment  of          error.   Clearly, a municipality may be held liable under section          1983   for  the  passage  of  a  single  ordinance  or  piece  of          legislation.   See, e.g., Pembaur v. City of Cincinnati, 475 U.S.                         ___  ____  _______    __________________          469, 480 (1986).  Although municipal liability cannot be based on          the doctrine of respondeat superior in this context,  see Monell,                                                                ___ ______          436 U.S. at 691, such liability can flow from a  finding that the          city  itself  has  acted  through  an  official decision  of  its          legislative body.7  Hence,  from a purely theoretical standpoint,          nothing prevents a determination  that, if the ordinance  here in          question    which was passed by a majority vote of the Fall River          City Council and approved by the mayor   violates the plaintiff's          First Amendment rights, then the City is liable for the violation                                        ____________________               6Neither  Bogan nor  Roderick  voiced any  objection to  the          court's supplemental instructions.   The lone objection lodged by          the City  challenged the  judge's interchanging of  "real reason"          and  "true reason"  during  her supplemental  instructions.   The          judge understandably dismissed this  objection as nitpicking, and          the City (wisely, in our view) has not resuscitated it on appeal.               7Such  a  decision  can  be manifested  either  through  the          enactment  of an ordinance or through the adoption of a municipal          policy.  See, e.g., Pembaur, 475 U.S. at 479-81; Monell, 436 U.S.                   ___  ____  _______                      ______          at 690.  Thus, adoption-of-policy cases are pertinent to a survey          of enactment-of-ordinance cases.                                          18          under section 1983.                    We pause at this juncture.  We think it is important to          note  early  on  that  the  defendants  have  not challenged  the          premise, or the district judge's confirmatory ruling, that Scott-          Harris'  speech was protected by the First Amendment in the sense          needed  to give  rise to  a claim  under section  1983.   Yet the          Supreme Court has laid down important restrictions:  to give rise          to a section 1983 action, a  plaintiff's speech must have been on          a  matter  of public  concern,  and  her interest  in  expressing          herself  must  not  be  outweighed  by  the  state's  interest as          employer  in promoting  the efficiency  of the  services that  it          performs.  See Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994);                     ___ ______    _________          Connick v. Myers, 461 U.S. 138, 142 (1983).          _______    _____                    Given the Supreme Court's application of these tests in          Connick, 461 U.S. at  147-54, one could argue that  Scott-Harris'          _______          comments about, and efforts  to discipline, a particular employee          do not qualify as  speech on a matter  of public concern.   We do          not pursue  this point because it  has not been argued  to us; it          has, therefore, effectively been waived.  We mention it, however,          because we do not intend our opinion to be taken as deciding that          the facts here asserted comprise protected speech.                    We note, moreover, that  there is another unusual twist          to this  case.   In  most similar  instances, the  constitutional          deprivation is apparent on  the face of the  ordinance or in  the          text  of the  challenged municipal  policy, thus  eliminating any          need for  a  predicate inquiry  into  the motives  of  individual                                          19          legislators.  See,  e.g., City  of Oklahoma City  v. Tuttle,  471                        ___   ____  ______________________     ______          U.S.  808, 822-23 (1985); City of Newport v. Fact Concerts, Inc.,                                    _______________    ___________________          453  U.S. 247, 251-53 (1981);  Bateson v. Geisse,  857 F.2d 1300,                                         _______    ______          1303  (9th Cir. 1988); Little v. City  of N. Miami, 805 F.2d 962,                                 ______    _________________          967  (11th  Cir.  1986);  18A  James  Perkowitz-Solheim  et  al.,          McQuillin Mun. Corp.   53.173 (3d ed. 1993).   Here, by contrast,          ____________________          the City enacted an ordinance which, on its face, is  benign.  In          cases  like this one, implicating the exercise of First Amendment          rights, liability under section 1983 can attach to the passage of          a  facially  benign law  only if  one  peers beneath  the textual          facade and concludes  that the  legislative body acted  out of  a          constitutionally  impermissible  motive.    This  is  a  delicate          business,   but   this  court   previously   has  sanctioned   an          investigation into the motives that  underlay the enactment of  a          facially neutral ordinance for the purpose of assessing liability          under section 1983, see  Acevedo-Cordero v. Cordero-Santiago, 958                              ___  _______________    ________________          F.2d 20, 23 (1st Cir. 1992), and we are bound by that precedent.                    Still, the accumulated jurisprudence  leaves perplexing          problems of proof  unanswered.  The  baseline principle is  well-          settled:  legislators' bad motives may be proven by either direct          or  circumstantial evidence.  See, e.g., United States v. City of                                        ___  ____  _____________    _______          Birmingham, 727 F.2d  560, 564-65 (6th  Cir.), cert. denied,  469          __________                                     _____ ______          U.S. 821 (1984); Smith v. Town of Clarkton, 682 F.2d 1055,  1064-                           _____    ________________          65 (4th Cir. 1982).  But this principle speaks to the qualitative                                                                ___________          nature of the evidence that is gathered; it  does not address the          quantitative  question.  That question is best framed as follows:          ____________                                          20          How  many  municipal  legislators  (or,  put  another  way,  what          percentage  of  the  legislative  body)  must  be  spurred  by  a          constitutionally  impermissible  motive  before the  municipality          itself  may be held liable under section 1983 for the adoption of          a  facially neutral  policy or  ordinance?   