Reyes-Orta, et al v. Highway and Transportation, et al

Filing

OPINION issued by David J. Barron, Appellate Judge; Michael Daly Hawkins,* Senior Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [14-2172]

Case: 14-2172

Document: 00116949589

Page: 1

Date Filed: 01/25/2016

Entry ID: 5971973

United States Court of Appeals
For the First Circuit
No. 14-2172
SHEILA REYES-ORTA; JOSÉ L. CASTILLO-CARRILLO; CONJUGAL
PARTNERSHIP CASTILLO-REYES,
Plaintiffs, Appellants,
v.
PUERTO RICO HIGHWAY AND TRANSPORTATION AUTHORITY; RUBÉN
HERNÁNDEZ-GREGORAT, in his individual and official capacity as
Secretary of Transportation and Public Works; BRENDA GOMILASANTIAGO, in her individual and official capacity as Executive
Director of Human Resources; CÉSAR MALDONADO-VÁZQUEZ, in his
individual and official capacity as Human Resources Specialist;
INSURANCE COMPANY ABC,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]

Before
Barron, Hawkins,* and Lipez,
Circuit Judges.

Juan M. Frontera-Suau, with whom Kenneth Colon and Frontera
Suau Law Offices, PSC were on brief for appellant.
Michelle Camacho Nieves, with whom Margarita L. MercadoEchegaray, Solicitor General, and Zarel Soto-Acabá, Assistant
Solicitor General, Department of Justice, were on brief for
*

Of the Ninth Circuit, sitting by designation.

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appellees Rubén Hernández-Gregorat, Brenda Gomila-Santiago, and
César Maldonado-Vázquez in their individual capacities.
Yassmin González-Vélez, Counsel for Puerto Rico Highway and
Transportation Authority, was on brief for appellee Puerto Rico
Highway and Transportation Authority and appellees Rubén
Hernández-Gregorat, Brenda Gomila-Santiago, and César MaldonadoVázquez in their official capacities.

January 25, 2016

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HAWKINS, Circuit Judge.

Date Filed: 01/25/2016

Entry ID: 5971973

Plaintiff Sheila Reyes-Orta

alleges that she was stripped of various job duties and was
ultimately terminated from her job at the Puerto Rico Highway and
Transportation Authority ("PRHTA") because of her affiliation
with

the

Popular

Democratic

Party

("PDP").

After

striking

certain exhibits, the district court granted summary judgment
against

her

on

her

First

Amendment

political

discrimination

claims because (1) there was insufficient evidence that actions
short of dismissal constituted adverse employment actions; and
(2) absent any political discrimination, she would have been
terminated

in

any

event

for

nondiscriminatory

reasons.

We

reverse and remand.
I.
A.

Background

Facts
Reyes-Orta has worked for the Puerto Rico government

for

nearly

three

decades.

In

2001,

she

transferred

from

a

position as a human resources program officer at the Industrial
Commission to a higher position, human resources program chief,
at the PRHTA.
In 2001-2002 and 2004, while the PDP administration was
in office, the internal audit offices of both the Puerto Rico
Industrial

Commission

"transfer-promotion."

and
The

PRHTA

investigated

internal

audit

Reyes-Orta's

office

of

the

Industrial Commission found that the certification of job duties

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she provided to get the PRHTA position inaccurately stated that
she

had

supervised

clerical

and

secretarial

personnel

as

an

"essential duty" of her Industrial Commission position.

The

internal

was

audit

office

also

found

that

the

certification

improperly signed by a fellow human resources program officer,
who failed to verify its content and who failed to refer the
matter to the Industrial Commission's human resources director.
The office recommended that the investigation be referred to the
legal division to determine the appropriate corrective measures.
The PRHTA's internal audit office, whose report was
written

by

Juan

Encarnación

in

2004,

also

found

that

the

certification was fraudulent, but it could not determine whether
the certification was a "determining factor" in permitting ReyesOrta's transfer.

It recommended that the PRHTA's human resources

department re-analyze Reyes-Orta's documents to determine if she
should

be

certified

as

qualified;

that

the

legal

division

evaluate the legality and validity of the documents; and that the
agency take appropriate corrective action.
No further action was taken for five years.

By January

2009, Reyes-Orta was in another position, director of the Office
of Position Analysis, Compensation and Fringe Benefits at the
PRHTA.

That month, Luis Fortuño of the New Progressive Party

("NPP") took office as Governor of Puerto Rico after defeating
the PDP incumbent in the 2008 general election.

