Pastrana-Lopez v. Ocasio-Morales

Filing 91

OPINION AND ORDER - GRANTING IN PART AND DENYING IN PART Defendant German Ocasio-Morales' 66 Motion for Summary Judgment. Signed by Judge Jaime Pieras, Jr. on 10/20/2010. (mld)

Pastrana-Lopez et al v. Ocasio-Morales et al

Doc. 91

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

VIDAL PASTRANA-LÓPEZ, et al., Plaintiffs v. GERMAN OCASIO-MORALES, et al., Defendants CIVIL NO. 09-1979 (JP)

OPINION AND ORDER Before the Court is Defendant Germán Ocasio-Morales' ("Ocasio") motion for summary judgment (No. and 66), and Plaintiffs Vidal

Pastrana-Lopez

("Pastrana"),

Nidza

Gomez-Colon's

opposition

thereto (No. 72).

Plaintiffs brought the instant action pursuant to

42 U.S.C. § 1983 alleging violations of the First Amendment, Fifth Amendment and Fourteenth Amendment to the United States Constitution. Plaintiffs also brought state law claims alleging violations of Puerto Rico Law 115 ("Law 115") of December 20, 1991, P.R. Laws Ann. tit. 29, § 194a; and Articles 1802 and 1803 of Puerto Rico's Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-5142. For the reasons stated

herein, Defendant's motion for summary judgment is hereby GRANTED IN PART AND DENIED IN PART.1

1.

T h e Court notes that Plaintiffs brought claims against Defendant only in his p e r s o n a l capacity, as the official capacity claims had already been brought i n 08-cv-1399 (JP).

Dockets.Justia.com

CIVIL NO. 09-1979 (JP) I.

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MATERIAL FACTS NOT IN GENUINE ISSUE OR DISPUTE The following material facts ("ISC UMF") were deemed uncontested

by all parties hereto at the March 15, 2010, Initial Scheduling Conference (No. 36). 1. Plaintiff Pastrana was employed as a Sergeant with the Puerto Rico Fire Department ("PRFD"). 2. On September 11, 2006, Plaintiff made some expressions on a local radio talk show called "Caiga quien Caiga[.]" 3. The radio talk show "Caiga quien Caiga" was hosted by Luis Francisco Ojeda. 4. At the time Pastrana made the expressions on the radio show, he occupied the position of Sergeant at the PRFD. 5. By letter dated September 14, 2006 and received by

Plaintiff, Pastrana was notified in writing by Defendant Ocasio that an investigation would ensue. 6. As part of the Administrative Investigation conducted by the PRFD, Pastrana was interviewed under oath on

November 13, 2006 by Damaris Rosario-González ("Rosario"), Esq., Special Assistant to the Chief of the PRFD. 7. In said interview, Pastrana declined to declare and stated that his expressions on the radio show on September 11, 2006 were made in his capacity as President of a labor organization ("organización sindical"), in his free time and that he had a right to free speech.

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The conclusion reached at the Investigation conducted by Rosario, Special Assistant to the Chief of the PRFD, was that Pastrana's expressions during the radio show were false, offensive and violated certain regulations of the Agency.

9.

On February 21, 2007, Defendant Ocasio issued a letter to Plaintiff, which was received by Plaintiff, called an intention of dismissal letter.

10.

On

March

7,

2007,

Plaintiff

requested

by

letter

an to

informal

hearing

regarding

Defendant's

intention

dismiss him from his employment. 11. On March 26, 2007, an administrative hearing was held regarding Defendant's intent to dismiss Plaintiff from his position. 12. The administrative hearing ("informal hearing") was

presided by José Avilés-Lamberty, examining officer. 13. On March 29, 2007, after the informal hearing, the

examining officer rendered a Final Report in which he recommended the dismissal of Pastrana from his employment. 14. On March 29, 2007, the PRFD issued a Resolution, signed by Defendant Ocasio, notifying Plaintiff of his termination from employment and his right to appeal. 15. On April 20, 2007, Plaintiff filed an appeal at the "Comisión Apelativa del Sistema de Administración de

