United States Court of Appeals For the First Circuit

Nos. 05-2235, 05-2293

RUTH HATFIELD-BERMUDEZ,

Plaintiff, Appellant/Cross-Appellee,

v.

JOSÉ ALDANONDO-RIVERA, in his personal capacity and his official capacity as Director for the Program for the Education of Adults; AIDA L. BERRÍOS-GÓMEZ, in her personal capacity and in her official capacity as Director, Caguas Region,

Defendants, Appellees/Cross-Appellants,

CESAR A. REY-HERNANDEZ, in his personal capacity and official capacity as the Secretary of Puerto Rico Department of Education; SANTOS E. MELENDEZ, in his personal capacity and in his official capacity as General Supervisor for the Program for the Education of Adults; ROGELIO CAMPOS, in his personal capacity and in his official capacity for the Program for the Education of Adults; AVELINA RIVERA, in her personal capacity and in her official capacity as General Supervisor for the Program for the Education of Adults, Caguas Region; MARGARITA GONZALEZ, in her personal capacity and in her official capacity as Special Assistant of the Vocational Program, Caguas Region,

Defendants, Appellees.

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

[Hon. Héctor M. Laffitte, U.S. District Judge] [Hon. Gustavo A. Gelpí, U.S. Magistrate Judge]

Before

Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge. Francisco R. González, with whom F.R. González Law Office was on brief, for Ruth Hatfield-Bermudez. Sarah Y. Rosado-Morales, with whom Luis E. Padrón-Rosado and Sánchez Betances, Sifre, Muñoz Noya & Rivera, P.S.C. were on brief, for José Aldanondo-Rivera, Aida L. Berríos-Gomez, Cesar A. Rey Hernandez, Santos E. Melendez, Rogelio Campos, Avelina Rivera, and Margarita Gonzalez.

August 6, 2007 LYNCH, Circuit Judge. A jury awarded Ruth Hatfield-

Bermudez compensatory and punitive damages after defendants José

Aldanondo-Rivera and Aida L. Berríos-Gómez failed to renew

Hatfield's position as head of an adult education night school.

The jury concluded that this non-renewal violated Hatfield's First

Amendment political affiliation rights, as well as her rights under

Article 1802 of the Puerto Rico Civil Code. See

. The magistrate judge, presiding with the consent

of the parties, vacated the political discrimination verdict for

lack of key evidence. The judge also, acting well within his

powers, granted a mistrial on the Article 1802 verdict based on

improper comments by plaintiff's counsel. On reconsideration, the

magistrate judge reversed the grant of the mistrial after deciding

that his curative instructions had been sufficient.

Hatfield appeals the grant of the Rule 50(b) motion on

her political discrimination claim, as well as the earlier

dismissal of a due process claim that she had also brought.

Aldanondo and Berríos appeal the judgment against them on the

Article 1802 claim. We affirm.

I. BACKGROUND & PROCEDURAL HISTORY

A. Dismissal of the Due Process Claim

Hatfield's complaint alleged that she had been working in

her position for eight years under successive one-year contracts.

Hatfield alleged that when her contract was not renewed for the

-3- 2001-2002 school year, the defendants deprived her of a property

right without due process of law.

The defendants moved to dismiss the due process claim on

the basis that Hatfield's own pleadings demonstrated that she had

no property right in her continued employment. In an opinion dated

February 11, 2003, the district court agreed and dismissed the due

process claim.

For reasons unknown, defense counsel apparently believed

the claim was still in the case by the time of trial, and he moved

to dismiss this claim pursuant to Rule 50(a) after the close of the

evidence. The magistrate judge granted the defendants' motion on

the basis that even if the evidence established that Hatfield had

a property right in the renewal of her contract, the defendants

were entitled to qualified immunity because there was sufficient

uncertainty that such a property right existed.

B. The Political Discrimination and Tort Claims: The Evidence at Trial

The discrimination and tort claims were tried before a

jury. We recount the key testimony.

Hatfield's night school operated under the auspices of

the Puerto Rico Department of Education ("PRDE"), and Hatfield had

a long career working for this agency. With the exception of a

four-year stint working in the Caguas regional office, Hatfield's

"day job" since 1980 had been to work as the principal of two

different public schools in Cayey, Puerto Rico. In 1993, Hatfield

-4- took on an additional post as a school director in a night school

for adults. For several years she directed the night program at

the Benigno Fernandez Garcia school. Enrollment surged, and that

program was transferred to the larger Miguel Melendez Muñoz school.

