In 2001, Antonio Costa-Urena (“Costa-Urena”), Luis Jirau (“Jirau”), and Carlos Rueda (“Rueda”) were terminated from career positions that they held with the Puerto Rico Tourism Company, an agency of the Commonwealth of Puerto Rico. These terminations prompted them to sue various Commonwealth officials under 42 U.S.C. § 1983, claiming that their terminations violated both the First Amendment and the Due Process Clause of the Fourteenth Amendment. Their spouses, also plaintiffs in the action, sought to recover derivatively for these violations under Article 1802 of the Puerto Rico Civil Code. See P.R. Laws Ann. tit. 31, § 5141. A jury found in favor of the plaintiffs, awarding them compensatory damages against defendant Milton Segarra, and the district court ordered additional relief against the defendant governor of Puerto Rico.
On appeal, Segarra, who was the former director of the Puerto Rico Tourism Company and who remains in the case in his individual capacity, and the governor, who is a defendant in his official capacity, launch a number of challenges to the judgments against them. Most notably, they claim that the First Amendment judgment must be vacated because of erroneous jury instructions and that the procedural due process judgment must be reversed because the plaintiffs lacked a constitutionally protected property interest in their career positions. Both claims hit the mark. Accordingly, we vacate the judgment in favor of the plaintiffs on the First Amendment claim, remanding for a new trial on that claim, and we reverse the judgment on the procedural due process claim.
I.
Some background helps to place the issues in perspective, and to the extent that facts are presented here, they are presented in the light most favorable to the jury’s verdict.
See Whitfield v. Melendez-Rivera,
Career employees are entitled to the protections of the First and Four
*23
teenth Amendments.
Rodriguez-Marin v. Rivera-Gonzalez,
As exemplified by the above-cited cases, these principles are sometimes put to the test when newly installed administrations terminate career employees who happen to march to a different political drumbeat. Such actions, in turn, often prompt the terminated employees to claim political discrimination and to challenge the adequacy of pre-termination procedures.
That is more or less the situation presented here. At one point, each of the three primary plaintiffs held the career position of “Collections Officer” with the Puerto Rico Tourism Company (“Tourism Company” or “agency”). Rueda acquired this position in 1995, Jirau in 1996, and Costa-Urena in 1997. At all relevant times, each of the plaintiffs was also a member of the New Progressive Party. In 2000, the Popular Democratic Party was elected to power in Puerto Rico. Shortly after the installation of the new government, the plaintiffs were terminated from their jobs. The plaintiffs claim that the defendants terminated them because of their political affiliation. The defendants respond by saying that the plaintiffs were terminated not for political reasons but because they never lawfully held their positions as Collections Officers in the first place. Specifically, the defendants claim that the plaintiffs do not meet the educational pre-requisites for the Collections Officer position, namely, the requirement of a bachelor’s degree from an accredited institution in either business administration or a related field. It is undisputed that the plaintiffs do not hold such degrees.
The roots of this particular dispute extend back to 1995, before any of the plaintiffs were hired to be Collections Officers. That year, the Tourism Company revised its “Classification Plan.” This plan, among other things, sets out the primary responsibilities and employment requirements for positions in the Tourism Company. As part of the revision process, the Tourism Company established certain minimum requirements for the career position of Collections Officer. These included the requirement that a Collections Officer possess a “Bachelor in Business Administration or related fields from an accredited institution.” Despite the existence of the requirement, the Tourism Company presented the qualification as optional when it published the job announcement for the position of Collections Officer in 1995. The announcement noted: “The required academic preparation may be substituted by additional experience in the Collections area.”
The three plaintiffs, each of whom at that time lawfully held another career position with Tourism, responded to this job announcement or a materially similar announcement. Although none of the plaintiffs held the requisite bachelor’s degree in *24 business administration or a related field, each was hired to be a Collections Officer because of “experience in the Collections area.” At no point was the Classification Plan amended to be consistent with the job announcements or vice-versa.
Following the 2000 election, the Tourism Company came under new leadership, appointed by PDP governor Sila Maria Calderón. Not long after this transition in power, officials at the Tourism Company began reviewing personnel files. A review of these files indicated that each of the plaintiffs failed to meet the minimum requirements for the position of Collections Officer, as set out in the relevant Classification Plan. This discovery set into motion a series of events: the plaintiffs were notified of their perceived lack of credentials; informal hearings were held; and the plaintiffs were terminated. Milton Segarra, the then-Executive Director of the Tourism Company, made and carried out this decision.
