Miguel A. FIGUEROA-RODRIGUEZ, et al., Plaintiffs, Appellees, v. Jorge L. AQUINO, etc., et al., Defendants, Appellants, 863 F.2d 1037

LEVIN H. CAMPBELL, Chief Judge. The plaintiff, Miguel A. Figueroa-Rodriguez, brought this action pursuant to 42 U.S.C. § 1983 (1982) against defendants, the Puerto Rico Commercial Development Company (“CDC” or “Company”), Jorge L. Aquino, a former Executive Director of the CDC, and Atilano Cordero Badillo, Puerto Rico’s Secretary of Commerce and the President of the CDC. Figueroa claimed, inter alia, that Aquino violated his rights under the First and Fourteenth Amendments when he dismissed Figueroa from his position as Assistant Director of Administration of the CDC. Branti v.

Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). See generally Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986) (en banc). Seeking damages and reinstatement to his former position, Figueroa alleged he was terminated because he is an active member of the Partido Nuevo Progresista (“PNP”) which lost Puerto Rico’s 1984 gubernatorial election to the Partido Popular Democráti-co (“PPD”). Defendants moved for

summary judgment both on the merits of plaintiff’s claim under current legal standards and on the issue of whether Aquino was shielded from damages liability by the doctrine of qualified immunity. The district court denied this motion. The case was tried to a jury, and at the conclusion of Figueroa’s case Aquino moved for a directed verdict, again claiming the protection of qualified immunity. The district court denied this motion. The jury rendered a verdict for Figueroa, awarding him $25,000 in compensatory damages.

In the judgment thereafter entered, the district court not only awarded this sum to Figueroa against Aquino but also ordered the CDC and its current Executive Director to reinstate Figueroa to his former position, and ordered them and Aquino to reimburse Figueroa for back pay. Aquino moved for judgment notwithstanding the verdict, asking the district court to reconsider its denial of qualified immunity in light of this court’s recent decision in Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987). Defendants also asked the court under Fed.R. Civ.P. 59(

e) to amend its judgment, arguing that the CDC is immune from the award of back pay under the Eleventh Amendment and, in the alternative, that the back pay award should be reduced by Figueroa’s interim earnings. The district court denied both motions without giving reasons. Defendants now appeal from the denial of their post-trial motions. We conclude that Aquino was entitled to qualified immunity and hence strike the $25,000 in compensatory damages. We also remand to the district court for further proceedings regarding the award of back pay. I. QUALIFIED IMMUNITY The following facts are not in dispute.

Figueroa was appointed as the Assistant Director of Administration of the CDC in 1977. He occupied that position until January 1985 when he was fired by defendant Aquino. Figueroa is an active member of the PNP, and his political affiliation was a well-known fact in the Company. After eight consecutive years in power the PNP lost the general elections to the PPD in November 1984. The new Secretary of Commerce, Atilano Cordero, appointed Aquino, with the consent of the Governor of Puerto Rico, to the position of Executive Director of the CDC. Aquino is a member of the PPD.

Shortly after assuming the position of Executive Director in January 1985 Aquino fired Figueroa and appointed a member of the PPD to replace him. It is undisputed that Aquino fired Figueroa because of the latter’s political affiliation. At trial, the only real issue regarding the merits of Figueroa’s claim to have been unconstitutionally discharged was whether party affiliation was an appropriate requirement for the effective performance of the position of Assistant Director of Administration. See Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95.

The jury, in arriving at a general verdict for plaintiff, necessarily found that, under the law current at the time of trial, party affiliation was not an appropriate requirement for this position. This appeal is not from the jury’s determination of the merits of Figueroa’s substantive claim — in particular, its implied conclusion that party affiliation was not an appropriate consideration for his position. Rather, the issue before us is whether the court below erred in denying Aquino’s claim that he enjoyed qualified immunity from damages.

While the former would relate to whether Figueroa was protected from patronage dismissal under present law as construed by the court, the latter examines whether the law at the time of Figueroa’s dismissal was clearly established that he enjoyed such protection. We have recently discussed this critical distinction: We emphasize at the outset ... that in deciding this qualified immunity issue, we do not resolve close questions of fact or law related to the merits of the plaintiffs claim in light of the law as it exists today.