CIVIL NO. 09-1979 (JP) Recursos Humanos

-4del Sistema Público" ("Appellate

Commission") claiming that his dismissal was illegal and contrary to his free speech right. 16. Plaintiff's appeal is still pending before the Appellate Commission. The following facts are deemed uncontested ("UMF") by the Court because they were included in the motion for summary judgment and opposition and were agreed upon, or they were properly supported by evidence and not genuinely opposed. 1. When Plaintiff called the radio show he stated that

Defendant Ocasio had granted the firefighters benefits in order to receive their support for his appointment. 2. When Plaintiff called the radio show he stated that in accordance with Article 5.2 of Act 45, the increase in the contribution to the health insurance could not be

negotiated in excess of what was provided by law and that Ocasio could not sign the clause because of that

violation. 3. When Plaintiff made the expressions regarding Defendant's failure to comply with Article 5.2 of Act 45 he had not reviewed the most recent amendments of said law. 4. When Plaintiff called the radio show he stated that he would like to sit down with Francisco Ojeda so he could show him all the evidence he had against Ocasio.

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Plaintiff also stated that Ocasio had left the San Juan area devoid of ("desprovista de") maritime safety. 5. When Plaintiff called the radio show, Plaintiff did not mention that he was the President of a bona fide labor organization of the PRFD. 6. The officers of the PRFD have no right to participate in labor unions. 7. At all times relevant to this action the PRFD only had one (1) fire extinguishing boat. 8. The fire extinguishing boat of the PRFD could give service in any fire in any coast of Puerto Rico. 9. There is nothing illegal in transferring the boat from Cataño to Ponce. 10. In the September 14, 2006 letter, Ocasio stated to

Pastrana that his expressions in the radio show were the following: (1) that he accused Defendant Ocasio of

negotiating the medical insurance illegally; (2) that the fire extinguishing boat was being used for pleasure

purposes in Boquerón. 11. Plaintiff received and read the letter dated September 14, 2006, and thus, knew the content of the same. 12. Defendant Ocasio assigned attorney Damaris Rosario to conduct an investigation as to the veracity or falsity of the expressions made by Plaintiff in the radio show.

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In the letter of February 21, 2007, Defendant Ocasio informed Plaintiff that the officers in charge of the supervision of the boat and the firefighters that worked on said unit were interviewed as part by of the the PRFD

administrative

investigation

conducted

regarding Plaintiff's expressions in the radio show. 14. In the letter dated February 21, 2007 Defendant Ocasio informed Plaintiff that the officers interviewed as part of the administrative investigation testified that the boat was being use for official purposes only and that Plaintiff's expressions were false, incorrect, groundless, unfair and ill-intentioned. 15. In the letter dated February 21, 2007 Defendant Ocasio informed Plaintiff that his accusation that Ocasio had negotiated illegally the benefits of the health insurance was false, unreal and vicious. 16. The Final Report rendered by the Examining Officer, José Avilés-Lamberty and reviewed by Defendant Ocasio, shows that in the administrative hearing Plaintiff was assisted by legal representation. 17. The Final Report rendered by the Examining Officer, José Avilés Lamberty and reviewed by Defendant Ocasio, shows that Plaintiff had the opportunity to testify, to present documentary evidence and a witness in his favor.

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The Final Report rendered by the Examining Officer, José Avilés Lamberty and reviewed by Defendant Ocasio, shows that in the administrative hearing Plaintiff testified that his expressions regarding the boat were that the San Juan area was devoid ("desprovista") and that he had received rumors that the boat was being used for pleasure.

19.

Plaintiff had no evidence of the boat being used for pleasure purposes.

20.