This is  a difficult          question, and the case law proves a fickle companion.                    Some courts appear to have held that the plaintiff must          adduce evidence sufficient to show that a majority of the members          of the legislative body  acted from a constitutionally proscribed          motive before this kind of municipal liability can attach.  Often          this  position is implied  rather than  specifically articulated.          See generally United  States v.  City of Yonkers,  856 F.2d  444,          ___ _________ ______________     _______________          457-58   (2d  Cir.  1988).    But  some  courts  have  been  more          forthcoming.  In Church v. City of Huntsville, 30 F.3d 1332 (11th                           ______    __________________          Cir. 1994), a group of homeless persons alleged that the city had          adopted  a  policy of  excluding them  from  the community.   The          plaintiffs  based  their section  1983  action  on  the acts  and          statements  of one individual on a five-member city council.  The          court  observed that  a single  council member  did not  have any          authority either  to establish  municipal policy  or to  bind the          municipality.  See  id. at  1343-44.  It  therefore examined  the                         ___  ___          evidence against the  other four councilors, finding that two had          opposed the alleged policy and that two had expressed no views on          the  subject.    The  court  refused  to  draw  an  inference  of          discriminatory intent  from the  silence of council  members, see                                                                        ___          id. at 1344 n.5, and rejected the plaintiffs' claim.          ___                                          21                    Other courts,  acting principally in the  areas of race          and  gender discrimination,  have  not required  evidence of  the          motives of  a majority of  the legislative  body before  imposing          liability on the municipality under section 1983.  Representative          of this line of cases is United States v. City of Birmingham, 538                                   _____________    __________________          F. Supp.  819 (E.D. Mich.  1982), aff'd, 727  F.2d 560  (6th Cir.                                            _____          1984).   There,  the  district  court  held  a  city  liable  for          violations  of the Fair Housing  Act, 42 U.S.C.     3604(a), 3617          (1994),  based  on  the   actions  of  a  seven-member  municipal          commission  which  had  blocked  the  construction  of  racially-          integrated housing by  a four-to-three vote.   While opponents of          the  project  had  attributed  their  position  to  a  series  of          articulated nondiscriminatory rationales, the court looked behind          their avowals and  ruled, based  on a combination  of direct  and          circumstantial  evidence,  that  racial  considerations  actually          propelled the commission's action.  538  F. Supp. at 826-27.  The          court  concluded that  the  city could  be  held liable  for  the          commissioners'  animus even  though  there was  no  proof of  the          motives  of all four commissioners who voted to kill the project;          it  was enough,  the court  suggested, if  "racial considerations          were a motivating factor among a significant percentage  of those          who were responsible  for the city's [rejection of the project]."          Id. at 828.  Explicating this construct, the court indicated that          ___          a "significant percentage" would not have to encompass the entire          four-person majority.  See  id. at 828-29.  Noting  evidence that                                 ___  ___          racial  concerns motivated "at least  two of the  four members of                                          22          the majority faction," the court declared that "[t]hat fact alone          may be  sufficient to attribute a  racially discriminatory intent          to the City."  Id. at 829.8                         ___                    Two   Massachusetts   cases   also  premise   municipal          liability on  evidence  concerning less  than a  majority of  the          relevant legislative body.  In Southern Worcester County Regional                                         __________________________________          Voc.  Sch. Dist. v. Labor Relations Comm'n, 436 N.E.2d 380 (Mass.          ________________    ______________________          1982),  the Supreme Judicial  Court (SJC) upheld  a lower court's          finding that  the plaintiffs had  been discharged based  on their          union activity.   The SJC declared  that "it is not  fatal to the          [plaintiffs']  claims that only three of the seven members of the          school committee made anti-union  statements."  Id. at 385.   The                                                          ___          court concluded that the  three members' statements, coupled with          evidence  of bias on the  part of the  school superintendent (who          had  no vote), sufficed to support the finding of liability.  See                                                                        ___          id.  Similarly, in Northeast Metro. Regional Voc. Sch. Dist. Sch.          ___                ______________________________________________          Comm.  v. MCAD,  575  N.E.2d  77  (Mass.  App.  1991),  a  gender          _____     ____          discrimination case involving a refusal  to hire, the court noted          that direct  evidence of bias had  been exhibited by only  two of          the twelve members of the school committee.  See id. at 81.   The                                                       ___ ___                                        ____________________               8This rationale finds succor in United States v. Yonkers Bd.                                               _____________    ___________          of  Educ., 837 F.2d 1181,  1221-23 (2d Cir.  1987), cert. denied,          _________                                           _____ ______          486 U.S. 1055 (1988), in which the court of appeals held the city          liable  for Fair  Housing  Act  violations.   Though  the  city's          liability derived from the  actions of a 12-member city  council,          the court focused  almost exclusively on statements  by the mayor          (who  had only one vote on the council) and race-based opposition          expressed by  a few other councilors.   The court did not premise          its  decision on a requirement that a majority of the council had          acted out of impermissible motives.                                          