The applicable standards, as derived from the general rule enunciated in Mendez-Palou, reflect the state of the law in early 1985, when [PPD]-appointed officials actually implemented the employment decisions that have resulted in the flood of “patronage dismissal” cases from Puerto Rico. Being particularized reflections of the general state of the law at the time, they are useful only for the narrow purpose of determining what were not clearly “protected” governmental positions.

In short, our task in disposing of the qualified immunity question is to ascertain “what a reasonable person would have known as to the state of the law” at the time of the alleged unlawful acts, “not what the actual answer is” in the particular case. Rodriguez-Burgos v. Electric Energy Authority, 853 F.2d 31, 34 (1st Cir.1988) (citations omitted) (defendant entitled to

summary judgment on qualified immunity from damages but not to

summary judgment on merits of plaintiff’s claims for injunctive relief). See also Goyco de Maldonado v. Rivera, 849 F.2d 683, 686 (1st Cir.1988) (distinguishing between standard applied to review of preliminary injunction, qualified immunity, and merits). By January 1985 it had, of course, been clearly established in decisions of the Supreme Court that a state employee could not be removed for partisan political reasons from a job as to which party affiliation was not an appropriate requirement for its effective performance. Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95.

But the question of what government jobs appropriately included the ingredient of political affiliation was at that time a matter of considerable uncertainty, as the case law in this circuit since then well demonstrates. The crux of the difficulty lay in determining those upper level management positions that a newly elected governor must constitutionally be allowed the option of filling with like-minded colleagues if meaning is to be given to the electoral mandate.

To hold that party affiliation was an inappropriate criterion for most all of Puerto Rico’s executive level positions, as our dissenting colleague Judge Torruella construes Elrod and Branti to mean, would force a new chief executive to govern through a bureaucracy responsive to officials appointed by a political rival — often a rival whom the voters have just rejected at the polls.

Numerous decisions of this court, beginning in 1985 after the events here in question, have sought to trace the difficult line that divides executive positions where party affiliation is an appropriate criterion from the lesser or specialist offices where party affiliation has no constitutionally cognizable role to play. The question here is thus whether it was objectively clear in January 1985, before the appearance of any of this court’s precedent in the recent flood of Puerto Rico political firing cases, that Figueroa’s Assistant Director position was one to which political affiliation lacked a valid relation.

For us to determine this, our above precedent requires that we look, first, at the extent to which the CDC was involved in politically sensitive activities and, second, at the extent to which Figueroa’s position could influence those activities. See Mendez-Palou, 813 F.2d at 1260-63; Rodriguez-Burgos, 853 F.2d at 35; Goyco de Maldonado, 849 F.2d at 684-85. While the qualified immunity inquiry is ultimately a question of law, see Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985); DeAbadia v.

Izquierdo Mora, 792 F.2d 1187, 1191 (1st Cir.1986), it may also necessitate determining certain of the essential facts. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The underlying facts that inform the qualified immunity inquiry in a case like this concern “the nature of the job responsibilities relative to the government agency’s undertakings that might be subject to partisan political disputes.” Rodriguez-Burgos, 853 F.2d at 35.

The material evidence on this was fully developed here at trial, and while there were some facts in dispute, we do not think the resolution of these one way or the other would have any effect on Aquino’s right to qualified immunity. We believe that under any version of the evidence Aquino was entitled, as a matter of law, to prevail on his claim of qualified immunity. We, therefore, hold that he was entitled to a directed verdict on that issue.

Turning to the first item of the two-part analysis relevant to qualified immunity, it is clear from the undisputed evidence that the CDC was engaged in a “politically sensitive mission.” Mendez-Palou, 813 F.2d at 1260. The company was shown to be a public corporation under the control of the Commerce Department of the Commonwealth of Puerto Rico. P.R.Laws Ann. tit. 23, § 251c (1987). It was created to “promote in a planned and efficient form the integrated development of the commercial sector_”

Section 251b. Its duties include stimulating private enterprise and participating in commercial activities on its own account or with the participation of others, with special emphasis on aiding small and midsize businesses.

