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

Filing 174

OPINION AND ORDER. DENIED 166 First MOTION for Reconsideration; DENIED 169 First Supplemental Motion to Motion for Reconsideration. Signed by Judge Salvador E Casellas on 10/2/2009.(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 IN IO N and ORDER P en d in g before this Court is Plaintiffs' motion for reconsideration (Docket # 166), and the Municipality of Santa Isabel's Response (Docket #168). Plaintiffs also filed a supplement to their motion, and the Municipality filed an opposition thereto. Docket ## 169 & 170. Upon review in g the filings, and the applicable law, Plaintiffs' motion for reconsideration is DENIED. F actu al 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, §§ 5141 & 5142.1 In the complaint,2 Plaintiffs, employees of the Municipality, allege that they were terminated from their positions due to their political affiliations with the Popular Democratic P arty ("PDP"), after Questell, the candidate for the New Progressive Party ("NPP"), won the N ovem ber 4, 2004 mayoral elections in the Municipality. After extensive discovery, the

M unicip ality, joined by the Municipality's Mayor, Enrique Questell-Alvarado ("Questell"), and the Human Resources Director, Natalie Rodriguez-Cardona (collectively "Defendants"), filed a

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.
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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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m otion for summary judgment alleging that: (1) Plaintiffs' political harassment claims were 3 tim e-barred; (2) they failed to adequately state procedural due process claims; (3) Plaintiffs failed 4 to establish a prima facie case for political discrimination; (4) there were legitimate non5 discrimin ato ry reasons for Plaintiffs' terminations; (5) Questell and Rodriguez were entitled to 6 qualified immunity; and (6) Antonia Leon Alvarado, Juana Ortiz Perez, Jose Sanchez Rodriguez, 7 S onia Campos-Colon, and Luis Soto Santiago's claims were time-barred. 8 P lain tiffs opposed, arguing that they had set forth a prima facie case for political 9 discrimin ation . They also asserted that material issues of fact remained as to Defendants' 10 proffered reason for Plaintiffs' terminations/demotions, precluding summary judgment. Plaintiffs 11 also posited that Questell and Rodriguez were not entitled to absolute immunity. 12 Notwithstanding, Plaintiffs assented to voluntarily dismiss their political harassment claims, 13 except for Candida Jiménez Moreno and Cereida Muñoz's claims on this issue, and to the 14 dism issal of Antonia Leon Alvarado, Juana Ortiz Perez, Jose Sanchez Rodriguez, and Luis Soto 15 S antiago 's claims as time-barred.3 Also, all transitory and Law 52 Plaintiffs asserted to voluntarily 16 dism iss their due process claims. 17 In its September 18, 2009 Opinion and Order, this Court partially granted Defendants' 18 m otion for summary judgment. Docket # 154. As a result, all Plaintiffs' procedural due process 19 claims and Cereida Muñoz and Candida Jiménez's political harassment claims were dismissed 20 w ith prejudice. Furthermore, all Co-Plaintiffs' political discrimination claims, except Angel L. 21 F ebus Rodríguez, Eugenio A. Reyes Alomar, Emma E. Espada Soto, Julio E. Espada Soto, Alma 22 Jusino Guzman, Alma Mora Rivera, Farelyn Torres Colón, Karen I. Soldevila Muñoz, Luis A. 23 Ithier Correa, Zasha Martínez Palermo, Ravindranas Laboy Cora, Angelita Rodríguez Colón, 24 25
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Sonia Campos-Colon claims were dismissed for failure to appear at her deposition. See Docket

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# 79.

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H éctor L. Rivera Briceno, Benoni Vega Suárez, Evelyn Leandry, Pablo Torres Rodríguez, Evelyn 3 R ivas Rodriguez, Leslie Rentas Martinez, Ana Y. Cora Silva, Carlos Hernández Alvarado, Silverio 4 C ruz Cintron, Angelo Pedroso Munera, and Lourdes Romero, were dismissed with prejudice. 5 O n September 28, 2009, Plaintiffs filed the instant motion, requesting that this Court set 6 aside its dismissal of co-plaintiffs' claims. In support of said request, Plaintiffs argue that they 7 set forth sufficient circumstantial evidence that, when considered as a whole, shows that Mayor 8 Q uestell knew the dismissed co-plaintiffs' political affiliation. Moreover, they contend that the 9 career employees' due process rights were violated because they were not afforded pre10 termination hearings. According to Plaintiffs, the record as a whole shows that their terminations 11 w ere due to their political affiliation. 12 In opposition, Defendants aver that Plaintiffs failed to establish a prima facie case of 13 political discrimination insofar as they failed to establish that the Mayor knew about their 14 political affiliation. They further posit that Plaintiffs' circumstantial evidence regarding the 15 alleged heated political atmosphere, the "jingle" played by the New Progressive Party, and the 16 possibility that the Mayor knew some of the Plaintiffs' by face, or nicknames, is insufficient to 17 show knowledge of political affiliation. Laslty, Defendants argue that Plaintiffs have not shown 18 tha t there was a manifest error of law or newly discovered evidence which merits setting aside 19 this Court's prior ruling. 20 Standard of Review 21 F ED . R. CIV. P. 59(e) allows a party, within ten (10) days of the entry of judgment, to file 22 a motion seeking to alter or amend said judgment. The rule itself does not specify on what 23 grounds the relief sought may be granted, and courts have ample discretion in deciding whether 24 to grant or deny such a motion. Venegas-Hernández v. Sonolux Records, 370 F.3d 183, 190 (1 st 25 C ir. 2004) (citations omitted). In exercising that discretion, courts must balance the need for 26

