Iris D. Kuilan-Nevarez v. Secretary of the Department of Veterans Affairs

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2437
IRIS D. KUILAN-NEVAREZ,
Plaintiff, Appellant,
v.
SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
David Ramos-Pagan on brief for appellant.
H.S. Garcia, United States Attorney, Peter D. Keisler,
Assistant Attorney General, Marleigh D. Dover and Charles W.
Scarborough, on brief for appellee.
May 6, 2005

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Per Curiam. Appellant, Iris D. Kuilan-Nevarez, appeals
from a jury verdict in favor of appellee, the Department of
Veterans Affairs, on her claim that appellee retaliated against her
for filing prior complaints of disability discrimination.
Appellant's sole argument is that there was insufficient evidence
to support the jury verdict.
Appellant's appeal founders due to appellant's failure to
file a motion for judgment as a matter of law or a motion for a new
trial. It is well-settled that in order to challenge the
sufficiency of the evidence on appeal a party must first have
presented the claim to the district court, either by moving for
judgment as a matter of law before the case is submitted to the
jury and renewing that motion after the verdict, Fed. R. Civ. P.
50(a), (b), or by moving for a new trial pursuant to Fed. R. Civ.
P. 59. See, e.g., Hammond v. T.J. Little & Co., 82 F.3d 1166, 1171
(1st Cir. 1996). In the absence of the filing of such motions, we
retain only "a modicum of residual discretion" to inquire whether
the record reflects an absolute dearth of evidentiary support for
the jury's verdict. Faigin v. Kelly, 184 F.3d 67, 76 (1st Cir.
1999); La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 691 (1st
Cir. 1991). This authority to review the record must be exercised
sparingly, however, and we choose not to exercise it here. See
Udemba v. Nicoli, 237 F.3d 8, 14 (1st Cir. 2001); Correa v. Hosp.
San Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995). Appellant (who,

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after all, had the burden of proof) provides no signposts
indicating that there might be an absolute dearth of evidentiary
support for the jury's verdict; her brief is conclusory and
contains only a few citations to the record.
Accordingly, the judgment is affirmed.

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