23          court upheld a finding of liability based on this evidence and on          statements by  three other  committee members that  the plaintiff          had  been a  victim of  discrimination and/or  had been  the best          qualified candidate for the job.  See id. at 81-82.                                            ___ ___                    The precedent in this area is uncertain, and persuasive          arguments can  be made on both sides.  On the one hand, because a          municipal ordinance can become law only by a majority vote of the          city  council, there is  a certain incongruity  in allowing fewer          than a majority  of the council  members to subject  the city  to          liability  under  section  1983.    On  the  other  hand, because          discriminatory animus  is insidious and  a clever pretext  can be          hard to  unmask, the law sometimes  constructs procedural devices          to ease a victim's burden of proof.  See, e.g., McDonnell-Douglas                                               ___  ____  _________________          Corp.  v.  Green,  411  U.S.  792,  802-05  (1973)  (establishing          _____      _____          presumptions for  use in  Title VII  cases);  Mesnick v.  General                                                        _______     _______          Elec.  Co.,  950  F.2d  816,  823-24 (1st  Cir.  1991)  (adopting          __________          comparable format for  age discrimination  cases), cert.  denied,                                                             _____  ______          504 U.S. 985 (1992).  Where,  as here, a plaintiff alleges that a          city's  councilors connived  to victimize  her by  the pretextual          passage  of  a  facially  neutral ordinance,  it  may  be  overly          mechanistic  to  hold  her  to  strict  proof  of the  subjective          intentions of a numerical majority of council members.                    Cognizant of  these competing  concerns, we  eschew for          the  time  being  a bright-line  rule.    Rather,  we assume  for          argument's  sake  (but  do not  decide)  that  in a  sufficiently          compelling  case the  requirement  that the  plaintiff prove  bad                                          24          motive  on  the  part  of  a  majority  of  the  members  of  the          legislative body might  be relaxed and a  proxy accepted instead.          Nevertheless,  any such  relaxation  would be  contingent on  the          plaintiff mustering evidence of  both (a) bad motive on  the part          of  at  least  a  significant   bloc  of  legislators,  and   (b)          circumstances suggesting  the probable complicity of  others.  By          way of illustration, evidence of procedural anomalies, acquiesced          in by  a majority of  the legislative  body, may support  such an          inference.   See, e.g., City  of Birmingham, 727  F.2d at 564-65;                       ___  ____  ___________________          Town of Clarkton, 682 F.2d at  1066-67.  By like token,  evidence          ________________          indicating  that  the  legislators  bowed  to   an  impermissible          community animus, most commonly manifested by an unusual level of          constituent pressure, may  warrant such an inference.  See, e.g.,                                                                 ___  ____          United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1221-25 (2d          _____________    ____________________          Cir.  1987),   cert.  denied,  486  U.S.  1055  (1988);  City  of                         _____  ______                             ________          Birmingham, 538 F. Supp. at 824-27.  The key is  likelihood:  Has          __________          the  plaintiff  proffered  evidence,  direct  or  circumstantial,          which, when reasonable  inferences are drawn in  her favor, makes          it  appear  more  probable  (i.e.,  more  likely  than  not) that          discrimination was  the real  reason underlying the  enactment of          the ordinance or the adoption of the policy?                    The  facts of this case  do not require  that we refine          the  point  to any  further extent.    Scott-Harris has  not only          failed to prove that a majority of the councilors possessed a bad          motive, but she also has failed  to furnish enough circumstantial          evidence  to ground  a  finding that,  more  likely than  not,  a                                          25          discriminatory animus propelled the City Council's action.                    The evidence, viewed most hospitably to the plaintiff,9          reveals  that six of  the nine councilors  voted in  favor of the          challenged ordinance and two opposed it.  The plaintiff presented          sufficient  evidence from which a  jury could deduce  that one of          these  six, Roderick, along with Mayor  Bogan (who did not have a          vote), acted  out of a bad motive.10  The plaintiff also produced          some glancing  evidence apropos  of Councilor Mitchell:   he  and          Roderick  were   friends;  Roderick   spoke  to  him   about  the          Biltcliffe/Scott-Harris  imbroglio;  and  Biltcliffe called  him,          presumably to protest her  treatment.  The jury could  have found          from other evidence in  the case that Mitchell probably  voted in          favor of the  ordinance (although the  record does not  eliminate          the possibility that he abstained).  Even though Mitchell did not          testify and  the substance of his conversations with Roderick and          Biltcliffe are unknown, we assume arguendo that a jury reasonably          could infer that Mitchell, too, acted for a proscribed reason.                    The  remaining  gaps  in  the  plaintiff's   proof  are                                        ____________________               9On the  question of  evidentiary sufficiency, we  review de          novo  the denial of the City's motion for judgment n.o.v.  Gibson                                                                     ______          v. City of Cranston, 37  F.3d 731, 735 (1st  Cir. 1994).  We  are             ________________          bound by  the  same decisional  standards  that bound  the  court          below:    we must evaluate the  record without regard to  witness          credibility, testimonial  conflicts, or unevenness  in the weight          of  the evidence,  see  id., and  we  must affirm  unless,  after                             ___  ___          surveying the evidence and  the inferences derivable therefrom in          the light most flattering  to the plaintiff, we determine  that a          rational  factfinder could  not  have resolved  liability in  her          favor, see Veranda Beach Club, 936 F.2d at 1375.                 ___ __________________               10We discuss the evidence against Roderick and Bogan in Part          VI(C), infra.                 _____                                          26          considerably more difficult to overlook.  None of the other seven          city council  members uttered any untoward  statements or engaged          in  any suspicious  actions.   The  "we  must slash  the  budget"          pretext  had a ring of plausibility, and from aught that appears,          none of these  seven individuals had any way of  knowing that the          position-elimination ordinance  would not  save  the City  sorely          needed funds.   Nor is  there strong  circumstantial evidence  of          complicity;  indeed, the record tells us almost nothing about the          inclinations of the silent seven.11  Moreover, the plaintiff made          virtually no effort to adduce such evidence.  She neither deposed          any of the seven nor called them as witnesses at trial.  She  did          not  attempt to show  that any of  the other four  councilors who          voted  for the ordinance had any basis  for doubting the truth of          the  party line  ("we  must  slash  the  budget")  or  that  they          possessed ties to Roderick  or Bogan, or that they  were beholden          to  Biltcliffe, or that they  were hostile to  Scott-Harris.  The          stark fact is that the motivations of the council members   other          than  Roderick  and Mitchell     did  not receive  individualized          scrutiny.   By  any  responsible standard,  this sparse  evidence          falls  short of  providing a  proper predicate  for a  finding of          municipal liability.                    We  do  not think  it is  a  coincidence that  in every                                        ____________________               11The  record does  show that  one council member  who voted          against the  ordinance, John  Medeiros, called the  plaintiff and          asked  why  "they" were  trying  to  get rid  of  her.   But  the          plaintiff provided no  insight into  who "they" might  be and  no          evidence  that "they" comprised a majority, or even a significant          bloc, of the City Council.                                          27          analogous case  in which municipal liability has  been imposed on          evidence implicating less than a  majority of a legislative body,          substantial  circumstantial  evidence   existed  from  which  the          requisite discriminatory animus  could be inferred.   In City  of                                                                   ________          Birmingham, the evidence showed that the race-based opposition of          __________          constituents  to integrated  housing was  widespread, pronounced,          and  vociferously  articulated.     After  several  members   who          supported the  racially integrated  development were  ousted from          office, the commission responded to this unremitting pressure and          took  the  unprecedented step  of  submitting the  proposal  to a          community referendum.  538 F. Supp. at 826-29.  In Yonkers Bd. of                                                             ______________          Educ.,  the  requisite inference  was  supported  by evidence  of          _____          massive constituent agitation  as well as by "departures from the          normal  procedural  sequence"  in   respect  to  the   challenged          proposal.  837 F.2d at 1221.                     In this case no such evidence exists.  Nothing suggests          the  City Council  deviated from  its  standard protocol  when it          received and enacted the ordinance that abolished the plaintiff's          job.  Nothing suggests that the  vote took place in an atmosphere          permeated   by  widespread   constituent  pressure.12     Putting          speculation and surmise to one side, it simply cannot be inferred          that more than  two of the council  members who voted to  abolish                                        ____________________               12The plaintiff's assertion  that the publication of  front-          page  articles about  her  plight in  the  local newspaper  shows          constituent  coercion  will not  wash.   There  is  a significant          difference between heightened public  interest   an environmental          phenomenon  with  which  legislatures  grapple  constantly    and          pervasive constituent pressure.                                          28          the  plaintiff's  position did  so  to punish  her  for protected          speech.    We  cannot rest  municipal  liability  on  so frail  a          foundation.   Because no reasonable  jury could find  against the          City  on the proof presented, Fall River's motion for judgment as          a matter of law should have been granted.          VI.  INDIVIDUAL LIABILITY          VI.  INDIVIDUAL LIABILITY                    Roderick and Bogan advance a different constellation of          arguments in support  of their  motions for judgment  n.o.v.   We          treat these arguments sequentially.                              A.  Legislative Immunity.                              A.  Legislative Immunity.                                  ____________________                    The individual  defendants  concentrate most  of  their          fire  on  the  district  court's  rendition  of  the doctrine  of          legislative immunity.  While municipalities do not enjoy immunity          from  suit under section  1983, see Leatherman  v. Tarrant County                                          ___ __________     ______________          Narcotics  Intell.  &  Coord. Unit,  507  U.S.  163,  166 (1993),          __________________________________          lawmakers have absolute immunity from civil liability for damages          arising  out  of  their  performance  of  legitimate  legislative          activities.  See Tenney  v. Brandhove, 341 U.S. 367,  376 (1951);                       ___ ______     _________          National  Ass'n of Social Workers v. Harwood, 69 F.3d 622, 629-30          _________________________________    _______          (1st Cir. 1995).   This immunity derives from federal  common law          and,  under  existing  Supreme Court  precedents,  embraces state          lawmakers,  see Tenney, 341 U.S.  at 376, and regional officials,                      ___ ______          see  Lake Country Estates,  Inc. v. Tahoe  Regional Plan. Agency,          ___  ___________________________    ____________________________          440 U.S. 391, 405 (1979).13                                        ____________________               13Members  of  Congress  enjoy   a  parallel  immunity  from          liability for their  legislative acts under the Speech  or Debate          Clause, U.S. Const. art. I,   6, cl. 1.  