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giving finality to judgments with the need to render a just decision. Id. (citing Edward H. Bolin 3 C o. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993)). 4 D esp ite the lack of specific guidance by the rule on that point, the First Circuit has stated 5 that a Rule 59(e) motion "must either clearly establish a manifest error of law or must present 6 new ly discovered evidence." F.D.I.C. v. World Univ., Inc., 978 F.2d 10, 16 (1st Cir. 1992) (citing 7 F e d . Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). Rule 59(e) may not, 8 how ever, be used to raise arguments that could and should have been presented before judgment 9 w as entered, nor to advance new legal theories. Bogosonian v. Woloohojian Realty Corp., 323 10 F .3d 55, 72 (1st Cir. 2003). 11 A p p licable Law and Analysis 12 In their motion for reconsideration, Plaintiffs allege that based upon the direct and 13 circum stan tial evidence presented in this case, and considering that at the summary judgment 14 stage, the record shall be examined in the light most favorable to the non-movant, this Court 15 should have concluded that Defendants knew Plaintiffs' political affiliation, and that they were 16 terminated as a result of the same. In support of this argument, Plaintiffs point to the following 17 evidence: the heated political atmosphere in the Municipality, Questell's campaign jingle ("pa' 18 fuera es que van!"), Questell's testimony that he could not discard knowing many of the plaintiffs 19 by their faces or nicknames, Questell's alleged comments about Angel Febus and other 20 em ployees, the HUD and Child Care Program PDP employees' dismissal despite the approval of 21 their respective program's proposals, the Municipality's failure to implement alternate measures 22 prior to dismissal, or follow seniority across the board,4 the pretextual nature of the Lay Off plan, 23 and the validity of the approval process of Ordinance 28 and 21. 24 25 26
In their supplementary motion, Plaintiffs submit CPA Amanda Capo's expert report, in order to show that seniority was not followed across the board, and instead was implemented within each job classification. Docket # 169.
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In opposition, Defendants argue that Plaintiffs fail to establish a manifest error of law, or 3 present newly discovered evidence. They further note that Plaintiffs' proffered evidence to show 4 Defendants' knowledge about their political affiliation is entirely speculative, and does not pass 5 the prima facie case muster. Moreover, Defendants point out that Plaintiffs' attempts to use 6 C apo's expert report in order to establish Defendants' knowledge of their political affiliation has 7 been rejected by this Court. 8 After reviewing the record, this Court finds that Plaintiffs' arguments are speculative at 9 best. Albeit at the summary judgment stage, all inferences must be drawn in favor of the non10 m ovant, the First Circuit has also held that "[a]n inference is reasonable only if it can be drawn 11 from the evidence without resort to speculation." Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 12 672 (1st Cir. 1996) (citing Frieze v. Boatmen's Bank of Belton, 950 F.2d 538, 541 (8th Cir. 13 1991). As previously noted by this Court, in order to establish a prima facie case for political 14 discrimin ation , plaintiff must first "make four showings": (1) that the plaintiff and the defendant 15 belong to opposing political affiliations; (2) the defendant has knowledge of the plaintiff's 16 opposin g political affiliation; (3) there is a challenged employment action; and (4) there is 17 sufficient direct or circumstantial evidence that political affiliation was a substantial or 18 m otivatin g factor in defendant's decision. Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st 19 C ir. 2006) (internal citation and quotation omitted). Only when the plaintiff satisfies this initial 20 burden , the burden then shifts to the defendant to show that "it would have taken the same action 21 regardless of the plaintiff's political beliefs-commonly referred to as the Mt. Healthy defense." 22 P adilla v. Rodríguez, 212 F. 2d 69, 74 (1st Cir. 2000); Mt. Healthy v. Doyle, 429 U.S. 274, 287 23 (1977) (superseded on different grounds); Carrasquillo v. Puerto Rico, 494 F.3d 1, 4 (1st Cir. 24 2007); Torres-Martinez v. P.R. Dept. Of Corrections, 485 F.3d 19, 23 (1st Cir. 2007); Rodríguez25 R íos v. Cordero, 138 F. 3d 22 (1st Cir. 1998). If the defendant makes such a showing, the plaintiff 26