Section 251d. It can sue and be sued,

section 251e(d); grant loans,

section 251f; and acquire property by condemnation,

section 251g. Its mandate is politically sensitive since “[ejconomic development ... is one of the most pressing political issues on the island.” Rodriguez-Burgos, 853 F.2d at 35 (Puerto Rico’s Electric Energy Authority involved in politically sensitive activities). The second part of the inquiry also comes out in Aquino’s favor. The evidence at trial demonstrated that the responsibilities inherent in Figueroa’s job would allow him, at least potentially, to influence political matters within the Company.

It was brought out that the CDC, which is basically the corporate arm of the Commonwealth’s Department of Commerce, is presided over by the Secretary of Commerce. The Secretary appoints the Executive Director of the Company subject to the approval of the Governor of Puerto Rico.

The Executive Director in turn appoints his staff, made up of seven assistant directors: 1) Executive Deputy Director, 2) Assistant Director of Administration, 3) Assistant Director of Commercial Facilities, 4) Assistant Director of Budget and Finances, 5) Assistant Director of Comptrolling, 6) Assistant Director of Legal Affairs, and 7) Personnel Director. Figueroa held the position of Assistant Director of Administration, which under Puerto Rico Personnel Law is a noncareer “trust” position (“de confianza”). P.R.Laws Ann. tit. 3, §§ 1349-1351 (1978).

At the time he was fired, Figueroa had the fourth or fifth highest salary at the Company. The list of his duties and responsibilities is attached as an appendix to this opinion. Based on this job description, Figueroa’s inherent duties as Assistant Director of Administration could be said to encompass policymaking, and communicative and confidential tasks that could potentially “have a bearing on the partisan goals and policies” of the CDC. Rodriguez-Burgos, 853 F.2d at 35; Mendez-Palou, 813 F.2d at 1263. It is true that many of Figueroa’s duties were related to the day-to-day administration of the Company.

For instance, he was responsible for supervising the cleaning and maintenance of the CDC’s buildings. But other described responsibilities gave him greater authority that could influence the political mandate of the Company. He could counsel and assist the Executive Director not only in purely administrative matters, but also in sensitive areas such as budget preparation, training and compensation of personnel, and relations with the Company’s personnel.

He could assist in the “formulation of criterias [sic] for the preparation of the norms and procedures handbooks,” draft for his superiors’ signature correspondence to the Company’s employees regarding administrative policies, and represent his superiors regarding administrative matters with outside organizations. As stated, he was one of the highest paid employees in the Company, see Ecker v.

Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982) (relative pay a factor to consider), and his position was classified as one of “trust” or “confidence.” See Rodriguez-Burgos, 853 F.2d at 36 (although not determinative, classification was a factor to consider). These responsibilities show that it was not clearly established in 1985 that Figueroa’s job was purely technical, as it “potentially concerned matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication.” Juarbe-Angueira v.

Arias, 831 F.2d 11, 14 (1st Cir.1987) (emphasis in original). This conclusion is supported by our recent decision in Mendez-Palou, 813 F.2d 1255, holding that defendants there possessed qualified immunity. The plaintiff in Mendez-Palou had been fired from his position as Director of Administration of the Environmental Quality Board. His duties were very similar to the ones Figueroa had.

We held that a person in such a position possesses “top level responsibility for the administration of an agency that could potentially handle matters of partisan political concern with some frequency.” Mendez-Palou, 813 F.2d at 1260. Although plaintiff’s list of duties in that case tended to “stress what might be considered politically neutral ‘administrative’ functions,” id. at 1261, we nonetheless held that in 1985 it was not clearly established that a person performing such an array of functions had a constitutional right protecting him from politically motivated dismissal.

We reach a similar result here, repeating an earlier comment that, “[ajlthough the law seems clear at either end of the El-rod-Branti spectrum, not enough precedent dealing with various upper-level governmental positions in the middle of the spectrum [had] yet emerged [in 1985] to .enable one to easily classify such a position.” DeAbadia, 792 F.2d at 1194 (Campbell, C.J., concurring). See Juarbe-Angueira, 881 F.2d at 16-17 (collecting cases). We have held previously that the “inherent powers” of the office control the qualified immunity determination, not what any individual officeholder actually does.

