Febus-Rodriguez et al v. Questell-Alvarado et al

Filing 154

OPINION AND ORDER. GRANTED in part and DENIED in part 56 MOTION for Summary Judgment filed by Municipality of Santa Isabel. Signed by Judge Salvador E Casellas on 9/18/2009.(LB)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

A N G E L FEBUS-RODRIGUEZ, et al P la in tif f s v. Civil No. 06-1627 (SEC) E N R IQ U E QUESTELL-ALVARADO, et al D e f e n d a n ts

O P I N IO N and ORDER P e n d in g before this Court is the Municipality of Santa Isabel's ("Municipality") Motion f o r Summary Judgment (Dockets ## 56 & 72), Plaintiffs' opposition thereto (Dockets ## 113 & 121), and the Municipality's Reply (Docket # 124-2). On July 13, 2009, the Municipality's M a yo r, Enrique Questell-Alvarado ("Questell"), and the Human Resources Director, Natalie R o d rig u e z -C a rd o n a , requested leave to join the Municipality's motion for summary judgment. S a id request is hereby GRANTED. Upon reviewing the filings, and the applicable law, the M u n ic ip a lity, Questell, and Rodriguez's (collectively "Defendants") Motion for Summary J u d g m e n t is GRANTED in part and DENIED in part. F a c tu a l Background O n June 22, 2006, Plaintiffs filed suit against Defendants under Section 1983, 42 U.S.C. § 1983, and Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5 1 4 1 & 5142.1 In the complaint,2 Plaintiffs, employees of the Municipality, allege that they were te rm in a te d from their positions due to their political affiliations with the Popular Democratic Plaintiffs' claims under Law 100, their substantive due process claims, and their request for punitive damages were dismissed by this Court. See Docket # 34. Also, Plaintiffs voluntarily dismissed their COBRA claims. See Dockets ## 38 and 148. Plaintiffs filed the initial complaint on June 22, 2006. Docket # 4. Thereafter they filed an amended complaint (Docket # 5), and a second amended complaint (Docket # 39).
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P a rty ("PDP"), after Questell, the candidate for the New Progressive Party ("NPP"), won the 3 N o v e m b e r 4, 2004 mayoral elections in the Municipality. After extensive discovery, the 4 M u n icipa lity filed a motion for summary judgment on the following grounds: (1) that Plaintiffs' 5 p o litic a l harassment claims are time-barred; (2) that they have failed to adequately state 6 p ro c e d u ra l due process claims; (3) that Plaintiffs have failed to establish a prima facie case for 7 p o litic a l discrimination; (4) that there are legitimate non-discriminatory reasons for Plaintiffs' 8 te rm in a tio n s ; (5) that Questell and Rodriguez are entitled to qualified immunity; and (6) that 9 A n to n ia Leon Alvarado, Juana Ortiz Perez, Jose Sanchez Rodriguez, Sonia Campos-Colon, and 10 L u is Soto Santiago's claims are time-barred. 11 P la in tif f s opposed, arguing that they have set forth a prima facie case for political 12 d isc rim in a tio n , and there are material issues of fact as to Defendants' proffered reason for 13 P la in tif f s ' terminations/demotions that preclude summary judgment. Plaintiffs also posit that 14 Q u estell and Rodriguez are not entitled to absolute immunity. Notwithstanding, Plaintiffs assent 15 to voluntarily dismiss their political harassment claims, except for Candida Jiménez Moreno and 16 C e re id a Muñoz's claims on this issue. Moreover, Plaintiffs concede that Antonia Leon 17 A lv a ra d o , Juana Ortiz Perez, Jose Sanchez Rodriguez, and Luis Soto Santiago's claims are 18 tim e -b a rre d .3 Also, all transitory and Law 52 Plaintiffs assert to voluntarily dismiss their due 19 p ro c e ss claims. Thus, pending before this Court is whether Plaintiffs pled a prima facie case of 20 p o litic a l discrimination, whether Cereida Muñoz and Candida Jiménez's claims for political 21 h a ra ss m e n t are time-barred, whether the career employees' due process claims prosper, and 22 whether Questell and Rodriguez are entitled to qualified immunity. 23 24 25 26 Sonia Campos-Colon claims were dismissed for failure to appear at her deposition. See Docket # 79.
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3 R . FED. CIV. P. 56 4 T h e Court may grant a motion for summary judgment when "the pleadings, depositions, 5 a n s w e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that 6 th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment 7 a s a matter of law." FED.R.CIV.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 8 2 4 8 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). In 9 re a c h in g such a determination, the Court may not weigh the evidence. Casas Office Machs., 10 In c . v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines 11 th e record in the "light most favorable to the nonmovant," and indulges all "reasonable 12 in f e re n c e s in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1 st 13 C ir. 1994). 14 O n c e the movant has averred that there is an absence of evidence to support the 15 n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least 16 o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 17 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be 18 re so lv e d in favor of either party and, therefore, requires the finder of fact to make `a choice 19 b e tw e e n the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 20 1 1 2 , 116 (1st Cir. 2005)(citing Garside, 895 F.2d at 48 (1 st Cir. 1990)); see also SEC v. Ficken, 21 5 4 6 F.3d 45, 51 (1st Cir. 2008). 22 In order to defeat summary judgment, the opposing party may not rest on conclusory 23 a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 24 4 0 7 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 25 5 , 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish 26

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a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once 3 th e party moving for summary judgment has established an absence of material facts in dispute, 4 a n d that he or she is entitled to judgment as a matter of law, the "party opposing summary 5 ju d g m e n t must present definite, competent evidence to rebut the motion." Méndez-Laboy v. 6 A b b o t Lab., 424 F.3d 35, 37 (1st Cir. 2005) (citing Maldonado-Denis v. Castillo Rodríguez, 23 7 F .3 d 576, 581 (1st Cir. 1994). "The non-movant must `produce specific facts, in suitable 8 e v id e n tia ry form' sufficient to limn a trial-worthy issue. . . . Failure to do so allows the 9 s u m m a ry judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 924 10 F .2 d 355, 358 (1st Cir. 1991) (warning that "the decision to sit idly by and allow the summary 11 ju d g m e n t proponent to configure the record is likely to prove fraught with consequence."); 12 M e d in a -M u ñ o z , 896 F.2d at 8 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1 st 13 C ir. 1989)) (holding that "[t]he evidence illustrating the factual controversy cannot be 14 c o n je c tu ra l or problematic; it must have substance in the sense that it limns differing versions 15 o f the truth which a factfinder must resolve."). 16 Uncontested Facts 17 B e c a u s e the instant motion is for summary judgment, the parties must comply with the 18 re q u ire m e n ts of Local Rule 56, and file a statement of facts, set forth in numbered paragraphs, 19 a n d supported by record citations. See Local Rule 56(b). In turn, when confronted with a motion 20 f o r summary judgment, the opposing party must: 21 22 23 24 L o c a l Rule 56(c). If the opposing party fails to do so, "summary judgment should, if 25 a p p ro p ria te , be entered." FED. R. CIV. P. 56(e)(2). These rules "are meant to ease the district 26 [ s ]u b m it with its opposition a separate, short, and concise statement of material f a c ts . The opposition shall admit, deny or qualify the facts by reference to each n u m b e re d paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation a s required by this rule.

