United States Court of Appeals For the First Circuit

No. 17-1653

ELBA I. FALTO DE ROMÁN,

Plaintiff, Appellant,

v.

MUNICIPAL GOVERNMENT OF MAYAGÜEZ; JOSE GUILLERMO RODRIGUEZ, as Mayor of the City of Mayagüez,

Defendants, Appellees,

ELENA MARTINEZ, as Member of the Board of Directors of the Head- Start Program, Mayagüez; LUIS OLIVERAS, as Member of the Board of Directors of the Head-Start Program, Mayagüez; LUIS OJEDA, as Member of the Board of Directors of the Head-Start Program, Mayagüez; CARLOS GONZALEZ, as Member of the Board of Directors of the Head-Start Program, Mayagüez; EFRAIN DE JESUS; LISAIRA DIAZ-NADAL; LUIS BALAGUER; ELIDA CARABALLO; FRANCISCO FIGUEROA; LOURDES FELICIANO; NITZIA LAMBERTY; LUIS RAMOS; RICHARD ROE, as Member of the Council of Policy Rules, Mayagüez; JOHN DOE, as Member of the Council of Policy Rules, Mayagüez; JANE DOE, as Member of the Board of Directors of the Head-Start Program, Mayagüez; JANE DOE, as Member of the Council of Policy Rules, Mayagüez; RICHARD ROE, as Member of the Board of Directors of the Head-Start Program, Mayagüez; JOHN DOE, as Member of the Board of Directors of the Head-Start Program, Mayagüez; JANE DOE, as Member of the Council of Policy Rules, Mayagüez,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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

Kayatta and Howard, Circuit Judges.*

Israel Roldan-Gonzalez for appellant. Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz, Eliezer A. Aldarondo-López, and Aldarondo & López-Bras were on brief, for appellees. Carlos Lugo-Fiol for appellee Jose Guillermo Rodriguez in his personal capacity.

August 22, 2022

*Judge Torruella heard argument in this appeal, but he did not participate in the decision. HOWARD, Circuit Judge. In this appeal from post-trial

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

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

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

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

Falto De Román only nominal damages against the Municipal

Government of Mayagüez and against its mayor Jose Guillermo

Rodriguez, after she was terminated from her position without

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

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

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

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

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

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

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

I.

In 1981, Congress enacted and the President signed the

Head Start Act. Pub. L. No. 97–35,

(codified as

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

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

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

which provide early childhood education and support services to

children from low-income families.

. Every

three years, Head Start programs undergo a review by HHS to assess - 3 - their compliance with statutory and regulatory requirements.

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

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

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

Historically, a Head Start program's grant would

automatically renew every five years. But Congress amended the

Act in 2007 to instruct HHS to promulgate regulations requiring

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

110–134,

; see

(c)(6)-(7), (d).

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

designation renewal system.

.

The Municipal Government of Mayagüez, Puerto Rico, has

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

became the Program Director, which made her responsible for

administering the Program and contracting with vendors, including

for the leasing of buildings. Additional Program management, as

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

contribute to the decision-making of the Program, see

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

overseeing the Program and its use of funds, see

§ 9837(a),

(c)(1).

In February 2011, the Board and Policy Council met to

discuss several concerns about the Program under Falto De Román's

- 4 - leadership.1 The Chairman of the Policy Council reported that:

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

irregularly provided educational materials and equipment;

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

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

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

to present proposals to the Policy Council for evaluation and

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

appointments. The Chairman also relayed that Falto De Román had

completely isolated the Board and Policy Council, taken autonomous

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

Council's correspondence. The Secretary of the Policy Council

similarly conveyed that dialogue with Falto De Román was

"completely null."

Thereafter, in March 2011, the Board and Policy Council

asked Falto De Román for various inventory reports pertaining to

purchases of educational and construction materials. Luis

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

the information requested was intended to aid in examining the

issues raised at the February 2011 meeting. Falto De Román

1 This was described in the February 2011 meeting minutes, which were admitted into evidence at trial. - 5 - responded by asking the Board and Policy Council to first explain

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

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

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

Program Director) expressed that Falto De Román's administration

had manipulated information that the Executive Director had

requested, including the number of children who did not meet

Program expectations. She also reported that Falto De Román made

unjustified and "exorbitant expenses and purchases" while most

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

administration had failed to act against a teacher accused of child

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

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

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

fired her in retaliation for including certain information about

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

Additionally, following a December 2010 on-site

monitoring review, HHS reported a deficiency in the Program in

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

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

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

2This was described in meeting minutes from March 7, 2011, which were admitted into evidence at trial. - 6 - observed hazardous outdoor play areas, classrooms without multiple

exits, and children who lacked daily outdoor activities. Most

notably, HHS discovered that the Program had operated one childcare

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

canceled classes nor provided the children with water for drinking

and hygiene. HHS reported eleven other areas of noncompliance

with applicable standards, laws, and regulations.

