Del-Toro-Pacheco v. Pereira, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and John A. Woodcock, U.S. District Judge. Published. [09-2532]

Case: 09-2532 Document: 00116164930 Page: 1

Date Filed: 01/31/2011

Entry ID: 5522717

United States Court of Appeals
For the First Circuit
No. 09-2532
JULIO DEL TORO PACHECO,
Plaintiff, Appellant,
v.
MIGUEL A. PEREIRA, Secretary of Correction and Rehabilitation
Administration; ROBERTO IZQUIERDO-OCASIO,
Director of Special Arrest Unit,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Lipez, Circuit Judge,
and Woodcock,* District Judge.

Israel Roldán González on brief for appellant.
Irene S. Soroeta-Kodesh, Solicitor General, Leticia CasalducRabell, Deputy Solicitor General, Zaira Z. Girón-Anadón, Deputy
Solicitor General, and Susana I. Peñagarícano-Brown, Assistant
Solitor General, on brief for appellees.

January 31, 2011

*

Of the District of Maine, sitting by designation.

Case: 09-2532 Document: 00116164930 Page: 2

LIPEZ, Circuit Judge.

Date Filed: 01/31/2011

Entry ID: 5522717

In this political discrimination

case, Julio Del Toro Pacheco (Del Toro) alleges that he was fired
from his job at the Puerto Rico Department of Correction and
Rehabilitation Administration (DCR) because his superiors, Roberto
Izquierdo-Ocasio (Izquierdo) and Miguel A. Pereira, disagreed with
his political beliefs. The district court granted summary judgment
for the defendants on the ground that Del Toro had not established
a prima facie case of political discrimination because he failed to
show that the defendants knew of Del Toro's political affiliation.
The court also held that, assuming Del Toro was able to establish
a

prima

facie

affiliation
termination.

was

case,
a

he

failed

substantial

to
or

Del Toro now appeals.

show

that

motivating

his
factor

political
in

the

We affirm.1

I.
We examine the record in the light most favorable to the
appellant.

Statchen v. Palmer, 623 F.3d 15, 16 (1st Cir. 2010).2

Del Toro began working as a corrections officer for the DCR in
December 1993.

In 1996, he became a member of the police escort

for the then-governor of Puerto Rico, Pedro Rosselló, who, like Del
Toro, belonged to the New Progressive Party (NPP).

A few years

1

The parties consented to the conduct of all proceedings in
the case by a magistrate judge, whose decision we therefore review
directly. See 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73(c).
2

Del Toro makes a number of assertions in his appellate brief
unsupported by any evidence in the record.
We do not consider
them.
-2-

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Entry ID: 5522717

later, Del Toro joined the Special Arrest Unit (SAU) of the DCR
where, beginning in 2000, he was supervised by Izquierdo.
Del Toro and Izquierdo had been acquainted since 1996.
When Izquierdo became Director of the SAU, he gave Del Toro poor
recommendations.

Del Toro told Izquierdo he was annoyed by this,

to which Izquierdo responded, "You are going to be one of us, of
the 'reds,' you are going to be a [Popular Democratic Party (PDP)]
member."

The evaluations began to improve, and Del Toro never

filed an administrative complaint against Izquierdo.
According to Del Toro, Izquierdo gave better work to the
SAU employees who were members of the PDP than to those who were
members of the NPP.

He also favored the PDP members with regard to

vacation and holidays.

Having been a supporter of the NPP since

1996, Del Toro felt he was a target of Izquierdo's differential
treatment.
On March 27, 2006, at about 4:00 p.m., a 19-year-old
woman filed a report with the Puerto Rico Police alleging that, at
about noon that day, Del Toro had raped her at gunpoint.3

At about

7:50 p.m., Del Toro was notified of the complaint and, about ten
3

The defendants submitted the police report, which included
a statement from the victim, in support of their motion for summary
judgment. Del Toro objected to the report on the ground that it
was unauthenticated. See Fed. R. Civ. P. 56(c)(2); Fed. R. Evid.
901(a). In the order granting summary judgment, the district court
determined that several other exhibits were properly authenticated,
but did not address the admissibility of Exhibit 3, the police
report.
The order cites the police report, and thus the court
appears to have considered it.
Nonetheless, Del Toro does not
argue here that the court erred in doing so.
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Entry ID: 5522717

minutes later, he called Izquierdo to inform him of the same.
After speaking with Del Toro, Izquierdo called the police to verify
what Del Toro had told him.
The

next

day,

Izquierdo

met

with

the

investigating

officer, who related the details provided by the victim.

The

victim had met Del Toro through her husband a few years earlier.
Del Toro came to her house at about noon, saying he had brought
some car keys for her husband.
an outdoor bathroom.