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Rubén Hernández-

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Gregorat, an NPP member, took over as the PRHTA's executive
director.

Between January and May 2009, Brenda Gomila-Santiago,

also an NPP member, served as Hernández-Gregorat's aide.

In June

2009, she took over as human resources director at PRHTA from
Luis

Sánchez-Casanova,

who

had

occupied

that

position

from

January to May 2009.
On April 29, 2009, El Nuevo Día, the largest newspaper
in Puerto Rico, reported that, according to a PDP legislator,
PRHTA

executive

director

Hernández-Gregorat

had,

four

months

after taking office, given his drivers and aides hefty salary
raises while PRHTA was running a $300 million operational deficit
and was at risk of having to lay off 30,000 public employees and
to halt its projects.
direct

then-human

The article prompted Hernández-Gregorat to
resources

director

Sánchez-Casanova

to

investigate who had leaked the information to the PDP legislator.
Reyes-Orta claims that, during that time, Sánchez-Casanova told
her several times that she should be careful because the "top"
wanted to "cut her head off" and that he was under pressure
because he did not want to take disciplinary action against her.
Reyes-Orta's

co-worker

Sonia

Vélez-Vélez,

who

had

joined

the

PRHTA at the same time as she, claims Sánchez-Casanova also told
her during this time that he was feeling pressured by HernándezGregorat to terminate PDP employees, including Reyes-Orta and
Vélez-Vélez,

and

that

Hernández-Gregorat

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was

looking

for

an

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attorney to justify those terminations.
On May 19, 2009, Sánchez-Casanova wrote a report on his
investigation,

in

which

he

stated

that

two

witnesses

had

identified Reyes-Orta as the source of the leak, something ReyesOrta denied.

The report also stated that he had told Reyes-Orta

that he was going to request a broader disciplinary investigation
by the Office of Industrial Relations and that the leak was
"unacceptable and that, if [Reyes-Orta was the source of the
leak], she should stop [leaking information] . . . since it
affected all of the colleagues of the area."
The

report

was

sent

to

the

Office

of

Industrial

Relations, which then assigned César Maldonado-Vazquez, an NPP
member, to conduct a formal investigation.
interviewed Reyes-Orta on August 31, 2009.

Maldonado-Vázquez
According to Reyes-

Orta, Maldonado-Vázquez told her that he knew she was affiliated
with the PDP; that the past PDP administration had kicked him
out; that the PDP administration "did whatever [it] want[ed] when
granting steps for merit all over without having an assessment
system"; and that she and other employees were going to be laid
off

because

the

resolutions

that

had

allowed

transferred to PRHTA back in 2001 were illegal.

them

to

be

Three days

later, Reyes-Orta sent a letter to Hernández-Gregorat, GomilaSantiago, Maldonado-Vázquez, and others repeating what MaldonadoVázquez

had

said

and

stating

that

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she

felt

humiliated

and

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politically

discriminated

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against

Date Filed: 01/25/2016

during

the

Entry ID: 5971973

interview.

She

received no response.
Reyes-Orta claims that, soon after Gomila-Santiago took
over as human resources director, she stripped Reyes-Orta of
various job duties, and ignored Reyes-Orta's requests to have her
computer fixed.

As a result, Reyes-Orta had no computer between

April 2009 and her eventual termination in May 2010 and had to
depend on other employees to access the software programs she
needed for her job.
In December 2009, Reyes-Orta received a letter from
Hernández-Gregorat stating his intent to declare her appointment
null because an audit had revealed that her 2001 transfer was
illegitimate because she had falsely represented that she had
experience

supervising

qualified

for

her

promotion

violated

office

PRHTA

personnel

position

Puerto

Rico's

and

and

thus

because

merit

her

principle

was

not

transferand

free

competition principle.

According to the letter, the vacancy for

her

been

job

should

have

posted

publicly

before

she

was

appointed.
In January 2010, Hernández-Gregorat issued Resolution
No. 2010-01, which annulled several previous regulations, Nos.
2000-15, 2001-13, and 2001-24, because they ran counter to thenprevailing Puerto Rico law, including the merit principle.

The

resolution authorized the deputy executive director of PRHTA "to

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take

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those

measures

transactions

of

which

personnel

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are

Date Filed: 01/25/2016

legally

enacted

Entry ID: 5971973

pertinent

by

the

for

the

Highway

and

Transportation Authority under the aforesaid Rulings be revised,
corrected, or annulled pursuant to the applicable law."
At Reyes-Orta's request, an informal hearing regarding
her termination was held in March 2010.