After unsuccessfully challenging their terminations in a post-termination administrative hearing, the plaintiffs filed suit in federal court under 42 U.S.C. § 1983, claiming that their dismissals violated the First Amendment because they were politically motivated and that the Commonwealth had denied them the procedural protections guaranteed by the Due Process Clause of the Fourteenth Amendment. The plaintiffs’ spouses also brought a derivative tort action under Article 1802 of the Puerto Rico Civil Code. See P.R. Laws Ann. tit. 31, § 5141. The matter eventually proceeded to trial.
At the close of the plaintiffs’ case, the defendants moved orally for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 50(a). The district court denied this motion. After some skirmishing between the defendants and the court over jury instructions, the case was submitted to the jury. The jury found for the plaintiffs on both the First Amendment claim and the procedural due process claim, awarding damages to the plaintiffs and their spouses. At this point, the defendants filed a renewed motion for judgment as a matter of law under Rule 50(b) and an alternative motion for a new trial. See Fed.R.Civ.P. 50(b), 59(a). The district court summarily denied these motions. This appeal ensued.
II.
The defendants claim that the district court committed a host of errors during the proceedings below. We address each of their arguments in turn.
A. First Amendment claim
The defendants argue that they are entitled to a new trial on the plaintiffs’ First Amendment/political discrimination claim because the district court’s instruction on the political discrimination claim was incorrect as a matter of law. This claim of instructional error is reviewed de novo.
SEC v. Happ,
A jury instruction is erroneous if it is misleading, confusing, or incorrect as a matter of law.
Davignon v. Clemmey,
*25
Before examining the challenged instruction, we identify the relevant ground rules. As alluded to above, the First Amendment prohibits the dismissal of a career employee based on political affiliation.
Maymi,
As has been noted in the past,
Mt. Healthy’s
burden shifting framework tends to obscure the following principle: showing that a protected activity or status was a “substantial or motivating factor” in the termination decision, that is, that the protected activity or status was an impetus for, or moved the employer towards, the termination decision, may not be enough for the plaintiff to succeed. The employer can defeat liability by establishing that it would have made the same termination decision anyway, without regard to the plaintiffs protected activity or status.
Mercado-Alicea v. P.R. Tourism Co.,
The district court’s instruction did not adequately convey this principle and was thus incorrect. The instruction reads:
If you find that the defendants’ intervention in dismissing career employees in violation of the principles outlined in these instructions was, in fact, made in retaliation for the exercise of the Constitutional right of free speech, which includes the liberty of political affiliation, then you must find for the plaintiffs.
If, on the other hand, you find that the personnel actions had nothing to do with the plaintiffs political preferences, then you must find for the defendants.
(emphasis added).
The problem lies with the highlighted “had nothing to do with” language. Under Mt. Healthy, even if the protected activity or status (here, political affiliation) “had something to do with” the termination decision, it would not necessarily result in a victory for the plaintiffs. If the defendant/employer were able to satisfy the jury that it would have fired the plaintiffs regardless of political affiliation, then the *26 defendant would be entitled to a verdict in its favor. The instruction as worded, however, signaled to the jury that if it found that the plaintiffs political affiliation “had something to do” with the termination decision, the jury would be precluded from finding for the defendants. The instruction thus prevented the jury from considering whether the defendants had presented a valid Mt. Healthy defense.
Having concluded that the instruction was erroneous, we must also consider whether the error was nevertheless harmless.
Cigna Ins. Co. v. Oy Saunatec, Ltd.,
The argument overreaches. Although the defendants could not fully explain why they permitted Bayon to keep his job, there was evidence that the 1995 Classification Plan did not apply to Luciano because the Tourism Company hired him in 1985, well before the plan was in place. And given that the defendants consistently maintained at trial that they terminated the plaintiffs for an identifiable, non-discriminatory reason, we think the evidence was sufficiently mixed that it would allow (though not compel) a reasonable, properly instructed jury to find that the defendants had established a Mt. Healthy defense. As a result, we must vacate the judgment on the First Amendment claim and remand for a new trial on this claim.
B. Procedural due process claim
The defendants also attack the district court’s handling of the plaintiffs’ procedural due process claim. They first argue that the claim should never have been submitted to the jury, but rather decided by the court as a matter of law. See Fed.R.Civ.P. 50(a), (b). Alternatively, the defendants argue that they are entitled to a new trial on the procedural due process claim because of an error in the court’s jury instructions.