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c o u rt's operose task and to prevent parties from unfairly shifting the burdens of litigation to the 3 c o u rt." Cabán-Hernández v. Phillip Morris USA, Inc., 486 F.3d 1, 8(1 st Cir. 2007). When the 4 p a rtie s ignore the Local Rule, they do so at their peril. See Ruiz-Rivera v. Riley, 209 F. 3d 24, 5 2 8 (1st Cir. 2000). 6 In the present case, Defendant complied with Rule 56, and submitted a Statement of 7 U n c o n te s te d Facts (Docket # 72) (hereinafter "Defendant's SUF"), numbered, and supported 8 b y record citations. In opposition, Plaintiffs filed a statement of contested material facts 9 (" P la in tif f s ' SCMF"), as well as 51 additional uncontested facts ("Plaintiffs' AUF"). Docket 10 # 121. Defendants did not oppose Plaintiffs additional uncontested facts, and as such, this Court 11 w ill deem uncontested those facts that are properly supported by the record. 12 Upon reviewing the record, this Court finds that the facts set forth at Defendant's SUF 13 ¶ ¶ 1, 2, 14,4 1 9 -2 3 , 26, 30, 32, 39, 41-45, 49 and 52 were admitted by Plaintiffs, and as such, are 14 d e e m e d uncontested.5 However, Plaintiffs properly controverted Defendants' SUF ¶ ¶ 3, 4, 5, 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiffs failed to provide record citations in opposition to Defendant's SUF ¶ ¶ 6 and 16. The citation provided at Defendant's SUF ¶ 7 does not lend support to said statement, and as such, will be disregarded upon ruling on the instant motion. Moreover, Defendants' SUF ¶¶ 8 and 9 are irrelevant to the issues raised in the motion for summary judgment.
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Plaintiffs allege that although Ordinance # 28 was approved by the Municipal Assembly, the economic needs study was never submitted to the Assembly, and instead, the presentation and approval process was controlled by Reinaldo Melendez, Irma Vargas, and Rodriguez.

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3 B a s e d on the foregoing, this Court finds that the following pertinent facts, are 4 u n c o n te s te d : 5 O n November 2, 2004, General Elections were held in Puerto Rico. Defendants' SUF 6 ¶ 1. Prior to the 2004 elections, the PDP had been in power in Santa Isabel for eight years, from 7 1 9 9 6 to 2004. Plaintiffs' AUF ¶ 1. In the 2004 Elections, Questell ran under the insignia of the 8 N P P , in the mayoral race for the Municipality, and defeated Angel Sánchez Bermúdez, the 9 in c u m b e n t Mayor running for reelection under the PDP. Defendants' SUF ¶ 2. According to 10 som e of the plaintiffs' testimony, the 2004 municipal elections were heavily contested, and there 11 w a s a heated political atmosphere throughout Santa Isabel. Plaintiffs' AUF ¶ 1. During this 12 p e rio d , the NPP campaign continuously played and/or ran a musical jingle which stated "You 13 a re all 14 15 16 17 18 19 20 21 22 23 24 25 26 Although Defendants' SUF ¶ 17 proposes that, as of 2005, the Municipality lacked a system to evaluate the employees' performance, the document at Exhibit 12 shows that a system was in place since 2002. Plaintiffs also showed that some regular employees were dismissed prior to July 1, 2005, and thus their files were not reviewed in order to determine the years of service accrued by those employees. Defendants SUF ¶ 25 avers that per the Mayor's request, Rodriguez submitted a list of positions to be eliminated within each job classification, which was supposed to be based on information provided to Rodriguez by the heads of the municipality's departments, whereas Defendants' SUF ¶ 27 proposes that the Mayor did not have any involvement in these matters. However, Plaintiffs show that, pursuant to Rodriguez's deposition testimony, she did not recall if all the department heads complied with the mayor's request, and that some directors channeled the information directly to the mayor.
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Specifically, at SUF ¶ 15, Defendants aver that Municipal Ordinance No. 28 ("Ordinance 28") complies with the Office of the Commissioner for Municipal Affairs's ("OCAM") recommendation as to the procedural steps in the implementation of a layoff plan. However, OCAM's recommendation, included as Exhibit 11, is dated July 29, 2005, and Ordinance 28 was approved on June 27, 2005. Since the Ordinance's approval date precedes OCAM's letter, this Court cannot conclude that the Ordinance was expressly enacted in compliance with the recommendations set forth in the letter, albeit the former's content may coincidentally conform with the latter's recommendations.

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g o in g out", referring to the ousting of the PDP municipal employees. Id. After Questell won the 3 e le c tio n in November 2004, the above-mentioned "jingle" continued to be played throughout 4 S a n ta Isabel during the months of January, February and March, 2005. Id. at 2. Moreover, 5 s h o r t ly after his election, on December 16, 2004, Questell filed a writ of mandamus in the 6 C o m m o n w e a lth 's Court, Ponce Superior Section, against Sánchez Bermúdez, and other six 7 m e m b e rs of his staff, seeking to compel the transition process, as provided under the 8 A u to n o m o u s Municipalities Act. P.R. Laws Ann. tit 21§ 4111. Defendants' SUF ¶ 3. In January 9 2 0 0 5 , the Municipality retained the services of an accounting firm, to conduct an assessment 10 o f the budgetary situation. Id. at 5. 11 O n June 8, 2005, the Santa Isabel Municipal Legislature passed Municipal Ordinance # 12 2 8 ("Ordinance 28 "), to approve a Plan to lay off, transfer, or demote municipal employees 13 b a s e d on the needs of the Municipality and/or the availability of municipal funds. Id. at 14. 14 O rd in a n c e 28 became a municipal law after Questell signed it on June 27, 2005. Id. Said 15 o rd in a n c e was posted in bulletin boards in each department of the Municipality. Id. at 16. On 16 J u ly 29, 2005, the OCAM issued Circular Letter 2005-10, defining the particular process to 17 f o llo w for the approval and implementation of a municipal Lay Off plan, in compliance with 18 th e Autonomous Municipal Act. Id. at 13.9 OCAM's Circular Letter 2005-10 encouraged all 19 m u n ic ip a litie s to have an approved Lay Off plan, even if its implementation had not yet been 20 d e c id e d . Id. 21 Questell did not have any involvement in the review of personnel files, nor participated 22 in the draft of the lists detailing the years of services and seniority status of the career municipal 23 e m p lo ye e s . Id. at 19. The career employees were notified on or around of August 1, 2005, by 24 th e Human Resources Department with a written notice of his/her years of public service, 25 26
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The document at Exhibit 11 (Docket # 72-14) is dated July 29, 2005, not June 2005.