The examining officer

upheld Hernández-Gregorat's decision to terminate her because her
appointment was null.

Her official termination date was May 3,

2010.
B.

Procedural History
Reyes-Orta and her husband filed this lawsuit in May

2011, alleging that Defendants PRHTA, Hernández-Gregorat, GomilaSantiago, and Maldonado-Vázquez violated their rights under the
First

and

Fourteenth

Amendments

and

Puerto

Rico

law.

The

district court dismissed Plaintiffs' Fourteenth Amendment claims
and some state law claims at the motion to dismiss stage.

After

several rounds of briefing at the summary judgment stage, the
district court dismissed Plaintiffs' First Amendment claims and
declined supplemental jurisdiction over the remaining state law
claims.
In its summary judgment order, the district court held
that

the

El

Nuevo

Día

investigation,

the

stripping

of

job

functions, and the loss of Reyes-Orta's computer, "even taken
together,"

did

not

constitute

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"adverse

employment

actions"

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because there was no evidence that the El Nuevo Día investigation
was

directed

investigated
Defendants

Reyes-Orta

because
changed

illegitimate
problems.

at

way;

of
her

or

specifically

her
job

that

political
duties

in

Defendants

or

that

she

affiliation;
any

meaningful

caused

her

was
that
or

computer

Reyes-Orta v. Highway & Transp. Auth., No. CIV. 11-

1410 SEC, 2014 WL 4827406, at *5-8 (D.P.R. Sept. 29, 2014).
With regard to Reyes-Orta's claim that her personnel
file was audited and that she was terminated due to political
discrimination,
Reyes-Orta

the

district

established

a

court

prima

found

facie

that,

case,

even

assuming

Defendants

had

established a Mt. Healthy defense by showing that the PRHTA had
even-handedly audited all personnel files and pledged to correct
all

past

personnel

resolutions.

transactions

done

under

legally

invalid

The court rejected Reyes-Orta's attempts to rebut

this evidence with evidence that all of the personnel terminated
as a result of these audits were PDP members and that the audits
began even before Hernández-Gregorat issued Resolution No. 201001.1
Plaintiffs argue that the district court erroneously
excluded some of their exhibits in evaluating their claims.
1

They

The district court also held that Plaintiffs' § 1983 claims
against Maldonado-Vázquez were time-barred and that their civil
rights conspiracy claims against all of the Defendants were
inadequately pled.
Reyes-Orta, 2014 WL 4827406, at *11-12.
Plaintiffs do not appeal these decisions.
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also argue that the district court wrongly relied on inadmissible
evidence from Defendants and discounted Plaintiffs' evidence in
evaluating Defendants' Mt. Healthy defense.
We agree that the district court erred in granting
summary judgment and therefore reverse and remand the case.
II.
A

district

reviewed de novo.

Standard of Review

court's

grant

of

summary

judgment

is

United States ex rel. Jones v. Brigham &

Women's Hosp., 678 F.3d 72, 83 (1st Cir. 2012).

Summary judgment

is properly granted if the movant can demonstrate that "there is
no genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).

A "genuine" dispute exists when a jury can reasonably interpret
the evidence in the non-movant's favor.
"one

that

might

affect

the

outcome

of

A "material" fact is
the

suit

under

the

governing law." Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150
(1st Cir. 2006) (quoting Morris v. Gov't Dev. Bank of Puerto
Rico, 27 F.3d 746, 748 (1st Cir. 1994)).
A prima facie political discrimination claim has four
elements: "(1) that the plaintiff and defendant have opposing
political affiliations, (2) that the defendant is aware of the
plaintiff's affiliation, (3) that an adverse employment action
occurred, and (4) that political affiliation was a substantial or
motivating factor for the adverse employment action." Ocasio-

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Hernández

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v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011)

(quoting Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.
2010)).
If the plaintiff has sufficient evidence to establish a
prima facie case, the burden then shifts to the defendants to
show that "(i) they would have taken the same action in any
event; and (ii) they would have taken such action for reasons
that are not unconstitutional."

Vélez-Rivera, 437 F.3d at 152

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 286-87 (1977)).

