ALVAREZ-ESTRADA et al
Filing
42
OPINION AND ORDER adopting in part Report and Recommendation re 35 Report and Recommendation; and granting in part and denying in part 28 Motion for Judgment on the Pleadings. Signed by Judge Francisco A. Besosa on 06/08/2011. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDWIN ALVAREZ-ESTRADA, et al.,
Plaintiffs,
CIVIL NO. 10-1065 (FAB)
v.
WILFREDO
al.,
ALEMAÑY-NORIEGA,
et
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendants’ motion for judgment of the
pleadings, (Docket No. 28), and the report and recommendation,
(Docket
No.
35),
regarding
that
motion.
After
making
an
independent examination of the record in this case and considering
the arguments raised in defendants’ objection to the report and
recommendation, (Docket No. 39), the Court ADOPTS IN PART AND
REJECTS IN PART the magistrate judge’s findings and recommendations
as the opinion of the Court and GRANTS IN PART AND DENIES IN PART
the motion for judgment on the pleadings, (Docket No. 28).
DISCUSSION
I.
BACKGROUND
A.
Procedural Background
On January 28, 2010, plaintiffs Edwin Alvarez-Estrada
(“Alvarez”), Luis Ayala-Quintana (“Ayala”), Gisel Betances-de Jesus
(“Betances”), Luis Ramos-Rodriguez (“Ramos”), Jose Rodriguez-Ronda
Civil No. 10-1065 (FAB)
2
(“Rodriguez”), Rey Torres-Echevarria (“Torres”), Zulma Vazquez-Toro
(“Vazquez”),
and
Antonia
Rodriguez-Rivera
(“Rodriguez-Rivera”)
filed a complaint alleging claims of political discrimination
pursuant to 42 U.S.C. § 1983.
(Docket No. 1.)
The complaint names
several Puerto Rico government officials as defendants, including
Wilfredo
Alemañy-Noriega
(“Alemañy”),
Mayra
Lopez-Carrero
(“Lopez”), Yanitsia Irizarry-Mendez (“Irizarry”), Esteban PerezUbieta (“Perez”), and Wilfredo Maldonado (“Maldonado”).
Id.
On
April 8, 2011, defendants filed a motion for judgment on the
pleadings, arguing that the complaint lacks sufficient factual
allegations
to
“state
a
prima
facie
case
discrimination under the First Amendment.”
of
political
(Docket No. 28.)
Plaintiffs filed no opposition to that motion.
Pursuant
Magistrate
Judge
to
a
referral
Camille
order
Velez-Rive
issued
filed
by
a
the
Court,
report
and
recommendation with regard to the motion for judgment on the
pleadings on May 25, 2011.
(See Docket Nos. 16 & 35.)
The
magistrate judge recommends that the motion be granted in part and
denied in part, finding dismissal appropriate only with regard to
the claims brought by Alvarez, Ayala, Vazquez, Torres, and Ramos.
Id.
With regard to the remaining plaintiffs, the magistrate judge
found that the complaint contained specific factual allegations
which would allow their political discrimination claims to survive
defendants’ motion.
Id. at 9-10.
On May 31, 2011, defendants
Civil No. 10-1065 (FAB)
3
filed an objection to the report and recommendation, challenging
only
the
magistrate
judge’s
conclusion
that
judgment
on
the
pleadings should be denied with regard to some of the plaintiffs.
(Docket No. 39.) On June 7, 2011, plaintiffs filed an objection to
the report and recommendation despite having chosen not to oppose
the
original
motion
consideration.
B.
presented
to
the
magistrate
judge
for
(Docket No. 41.)
Plaintiffs’ Waiver of Objection to Report and
Recommendation
As noted above, plaintiffs failed to oppose the motion
for judgment on the pleadings, instead reserving arguments on the
merits of that motion for their objection to the report and
recommendation.
(See Docket No. 41.)
Even had the motion never
been referred to a magistrate judge, it is clear that “[a] party’s
failure . . . to timely oppose a motion in the district court
constitutes
forfeiture.”
Crispin-Taveras
v.
Municipality
of
Carolina, ___ F.3d ___, Nos. 09-2625, 09-2626, 2011 WL 2027970,
at *5 (1st Cir. May 25, 2011) (citing Rivera-Torres v. Ortiz-Velez,
341 F.3d 86, 102 (1st Cir. 2003)). Furthermore, the Local Rules of
the District of Puerto Rico expressly state that by failing to file
a timely opposition to a motion, “the opposing party shall be
deemed to have waived objection.”