On February 28, 2006 the Senate of Puerto Rico issued a Resolution to conduct an investigation regarding the

conditions of the equipment of the maritime unit (the boat). 21. Plaintiff had nothing to do with the fact that the Senate decided to investigate the conditions of the maritime unit; he was just summoned by the Senate to testify. 22. Plaintiff's statement before the Public Safety Commission of the Senate of Puerto Rico regarding the Senate

Investigation of the conditions of the maritime unit was on October 31, 2006. 23. Plaintiff said that he was fired because of some comments he made on the "Caiga quien Caiga" show. 24. Defendant Ocasio as Chief of the Fire Department relied on the administrative investigation conducted by attorney Rosario and the Final Report rendered by the Examining

CIVIL NO. 09-1979 (JP)

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Officer José Avilés-Lamberty who recommended the dismissal of Plaintiff from his employment before signing the

Resolution issued on March 29, 2007 notifying Plaintiff of his termination from employment and his right to appeal. 25. The letter dated September 14, 2006 is devoid of any allegation regarding Plaintiff's testimony in the Senate of Puerto Rico. 26. The letter dated February 21, 2007 notified Plaintiff of Defendant's intent to dismiss him from his employment due to the false statements he made on the radio show. 27. Said letter of February 21, 2007, has no mention of Plaintiff's testimony at the Senate. 28. Said letter of February 21, 2007, notified Plaintiff that his false statements in the radio show were a violation of Article 15:1, 8, 22, 28, 56, 66 and 72 of the Regulations on the Norms and Procedures Regarding Corrective Measures for Employees of the PRFD. 29. During the hearing, Plaintiff answered questions posed to him by the Examining Officer. II. LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT Summary judgment serves to assess the proof to determine if there is a genuine need for trial. 895 F.2d 46, 50 (1st Cir. 1990). Garside v. Osco Drug, Inc., Pursuant to Rule 56(c) of the

Federal Rules of Civil Procedure, summary judgment is appropriate

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when "the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, viewed in the light most favorable to the nonmoving party, reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also

Zambrana-Marrero v. Suárez-Cruz, 172 F.3d 122, 125 (1st Cir. 1999) (stating that summary judgment is appropriate when, after evaluating the record in the light most favorable to the non-moving party, the evidence "fails to yield a trial worthy issue as to some material fact"); Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993); Canal Ins. Co. v. Benner, 980 F.2d 23, 25

(1st Cir. 1992).

The Supreme Court has stated that "only disputes

over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In this way, a fact is material if, based on the substantive law at issue, it might affect the outcome of the case. See Mack v. Great

Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989). On a summary judgment motion, the movant bears the burden of "informing the district court of the basis for its motion and identifying those portions of the [record] which it believes

demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant

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meets this burden, the burden shifts to the opposing party who may not rest upon mere allegations or denials of the pleadings, but must affirmatively show, through the filing of supporting affidavits or otherwise, that there is a genuine issue of material fact for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Goldman, 985 F.2d at 1116. III. ANALYSIS Defendant argues that summary judgment is appropriate because: (1) Plaintiffs' First Amendment claims regarding Pastrana's speech on the radio show fail since his speech was not protected;

(2) Plaintiffs' First Amendment claims regarding Plaintiff Pastrana's speech before the Senate of Puerto Rico fail since Defendant did not dismiss Plaintiff Pastrana based on said speech; (3) Plaintiffs have failed to state causes of action under the Fifth Amendment and Fourteenth Amendment; (4) Defendant is entitled to qualified

immunity; and (5) Plaintiffs have no cause action for their claims under Puerto Rico law. Plaintiffs' oppose the motion. The Court

will now consider the parties' arguments. A. 42 U.S.C. § 1983

Plaintiffs bring claims under 42 U.S.C. § 1983 ("Section 1983") alleging violations of the First, Fifth and Fourteenth Amendments. Section 1983 creates a remedy for those who are deprived of the rights, privileges, or immunities granted to them by the Constitution or laws of the Unites States. See Rodríguez García v. Municipality

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of Caguas, 354 F.3d 91, 99 (1st Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In order to succeed in a Section 1983 claim, Plaintiffs must prove that someone has deprived them of a right protected by the Constitution or the laws of the United States and that the perpetrator acted under color of state law. v. Rivera-Montañez, 212 F.3d 617, 621 (1st Cir. 2000). 1. First Amendment Claims Cruz-Erazo

Plaintiffs allege that Plaintiff Pastrana's First Amendment rights were violated because he was dismissed from his employment for engaging in protected speech. Specifically, Plaintiff claims he was

dismissed for speaking on a radio show and before the Senate of Puerto Rico. "Public employees do not lose their First Amendment rights to speak on matters of public concern simply because they are public employees." Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) However, said

(citing Connick v. Myers, 461 U.S. 138, 142 (1983)). rights are not absolute. Id.

