Rios-Montoya v. The Commonwealth of Puerto Rico et al
Filing
58
OPINION AND ORDER granted in part and denied in part 26 Motion for Summary Judgment. Signed by Judge Carmen C. Cerezo on 8/2/2011.(mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MELISSA RIOS-MONTOYA
Plaintiff
v.
CIVIL 09–2229CCC
THE COMMONWEALTH OF PUERTO
RICO; CONSEJO DE DESARROLLO
OCUPACIONAL Y RECURSOS
HUMANOS; AURELIO
GONZALEZ-CUBERO, JANE DOE and the
conjugal partnership formed by them;
JOHN AND JANE ROE and their conjugal
partnership, INSURANCE COMPANIES A,
B, and C
Defendants
OPINION AND ORDER
This Section 1983 action, arising from alleged political discrimination in violation of
the First Amendment of the United States Constitution, is now before us on defendants’
Motion for Summary Judgment, (docket entry 26) which plaintiff opposed (docket entry 30)
and to which movants replied (docket entry 37). In addition to her First Amendment claim,
Ríos-Montoya also avers causes of action under the Fourteenth Amendment for procedural
and substantive due process, as well as various claims under the Puerto Rico Constitution,
Puerto Rico Law 100, 29 L.P.R.A. §149, et seq., Law 80, 29 L.P.R.A. §185a and
Article 1802 of the Civil Code of Puerto Rico.
The relevant facts engendering the December 9, 2009 complaint, as stated in that
pleading, are as follows. Plaintiff began working for the Consejo de Desarrollo Ocupacional
y Recursos Humanos1 of the Commonwealth of Puerto Rico (Council) as an attorney in a
regular career position on March 18, 2002 (¶12). In 2007, she was appointed to the trust
position of Director of the Council’s Legal Division. Id. In January, 2009 Governor Luis
Fortuño, of
1
the
New Progressive Party (NPP), appointed defendant
Aurelio
The Council for Occupational Development and Human Resources, in English.
CIVIL 09-2229CCC
2
González-Cubero to be the new Executive Director of the Council (¶17). González asked
plaintiff to “continue working with the agency as a staff attorney, returning her to her career
position with an increase in her salary as recognition of excellent work” (¶18).
Plaintiff, who is a member of the Popular Democratic Party (PDP), requested and was
granted October 15, 2009 as a vacation day. (¶¶28-29). Ríos took that day off in order to
participate in what she describes as a “national strike” to protest the Governor’s plan to
discharge a large number of government employees. Id. Ríos was the only employee from
the Council’s Legal Division who participated in the strike (¶36).
On November 2, 2009 Ríos received a notice of summary suspension from
employment, intent to dismiss, and a citation for a hearing signed by González-Cubero
(¶58). The notice stated that on October 28, 2009, the Director of Public Relations of the
Council had found “material foreign to public service on the Council computer assigned to
Ms. Ríos-Montoya’s co-worker, Richard Timm” (¶59). Plaintiff later learned that the “material
foreign to public service” in Timm’s computer was a photograph of her in a white dress taken
at the beach at a co-worker’s wedding (¶¶69-70). It was not until the hearing set for
November 12, 2009, that defendants amended the charges to accuse Ríos of having
information foreign to public service on her own computer (¶¶73-74). That hearing was
postponed because of the new charges and was finally held on December 1, 2009.
Ríos-Montoya admits, at ¶90, that she was filing her complaint without waiting for the
Executive Director to make his decision.2 Plaintiff further states, at ¶91, that she “has been
without a salary for more than a month now, without any hope of rapid or legal resolution of
her illegal suspension.”
2
The December 1, 2009 hearing was held eight days before plaintiff filed her
complaint in this case.
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3
Summary Judgment Standard
Summary Judgment “is proper if the pleadings, depositions, answer to interrogatories,
and admissions on file, together with the affidavits, if any, show that the moving party is
entitled to a judgment as a matter of law.” Rule 56 of the Federal Rules of Civil Procedure;
Sands v. Ridefilm Corp., 212 F.3d. 657, 660-61 (1st Cir. 2000); Barreto-Rivera v. Medina
Vargas, 168 F.3d. 42, 45 (1st Cir. 1999). The party seeking summary judgment must first
demonstrate the absence of a genuine issue of material fact in the record. DeNovellis v.