See Doe v. McMillan, 412                                                   ___ ___    ________                                          29                    The Court  has yet to decide  whether local legislators          are  protected by  this  strain of  absolute  immunity, see  Lake                                                                  ___  ____          Country  Estates, 440 U.S. at 404  n.26 (reserving the question),          ________________          but the lower federal courts, including this court, have shown no          reticence in holding that the doctrine of legislative immunity is          available to  such persons.  See, e.g., Acevedo-Cordero, 958 F.2d                                       ___  ____  _______________          at 22-23; Aitchison  v. Raffiani,  708 F.2d 96,  98-100 (3d  Cir.                    _________     ________          1983);  Reed v. Village of  Shorewood, 704 F.2d  943, 952-53 (7th                  ____    _____________________          Cir.  1983);  Bruce v.  Riddle, 631  F.2d  272, 274-80  (4th Cir.                        _____     ______          1980).  We reaffirm today that the shield of legislative immunity          lies within reach of city officials.                    This  holding  does  not  end our  inquiry.    Although          legislative   immunity   is  absolute   within   certain  limits,          legislators  are not immune with respect to all actions that they          take.   The dividing line  is drawn along  a functional axis that          distinguishes between  legislative and administrative acts.   The          former are protected,  the latter are not.   See Acevedo-Cordero,                                                       ___ _______________          958F.2d at 23. We have useda pair of testsfor separating the two:                    The first  test focuses on the  nature of the                    facts used  to reach the given  decision.  If                    the underlying facts on which the decision is                    based  are  "legislative   facts,"  such   as                    "generalizations concerning a policy or state                    of   affairs,"   then    the   decision    is                    legislative.    If  the  facts  used  in  the                    decision  making are  more specific,  such as                    those that relate  to particular  individuals                    or   situations,   then   the   decision   is                    administrative.   The second test  focuses on                    "the particularity of the impact of the state                    of   action."     If   the   action  involves                                        ____________________          U.S. 306, 324 (1973); Harwood, 69 F.3d at 629.                                _______                                          30                    establishment  of a  general  policy,  it  is                    legislative;  if  the  action "single[s]  out                    specifiable  individuals  and affect[s]  them                    differently     from    others,"     it    is                    administrative.          Cutting v. Muzzey, 724  F.2d 259, 261 (1st Cir.  1984) (citations          _______    ______          omitted).                    When   the  relevant   facts  are   uncontroverted  and          sufficiently   developed,  the   question  whether   an   act  is          "administrative"  as opposed  to "legislative"  is a  question of          law, and  it may be  decided by the  judge on a  pretrial motion.          See Acevedo-Cordero, 958 F.2d at 23.  When the material facts are          ___ _______________          genuinely disputed, however, the  question is properly treated as          a question of  fact, and  its disposition must  await the  trial.          See id.          ___ ___                    In some  ways, Acevedo-Cordero  and this case  are fair                                   _______________          congeners.    There,  as   here,  the  defendants  asserted  that          budgetary  woes  sparked  the  enactment  of  a  facially  benign          position-elimination ordinance.  There, as here, the plaintiff(s)          countered  with  a  charge  that,  in  fact,  a  constitutionally          proscribed reason lurked  beneath the surface.   There, as  here,          conflicted  evidence as  to the  defendants' true  motives raised          genuine issues of material fact.  Acevedo-Cordero teaches that in                                            _______________          such  situations the issue of  immunity must be  reserved for the          trial.  See id.                  ___ ___                    Judge   Saris   faithfully  applied   these  teachings,          refusing   to  reward  premature   attempts  by   the  individual          defendants  to dismiss  the action  on  the basis  of legislative                                          31          immunity.  At  the end of  the trial, the  jury made two  crucial          findings.  First, it found that the defendants' stated reason for          enacting the position-elimination  ordinance was  not their  real          reason.   Second, it found that  the plaintiff's constitutionally          sheltered  speech was a  substantial or motivating  factor in the          actions which  Roderick and  Bogan took vis- -vis  the ordinance.          These  findings reflect  the  jury's belief  that the  individual          defendants  relied on facts relating to a particular individual            Scott-Harris    in  the  decisionmaking calculus  and devised  an          ordinance that targeted Scott-Harris and  treated her differently          from other managers employed by the City.                    We think that in  passing on the individual defendants'          post-trial motions,  the judge in effect  accepted these findings          and concluded  that  the position-elimination  ordinance  (which,          after  all, constituted  no  more in  this  case than  the  means          employed by Scott-Harris' antagonists to fire her) constituted an          administrative rather than  a legislative  act.  As  long as  the          quantum of proof  suffices   a matter to which  we shall return            both this conclusion and its natural corollary (that Roderick and          Bogan  are  not  shielded  from liability  by  operation  of  the          doctrine of  legislative immunity) rest on  solid legal ground.14          See, e.g., Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27-          ___  ____  _________________    ________________                                        ____________________               14The  defendants  do  not   assert  a  claim  of  qualified          immunity,  nor would  such  a claim  be fruitful  here.   It  was          clearly established at  the time of  the plaintiff's ouster  that          public  officials  could  not constitutionally  punish  a  public          employee for protected speech.  See Mt. Healthy, 429 U.S. at 283-                                          ___ ___________          84.                                          32          28 (1st Cir.  1994), cert. denied, 115 S.  Ct. 1098 (1995); Vacca                               _____ ______                           _____          v.  Barletta, 933 F.2d 31, 33 (1st  Cir.), cert. denied, 502 U.S.              ________                               _____ ______          866 (1991).                                    B.  Causation.                                    B.  Causation.                                        _________                    Roderick  has another string  to her  bow.   She posits          that, as a matter of law, her actions in respect to the position-          elimination ordinance cannot be deemed the proximate cause of the          harm to  Scott-Harris.15  She bases  this claim on the  fact that          her vote alone was impuissant:  five votes would ensure enactment          of the ordinance, but  six legislators voted for passage.   Thus,          not only was she unable to get  the ordinance enacted by herself,          but it also would have been passed without her cooperation.  This          thesis  has  a patina  of  plausibility,  but  it  misstates  the          question before us (and, consequently, we take no view of it).                    According to accepted lore, section 1983 actions are to          be  considered   against  the  background  of   traditional  tort          principles.   See  Monroe  v. Pape,  365  U.S. 167,  187  (1961);                        ___  ______     ____          Wagenmann v. Adams,  829 F.2d 196, 212 (1st Cir.  1987).  In tort          _________    _____          law,  determinations  relating   to  causation  are   customarily          "question[s] of  fact for the jury, to  be solved by the exercise                                        ____________________               15Bogan does not press a comparable claim, probably because,          as  he concedes in his brief, the plaintiff's ouster required two          distinct steps:  (1)  the mayor's proposal of the  ordinance, and          (2) a favorable vote by a majority of the city council.  Although          both  events were  necessary, Bogan's  actions could  properly be          considered a proximate cause of the ultimate harm.  See Wagenmann                                                              ___ _________          v.  Adams, 829 F.2d  196, 212 (1st  Cir. 1987)  (upholding a jury              _____          finding that  a police officer's characterization  of plaintiff's          conduct  was a proximate cause  of excessive bail,  even though a          judicial officer was responsible for the ultimate bail decision).                                          33          of good common sense in the consideration of the evidence of each          particular case."   Springer v.  Seamen, 821 F.2d  871, 876  (1st                              ________     ______          Cir.   1987)   (citations  omitted).      Phrased   another  way,          "[a]pplication of  the legal cause standard  to the circumstances          of a particular case  is a function ordinarily performed  by, and          peculiarly within the competence  of, the factfinder."  Swift  v.                                                                  _____          United States, 866 F.2d 507, 510 (1st Cir. 1989).          _____________                    In  this  instance,  the  judge  charged  the  jury  as          follows:                    The defendant's actions  are the legal  cause                    of the  plaintiff's injuries if [they were] a                    substantial  factor  in  bringing  about  the                    harm. . . .  It does not matter whether other                    concurrent   causes    contributed   to   the                    plaintiff's injuries so long as you find that                    the  defendant's  actions were  a substantial                    factor  in producing  them.   If  defendant's                    actions were a substantial factor,  then they                    were  the legal  cause  or what  we call  the                    proximate cause.          Because no one objected  to these instructions, they,  whether or          not entirely accurate, are the  law of the case.16  See  Moore v.                                                              ___  _____          Murphy, 47 F.3d 8, 11  (1st Cir. 1995); Milone v.  Moceri Family,          ______                                  ______     ______________          Inc., 847 F.2d 35, 38-39 (1st Cir. 1988).          ____                    We believe that the jury, applying this standard to the          facts before it, could  reasonably have concluded that Roderick's          overall  conduct  was  a  substantial  factor  in  depriving  the                                        ____________________               16We do not mean to suggest that the particular instructions          given  here are  problematic.   To the  contrary, they  appear at          first  blush to comport with  precedent.  See  Furtado v. Bishop,                                                    ___  _______    ______          604  F.2d 80,  89 (1st  Cir. 1979)  (discussing causation  in the          context of section 1983), cert. denied, 444 U.S. 1035 (1980); see                                    _____ ______                        ___          also O'Brien  v. Papa Gino's  of Am., Inc.,  780 F.2d 1067,  1072          ____ _______     _________________________          (1st Cir. 1986).                                          34          plaintiff of her constitutional rights.  After all, Roderick  was          not just another face in the crowd:  she served as vice-president          of the City  Council and  chaired its ordinance  committee; as  a          result, the jury easily could find that she played a  role in the          passage of the ordinance that was disproportionate  to her single          vote.  In order to gain approval, the ordinance had to go through          the five-member ordinance committee.   Roderick established  this          committee's agenda, and  its favorable report on March  5 cleared          the way for the ordinance's enactment.17                    Although the plaintiff's evidence in this regard is not          robust, it  suffices in the context  of the record as  a whole to          render the issue of causation susceptible to differing evaluative          determinations.    Thus,  the  district  judge  did  not  err  in          submitting the causation question  to the jury.  