Hatfield continued as director, with her contract being renewed

each year through the 2000-2001 school year.

Hatfield is a member of the New Progressive Party

("NPP"). From 1993 until early 2001, the NPP controlled Puerto

Rico's governorship. After the 2000 elections, the Popular

Democratic Party ("PDP") took power. The new administration

quickly appointed new individuals to trust positions within the

PRDE, including defendant Aldanondo, who was named the Director of

Puerto Rico's Adult Education Program ("AEP"). Hatfield's night

school operated within the AEP.

AEPs are partially funded with federal grant money. See

. In Puerto Rico, the PRDE administers the AEP

and decides which projects should be funded, but it must also

comply with various procedural regulations issued by the federal

government. As a result, the PRDE annually requires night school

directors to fill out detailed funding proposals in order for their

particular programs to continue in operation. The proposals must

discuss the program, the needs of its students, the progress the

program had made, the objectives for the coming year, and a number

of other subjects. These proposals for continuing programs, along

-5- with any proposals for new programs, are then submitted to the PRDE

for approval. See

§§ 461.30-33 (discussing the procedures that

states must use for selecting the recipients of AEP funds).

In the spring of 2001, the new PDP administration

initiated the proposal process for the coming 2001-2002 school

year. Orientations were held in April to advise interested persons

on how to prepare proposals.

Hatfield attended one of these orientations. At that

session, a director asked whether the process for selecting school

directors would be the same as it had been in previous years.

Hatfield testified that Aldanondo answered the question by saying:

"As you well know, there has been a change in administration. I

recommend to you that you go by the regional office, to your

regional director, . . . you go and stroke them." This last

comment, to "go and stroke them," was an in-court translation of

the Spanish phrase "pasarle la mano" -- a phrase that Aldanondo

emphatically disputed using when he later testified. Hatfield

testified that there was a big commotion immediately after

Aldanondo made these comments. School directors "got up, started

speaking out loud, and practically that was the end of the

meeting."

Hatfield prepared a proposal for the 2001-2002 school

year. The cover of the proposal lists Hatfield as the "Provider"

of the proposal, and it lists the "School or Institution" as the

-6- Miguel Melendez Muñoz High School. Another school director, Victor

Ayala, submitted a proposal for the nearby Augustin Fernandez Colon

School. Both proposals were approved, and these approvals were

forwarded to the relevant regional office. These were the only two

proposals submitted within the Cayey school district.

After the proposals had been approved, the PRDE began the

process of hiring staff for the schools, including directors.

Hatfield testified that in prior years, school directors would go

for an interview, at the end of which each would be asked if he or

she wished to continue directing. If the director answered "yes,"

and that director's proposal had been approved, the director would

be given the position. If the director said "no," then the

regional office would consider other candidates for that position.

Hatfield's description of the old hiring process was reinforced by

another witness.

This process changed in 2001. After a proposal was

approved, the director was nevertheless required to compete for the

school for which he had prepared the proposal. Hatfield's

experience confirmed that the policy change was put into effect in

the Caguas region, which encompassed Cayey.

Within that region, the hiring process after June 2001

was headed by the PRDE's Regional Director, defendant Berríos.

Berríos is a member of the PDP, and the hiring for the 2001-2002

school year was the first hiring cycle in which she participated.

-7- She testified that she had looked for documents explaining how the

hiring process had previously operated in the region, and that the

only useful document she found was a 1996 PRDE circular letter.

This letter explained that regional directors had to prepare a list

of interested and qualified candidates, from which the selection

was to be made by a three-person committee. That committee was to

consider the "academic background, experience, participation in

training[,] and disposition of the candidate." Because this letter

provided only limited guidance, Berríos met with her operations

manager, Ramona Nieves, to design procedures for interviewing and

selection. Nieves is the wife of the Mayor of Comerío and a PDP

activist.

Berríos and Nieves devised a point system to rank

candidates, with a maximum of 90 available points. Some 30 points

would be based on a candidate's academic qualifications, experience

within the PRDE generally, and experience teaching adults. The

remaining 60 points would be based on how the committee evaluated

the candidate's response to one written and one oral question, with

30 points allocated to each question. The two questions were open-

ended and did not have clearly correct answers. After the

interviewing committee assigned points to each candidate, it would

rank the candidates by point totals. Berríos would then go down

the list, in order, offering director positions.

-8- Berríos was not part of the committee conducting the

interviews. The three members were Avelina Rivera, Rogelio Campos,

and Margarita Gonzalez. Rivera represented the central office and

was placed on the committee by Aldanondo. Campos had been selected

for the committee by the prior Regional Director before that

director left her position. Gonzalez was placed on the committee

by Berríos.