DeAbadia, 792 F.2d at 1192. In this case, Figueroa’s “inherent powers” are evidenced by an undisputed exhibit received in evidence, the list of duties and responsibilities of the Assistant Director of Administration. The fact that this list may be ambiguous at some points and open to various

interpretations does not detract from Aquino’s qualified immunity claim. See DeAbadia, 792 F.2d at 1193 (“the very fact that there is a reasonable dispute means that, from the standpoint of qualified immunity, the law was not clearly established in plaintiff’s favor”). The focus is on what Figueroa could or potentially could do in his job because “we are attempting to ascertain whether defendants could objectively perceive their demotion of the plaintiff to be clearly unlawful.” Rodriguez-Burgos, 853 F.2d at 36.

Given this focus, Aquino was entitled to qualified immunity because it was not clearly established in January 1985 that political affiliation was not an appropriate requirement for the effective performance of the job of Assistant Director of Administration. Aquino’s “actions could reasonably have been thought consistent with the rights [he is] alleged to have violated.” Anderson, 107 S.Ct. at 3038. Thus he was entitled to a directed verdict on this issue. It follows that the $25,000 in compensatory damages assessed against Aquino must be set aside. II.

THE BACK PAY AWARD In its judgment the district court directed the CDC and its current Executive Director to reinstate Figueroa with back pay at the same salary and with the same fringe benefits that he would otherwise have been entitled to but for the discharge. Moving under Fed.R.Civ.P. 59(

e) to amend this judgment, defendants argued that the back pay award was barred by the Eleventh Amendment, and, in the alternative, that the award of back pay should be reduced by what Figueroa earned from interim jobs he held between his discharge and reinstatement. The district court denied the motion. For reasons stated below, we conclude that the CDC is entitled to immunity under the Eleventh Amendment if it is in fact an alter ego of the state, and remand this case to the district court to determine that issue.

In addition, we find that, even if the CDC is found not to be entitled to immunity, the back pay award should be reduced by Figueroa's interim earnings. A. Eleventh Amendment Immunity Defendants have not pursued their Eleventh Amendment defense to the back pay award on this appeal. However, because this defense calls into question a federal court’s jurisdiction, we are free to address this issue sua sponte, and do so now. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984); Edelman v.

Jordan, 415 U.S. 651, 678, 94 S.Ct. 1847, 1363, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945); Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 32 (1st Cir.1988). See generally C. Wright, A. Miller & E. Cooper, 13 Federal Practice & Procedure § 3524, at 167-171 (1984). The Eleventh Amendment, which deprives the federal courts of power to hear claims for damages against any of the United States, has been held to apply to Puerto Rico. Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir.1983); Ezratty v.

Commonwealth of Puerto Rico, 648 F.2d 770, 776 n. 7 (1st Cir.1981). This court has held previously, in situations similar to this, that the Eleventh Amendment bars an award of back pay against a state or an alter ego of the state. Fernandez v. Chardon, 681 F.2d 42, 59 (1st Cir.1982); Echevarria-Gonzalez, 849 F.2d at 32. Consequently, it must be first determined whether the CDC should be regarded as an alter ego of the state and thus immune from the back pay award.

The factors to be taken into account when determining if an entity is an alter ego of the state are “whether it performs a governmental function, whether it functions with substantial autonomy, to what extent it is financed independently of the state treasury, and if a judgment sought to be entered against the [entity] will be satisfied out of the state treasury.” Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506, 517 (1st Cir.1987).

The record before us lacks the information needed to fully consider these factors and reach a conclusion as to whether the CDC is an alter ego of the Commonwealth of Puerto Rico. Information as to the last two factors is especially skimpy. While the statute governing the CDC, P.R.

Laws Ann. tit. 23, §§ 251-251w (1978), and parts of the trial record indicate that the CDC performs governmental functions and sheds light on the degree of its autonomy, it is not clear to what extent the CDC is financed independently of the state treasury and whether the back pay award will have to be satisfied out of the state treasury. These latter two factors can be important. Compare Culebras Enterprises Corp., 813 F.2d at 517 (conservation and development authority an alter ego of state) with Paul N. Howard Co. v.