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p u rs u a n t to the personnel records reviewed. Id. at 20. In said written notice, each employee was 3 a d v ise d of his/her right to request within ten days, corrections with regards to the years of public 4 s e rv ic e informed, and to submit the documents in support thereof. Id. Copies of the preliminary 5 l i s t prepared by the Human Resources Department with the information of years of public 6 s e rv ic e s accrued by all the municipal employees were posted in the bulletin boards of the 7 M u n ic ip a lity. Id. at 21. Nineteen employees, six of them Plaintiffs in this case, requested 8 c o rre c tio n s and amendments to the Human Resources Department regarding the information of 9 h is/h e r years of public service. Id. at 22. After the Human Resources Department reviewed the 10 c o rre c tio n s requested by said employees, an amended list with the seniority status of all the 11 c a re e r employees was issued on or around of September 2, 2005, with the changes requested 12 b y each employee. Id. at 23. Copies of the Amended List of Seniority Status were posted in the 13 b u lle tin boards at the Municipality's City Hall. Id. 14 O n September 1, 2005, Questell gave Rodriguez written instructions to perform an 15 e v a lu a tio n of the existing positions, and to submit recommendations as to the number of job 16 p o s ts that could be eliminated to deter the budgetary deficit. Id. at 24.1 0 On September 15, 2005, 17 Q u e s te ll sent a letter to Rodriguez, ordering the elimination of 44 positions. Id. at 26. Also in 18 S e p te m b e r 2005, Mayor Questell requested an updated assessment from the external financial 19 a d v iso rs and to the Finance Director regarding the Municipality's financial status. Id. at 28. As 20 a result of Questell's request, accountant Reinaldo Meléndez, and the Finance Director, Irma 21 22 23 24 25 26 Plaintiffs argue that Exhibit 20, provided in support of Defendants' SUF ¶ 24, does not mention "without affecting the provision of services." Upon reviewing the record, this Court finds that the document at Exhibit 20 does not include said wording. As such, that portion will be disregarded by this Court.
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V a rg a s ("Vargas"), issued on October 5, 2005 a "Transition Report" stating the Municipality's 3 f in a n c ia l status after the closing of FY 2004-2005. Id. at 6 11 and 28. 4 T h e Transition Report listed, among others, the following findings about the 5 m u n ic ip a lity's fiscal status: that 82% of the municipal budget for FY 2004-2005 was 6 c o m p ro m is e d for payroll and fringe benefits of the municipal employees, leaving only 18% of 7 th e budget to render services to citizens and permanent public works, more than 50% of the 8 o p e ra tio n a l budget for that fiscal year had been spent by the outgoing administration, despite 9 th e fact that it was an electoral year, that the revenues had been grossly overestimated while the 10 e x p e n s e s were underestimated, and that the operational budget of the Municipality would 11 in c re a s e to $15 million. Id. 12 A c c o rd in g to the audits performed by the PR Comptroller's Office, the Municipality had 13 th e following accumulated budgetary deficits in the previous fiscal years: $3,482,841 in 200014 0 1 ; $4,921,762 in 2001-02; $3,557,466 in 2002-03; $3,832,308 in 2003-04; $7,261,639 in 200415 0 5 ; $6,062,699 in 2005-06; and $3,278,031 in 2006-07. Id. at 10.1 2 According to the latest audit 16 p e rf o rm e d by the PR Comptroller's Office in the Municipality, the accumulated deficits 17 re f le c te d for the last fiscal four years represent the following percentages of the municipal 18 b u d g e ts 45%, 83%, 75%, and 41%, respectively. Id. at 11.1 3 The audits conducted by the PR 19 C o m p tro lle r's Office also reflect that for FY 2004-05, the number of municipal employees -thus 20 21 22 23 24 25 26 This Court notes that albeit Defendants state that the Transition Report is dated February 15, 2009, the document provided in support of said statement shows that the report is dated October 5, 2005. Moreover, this Court will consider the exact wording provided in said report.
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Plaintiffs note that the information therein cited refers to "accumulated deficits."

Plaintiffs note that Exhibit 8, cited at Defendants' SUF ¶ 11, also shows that the Municipality's ordinary expenses and public debt increased during the 2005-2006, and 2006-2007 fiscal years.

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t h e payroll costs and fringe benefits- also reached its highest scores in six years. Id. at 12. 3 H o w e v e r, the non-professional employees and contractors' salaries are not included in said 4 a m o u n ts, since they were not considered as Municipality employees. Id. The most recent audit 5 a ls o shows a deficit reduction achieved mainly in the FY 2006-2007. Id. at 37. 6 On October 17, 2005, the Santa Isabel Municipal Legislature approved Municipal 7 O rd in a n c e No. 21 (Series 2005-2006), to amend sections 7 and 10 of Municipal Ordinance 8 (S e rie s 2004-2005). Pursuant to that amendment, other financial alternatives to be evaluated by 9 th e Municipality in order to avoid laying off employees, would be available only if considered 10 v ia b le under the financial constraints endured by the Municipality. Id. at 30. On October 18, 11 2 0 0 5 , when news of the imminent dismissals of the PDP career employees spread throughout 12 th e Santa Isabel City Hall, a group of PDP affiliates and employees, including many of the 13 p la in tif f s in this case, gathered in front of City Hall to protest the imminent dismissals. 14 P la in ti f f s ' AUF ¶ 3. While the multitude gathered outside of City Hall, several of the PNP 15 e m p lo ye e s that remained working inside laughed at, and mocked the crowd outside. Id. On even 16 d a te , written layoff notices were handed to certain municipal career and transitory employees. 17 D e f e n d a n ts ' SUF ¶ 31.14 P u rs u a n t to the terms of the notice, the layoff would become effective 18 a f te r 30 days from receiving the letter. Id. The letter also advised all discharged employees 19 a b o u t their right to appeal their dismissal to the Puerto Rico Appellate Commission of the 20 H u m a n Resources System (known as "CASARH" for its Spanish language acronym). Id. at 32. 21 N in e te e n career employees laid off on November 2005 filed an appeal before CASARH. Id. at 22 3 2 . Three of the employees laid off on November 2005 were offered posts under Law 52 23 c o n tra c ts that became vacant that same month. Id. at 33. 24 25 26 This proposed fact is partially admitted by Plaintiffs. However, there is controversy as to the specific amount of employees that were served the written layoff notice.
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A c c o rd in g to Questell's July 23, 2008 deposition testimony, he did not know how many 3 e m p lo ye e s worked for the municipality during fiscal years 2005, 2006, 2007 and 2008. 4 P la in tif f s ' AUF ¶ 7. He pointed out that Rodriguez, as Human Resources Director, knows the 5 a m o u n t of municipal employees. Id. at 8. However, Questell declared that, after June 30, 2005, 6 th e Municipality hired and/or appointed employees. Id. at 27. Moreover, he does not recall 7 w h e th e r the Municipality instituted a hiring freeze when the layoff plan was being carried out. 8 Id . at 26. 9 N a ta lie Rodriguez, Human Resources Director 10 N a ta lie Rodríguez Cardona began as the Human Resources Director in February 2005. 11 D e f e n d a n ts ' SUF ¶ 41; Plaintiffs' AUF ¶ 9. Before February 2005, Rodriguez never worked for, 12 n o r occupied any position with the Municipality. Defendants' SUF ¶ 41. Rodríguez is not a 13 p o litic a l activist, nor has she been in the past; her involvement in politics has been limited to 14 s e rv in g in the 2000 General Elections as a polling station volunteer for the NPP at a school in 15 S a n ta Isabel. Id. at 42. Before becoming the Human Resources Director, Rodriguez had only 16 p e rs o n a lly met very few of the Plaintiffs in the context of her immediate prior work as a teller 17 in a Coop Bank in Santa Isabel. Id. at 43. 18 According to Rodriguez, she did not have any personal involvement in the final decision 19 ta k e n in regards to the job posts and classifications to be eliminated, since her participation was 20 lim ite d to providing, through a letter dated September 12, 2005, the information gathered from 21 th e directors of the municipal departments as to the number of positions needed in each work 22 u n it. Id. at 44. Rodríguez did not have any personal involvement in the decision not to renew 23 a n y of Plaintiffs' contracts. Id. at 45. During her tenure as Human Resources director, 24 R o d rig u e z never received written instructions stating that there was a hiring freeze at the 25 26