Hatfield was interviewed by the committee, and she gave

her answers to the oral and written questions. Rivera then asked

a few questions about Hatfield's academic background. At the end

of the interview, Hatfield said to Rivera: "[R]emember, I'm

interested in continuing working." Rivera responded that she was

aware of this.

At no point in the interview did anyone discuss

Hatfield's proposal for the Miguel Melendez Muñoz school. This was

not an oversight. Indeed, Berríos testified that she understood

the proposal process to be completely separate from the process for

hiring directors. The hiring process she and Nieves designed did

not directly account for the fact that a director had previously

prepared a proposal for, or had worked at, a given school. The

unsurprising result was that the Caguas region saw significant

turnover in the identity of its directors. Of the roughly 12-16

night schools in the Caguas region, only a single school had the

same director in 2001-2002 as in the prior year.

-9- Hatfield was one of the many directors not reappointed.

After the interviews had finished, and all the points had been

assigned and tallied, Hatfield had 70 points. This left her ranked

third among all candidates who had applied for positions in Cayey.

(As had been done in previous years, candidates formally applied to

work in a school district, not at an individual school). Ranked

above Hatfield were Luis Enchauste, who received 78 points, and

Maria Roldán, who received 71 points. Ranked below Hatfield were

Miriam Cartagena and Ayala, the incumbent director of the Augustin

Fernandez Colon school. Testimony linked Enchauste with an

affiliation with the PDP; there was no admissible evidence

regarding the political affiliations of Roldán, Ayala, or

Cartagena.1

Hatfield scored quite well with regard to the 30 points

allocated to experience and background, although she received one

less point than Enchauste received in this category. Hatfield

1 Hatfield did testify about Roldán's affiliation, but the magistrate judge struck all of that testimony as hearsay. Hatfield does not challenge that ruling on appeal. The defendants briefly assert that Hatfield's testimony about Enchauste, in which she described how Enchauste sometimes wore PDP insignia, also should have been stricken as hearsay. In the defendants' view, Enchauste's decision to wear the insignia was in effect an out-of-court statement of his political views. But even assuming that Hatfield's testimony was inadmissible to show Enchauste's political affiliation, the testimony would still have been admissible to demonstrate the beliefs of PRDE officials that Enchauste was affiliated with the PDP. See United States v. Parsons,

(1st Cir. 1998) (explaining that out- of-court statements are admissible to demonstrate the motive of one who heard the statement).

-10- scored somewhat lower than Enchauste and Roldán with regard to the

60 points allocated to the written and oral questions.

As Enchauste had the highest total score, Berríos met

with him first to offer him his choice of positions in Cayey. He

did not accept either of the positions. The second person on the

list was Roldán, who accepted a position directing the school

Hatfield had previously directed, the Miguel Melendez Muñoz school.

Hatfield was the third person on the list, and Berríos

offered her the directorship of the remaining school, the Augustin

Fernandez Colon school.2 Hatfield refused, explaining that she had

not drafted the proposal for that school, and that because of her

"honesty and work quality" she was unwilling to supplant Ayala, the

previous director.3 Berríos then offered Hatfield the opportunity

to direct a school in a different school district, but Hatfield

declined that offer as well.

C. The Motion for a Mistrial

Throughout, this trial was marked by unusually heated

bickering between trial counsel. During plaintiff's questioning of

witnesses, defense counsel lodged a rather large number of

2 Hatfield testified that she immediately asked Berríos why she was not being given the Miguel Melendez Muñoz school, and that Berríos responded that the interviewing committee had made the decision based on Hatfield's health. Berríos denied saying this. 3 Hatfield also testified that she refused the job in part because she was offended that she was not offered the directorship of the school for which she had prepared the proposal and at which she had come to be very familiar with the students.

-11- objections (many of which were sustained). The attorneys on both

sides made some inappropriate comments in front of the jury. The

magistrate judge clearly became frustrated with counsel at times

and offered some stern warnings.

At one point, plaintiff's attorney was seen to be

listening to a personal recording to assist him in examining

defendant Aldanondo. The attorney did so to demonstrate, or to at

least leave the impression, that Aldanondo was lying on the stand

about something he had previously said. The earlier statements

were allegedly recorded during a break at a deposition, and were

not transcribed. Listening to the recording was a direct violation

of the court's instructions to plaintiff's counsel that this line

of questioning could be based only on his personal recollection of

the statement. Plaintiff's counsel's actions led to multiple

objections and sidebar conferences. After being admonished,

plaintiff's counsel then attempted to ask his question in several

alternative manners; all were objected to, and almost all of these

objections were sustained. The judge reminded the jury that simply

because counsel was asking these questions, it did not mean that

the defendant actually made the disputed statements.