A defendant can defeat liability under

Mt. Healthy "by showing that plaintiffs' positions were obtained
in violation of Puerto Rico law and that, even if political
animus

was

a

factor,

defendants

would

have

taken

corrective

action anyway against every employee whose position was obtained
in violation of law."

Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d

121, 131 (1st Cir. 2004); see also Reyes-Pérez v. State Ins. Fund
Corp., 755 F.3d 49, 54-55 (1st Cir. 2014) (affirming summary
judgment

in

defendants'

favor

where

the

government

employer

conducted agency-wide, merit-principle audits of all personnel,
not just individuals of a particular party); Soto-Padró v. Pub.
Bldgs.

Auth.,

675

F.3d

1,

6

(1st

Cir.

2012)

("[E]ven

if

a

plaintiff shows an impermissible political motive, he cannot win
if the employer shows that it would have taken the same action
anyway, say, as part of a bona fide reorganization.").

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Although

Page: 12

similar

at

Date Filed: 01/25/2016

first

blush

to

the

Entry ID: 5971973

familiar

McDonnell Douglas burden-shifting scheme used in Title VII and
other employment discrimination cases,2 Mt. Healthy is different.
Under

the

three-step

McDonnell

Douglas

test,

retains the burden of persuasion at all times.

the

plaintiff

At the second

step, the defendant's burden of production is only to articulate
some legitimate non-discriminatory reason for its actions; the
burden

then

shifts

back

to

the

articulated reason is pretextual.

plaintiff

to

show

that

the

However, under Mt. Healthy,

there is no third step; the burden of persuasion does not shift
back to the plaintiff.

To establish a successful Mt. Healthy

defense, it is the defendant's responsibility to persuade the
factfinder that it would have made the same decision even if the
illegitimate reason had not been a factor.3

See Welch v. Ciampa,

2

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973).
3

This circuit has stated that, "[i]f the defendant succeeds in
carrying its burden of persuasion as to its Mt. Healthy defense,
the plaintiff may then 'discredit the proffered nondiscriminatory
reason, either circumstantially or directly, by adducing evidence
that discrimination was more likely than not a motivating factor.'"
Reyes-Pérez, 755 F.3d at 55 (quoting Padilla-García v. Guillermo
Rodriguez, 212 F.3d 69, 77 (1st Cir. 2000)). This language makes
an obvious point: in attempting to establish a Mt. Healthy defense
by a preponderance of the evidence, the defendant must overcome any
evidence adduced by the plaintiff. It must not be misconstrued to
say that after the defendant has successfully established a Mt.
Healthy defense, the burden of persuasion shifts back to the
plaintiff. As we explained in Padilla-García:
In a political discrimination case, the plaintiff may
discredit the proffered nondiscriminatory reason, either
circumstantially or directly, by adducing evidence that
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542 F.3d 927, 941 (1st Cir. 2008); Padilla-García v. Guillermo
Rodriguez, 212 F.3d 69, 77-78 (1st Cir. 2000).

Because all

reasonable inferences are drawn in the non-movant's favor at
summary judgment, Padilla-García, 212 F.3d at 73, a defendant
cannot

win

at

summary

judgment

unless

the

only

reasonable

interpretation of the evidence is that the plaintiff would have
been dismissed in any event for nondiscriminatory reasons.
III.
A.

Discussion

Plaintiffs' Prima Facie Case
We address first the Plaintiffs' prima facie case.

The

first element of Plaintiffs' political discrimination claims (the
parties

having

different

political

affiliations)

not

being

disputed, we address the second, third, and fourth elements in
turn.

discrimination was more likely than not a motivating
factor. In this way, the burden-shifting mechanism is
significantly different from the device used in other
employment discrimination contexts, such as Title VII
cases, where a plaintiff is required to come forward with
affirmative
evidence
that
the
defendant’s
nondiscriminatory reason is pretextual. In a political
discrimination case, the defendant bears the burden of
persuading the factfinder that its reason is credible.
The evidence by which the plaintiff established her prima
facie case may suffice for a factfinder to infer that the
defendant’s reason is pretextual and to effectively check
summary judgment.
212 F.3d at 77-78 (citations and footnote omitted).

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1.

The
political
Vélez's

Page: 14

Defendants'
Affiliation
proof

Knowledge

that

affiliation

declarations

Date Filed: 01/25/2016

of

Defendants

includes:
that

(1)

Reyes-Orta's

knew

about

told

Political

Reyes-Orta's

Reyes-Orta's

Sánchez-Casanova

Entry ID: 5971973

and

them

Vélezbetween

January and May 2009 that Hernández-Gregorat was pressuring him
to fire PDP members, including them; and (2) the September 2,
2009

letter

Reyes-Orta

sent

to

Hernández-Gregorat,

Gomila-

Santiago, and Maldonado-Vázquez, among others, complaining about
Maldonado-Vázquez's political comments to her.