Shalala,124 F.3d. 298, 306 (1st Cir. 1997). The nonmoving party must establish the
existence of at least one relevant and material fact in dispute to defeat such a motion.
Brennan v. Hendrigan, 888 F.2d 129 (1st Cir. 1989).
The purpose of a summary judgment motion is to “pierce the boilerplate of the
pleadings and assay the parties proof in order to determine whether trial is actually
required.” Wynne v. Tufts University, 976 F.2d 791, 794 (1st Cir. 1992). The Court must
look at the record in the light most favorable to the non-moving party; however the Court
need not rely on unsubstantiated allegations. To defeat a motion for summary judgment,
evidence offered by non-movant “must be significantly probative of specific facts.” Prescott
v. Higgins, 538 F.3d. 32, 40 (1st Cir. 2008); Pérez v. Volvo Car Corp, 247 F.3d. 303, 317
(1st Cir. 2001). We may ignore “conclusory allegations, improbable inferences and
unsupported speculation. Prescott, at 40.
A dispute is genuine if the evidence about the fact is such that a reasonable jury
could resolve the point in the favor of the non-moving party. A fact is material if it has the
potential of determining the outcome of the litigation. The non-moving party may not rest
on mere allegations or denials of his pleading but must “come forward with ‘specific facts
showing that there is a genuine issue for trial.” [A] genuine issue of material fact exists if:
(1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and
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(3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party.”
RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
That is, the non-moving party may only overcome the motion with evidence sufficient
to raise a genuine issue of fact that is both relevant and material. See, Daury v. Smith,
842 F.2d 9, 11 (1st Cir. 1988); Cruz v. Crowley Towing, 807 F.2d 1084 (1st Cir. 1986). That
is, “the mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion [. . .].” Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986).
On issues where the nonmovant bears the ultimate burden of proof at trial, he may
not defeat a motion for summary judgment by relying on evidence that is “merely colorable”
or “not significantly probative”. Rather, the nonmovant must present definite, competent
evidence to rebut the motion. Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993), citing
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). Summary judgment is
appropriate even when elusive concepts like motive or intent are in play if the non-moving
party rests merely upon conclusory allegations, improbable inferences, and unsupported
speculation. Feliciano v. El Conquistador, 218 F.3d 1 (1st Cir. 2000); Medina Muñoz v.
R.J. Reynold Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Therefore, the nonmoving party’s
failure to advance evidence establishing the essential elements of the cause of action, and
for which they have the burden of proof, warrants the dismissal of the case through
summary judgment. Celotex v. Catrett, 477 U.S. 37 (1986).
Defendants’ Arguments and Additional Facts
Defendants raise the following issue in their motion for summary judgment: (1) that
Ríos-Montoya’s §1983 claims against González-Cubero in his personal capacity do not
comply with the pleading standard; (2) that plaintiff failed to state a First Amendment claim;
(3) that she failed to state either a substantive or procedural due process claim under the
Fourteenth Amendment; (4) González-Cubero is entitled to Qualified Immunity; (5) Eleventh
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Amendment Immunity; (6) failure to state claims under Law 100, Law 80, Article 1802 of the
Civil Code of Puerto Rico; and (7) failure to state a claim for which injunctive relief may be
granted.
Plaintiff, in jumping the gun on the filing of this complaint only eight days after the
administrative hearing and before the completion of the administrative process, included
several averments that never came to pass: Ríos never suffered “irreparable harm each day
she is unemployed due to defendants’ unconstitutional actions” (Complaint, at ¶128), nor
is there any need to “[grant] a preliminary injunction restoring Ms. Ríos-Montoya to her
position with the Council.” Id., at 131. The decision and order of the Council, Exhibit 17,
adopting the Hearing Examiner’s recommendation, defendants’ Exhibit 16, reflects that
plaintiff was not discharged from her position. Similarly, her request for “liquidated damages
of double the back-pay and front-pay,” is meritless. Defendants’ Exhibit 19, a certification
by José F. Jiménez-Améstica, Deputy Director of Fiscal Management and Monitoring,
reflects that plaintiff was paid her salary during the time she was suspended.3
Plaintiff’s opposition is very general and does not address most of defendants’
arguments. Therefore, we will first address those to which no objections were raised:
A.