D.P.R.Civ.R. 7(b).
Although 28 U.S.C. § 636(b)(1)(C) gives parties the right
to de novo review to specific parts of reports and recommendations
to which they properly object, those parties are “not entitled to
Civil No. 10-1065 (FAB)
4
a de novo review of an argument never raised.”
See Borden v.
Sec’y. of Health and Human Servs., 836 F.2d 4, 6 (1st Cir. 1987);
28 U.S.C. § 636(b)(1)(C).
until
after
a
recommendation
Allowing parties to sit on their hands
magistrate
would
judge
severely
has
issued
undermine
the
a
report
utility,
and
and
the
purpose, of referring motions to magistrate judges. See id. Thus,
“parties must take before the magistrate [judge], ‘not only their
best shot but all of their shots.’”
Id. (quoting Singh v.
Superintending Sch. Comm., 593 F. Supp. 1315, 1318 (D.Me. 1984)).
Given plaintiffs’ failure to oppose the motion for judgment on the
pleadings
properly,
they
have
consequently
passed
on
any
opportunity to present substantive arguments regarding that motion.
See
id.;
Crispin-Taveras,
D.P.R.Civ.R. 7(b).
2011
WL
2027970,
at
*5;
Accordingly, the arguments presented in their
objection to the report and recommendation will not be considered
by the Court in this opinion and order.
C.
Factual Background
There being no proper objection to the magistrate judge’s
conclusion that the claims of Alvarez, Ayala, Vazquez, Torres, and
Ramos should be dismissed, the following factual backgrounded is
limited
to
factual
allegations
related
to
claims
brought
by
Betances, Rodriguez, and Rodriguez-Rivera.
Prior to their termination, Betances, Rodriguez, and
Rodriguez-Rivera, all affiliated with the Popular Democratic Party
Civil No. 10-1065 (FAB)
5
(“PDP”), were permanent employees of different agencies within the
Department
of
the
(“Department”).
Family
of
the Commonwealth
(Docket No. 1 at ¶ 7.)
of
Puerto
Rico
Alemañy, affiliated with
the New Progressive Party (“NPP”), was a Regional Director of that
Department.
See id.
Betances, Rodriguez, and Rodriguez-Rivera
were dismissed during the implementation of Puerto Rico Law 7 (“Law
7”), the goal of which was to reduce the public workforce employed
by the Commonwealth of Puerto Rico as a means of addressing a
fiscal crisis.
See id. at ¶¶ 11-13; (Docket No. 28-1 at 1-4.)
Betances, Rodriguez, and Rodriguez-Rivera aver that although Law 7
was intended to be facially neutral as to which employees should be
discharged, its application was discriminatory against persons who
were
affiliated
with
the
administration, the PDP.
Prior
to
the
opposition
to
the
current
NPP
(Docket No. 1 at ¶¶ 18-19.)
dismissal
of
Betances,
Rodriguez,
and
Rodriguez-Rivera, Alemañy instructed local office directors to make
lists of all employees who were identified with the PDP for the
purpose of terminating those who were so identified.
Id. at ¶ 23.
Alemañy
discuss
also
met
with
several
NPP
employees
impending lay-offs necessitated by Law 7.
January
or
February
of
2009,
Alemañy
to
Id. at ¶ 25.
requested
a
the
Around
Department
employee to prepare a list of all personnel who were not members of
the NPP.
Id. at ¶ 27.
Using that list, Alemañy prepared a letter
to the human resources department in which he identified the
Civil No. 10-1065 (FAB)
6
positions he wished to eliminate in an effort to discriminate
against PDP-affiliated employees.
Id. at ¶ 28.
After employees
were formally selected for termination pursuant to Law 7, Alemañy
harassed them, specifically asking those employees, “hey, didn’t I
fire you already?”
II.
Id. at ¶ 26.
Legal Analysis
A.
Standard under 28 U.S.C. § 636(b)(1)
A district court may refer, inter alia, “a motion . . .
for judgment on the pleadings” to a magistrate judge for a report
and
recommendation.
See
28
Fed.R.Civ.P. 72(b); Loc. Rule 72(a).
U.S.C.
§636(b)(1)(A)-(B);
Any party adversely affected
by the report and recommendation may file written objections within
fourteen days of being served with the magistrate judge’s report.
See 28 U.S.C. §636(b)(1).
A party that files a timely objection is
entitled to a de novo determination of “those portions of the
report or specified proposed findings or recommendations to which
specific objection is made.”