Puerto Rico Aqueduct Sewer Authority, 744 F.2d 880, 886 (1st Cir.1984) (doubtful that defendant was alter ego), cert. denied, 469 U.S. 1191, 105 S.Ct. 965, 83 L.Ed.2d 970 (1985). See generally C. Wright, A. Miller & E. Cooper, 13 Federal Practice & Procedure § 3524 (1984). We thus remand this case for the district court to receive evidence and make the necessary findings of fact relative to whether the CDC is an alter ego of the Commonwealth of Puerto Rico.

In making this determination, the district court should examine, in light of the case law and the four factors set forth in Culebras Enterprises Corp., the statutory sections governing the CDC and the evidence presented by the parties. If the district court finds that the CDC is not an alter ego of the Commonwealth, it may reenter the back pay award. If the district court should find that the CDC is an alter ego of the Commonwealth, another possible issue would remain: whether P.R.

Laws Ann. tit. 23, § 251e(d), which grants the CDC the power “to sue and be sued,” comprises a waiver of the Commonwealth’s Eleventh Amendment immunity to suit in federal court. While

section 251e(

d) seems to waive the defense of sovereign immunity in the Commonwealth’s courts, it does not follow from this that Puerto Rico’s legislature intended to waive the Commonwealth’s Eleventh Amendment immunity to suit in federal court. “In deciding whether a state has waived its constitutional protection under the Eleventh Amendment, [a federal court] will find waiver only where stated ‘by the most express language or by such overwhelming implications from the test as [will] leave no room for any other reasonable construction.’ ” Edelman, 415 U.S. at 673, 94 S.Ct. at 1361. See also Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 238-40, 105 S.Ct. 3142, 3145-46, 87 L.Ed. 2d 171 (1985); Culebras Enterprises Corp., 813 F.2d at 517 n. 9; Della Grotta v. Rhode Island, 781 F.2d 343, 346-47 (1st Cir.1986).

In Della Grotta, 781 F.2d at 346-47, even though the language of the Rhode Island statute did not expressly waive Eleventh Amendment immunity, this Court held that Rhode Island had waived such immunity where the Rhode Island Supreme Court, in response to a question certified by a federal district court in another case, had found that a Rhode Island statute “ ‘manifested] ... a legislative intent’ to waive the State’s eleventh amendment immunity to suit in federal court.” Our research has uncovered no ruling by the Supreme Court of Puerto Rico holding that

section 251e(

d) comprises a waiver of Eleventh Amendment immunity. Consequently, if the district court should find on remand that the CDC is an alter ego of the Commonwealth, the inexplicit language of

section 251e(d), standing alone, would not constitute a sufficient basis from which to find a waiver of the Commonwealth’s Eleventh Amendment immunity to suit in federal court. Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61. Atascadero, 473 U.S. 238-40, 105 S.Ct. at 3145-46. However, if the district court felt there was special reason to do so, it could certify the issue to the Supreme Court of Puerto Rico, whose finding of waiver, if made, would be binding under our holding in Della Grotta notwithstanding the statute’s lack of explicit language.

To summarize, if the district court finds that the CDC is not an alter ego of the Commonwealth, it may reenter the back pay award. If instead it finds that the CDC is such an alter ego, it may (but need not) certify to the Supreme Court of Puerto Rico the question of whether

section 251e(

d) comprises a waiver of Eleventh Amendment immunity in this case. If the answer to this question is “yes,” the district court may reenter the back pay award. If the answer is “no,” the CDC is immune from the back pay award. B. Reduction of Back Pay Award by Interim Earnings Even if it is determined after remand that the CDC is not immune from the back pay award, we hold that the award of back pay must be reduced by Figueroa’s interim earnings. Figueroa asks us to follow Torres Cartagena v. Secretary of Education, 94 P.R.R. 660 (1967), which held that an improperly discharged teacher was entitled to back pay without any reduction for interim wages. However, the measure of damages in

section 1983 actions is a matter of federal common law. See Carey v. Piphus, 435 U.S. 247, 257-59, 98 S.Ct. 1042, 1049-50, 55 L.Ed.2d 252 (1987); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-40, 90 S.Ct. 400, 405-06, 24 L.Ed.2d 386 (1969); Furtado v. Bishop, 604 F.2d 80, 97 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980). Looking to federal common law, then, it appears well settled that interim earnings should be set off against back pay awards. See, e.g., Barnes v. Bosley, 828 F.2d 1253, 1258 (8th Cir.1987); Harkless v.