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M u n ic ip a lity, and she did not have any knowledge that positions were frozen in 2005. Plaintiffs' 3 A U F ¶ 11. 4 Ana Cora Silva 5 A n a Cora Silva was a transitory employee working at the Community Development 6 B lo c k Grant Federal HUD program, as a Labor Regulations Technician. Plaintiffs' AUF ¶ 36. 7 C o ra and Nitza Sánchez Rodríguez prepared the HUD Federal Proposal for the fiscal year 20058 2 0 0 6 (October 1 to September 30). Id. at 37. When HUD approved said proposal, it included 9 b o th of these plaintiffs' names as employees, and later both names were crossed out by 10 s u p e rv is o r Edwin Rodríguez and Questell. Id. Luz Yahaira Pabón, a PNP affiliate at that time, 11 b e c a m e the Labor Standards Technician. Id. 12 Angel Febus 13 A n g e l Febus held the career position of Recycling Coordinator. Id. at 40. Febus was a 14 p o litic a l activist of the PDP, and Questell recognized him as such. Id. at 42. Febus led a PPD 15 p ro te s t-ra lly in October 2005 in front of City Hall. Id. at 44. He was also a delegate of 16 A E E L A .1 5 Id. at 43. During a meeting with Questell, held on August 18, 2005, Febus requested 17 th a t the Municipality pay AEELA the remittances owed for its employees. Id. The 18 M u n ic ip a l i t y' s failure to pay said remittances prompted him to file an injunction before the 19 P o n c e Court. Id. 20 A p p lic a b le Law and Analysis 21 P o litic a l Discrimination Claims 22 T h e Supreme Court has held that Section 1983 in itself does not confer substantive 23 rig h ts , but provides a venue for vindicating federal rights elsewhere conferred. See Graham v. 24 25 26 Spanish acronym for "Asociación de Empleados del Estado Libre Asociado", meaning Association of the Employees of the Commonwealth.
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M .S . Connor, 490 U.S. 386, 393-94 (1989). In the instant case, Plaintiffs' Section 1983 claims 3 a re based on alleged violations of the First Amendment. In order to prove liability under Section 4 1 9 8 3 , "plaintiffs must show by a preponderance of the evidence that: (1) the challenged conduct 5 w a s attributable to a person acting under color of state law; and (2) the conduct deprived the 6 p la in tif f of rights secured by the Constitution or laws of the United States." Id. (citing 7 V e le z -R iv e ra v. Agosto-Alicea, 437 F.3d 145, 151-52 (1st Cir. 2006). "While plaintiffs are not 8 h e ld to higher pleading standards in section 1983 actions, they must plead enough for a 9 n e c e s sa ry inference to be reasonably drawn." Marrero, 491 F. 3d at 10. Moreover, when 10 a lle g in g political discrimination under Section 1983, plaintiffs must produce evidence that 11 p a rtis a n s h ip was a substantial or motivating factor in the adverse employment action. See 12 M a ym i v. P.R. Ports Authority, 515 F.3d 20, 25 (1 st Cir. 2008). 13 T h e First Circuit has held that "[t]he right to associate with the political party of one's 14 c h o ic e is an integral part of the basic constitutional freedom to associate with others for the 15 c o m m o n advancement of political beliefs and ideas protected by the First Amendment." 16 C a rra sq u illo v. Puerto Rico, 494 F.3d 1, 4 (1st Cir. 2007) (citing Kusper v. Pontikes, 414 U.S. 17 5 1 , 56-57 (1973)). As a general rule, "the First Amendment protects associational rights... [and] 18 th e right to be free from discrimination on account of one's political opinions or beliefs." 19 G a llo z a v. Foy, 389 F. 3d 26, 28 (1s t Cir. 2004). Since public employees "generally enjoy 20 p ro te c tio n from adverse employment actions based on their political affiliations," this Circuit 21 h a s held that "a government employer cannot discharge public employees merely because they 22 a re not sponsored by or affiliated with a particular political party." Id.; see also Maymi, 515 23 F .3 d at 25; Carrasquillo, 494 F.3d at 4 (citing Branti v. Finkel, 445 U.S. 507, 517-19, 100 S. Ct. 24 25 26

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1 2 8 7 , 63 L. Ed. 2d 574 (1980)).1 6 This protection extends to career employees, trust employees, 3 tra n s ito ry employees, and independent contractors. Martinez-Baez v. Rey-Hernandez, 394 F. 4 S u p p . 2d 428, 434 (D.P.R. 2005) (citing Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 98 (1 st 5 C ir. 1997)); see also O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996). 6 T h e First Amendment's protection against political discrimination also extends to 7 a d v e rse employment actions short of dismissal; that is, "promotions, transfers and recalls after 8 la yo f f s based on political affiliation or support are an impermissible infringement on the First 9 A m e n d m e n t rights of public employees." Rutan v. Republican Party, 497 U.S. 62, 75 (1990). 10 F u rth e rm o re , it "includes changes in employment, which, although not as extreme as dismissal, 11 re s u lt in working conditions `unreasonably inferior' to the norm for the position at issue." 12 C a rra sq u illo , 494 F.3d at 4 (citations omitted). Thus the government "may not deny a benefit 13 to a person on a basis that infringes his constitutionally protected interests- especially his 14 in te re s t in freedom of speech[; for] if the government could deny a benefit to a person because 15 o f his constitutionally protected speech or associations, his exercise of those freedoms would 16 in effect be penalized and inhibited. This would allow the government to produce a result which 17 it could not command directly." Rutan, 497 U.S. at 72. 18 Political discrimination claims must be reviewed through a burden-shifting scheme: the 19 p la in tif f must first show that "he engaged in constitutionally protected conduct, and that this 20 c o n d u c t was a substantial or motivating factor for the adverse employment decision." Mt. 21 H e a lth y v. Doyle, 429 U.S. 274, 287 (1977) (superseded on different grounds); Carrasquillo, 22 4 9 4 F.3d at 4; Padilla v. Rodríguez, 212 F. 2d 69, 74 (1st Cir. 2000). Thus in order to establish 23 a prima facie case of political discrimination, a plaintiff must demonstrate "that party affiliation 24 25 26 The First Amendment also protects against other adverse employment actions, such as demotions. See Marrero v. Molina, 491 F. 3d 1 (1st Cir. 2007).
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w a s a substantial or motivating factor behind a challenged employment action." Marrero, 491 3 F . 3d at 9. The First Circuit has held that a plaintiff must first "make four showings": (1) that 4 th e plaintiff and the defendant belong to opposing political affiliations; (2) the defendant has 5 k n o w le d g e of the plaintiff's opposing political affiliation; (3) there is a challenged employment 6 a c tio n ; and (4) there is sufficient direct or circumstantial evidence that political affiliation was 7 a substantial or motivating factor in defendant's decision. Peguero-Moronta v. Santiago, 464 8 F .3 d 29, 48 (1st Cir. 2006) (internal citation and quotation omitted); see also Monfort-Rodriguez 9 v . Rey-Hernandez, 599 F. Supp. 2d 127, 168 (D.P.R. 2008). 10 When the plaintiff satisfies this initial burden, the burden then shifts to the defendant to 11 s h o w that "it would have taken the same action regardless of the plaintiff's political beliefs12 c o m m o n ly referred to as the Mt. Healthy defense." Padilla, 212 F. 2d at 74; Carrasquillo, 494 13 F .3 d at 4; Torres-Martinez v. P.R. Dept. Of Corrections, 485 F.3d 19, 23 (1 st Cir. 2007); 14 R o d ríg u e z -R ío s v. Cordero, 138 F. 3d 22 (1st Cir. 1998). That is, the defendants must 15 " d e m o n s tra te that (i) they would have taken the same action in any event; and (ii) they would 16 h a v e taken such action for reasons that are not unconstitutional." Velez-Rivera v Agosto-Alicea, 17 4 3 7 F.3d 145, 152 (1st Cir. 2006) (citing Mt. Healthy, 429 U.S. at 286-87). If the defendant 18 m a k e s such a showing, the plaintiff may attempt to discredit the tendered nondiscriminatory 19 re a s o n with either direct or circumstantial evidence. Id. at 153. In determining the sufficiency 20 o f Plaintiffs' evidence, the First Circuit has held that although a highly charged political 21 a tm o sp h e re alone cannot support an inference of discriminatory animus, when coupled with "the 22 f a c t that plaintiffs and defendants are of competing political persuasions, may be probative of 23 d isc rim in a to ry animus." Rodríguez-Ríos, 138 F. 3d at 24. Notwithstanding, political 24 d isc rim in a tio n claims always require "that defendants have knowledge of the plaintiffs['] 25 26

