Grajales et al v. Puerto Rico Ports Authority et al

Filing 270

OPINION AND ORDER re 186 Second Motion for Summary Judgment. The Court DENIES defendant Puerto Rico Ports Authority's motion for summary judgment. Signed by Judge Francisco A. Besosa on 02/21/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DANIEL GRAJALES, et al.,
Plaintiffs,
v.

CIVIL NO. 09-2075 (FAB)

PUERTO RICO PORTS AUTHORITY, et
al.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendant Puerto Rico Ports Authority’s
motion for summary judgment.

(Docket No. 186.)

Having considered

the motion and plaintiffs’ response, (Docket No. 206), the Court
DENIES defendant PRPA’s motion.
DISCUSSION
I.

Procedural Background
On October 16, 2009, plaintiff Daniel Grajales (“Grajales”),

his wife Wanda Gonzalez, and their conjugal partnership1 filed a
complaint against the defendants.

(Docket No. 1.)

The complaint

included a general claim for civil rights violations pursuant to
42 U.S.C. sections 1983 (“section 1983”) and 1985 (“section 1985”),
Title VII of the Civil Rights Act (“Title VII”), state claims for
1

Because Grajales’ wife’s and children’s claims are wholly
derivative, the Court will refer to Grajales as if he were the only
plaintiff.

Civil No. 09-2075 (FAB)

2

damages under the laws of the Commonwealth of Puerto Rico, and
Puerto Rico Law No. 100 for alleged discrimination. Id. Plaintiff
Grajales filed an amended complaint pursuant to a court order on
February 26, 2010.

(Docket No. 31.)

complaint on September 27, 2010.

He filed a second amended

(Docket No. 66.)

The second

amended complaint included as defendants the Puerto Rico Ports
Authority (“PRPA”), a public corporation, and Alvaro Pilar-Vilagran
(“Pilar”), the then Executive Director of the PRPA, Miguel AlcoverColon

(“Alcover”),

an

internal

security

officer

of

Aguadilla

Airport and one of plaintiff’s subordinates; Elmer Emeric-Oliver
(“Emeric”), the Director of General Security at the PRPA; Gonzalo
Gonzalez-Santini

(“Gonzalez”),

airport;

Travieso

Carlos

the

manager

(“Travieso”),

the

of

the

acting

Aguadilla
security

supervisor of Aguadilla Airport; among others, in their official
and personal capacities (collectively, “defendants”).
No. 66.)

(Docket

Plaintiff Grajales argues that defendants subjected him

to political discrimination through a variety of occurrences.

Id.

On August 31, 2012, plaintiff Grajales filed a third amended
complaint.

(Docket No. 146.)

In the third amended complaint, he

added a wrongful termination claim against defendant PRPA and added
his minor children, ZGG, DGG, and CGG as plaintiffs in the suit for
damages under Puerto Rico law.

See id.

Civil No. 09-2075 (FAB)

3

On October 30, 2012, the parties stipulated that plaintiff’s
complaint

against

the

individually

named

defendants

personal capacity be dismissed with prejudice.

in

their

(Docket No. 177.)

On that same date, the Court dismissed the claims against Pilar,
Travieso,

Emeric,

Gonzalez,

capacities with prejudice.

and

Alcover

in

their

personal

(Docket No. 178.)

On November 30, 2012, defendant PRPA filed two motions for
summary judgment.

(Docket Nos. 184 and 186.) The first motion for

summary judgment (Docket No. 184) argues that the doctrines of res
judicata,2 collateral estoppel, and fragmentation estoppel apply to
this case, and therefore, the case should be dismissed.

Id.

On

February 13, 2013, the Court denied defendant PRPA’s first motion
for summary judgment.

(Docket No. 247.)

In its second motion for summary judgment, (Docket No. 186),
defendant PRPA argues that plaintiff Grajales lacks evidence to
show actionable political discrimination.

Therefore, defendant

PRPA requests that the Court dismiss plaintiff’s third amended
complaint with prejudice. On December 28, 2012, plaintiff Grajales
opposed

2

defendant

PRPA’s

second

motion

for

summary

judgment.

Res Judicata is an affirmative defense that must be alleged
when a party responds to a pleading. Fed.R.Civ.P. 8(c)(1). In its
answer to plaintiff’s third amended complaint, defendant PRPA
alleges that plaintiff’s claims are precluded by the doctrine of
res judicata. (Docket No. 173 at pp. 8-9.) It reiterates these
claims in its motion for summary judgment. (Docket No. 184.)