Right before closing arguments the magistrate judge

instructed the jury: "[I]f at any time I admonished counsel, and I

did it throughout trial, I admonished both counsel at times, you

cannot take that against or in favor of any of the parties. It

-12- happens in every trial." The judge also reminded the jury that the

closing arguments they were about to hear were not evidence, and

that they were to base their verdict only on the evidence

presented, not on their perceptions of the quality of counsels'

arguments.

This last warning proved to be prescient. Plaintiff's

attorney spoke first on closing, and his first comment to the jury

was that he would "always remember this case as the objections

case." Much of the remainder of the argument was more closely

related to the evidence, although there were some lapses, including

one in which plaintiff's counsel offered his personal opinion on

Berríos's testimony. There were no objections to these lapses.

The defense attorney then opened with several comments

suggesting that his many objections had been prompted by extremely

poor lawyering from the other side. The bulk of the defendants'

closing argument largely stuck to discussing the evidence presented

in the case.

Plaintiff's counsel started his rebuttal by stating: "I

will always, always remember this case as the objections and

obstructions case. Always I will remember that. And [in my

career,] let me tell you, always over the table, everything,

everything, everything over the table." Counsel then attempted to

dispute something that defense counsel had said by showing a

document to the jury. This prompted an objection, and at sidebar

-13- it was established that the document was not in evidence. The

magistrate judge told plaintiff's attorney that he could not use

the document during closing. Defense counsel asked for a mistrial,

a request that the judge said he would defer ruling on. The judge

specifically instructed the jury to disregard the document because

it was not in evidence.

Plaintiff's counsel continued his rebuttal with more

suggestions that the defense had withheld documents and lied to the

jury:

Everything I brought here was over the table. Everything. Truthfulness. I have lost some cases in my life, but always with the truth, not obstructing the truthfulness in any case. And I assure that until I die. I will do that. If I win any case, it has to be with the truth. I doesn't [sic] fabricate. I doesn't [sic] obstruct. I doesn't [sic] hide evidence. I am not the plaintiff in this case. I am not. I am just an instrument. I am just a fellow who was brought up together with Ruth Hatfield. Yes. Both of us grew [up] together in Cayey. Both of us have cancer. It's very easy to take things out of context.

Defense counsel asked to approach the bench, but the magistrate

judge denied the request. Plaintiff's counsel proceeded to focus

his rebuttal more on the evidence. After plaintiff's counsel

finished, the judge reminded the jurors that what they had just

heard were "arguments of counsel. Arguments are not evidence.

It's just what counsel understands they have proven to you. But

-14- you must ultimately look to the evidence in the case . . . to

determine as to which party you will find."

D. The Verdict and the Post-Trial Motions

By the time the case was submitted to the jury, the only

remaining defendants were Aldanondo and Berríos.4 The jury found

for Hatfield on both the political discrimination and Article 1802

claims. The jury awarded $50,000 in compensatory damages. It also

awarded $100,000 in punitive damages specifically for the political

discrimination claim.

Post-verdict, the defendants filed a motion for judgment

as a matter of law under Rule 50(b), and in the alternative asked

the judge to declare a mistrial. The Rule 50 part of the motion

was geared almost exclusively to the verdict on the political

discrimination claim, and it only very briefly mentioned the

Article 1802 claim.

The magistrate judge granted the Rule 50 motion as to the

political discrimination claim, based on two independent reasons.

First, the magistrate judge concluded that part of plaintiff's

burden was to demonstrate that defendants Aldanondo or Berríos were

aware of Hatfield's political affiliation, as required by law.

4 After resting, plaintiff voluntarily dismissed her case against Campos, who had been named as a defendant. Additionally, before closing arguments the magistrate judge granted judgment as a matter of law for defendants Cesar Rey-Hernandez and Santos Melendez, as well as for Gonzalez and Rivera (who had also been named as defendants). Those judgments are not challenged on appeal.

-15- Second, the magistrate judge concluded that there was no evidence

that either Berríos or Aldanondo had been personally involved in

the allegedly discriminatory acts, which precluded a finding of

liability against either of them.

