133 F.3d 92 (1st Cir. 1997), 96-1285, Nieves-Villanueva v. Soto-Rivera

Docket Nº:96-1285.
Citation:133 F.3d 92
Party Name:Carlos J. NIEVES-VILLANUEVA, et al., Plaintiffs, Appellants, v. Jose R. SOTO-RIVERA, Individually and as Mayor of the Municipality of Canovanas, et al., Defendants, Appellees.
Case Date:December 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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133 F.3d 92 (1st Cir. 1997)

Carlos J. NIEVES-VILLANUEVA, et al., Plaintiffs, Appellants,


Jose R. SOTO-RIVERA, Individually and as Mayor of the

Municipality of Canovanas, et al., Defendants, Appellees.

No. 96-1285.

United States Court of Appeals, First Circuit

December 22, 1997

Heard Oct. 9, 1997.

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Carlos A. del Valle Cruz, for Plaintiffs, Appellants.

Miguel Pagan, with whom Pagan & Pagan was on brief, for Defendants, Appellees.

Before STAHL, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Plaintiffs are fifty-one former "transitory" or non-permanent employees of the municipality of Canovanas, Puerto Rico. A jury found against their claims that the incoming New Progressive Party (NPP) administration failed to renew their contracts of employment in various municipal jobs because they were supporters of the prior Popular Democratic Party (PDP) administration and so violated their rights under the First Amendment. 1

The important question raised by this case is whether the district court committed error in admitting the testimony of an expert witness. The witness testified as to what the law required and that her examination of plaintiffs' personnel records led to the conclusion that plaintiffs had been improperly hired or renewed in the first place. Defendants did not testify this was their reason at the time of their decision not to renew plaintiffs' contracts. Although such expert testimony should not have been permitted, we consider any alleged error in light of the evidence as a whole, and particularly in light of the judge's instructions to the jury. In the circumstances of this case, we consider the alleged errors harmless and affirm the jury verdicts.


Plaintiffs sued, inter alios, 2 Jose Soto-Rivera ("Soto") and the Municipality of Canovanas under 42 U.S.C. § 1983, alleging that they had been dismissed due to their political beliefs and in violation of their due process rights. The complaint sought reinstatement,

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injunctive relief, compensatory and punitive damages, and attorney's fees.

On defendants' motion for summary judgment, the district court dismissed plaintiffs' due process claims, noting that, under First Circuit precedent and Puerto Rico law, transitory employees generally do not have a property interest in continued employment beyond their yearly terms of appointment. See Caro v. Aponte-Roque, 878 F.2d 1, 4-5 (1st Cir.1989); see also Melendez v. Municipio de Arroyo, 96 J.T.S. Case No. 68, at p. 1077 (P.R. Sup.Ct. May 15, 1996) (reaffirming that, as a matter of Puerto Rico law, transitory employees generally have no "legitimate expectation" to a renewal of their contracts); Departamento de Recursos Naturales v. Correa, 118 D.P.R. 689, 697 (1987) (same). 3

Before trial, defendants retained Blanca Santiago as an expert in governmental personnel matters to examine the plaintiffs' personnel records. Santiago's report concluded that plaintiffs' initial appointments and, in some cases, renewal appointments were contrary to Puerto Rico municipal law, and that the previous administration had employed a "subterfuge" to renew the plaintiffs' appointments and to evade a prohibition on making personnel decisions within two months of a general election. The report also opined that plaintiffs did not have "a legitimate expectation of retaining employment." Finally, the report concluded that, under the law of Puerto Rico, "the Municipality of Canovanas could not continue extending said transitory appointments."

Upon receiving Santiago's report, plaintiffs made a motion in limine to exclude Santiago's testimony. Plaintiffs' principal objection was that the expert witness's opinion concerning the propriety of plaintiffs' appointments was not relevant to liability. Defendants did not maintain that Soto did not renew plaintiffs' appointments due to irregularities in how they were appointed. The district court denied plaintiffs' motion.


We state the facts as the jury could have found them, in the context of the evidence as a whole, with particular emphasis on the evidence allegedly admitted in error.

Plaintiffs said they were affiliated with the PDP, one of Puerto Rico's major political parties. In 1992, Soto was elected Mayor of Canovanas as the candidate of the NPP, the main rival of the PDP. Soto was the first NPP candidate elected as Mayor of Canovanas in several decades.