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p o litic a l affiliation." Martinez-Baez, 394 F. Supp. 2d at 434; Hatfield-Bermudez v. Aldanondo3 R iv e ra , 496 F.3d 51, 61-62 (1 st Cir. 2007). 4 In their motion for summary judgment, Defendants aver that Plaintiffs have failed to 5 e s ta b lis h a prima facie case of political discrimination. Specifically, they aver that Plaintiffs 6 h a v e not shown that Questell and Rodriguez knew all of Plaintiffs' political affiliations. As to 7 R o d rig u e z , Defendants contend that she did not know any of the Plaintiffs' herein political 8 a f f ilia tio n . However, they concede that Questell personally knows 24 of the Plaintiffs, and is 9 a w a re that said plaintiffs are PDP affiliates. Defendants further contend that the evidence set 10 f o rth by Plaintiff is insufficient to raise their claims above the speculative level, that is, to 11 e s ta b lis h a causal link between the adverse employment action and the alleged discriminatory 12 a n im u s . According to Defendants, Plaintiffs' allegations that Defendants knew about their 13 p o litic a l affiliation because they participated as election officials during elections, and attended 14 p o litic a l rallies as PDP members have been rejected by this Circuit. Notwithstanding, 15 D e f e n d a n ts also proffer a legitimate non-discriminatory reason for the employment actions 16 ta k e n against Plaintiffs. Specifically, they argue that the Lay Off Plan was implemented due to 17 the Municipality's financial crisis, and was not politically motivated. Thus Defendants posit that 18 they would have taken the same action in any event for non-discriminatory reasons. 19 In opposition, Plaintiffs argue that the Layoff Plan, implemented through Ordinance 28, 20 was hastily approved, without prior studies and recommendations regarding the alleged 21 f in a n c ia l crisis. They further note that although Ordinance 28 provides five alternatives to be 22 c o n s id e re d prior to dismissal, that is, re-assignment of personnel, re-training of employees, 23 le a v e without pay, reduction of working hours, and demotions, per Rodriguez admission, these 24 w e re never offered to Plaintiffs prior to their dismissals. Plaintiffs also contend that the fact that 25 s e n io rity was only considered within each job classification negated the senior employees' 26

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rig h ts . Plaintiffs aver that albeit Ordinance 28 was subsequently amended on October 2005, all 3 e m p lo ye e s that were terminated between June 30 and October 2005 were entitled to the above4 m e n tio n e d alternatives. Notwithstanding, Plaintiffs posit that the day after Ordinance 28 was 5 a m e n d e d , most of the plaintiffs received their termination letters. According to Plaintiffs, the 6 2 0 0 4 elections were hotly contested, and this led to politically motivated employment actions. 7 M o re o v e r, they argue that despite the Municipality's alleged financial crisis, it continued to hire 8 n e w employees in 2005, 2006, 2007, and 2008. They also point out that the Municipality's 9 re g u la r expenses, and public debt increased during fiscal years 2005-2006, and 2006-2007. 10 Based on the foregoing, Plaintiffs argue that Defendants' Mt. Healthy defense is pre-textual. 11 In the present case, there is no controversy as to the fact that Plaintiffs and Defendants 12 b e lo n g to opposing political affiliations, and that there is a challenged employment action. Thus 13 th is Court's analysis hinges on whether Defendants knew about Plaintiff's opposing political 14 a f f ilia tio n , and whether there is sufficient direct or circumstantial evidence that political 15 a f f ilia tio n was a substantial or motivating factor in Defendants' decision. 16 Per the uncontested facts, Questell admits that he could not discard knowing many of the 17 p l a in tif f s by their nicknames, since he may recognize them if he sees them in person, even 18 th o u g h he may not know their full names. Plaintiffs' AUF ¶¶ 7 and 25. Notwithstanding, as of 19 2 0 0 5 , he admittedly knew the following Plaintiffs by name: Angel Febus Rodríguez, Eugenio 20 R e ye s Alomar, Emma Espada Soto, Julio Espada Soto, Alma Jusino, Alma Mora, Cereida 21 M u ñ o z , Farelyn Torres Colón, Karen Soldevila Muñoz, Luis Ithier Correa, Zasha Martínez 22 P a le rm o , Ravindranas Laboy, Candida Jiménez,Angelita Rodríguez Colón, Héctor Rivera, 23 B e n o n i Vega Suárez, Evelyn Leandry, Pablo Torres Rodríguez, Evelyn Rivas, Leslie Rentas, 24 S o n ia Campos, Ana Cora and Carlos Hernández Alvarado, Silverio Cruz, and Angelo Pedroso. 25 26

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D e f e n d a n t's SUF at 38. He also knew that said Plaintiffs are PPD affiliates. Id. at 39. Moreover, 3 P la in tif f s showed that Questell knew Lourdes Romero was affiliated with the PDP. Id. at 49.1 7 4 A s to the remaining Plaintiffs, after reviewing the record, this Court finds that although 5 Q u e s te ll admits that he could not discard knowing many of the plaintiffs by their nicknames or 6 f u ll names, Plaintiffs have not shown that Defendants knew each Plaintiffs' political affiliation. 7 T h e First Circuit provides that "[a] prima facie case is not made out when there is no evidence 8 th a t an actor was even aware of the plaintiff's political affiliation." Hatfield-Bermudez, 496 9 F .3 d at 61. In fact, in Gonzalez-Di Blasini v. Family Dep't., 377 F.3d 81, 85-86 (1 st Cir. 2004), 10 th is Circuit upheld the district court's granting of defendants' motion for summary judgment, 11 u p o n finding that plaintiff failed to show that the defendants knew about her political affiliation. 12 T h e Court stated that the fact that plaintiff was a well-known supporter of the opposing party, 13 h a d held previous trust positions under said party's administration, and that was allegedly 14 d e m o te d after they assumed power, was insufficient to show that defendants knew about her 15 p o litic a l affiliation, and that said affiliation was the motivating factor for her demotion. Id.; see 16 a ls o Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42, 48 (1st Cir. 2004) (finding that a PDP 17 M a yo r's statement that he intended to "rid the town of NPP activists" was not enough to show 18 th a t political affiliation was motive for adverse employment action); Acevedo Díaz v. Aponte, 19 1 F.3d 62, 69 (1st Cir. 1993) (holding that the fact that plaintiffs were conspicuous targets for 20 d isc rim in a to ry employment action by defendants because they prominently supported a former 21 m a yo r is not enough to show motive). 22 23 24 25 26 Lourdes Romero, a PDP affiliate, worked at the Municipality until July 31, 2005. Plaintiffs' AUF ¶ 49. Questell knew her personally, as well as her political affiliation. Id. After winning the candidacy for the mayor's position, Questell told Romero he was going to make her switch parties from the PDP to the PNP. Id.
17