The magistrate judge also stated that he did not

understand the defendants' motion to be seeking judgment as a

matter of law on the Article 1802 claim, and he declined to enter

judgment for the defendants on that claim. Nonetheless, the judge

decided to grant a new trial on the Article 1802 claim, based on

plaintiff's attorney's improper comments during trial, particularly

during closing argument. The judge, citing Suarez Matos v. Ashford

Presbyterian Community Hospital,

(1st Cir. 1993),

explained that the comments improperly injected personal and

emotional issues into the trial, and that they improperly suggested

that defense counsel had withheld evidence.

Hatfield moved for reconsideration. The magistrate judge

declined to reconsider his decision on the Rule 50 motion. But the

judge did reverse his decision to grant a new trial on the Article

1802 claim. He concluded that the case he had relied upon, Suarez

Matos, was distinguishable in an important respect: the trial court

in Suarez Matos had affirmatively permitted the improper argument,

whereas here the magistrate judge had offered several curative

instructions. Accordingly, the magistrate judge "agree[d] with

-16- plaintiff that any prejudicial effect was neutralized," and he

reinstated the jury verdict on the Article 1802 claim.

II. THE DUE PROCESS CLAIM

We assume arguendo that the grant of qualified immunity

on the due process claim is properly before us on appeal from the

grant of a Rule 50(a) motion.5 Our review of the immunity

conclusion is de novo. Burton v. Town of Littleton,

(1st Cir. 2005).

Qualified immunity has three prongs in this circuit: we

must inquire (1) if the plaintiff's facts can establish a

constitutional violation; (2) if the constitutional right at issue

was clearly established at the time of the violation; and (3) if a

reasonable official, situated in a position similar to the

defendants', would have understood his actions to be

constitutional. Limone v. Condon,

(1st Cir. 2004).

The general rule is that we will treat these questions

sequentially, see id.; see also Saucier v. Katz,

, 201

5 Defendants briefly suggest that Hatfield's appeal is untimely because it was brought more than 30 days after the district court partially granted the defendants' Rule 12(b)(6) motion. However, the partial judgment that the district court granted was not a partial judgment pursuant to Rule 54(b), as there was nothing indicating an intention by the district court to make an "express determination" that there was "no just reason for delay." Fed. R. Civ. P. 54(b). As a result, the partial judgment did not create a final appealable order. See Willhauck v. Halpin,

(1st Cir. 1991).

-17- (2001), although there can be exceptions to this order of inquiry.

See, e.g., Santana v. Calderón,

(1st Cir. 2003).

We begin with a discussion of the alleged procedural due

process violation. Hatfield must show that she was deprived of an

interest in "liberty" or "property" without due process of law.

See Correa-Martinez v. Arrillaga-Belendez,

(1st

Cir. 1990), overruled in part on other grounds by Educadores

Puertorriqueños En Acción v. Hernández,

(1st

Cir. 2004). Here, Hatfield alleges that she had a property

interest in her continued employment.

Property interests are "created and . . . defined by

existing rules or understandings that stem from an independent

source such as state law." Bd. of Regents v. Roth,

(1972). That independent source must give the individual a

legitimate claim of entitlement to some sort of benefit. See Town

of Castle Rock v. Gonzales,

(2005). Hatfield's

claim is that while she had no formal contract right to renewal,

the PRDE had a de facto policy of rehiring all interested directors

whose proposals were approved, and who had no performance problems,

thus establishing a property interest in the renewal of her

contract.

The Supreme Court left open the possibility that some

employees could have a property interest in the renewal of their

term contracts. See Perry v. Sindermann,

,

-18- 601-02 (1972). While mere subjective expectancy of renewal is not

enough, the policies and practices of an institution might give

rise to such a claim.

.

This provision for "de facto" property interests is not

an unlimited opening. If such de facto understandings contravene

state law, there is usually no legitimate expectation of renewal

and hence no property interest. Correa-Martinez,

;

see also Perry,

n.7 ("If it is the law of Texas

that a teacher in the respondent's position has no contractual or

other claim to job tenure, the respondent's claim would be

defeated."). Accordingly, when we encounter a Perry-type claim, we

look at whether the alleged de facto system conflicts with state

law. See, e.g., Correa-Martinez,

; Cheveras

Pacheco v. Rivera Gonzalez,

(1st Cir. 1987).

Indeed, we have been particularly cognizant of the problems that

can result if mid-level managers can essentially undermine a

legislature's decision to provide flexibility in a civil service

hiring system. See Correa-Martinez,

.

Here, a reasonable person could easily conclude that

Puerto Rico law did not permit the de facto tenure system described

by Hatfield's witnesses. In Department of Natural Resources v.