Sweeny Independent School District, 427 F.2d 319, 324 (5th Cir.1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971); Clary v. Irvin, 501 F.Supp. 706, 712 (E.D.Tex.1980); Eckerd v. Indian River School District, 475 F.Supp. 1350, 1365-66 (D.Del.1979). But see Johnson v. Mid States Screw & Bolt Co., 733 F.2d 1535, 1550 (11th Cir.1984). Such a setoff accords with the basic purpose of a

section 1983 damages award: “to compensate persons for injuries caused by the deprivation of constitutional rights_” Carey, 435 U.S. at 254, 98 S.Ct. at 1047. Disallowing a setoff would go beyond compensation by putting plaintiff in a better position than had his rights not been violated.

This is both inappropriate and unnecessary. “To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages.” Carey, 435 U.S. at 256-57, 98 S.Ct. at 1048-49. Such a setoff accords with normal damages principles. See Restatement (Second) of Contracts § 347, comment d (1979). See also Zarcone v. Perry, 572 F.2d 52, 55 (2d Cir.1978) (general principles of damages apply to civil rights action).

Figueroa testified at trial concerning his employment and earnings between his discharge and reinstatement. On remand, if it is found that the CDC is not immune from the back pay award, the district court should determine the amount by which Figueroa's back pay award must be reduced to reflect his interim earnings and reduce the award accordingly. To summarize,

(1) Aquino was entitled to qualified immunity from damages. The damages award of $25,000 assessed against him is vacated. Aquino is also not liable for the back pay award.

(2) Unless the Supreme Court of Puerto Rico finds a waiver of Eleventh Amendment immunity in this case, the CDC is immune from the award of back pay under the Eleventh Amendment if it is found to be an alter ego of the Commonwealth. If the district court determines on remand that the CDC is not such an alter ego, it may reenter the back pay award against the CDC; however, the back pay award must be reduced by Figueroa’s interim earnings.

If the district court instead determines that the CDC is an alter ego of the Commonwealth, it may (but need not) certify to the Supreme Court of Puerto Rico the question of whether there has been a waiver of the Commonwealth’s Eleventh Amendment immunity in this case. If it is found on such a certification that there has been such a waiver, the reduced back pay award may be reentered, otherwise not. Vacated and remanded for further proceedings consistent herewith. APPENDIX DUTIES AND RESPONSIBILITIES 1.

Will assess [sic] the Executive Director through the Executive Subdirector in matters and affairs related to all the administrative areas, in harmony with the Company’s programming policy. 2. In coordination with the Executive Sub-director and the Deputy Director of Finances-Comptroller, shall take

part in matters related to the Company’s systems and operational procedures, assisting in the formulation of criterias [sic] for the preparation of the norms and procedures handbooks. 3. Will assess [sic] the Executive Director, through the Executive Subdirector, in the preparation of projections for human resources, compensation and fringe benefits and, in harmony herewith, will collaborate in the preparation of the Company’s functional budget. 4.

Will plan, coordinate and supervise, with prior approval from the Director and Subdirector, the programming, negotiation and offers of training and instruction of the Company’s human resources in tune with the guidelines of short and long term objectives. 5. Will direct, coordinate and supervise the personnel and the operations, affairs and matters related to the administration of the Company’s personnel affairs, including the administration of fringe benefits. 6.

Will direct, coordinate and supervise the personnel and functions related to the negotiations of purchases or equipment acquisition, supplies and/or services required by the Company. 7. Will provide and/or supervise the provisions of administrative services, which include the services of reproduction of documents, inside and outside messengers, telephone services and the reception and attention to visitors. 8.

Will participate in the coordination of business related to the Building administration on which the Company offices are located, keeping alert to the necessary steps and negotiations so as to maintain the employees’ physical security and the provision of cleaning and maintenance services of the physical plant. 9.

Will direct, coordinate and supervise the personnel and its labors pursuant to the administration of documents, which include the receiving, distribution and the handling of valuables and other correspondence received and originated at this Company and the procedures pursuant to the Central Files which envolve [sic] coding and filing of documents. Will supervise the preparation and execution of the disposal of the Company’s documents, in tune with the applicable regulations. 10.