Civil No. 09-2075 (FAB)
(Docket

No.

certified

206.)

Both

translations

arguments.

4
parties

also

certain

documents

of

filed

attachments
to

support

and

their

(See Docket Nos. 186, 196, 206, 207, and 219.)

On February 15, 2013, the Court dismissed the claims against
defendants Emeric, Gonzalez, Alcover, and Pilar in their official
capacities.

(Docket

No.

259.)

The

Court

also

dismissed

plaintiff’s Title VII claim against PRPA with prejudice. Id. Only
plaintiff’s claims against defendant PRPA and defendant Travieso in
his official capacity remain.

The Court will address defendant

PRPA’s motion for summary judgment regarding these two defendants.
For the reasons discussed, the Court DENIES defendant PRPA’s
motion for summary judgment.
II.

Summary Judgment Standard
The Court may grant a motion for summary judgment “if the

movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a).

A fact is “material” if it has the potential

to “affect the outcome of the suit under the governing law.”

Id.

A dispute is “genuine” when it “could be resolved in favor of
either party.”

Calero-Cerezo v. U.S. Dep’t. of Justice, 355 F.3d

6, 19 (1st Cir. 2004).
The party moving for summary judgment has the initial burden
of “demonstrat[ing] the absence of a genuine issue of material

Civil No. 09-2075 (FAB)
fact.”

5

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The

party must demonstrate this absence with definite and competent
evidence. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
581 (1st Cir. 1994). It must identify “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any’” which support its motion.
Id. (citing Fed.R.Civ.P. 56(c)). Once a properly supported motion
has been presented, the burden shifts to the non-moving party “to
demonstrate that a trier of fact reasonably could find in [its]
favor.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d
46, 52 (1st Cir. 2000) (internal citation omitted).
If the non-moving party establishes uncertainty as to the
“true state of any material fact, the movant’s efforts should be
deemed unavailing.”

See Lopez & Medina Corp. v. Marsh USA, Inc.,

694 F.Supp.2d 119, 123 (D.P.R. 2010) (citing Suarez v. Pueblo
Int’l., 229 F.3d 49, 53 (1st Cir. 2000)).

It is well-settled that

“[t]he mere existence of a scintilla of evidence” is insufficient
to

defeat

a

properly

supported

Anderson, 477 U.S. at 252.
opposing
evidence

summary
to

for

summary

judgment.

It is therefore necessary that “a party

judgment

rebut

motion

the

must

‘present

motion.’”

definite,

competent

Maldonado-Denis

v.

Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (internal
citation omitted).

In making this assessment, the Court must take

Civil No. 09-2075 (FAB)

6

the entire record in the light most favorable to the nonmoving
party and draw all reasonable inferences in its favor.

Farmers

Ins. Exch. v. RNK, Inc., 632 F.3d 777, 779-80 (1st Cir. 2011).

The

Court does not, however, “make credibility determinations or weigh
the evidence.”

Anderson, 477 U.S. at 255.

The Court may safely

ignore, however, “conclusory allegations, improbable inferences,
acrimonious invective, or rank speculation.”

Ahern v. Shinseki,

629 F.3d 49, 54 (1st Cir. 2010).
The First Circuit Court of Appeals has “repeatedly . . .
emphasized the importance of local rules similar to Local Rule 56
[of the District of Puerto Rico].”

Hernandez v. Phillip Morris

USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007).

Rules such as Local

Rule 56 “are designed to function as a means of ‘focusing a
district court’s attention on what is - and what is not - genuinely
controverted.’”

Id. (quoting Calvi v. Knox County, 470 F.3d 422,

427 (1st Cir. 2006)).

Local Rule 56 imposes guidelines for both

the movant and the party opposing summary judgment.

Loc. Rule 56.

A party moving for summary judgment must submit factual assertions
in “a separate, short, and concise statement of material facts, set
forth in numbered paragraphs.”

Loc. Rule 56(b).

A party opposing

a motion for summary judgment must “admit, deny, or qualify the
facts supporting the motion for summary judgment by reference to
each numbered paragraph of the moving party’s statement of facts.”

Civil No. 09-2075 (FAB)
Loc. Rule 56(c).