The First Circuit Court of Appeals has articulated a three-part test to determine whether a challenged employment action violates the First Amendment right to freedom of speech of a public employee. Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 765 (1st Cir. 2010). First, the public employee must speak "as a citizen on a matter of public concern." Id. (quoting Curran, 509 F.3d at 45). "Second, the court must `balance . . . the interests of the [employee], as a

CIVIL NO. 09-1979 (JP)

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citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" (quoting Curran, 509 F.3d at 44). Id.

Lastly, "the employee must `show

that the protected expression was a substantial or motivating factor in the adverse employment decision.'" at 45). However, even if Plaintiffs demonstrate that the speech was a substantial or motivating factor in the employer's retaliatory action, Defendant can still avoid liability by demonstrating that it would have taken the same decision even absent the protected conduct. Id. at 765-66. Said defense is called the Mt. Healthy defense. See Id. (quoting Curran, 509 F.3d

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). a. Plaintiff Pastrana's speech on radio show

To determine whether Pastrana's speech on the radio show is protected by the First Amendment, the Court must determine whether Pastrana was both (1) speaking as a citizen and (2) speaking on a matter of public concern. (1st Cir. 2010). Foley v. Town of Randolph, 598 F.3d 1, 5

If Plaintiff's speech fails to meet one of these Id.

two requirements, then there is no First Amendment claim. (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

The United

States Supreme Court has made clear "that when public employees make statements `pursuant to their official duties,' they are not speaking

CIVIL NO. 09-1979 (JP)

-13Id. at 6 (quoting

as citizens for First Amendment purposes[.]'" Garcetti, 547 U.S. at 421).

Defendant argues that summary judgment should be granted because Plaintiff's speech on the radio show was not protected since

Plaintiff was not speaking as a citizen.2 Defendant does not present arguments as to whether Plaintiff was speaking on a matter of public concern, and as to whether the interest of the State, as an employer, outweighed the interest of the employee. Also, Defendant does not

dispute that Plaintiff was dismissed because of his statements on the radio show.3 whether As such, the issue raised by Defendant deals with was speaking as a citizen when he made his

Pastrana

statements on the radio show "Caiga quien Caiga" on September 11, 2006. Defendant argues that Plaintiff was speaking pursuant to his official duties because: (1) Plaintiff was a Sergeant of the PRFD at the time of his statements on the radio show; (2) Plaintiff spoke

2.

A l s o , Defendant argues that Plaintiff's speech on the radio show was not p r o t e c t e d speech because Plaintiff was subsequently proved to have lied on the r a d i o show. However, Defendant's argument fails because Defendant did not p r e s e n t evidence or argue that said false statements were knowing or reckless. P u g e l v. Board of Trustees of University of Illinois, 378 F.3d 659, 668 n.9 ( 7 t h Cir. 2004) (finding that false and reckless speech may not be protected b y the First Amendment even if it addresses matters of public concern); Stanley v . City of Dalton, 219 F.3d 1280, 1290 n.18 (11th Cir. 2000) (stating that k n o w i n g l y or recklessly false statements are not entitled to First Amendment p r o t e c t i o n ) ; Dill v. City of Edmond, 155 F.3d 1193, 1202 (10th Cir. 1998) ( " d e l i b e r a t e l y or recklessly false statements do not receive First Amendment p r o t e c t i o n " ) . As such, the Court finds there is a question of material fact r e g a r d i n g whether Plaintiff's speech was protected. F u r t h e r , the Court notes that Plaintiffs have produced sufficient evidence for a jury to conclude that Plaintiff was speaking on a matter of public concern a n d that Plaintiff was fired because of his statements on the radio show.

3.