Will draft for the Executive Director or the Executive Subdirector’s signature the correspondence to be sent to Company officers and employees related to the services abovementioned that would imply the establishment of new administrative policies or modification or reinterpretation of existing ones, and other correspondence, memorandums and documents related to their functions or that they may require. 11.

Will represent the Executive Director and/or the Executive Subdirector, will coordinate and serve as the Company’s contact agent with other organizations and government people and private persons in matters, business and transaction of services confined to the Administration Area. 12. Will perform other functions inherent to the position. . Figueroa’s wife, Olga H. Miranda, was joined in the complaint as a co-plaintiff. On defendants' motion, the district court struck her name from the complaint because she had no individual cause of action against the defendants. .

Aquino also appeals from the denial of his motion for

summary judgment on the basis of qualified immunity. The district court denied this motion not only on the merits but also because it came on the "eve of trial.” However, we need not address the latter issue because we find that Aquino was entitled to a directed verdict because of qualified immunity. We also need not address another issue defendants raise on appeal. In its judgment, the district court ordered defendants to reinstate Figueroa to his former position as defined by his former duties, even though those duties have since been amended pursuant to state law. Defendants, in their Rule 59(

e) motion and on appeal, argue that this order violated the Eleventh Amendment. We do not address this issue because it has become moot: the day after his reinstatement, Figueroa voluntarily resigned. . We express no opinion as to whether or to what extent it may be proper for a jury rather than the court to determine the question of when political affiliation is a proper requirement for a job. That question, especially if the job description is undisputed, obviously carries a significant legal component.

Defendants, however, did not object to the court's reference of the question to the jury nor to the relevant jury instructions. . In his brief, Aquino focuses on the qualified immunity question. The few vague references therein that might possibly be read as challenging the jury’s finding of unconstitutional discharge are insufficient to raise the matter on appeal. . This is unlike some of our other qualified immunity decisions where review has been of a decision on a

summary judgment motion. A defendant who has appropriately pleaded the affirmative defense of qualified immunity may establish his right to immunity at any point in the proceeding, including at trial. . The dissent ignores Mendez-Palou and instead relies on De Choudens v. Government Develop ment Bank, 801 F.2d 5 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1013, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987), in asserting that Aquino is not entitled to qualified immunity.

De Choud-ens, however, is inapplicable to this case because it dealt with the issuance of an interim injunction, not the issue of qualified immunity. See Goyco de Maldonado, 849 F.2d at 686. . The award of back pay was separate from the $25,000 in damages assessed against Aquino personally pursuant to the jury verdict. The district court’s back pay order ran specifically against the CDC itself, its then current Executive Director, and against Aquino "individually and as former executive director of the CDC.” The order should not have run against Aquino.

He cannot be held liable for the back pay award in an official capacity because he no longer works for the CDC. In addition, because Aquino is entitled to qualified immunity, he can under no theory be held liable in his individual capacity for the back pay award, which, in any event, must be paid by or on behalf of the employer by definition. See Bertot v. School District No. 1, 613 F.2d 245, 247 (10th Cir.1979) (en banc) (distinguishing between individual capacity and official capacity in applying qualified immunity).

To say that an "individual capacity" defendant is liable for “back pay” is a misnomer; he may be liable for compensatory damages in the same amount (plaintiffs lost wages), but such liability must first hurdle any applicable immunity defense. We also note that Anderson, 107 S.Ct. at 3040 n. 3, rejected an argument similar to the dissent’s contention that Aquino is not immune from the back pay award because he possibly could be indemnified by the Commonwealth of Puerto Rico. .

Defendants’ failure to raise this issue on appeal does not constitute a waiver of their Eleventh Amendment immunity under the circumstances of this case. Defendants did plead their Eleventh Amendment immunity as an affirmative defense in their answer to the complaint. They also, as previously mentioned, raised the issue in their Rule 59 motion to amend the judgment below, and both parties briefed and argued the issue at this time. A waiver of Eleventh Amendment immunity will not be inferred easily. See Edelman, 415 U.S. at 673, 94 S.Ct. at 1360-61; Della Grotta v. Rhode Island, 781 F.2d 343, 346 (1st Cir.1986).