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S im ila rly, this district recently granted a municipality defendant's motion for summary 3 ju d g m e n t, holding that "none of the plaintiffs, except [a specified few] offer[ed] evidence that 4 [ d e f e n d a n t] had first-hand knowledge of their affiliations" with the opposing party. Díaz-Ortiz 5 v . Díaz-Rivera, 611 F. Supp. 2d 134, 144 (D.P.R. 2009)(citations omitted); see also Roman v. 6 D e lg a d o -A ltie ri, 390 F. Supp. 2d 94, 102 (D.P.R. 2005)(citing Aviles-Martinez v. Monroig, 963 7 F .2 d 2, 5, (1st Cir. 1992)). The court further noted that "even when circumstantial evidence may 8 b e sufficient to support a finding of political discrimination, plaintiffs must still make a fact9 s p e c if ic showing that a causal connection exists between the adverse employment action and 10 t h e ir political affiliation." Id. (citations omitted); see also Monfort-Rodriguez v. Rey11 H e rn a n d e z , 599 F. Supp. 2d 127 (D.P.R. 2008). 12 The fact that the plaintiffs were municipal employees under the previous administration 13 d o e s not constitute evidence of their political affiliation. Hatfield-Bermudez, 496 F.3d at 62. 14 This Circuit has also held that even when a plaintiff is a well-known supporter of a different 15 p o litic a l party, this may not suffice to show that a challenged employment action is premised 16 o n political affiliation. Gonzalez-De Blasini v. Family Dep't., 377 F.3d 81, 85-86 (1st Cir. 17 2 0 0 4 ). Also, 18 19 20 21 22 R o m a n , 390 F. Supp. 2d at 102-03. Furthermore, mere temporal proximity between an adverse 23 e m p lo ym e n t action and a change of administration is insufficient to establish discriminatory 24 a n im u s . Acevedo-Díaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993). 25 26 a plaintiff cannot prove that the defendant had knowledge of his political a f f ilia tio n merely through: testimony of having been seen, or, for that matter, met d u rin g routine campaign activity participation, having been visited by the now in c u m b e n t while said defendant was a candidate to the position he now holds, by h a v i n g held a trust/confidential/policymaking position in the outgoing a d m in is tra tio n , by having political propaganda adhered to plaintiff's car and/or h o u s e , or throught knowledge of third parties.

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A s in Gonzalez -De Blasini, 377 F.3d 81, 86, the Court recognized that a prima facie 3 c a s e for political discrimination may be built on circumstantial evidence. That is, a plaintiff 4 " n e e d not produce direct evidence of discriminatory treatment (a so-called `smoking gun') to 5 e s ta b lis h a prima facie case of politically discriminatory demotion [or termination]." Aguiar6 C a rra sq u illo v. Agosto-Alicea, 445 F.3d 19, 26 (1 st Cir. 2006). However, most Plaintiffs in this 7 c a s e have not "generated `the specific facts necessary to take the asserted claim out of the realm 8 o f speculative, general allegations" regarding Defendants' knowledge of their political 9 a f f ilia tio n . Gonzalez -De Blasini, 377 F.3d at 86. The fact that Questell, in his deposition 10 te s tim o n y, stated that he may recognize some of Plaintiffs' faces, does not equate knowledge 11 o f their political affiliations. Therefore Plaintiffs' proposition is speculative, and insufficient 12 to satisfy the prima facie case standard. See cf. Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 13 4 3 (1st Cir. 1992) (finding that plaintiff's sworn statement that defendants knew his political 14 a f f ilia tio n is enough to satisfy the prima facie case requisite); Rodriguez-Rios v. Cordero, 138 15 F .3 d 22, 24 (1st Cir. 1998) (holding that the district court erred in granting summary judgment 16 w h e n the plaintiff proffered evidence showing that her PDP affiliation was widely known, and 17 th a t defendants were aware of her political affiliation); Monfort-Rodriguez v. Rey-Hernandez, 18 5 0 4 F.3d 221, 225-226 (1st Cir. 2007) (holding that although plaintiffs did not produce direct 19 e v i d e n c e that Rey was aware of their political affiliation, there was enough circumstantial 20 e v id e n c e - Rey and the human resource personnel's deposition testimony - to render the case 21 m o re circumstantial than speculative). 22 A c c o rd in g ly, if Defendants did not know Plaintiffs' political affiliation, said factor could 23 n o t have been a substantial motivating factor for any adverse employment action. As a result, 24 th is Court finds that most Plaintiffs have "not met the burden of showing that [their] political 25 a f f ilia tio n was a substantial or motivating factor for the challenged employment action[s]." Id. 26

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B a s e d on the foregoing, all Co-Plaintiffs, except Angel Febus Rodríguez, Eugenio Reyes 3 A l o m a r , Emma Espada Soto, Julio Espada Soto, Alma Jusino, Alma Mora, Farelyn Torres 4 C o ló n , Karen Soldevila Muñoz, Luis Ithier Correa, Zasha Martínez Palermo, Ravindranas 5 L a b o y, Angelita Rodríguez Colón, Héctor Rivera, Benoni Vega Suárez, Evelyn Leandry, Pablo 6 T o rre s Rodríguez, Evelyn Rivas, Leslie Rentas, Ana Cora, Carlos Hernández Alvarado, Silverio 7 C ru z , Angelo Pedroso, and Lourdes Romero's political discrimination claims are DISMISSED 8 w ith prejudice. 9 H o w e v e r, this Court must also determine whether the remaining Plaintiffs have sustained 10 th e ir initial burden to show that the last requisite of the four prong test is met, that is, that their 11 p o litic a l affiliation was the motivating or substantial factor behind the alleged adverse 12 e m p lo ym e n t action. In the present case, Plaintiffs have shown that there was a highly charged 13 p o litic a l environment. Pursuant to the uncontested facts, the 2004 municipal elections were 14 h e a v ily contested, and there was a heated political atmosphere throughout Santa Isabel. 15 P la in tif f s ' AUF ¶ 1. In addition to the fact that the NPP campaign continuously played and/or 16 ra n a musical jingle which stated "You are all going out" from November 2004 through March 17 2 0 0 5 (Plaintiffs' AUF ¶ 2), shortly after his election, en December 16, 2004, Questell filed a 18 w r it of mandamus in the Commonwealth's Court, Ponce Superior Section, against mayor 19 S á n c h e z Bermúdez, and other six members of his staff, seeking to compel the transition process. 20 D e f e n d a n ts ' SUF ¶ 3. Moreover, on October 18, 2005, a group of PDP affiliates and employees, 21 in c lu d in g many of the plaintiffs in this case, gathered in front of City Hall to protest their 22 d ism is s a ls , and several of the PNP employees that remained working inside laughed at, and 23 m o c k e d the crowd outside. Plaintiffs' AUF ¶ 3. 24 In political discrimination cases, "[a] highly charged political atmosphere whereby one 25 p a rty takes over power from another, combined with the fact that the plaintiff and defendant are 26

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o f opposing parties may be probative of discriminatory animus." Pagan-Cuebas v. Vera3 M o n ro ig , 91 F. Supp. 2d 464, 474 (D.P.R. 2000). Also, "factors that have been found to show 4 d isc rim in a to ry animus include the fact that the plaintiff was a known member of the opposing 5 p a rty, that the position was then filled by a member of the opposite political party, and that 6 e v e ryo n e of the plaintiff's party was demoted after a change in office." Flores-Camilo v. 7 A lv a re z -R a m ire z , 283 F. Supp. 2d 440, 448 (D.P.R. 2003). Courts must determine whether "the 8 c irc u m s ta n tia l evidence, taken as a whole, gives rise to a plausible inference or discriminatory 9 a n im u s which, ultimately possesses enough convictive force to persuade a rational fact-finder 10 th a t the defendants' conduct was politically motivated?" Id. In this case, this Court finds in the 11 a f f irm a tiv e . 12 Although Defendants proffer a Mt. Healthy defense, arguing that the 2005 Lay Off Plan 13 th a t led to Plaintiffs' terminations was implemented exclusively due to the Municipality's 14 f in a n c ia l crisis, the record shows that pursuant to Rodriguez's testimony, when she started to 15 w o rk in said position, the Municipality had "more or less three hundred fifty (350) employees, 16 a n d as of July 24, 2008, the Municipality had over four hundred (400) employees." Plaintiffs' 17 A U F ¶ 9. She also stated under oath that "at certain times" there have been increases in the 18 n u m b e r of employees at the municipality year by year. Id. Questell also declared that, after June 19 3 0 , 2005, the Municipality hired and/or appointed employees. Id. at 27. Specifically, the 20 M u n ic ip a lity hired new employees as office clerks to substitute PDP followers, such as Gerardo 21 M á rq u e z , who held a trust position. Id. 22 Moreover, pursuant to a certification dated December 15, 2006 by Rodríguez, the 23 M u n ic ip a lity contracted 168 persons through Law 52 funds during fiscal year 2005-2006, 24 d e s p ite allegations that the Law 52 Plaintiffs' contracts were not renewed due to lack of funds. 25 Id . at 38. Although all Law 52 Plaintiffs remained working until the expiration date of their 26

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w o rk contract, none of the law 52 employees in the municipality's roster of January 2005 were 3 e x te n d e d new contracts. Plaintiffs' AUF ¶ 24; Defendants' SUF ¶ 49. Albeit as of July 1, 2005, 4 th e re were no funds approved by the P.R. Department of Labor and Human Resources 5 (" D H L R " ) for Law 52 jobs in the Municipality, on March 14, 2005 the Municipality through 6 Q u e s te ll, completed a Law 52 Proposal seeking funds from the DHLR, for the fiscal year 7 c o m m e n c in g July 1, 2005 and terminating on June 30, 2006. Plaintiffs' AUF ¶ 50; Defendants' 8 S U F ¶ 50. The contract for a new Law 52 proposal was signed between the Municipality and 9 th e DLHR on July 29, 2005, with a commencement date of July 19, 2005. Defendants' SUF ¶ 10 5 1 ; Plaintiffs' AUF ¶ 51. Thus as of June 30, 2005, Evelyn Rivas and Leslie Rentas' contract 11 e x p ira tio n date, the Law 52 proposal had been submitted, and was awaiting approval. Despite 12 th e foregoing, Rodríguez admits that during 2005 she did not request any advice from the 13 D H L R regarding the continuing employment of Law 52 employees. Plaintiffs' AUF ¶ 22. 14 F u rth e rm o re , the letters sent by Mayor Questell to the Law 52 employees did not indicate the 15 re a s o n why they were not being re-hired had to do with an impediment in Law 52. Id. at 23. 16 M o re o v e r, Angelo Pedroso, and Ravindranas Laboy's contracts were terminated on November 17 1 8 , 2008, that is, after the approval of the 2005 Law 52 proposal. Thus, despite the alleged fiscal 18 c r i s is , the Municipality continued to hire new employees throughout 2005, 2006, 2007, and 19 2 0 0 8 . Id. at 6. Furthermore, Plaintiffs note per Exhibit 8, cited at Defendants' SUF ¶ 11, the 20 M u n ic ip a lity's ordinary expenses and public debt increased during the 2005-2006, and 200621 2 0 0 7 fiscal years. 22 Additionally, according to the uncontested facts, the Municipality's federally funded 23 C h ild Care Program's proposal, which had been submitted for approval by the end of July, 24 2 0 0 5 , was discarded because Questell closed the Child Care Center during the month of August, 25 2 0 0 5 . Id. at 41. However, the Child Care Program was re-opened in September, 2005, and NPP 26

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e m p lo ye e s were hired to work in the same capacity as the former employees. Id. Moreover, 3 a c c o rd in g to the testimony of PDP Santa Isabel Assemblyman Justo Torres Morales, as of May 4 2 0 0 5 there were a total of 380 municipal employees and, as of October, 2008, there were one 5 th o u sa n d seventy (1,070) employees at the municipality, the majority being of the PNP working 6 u n d e r professional service contracts. Id. at 10. Also, Luz Yahaira Pabón, a PNP affiliate at that 7 tim e , became the Labor Standards Technician, after Ana Cora was dismissed from said position. 8 Id . at 37. 9 Lastly, pursuant to Rodriguez's deposition testimony, Ordinance 28's alternatives of 10 re d u c in g the work schedule, leave without pay, retraining, reduction in salary/demotion, re11 a s sig n m e n t, re-training, for the municipal employees instead of dismissal was not offered to 12 P la in tif f s not implemented by the Municipality. Id. at 12-21. Rodríguez further stated that she 13 d o e s not know why said alternative was not implemented. 14 M u n ic ip a lity did not evaluate the employees' efficiency. Id. at 16. 15 A s a result, this Court finds that Plaintiffs have properly shown that material issues of 16 f a c t remain as to whether Defendants' actions were motivated by the alleged financial crisis, 17 o r by Plaintiffs' political affiliation. 18 In summary, based on the uncontested facts, the remaining Plaintiffs have made out a 19 p r i m a facie case of political discrimination. Although Defendants proffer a legitimate non20 d isc rim in a to ry reason for their actions, Plaintiffs have raised material issues of fact as to the 21 v a lid ity of Defendants' defense. Considering that the defense of lack of discriminatory animus 22 is a question of fact better left for a jury to decide, Defendants' request for summary judgment 23 24 25 26 She also admitted that the

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o f the remaining Plaintiffs' political discrimination claims is DENIED. See Orraca-Figueroa v . Torres-Torres, 288 F. Supp. 2d 176, 185 (D.P.R. 2003).1 8 C a n d id a Jiménez and Cereida Muñoz's Political Harassment Claims In their motion for summary judgment, Defendants argue that Plaintiff's political h a ra ss m e n t claims are time-barred.1 9 Although most Plaintiffs concede to the dismissal of their p o litic a l harassment claims, Cereida Muñoz and Candida Jiménez argue that their claims on this f ro n t are not time-barred. According to Defendants, Jiménez and Muñoz were not included as p l a i n tif f s in the Complaint filed on June 22, 2006, and albeit they appear as plaintiffs in the O c to b e r 11, 2006 Amended Complaint, they did not assert any claims therein. Defendants f u rth e r aver that insofar as Jiménez and Muñoz stated their "short of dismissal claims" for the f irs t time in the October 2007 Second Amended Complaint, any event that occurred prior to O c to b e r 2006 is time-barred. Upon reviewing the record, this Court notes that, in the October 25, 2007 Second A m e n d e d Complaint, Jiménez and Muñoz set forth "short of dismissal" causes of action, a rg u in g that they were deprived of their duties due to their political affiliation.2 0 Under "short o f dismissal" actions, plaintiffs must satisfy a two prong test, that is, they must show that the re m o v a l of their duties was motivated by their political affiliation, and that the challenged

This Court notes that although Defendants assert that five of the career employees laid off on November 2005 were offered posts under Law 52 contracts that became vacant that month, and Plaintiff counters that only 3 were extended said offers, both parties fail to point out which Plaintiffs were offered Law 52 positions, and if they are currently working at the Municipality. Defendants' SUF ¶ 33. Thus controversy remains as to this issue. They also posit that their claims insufficient under Bell Atlantic Corp. v. Towmbly, 550 U.S. 544, 562-563 (2007). However, this Court denied the Municipality's motion to dismiss on these grounds because controversy remained as to Plaintiffs' claims date of accrual. This issue is now addressed under the summary judgment standard.
20 19

18

They are both are currently employed by the Municipality.