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about Defendant's decision to leave the San Juan area devoid of maritime safety while the maritime unit's boat was placed by Ocasio in Boquerón for pleasure purposes; (3) Plaintiff stated that Ocasio granted firefighters benefits in order to gain their support for his appointment; (4) Plaintiff stated that, in accordance with

Article 5.2 of Act 45, the increase in contribution to health insurance cannot be negotiated in excess of what is provided by law and that Ocasio could not sign said clause because of that violation; (5) Plaintiff's official job responsibilities included being

responsible for the maritime unit's boat and for the safety of the San Juan Port; and (6) Plaintiff presented himself on the radio show as representing a group of firefighters. Plaintiffs counter by presenting evidence that Pastrana was speaking as a citizen because: (1) Pastrana's official job duties, at the time he made the comments on the radio station, did not include being responsible for the maritime unit's boat and for the safety of the San Juan Port; (2) Pastrana never stated that the boat was placed in Boquerón by Ocasio for pleasure purposes; and

(3) Plaintiff did not present himself as representing a group of firefighters when he called the radio show. After considering the arguments and evidence, the Court finds that there is a question of material fact as to whether Plaintiff was speaking as citizen when he spoke on the radio show on September 11, 2006. Accordingly, the Court DENIES Defendant's motion for summary

CIVIL NO. 09-1979 (JP)

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judgment on Plaintiff's First Amendment claims related to his speech on the radio show. b. Plaintiff Pastrana's speech before the Senate

To have a cause of action under the First Amendment, Plaintiff Pastrana must show that his expressions before the Senate were "a substantial or motivating factor" in Defendant Ocasio's decision to dismiss Pastrana. 509 F.3d at 45).4 The only evidence cited to by Plaintiffs is a statement under penalty of perjury prepared by Senator Orlando Parga (No. 73-3).5 Said statement provides evidence that Defendant Ocasio intended to sanction Plaintiff Pastrana for his insubordination. However, the Rodríguez-García, 610 F.3d at 765 (citing Curran,

Court need not decide whether said statement provides sufficient evidence for a reasonable jury to conclude that Plaintiff's

statements before the Senate were either a motivating or substantial factor in Defendant's decision to dismiss Plaintiff because the Mt. Healthy defense is applicable here. The Mt. Healthy defense is applicable here because the

uncontested facts show that Defendant would have terminated Plaintiff based solely on Plaintiff's statements on the radio show.

4.

T h e Court will focus on this issue because no arguments were presented as to w h e t h e r the speech before the Senate constituted protected speech. P l a i n t i f f s also explain that the deposition of Senator Orlando Parga was taken b y Defendant but that the transcript of the deposition is not ready. Since no d e p o s i t i o n transcript was provided, the Court will rely only on his sworn statement.

5.

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Rodríguez-García, 610 F.3d at 765-66. Prior to Plaintiff's testimony before the Senate of Puerto Rico on October 31, 2006, Defendant Ocasio had already sent a letter to Plaintiff, dated September 14, 2006, indicating to Plaintiff that an administrative investigation would ensue as to the veracity of Plaintiff's statements on the radio show. ISC UMF 5 and UMF 22. Said investigation determined that

Plaintiff's statements on the radio station were false, offensive and violated certain regulations. ISC UMF 8.

As a result of said investigation, Defendant issued a letter indicating his intent to dismiss Plaintiff based on his statements on the radio show. ISC UMF 9, and UMF 13, 14, 15, 26, 27, and 28. ISC UMF 10. The

After said letter, Plaintiff requested a hearing.

hearing resulted in a report which recommended that Plaintiff be dismissed from his employment. ISC UMF 12 and 13, and

UMF 16, 17, 18, and 24.

Relying on the administrative investigation

and the final report by the examining officer at the hearing, Defendant Ocasio notified Plaintiff of his termination. ISC UMF 14

and UMF 24. Plaintiffs have not pointed to any evidence showing that Plaintiff's statements before the Senate affected any of the

proceedings which led to Plaintiff's dismissal.6

Based on said

evidence, the Court finds that Defendant Ocasio is entitled to

6.

F u r t h e r , the Court notes that in his own deposition Plaintiff seemed to admit t h a t the reason behind his dismissal was his statements on the radio show. U M F 23.