Correa,

(1987), the Puerto Rico Supreme

Court concluded that a "transitory employee" like Hatfield, see

P.R. Laws Ann. tit. 3, § 1462b(i), has "a job retention expectancy

-19- only during the term of the appointment." 18 P.R. Offic. Trans. at

804. Moreover, the court explained that these informal procedures

circumvent state law, "destroy the merit principle[,] and . . . run

counter to the interests and needs" of Puerto Rico. Id. at 807.

The court viewed its decision as "strengthen[ing] the merit

principle in [Puerto Rico's] public administration." Id.

At the same time, however, the Puerto Rico Supreme Court

has indicated that there may be certain circumstances in which a

transitory employee could have a legitimate expectancy of contract

renewal. See id. at 805-06; see also Lupiáñez de González v. Cruz,

(1977) (finding, on the facts of the case,

that a contract employee had a legitimate expectation of permanent

employment). But it is not entirely clear whether the Puerto Rico

Supreme Court has subsequently clarified its position since 1987;

if there are more relevant cases, they are in Spanish, and we have

not been provided with translations. Cf. Giovanetti v. Estado

Libre Asociado de P.R.,

(untranslated) (appearing to

discuss Correa and the issue of property interests for transitory

employees); Garcia Melendez v. Municipio de Arroyo,

(P.R. 1996) (untranslated) (same).

Given the circumstances, we bypass the standard Saucier

order of inquiry, thereby freeing us to ask if Hatfield's alleged

constitutional right had been clearly established at the time of

the alleged violation. Cf. Santana,

(bypassing

-20- Saucier's step one in a procedural due process case where the

existence of a property right turned on an unresolved question of

Puerto Rico law).6

While it may be established that due process applies to

protect property interests, it is not clearly established that the

interest Hatfield had was a property interest at all. Immunity was

properly granted.

III. THE POLITICAL DISCRIMINATION CLAIM

We review de novo the magistrate judge's decision to

grant defendants' Rule 50(b) motion for judgment as a matter of law

on the political discrimination claim. See Webber v. Int'l Paper

Co.,

(1st Cir. 2005). We must view the evidence

in the light most favorable to Hatfield.

The magistrate judge offered two reasons for granting the

Rule 50(b) motion. The first reason was that Hatfield introduced

no evidence that the defendants were aware of her political

6 Indeed, the whole premise for Saucier's order of inquiry is that it helps "set forth principles which will become the basis for a holding that a right is clearly established." Saucier, 533 U.S. at 201. Given the context in which we face our current inquiry, our resolution of the constitutional issue would be dependent on ruling on an unclear question of Puerto Rico law. This would hardly create clearly established law for future cases. Cf. Morse v. Frederick,

(2007) (Breyer, J., concurring in the judgment in part and dissenting in part) (criticizing the Saucier order of inquiry); Dirrane v. Brookline Police Dep't,

(1st Cir. 2002) (explaining that Saucier's order of inquiry is "an uncomfortable exercise where . . . the answer . . . [to the constitutional question] may depend on a kaleidoscope of facts not yet fully developed. It may be that Saucier was not strictly intended to cover [such a] case").

-21- affiliation. The second reason was that Aldanondo and Berríos were

not personally involved in any discrimination against Hatfield.

See Barreto-Rivera v. Medina-Vargas,

(1st Cir.

1999) (explaining that § 1983 does not usually allow for

supervisory liability). The rationale on this second point was

apparently that the real discriminatory actors, if any, were the

members of the evaluation committee who allegedly deflated

Hatfield's interview scores on the basis of her political

affiliation.

Hatfield's response is that Aldanondo and Berríos fall

into an exception for § 1983's general bar against supervisory

liability because they encouraged, condoned, or otherwise

acquiesced in the allegedly discriminatory actions of the

evaluation committee. Indeed, a supervisor can be held liable for

the discrimination of his subordinates if (1) the subordinate

commits a constitutional violation, and (2) the supervisor's

actions are "'affirmatively link[ed]' to the behavior in the sense

that it could be characterized as 'supervisory encouragement,

condonation or acquiescence' or 'gross negligence . . . amounting

to deliberate indifference.'" Whitfield v. Meléndez-Rivera,

(1st Cir. 2005) (alteration and omission in original)

(quoting Hegarty v. Somerset County,

(1st

Cir. 1995)).

-22- Hatfield's argument nonetheless overlooks a crucial

point: her failure even to make out a prima facie case that the

committee members violated her First Amendment rights. To

establish a prima facie case of political discrimination, the

"plaintiff must show that party affiliation was a substantial or

motivating factor behind a challenged employment action." Mercado-

Alicea v. P.R. Tourism Co.,

(1st Cir. 2005). A

prima facie case is not made out when there is no evidence that an

actor was even aware of the plaintiff's political affiliation. See

Aguiar-Carrasquillo v. Agosto-Alicea,

(1st Cir.

2006); Gonzalez-de-Blasini v. Family Dep't,

(1st

Cir. 2004).

There is no evidence that any of the three committee

members was aware that Hatfield was a member of the NPP. Campos

did not testify at trial, no evidence linked him with knowledge of

Hatfield's political views, and Hatfield could not say whether he

was aware of her political affiliation. Rivera testified, but

there was a similar evidentiary gap, and Hatfield also could not

state if Rivera was aware of her political views. Gonzalez

testified that she did not even know Hatfield until the day of the

interview. That testimony was not challenged, and Hatfield

-23- admitted that the interview was the first time in her life that she

had ever spoken to Gonzalez.7

Hatfield argues that because she was "identified" with

the prior NPP administration, the committee members had to have

been aware of her NPP affiliation. But "the simple fact of

[plaintiff's] employment prior to the 2000 election" is

insufficient "to put her co-workers and employers on notice of her

political inclinations." Aguiar-Carrasquillo,

.

Hatfield argues there was sufficient circumstantial

evidence of discrimination to support the verdict. She points out

that virtually all of the school directors in Caguas were replaced

for the 2001-2002 year, which she says is indicative of a

systematic plan to replace those directors associated with the

previous NPP administration. Hatfield further argues that this

fact has to be evaluated in tandem with the other circumstantial

evidence in the case.

The problem is that Hatfield presented no evidence that

would allow a jury to infer that the replaced directors in Caguas

were generally from the NPP, nor was there evidence permitting the

inference that the directors who replaced them were generally from

7 The closest that Hatfield came to demonstrating that any defendant had knowledge of her political affiliation was testimony that Berríos had once met Hatfield while Hatfield was working in a "supervisory" position at the Regional Office. There was no testimony that this position was a trust position, nor was there testimony that Berríos had ever mentioned anything about Hatfield to the members of the committee.

-24- the PDP. The only admissible evidence on this point was that

Hatfield was a member of the NPP, and that Enchauste -- who

according to the testimony did not even accept a position -- was a

member of the PDP. Hatfield introduced no evidence suggesting that

her qualifications were superior to Enchauste's. Without more, the

fact that a single PDP individual was ranked higher than Hatfield

certainly does not provide sufficient evidence of a systematic

decision by the committee to give low scores to NPP members.

Further, Hatfield's theory throughout trial was that the committee

manipulated the scores on the written and oral questions. Yet

Enchauste also outscored Hatfield on the 30 points assigned to

experience and academic background.

Hatfield spends considerable time and energy comparing

herself to Roldán. But there was no admissible evidence of

Roldán's political affiliation.

Our law requires more for Hatfield to have a viable

claim. See, e.g., Figueroa-Serrano v. Ramos-Alverio,

(1st Cir. 2000) (plaintiffs introduced insufficient evidence

that a mass-substitution was politically motivated, as there was no

evidence that plaintiffs were actually replaced by individuals from

the opposite party); Kauffman v. P.R. Tel. Co.,

(1st Cir. 1988) (plaintiffs could not survive summary

judgment in a case involving a massive number of substitutions,

occurring immediately after a new party took power, as no evidence

-25- supported plaintiffs' allegations that the targeted individuals

were of one party, while the favored individuals were of another

party); cf. Rodríguez-Marín v. Rivera-González,

, 76 &

n.1, 81 (1st Cir. 2006) (finding sufficient evidence of mass

discrimination when there was evidence, inter alia, that NPP

individuals, but not a similarly situated PDP official, were

targeted for a personnel review); Borges Colón v. Roman-Abreu,

(1st Cir. 2006) (sufficient evidence was presented in a

mass substitution case where, inter alia, the targeted employees

were generally affiliated with one party, and most of their

replacements were generally affiliated with the opposite party).

The remaining pieces of circumstantial evidence in the

case are Aldanondo's "pasarle la mano" comment, Aldanondo and

Berríos's decisions to de-emphasize the importance of the proposals

in the hiring process, the relatively high percentage of points

allocated to the subjective interview questions, the timing of the

hiring changes, and the fact that Aldanondo, Berríos, and Nieves

were PDP members.8 That evidence is insufficient to establish the

committee members' knowledge of party affiliation. Accordingly,

since Hatfield did not demonstrate that the committee acted

8 Hatfield's brief does not discuss Berríos's alleged statement to Hatfield that the low interview scores were based on Hatfield's "health problems." Accordingly, we deem any argument based on this statement to be waived. See Playboy Enters., Inc. v. Pub. Serv. Comm'n,

(1st Cir. 1990) (explaining that issues not raised in an appellant's opening brief are waived).

-26- unconstitutionally, there can be no supervisory liability for

Aldanondo and Berríos, and we affirm the magistrate judge's

decision to grant them judgment as a matter of law on the political

discrimination claim.9

IV. THE ARTICLE 1802 CLAIM

On their cross-appeal, defendants level two challenges to

the $50,000 jury verdict for plaintiff on the Article 1802 claim.

First, they contend that the magistrate judge should have granted

the defendants' Rule 50(b) motion for judgment as a matter of law.

In the alternative, they argue that the magistrate judge should

have stuck with his initial grant of their motion for a mistrial.

On the first issue, defendants' argument has not been

preserved for appeal. Before the magistrate judge, the defendants

offered only two conclusory sentences10 on this issue in their post-

9 To the extent Hatfield is making an argument that Berríos and Aldanondo were personally involved in any discrimination, we reject that argument as well. Hatfield's brief could be interpreted as arguing that Berríos and Aldanondo changed the AEP's hiring procedures specifically to disadvantage the incumbent directors -- a group that Hatfield believes was "identified" with the NPP. According to this argument, it would be irrelevant whether the committee members intentionally ranked PDP and NPP members differently; the discrimination would be the very act of altering the AEP's hiring procedures. Yet this argument still fails at the prima facie stage: there is insufficient evidence that the incumbent directors tended to be affiliated with the NPP and that their replacements tended to be affiliated with the PDP. 10 The sentences were:

[A]s to the supplemental cause of action brought under Article 1802 of the P.R. Civil Code, the same should also be dismissed

-27- trial motion. The argument on this issue was presented so briefly

that the magistrate judge did not even realize that the argument

had been presented at all. We have no trouble concluding that the

argument cannot now be raised. See McCoy v. Mass. Inst. of Tech.,

(1st Cir. 1991) (explaining that claims cannot be

presented on appeal when they have not been adequately developed in

the trial court).11

This leaves us with defendants' fallback argument for a

mistrial. We review the denial of a motion for a mistrial for

manifest abuse of discretion. United States v. Rullan-Rivera,

(1st Cir. 1995); see also Ramírez v. Debs-Elias,

(1st Cir. 2005). The granting of a mistrial is a

last resort, and the trial court's usual remedy for an impropriety

will be to give a curative instruction. See Rodriguez-Torres v.

Caribbean Forms Mfr., Inc.,

(1st Cir. 2005). The

because the plaintiff did not prove that the defendants acted negligently. As a matter of fact, the evidence demonstrated that Mr. Aldanondo and Mrs. Berrios complied with all their duties and followed all the procedures established by the applicable [PRDE internal documents]. 11 Hatfield argues that it is inconsistent for the magistrate judge to have granted the Rule 50(b) motion on the political discrimination claim, while simultaneously denying the Rule 50(b) motion on the Article 1802 claim. But the magistrate judge decided the Article 1802 claim based on a procedural ground, whereas his decision on the political discrimination claim was based on the merits. For similar reasons, there is no inconsistency in our affirmance of the magistrate judge's decisions.

-28- normal presumption is that a jury will follow a court's curative

instruction. United States v. De Jesus Mateo,

(1st

Cir. 2004).

The magistrate judge did not abuse his discretion in

reversing himself and refusing to grant a mistrial in this civil

case. It is true that plaintiff's attorney made improper comments;

indeed we find his behavior unacceptable. Nonetheless, when

improprieties were brought to the magistrate judge's attention, the

judge was careful to issue curative instructions to the jury. Many

of these curative instructions went beyond simple reminders to the

jury that argument of counsel is not evidence. Cf. United States

v. Gonzalez Vargas,

(1st Cir. 1977).

The magistrate judge observed the trial firsthand, and he

was in the best position to see the effect of any improper comments

and to gauge the adequacy of his curative instructions. On appeal,

our review of the record has provided no basis to disturb the

magistrate judge's conclusion.

V. CONCLUSION

The judgments are affirmed. No costs are awarded.

-29-