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a c t i o n s resulted in a work environment "unreasonably inferior" to the norm for the position. R o m a n v. Delgado-Altieri, 390 F. Supp. 2d 94, 104 (D.P.R. 2005). In analyzing the "unreasonably inferior" prong, courts shall determine whether "the governments's actions are s u f f ic ie n tly severe to cause reasonably hardy individuals to compromise their political beliefs a n d associations in favor of the prevailing party." Id. (citing Agosto-De Feliciano v. AponteR o q u e , 889 F.2d 1209, 1217 (1 st Cir. 1989). S in c e Section 1983 lacks an accompanying federal statute of limitations, courts have a p p lie d the state's statute of limitations for personal injury cases. Gonzalez Garcia v. P.R. Elec. P o w e r Auth., 214 F. Supp. 2d 194, 199-200 (D.P.R. 2002); Rivera-Torres v. Ortiz-Velez, 306 F . Supp. 2d 76, 82 (D.P.R. 2002). In Puerto Rico, a one-year statute of limitations governs p e rs o n a l injury actions. See 31 L.P.R.A. § 5298(2) (1991). Therefore, the one-year limitation p e rio d is applicable to Plaintiffs' Section 1983 claims. Gonzalez Garcia, 214 F. Supp. 2d at 1992 0 0 . Said period accrues "when the plaintiff knew or had reason to know the injury." Id. at 200 (c itin g Benitez Pons v. P.R., 136 F.3d 54, 59 (1st Cir. 1998)). In employment discrimination c la im s , "limitations period normally start to run when the employer's decision is made and c o m m u n ic a te d to the affected employee." Id. Therefore this Court must determine when J im é n e z and Muñoz's claims' statute of limitations began. Candida Jiménez P u rs u a n t to the record, on March 16, 1990, Jiménez became a career employee at the M u n ic ip a lity. Plaintiffs' AUF ¶ 28. On August 10, 2006, Questell sent her a letter whereupon s h e was transferred from her position as Secretary 3 at the Human Resources Department to the P o lic e Commissioner's Office, effective August 17, 2006. Id. at 30. In said letter, Jiménez was n o t informed of her right to request an informal hearing prior to the effective date of her tra n s f e r. Id. at 31. When Jiménez began to work at the Municipal Police Commissioner's Office, s h e was immediately stripped of her duties. Id. at 33. She complained to her supervisor (the

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P o lic e Commissioner), and to Rodríguez as to her reduced duties at her current position at the P o lic e Commissioner's Office. Id. at 34. Thus pursuant to the above-mentioned facts, Jiménez learned about the alleged adverse e m p lo ym e n t action, that is, the deprivation of her duties, since the day she began to work at the P o lic e Commissioner's office in August 2006.2 1 However, the Second Amended Complaint was f ile d on October 25, 2007, well over a year after her transfer and, the alleged deprivation of her d u tie s . Jiménez attempts to salvage her claims arguing that the claims raised in the October 2 0 0 7 Second Amended Complaint relate back to the October 2006 Amended Complaint. H o w e v e r, upon reviewing the October 2006 Amended Complaint, this Court notes that Jiménez d o e s not assert any claims of political harassment, or alleges that she was deprived of her duties. J im é n e z merely appears in her capacity as a career employee. It cannot be determined, from the f a c e of the October 2006 Amended Complaint, whether Jiménez was terminated or was still e m p lo ye d by the Municipality. All of the 2007 Second Amended Complaint allegations of p o litic a lly motivated terminations are inapplicable to Jiménez, and Muñoz, since they were still e m p lo ye d by the Municipality. As a result, the political harassment claims set forth in the S e c o n d Amended Complaint do not relate back to the October 2006 Amended Complaint, in so f a r as the claim asserted in the latter does not arise from the same conduct set forth in the f o rm e r. See FED. R. CIV. P. 15(c)(2). Moreover, Jiménez has not shown that any additional discrete acts of political harassment o c c u rre d after August 2006. This district has held that a plaintiff's "alleged deprivation of duties . . . [is] discrete in nature," and that it is "not actionable under the continuing violation theory."

The record is devoid of additional information regarding the duties she performed prior to her transfer. Per Jiménez's deposition testimony, her duties at the Police Commissioner's office were reduced to preparing transmittal sheets. Additionally, although at Plaintiffs' AUF ¶ 29, they allege that Questell ordered Rodriguez to remove Jiménez's telephone and fax, page 20 cited in support thereof is missing from the record.

21

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D ía z - O rtiz v. Díaz-Rivera, 611 F. Supp. 2d 134, 142 (D.p.R. 2009); Rivera-Torres v. O rtiz -V e le z , 306 F. Supp. 2d 76, 82 (D.P.R. 2002). Since Jiménez alleges a deprivation of her d u tie s upon her transfer, said case law is controlling here.2 2 Therefore, Jiménez's claims of p o litic a l harassment/ "short of dismissal" are time-barred, and as a result, are DISMISSED w ith prejudice. C e r e id a Muñoz's Political Harassment Claims P e r the record, Muñoz was known to Questell as a PDP follower and member. Plaintiffs' A U F ¶ 45. As pre-intervention officer for the Municipality, she received many contracts s u b m itte d for payment that did not have the invoices, particularly for non-professional services a n d suppliers. Id. at ¶ 46. Notwithstanding the lack of invoices, Vargas allowed their payment Id . As a result thereof, Muñoz sent a letter on July 12, 2005 to Finance Director Vargas, and Q u e s te ll, stating that if she did not receive the needed documents - invoices - she would not p r e in te rv e n e any disbursement voucher. Id. at 45 and 47. Because of Muñoz's refusal to prein te rv e n e and approve disbursement vouchers that were not accompanied by the required d o c u m e n ts , Vargas addressed to Muñoz a series of memoranda in November 2005 stating the a lle g e d appropriate procedure for the approval of the disbursement vouchers. Id. Due to the f o re g o in g , Muñoz reported to the State Insurance Fund and the Pan American Hospital for psychological treatment. Id. Questell and Vargas took away Muñoz's, and other PDP followers e m p lo ye d in the Finance Department's, telephone extensions and/or phones, and did not allow th e m to use their cellular phones while at work. Id. Muñoz's workload was reduced as of J a n u a ry 31, 2008. Id. at 47 and 48.

Even if the continuing violation doctrine applied, Jiménez failed to properly argue, and proffer evidence, showing that there is a continuing violation. In order to establish a continuing violation under Section 1983, "a plaintiff `must allege that a discriminatory act occurred or that a discriminatory policy existed' within the period prescribed by the statute." Gonzalez Garcia, 214 F. Supp. 2d at 202.

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D e f e n d a n ts argue that since, in the 2007 Second Amended Complaint, Muñoz alleges th a t she was subjected to political harassment after Questell became mayor in 2005, her claims a re time-barred. Upon reviewing the record, this Court notes that per Plaintiffs' opposition, and th e Second Amended Complaint, Muñoz alleges that her work situation became unreasonable a n d significantly inferior to the norm for her position after July 15, 2005. She further alleges th a t the November 2005 memos sent by Vargas adversely affected her health. As in Jiménez's case, Muñoz does not assert any claims of political harassment, or allege th a t she was deprived of her duties in the October 2006 Amended Complaint. Muñoz also a p p e a rs only in her capacity as a career employee. Since Questell became mayor in January 2 0 0 5 , and Muñoz's work condition was adversely changed starting July 15, 2005, she knew a b o u t her injury at least as of July 15, 2005. Insofar as the Amended Complaint was filed in O c to b e r 2006, and the Second Amended Complaint was filed in October 2007, Muñoz's p o litic a l harassment claims are also time-barred. Even the November 2005 memos sent by V a rg a s are not actionable under either amended complaint. Thus Muñoz's political

h a ra ss m e n t/" s h o rt of dismissal" claims are time-barred, and her claims are also DISMISSED w ith prejudice. C a r e e r Employees' Procedural Due Process Claims P e r the uncontested facts, in the October 17, 2005 dismissal letters from Questell to the c a re e r Plaintiffs, none of them were apprised of their right to request an informal hearing prior to the effective date of their terminations. Plaintiffs' AUF ¶ 35. Additionally, no informal prete rm in a tio n hearings were afforded by the Municipality to any of these plaintiffs. Id. Notwithstanding, Defendants allege that upon dismissal under the 2005 Lay Off Plan, the career P la in tif f s were informed of their right to file an appeal before CASARH. According to D e f e n d a n ts , the foregoing uncontested fact, together with the Hudson-Parratt doctrine, bar the c a re e r Plaintiffs' due process claims. In support of this argument, they posit that due process

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v io la tio n claims, based on the unauthorized denial of pre-termination rights, fail when adequate p o s t-d e p riv a tio