7

Facts which are properly supported “by record

citations as required by this rule, shall be deemed admitted unless
properly controverted.”

Loc. Rule 56(e).

The Court may, however,

“disregard any statement of fact not supported by a specific
citation
judgment.”

to

record

material

Loc. Rule 56(e).

properly

considered

on

summary

“The court shall have no independent

duty to search or consider any part of the record not specifically
referenced in the parties’ separate statement of facts.”

Due to

the importance of this function to the summary judgment process,
“litigants ignore [those rules] at their peril.”

Hernandez, 486

F.3d at 7.
III. Undisputed Facts
In addition to defendant PRPA’s motion for summary judgment
and plaintiff’s response, (Docket Nos. 184 and 186), both parties
filed redacted parts of documents and depositions, (see Docket
Nos. 196, 206 and 207).

Some of the exhibits, however, were filed

only in Spanish without any certified English translations pursuant
to Local Rule 5(g), which requires that “[a]ll documents not in the
English language which are presented or filed, whether as evidence
or otherwise, must be accompanied by a certified translation in
English prepared by an interpreter certified by the Administrative
Office of the United States Courts.”

See also 48 U.S.C. § 864

(“All pleadings and proceedings in the United States District Court

Civil No. 09-2075 (FAB)

8

for the District of Puerto Rico shall be conducted in the English
language.”)

Other

misrepresented.

exhibits

were

cited

incorrectly

and

Therefore, any fact that was improperly cited,

misrepresented, or only supported by documents in Spanish have not
been considered, and are not included in the factual background
below.

Loc. Rule 56(e); P.R. Am. Ins. Co. v. Rivera-Vazquez, 603

F.3d 125, 130 (1st Cir. 2010) (Facts which are properly supported
“shall

be

deemed

admitted

unless

properly

controverted.”)

Additionally, defendant PRPA failed to address plaintiff Grajales’
counter statement of undisputed facts.

(See Docket No. 206-1 at

pp. 6-7). Any properly cited and supported facts contained in that
statement are included below.
On May 20, 2011, plaintiff Grajales received a termination
letter, which dismissed him from his employment at defendant PRPA.
(Docket No. 184-2.)
Director Escudero.

The letter was signed by then Executive
Id.

At the time, plaintiff Grajales was a

security supervisor at the Aguadilla airport. Id. Escudero stated
that

he

signed

the

letter

based

on

the

report

recommending

Grajales’ termination issued by Official Examiner Luisa Torres
after a hearing held before her.
report

stated

insubordination,

that
and

(Docket No. 186-20 at p. 1.)

plaintiff
Examiner

Grajales

Torres

found

had
that

acted
the

The
with

behavior

warranted dismissal. (Docket No. 186-21 at p. 12.) Defendant PRPA

Civil No. 09-2075 (FAB)

9

does not contest plaintiff’s statement that, after a hearing with
defendant PRPA, the Department of Labor found him eligible for
unemployment benefits.

(Docket No. 206-2 at p. 40.)

Plaintiff

also stated that the Department of Labor determined that he was
eligible because there was a lack of insubordination to support his
termination.

(Docket No. 206-2 at p. 40.)

Horacio Gilot-Melendez

(“Gilot”), a retired employee of the PRPA’s Internal Security
Bureau, indicated that because the New Progressive Party (“PNP”)
took over in 2009, members of the PNP have “carried out a routine
practice at the PRPA of harassing and discriminating against PDP
supporters,” including people like Grajales.

(Docket No. 206-2

at p. 45.)
On March 13, 2012, plaintiff’s attorney wrote an extrajudicial
letter to defendant PRPA, which had a tolling effect on the oneyear statute of limitations for plaintiff’s cause of action.

(See

Docket Nos. 142-1, 145, and 184-2.)
Plaintiff Grajales indicates that while he is not affiliated
with any particular political party, his beliefs align with the
Popular Democratic Party (“PDP”).
¶ 7.)

(Docket Nos. 206-1 and 207-1 at

He also indicated that he never changed political parties to

the PNP and that he was never forced to change his affiliation.
(Docket Nos. 206-1 and 207-1 at ¶ 8.)

Civil No. 09-2075 (FAB)

10

Plaintiff Grajales testified at his deposition that he did not
know Gonzalez’s or Pilar’s political affiliation either when he was
dismissed or when he was deposed.

(Docket No. 207-1 at p. 3.)