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m ay attempt to discredit the tendered nondiscriminatory reason with either direct or 3 circum stan tial evidence. Velez-Rivera v Agosto-Alicea, 437 F.3d 145, 153 (1st Cir. 2006) (citing 4 M t. Healthy, 429 U.S. at 286-87). Thus even in the summary judgment context, "plaintiffs, as the 5 nonmov an ts, must show evidence sufficient for a factfinder to reasonably conclude that 6 [D efen d an t's] decision to terminate was driven by a discriminatory animus." Mulero-Rodriguez, 7 98 F.3d at 673. 8 In determining the sufficiency of Plaintiffs' evidence, the First Circuit has held that a 9 highly charged political atmosphere can only support an inference of discriminatory animus, when 10 coupled with "the fact that plaintiffs and defendants are of competing political persuasions..." 11 R odríg u ez-R ío s, 138 F. 3d at 24. Thus political discrimination claims always require "that 12 defendants have knowledge of the plaintiffs['] political affiliation." Martinez-Baez v Rey13 H ernandez, 394 F. Supp. 2d 428, 434 (D.P.R. 2005); Hatfield-Bermudez v. Aldanondo-Rivera, 14 496 F.3d 51, 61-62 (1st Cir. 2007). As a result, "[a] prima facie case is not made out when there 15 is no evidence that an actor was even aware of the plaintiff's political affiliation." Hatfield16 B erm udez, 496 F.3d at 61; see also Gonzalez-Di Blasini v. Family Dep't., 377 F.3d 81, 85-86 (1 st 17 C ir. 2004) (holding that the fact that plaintiff was a well-known supporter of the opposing party, 18 had held previous trust positions under said party's administration, and that was allegedly demoted 19 after they assumed power, was insufficient to show that defendants knew about her political 20 affiliatio n , and that said affiliation was the motivating factor for her demotion); Cosme-Rosado 21 v. Serrano-Rodriguez, 360 F.3d 42, 48 (1st Cir. 2004) (finding that a PDP Mayor's statement that 22 he intended to "rid the town of NPP activists" was not enough to show that political affiliation was 23 m otive for adverse employment action); Acevedo Díaz v. Aponte, 1 F.3d 62, 69 (1st Cir. 1993) 24 (holding that the fact that plaintiffs were conspicuous targets for discriminatory employment 25 action by defendants because they prominently supported a former mayor is not enough to show 26

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m otive); Díaz-Ortiz v. Díaz-Rivera, 611 F. Supp. 2d 134, 144 (D.P.R. 2009)(citations omitted) 3 (grantin g a municipality defendant's motion for summary judgment, holding that "none of the 4 plaintiffs, except [a specified few] offer[ed] evidence that [defendant] had first-hand knowledge 5 of their affiliations" with the opposing party); Roman v. Delgado-Altieri, 390 F. Supp. 2d 94, 102 6 (D .P .R . 2005)(citing Aviles-Martinez v. Monroig, 963 F.2d 2, 5, (1 st Cir. 1992)). Therefore, 7 " even when circumstantial evidence may be sufficient to support a finding of political 8 discrimin ation , plaintiffs must still make a fact-specific showing that a causal connection exists 9 betw een the adverse employment action and their political affiliation." Díaz-Ortiz, 611 F. Supp. 10 at 144 (citations omitted); see also Monfort-Rodriguez v. Rey-Hernandez, 599 F. Supp. 2d 127 11 (D .P .R . 2008). 12 As held by this Court, in the present case, there is no controversy as to the fact that 13 P laintiffs and Defendants belong to opposing political affiliations, and that there is a challenged 14 e m ploym en t action. However, the parties disagreed about whether Defendants knew about 15 P laintiff's opposing political affiliation, and whether there was sufficient direct or circumstantial 16 evidence that political affiliation was a substantial or motivating factor in Defendants' decision. 17 In finding that Defendants did not know the dismissed Plaintiffs' political affiliation, this 18 C ourt noted that the fact that the plaintiffs were municipal employees under the previous 19 adm inistration , participated in political rallies, worked at electoral colleges, and were well-known 20 supporter of the administration's political party does not constitute evidence of their political 21 affiliatio n . Hatfield-Bermudez, 496 F.3d at 62; see also Gonzalez-De Blasini, 377 F.3d at 85-86; 22 R oman , 390 F. Supp. 2d at 102-03 (holding that "a plaintiff cannot prove that the defendant had 23 know ledg e of his political affiliation merely through: testimony of having been seen, or, for that 24 m atter, met during routine campaign activity participation, having been visited by the now 25 incum bent while said defendant was a candidate to the position he now holds, by having held a 26