Law 80, 29 L.P.R.A. §185a
Law 80 provides a severance pay scheme in cases when an employee is discharged
without just cause. Inasmuch as Ríos-Montoya was not terminated from her position, this
cause of action is DISMISSED.
3
Notwithstanding that payment was made throughout her suspension, plaintiff avers
at ¶91of her complaint, “Ms. Ríos-Montoya has been without a salary for more than a month
now . . . .” Plaintiff admitted in her Response to Defendants Statement of Uncontested
Facts that she was paid her full salary during this period. See, plaintiff’s admission of
defendants’ fact No. 45, docket entry 30-1, at 14.
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B.
6
Eleventh Amendment Immunity
Defendants further argue that the claims for monetary damages against the
Commonwealth of Puerto Rico, the Council and Gonzalez Cubero in his official capacity are
barred by their Eleventh Amendment Immunity. Rios-Montoya does not address this issue
in her opposition.
The Eleventh Amendment bars money damage claims under Section 1983 asserted
by a private individual against an unconsenting state. Will v. Michigan Dept. of Police,
491 U.S. 58, 62 (1989); Wilson v. Brown, 889 F.2d 1195, 1197 (1st Cir. 1989). The
Eleventh Amendment embodies a constitutional constraint on the exercise of federal judicial
power that renders an "unconsenting state immune from suits brought in federal courts by
her own citizens as well as by citizens of another State." Employees of Dept. of Public
Health & Welfare v. Dept. of Public Health & Welfare, 411 U.S. 279, 280 (1973). The First
Circuit has held that the Eleventh Amendment deprives the federal court from hearing claims
for damages against the Commonwealth of Puerto Rico. Figueroa-Rodríguez v. Aquino,
863 F.2d 1037, 1044 (1st Cir. 1988); Ramírez v. Puerto Rico Fire Service,
715 F.2d 694, 697 (1st Cir. 1983). "Puerto Rico, despite the lack of formal statehood, enjoys
the shelter of the Eleventh Amendment in all respects." Ezratty v. Commonwealth of Puerto
Rico, 648 F.2d 770, 776 (1st Cir. 1988). "The Eleventh Amendment, despite the absence
of any express reference, pertains to Puerto Rico in the same manner, and to the same
extent, as if Puerto Rico were a State." De León López v. Corporación Insular de Seguros,
931 F.2d 116, 121 (1st Cir. 1991). See also, Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct
and Sewer Authority, 945 F.2d 10, 11 n.1 (1st Cir. 1991), reversed and remanded on other
grounds, 503 U.S. 139 (1993); Rodríguez García v. Dávila, 904 F.2d 90, 98 (1st Cir. 1990).
Similarly, Eleventh Amendment Immunity has also been extended to suits brought
against state officials in the exercise of their duties to uphold government policy where
recovery will come from the public fisc. Kentucky v. Graham, 473 U.S. 159 (1985).
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Official-capacity suits . . . generally represent only another way
of pleading an action against an entity of which an officer is an
agent. As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity. It is
not a suit against the official personally, for the real party in
interest is the entity.
Id., at 165-66 (internal citations and quotations omitted).
But a suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the
official's office. As such, it is no different from a suit against the
state itself.
Will v. Michigan Dept. Of State Police, 491 U.S. 58, 91 (1989) (internal citations and
quotations omitted).Therefore, the claims against the Commonwealth of Puerto Rico, the
Council and Gonzalez-Cubero, in his official capacity, are DISMISSED.
C.
Law 100, 29 L.P.R.A. §149, et seq.
Law 100 prohibits “employer[s] from discriminating against their employees on the
basis of political affiliation and ideology. The term “employer” is defined as including “ any
natural or [juridical] person employing laborers, workers or employees . . . . It shall include
all such agencies or instrumentalities of the Government of Puerto Rico as may be
operating as private business or enterprises.” 29 L.P.R.A. §151(2). Calderón-Garnier
v. Sánchez-Ramos, 439 F. Supp. 2d. 229, 238-39 (D. Puerto Rico 2006) (Our emphasis).
Plaintiff has neither claimed nor demonstrated that the Department of Labor and Human
Resources, of which the Council is a part, operates as a private business or enterprise.