When he arrived, the victim was in

Del Toro entered the bathroom, brandished a

firearm, and forced her to have intercourse with him.
After meeting with the officer, Izquierdo met with Del
Toro, who said the victim had made up the story to get revenge
after Del Toro had ended their consensual affair.

Izquierdo then

met with a sergeant in the Sexual Crimes Unit, who told him that
she had interviewed the parties and decided to relieve Del Toro of
both his regulation weapon -- the gun he was issued for use as a
corrections officer -- and his personal gun, which he used for
target shooting.

The sergeant also told Izquierdo that she had

attempted to ask Del Toro questions but he refused to answer
without his attorney present.
On March 29, Izquierdo drafted a report describing what
he had been told, and stating that charges would be filed by the
prosecutor's office the following week.

-4-

Izquierdo's report was

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Entry ID: 5522717

later delivered to his supervisor, Pereira, the Secretary of the DCR.
In response to the report, the DCR initiated an internal
investigation of the alleged rape.

In June, an investigating

officer interviewed a policewoman, who stated that the prosecutor
was waiting to receive a laboratory report before filing formal
charges.

The

understanding
conclusive."

policewoman
that

the

stated,

evidence

however,
they

had

that
was

it

was

her

"clear

and

She also reported that the victim had identified Del

Toro's service weapon as the gun he had used during the rape.
A DCR officer also interviewed the victim, who reiterated
her version of the incident and confirmed that the gun with which
Del Toro had threatened her was his service weapon.

The victim

said that she feared for her life, as well as the lives of her
husband and her child.

Her husband, who was also interviewed

during the internal DCR investigation, told a compatible story and,
like the victim, said he feared for his life and for those of his
wife and child.
According to Del Toro, Izquierdo's harassment escalated
following the March 2006 incident.

Izquierdo made comments to Del

Toro such as, "If you were a member of the [PDP] maybe this [the
administrative investigation] would not be happening to you."
Izquierdo told Del Toro that his dismissal letter was already
signed but that Izquierdo could prevent its delivery if Del Toro
publicly affiliated with the PDP, and that not even former governor

-5-

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Entry ID: 5522717

Rosselló could save him. Izquierdo also said, "We have the perfect
excuse to dismiss you and you won't be able to sue us again."4
According to Del Toro, Izquierdo harassed him every day.
On September 7, 2006, Pereira sent a letter to Del Toro
outlining the results of the internal investigation.

Pereira

stated that, regardless of the outcome of the criminal prosecution,
he had decided to dismiss Del Toro for violating a number of laws
and regulations applicable to corrections officers.5

The letter

explained that Del Toro could request an informal administrative
hearing within fifteen days, or else the dismissal would be final.

4

Izquierdo was apparently referring to a lawsuit Del Toro
filed in 2001 alleging that certain DCR officials had discriminated
against him on the basis of his political affiliation. According
to Del Toro, the case was dismissed because there was "not enough"
discrimination to establish a legally cognizable injury.
5

Pereira cited the following provisions: Act No. 184, which
requires public employees not to "[s]how a conduct which is
inappropriate or harmful to the go[o]d name of the agency or the
Government of the Commonwealth of Puerto Rico," or "[b]e guilty of
prevarication, bribery, or immoral conduct," P.R. Laws Ann. tit. 3
§ 1462e(8)(e) & (f); the Regulation for the Personnel of the
Administration of Correction, which requires DCR personnel to
"[o]bserve correct, courteous and respectful conduct standards in
their relations with their supervisors, subordinates, co-workers
and citizens," Art. 8, §§ 8.1 & 8.3, and provides that failure to
do so may result in disciplinary action; the Regulation of
Corrections Officers of the Administration of Correction, which
requires the conduct of corrections officers to be "adequate and in
accordance with the guidelines applicable to the Administration of
Correction," Art. XII, § B; and the Manual for the Application of
Corrective and Disciplinary Measures to the Employees of the
Administration of Corrections, which gives Pereira the authority to
terminate employees who do not conform to the required standard of
conduct, including those who commit "any crime for which charges
are filed or [for which the employee is jailed], which constitutes
a danger to the security or which affects its public funds."
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Entry ID: 5522717

Del Toro requested the hearing and appeared before an
examining officer in January 2007.

His attorney accompanied him

but only presented arguments, not evidence.

In order to preserve

his Fifth Amendment privilege against self-incrimination, Del Toro
did not say anything.

On January 24, Pereira wrote a second letter

to Del Toro, reiterating the regulations that Del Toro had violated
and

dismissing

him

from

the

DCR.

In

that

letter,

Pereira

admonished Del Toro that his conduct was "highly reproachable" and
had violated the victim's "dignity and physical integrity."

As

before, the letter explained the appeal process and, once again,
Del Toro appealed.
Criminal charges were brought against Del Toro in March
2007.