We review de novo the denial of a renewed motion for judgment as a matter of law under Rule 50(b), viewing the evidence in the light most favorable to the nonmoving party, here, the plaintiffs.
Hatfield-Bermudez v. Aldanondo-Rivera,
A person is only entitled to procedural due process if she can establish that the government deprived her of a constitutionally protected interest.
Bd. of Regents v. Roth,
*27
Whether the plaintiffs had a protected property interest in their jobs is a question of state law.
Rosario-Torres v. Hernandez-Colon,
The key word is “lawfully.” To possess constitutionally protected property interests in their career positions, the plaintiffs must have
valid
claims to those positions.
Id.
An employee’s claim is not valid if the hire contravened Commonwealth laws and regulations, which include the Puerto Rico Personnel Act and agency regulations promulgated under that Act.
Kauffman v. Puerto Rico Tel. Co.,
Here, the defendants contend that the plaintiffs did not lawfully hold their positions as Collections Officers because the Tourism Company hired them to those positions in contravention of its own Classification Plan.
See De Feliciano v. DeJesus,
*28
We agree. The Classification Plan clearly required each Collections Officer to hold a bachelor’s degree in a certain field. The plaintiffs candidly admit that they do not hold such degrees. Under circumstances such as these, where the plaintiffs were recruited and hired to career positions in contravention of regulations promulgated under the Personnel Act, the plaintiffs cannot develop a protected property interest in their career positions.
See De Feliciano,
This result may seem unfair. After all, the agency must bear some fault in this story. It recruited the plaintiffs in plain contravention of its own Classification Plan. But, as
De Feliciano
illustrates, “fault” is not a relevant factor in the due process inquiry.
We note that, although the plaintiffs were precluded from developing property interests in their specific positions as Collections Officers, they still may have held (at the time of their terminations) constitutionally protected property interests in their career employment with the Tourism Company. After all, each of the primary plaintiffs in this case held another career position before being hired to his Collections Officer position.
Nevertheless, the question of whether the plaintiffs held a protected property interest in other career positions was never squarely before the jury. The district court’s instruction focused on procedures due when the defendants took away the Collections Officer positions. Moreover, throughout the proceedings below, the plaintiffs plainly sought to establish a protected property interest in their positions as Collections Officers, not in some other career position. In their complaint, for example, they requested reinstatement only to their positions as Collections Officers. Conversely, the plaintiffs failed to make the requisite efforts to establish a protected interest in other career employment with the Tourism Company. For example, they did not introduce evidence of the wages they would have earned in other career position had they not been terminated outright from agency employ. Nor, for aught that it appears, did the plaintiffs request jury instructions that would have notified the jury that they were also claiming property interests in career employment other than as Collections Officers. Under these circumstances, the jury verdict in favor of the plaintiffs on the procedural due process claim is inextricably tied to the Collections Officer positions. Accordingly, it cannot stand.
Because we reverse the judgment in favor of the plaintiffs on the procedural due process claim, there is no need to address the defendants’ alternative argument claiming instructional error.
C. Qualified Immunity
Segarra, who was sued in his personal capacity, argues that he is entitled to qualified immunity with respect to the plaintiffs’ First Amendment claim. “The qualified immunity doctrine provides defendant public officials an immunity from
*29
suit and not a mere defense to liability.”
Maldonado v. Fontanes,
A two-part test governs the qualified immunity question.
Pearson v. Callahan,
— U.S. -,
We may be brief. The plaintiffs have alleged facts that, if found by a jury to be true, would establish that the defendants violated the plaintiffs’ First Amendment rights by terminating them based on their political affiliation. Further, it is clearly-established, and was at the time of the events in question, that terminating a non-policy-making employee based on political affiliation violates the First Amendment even if a valid alternative ground exists for the termination.
See Sanchez Lopez v. Fuentes Pujols,
Segarra’s claim that the plaintiffs were terminated because they held their positions unlawfully fails to alter this analysis. The reason for the plaintiffs’ termination is a disputed issue of material fact. Under such circumstances, a grant of qualified immunity is inappropriate.
See Roure v. Hernandez Colon,
D. Damages and other remedies
The defendants challenge the award of damages to the plaintiffs’ spouses. They also challenge the reinstatement orders issued by the district court. We address these challenges in turn.