Therefore, since the Council is not an employer, as defined in Law 100, the Law 100 claim
against it is DISMISSED. Since Aurelio Cubero Gonzalez is not plaintiff’s employer as agent
of the Council, under the statutory definition of that term, the Law 100 claim against him
must also be DISMISSED. Arce-Rey v. Pereira, 2008 WL 471547 (D.P.R. 2008).
CIVIL 09-2229CCC
D.
8
Fourteenth Amendment –Procedural Due Process
The Supreme Court has explained the critical importance attached to the requirement
that a procedural due process claimant allege the unavailability of constitutionally adequate
remedies under state law. As it stated in Zinermon v. Burch, 494 U.S. 113, 125-126 (1990):
In procedural due process claims, the deprivation by state action of a
constitutionally protected interest in “life, liberty, or property” is not in itself
unconstitutional; what is unconstitutional is the deprivation of such interest
without due process of law . . . The constitutional violation actionable under
§1983 is not complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process. Therefore, to determine
whether a constitutional violation has occurred, it is necessary to ask what
process the State provided, and whether it was constitutionally adequate.
(emphasis in the original) (citations omitted).
At the pre-termination stage, due process requires that the tenured public employee
receive oral or written notice of the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the story.
264 Fed. Appx. 17, 19 (1st Cir. 2008).
Jackson v. Norman,
In the notice dated November 2, 2009 and signed
by González-Cubero, the Executive Director, plaintiff was suspended and notified of the
intention to terminate her employment if the alleged facts were proven after holding the
corresponding hearing. See, notice at 2, Exhibit 9. The notice contained a detailed list of
the alleged violations. It also notified that she could be represented by an attorney at the
hearing set for Thursday, November 12, 2009. That hearing was postponed at the request
of plaintiff’s attorney on the date set, when the employer amended the charges and counsel
requested time to review the evidence. See, examining officer’s report, at 3. The hearing
was then held on December 1, 2009 before examiner Miguel A. Candelario. Plaintiff’s
attorney argued on her behalf but did not submit documentary evidence. Id., at 5. The
examiner took the matter under advisement, including the employer’s thirteen (13) items of
documentary evidence to support its intent to discharge the plaintiff. In his report of
December 11, 2009, Candelario determined that the disciplinary action of dismissal was not
in order and instead recommended that she be restored to her position and be given a
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written reprimand. The Decision and Order issued by defendants on January 4, 2010
adopted the examiner’s recommendations. In sum, Ríos-Montoya was provided with
procedural due process in the form of notice and a hearing at which she was represented
by legal counsel who argued on her behalf. Plaintiff prevailed and she was reinstated to her
position.
Additionally, with regard to procedural due process in suspension settings, the
Supreme Court of the United States has observed that the way to “avoid the problem” of
preserving an employee’s pre-termination due process rights when their continued presence
would be detrimental to the workplace is to suspend him/her with pay. Cleveland Bd. of Ed.
v. Loudermill, 470 U.S. 532, 544-45 (1985). In Bennett v. City of Boston, 869 F.2d, 19, 22
(1st Cir. 1989), the First Circuit Court stated that “we need not decide whether Bennett’s
pre-April 15 suspension (from March 23 until April 24) violated the Due Process Clause, for
the City paid Bennett during this period.
There is no significant evidence that the
suspension hurt Bennett, because it was with pay.” (Citations omitted). Other circuits have
found, in similar circumstances, that the procedural due process claim fails when an
employee is suspended with pay. See, e.g. Muñoz v. Bd. of Trustees of University of the
District of Columbia, 2011 WL 1753790, *3 (D.C. Cir. 2011); Palka v. Shelton,
623 F.3d. 447, 453 (7th Cir. 2010) (A suspension with pay does not trigger due-process
protections unless the suspension imposes a substantial indirect economic effect on
plaintiff.); McCarthy v. Darman, 372 F.3d. 346, 351 (3rd Cir. 2010); McIntosh v. Partridge,
540 F.3d. 315 (5th Cir. 2008); Harris v. Detroit Public Schools, 245 Fed. Appx. 437,
444 (6th Cir. 2007); Dias v. Elique, 436 F.3d. 1125, 1132 (9th Cir. 2006).
Ríos-Montoya, having been suspended with pay and having been given both notice
of the intent to terminate, with a listing of the charges, and a pre-termination hearing at
which she prevailed, resulting in being reinstated to her position, the procedural due process
claim under the Fourteenth Amendment is DISMISSED.