He

also stated that Emeric is a member of the PNP because Emeric had
a trust position3 with the administration.
p. 2.)

(Docket No. 207-1 at

Gonzalez testified that he did not know the political

affiliation of plaintiff Grajales but that his own affiliation was
with the PDP.

(Docket No. 207-1 at pp. 8-9.)

The first time that Pilar,4 then Executive Director of the
PRPA,

visited

the

Aguadilla

airport,

he

witnessed

a

heated

discussion between Gonzalez and plaintiff Grajales, during which
they raised their voices at each other.
p. 19.)
regarding

(Docket No. 219-2 at

On May 15, 2009, Gonzalez submitted a letter to Pilar,
an

alleged

verbal

altercation

between

Gonzalez

and

3

Puerto Rico government positions are classified as either
“career” or “trust” positions. Costa-Urena v. Segarra, 590 F.3d
18, 22 (1st Cir. 2009).
“Trust” employees participate in
policymaking and are “freely subject to removal from [their
position[s] . . .” on political grounds.
Maymi v. P.R. Ports
Auth., 515 F.3d 20, 26–27 (1st Cir. 2008); see also Costa-Urena,
590 F.3d at 22.
“Career” employees can only be selected and
terminated based on merit, not politics, and terminated for just
cause. Costa-Urena, 590 F.3d at 22.
4

Pilar was an appointee of the PNP administration and served
as PRPA’s Executive Director until about May 2010, when he
resigned. (Docket No. 196-9 at p. 1.)

Civil No. 09-2075 (FAB)
plaintiff Grajales.

11

(Docket No. 196-1 at p. 1.)

In the letter,

Gonzalez requested that the incident be investigated.

Id.

Pilar stated that he dealt with another complaint in which
plaintiff Grajales and Alcover had a strong argument in the parking
lot.

(Docket Nos. 196-4 and 196-7 at p. 1.)

subordinate of plaintiff Grajales.

Alcover was a

(Docket No. 186-12 at ¶ 3.)

Alcover filed a suit for libel and slander in the Puerto Rico Court
of

First

Instance,

Aguadilla

Division,

at

supervisor, Manuel Villazan (“Villazan”).

the

behest

of

Id. at ¶ 9.

his
The

Aguadilla court issued a judgment and dismissed the claims against
Grajales.

Id. at ¶ 8.

Pilar decided that “[Grajales] could not work with the persons
in

Aguadilla”

because

of

personality

and

(Docket Nos. 196-4 and 196-8 at p. 1.)

character

problems.

Specifically, Pilar

mentioned the incident with Gonzalez and the “public screaming”
that Grajales engaged in with his subordinates, like Alcover.
(Docket No. 196-4 at p. 1.)

Therefore, he stated that he decided

to transfer Gonzalez to handle the Mayaguez and Arecibo airports,
and plaintiff Grajales to the nearest airport “regulated by [the]
TSA,” which was the Ponce airport.

(Docket No. 196-5 at pp. 21-

22.)
During

the

time

surrounding

these

incidents,

plaintiff

Grajales’ firearm privileges were also suspended. It is unclear as

Civil No. 09-2075 (FAB)

12

to why he was disarmed and who gave that order.

(Docket Nos. 186-1

and 206-1 at ¶ 16; Docket No. 196-7 at p. 1; Docket No. 206-3 at
pp. 2-3.)

Pilar said that he decided to disarm plaintiff Grajales

because he believed that Grajales had shown aggressiveness and
violence against his fellow workers.
Docket No. 196-7 at p. 1.)

(Docket No. 196-6 at p. 1;

For example, Pilar stated that still

another altercation with Alcover in the airport had occurred.
(Docket No. 196-7 at p. 1.)

Emeric stated, however, that he was

the one who disarmed Grajales because Grajales was on medication to
threat his depression.

(Docket No. 206-3 at pp. 2-3.)

Emeric

stated that no efforts were made to interview Grajales’ treating
physician or the physician who prescribed the medication to him.
(Docket No. 206-3 at pp. 2-3.)
Plaintiff Grajales indicated that while Alcover and defendant
Travieso were his subordinates, they both filed complaints about
Grajales with his supervisors.

(Docket No. 186-12 at p. 2; Docket

No. 206-2 at p. 22; Docket No. 206-4 at p. 9; Docket No. 196-10 at
pp. 1-2.)