Defendants object

that the letter did not affirmatively state that Reyes-Orta was a
PDP

member,

and

that

Reyes-Orta

lacks

personal

knowledge

of

whether the recipients actually read the letter.
Reading the record in the light most favorable to the
Plaintiffs (even striking the Vélez-Vélez declaration, as the
district court did),4 it is reasonable to infer that, given the
4

The district court did not abuse its discretion in striking
Vélez-Vélez's declaration. The district court gave a number of
reasons for doing so: (1) Vélez-Vélez had not been announced as a
witness for the Plaintiffs; (2) the statement was made solely to
create an issue of fact to survive summary judgment, citing OrtaCastro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105,
110 (1st Cir. 2006); (3) her statement lacked foundation; and (4)
her statement constituted inadmissible hearsay. The first ground
is sufficient to justify the district court's decision.
Under
Federal Rule of Civil Procedure 37(c)(1),
If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply

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multiple

references

in

Page: 15

the

Date Filed: 01/25/2016

letter

to

Entry ID: 5971973

Maldonado-Vázquez's

knowledge that Reyes-Orta was a PDP member, a reasonable reader
would have understood Reyes-Orta to be affiliated with the PDP.
As

for

whether

Defendants

received

the

letter,

Reyes-Orta

testified that she personally handed copies of the letter to
Hernández-Gregorat's and Gomila-Santiago's secretaries and to the
receptionist at Maldonado-Vázquez's office.

It is reasonable to

infer from her testimony that Defendants received those copies,
especially

without

counter-evidence

that

they

did

not.

See

Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d

evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
Plaintiffs argue that this sanction is not warranted because (1)
Defendants deposed Vélez-Vélez in her own political discrimination
lawsuit against them, and she testified there to the same facts she
stated in her declaration; and (2) in their responses to
Defendants' interrogatories, Plaintiffs mentioned Vélez-Vélez as a
witness to an alleged discriminatory statement by HernándezGregorat. Plaintiffs did not make these arguments to the district
court and therefore, we need not consider them on appeal.
See
Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003).
Even if we were to consider the arguments on the merits, they are
unpersuasive.
Close review of the dockets in Reyes-Orta's and
Vélez-Vélez's respective cases shows that Vélez-Vélez's deposition
did not take place until discovery had already closed and the
motion for summary judgment was already filed in Reyes-Orta's case,
leaving Defendants no opportunity to examine Vélez-Vélez about
Reyes-Orta's case. Plaintiffs' interrogatory response mentioning
Vélez-Vélez did not give Defendants notice that Vélez-Vélez might
know something about Sanchez-Casanova. Since it is not clear that
the failure to disclose was substantially justified or harmless,
the district court did not abuse its discretion in striking the
Vélez-Vélez declaration and its decision must be affirmed.

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302, 316 n.14 (1st Cir. 2002) (finding it reasonable to infer
that defendant received a faxed letter even though he testified
he was not sure if he received it or not).

Thus, this argument

is also rejected, and we hold that Plaintiffs had sufficient
evidence to sustain a finding that Defendants were aware of
Reyes-Orta's PDP affiliation.

2.

Adverse Employment Action

The district court and parties spend a great deal of
time

discussing

employment
academic.

whether

actions

short

Reyes-Orta
of

suffered

dismissal.

any
is

This

adverse
somewhat

Since it is undisputed that Reyes-Orta was terminated,

and that termination is an adverse employment action, Reyes-Orta
can

proceed

termination

with
whether

her
or

First
not

Amendment
the

actions

claim

based

leading

termination were adverse employment actions.

up

on

her

to

the

And even if they

were not adverse employment actions, they could still be brought
out at trial as evidence that her final termination was motivated
by political animus.
That said, because Plaintiffs have urged throughout
this litigation that certain actions taken against Reyes-Orta
before

dismissal

are

independently

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actionable

as

adverse

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employment actions, we take the time here to explain why we
reverse the district court's grant of summary judgment on this
point.
"Actions

short

of

dismissal

or

demotion,

including

denials of promotions, transfers, and failures to recall after
layoff,

can

constitute

adverse

employment

actions"

if

the

actions, from an objective perspective, make an employee's work
situation "unreasonably inferior" to the norm for his or her
position, placing "substantial pressure on even one of thick skin
to conform to the prevailing political view."