1. Damages award to spouses
The jury awarded the plaintiffs’ spouses the following amounts: (1) Costa-Urena’s spouse, $43,000; (2) Jirau’s spouse, $58,000; (3) Rueda’s spouse, $54,000. The defendants argue that the district court’s errors may have led the jury inappropriately to award these damages under § 1983, a statute under which the spouses of plaintiffs are prohibited from recovering as derivative plaintiffs. In particular, they complain about the court’s instructions to the jury and the wording of the verdict form submitted to, and used by, the jury. Because the defendants failed to lodge the requisite objections before the district court, our review is for plain error only. Davignon, 322 *30 F.3d at 9. 7
Although we need not get into specifics, the defendants present a losing argument. Nevertheless, a far more persuasive argument exists for vacating the spousal awards. In the past, we have explained that a cause of action under Article 1802 “is wholly derivative and, thus, its viability is contingent upon the viability of the underlying employment discrimination claim.”
See Hernandez v. Philip Morris USA, Inc.,
2. Reinstatement
After entering judgment for the plaintiffs on the First Amendment claim, the district court ordered that the plaintiffs be reinstated to their positions as Collections Officers. Because we vacate the judgment on that claim, we must also vacate the district court’s reinstatement order. Should another jury find in favor of the plaintiffs on the First Amendment claim, the question of reinstatement remains open for the district court to consider.
See Chungchi Che v. Mass. Bay Transp. Auth.,
Upon a finding of unlawful political discrimination, the district court may, in its discretion, order that the defendants reinstate the plaintiffs to their positions as Collections Officers. This is the case even though the plaintiffs did not acquire those positions lawfully.
Rosario-Torres,
This is not to say that reinstatement is an inevitable remedy or even an advisable one.
Id.
at 321. Among the factors a court should consider when evaluating reinstatement is whether the employee was hired in violation of local law.
Hiraldo-Cancel v. Aponte,
Finally, we note that the defendants argue that the district court is incapable of ordering reinstatement in this case under any circumstances. This is so, they claim, because defendant Segarra is not currently in this case in an official capacity. The governor of Puerto Rico, however, does remain a party to this case in an official capacity. In any event, because the reinstatement question may become moot after additional proceedings, there is no need to discuss this issue further at this juncture.
III.
The judgment for the plaintiffs on the First Amendment claim is vacated and the judgment for the plaintiffs on the procedural due process claim is reversed. The order of reinstatement is stricken, without prejudice. The judgment on the spouses’ derivative claim under Article 1802 is vacated. The case is remanded for proceedings consistent with this opinion. The parties shall bear their own costs incurred in this appeal.
So ordered.
Notes
. Puerto Rico is treated as a state for the purposes of a § 1983 analysis.
Perez-Acevedo
v.
Rivero-Cubano,
. This "harmless error" standard applies where, as here, a party has properly objected to the court’s instruction at trial.
Davignon,
. This may be the case even if the employee acquired the career position in contravention of state law.
See Santiago-Negron v. Castro-Davila,
. On appeal, the defendants also argue that, even if the plaintiffs did have a protected property interest in their jobs as Collections Officers, the Commonwealth nevertheless pro *27 vided them with all the process they were due.
This argument is unavailable. In their only Rule 50(a) motion, which they made orally at the close of the plaintiffs’ case, the defendants never argued that the plaintiffs received adequate process before their termination. It is well-established that arguments not made in a motion for judgment as a matter of law under Rule 50(a) cannot then be advanced in a renewed motion for judgment as a matter of law under Rule 50(b).
See Correa v. Hosp. San Francisco,
. The plaintiffs assert that the plan was not public, but they do not contest that the plan was both validly enacted and binding.
. The defendants present this argument in two ways. They argue that the evidence presented a trial, which included the relevant Classification Plan, established that each of the plaintiffs failed to qualify for the Collections Officer position. They also rely on the doctrine of collateral estoppel, arguing that the plaintiffs failed to appeal an administrative decision rendered against them, and that facts established in this proceeding definitively doom their claim. We need not venture into the thicket of the collateral estoppel doctrine, as the record evidence is sufficient to establish the lack of a protected property interest.
. “[T]he party claiming plain error must show (1) an error, (2) that is plain (i.e., obvious and clear under current law) (3) that is likely to alter the outcome, and (4) that is sufficiently fundamental to threaten the fairness or integrity or public reputation of the judicial process.”
Colon-Millin v. Sears Roebuck De P.R., Inc.,