HHS gave the Program 30 days to correct the deficiency

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

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

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

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

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

She wrote that she had already addressed the findings and discussed

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

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

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

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

Frustrated by this letter, the Board immediately voted

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

decision, and the Board formally recommended that the Mayor dismiss

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

Román ignored or belatedly complied with their requests, refused

to send them draft fiscal budgets, and made illegal appointments - 7 - and layoffs, among other misconduct. The Mayor adopted this

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

stripped the Program of its automatic funding renewal because of

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

lose its automatic renewal.

Falto De Román dismisses the foregoing narrative as

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

retaliation for an entirely unrelated matter. According to Falto

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

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

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

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

Román told him that she had disclosed his impropriety and would

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

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

dismiss her.

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

Policy Council for, among other things, violating her Fourteenth

Amendment due process rights by terminating her without a hearing.

The Mayor and Municipality conceded that Falto de Román did not

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

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

3 See Falto de Roman v. Oliveras,

(1st Cir. 2016). - 8 - claims against the Board and Policy Council and held a trial on

the narrow issue of whether Falto de Román was entitled to

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

receiving a hearing.

The jury found the defendants not liable for any

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

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

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

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

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

denied the motion, and Falto De Román timely appealed.

II.

On appeal, Falto De Román claims that the district court

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

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

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

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

A.

Falto De Román may not challenge the district court's

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

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

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

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

ex rel. United States v. Mass. Gen. Hosp.,

(1st - 9 - Cir. 2015) (quoting Fed. R. Civ. P. 50(a)(2)). If the district

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

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

But

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

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

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

of that issue on appeal."

(internal quotation marks omitted)

(quoting Muñoz v. Sociedad Española de Auxilio Mutuo y

Beneficiencia de P.R.,

(1st Cir. 2012)). Here,

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

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

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

Maestro,

(1st Cir. 2021).

Nevertheless, Falto De Román contends that her arguments

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

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

be necessary in all circumstances," Jones,

, the

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

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

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

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

the defendants had failed 'to put forth sufficient admissible

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

defendants' favor.'"

at 489-90 (quoting Casillas–Díaz v. - 10 - Palau,

(1st Cir. 2006). Falto De Román therefore

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

B.

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

preserved. See Jennings v. Jones,

(1st Cir.

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

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

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

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

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

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

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

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

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

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

discretion, disturbing only verdicts that are "against the

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

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

(1st Cir. 2005) (quoting Acevedo-Garcia v. Monroig,

, 565 (1st Cir. 2003)), abrogated on other grounds by

Pearson v. Callahan,

(2009). "Our review is

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

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

trial,'" and we therefore "take 'both the facts and the reasonable - 11 - inferences therefrom in the light most hospitable to the jury's

verdict.'" Mejías-Aguayo v. Doreste-Rodriguez,

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

Poy v. Boutselis,

(1st Cir. 2003))." See BB

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

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

Careful review of the record shows that the verdict did

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

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

to demonstrate damages "caused exclusively by the denial of a pre-

termination hearing," meaning "damages that flow naturally from

the deprivation of the constitutionally protected right to due

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

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

not argue otherwise.

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

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

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

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

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

4 The parties did not object to the jury instructions, which "[o]n their face . . . are not patently wrong." Milone v. Moceri Family, Inc.,

(1st Cir. 1988). They therefore have become "the law of the case."

; see also Muñiz v. Rovira,

(1st Cir. 2004). - 12 - "insubordination," "failure to follow instructions" and provide

required information, and "the lack of communication" between

Falto de Román and the governing bodies. And appellees presented

ample evidence that these reasons did in fact drive the Policy

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

to contrary evidence indicating that she did provide requested

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

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

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

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

competing evidence surrounding her termination does not allow us

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

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

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

v. Cushman & Wakefield, Inc.,

(1st Cir. 2019)

(quoting Gutierrez-Rodriguez v. Cartagena,

(1st

Cir. 1989)).

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

Mayor] was recklessly and callously indifferent to [Falto de

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

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

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

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

could . . . not have concluded that a punitive damages award was - 13 - not warranted in this case," given that she was deprived of a

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

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

considerable evidence that the Policy Council and Board expressed

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

resulting in an independent recommendation of dismissal that the

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

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

decline to exercise its discretion to award punitive damages.

Whitfield,

(1st Cir. 2005) (quoting Monroig, 351

F.3d at 565).

In sum, from the foregoing we cannot say that the

district court exceeded the bounds of its discretion in refusing

to disturb the jury verdict.5

III.

Accordingly, the district court's denial of Falto De

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

for a new trial is affirmed.

5 At oral argument before us, Falto De Román argued for the first time that a reasonable jury could not have believed that the Mayor was credible because he admitted that he had not intended to fire Falto De Román. But this is of no consequence, for even if Falto De Román offered such evidence at trial, the Mayor's credibility was for the jury to decide. - 14 -