Rodríguez-García

v. Miranda-Marín, 610 F.3d 756, 766 (1st Cir. 2010) (quoting
Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218 (1st
Cir. 1989) (en banc),5 and Bergeron v. Cabral, 560 F.3d 1, 8 (1st
Cir. 2009), abrogated on other grounds by Maldonado v. Fontanes,
568 F.3d 263 (1st Cir. 2009)).
work

situation

'unreasonably
canvass

the

are

"sufficiently

inferior'
specific

To determine whether changes in a

description

ways

in

which

5

severe
--

the

the

to

warrant

factfinder

plaintiff's

the

should
job

has

As this circuit has stated before, "There is some question as to
the continuing vitality of Agosto-De-Feliciano in light of the
Supreme Court's ruling in Rutan v. Republican Party of Illinois,
497 U.S. 62 (1990). Because we conclude, however, that there exist
sufficient genuine and material factual disputes to warrant a trial
even under the arguably more stringent standard set forth in
Agosto-De-Feliciano, we do not reach this issue." Rivera-Ruiz v.
Gonzalez-Rivera, 983 F.2d 332, 335 n.1 (1st Cir. 1993).

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changed."

Page: 18

Date Filed: 01/25/2016

Agosto-de-Feliciano, 889 F.2d at 1218.

Entry ID: 5971973

The plaintiff

must prove by clear and convincing evidence that her new role is
"unreasonably inferior to what the job is supposed to be."

Id.

at 1220.
Here, Reyes-Orta alleges in her unsworn declaration
that the following were adverse employment actions:
(1)

She was prevented from attending meetings related to
her job duties and representing Gomila-Santiago and
Hernández-Gregorat at meetings;

(2)

Gomila-Santiago

"gave

express

instructions

that

all

[personnel appointment] assessments had to be consulted
and performed by her office" and that, once Reyes-Orta
complained,
personnel

Gomila-Santiago
specialized

study

"began
which

to

outsource

the

[Reyes-Orta]

was

supposed to supervise";
(3)

Gomila-Santiago stripped Reyes-Orta of her capacity to
"assign special studies to [her] office personnel" and
she was "prevented from collaborating with" the coDefendants;

(4)

Gomila-Santiago

implemented

an

additional

screening

mechanism for changes in payroll without Reyes-Orta's
consent, which slowed down some of the work in her
division;

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(5)

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Entry ID: 5971973

Reyes-Orta was intentionally deprived of the use of her
computer, the use of which was important to her job;
and

(6)

Gomila-Santiago moved certain personnel files that were
previously under Reyes-Orta's supervision to her own
office and conditioned access to the files on written
request and physical transfer from her secretary.

The district court disregarded evidence of some of these actions,
Reyes-Orta, 2014 WL 4827406, at *7 n.7 (citing Orta-Castro v.
Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 110 (1st
Cir. 2006), among others), and determined that the others did not
constitute an adverse employment action, either individually or
collectively, id. at *8.
As a preliminary matter, the district court abused its
discretion in striking paragraphs 15-17, 19-22, and 27-28 of
Reyes-Orta's
deposition

unsworn

testimony.

declaration
Those

as

paragraphs

contradictory
were

to

her

consistent

with

Reyes-Orta's deposition testimony and her written responses to
Defendants' interrogatories.

The district court thus should have

considered the full list of adverse actions alleged by ReyesOrta.
We do agree with the district court that there is
little evidence that Defendants were responsible for the computer

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problems, given that Reyes-Orta's computer issues started before
Gomila-Santiago became the director of human resources and ReyesOrta admittedly did not follow the proper steps to get a new
computer.

There is also little evidence from which to determine

whether some of the duties taken away from Reyes-Orta, i.e.,
attending meetings, supervising the specialized personnel study,
constituted a significant portion of what her job duties were
supposed to be.

However, given Reyes-Orta's contention that the

personnel files removed from her office were her "primary tool
for exercising [her] duties," and that she used them "daily,"
there is sufficient evidence to find that at least one of the
alleged actions was an adverse employment action.
Further, when these actions are considered together, a
jury could rationally conclude that the cumulative loss of job
functions

constituted

an

adverse

employment

action.