For example, Roberto Ramos-Cruz (“Ramos”), a PRPA

Internal Affairs Officer, performed an investigation in either 2008
or 2009 about Grajales’ attendance record.
pp. 3, 7-8, 10-11.)

(Docket No. 206-4 at

The investigation was performed due to a tip

from an anonymous hotline but Ramos was able to determine that
Alcover requested the investigation.

Id. at pp. 8-9.

As part of

Civil No. 09-2075 (FAB)

13

his investigation, Ramos established a surveillance of Grajales and
interviewed other PRPA employees.

Id. at pp. 4 and 10.

During his

investigation, Ramos interviewed defendant Travieso and Alcover.
Id. at p. 4.

Defendants Travieso and Alcover indicated to Ramos

that they were better candidates for plaintiff Grajales’ appointed
position but that Grajales received the position as a favor during
the PDP administration.

Id. at pp. 4-6.

Grajales indicated that Alcover also took photographs of his
home and made copies of his attendance sheet to send to the Office
of Internal Affairs.

(Docket No. 206-2 at p. 22.)

Grajales also

stated that defendant Travieso followed him and videoed him in his
vehicle while he was on official business.

Id. at p. 23.

Grajales

stated that Travieso showed the video to other PRPA employees,
boasting that he would get Grajales fired and that he was “going to
fuck him up, because he’s [PDP].”
that

Villazan

then

took

the

Id.

video

to

Grajales then indicated
Villazan’s

supervisor,

Fernando Diaz-Ramirez. Id. at p. 24. Villazan allegedly indicated
that the video was taken by a citizen and shows that Grajales was
driving negligently.

Id.

Alcover

also

knew

that

defendant

Travieso had taken the video and that Villazan decided not to take
the incident further to an administrative investigation.
No. 206-4 at p. 2.)

(Docket

Grajales stated that he complained to Pilar in

Civil No. 09-2075 (FAB)

14

2009 about this behavior and Pilar’s response was to transfer
Grajales from the Aguadilla airport.
IV.

(Docket No. 206-2 at p. 25.)

Defendant’s Motion for Summary Judgment
A.

Section 1983 Claim for Relief
For a section 1983 action, the First Circuit Court of

Appeals has indicated that a plaintiff must show that (1) a person,
(2) acting under the color of state law,5 (3) deprived plaintiff of
a federally protected right.

Elena v. Municipality of San Juan,

677 F.3d 1, 6 (1st Cir. 2012); see also Soto-Padro v. Public Bldgs.
Auth. February 20, 2013, 675 F.3d 1, 4 (1st Cir. 2012).

Neither

plaintiff nor defendant PRPA has made any argument whether these
requirements have been met.

Therefore, the Court assumes that

these requirements are met.

See Soto-Padro, 675 F.3d at 4 n. 4

(assuming that plaintiff met the requirements of section 1983
because the parties make that assumption in their briefs to the
court).

Even if the parties did argue that a claim for relief can

be shown pursuant to section 1983, the only element that could be
disputed is the first element:

whether defendant PRPA is a

“person” that can be sued pursuant to section 1983.

The Court

finds that even if this argument had been made, it would have

5

“For purposes of section 1983, Puerto Rico is ‘deemed
equivalent to a state.’” Elena, 677 F.3d at 6 n. 5 (quoting Deniz
v. Municipality of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002)).

Civil No. 09-2075 (FAB)

15

failed, and that defendant PRPA can be sued as a “person” pursuant
to section 1983.

Cf. Orrina-Medina v. Metropolitan Bus Auth., 565

F.Supp.2d 285, 301-02 (D.P.R. 2007) (discussing how the Puerto Rico
Metropolitan Bus Authority, a public corporation that is similar in
creation and governance to the PRPA, is susceptible to suit under
section 1983).

Therefore, the Court finds that defendant PRPA can

be sued pursuant to section 1983.
B.

Political Discrimination Under the First Amendment
To

establish

a

prima

facie

case

of

political

discrimination, the plaintiff must show “(1) that the plaintiff and
defendant belong to opposing political affiliations; (2) that the
defendant has knowledge of the plaintiff’s affiliation; (3) that an
adverse

employment

action

occurred,

and

(4)

that

political

affiliation was a substantial or motivating factor for the adverse
employment action.”