Del Toro was accused of violating articles 142(c) and 289 of

the Puerto Rico Penal Code, as well as article 5.15 of the Weapons
Law.

Article 5.15 relates to firing or pointing weapons, while

articles 142(c) and 289 deal with sexual assault and threatening a
witness.
4917.

See P.R. Laws Ann. tit. 25, § 458n; tit. 33, §§ 4770,

Following a preliminary hearing on November 6, 2007, the

court dismissed the charges because of its finding that there was
no probable cause to support them.
Del Toro's administrative appeal proceeded.

In March

2009, the Investigation, Processing and Appeals Committee (CIPA) of
Puerto Rico reviewed the case and issued its decision affirming the
dismissal.

In addition to setting forth CIPA's findings of fact,

-7-

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Date Filed: 01/31/2011

Entry ID: 5522717

the decision concluded that Del Toro had violated the regulations
that Pereira had cited.
had

been

dropped,

CIPA

Despite noting that the criminal charges
concluded

that

Del

Toro

had

in

fact

committed a sexual assault, saying that his conduct "not only
dishonored the good name of the [DCR] but has vilified the dignity
of men and women equally."

CIPA was particularly incensed at Del

Toro's abuse of his friends' trust, and stated that "[t]here is no
space in the [DCR] nor in any agency with the important purpose of
ensuring the safety of the general public[] for a depraved, immoral
individual lacking values."
On January 30, 2008, Del Toro filed a complaint against
Izquierdo and Pereira in their official and individual capacities,
claiming that they had violated his First, Fifth, and Fourteenth
Amendment

rights.

The

complaint

also

included

political

discrimination claims under Puerto Rico law, and sought both
damages and an injunction to reinstate Del Toro at the DCR and
prevent further political discrimination against him.
After some preliminary skirmishing, the defendants moved
for summary judgment, arguing that Del Toro failed to establish a
prima facie case of political discrimination, that due process was
afforded,

that

the

court

should

not

exercise

supplemental

jurisdiction over the Puerto Rico claims, and that the individual
capacity defendants were entitled to qualified immunity.

The

district court held that the pre-termination process Del Toro

-8-

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Date Filed: 01/31/2011

received satisfied his constitutional rights.

Entry ID: 5522717

The court further

held that he failed to establish a prima facie case of political
discrimination because the evidence did not show that either
defendant knew that he was a member of the NPP.

Alternatively,

even if he did establish his prima facie case, he failed to show
that he was terminated due to his affiliation rather than as a
result of the administrative investigation into the allegations of
rape.

The

court

also

declined

to

exercise

supplemental

jurisdiction over the remaining Puerto Rico claims and dismissed
them without prejudice.

Del Toro then appealed.
II.

We review the summary judgment order de novo.
Ins. Co. v. Lavigne, 617 F.3d 82, 84 (1st Cir. 2010).

Penn-Am.
We assess

the record and draw all reasonable inferences from it in the light
most favorable to Del Toro, the non-moving party.

Gastronomical

Workers Union Local 610 & Metro. Hotel Ass'n Pension Fund v. Dorado
Beach Hotel Corp., 617 F.3d 54, 60 (1st Cir. 2010).

We ignore any

"conclusory allegations, improbable inferences, and unsupported
speculation."

Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325

(1st Cir. 2009).

The grant of summary judgment will be affirmed

where there are no genuine disputes of material fact and the moving
party is entitled to judgment as a matter of law.

Gastronomical

Workers Union Local 610, 617 F.3d at 60; see also Fed. R. Civ. P.

-9-

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56(a)6.

Date Filed: 01/31/2011

Entry ID: 5522717

We need not adopt the district court's reasoning, but may

affirm on any ground made apparent in the record.

Roman v. Potter,

604 F.3d 34, 38 (1st Cir. 2010).
III.
"The First Amendment protects the right of public career
employees . . . to engage in political activities without fear of
adverse employment actions."

Rodríguez-Marín v. Rivera-González,

438 F.3d 72, 79-80 (1st Cir. 2006).

In pursuing such a First

Amendment claim, the plaintiff's prima facie case is established by
introducing evidence that "(1) the plaintiff and the defendant
[have] opposing political affiliations; (2) the defendant has
knowledge

of

the

plaintiff's

affiliation;

(3)

a

challenged

employment action occurred; and (4) political affiliation was a
substantial or motivating factor behind it."

Welch v. Ciampa, 542

F.3d 927, 938-39 (1st Cir. 2008) (alterations omitted) (quoting
Martinez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st Cir. 2007)).
The defendants do not contest that they are members of the PDP and
Del Toro is a member of the NPP, nor do they contest that Del Toro
was fired.

Thus, Del Toro has established the first and third

elements of his prima facie case.