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summary judgment on Plaintiffs' First Amendment claims related to Plaintiff Pastrana's statements before the Senate of Puerto Rico. 2. Fifth Amendment Claims

In the instant case, Plaintiffs bring due process claims under the Fifth Amendment of the U.S. Constitution. Defendant requests

that summary judgment be granted on said claims because the Fifth Amendment only applies to actions of the federal government and the Plaintiffs' claims do not relate to the federal government. The First Circuit has stated that "one or another or both of the Constitution's two due process clauses (that in the Fifth Amendment and that in the Fourteenth) apply to Puerto Rico[.]" Tenoco Oil,

Co., Inc. v. Department of Consumer Affairs, 876 F.2d 1013, 1017 n.9 (1st Cir. 1989). However, more recently, the First Circuit has taken the analytical approach of construing the actions of the Puerto Rico government as actions of a state, which are therefore subject to constitutional limitations via the Fourteenth Amendment.

Martínez-Rivera v. Sánchez-Ramos, 498 F.3d 3, 8-9 (1st Cir. 2007) (finding in case involving Puerto Rico government actors that "[a]s plaintiffs do not allege that any of the defendants are federal actors, any Fifth Amendment claim was properly dismissed[]"). In light of the more recent First Circuit law applying

Fourteenth Amendment analysis to constitutional claims alleging action attributable to non federal entities, the Court will follow

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Accordingly, the Court GRANTS Defendant's motion for

summary judgment on Plaintiffs' Fifth Amendment claims. 3. Plaintiffs Fourteenth Amendment Claims bring claims under both the procedural and

substantive due process of the Fourteenth Amendment.

Defendant

argues that summary judgment should be granted on said claims. Plaintiffs oppose the motion. a. Procedural Due Process

To succeed on a procedural due process claim, Plaintiffs must show that they were deprived of a life, liberty, or property interest without the requisite warranted under the minimum measure of procedural protection circumstances. See Romero-Barceló v.

Hernández-Agosto, 75 F.3d 23, 32 (1st Cir. 1996).

Plaintiffs argue

that their procedural due process rights were violated because Plaintiff Pastrana was deprived of his property interest in his employment when he was dismissed by Defendant. After considering the argument, the Court finds that Plaintiff's argument fails. There is no dispute in the instant case that

Plaintiff Pastrana was deprived of his property when he was dismissed from his job. However, Plaintiffs' claim fails because Pastrana was

given the due process owed to him. Due process requires that prior to a deprivation of a life, liberty, or property interest the individual being deprived of said interest be given notice and an opportunity for a hearing.

CIVIL NO. 09-1979 (JP) Ramos-Martínez 121 (D.P.R. v. 2005)

-19393 F. Supp. of 2d 118, v.

Negrón-Fernández, (citing Cleveland

Board

Education

Loudermille, 470 U.S. 532 (1985)).

"[A]n individual [must] be given

an opportunity for a hearing before he is deprived of any significant property interest[.]" Boddie v. Conneticut, 401 U.S. 371,

379 (1971).

Under said principal, an individual, such as Plaintiff,

who is being discharged from his employment and who has a property interest in his employment must be given "some kind of a hearing[.]" Ramos-Martínez, 393 F. Supp. 2d at 121 (quoting Board of Regents v. Roth, 408 U.S. 564, 569 (1972)). In the instant case, the Court finds that the uncontested evidence shows that Plaintiff was provided with all the due process required. Plaintiff was provided with notice of the charges brought on February 21, 2007,

against him when he received a letter, issued from Defendant Ocasio.

ISC UMF 9, and UMF 13, 14, 15, 26, 27 and 28.

Said letter was called an intention of dismissal letter and provided Plaintiff with notice of the charges against him. UMF 13, 14, 15, 26, 27 and 28. ISC UMF 9, and

Plaintiff responded to said letter

by requesting an informal hearing regarding Defendant's intention to dismiss him from his employment. An administrative hearing ISC UMF 10. regarding Defendant's intent to

dismiss Plaintiff was held on March 26, 2007.

ISC UMF 11.