Torres-Santiago v. Municipality of Adjuntas,

693 F.3d 230, 236 (1st Cir. 2012).
“But even if a jury could reasonably conclude from the
summary-judgment evidence that plaintiff’s political affiliation
was a substantial or motivating factor in [defendant’s] decisional
calculus, [plaintiff] still would not be home free.”

Soto-Padro,

675 F.3d at 6. The defendant can still prevail on summary judgment
by “showing that no sensible jury would reject their defense that
they would have taken the same action against him ‘in the absence

Civil No. 09-2075 (FAB)
of the protected conduct.’”

16
Id. (internal citations omitted).

This is known as a Mt. Healthy defense.6
Defendant PRPA’s motion for summary judgment contains
only a few sentences discussing element one, whether the plaintiff
and defendant belong to opposing political affiliations, and fails
to address at all the second element of whether the PRPA had
knowledge of plaintiff’s affiliations.

(Docket No. 186 at p. 16.)

Therefore, any argument regarding those two elements is waived.
U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that
“issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.”)
focuses on elements three and four:

The PRPA

whether an adverse employment

action occurred and whether political affiliation was a substantial
or motivating factor for the adverse employment action. Therefore,
the Court will focus its discussion on elements three and four.

6

While defendant PRPA sets out the applicable standard for a
Mt. Healthy defense in its motion for summary judgment, (Docket
No. 186 at p. 12), it fails to advance any argument regarding the
defense. Instead, it argues only that plaintiff fails to establish
a prima facie case. (See Docket No. 186.) Therefore, the Court
will focus only on defendant PRPA’s arguments regarding plaintiff’s
prima facie case. See Rodriguez v. Municipality of San Juan 659
F.3d 168, 178 (1st Cir. 2011) (declining to “say anything more”
about a Mt. Healthy defense when defendants have not advanced any
arguments about it).

Civil No. 09-2075 (FAB)
1.

17

Opposing Political Affiliations
Defendant PRPA cursorily argues that the PRPA itself

is

a

public

corporation

political affiliation.

that

cannot

vote

and

(Docket No. 186 at p. 16.)

cannot

have

a

While this may

be true, the PRPA admits, however, that the officers of the PRPA
are

responsible for the alleged actions against plaintiff and it

is the

PRPA employees’ political affiliations that the Court must

examine.

Id.

Plaintiff Grajales presented uncontested testimony

from at least one other employee indicating that since the PNP took
over in 2009, members of the PNP at the PRPA knew about Grajales’
political affiliation, and “carried out a routine practice at the
PRPA of harassing and discriminating” against him and other PDP
members.

(Docket No. 206-2 at p. 45.)

Defendant PRPA fails to

dispute or present any definite evidence that some of the employees
who

were

involved

in

the

alleged

adverse

employment

actions

contained opposing affiliations from the plaintiff and knew about
the plaintiff’s affiliation.

Reading the facts in a light most

favorable to the plaintiff, the Court finds defendant PRPA fails to
demonstrate an absence of a genuine issue of material fact with
regard to the first two elements.

Civil No. 09-2075 (FAB)
2.

18

Political
Affiliation
as
a
Substantial
or
Motivating Factor for the Adverse Employment Action
For First Amendment purposes, an adverse employment

action occurs “if those actions, objectively evaluated, would place
substantial pressure on even one of thick skin to conform to the
prevailing political view.” Rodriguez-Garcia v. Miranda-Marin, 610
F.3d

65,

66

(1st

Cir.

2010)

(internal

citations

omitted).

Generally, discharging or demoting an employee, denying promotions
and transfers, and failing to recall a public employee after
layoffs constitute adverse employment actions. Id. A “substantial
alteration

in

an

employee’s

job

responsibilities”

constitute an adverse employment action.
(internal citation omitted).

may

also

Bergeron, 560 F.3d at 8

A denial of “special benefits and

assignments” that normally come with a job may also suffice.

Id.

A court may also find an adverse employment action when the
plaintiff

is

confronted

with

“a

work

situation

unreasonably

inferior to the norm for the position.” Rodriguez-Garcia, 610 F.3d
at

766

(internal

citations

and

punctuation

omitted).