6

In its order granting summary judgment, the district court
correctly cited Federal Rule of Civil Procedure 56(c). Rule 56 was
amended, effective December 1, 2010. The standard for granting
summary judgment now appears in subsection (a), but remains
substantively the same.
See Fed. R. Civ. P. 56 advisory
committee's note; see also Godin v. Schencks, No. 09-2324, 2010 WL
5175180, at *9 n.19 (1st Cir. Dec. 22, 2010).
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Entry ID: 5522717

With respect to the second prong, we agree with the
district court that Del Toro has not shown that Pereira knew of Del
Toro's affiliation with the NPP.

Del Toro admitted that he did not

know Pereira, that he had never spoken -- let alone discussed
politics -- with Pereira, and that the only reason he named Pereira
in the complaint was because he was the Secretary of the DCR.7
Thus, Del Toro did not make out a prima facie case with respect to
Pereira.8
Izquierdo's knowledge of Del Toro's affiliation, on the
other hand, presents a genuine dispute of material fact. Izquierdo
maintains that he did not know that Del Toro was an NPP member
until the complaint was filed -- i.e., almost two years after
Izquierdo alerted Pereira to the pending criminal investigation of
Del Toro.

Del Toro, for his part, has submitted evidence that

Izquierdo knew years before, when he gave Del Toro bad evaluations
and told him, "[Y]ou are going to be one of us, of the 'reds,' you
are going to be a [PDP] member."

Del Toro also stated, under oath,

7

In an attempt to show that Pereira knew of his political
affiliation, Del Toro relies heavily on his sworn statement that
Izquierdo said, "Pereira knows that you filed a claim against us
and that you are a member of the NPP." Because Izquierdo's remark
was an out-of-court statement offered to prove the truth of the
matter asserted, it is hearsay. See Fed. R. Evid. 801(c), 802.
Such hearsay would be inadmissible at trial, and thus cannot be
considered on a motion for summary judgment. See Saccucci Auto
Grp., Inc. v. Am. Honda Motor Co., 617 F.3d 14, 25 (1st Cir. 2010).
8

Although Del Toro was an escort for a former NPP governor,
a position that would suggest to others that he was an NPP
supporter, he does not allege that Pereira knew he held that
position.
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Entry ID: 5522717

that Izquierdo made a number of comments to him beginning in late
March 2006 deriding his NPP affiliation and urging him to switch to
the

PDP

in

order

to

keep

his

job.

This

evidence

directly

contradicts Izquierdo's sworn statement, and thus creates a genuine
dispute of material fact as to whether Izquierdo knew about Del
Toro's political affiliation before the termination.
One prong of the prima facie case remains, however, and
Del Toro has not satisfied it here.
record

that

Del

Toro's

NPP

There is no indication in the

affiliation

was

motivating factor behind his termination.

a

substantial

or

Del Toro had been

working at the DCR, under Izquierdo's supervision, for years
without any adverse employment action taken against him.

In fact,

the great majority of the specific allegations of harassment took
place

after

Del

Toro

self-reported

the

rape

accusation

to

Izquierdo. Izquierdo promptly investigated the matter and reported
it to Pereira.

Del Toro does not suggest that this investigation

or reporting was in any way inappropriate or beyond the scope of
Izquierdo's duties and, given the nature of the alleged crime,
failure to report it to Pereira might well have been dereliction of
duty.
Moreover, the record reflects that it was Pereira who
made the decision to fire Del Toro, not Izquierdo.

Izquierdo

stated that his only participation in the termination, other than
reporting the criminal investigation to Pereira, was to serve as a

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witness to the delivery of Pereira's termination letter.

As we

have explained, there is no admissible evidence in the record that
Pereira knew of Del Toro's political affiliation.

Therefore, the

termination decision by Pereira could not have been motivated by
that affiliation.

Cf. Vazquez v. Lopez-Rosario, 134 F.3d 28, 36

(1st Cir. 1998) (the fact of plaintiff's political differences with
one board member does not establish that the remainder of the board
"acquiesced in a plan to eliminate his position in retaliation for
those differences").

The termination was not illegal unless there

was "'a causal connection . . . linking [it] to plaintiff's
politics.'"

LaRou v. Ridlon, 98 F.3d 659, 662 (1st Cir. 1996)

(quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 58
(1st Cir. 1990)).

Del Toro cannot establish such a connection

where he "'merely juxtapos[es] a protected characteristic'" with
his firing.

Vazquez, 134 F.3d at 36 (alteration omitted) (quoting

Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101 (1st Cir.
1997)).9
Affirmed.

9

In granting summary judgment for the defendants, the
district court relied primarily on its finding that Del Toro had
not shown that either defendant knew about his political beliefs.
The court also briefly noted, consistent with our conclusion here,
that, "assuming that plaintiff was able to establish a prima facie
case, there is still no evidence in the record that would show
plaintiff was terminated because of his political affiliation to
the NPP."
-13-