At said

hearing, Plaintiff was assisted by legal representation and was granted the opportunity to testify, present documentary evidence and

CIVIL NO. 09-1979 (JP) to introduce a witness.

-20UMF 16 and 17. After said hearing, the

examining officer rendered a report in which he recommended the dismissal of Plaintiff Pastrana from his employment. ISC UMF 13.

As a result, the Puerto Rico Fire Department issued a resolution, on March 29, 2007 and signed by Defendant Ocasio, informing Plaintiff of his dismissal and of his right to appeal.7 ISC UMF 14 and UMF 24.

Based on said uncontested evidence, the Court finds that Plaintiffs' Fourteenth Amendment procedural due process claim fails.8 b. Substantive Due Process

In their complaint and their opposition to the motion for summary judgment, Plaintiffs state that Defendant violated Plaintiff Pastrana's substantive due process rights because there was an egregious abuse of process when Plaintiff was removed from his employment. To meet their burden on their substantive due process claims, Plaintiffs "must present a well-pleaded claim that a state actor deprived [them] of a recognized life, liberty, or property interest, and that he did so through conscience-shocking behavior." Estate of

Bennett v. Wainwright, 548 F.3d 155, 162 (1st Cir. 2008). The "shock the conscience" standard deals with behavior that is "so egregious,
7. P l a i n t i f f filed an appeal with the Appellate Commission on April 20, 2007. Said a p p e a l is still pending. T h e Court notes that, in their opposition to Defendant's argument, Plaintiffs s i m p l y conclude that Pastrana's dismissal from his employment was done without t h e guarantees of the due process clause. However, Plaintiffs failed to present e v i d e n c e or even argue how the notice or hearing provided did not comply with d u e process.

8.

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so outrageous, that it may fairly be said to shock the contemporary conscience." (1st Cir. Ramos-Piñero 2006) (citing v. Puerto of Rico, 453 F.3d v. 48, 53

County

Sacramento

Lewis,

523 U.S. 833, 848 n.8 (1998)). In the instant case, Defendant argues that Plaintiffs have failed to properly plead their substantive due process claim. The

Court agrees with Defendant. While Plaintiff did plead that Plaintiff Pastrana had a property interest taken away by Defendant, Plaintiffs failed to properly plead that the act by Defendant shocked the conscience. The only allegation by Plaintiffs was a conclusory

allegation that Defendant engaged in an egregious abuse of process when he removed Plaintiff from his position. No facts were provided

by Plaintiffs, in either their complaint or their opposition to the motion for summary judgement, stating how Pastrana's removal from his employment conclusory constituted allegations an egregious not abuse of process. v. Such Iqbal,

will

do.

Ashcroft

129 S. Ct. 1937, 1949-50 (2009).

Accordingly, the Court finds that

Plaintiffs failed to state a cause of action for their substantive due process claim. B. Qualified Immunity

Qualified immunity "provides defendant public officials an immunity from suit and not a mere defense to liability." v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). Maldonado

Qualified immunity

has a two-part test that requires that the Court "decide: (1) whether

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the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation." Id. at 268-69 (quoting Pearson v. Callahan, 129 S. Ct. 808,

815-16 (2009)).

A right is considered to be "clearly established"

when the contours of the right are sufficiently clear that "a reasonable official would understand that what he is doing violates that right." Costa-Urena v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). As such,

a right is considered to be "clearly established if, at the time the defendant acted, he was on clear notice that what he was doing was unconstitutional." Id. (citing Maldonado, 568 F.3d at 269).

After considering the evidence, the Court finds that Defendant is not entitled qualified immunity. Plaintiffs have presented

sufficient evidence for a jury to conclude that Defendant violated Plaintiffs' First Amendment rights by terminating Plaintiff Pastrana based on his protected speech. dismissing a public employee It is clearly established that in response to said employee's

protected speech violates the First Amendment.

Board of County

Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 675 (1996) (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Defendant states that he is entitled to immunity because

Plaintiff's speech was not protected when he lied.

As previously

explained, whether Plaintiff's speech was protected is a disputed

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issue of material fact. Under said circumstances, granting qualified immunity would be inappropriate. Costa-Urena, 590 F.3d at 29 (citing Roure v. Hernández-Colón, 824 F.2d 139, 141 (1st Cir. 1987)). C. Puerto Rico Law Claims

Plaintiff also bring claims arising under Puerto Rico law, specifically Law 115 of December 20, 1991, P.R. Laws Ann. tit. 29, § 194a; and Articles 1802 and 1803 of Puerto Rico's Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-5142. judgment should be granted on Defendant argues that summary Law 115 claims and

Plaintiffs'

Article 1803 claims because Defendant cannot be held liable under said statutes.9 1. Law 115

Law 115 establishes that: No employer may discharge, threaten, or discriminate against an employee regarding the terms, conditions, compensation, location, benefits or privileges of the employment should the employee offer or attempt to offer, verbally or in writing, any testimony, expression or information before a legislative, administrative or judicial forum in Puerto Rico, when such expressions are not of a defamatory character nor constitute disclosure of privileged information established by law. Defendant argues that the use of the word "employer" would exclude claims against him in his personal capacity since Plaintiff's employer was the PRFD, an arm of the Commonwealth of Puerto Rico.

9.

W i t h regard to the Article 1802 claims, Defendant requests that, if the Court d i s m i s s e s the federal claims, the Court exercise its discretion and dismiss the A r t i c l e 1802 claims. In light of the fact that the Court has not dismissed all t h e federal claims, the Court DENIES Defendant's request to dismiss the Article 1 8 0 2 claims.

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After considering the argument, the Court disagrees with Defendant. This Court has already ruled that Law 115 does permit for individual liability of a supervisor v. Casas who retaliates 597 against F. an employee. 2d 255,

Reyes-Guadalupe

Criollas,

Supp.

260 (D.P.R. 2008) (citing Hernández v. Raytheon Service Company Puerto Rico, 05-cv-1937 (CCC), 2006 WL 1737167 (D.P.R. Apr. 26, 2006)). 2. Article 1803 of Puerto Rico's Civil Code

Defendant argues that he is entitled to summary judgment on Plaintiffs' Article 1803 claim. As a general rule, an individual is

only liable for his own acts or omissions and only by exception is an individual liable for the acts or omissions of others.

Burgos-Oquendo v. Caribbean Gulf Refining Corp., 741 F. Supp. 330, 332 (D.P.R. 1990). "Only when clearly specified in the law can

liability for the acts or omissions of others be enforced against a third party." 634 (1912)). Article 1803 of Puerto Rico's Civil Code enumerates the cases in which vicarious liability is applicable. Id. at 333. The Id. at 332-33 (citing Vélez v. Llavina, 18 P.R.R.

exceptions to the general rule, as laid out in Article 1803, are: [(1)][t]he father, and, in the event of his death or incapacitation, the mother, is liable for the damage caused by the minor children living with them[;] [(2)] [g]uardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them[;] [(3)] [o]wners or directors of an establishment or enterprise are likewise liable for any

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damages caused by their employees in the service of the branches in which the latter are employed or on account of their duties[;] [(4)] [t]he Commonwealth is liable in this sense under the same circumstances and conditions as those under which a private citizen would be liable[;] [and (5)] . . . masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under their custody. P.R. Laws Ann. tit. 31, § 5142. In the instant case, the Court finds

that Defendant is entitled to summary judgment on the Article 1803 claim because none of the exceptions are applicable to the facts in this case. IV. CONCLUSION In conclusion, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion for summary judgment. The Court will enter a

separate judgment dismissing Plaintiffs' claims based: (1) on the First Amendment which are related to Plaintiff Pastrana's speech before the Senate of Puerto Rico; (2) on the Fifth and Fourteenth Amendments; and (3) on Article 1803 of Puerto Rico's Civil Code, P.R. Laws Ann. tit. 31, § 5142. IT IS SO ORDERED. In San Juan, Puerto Rico, this 20th day of October, 2010.

s/Jaime Pieras, Jr. JAIME PIERAS, JR. U.S. SENIOR DISTRICT JUDGE