Even

“informal harassment, as opposed to formal employment actions . . .
can be the basis for the [F]irst [A]mendment claims if the motive
was

political

discrimination;

but

this

is

so

only

if

the

discriminatory acts are ‘sufficiently severe to cause reasonably
hardy

individuals

to

compromise

their

political

beliefs

and

Civil No. 09-2075 (FAB)

19

associations in favor of the prevailing party.’” Cordero-Suarez v.
Rodriguez, 689 F.3d 77, 82 (1st Cir. 2012) (internal citations
omitted)

(emphasis

added);

see

also

Carrasquillo-Gonzalez

v.

Sagardia-de Jesus, 723 F.Supp.2d 428, 435 (D.P.R. 2010) (quoting
Agosto-de Feliciano v. Aponte-Roque, 889 F.2d 1809, 1219 (1st Cir.
1989) (discussing how courts consider “additional factors such as
‘lost

access

to

telephone

and

photocopier,

poorer

office

accoutrements, worse hours’” when determining whether an adverse
action

occurred)).

Furthermore,

a

“substantial

campaign

of

harassment, instigated or knowingly tolerated by superiors” can
form the basis for a section 1983 claim.

Welch v. Ciampa, 542 F.3d

927, 937 (1st Cir. 2008) (citing Rosario-Urdaz v. Velazco, 433 F.3d
174, 179 (1st Cir. 2006)).
With regards to element three, the Court discerns
four actions that can be considered adverse employment actions from
the parties’ filings. First, there was the incident with defendant
Travieso, who allegedly filmed plaintiff Grajales and showed the
video to other PRPA employeese to prove that Grajales was driving
negligently.

Next, after this video incident and other incidents

with co-workers, Grajales was transferred from Aguadilla airport to
the Ponce airport, which is located much further away from his
home.

Third, plaintiff provides evidence that his firearm was

Civil No. 09-2075 (FAB)
taken away from him.

20

Finally, defendant PRPA fired plaintiff from

his position.
The Court finds defendant PRPA’s arguments regarding
elements three and four unavailing, and that there is a genuine
dispute of material fact about whether the adverse employment
actions were substantially motivated by political affiliation.
a.

Defendant Travieso
Plaintiff Grajales has provided evidence of one

particular politically-charged statement by defendant Travieso. To
be sure, “a single insult by a co-worker with no supervisory power
is

not

political

authority.”

discrimination

by

one

exercising

Rosario-Urdaz, 433 F.3d at 179.

official

With regards to

defendant Travieso, there was more than just a single insult of
“I’m going to fuck you up because you are [PDP].”

After defendant

Travieso made this political comment, he then followed plaintiff,
filmed plaintiff’s driving, and showed the video to others.

Next,

defendant Travieso lied about the video and indicated that a
concerned citizen took it.

Furthermore, defendant Travieso has

indicated to Ramos, a PRPA Internal Affairs Officer, how he did not
like that plaintiff Grajales received an appointment under the PDP
administration as a favor.

These incidents can certainly be

considered as an adverse employment action because plaintiff has
been confronted with “a work situation unreasonably inferior to the

Civil No. 09-2075 (FAB)
norm

for

the

21

position.”

Rodriguez-Garcia,

(internal citations and punctuation omitted).

610

F.3d

at

766

Thus, a trier of

fact who is examining this video incident and the politicallycharged comments “reasonably could find in [plaintiff’s] favor”
regarding whether or not defendant Travieso’s actions constituted
an adverse employment action that was substantially motivated by
political affiliation.

Santiago-Ramos v. Centennial P.R. Wireless

Corp., 217 F.3d 46, 52 (1st Cir. 2000) (internal citation omitted).
b.

Defendant PRPA
Taken as a whole, these actions are certainly

severe enough to be actionable against PRPA as well.

See id.

at 179-80 (discussing how, sometimes, a campaign of harassment “can
be inferred from parallel or interrelated actions”).

Defendant

PRPA argues that only the transfer to Ponce can be considered as an
adverse employment action.
disagrees.

(Docket No. 186 at p. 24.)

The Court

Not only was plaintiff Grajales denied use of his

firearm, which is a special benefit normally associated with his
job, but he has provided evidence to show that he was subjected to
other conditions “unreasonably inferior to the norm” for someone in
his position.

Rodriguez-Garcia, 610 F.3d at 766.