Sylva v. Culebra Dive Shop, 389
F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)).
rule precludes further review.
22, 30-31 (1st Cir. 1992).
Failure to comply with this
See Davet v. Maccorone, 973 F.2d
In conducting its review, the court is
free to “accept, reject, or modify, in whole or in part, the
findings
or
recommendations
made
by
the
magistrate
judge.”
28 U.S.C. §636 (a)(b)(1). Templeman v. Chris Craft Corp., 770 F.2d
Civil No. 10-1065 (FAB)
245,
247
(1st
Cir.
Pharmaceuticals,
Inc.,
7
1985);
286
Alamo
F.Supp.2d
Rodriguez
144,
146
v.
Pfizer
(D.P.R.
2003).
Furthermore, the Court may accept those parts of the report and
recommendation to which the parties do not object.
See Hernandez-
Mejias, 428 F.Supp.2d at 6 (citing Lacedra, 334 F.Supp.2d at 125126).
B.
Federal Rule of Civil Procedure 12(c) Standard
“A motion for judgment on the pleadings is treated much
like a Rule 12(b)(6) motion to dismiss.”
Perez-Acevedo v. Rivero-
Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins,
509 F.3d 36, 43-44 (1st Cir. 2007)).
When considering a motion
under Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”), a
“‘court must view the facts contained in the pleadings in the light
most favorable to the nonmovant and draw all reasonable inferences
therefrom . . . .’”
Id. (quoting R.G. Fin. Corp. v. Vergara-Nunez,
446 F.3d 178, 182 (1st Cir. 2006)).
provide
fair
plausible
notice
legal
to
claim.”
the
“[A]n adequate complaint must
defendants
and
Ocasio-Hernandez
state
v.
a
facially
Fortuño-Burset,
___ F.3d ___, No. 09-2207, 2011 WL 1228768, at *8 (1st Cir.
April 1, 2011).
When faced with a motion for judgment on the pleadings,
“[a] plaintiff is not entitled to ‘proceed perforce’ by virtue of
allegations
action.”
that
merely
parrot
the
elements
of the
cause of
Id. at *9 (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129
Civil No. 10-1065 (FAB)
S.Ct.
1937,
1950
8
(2009)).
Any
“[n]on-conclusory
factual
allegations in the complaint [, however,] must . . . be treated as
true, even if seemingly incredible.”
at 1951).
Id. (citing Iqbal, 129 S.Ct.
Where those factual allegations “‘allow[] the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged,’ the claim has facial plausibility.
Id.
(citing Iqbal, 129 S.Ct. at 1949).
C.
Defendants’ Objections
Defendants object specifically to the magistrate judge’s
conclusion
that
the
complaint
contains
sufficient
factual
allegations to state plausible political discrimination claims
pursuant to 42 U.S.C. § 1983.1
(Docket No. 39 at 1-2.)
“An
actionable claim of political discrimination consists of four
elements:
(1) that the plaintiff and defendant have opposing
political affiliations, (2) that the defendant is aware of the
plaintiff’s affiliation, (3) that an adverse employment action
occurred, and (4) that political affiliation was a substantial
factor for the adverse employment action.”
1
Ocasio-Hernandez, 2011
Neither defendants nor plaintiffs properly object to the
magistrate judge’s conclusion regarding the claims of Alvarez,
Ayala, Vazquez, Torres, and Ramos. Having independently examined
the record in this case, the motion for judgment on the pleadings,
and the report and recommendation, the Court ADOPTS that conclusion
as its own opinion. Apart from their specific objections to the
report and recommendation, defendants also address due process
claims pursuant to the Fourteenth Amendment. (Docket No. 39 at 68.) No such claim, however, appears in the complaint. (See Docket
No. 1.)
Accordingly, the Court need not discuss defendants’
arguments to that effect.
Civil No. 10-1065 (FAB)
9
WL 1228768, at *10 (citing Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d
228, 239 (1st Cir. 2010)).
Defendants argue that the complaint’s
allegations are lacking with regard to all but the third element of
a political discrimination claim.
(Docket No. 39 at 2.)
Having examined the factual allegations in the complaint,
the Court finds that defendants are correct except with regard to
plaintiffs Betances’, Rodriguez’s and Rodriguez-Rivera’s claims
against Alemañy.
(See Docket No. 1.)