And  because the          jury  reasonably could have adopted one such view of the evidence          and  concluded that Roderick made a successful effort to have the          plaintiff ousted, the liability finding must stand.                           C.  Sufficiency of the Evidence.                           C.  Sufficiency of the Evidence.                               ___________________________                    Roderick and Bogan, in chorus, assert that insufficient          evidence  exists from which a  jury lawfully could  find that the                                        ____________________               17The  fact that  other causes  (i.e., the  votes  of fellow          council  members) concurrently  contributed  to the  harm neither          insulates Roderick's  conduct nor  undercuts the  jury's verdict.          See Ricketts  v. City  of Columbia,  36 F.3d 775,  779 (8th  Cir.          ___ ________     _________________          1994),  cert. denied, 115 S. Ct. 1838 (1995); Wagenmann, 829 F.2d                  _____ ______                          _________          at 211-13; see generally Marshall v. Perez Arzuaga, 828 F.2d 845,                     ___ _________ ________    _____________          848 (1st Cir. 1987) (stating  that a "defendant is liable if  his          negligence is a proximate  cause of the damage although  it might          not be the  sole proximate  cause of such  damage") (emphasis  in                 ___  ____          original; citations omitted), cert. denied, 484 U.S. 1065 (1988).                                        _____ ______                                          35          desire to punish  the plaintiff  for her protected  speech was  a          substantial or  motivating factor  behind the actions  which they          took.  This assertion is easily refuted.                    In challenging a jury verdict on sufficiency grounds, a          defendant  labors under  a  heavy  burden.    See  supra  note  9                                                        ___  _____          (elucidating  applicable   legal  standard  and   citing  cases).          Because  the evidence in this  case is capable  of supporting two          sets  of divergent  inferences, Roderick  and Bogan  cannot carry          their burden.                    We choose not  to tarry.  It  suffices to say  that, on          this pleochroic record, the jury could have found that Biltcliffe          used political connections to  hinder the investigation of Scott-          Harris' accusations  by, inter  alia, banishing the  accuser, and                                   _____  ____          that  Roderick and Bogan  were the instruments  of her vengeance.          Roderick bore an animosity toward Scott-Harris based on a history          of friction between the two women, and the jury permissibly could          have  found that when  Biltcliffe complained to  her about Scott-          Harris'  charges, she  spoke to  Connors; that  when Scott-Harris          persisted,  Roderick  agreed  to  push  the  position-elimination          ordinance despite  the fact that Scott-Harris  was performing her          duties well; that the asserted budgetary basis for  the ordinance          was a sham;18 and that Roderick knew as much.                    As to Bogan, much of the same evidence is relevant.  In                                        ____________________               18On this point, the evidence permitted the jury to conclude          that,   rather  than   saving  money,   the  position-elimination          ordinance actually  cost more because it  necessitated the hiring          of three new administrators to manage agencies that the plaintiff          had been supervising single-handed.                                          36          addition, the jury could  have found that he knew  Biltcliffe and          resented Scott-Harris' outspoken efforts  to cashier her; that he          abetted the  effort to save Biltcliffe's  sinecure by terminating          Scott-Harris (and no other  manager) for a bogus reason;  that he          proposed   the  position-elimination   ordinance  to   that  end,          notwithstanding  Connors' opposition;  that he happily  signed it          into  law;  that when  he learned  of Scott-Harris'  intention to          accept a  different municipal  position at a  reduced salary,  he          pulled the rug from under  her by increasing the responsibilities          of  the job and shifting her to  a dingy office; that when Scott-          Harris  tried  to  retract   her  rejection  of  this  diminished          position, he foiled her efforts to  do so; and that in all events          Bogan   showed  his   true  colors  by   shortening  Biltcliffe's          suspension.                    To  be sure,  this  set of  conclusions  does not  flow          ineluctably from  the evidence,  but it represents  a permissible          construction  of  the  record.   Consequently,  the  evidence  is          adequate to support the verdicts against both Roderick and Bogan.          VII.  ATTORNEYS' FEES          VII.  ATTORNEYS' FEES                    Our journey is not yet ended.  The last leg requires us          to  revisit  the  lower  court's  order  awarding  the  plaintiff          $83,179.70 in counsel fees  and associated expenses against three          defendants  (Roderick,   Bogan,  and   the  City),   jointly  and          severally.                    In a section 1983  action a court, "in  its discretion,          may  allow the prevailing party . . . a reasonable attorney's fee                                          37          as part  of the costs."   42 U.S.C.    1988 (1994).   Despite its          seemingly precatory  tone, we  have interpreted this  language to          mean that  "a prevailing  plaintiff is presumptively  entitled to          fee-shifting"  in  a   section  1983  case.    Casa  Marie  Hogar                                                         __________________          Geriatrico,  Inc. v. Rivera-Santos,  38 F.3d  615, 618  (1st Cir.          _________________    _____________          1994);  accord Foster v. Mydas  Assocs., Inc., 943  F.2d 139, 145                  ______ ______    ____________________          (1st  Cir.   1991)  (stating  that  a   prevailing  civil  rights          plaintiff's  entitlement to a fee award "comes almost as a matter          of course").  For this purpose, a party prevails if  she succeeds          on a significant issue in the litigation and thereby achieves all          or some meaningful part  of the benefit that she  envisioned when          she brought suit.   See Hensley v.  Eckerhart, 461 U.S. 424,  433                              ___ _______     _________          (1983); Pearson  v. Fair, 980 F.2d  37, 43 (1st Cir.  1992).  The                  _______     ____          converse,  of course, is equally  true:  if  a plaintiff's claims          against  a  particular defendant  come to  naught,  she is  not a          prevailing  party and  is not  entitled to  reap a  harvest under          section 1988.   