For example, it

is uncontested that plaintiff Grajales complained about the video
incident

and

other

incidents

of

political

Executive Director Pilar to no avail.

discrimination

to

Therefore, defendant PRPA

Civil No. 09-2075 (FAB)

22

fails to show that there is no genuine dispute regarding the
adverse employment action element of a political discrimination
claim pursuant to the First Amendment.
Defendant PRPA’s argument that there is no
genuine dispute
substantial

and

regarding whether political affiliation was a
motivating

actions also fails.

factor

for

the

adverse

employment

The First Circuit Court of Appeals has

emphasized that “it is rare that a ‘smoking gun’ will be found in
a political discrimination case, and thus circumstantial evidence
alone may support a finding of political discrimination.”

Lamboy-

Ortiz v. Ortiz-Velez, 630 F.3d 228, 240 (1st Cir. 2010) (internal
citations omitted). Again, the actions taken as a whole shows that
the

officers

actions.

at

PRPA

condoned

several

politically-motivated

See e.g., Rodriguez v. Municipality of San Juan, 659 F.

3d 168, 178 (1st Cir. 2011) (discussing how a court can find
political affiliation as a substantial or motivating factor for an
adverse employment action by drawing inferences from the context of
a multitude of facts at the summary judgment stage).

For example,

defendant PRPA argues that Pilar’s failure to follow up with these
requests is just mere negligence. The circumstances show, however,
that Pilar and other PRPA officers may have actively ignored
plaintiff Grajales’ multiple requests to take a closer look at the
incidences of political discrimination.

Instead, Pilar’s response

Civil No. 09-2075 (FAB)

23

was to transfer Grajales to the Ponce airport, and Gonzalez to
Arecibo.
an

But, the PRPA responded to other employees’ requests for

investigation

into

Grajales.

Furthermore,

defendant

PRPA

cursorily argues that it had valid reasons other than political
affiliation

for

taking

away

plaintiff’s

firearm

but

has

not

presented “definite and competent evidence” about why this was done
or who authorized the taking away of his firearm.

See Maldonado-

Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
Finally, defendant PRPA argues that plaintiff Grajales was fired
for being insubordinate, (Docket No. 186 at pp. 20-21), but does
not contest plaintiff Grajales’ statement that after a hearing with
defendant PRPA, the Puerto Rico Department of Labor determined that
defendant

PRPA

was

unable

to

prove

plaintiff

insubordination, (Docket No. 206-2 at p. 40.)

Grajales’

Furthermore, the

Puerto Rico Department of Labor determined that Grajales was
qualified

for

unemployment

benefits.

Id.

Thus,

the

Court

disagrees with defendant PRPA and finds that a reasonable fact
finder could find that plaintiff has established that political
affiliation was a substantial and motivating factor for the adverse
employment actions taken against plaintiff Grajales.
Reading the summary judgment evidence in a
light that is most favorable to the nonmoving party, plaintiff

Civil No. 09-2075 (FAB)

24

Grajales, the Court DENIES defendant PRPA’s motion for summary
judgment.
V.

Plaintiff’s Section 1985 Action
Section

1985

allows

a

plaintiff

to

sue

defendants

for

conspiring “to deprive others ‘of the equal protection of the laws,
or of the equal privileges and immunities under the law . . . . ”
Soto-Padro, 675 F.3d at 4 (citing 42 U.S.C. § 1985(3)).

Section

1985 requires plaintiff to establish: (1) “a conspiracy,” (2) “a
conspiratorial purpose to deprive the plaintiff of the equal
protection of the laws,” (3) “an overt act in furtherance of the
conspiracy,” and (4) either (a) an “injury to person or property”
or (b) “a deprivation of a constitutionally protected right.”

Id.

(citing Perez–Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st
Cir. 2008)).

That claim, however, “requires some racial, or

perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action.”
quotation marks omitted).

Id. (internal citations and

The First Circuit Court of Appeals has

held consistently that section 1985 does not offer a remedy for
discrimination based on political affiliation.

Id. (internal

citation omitted). Like the plaintiff in Soto-Padro, who “makes no
effort to explain how his case comes within section 1985’s sweep,”
plaintiff Grajales also fails to explain how section 1985 applies

Civil No. 09-2075 (FAB)
to his cases.

Id.

25

Therefore, he has waived his claim with regard

to section 1985 and it is DISMISSED, with prejudice.
CONCLUSION
For the reasons expressed, the Court DENIES defendant PRPA’s
motion for summary judgment.
IT IS SO ORDERED.
San Juan, Puerto Rico, February 21, 2013.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE