ALVAREZ-ESTRADA et al
Filing
64
OPINION AND ORDER re 36 Motion for Summary Judgment; and re 49 Report and Recommendation. The Court has considered Alemany's objections and made an independent examination of the record in this case. Having done so, the magistrate judge's recommendations are ADOPTED. Accordingly, defendants' motion for summary judgment is DENIED. Signed by Judge Francisco A. Besosa on 08/30/2011. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDWIN ALVAREZ ESTRADA, et al.,
Plaintiffs,
v.
WILFREDO
al.,
CIVIL NO. 10-1065 (FAB)
ALEMAÑY-NORIEGA,
et
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendants’ motion for summary judgment
(Docket No. 36), and the report and recommendation (Docket No. 49),
regarding that motion.
After making an independent examination of
the record in this case and considering the arguments raised in the
only
remaining
defendant’s
objection
to
the
report
and
recommendation, the Court ADOPTS the magistrate judge’s findings
and recommendations as the opinion of the Court and DENIES the
motion for summary judgment (Docket No. 36).
DISCUSSION
I.
BACKGROUND
A.
Procedural Background
On January 28, 2010, plaintiffs Edwin Alvarez-Estrada
(“Alvarez”), Luis Ayala-Quintana (“Ayala”), Gisel Betances-de Jesus
Civil No. 10-1065 (FAB)
2
(“Betances”), Luis Ramos-Rodriguez (“Ramos”), Jose Rodriguez-Ronda
(“Rodriguez-Ronda”),
Rey
Torres-Echevarria
(“Torres”),
Zulma
Vazquez-Toro (“Vazquez”), and Antonia Rodriguez-Rivera (“RodriguezRivera”)
filed
a
complaint
alleging
claims
of
political
discrimination pursuant to 42 U.S.C. § 1983 (“section 1983”).
(Docket No. 1.) The complaint names several Puerto Rico government
officials
as
defendants,
including
Wilfredo
Alemañy-Noriega
(“Alemañy”), Mayra Lopez-Carrero (“Lopez”), Yanitsia IrizarryMendez (“Irizarry”), Esteban Perez-Ubieta (“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 of political
discrimination under the First Amendment.”
(Docket No. 28.)
Plaintiffs filed no opposition to that motion.
Pursuant to a
referral order issued by the Court, Magistrate Judge Camille VelezRive filed a report and recommendation with regard to the motion
for judgment on the pleadings on May 25, 2011.
& 35.)
(See Docket Nos. 16
Magistrate Judge Velez-Rive recommended 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.
(Docket No. 35.)
With regard to the remaining
Civil No. 10-1065 (FAB)
3
plaintiffs,1 Magistrate Judge Velez-Rive found that the complaint
contained specific factual allegations which would allow their
political discrimination claims to survive defendants’ motion. Id.
at 9-10.
On June 8, 2011, the Court adopted in part and rejected
in part the magistrate judge’s conclusions.
Specifically,
the
Court
rejected
only
the
(Docket No. 42.)
magistrate
judge’s
conclusions that the remaining plaintiffs had properly alleged
claims against all defendants.
in
the
complaint,
the
Court
Id.
Given the factual allegations
further
narrowed
the
remaining
plaintiffs’ claims, dismissing all but the remaining plaintiffs’
political discrimination claims against Alemañy.
Id.
Prior to the Court’s ruling on the motion for judgment on
the pleadings, defendants filed a motion for summary judgment
arguing that even if plaintiffs could establish a prima facie case
of political discrimination, those claims would be defeated by the
application of the affirmative defense outlined in Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 287
(1977).
Pursuant
to
the
referral
order
in
this
case,
the
magistrate judge issued a report and recommendation concluding
that, at the summary judgment stage of the proceedings, defendants
1
The remaining plaintiffs are Gisel Betances-de Jesus, Jose
Rodriguez-Ronda and Antonia Rodriguez-Rivera.
Civil No. 10-1065 (FAB)
4
had failed to establish the Mt. Healthy defense and, consequently,
their dispositive motion should be denied.
(Docket No. 49.)
On
August 16, 2011, Alemañy, the only remaining defendant in the wake
of the Court’s ruling on the motion for judgment on the pleadings,
filed an objection to the report and recommendation, arguing that
the magistrate judge had not properly applied the relevant legal
standard.
B.
(See Docket No. 50.)
Factual Background
Given plaintiff’s lack of opposition to the motion for
summary
judgment,
the
magistrate
judge
accepted
the
factual
assertions contained in defendants’ statement of uncontested facts
as admitted. (See Docket No. 49.) Despite certain defects present
in the factual background developed by defendants, which are
discussed in further detail below, the Court will repeat the
factual findings of the magistrate judge for the purposes of
establishing context.
On July 31, 2008, Rodriguez-Ronda was appointed in a
probationary position as Office Clerk I, to the Department of the
Family’s
“Administracion
Familia” (“ADSEF”).
de
Desarrollo
Socio-economico
(Docket No. 49 at 5.)
de
la
On April 23, 2009,
Rodriguez-Ronda was notified that his total seniority in employment
as Office Clerk I was seven months and six days.
Id.
Although the
Civil No. 10-1065 (FAB)
5
letter also notified Rodriguez-Ronda of his right to contest that
seniority determination, he did not seek to do so.
Id.
On May 29,
2009, a letter notified Rodriguez-Ronda that, under the auspices of
Law 7, he would be laid off on July 10, 2009, from the position
classified as Office Clerk I.
On
July
18,
Id.
2008,
Betances
was
appointed
to
a
probationary position as Assistant of Office System I to the
Department of the Family in ADSEF.
Id. at 6.
On April 23, 2009,
Betances received a letter similar to that sent to Rodriguez-Ronda
stating that her total seniority in the employment was seven months
and nineteen days pursuant to Law 7.
Id.
notified
to
Betances
of
her
right
Although the letter also
contest
determination, she did not seek to do so.
Id.
that
seniority
On May 29, 2009,
Betances received a letter notifying her that, under the auspices
of Law 7, she would be laid off on July 10, 2009 from her position.
Id.
On September 4, 2009, Rodriguez-Rivera was laid off
pursuant to Law 7 from her position as Assistant of Services in the
Department of the Family, Administration of Families and Children
(“ADFAN” by its Spanish acronym).
Id.
On October 18, 2010, an
arbitrator issued an award ordering the reinstatement of RodriguezRivera to the position of Assistant of Services because, after
Civil No. 10-1065 (FAB)
6
Rodriguez-Rivera’s dismissal, the Executive Director of the “Junta
de Reestructuracion y Estabilizacion Fiscal” (“JREF”) sent a letter
to the ADFAN Administrator notifying her that Rodriguez-Rivera’s
position was excluded from the application of Law 7.
Id.
The
arbitration award also ordered the back-payment of RodriguezRivera’s salary and benefits from the time of her dismissal.
at 6-7.
Rodriguez-Rivera was reinstated to her former position on
November 16, 2010.
II.
Id.
Id. at 7.
Legal Analysis
A.
Standard under 28 U.S.C. § 636(b)(1)
A district court may refer, inter alia, “a motion . . .
for
summary
judgment”
recommendation.
to
and
magistrate
judge
for
report
and
See 28 U.S.C. §636(b)(1)(A)-(B); Fed.R.Civ.P.
72(b); Loc. Rule 72(a)(4).
report
a
recommendation
Any party adversely affected by the
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)).
Failure to comply with this
Civil No. 10-1065 (FAB)
7
rule precludes further review.
22, 30-31 (1st Cir. 1992).
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
245,
247
(1st
Cir.
1985);
Alamo
Rodriguez
v.
Pfizer
Pharmaceuticals, Inc., 286 F.Supp. 2d 144, 146 (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.
Summary Judgment Standard
The Court’s discretion to grant summary judgment is
governed by Rule 56 of the Federal Rules of Civil Procedure.
The
rule states, in pertinent part, that the court may grant summary
judgment
only
if
interrogatories,
“the
and
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.”
Fed.R.Civ.P. 56(c); see also Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).
The party moving for summary judgment bears the burden of showing
Civil No. 10-1065 (FAB)
8
the absence of a genuine issue of material fact.
See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
Once a properly supported motion has been presented, the
opposing party has the burden of demonstrating that a trial-worthy
issue exists that would warrant the Court’s denial of the motion
for summary judgment.
For issues where the opposing party bears
the ultimate burden of proof, that party cannot merely rely on the
absence of competent evidence, but must affirmatively point to
specific facts that demonstrate the existence of an authentic
dispute.
See Suarez v. Pueblo Int’l., Inc., 229 F.3d 49, 53 (1st
Cir. 2000).
In order for a factual controversy to prevent summary
judgment, the contested facts must be “material” and the dispute
must be “genuine.”
Material means that a contested fact has the
potential to change the outcome of the suit under governing law.
The issue is genuine when a reasonable jury could return a verdict
for the nonmoving party based on the evidence.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
that
“[t]he
mere
existence
of
a
scintilla
See Anderson v.
It is well settled
of
evidence”
is
insufficient to defeat a properly supported motion for summary
judgment.
Id. at 252.
It is therefore necessary that “a party
opposing summary judgment must present definite, competent evidence
Civil No. 10-1065 (FAB)
to rebut the motion.”
9
Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 581 (1st Cir. 1994).
In making this assessment, the Court “must view the
entire record in the light most hospitable to the party opposing
summary judgment, indulging in all reasonable inferences in that
party’s favor.”
1990).
The
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
court
may
safely
ignore,
however,
“conclusory
allegations, improbable inferences, and unsupported speculation.”
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).
C.
Political Discrimination Claims under Section 1983
“Government
officials
are
forbidden
by
the
First
Amendment from taking adverse action against public employees on
the basis of political affiliation, unless political loyalty is an
appropriate requirement of the employment.”
Ocasio-Hernandez v.
Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).
Public employees
subjected to such adverse action may seek to vindicate violation of
their First Amendment right to political affiliation through a
civil action pursuant to section 1983.
See id.