Consequently, we reverse and remand for the jury to determine
whether the adverse employment action element was met in this
case.

3.

Causation

Evidence that Defendants' actions against Reyes-Orta
were

politically

statements

to

motivated

her

during

includes:
the

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El

(1)

Nuevo

Maldonado-Vázquez's
Día

investigation;

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Entry ID: 5971973

(2) Sánchez-Casanova's warnings that she should be "careful";
(3)

Sánchez-Casanova's

similar

statements

to

Vélez-Vélez;

(4) Reyes-Orta's declaration that all the employees fired as a
result

of

the

audit

were

PDP

members;

and

(5)

the

temporal

proximity between the change in administration (January 2009),
the El Nuevo Día investigation (April-September 2009), and the
audit

leading

to

December 2009).

her

termination

(starting

sometime

before

Again, even with the Vélez-Vélez statements

stricken, the rest of the evidence, taken together, raises an
inference that Defendants' actions were politically motivated.
4.

Conclusion

Reyes-Orta made out a prima facie case of political
discrimination.
B.

Defendants' Mt. Healthy Defense
We now turn to the Defendants' Mt. Healthy defense.

The key inquiry at summary judgment is whether Defendants can
show -- with all reasonable inferences drawn in Reyes-Orta's
favor -- that they had a lawful reason to terminate her, that
they would have used that lawful reason to terminate her even if
her political affiliation had not been a factor, and that there
is no genuine dispute of material fact on these issues.
Here, assuming without deciding that Defendants had a
lawful

reason

to

terminate

Reyes-Orta

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(either

because

she

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committed fraud to get her initial position at PRHTA or because
her

transfer-promotion

violated

Puerto

Rico

law),6

summary

judgment was not appropriate because there is a genuine dispute
of material fact as to whether Defendants would have terminated
her absent political factors.
Defendants introduced evidence that all PRHTA personnel
were to be audited pursuant to Resolution No. 2010-01, and that,
as of December 28, 2011, fifty-three employees were audited, with
forty-four having received intention to terminate letters.
these, eleven employees had actually been terminated.

Of

Defendants

provided no information about the political affiliation of these
employees.
actually

Plaintiffs

began

before

introduced
Resolution

evidence
No.

2010-01

that
was

the

audit

issued

in

January 2010, that only ten employees were terminated as a result
of the audit, and that all were PDP members, Plaintiffs also have
evidence of comments by Maldonado-Vázquez and Sánchez-Casanova
that Reyes-Orta would be fired because of her PDP affiliation.
This evidence is sufficient to create a genuine dispute
as to whether Defendants would have fired Reyes-Orta regardless
of her political affiliation.

On the one hand, there is no

6

Because we do not address the legality of Reyes-Orta's
termination under Puerto Rico law, we do not address the district
court's evidentiary rulings regarding the 2004 audit report by
Encarnación and the 2009 audit report by Iris Azalia-Ocasio, which
go only to that issue.

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evidence that Defendants applied the audit in a discriminatory
manner, since the PRHTA purported to audit "all PRHTA personnel,"
which presumably includes both PDP and NPP members.

Evidence of

the audit's disparate impact is not sufficient by itself to rebut
a Mt. Healthy defense.

Vélez-Rivera, 437 F.3d at 154.

the

politicized

audit

began

in

a

atmosphere,

However,

illustrated

by

Sánchez-Casanova and Maldonado-Vázquez's comments to Reyes-Orta
during the El Nuevo Día leak investigation.

The timing of the

agency's decision to pursue termination against Reyes-Orta is
also somewhat suspicious, as she was audited twice before and
nothing was done until Defendants perceived her to be involved in
a leak of a political nature (a PDP legislator exposing NPP
excesses to El Nuevo Día).

Defendants do not make any argument

that they acted against Reyes-Orta on the belief that she was
responsible for the leak.

A jury could reasonably infer from

these facts that Reyes-Orta would not have been terminated but
for

Defendants'

political

animus.

Accordingly,

the

district

court erred in granting summary judgment based on Defendants' Mt.
Healthy defense.
IV.

Conclusion

For the above reasons, we reverse the district court's
grant of summary judgment on Plaintiffs' First Amendment claims
and remand for the district court to reinstate the Puerto Rico

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law claims that it dismissed in its summary judgment order, see
Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312, 328 (1st
Cir. 2015), and to conduct further proceedings in harmony with
this order.
REVERSED AND REMANDED.

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