          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


                                         -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

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


                                   -5-
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


                                           -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, 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).

                                       -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, 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




                                     -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, 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).

                                            -17-
(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,


                                     -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.       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


                                      -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,

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


                                     -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., 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").

                                   -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, 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)).




                                          -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., 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.

                                     -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, 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).

                                       -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.,

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.

                                 -28-
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.




                                 -29-
