Hatfield-Bermudez v. Rey-Hernandez ( 2007 )

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 P.R. Laws Ann.
tit. 31, § 5141. 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
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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
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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
34 C.F.R. § 461.1. 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
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with any proposals for new programs, are then submitted to the PRDE
for approval. See id. §§ 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
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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.
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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.
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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.
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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, 141 F.3d 386, 390-91 (1st Cir. 1998) (explaining that out-
of-court statements are admissible to demonstrate the motive of one
who heard the statement).
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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.
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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
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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
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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
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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.
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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, 4 F.3d 47, 50-51 (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
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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, 426 F.3d 9, 14
(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, 372 F.3d 39, 44 (1st Cir. 2004).
The general rule is that we will treat these questions
sequentially, see id.; see also Saucier v. Katz, 533 U.S. 194, 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,
953 F.2d 689, 701-02 (1st Cir. 1991).
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(2001), although there can be exceptions to this order of inquiry.
See, e.g., Santana v. Calderón, 342 F.3d 18, 29-30 (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, 903 F.2d 49, 53 (1st
Cir. 1990), overruled in part on other grounds by Educadores
Puertorriqueños En Acción v. Hernández, 367 F.3d 61, 63-67 (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, 408 U.S. 564,
577 (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, 545 U.S. 748, 756 (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, 408 U.S. 593, 594-95,
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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. Id. at 603.
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, 903 F.2d at 55;
see also Perry, 408 U.S. at 602 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, 903 F.2d at 54-55; Cheveras
Pacheco v. Rivera Gonzalez, 809 F.2d 125, 127 (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, 903 F.2d at 54-55.
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, 18 P.R. Offic. Trans. 795 (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
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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,
5 P.R. Offic. Trans. 966 (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., 2004 TSPR 46 (untranslated) (appearing to
discuss Correa and the issue of property interests for transitory
employees); Garcia Melendez v. Municipio de Arroyo, 140 P.R. Dec.
750, 754-55 (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, 342 F.3d at 30 (bypassing
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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., 417 F.3d 229, 233 (1st Cir. 2005). We must view the evidence
in the light most favorable to Hatfield. Id.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, 127 S. Ct. 2618, 2641 (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, 315
F.3d 65, 69-70 (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").
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affiliation. The second reason was that Aldanondo and Berríos were
not personally involved in any discrimination against Hatfield.
See Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (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, 431
F.3d 1, 14 (1st Cir. 2005) (alteration and omission in original)
(quoting Hegarty v. Somerset County, 53 F.3d 1367, 1379-80 (1st
Cir. 1995)).
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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., 396 F.3d 46, 51 (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, 445 F.3d 19, 26 (1st Cir.
2006); Gonzalez-de-Blasini v. Family Dep't, 377 F.3d 81, 85-86 (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, 445 F.3d at 26.
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.
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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, 221 F.3d 1,
7-8 (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., 841 F.2d 1169,
1172-73 (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, 438 F.3d 72, 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, 438
F.3d 1, 17 (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, 906 F.2d 25, 40-41 (1st Cir. 1990) (explaining
that issues not raised in an appellant's opening brief are waived).
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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
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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.,
950 F.2d 13, 22 (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, 60
F.3d 16, 18 (1st Cir. 1995); see also Ramírez v. Debs-Elias, 407
F.3d 444, 447 (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., 399 F.3d 52, 63 (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.
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normal presumption is that a jury will follow a court's curative
instruction. United States v. De Jesus Mateo, 373 F.3d 70, 73 (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, 558 F.2d 631, 633 (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.
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