See Nunez-Soto  v. Alvarado, 956  F.2d 1,  3 (1st                          ___ __________     ________          Cir. 1992).  Moreover, if a plaintiff succeeds in the trial court          but the  judgment she obtains  is reversed  on appeal, she  is no          longer entitled  to a  fee  award.   See Globe  Newspaper Co.  v.                                               ___ ____________________          Beacon Hill Arch. Comm'n, 100 F.3d 175, 195 (1st Cir. 1996).          ________________________                    Applying  these standards  to the  case at  bar,  it is          evident  that the matter  of attorneys'  fees must  be rethought.          Because the plaintiff prevailed below on claims against all three          defendants,  none of them opposed  her application for  fees.  In          their  appeals, however, they preserved the issue of whether (and                                          38          to what extent)  the fee  award could withstand  the reversal  on          appeal of all  or some  part of the  judgments.  This  precaution          serves  the City in good  stead; because the  judgment against it          must be reversed, see supra Part V, the fee award against it must                            ___ _____          be nullified.                    This  leaves a nagging question as to the status of the          award  vis- -vis  Roderick  and Bogan.    On  the  one hand,  the          judgments against  those two defendants remain  intact, see supra                                                                  ___ _____          Part  VI,  and,  thus,  as  to  them,  the  plaintiff  remains  a          prevailing  party presumptively entitled to reasonable attorneys'          fees.  On the  other hand, the record before  us is opaque as  to          the  proper  extent  of  that  entitlement.    This   opacity  is          particularly  pronounced because we do not know how much (if any)          of the work  performed by  the plaintiff's lawyer  in respect  to          Scott-Harris' unsuccessful claims against  the City paved the way          for  her successful  claims  against  the individual  defendants.          This is  an important datum  because a court  may allow  fees for          time  spent  on unsuccessful  claims  only  if those  claims  are          sufficiently linked to successful claims.  See Lipsett v. Blanco,                                                     ___ _______    ______          975 F.2d  934, 940-41 (1st Cir. 1992);  Aubin v. Fudala, 782 F.2d                                                  _____    ______          287, 290-92 (1st Cir. 1986).                    We need go no further.  From what we have  said to this          juncture,  it is apparent  that the matter  of fees must  be more          fully  explored   and it  is preferable for  obvious reasons that          the trial court, as opposed to this court, undertake what amounts          to an archeological dig  into counsel's time sheets and  make the                                          39          necessary factual  determinations.   We therefore vacate  the fee          award against the City  and remand so that the district court can          reconsider the amount of  fees and costs that should  properly be          assessed against the remaining defendants.                    The plaintiff also has  prevailed on appeal against two          of  the defendants, and she  is entitled to  a reasonable counsel          fee for  the work  that yielded  this victory.   Though we  often          entertain such fee applications directly, we have sometimes opted          to have  the district  court  handle them.   See,  e.g., Rodi  v.                                                       ___   ____  ____          Ventetuolo, 941 F.2d  22, 31 (1st Cir.  1991); see also  1st Cir.          __________                                     ___ ____          Loc. R. 39.2 (permitting  use of this alternative).   Because the          district  court must  in any  event reopen  its inquiry  into the          overall  question of fees, we deem it expedient for the plaintiff          to file her application for  fees on appeal with that court,  and          for  that court  to make  the supplementary award.   We  leave to          Judge Saris the procedure to be  followed on remand in respect to          both   reexamination   of   the   original  award   and   initial          consideration  of the supplementary  award for  services rendered          and expenses (apart from ordinary costs) incurred on appeal.                    The  plaintiff's cross-appeal  (No. 95-2100)  is denied                    The  plaintiff's cross-appeal  (No. 95-2100)  is denied                    _______________________________________________________          and the district  court's order permitting  the reopening of  the          and the district  court's order permitting  the reopening of  the          _________________________________________________________________          appeal period is affirmed.  The judgment against the City of Fall          appeal period is affirmed.  The judgment against the City of Fall          _________________________   _____________________________________          River is reversed, and the fee  award against it is vacated.  The          River is reversed, and the fee  award against it is vacated.  The          ___________________________________________________________   ___          judgments against  the remaining defendants are  affirmed and the          judgments against  the remaining defendants are  affirmed and the          _________________________________________________________________          case is remanded to the district court for further proceedings in          case is remanded to the district court for further proceedings in          _________________________________________________________________                                          40          respect to  both the previous fee award  against these defendants          respect to  both the previous fee award  against these defendants          _________________________________________________________________          and the question of fees on appeal.  No costs are awarded in Nos.          and the question of fees on appeal.  No costs are awarded in Nos.          __________________________________   ____________________________          95-1950 and 95-2100; costs  are awarded to the plaintiff  in Nos.          95-1950 and 95-2100; costs  are awarded to the plaintiff  in Nos.          _________________________________________________________________          95-1951 and 95-1952.          95-1951 and 95-1952.          ___________________                                          41