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E.
10
Substantive Due Process
Plaintiff’s complaint also contains a claim of violation of substantive due process.
Substantive due process is a constitutional cause of action that leaves the door slightly ajar
for a federal relief in brutal and offensive situations. “In order to assert a valid substantive
due process claim, plaintiff must prove that she suffered the deprivation of an established
life, liberty, or property interest, and that such deprivation occurred through government
action that shocks the conscience.” Clark v. Boscher, 514 F.3d. 107, 112 (1st Cir. 2008).
However, other than invoking the boiler-plate, formulaic words, “shocks the conscience”
in ¶109 of her complaint, Ríos-Montoya’s factual allegations, do not configure such a cause
of action, see Rivera v. Rhode Island, 402 F.3d 27, 35-36 (1st Cir. 2005) (substantive due
process claim must involve “conscience-shocking” conduct by state officials). Therefore,
plaintiff’s substantive due process claim is also DISMISSED.
F.
The Political Discrimination Claim
Ríos-Montoya avers that González-Cubero suspended her with the intent to terminate
her employment because of her political affiliation with the PDP. She points primarily to her
participation in a “national strike” protesting Law 7 which would implement the NPP
governor’s decision to reduce the size of government by discharging thousands of public
employees as the protected activity for which her time off was approved. She claims that her
participation in such protected activity resulted in the notification of her suspension and
intent to discharge her only one week later. The United States Supreme Court has noted
that “[s]ome courts hold that an employee asserting a retaliation claim can prove causation
simply by showing that the adverse employment action occurred within a short time after the
protected activity.” Crawford v. Metropolitan Government of Nashville and Davidson,
129 S.Ct. 846, 854 (2009); Clark County School Dist v. Breeden, 532 U.S. 268, 273 (2001)
(noting that some cases “accept mere temporal proximity between an employer’s knowledge
of protected activity and an adverse employment action as sufficient evidence of causality
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to establish a prima facie case); Ahern v. Shinski, 629 F.3d. 49, 58 (1st Cir. 2010);
Mercado-Berríos v. Cancel Alegría, 611 F.3d. 18, 24 (1st Cir. 2010). Considering the
temporal proximity factor and the concrete factual allegations of the complaint related to the
computers and the partisan political conduct and actions by defendants, their challenge to
plaintiff’s political discrimination claim fails under the Constitutions of the United States and
Puerto Rico.
Defendant González’ claim of Qualified Immunity Defense fails. González argues
that, at the time of Ríos-Montoya’s suspension, it “was clearly established that public
property cannot be used for personal purposes and that said conduct violated certain
Regulations in force at the Consejo, among other statutes and regulations.” Motion for
Summary Judgment, at 20. At the time of her suspension and threat with discharge,
however, there was no evidence that she had used public property for personal purposes;
that is, no wrongdoing on her part was alleged. Rather, it was because someone else had
a photo of her in his computer. Additionally, plaintiff’s right to be free from political
discrimination in her employment was clearly established. Therefore, the claim for political
discrimination remains.
G.
Claim for Preliminary and Permanent Injunctive Relief
Ríos-Montoya’s claim for preliminary and permanent injunction relief, which would be
the only viable claim against the Council and the Commonwealth of Puerto Rico are based
on her false representation that “Ms. Ríos-Montoya is suffering irreparable harm each day
she is unemployed due to defendants’ unconstitutional actions.”
Complaint ¶128.
Inasmuch as she has never been unemployed or without her salary, the request for
reinstatement as injunctive relief is DISMISSED.
For the above-stated reasons, defendants’ Motion for Summary Judgment (docket
entry 26) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to
the Procedural and Substantive Due Process claims under the Fourteenth Amendment of
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the United States and Puerto Rico Constitutions, Puerto Rico Laws 100 and 80, and for
injunctive relief against all defendants, and DENIED as to the claim of political discrimination
under the First Amendment of the U.S. Constitution and the Puerto Rico Constitution, Puerto
Rico Const. Article II, §8 and Article 1802 of the Civil Code of Puerto Rico against Aurelio
González-Cubero, in his personal capacity and his conjugal partnership.
SO ORDERED.
At San Juan, Puerto Rico, on August 2, 2011.
S/CARMEN CONSUELO CEREZO
United States District Judge
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