Plaintiffs had been appointed by the prior PDP mayor, Esteban Melendez-Rivera, to various municipal jobs as transitory employees. Those jobs included manual labor in the Public Works Department, janitorial work in municipal offices, clerical work, and other lower level jobs with minimal salaries. Under Puerto Rico's Autonomous Municipalities Act, 21 L.P.R.A. § 4554, transitory employees may be appointed for a limited term, generally not to exceed one year. Although plaintiffs, unlike other civil servants in Puerto Rico, had no formal tenure in their jobs following the expiration of their contracts, many had been reappointed for several one-year terms as a matter of course. Other plaintiffs were in their first annual term of employment.

On January 15, 1993, three days after taking office as Mayor of Canovanas, Soto informed most of the plaintiffs that their positions as transitory employees had expired and that he would not renew their appointments. The remaining plaintiffs' appointments were temporarily extended, but eventually their appointments expired as well.

Plaintiffs testified that they campaigned for Esteban Melendez-Rivera, the PDP candidate, in the 1992 mayoral election. Plaintiffs testified that they had engaged in various PDP political activities on behalf of

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Melendez, including attending political meetings or taking part in the campaign rallies known as caravanas ("caravans") that are typical of mayoral campaigning in Puerto Rico. Many of them testified that Soto solicited their support, and, when they said they would support the incumbent PDP mayor instead, Soto threatened to leave them without employment after the election. Many plaintiffs also testified that they observed, after their non-renewals, NPP members performing the duties of the jobs they had performed as transitory employees.

In support of their First Amendment claims, plaintiffs put in evidence their personnel files, arguing that there was nothing in them that would indicate poor performance. Plaintiffs also presented an expert witness in personnel administration to bolster their claims of political discrimination. 4

Defendants' position was that Soto had not considered plaintiffs' political affiliation in his decision to allow their contracts to expire. They presented three witnesses: Mayor Soto, Vice-Mayor Miguel Jimenez-Carrion ("Jimenez"), and Blanca Santiago, their expert witness on government personnel administration. Soto categorically denied the plaintiffs' allegations that he had threatened their jobs if they supported the incumbent. He noted that he had retained or hired PDP members to municipal jobs. He testified that he had allowed plaintiffs' contracts to expire because their services were no longer needed. Jimenez gave essentially the same version of events. Neither testified that they had not renewed the contracts because plaintiffs' appointments had been irregular.

Defendants' Expert

Defendants' expert witness, Blanca Santiago, testified that the plaintiffs' personnel records demonstrated that, in many cases, their appointments were contrary to Puerto Rico law. In particular, Santiago testified that many employees had been on the payroll in excess of one year, sometimes without any documented reappointment, and opined that this violated the Autonomous Municipalities Act, which provides that the appointment of "[t]ransitory employees shall not exceed one (1) year...." 21 L.P.R.A. § 4554(c). Santiago also testified that many of the plaintiffs had been illegally appointed within two months of a general election, in violation of a prophylactic prohibition on government personnel decisions commonly known as the "electoral ban." See 21 L.P.R.A. § 4564; 3 L.P.R.A. § 1337. Santiago testified further that, in some cases, the personnel records had been manipulated in order to make it appear that plaintiffs' appointments were not within the electoral ban period.

Defense counsel then questioned Santiago to elicit testimony to the effect that courts have held that transitory employees do not have a right to the renewal of their contracts. Defense counsel accomplished this objective by reading passages from court decisions holding that transitory employees in Puerto Rico have no reasonable or legitimate expectation of continued renewal of their contracts that would entitle them to administrative due process protections before allowing their contracts to expire, and then asking Santiago to comment. This was done although the due process claims had been dismissed.

Santiago testified that, under court decisions, "[o]nce [a transitory employee's] appointment ends the transitory employee ... doesn't have any ... other right, regardless of the fact that his appointment has been extended for a period of time that we may call 'excessively long.' " Plaintiffs' counsel objected to this testimony on the ground that it misstated the law. That objection was overruled.

Soon afterwards, defense counsel continued questioning Santiago on the legal status of transitory employees:

Q. I am going to review ... the case of Fermin Orta et al. versus Pedro A. Padilla, Municipality of Trujillio Alto, et al..... I'm going to read to you from the translation of that opinion....

At this point, plaintiffs again objected, noting that the case concerned the due...

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