“To prevail on a
claim of political discrimination, a public employee must at a
minimum show that she engaged in constitutionally-protected conduct
and that this conduct was a substantial factor in the adverse
Civil No. 10-1065 (FAB)
10
employment decision.” Carrasquillo v. Commonwealth of Puerto Rico,
494 F.3d 1, 4 (1st Cir. 2007).
establish
a
prima
facie
case
plaintiff must demonstrate:
In order to make that showing and
of
political
discrimination,
a
“(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.”
Ocasio-
Hernandez, 640 F.3d at 13 (citing Lamboy-Ortiz v. Ortiz-Velez, 630
F.3d 228, 239 (1st Cir. 2010)).
Once a plaintiff satisfies those elements, the defendant
may attempt to establish the affirmative defense outlined in Mt.
Healthy, 429 U.S. at 287.
“A defendant seeking the protection of
the Mt. Healthy defense bears the burden of persuasion ‘to prove by
a preponderance of the evidence that the adverse employment action
would have been taken’” regardless of a plaintiff’s political
affiliation.
See Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756,
767 (1st Cir. 2010) (quoting Guilloty Perez v. Pierluisi, 339 F.3d
43, 56 (1st Cir. 2003)).
“Thus, even if the defendant’s actions
were motivated in part by the plaintiff’s protected conduct, the
defendant can still prevail if he or she can show that the
protected conduct was not the ‘but-for’ cause of the adverse
Civil No. 10-1065 (FAB)
action.”
11
Id. (citing Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d
72, 81 (1st Cir. 2006)).
D.
Alemañy’s Objections
Whatever Alemañy’s specific objections to the magistrate
judge’s reasoning regarding the application of the Mt. Healthy
defense may be, it is clear that defendants failed to establish
that defense at the summary judgment stage of the proceedings.2
As
a preliminary matter, none of the exhibits defendants submitted in
conjunction with their motion for summary judgment are accompanied
by authenticating affidavits, as is required for admissibility at
the summary judgment stage.
See Aponte-Rosario v. Acevedo-Vila,
617 F.3d 1, 12 n.18 (1st Cir. 2010) (citing Carmona v. Toledo, 215
F.3d 124, 131 (1st Cir. 2000)).
Thus, the factual background
developed by defendants regarding the Mt. Healthy defense is not
properly supported for the purposes of summary judgment.
Even if all the information contained in the documents
submitted
2
by defendant
were
admissible
at
this
stage
of
the
Alemañy presents other arguments regarding plaintiffs’ prima
facie cases of employment discrimination in his objection to the
report and recommendation.
(Docket No. 50.)
Those arguments,
however, were not included in the motion for summary judgment
presented to the magistrate judge. (See Docket No. 36 at 16-18.)
Accordingly, the Court will limit its consideration of defendant’s
objections to those regarding the magistrate judge’s analysis of
the Mt. Healthy argument presented in the original motion for
summary judgment.
Civil No. 10-1065 (FAB)
12
proceedings, there would still be an inadequate factual basis to
grant summary judgment based on the Mt. Healthy defense.
In order
to establish that defense, defendants bear the burden “‘to prove by
a preponderance of the evidence that the adverse employment action
would have been taken’” regardless of the plaintiffs’ political
affiliation.
See Rodriguez-Garcia, 610 F.3d at 767 (quoting
Guilloty Perez, 339 F.3d at 56).
In their motion for summary
judgment, defendants claim that the respective levels of seniority
notified to plaintiffs in the letters submitted as exhibits were
insufficient to escape the dismissals mandated by Law 7, but
provide no indication, nor any factual support, as to what level of
seniority was required to avoid the effect of that legislation.
(See Docket No. 36.)
The documents submitted in support of
defendants’ motion, at most, show that Law 7 was the reason
proffered for plaintiffs’ dismissal in this case at the time of
their termination. (See Docket No. 43-1.) Defendants submitted no
exhibits
regarding
the
actual
application
of
Law
7
in
the
particular circumstances of each plaintiff that would allow a
factfinder to evaluate and conclude properly that the decision to
terminate plaintiffs’ employment would have been taken regardless
of their political affiliation.
See id.
Civil No. 10-1065 (FAB)
13
Defendants’ failure to develop the factual background
underlying their affirmative defense fully is especially magnified
where they request summary judgment, which would require a factual
background
sufficiently
settled
to
allow
judgment in their favor as a matter of law.
the
Court
to
grant
Although Alemañy may
potentially present sufficient evidence at trial to allow the jury
to find the application of the Mt. Healthy defense appropriate in
this case, defendants’ motion fails to establish the absence of
genuine issues of material fact regarding that affirmative defense
necessary to dispose of this case summarily.
Accordingly, the
magistrate judge’s recommendations regarding plaintiffs’ remaining
political discrimination claims are ADOPTED and defendants’ motion
for summary judgment is DENIED.
III. Conclusion
The Court has considered Alemañy’s objections and made an
independent examination of the record in this case.
so,
the
magistrate
Accordingly,
judge’s
defendants’
No. 36), is DENIED.
recommendations
motion for
summary
Having done
are
judgment,
ADOPTED.
(Docket
Civil No. 10-1065 (FAB)
14
IT IS SO ORDERED.
San Juan, Puerto Rico, August 30, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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