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trust/confid en tial/p o licym aking position in the outgoing administration, by having political 3 propag an d a adhered to plaintiff's car and/or house, or throught knowledge of third parties"). 4 A lb eit according to the uncontested facts, Questell admitted that he could not discard 5 know in g many of the plaintiffs by their nicknames, since he may recognize them if he sees them 6 in person, this does not equate knowledge of their political affiliations. Plaintiffs' AUF ¶¶ 7 and 7 25. On the other hand, when Questell admitted he knew the remaining Plaintiffs, he also stated 8 that he knew their political affiliation. Defendant's SUF at 38 & 39. 9 Based on the foregoing, this Court finds once more that Plaintiffs have not shown that 10 D efendants knew each Plaintiffs' political affiliation, since they did not generate `the specific 11 facts necessary to take the asserted claim out of the realm of speculative, general allegations." 12 G onzalez -De Blasini, 377 F.3d at 86. Plaintiffs' request that this Court finds that Questell knew 13 the dismissed Plaintifffs' political affiliation because he may know their nicknames or may know 14 them if he sees them in person. However, the proposition that this Court must conclude that 15 D efendants knew their political affiliation based on the foregoing, and the factors set forth in 16 their motion for reconsideration, requires this Court to make inferences based on mere 17 speculatio ns, and as such, is insufficient to satisfy the prima facie case standard. See cf. Aponte18 S antiago v. Lopez-Rivera, 957 F.2d 40, 43 (1st Cir. 1992) (finding that plaintiff's sworn statement 19 that defendants knew his political affiliation is enough to satisfy the prima facie case requisite); 20 R odrig u ez-R io s v. Cordero, 138 F.3d 22, 24 (1st Cir. 1998) (holding that the district court erred 21 in granting summary judgment when the plaintiff proffered evidence showing that her PDP 22 affiliatio n was widely known, and that defendants were aware of her political affiliation); 23 M onfort-R od rigu ez v. Rey-Hernandez, 504 F.3d 221, 225-226 (1st Cir. 2007) (holding that 24 although plaintiffs did not produce direct evidence that Rey was aware of their political affiliation, 25 there was enough circumstantial evidence - Rey and the human resource personnel's deposition 26

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testim o n y - to render the case more circumstantial than speculative). The fact that there is a 3 m assive amount of Plaintiffs in this case does not preclude their obligation to set forth a prima 4 facie case of political discrimination as any other suits of this nature. 5 C o n seq u en tly, and as previously held by this Court in its Opinion and Order, if Defendants 6 did not know Plaintiffs' political affiliation, said factor could not have been a substantial 7 m otivatin g factor for any adverse employment action. Since Plaintiffs have "not met the burden 8 of showing that [their] political affiliation was a substantial or motivating factor for the challenged 9 em ploym en t action[s]," Plaintiffs' request to set aside said ruling is denied. Id. 10 L astly, this Court notes that Plaintiffs did not expressly address the dismissal of Candida 11 Jim ém ez and Cereida Muñoz's political harassment claims. Also, they failed to properly argue 12 w hy this Court should set aside the dismissal of their procedural due process claims. Specifically, 13 P laintiffs did not address the applicability of the Hudson-Parratt doctrine, and instead reiterated 14 that the lack of pre-termination hearing violated their due process rights, and was motivated by 15 their political affiliation. However, this issue was duly ruled upon by this Court, and Plaintiffs 16 have not shown a manifest error of law or newly discovered evidence which merits reversal on 17 this front. 18 C o n c lu s io n 19 F o r the reasons stated above, Plaintiffs' motion for reconsideration is DENIED. The 20 parties are reminded of the following deadlines: Joint Proposed Jury Instructions, Joint Proposed 21 V oir Dire and Joint Proposed Verdict Forms due by 10/2/2009, and the Amended Proposed 22 P retrial Order is due by 10/8/2009. Moreover, the Jury Trial is set for October 13, 2009 at 23 9:00 am, and the Final Pretrial and Settlement Conference is set for October 8, 2009 at 2:30 24 p m .. 25 IT IS SO ORDERED. 26

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CIVIL NO. 06-1627 (SEC) In San Juan, Puerto Rico, this 2nd day of October, 2009.

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3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S/S a lva d o r E. Casellas SA L V A D O R E. CASELLAS U .S . Senior District Judge