As recognized by the
magistrate judge, there are specific, non-conclusory allegations in
the complaint indicating that:
(1) Alemañy is affiliated with the
NPP, while plaintiffs are affiliated with the PDP, (Docket No. 1
at ¶ 24); (2) Alemañy ordered lists to be compiled of all personnel
affiliated with the NPP2 , id. at ¶ 23, 27; (3) plaintiffs were
discharged, id. at ¶ 11; and (4) Alemañy used the lists of PDP
employees to prepare a letter to the human resources department for
the purpose for of firing those employees, id. at ¶ 28.
Docket No. 35 at 8-10.)
(See
Those factual allegations, combined with
others stating that Alemañy discussed the Law 7 terminations with
other NPP-affiliated employees and harassed those employees who had
2
Defendants claim that although plaintiffs allege that
Alemañy had knowledge of the political affiliation through the
preparation of these lists, plaintiffs fail to illustrate
specifically how the lists were prepared. (Docket No. 28 at 5.)
This argument demands a “level of specificity” that is not required
at this stage of the proceedings. See Ocasio-Hernandez, 2011 WL
1228768, at *11. As noted above, the complaint contains discrete
factual allegations which make Alemañy’s alleged knowledge of
remaining plaintiffs’ political affiliation plausible.
Civil No. 10-1065 (FAB)
10
been selected for termination, create a facially plausible claim of
political discrimination pursuant to 42 U.S.C. § 1983 against
Alemañy.3
See
Ocasio-Hernandez,
2011
WL
1228768,
at
*10-16.
Accordingly, the report and recommendation is ADOPTED with respect
to its conclusion that Betances, Rodriguez, and Rodriguez-Rivera
have stated actionable political discrimination claims against
Alemañy.
With regard to all other defendants, the complaint is
remarkably silent.
(See Docket No. 1.) The First Circuit Court of
Appeals has held that in the context of political employment
discrimination claims, “each defendant’s role in the termination
decision
must
be
sufficiently
plausible defendant.”
(emphasis
in
alleged
to
make
him
or
her
a
Ocasio-Hernandez, 2011 WL 1228768, at *13
original).
Other
than
initially
naming
and
identifying those individuals, the complaint is devoid of factual
allegations regarding any action or knowledge on their part with
respect to the political affiliation or discharge of Betances,
Rodriguez, and Rodriguez-Rivera.
See id.
Given the utter failure
to make specific factual allegations against defendants other than
3
Defendants argue that “an inference of discriminatory intent
in the implementation or application of Law 7 is unreasonable and
implausible” in light of a recent Puerto Rico Supreme Court
Decision, Dominguez Castro v. Estado Libre Asociado de P.R., 178
P.R. Dec. 1 (P.R. 2010), which held Law 7’s statutory scheme to be
constitutional. (See Docket No. 28 at 4; Docket No. 28-1.) That
decision’s approval of Law 7’s abstract structure, however, does
not necessarily preclude an action based on alleged discrimination
in the actual application of that legislation.
Civil No. 10-1065 (FAB)
11
Alemañy, any claim by the plaintiffs against those defendants
cannot
survive.
Accordingly,
insofar
as
the
report
and
recommendation could be read to find viable section 1983 claims
against Lopez, Irizarry, Perez, and Maldonado, it is REJECTED and
those claims are DISMISSED WITH PREJUDICE.
III. Conclusion
The Court has considered the defendants’ objections and made
an independent examination of the record in this case. Having done
so, the magistrate judge’s findings and recommendations are ADOPTED
IN PART AND REJECTED IN PART.
Those findings and recommendations
are ADOPTED with regard to the claims brought by Alvarez, Ayala,
Vazquez, Torres, and Ramos, as well as the claims brought by
Betances, Rodriguez, and Rodriguez-Rivera against Alemañy.
are REJECTED
with
regard
to
the claims
brought
by
They
Betances,
Rodriguez, and Rodriguez-Rivera against all other defendants.
Accordingly, defendants’ motion for judgment on the pleadings,
(Docket No. 28), is GRANTED IN PART AND DENIED IN PART.
The motion
is DENIED with regard to the political discrimination claims
brought
Alemañy.
by
Betances,
Rodriguez,
and
Rodriguez-Rivera
against
It is GRANTED with regard to all other claims in the
complaint, which are DISMISSED WITH PREJUDICE.
In short, the only claims remaining in this case are the
claims of plaintiffs Gisel Betances-de Jesus, Jose Rodriguez-Ronda
Civil No. 10-1065 (FAB)
12
and Antonia Rodriguez-Rivera against defendant Wilfredo AlemañyNoriega.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 8, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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