Diaz-Baez et al v. alicea-vasallo et al

Filing 181

OPINION AND ORDER 143 MOTION for Partial Summary Judgment & Memorandum In Support Thereof filed by Conjugal Partnership Muler-Velazquez, et al. Signed by US Magistrate Judge Camille L. Velez-Rive on 11/15/12.(ljt)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA DIAZ-BAEZ, et al.,
Plaintiffs,
v.

CIVIL NO. 10-1570 (CVR)

JULIO ALICEA VASALLO, et al.,
Defendants.

OPINION AND ORDER
INTRODUCTION
On January 13, 2012, plaintiffs filed a Second Amended Complaint against
defendants which claims that, as a group of state career employees, they were dismissed
from employment at a public corporation, the Automobiles Accident and Compensation
Administration (“ACAA”) because of discrimination based on their political beliefs. Civil
Rights Act, Title 42, United States Code, Articles 1983, 1985 and 1988, First, Fifth and
Fourteenth Amendment of the United States Constitution; Article 1802 of the Puerto Rico
Civil Code, 31 Laws of Puerto Rico Annotated, Art. 5141. (Docket No. 125).1
Now pending before this Court is plaintiffs’ Motion for Partial Summary Judgment,
defendants’ Response in Opposition, a Reply and a Sur-Reply. (Docket Nos. 143, 163, 174
and 175). Plaintiffs seek summary adjudication in that the lay-off plan that resulted in their
termination from employment was illegally implemented inasmuch as, in eliminating
individuals in lieu of their positions, effectively resulted in dismissal of all individuals who

1

Referred generally as “plaintiffs” which consist of some seventy-one career employees at ACAA who were
dismissed under an established personnel lay-off plan that was implemented by defendants who are being sued in their
official and personal capacities.

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 2

had been recruited by the opposing political party in said public corporation. Plaintiffs also
object that defendants, under the pretext of a wide seniority and its cut-off date, in violation
of the constitutional prohibition to political discrimination in public employment, failed to
properly consider plaintiffs’ real time in employment for seniority purposes. Thus, both in
its purpose and implementation, the lay-off plan which resulted in plaintiffs’ termination
from their career positions should be considered null and void, plaintiffs should be
reinstated to employment, and be granted all accrued rights and benefits. (Docket No. 143).
Defendants ACAA, Julio Alicea Vasallo and Ernesto Rivera-Negrón, in their official
and personal capacities, filed their Opposition to plaintiffs’ Motion for Partial Summary
Judgment. Defendants submit plaintiffs’ statements in support of their request for
summary adjudication are merely conclusory as to their political affiliations. Defendants
also indicate no causal connection is submitted in regards to defendants’ conduct, and even
if so, defendants would have taken the same action regardless of plaintiffs’ political
affiliation.

Defendants contend there were valid financial reasons and reasonable

management supporting criteria to select a uniform cut-off date to calculate seniority of
those employees who were going to be affected by the lay-off plan which resulted in
plaintiffs’ employment termination. (Docket Nos. 163).
Plaintiffs filed a limited Reply to defendants’ response stating defendants’
submission of having economic considerations for the adverse employment actions should
be immaterial and irrelevant and/or should be barred for these additional facts were not
germane to the issues raised in their summary judgment which only contested the

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 3

procedure itself and not its reasoning. Thus, plaintiffs negate defendants’ Mt. Healthy
defense as flawed and without merit. (Docket No. 174).
Finally, defendants aver in their Sur-Reply that ACAA’s Board of Directors approved
the lay-off plan based on valid non-discriminatory reasons premised on its strained
financial situation. Defendants also submit plaintiffs’ reliance on their interpretation of
documentation obtained from discovery is faulted merely denying that evaluations of the
positions were not conducted, which is contrary to the available evidence, and they have
failed to establish there are no relevant material facts in controversy that would entitle
plaintiffs to the requested summary judgment. (Docket No. 179).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with 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). Pursuant to the language of the rule, the moving
party bears the two-fold burden of showing that there is “no genuine issue as to any
material facts,” and that he is “entitled to judgment as a matter of law.” Vega-Rodríguez v.
Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).
After the moving party has satisfied this burden, the onus shifts to the resisting party
to show that there still exists “a trial worthy issue as to some material fact.” Cortés-Irizarry
v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed “material” if it
potentially could affect the outcome of the suit. Id. Moreover, there will only be a

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 4

“genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable fact-finder,
examining the evidence and drawing all reasonable inferences helpful to the party resisting
summary judgment, could resolve the dispute in that party’s favor.” Id.
At all times during consideration of a motion for summary judgment, the Court must
examine the entire record “in the light most flattering to the non-movant and indulge all
reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23
F.3d 576, 581 (1st Cir. 1994). There is “no room for credibility determinations, no room for
the measured weighing of conflicting evidence such as the trial process entails, [and] no
room for the judge to superimpose his own ideas of probability and likelihood . . . .”
Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). In fact,
“[o]nly if the record, viewed in [this] manner and without regard to credibility
determinations, reveals no genuine issue as to any material fact may the court enter
summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997).
CONTROVERTED ISSUES OF FACTS
Plaintiffs submit in their request for summary judgment that defendants
implemented a lay off plan that resulted in plaintiffs’ employment termination to target
those individuals who were hired during the last eight years when the government
administration that recruited them was of the opposing political party.2 By considering a
cut-off date of June 30, 2009, to establish seniority under the lay off plan, defendants
disregarded any subsequent employment period up to the date the plan was indeed
2

Although examined, only relevant issues of facts will be discussed as sufficient to adjudicate the partial
summary judgment motion. (Docket Nos. 143, Attachment 1; Docket No. 164; Docket No. 175; and Docket No. 179).

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 5

implemented in October 29, 2009. Since defendants were appointed after the new
government administration won the general elections of 2008, being then under the control
of the New Progressive Party (NPP), the cut off period and the seniority estimated for those
employees who were affected effectively discriminated against government employees who
had been recruited during the last two government administration where the opposing
party, Popular Democratic Party (PDP), had reigned. By merely establishing seniority as
grounds for lay off instead of a method upon which positions, instead of individuals, would
be terminated from employment, plaintiffs submit the dismissal of employees hired from
the years 2001 through 2008,3 –with cut off date of June 30, 2009– regardless of an
examination of their position or classification of duties, was in violation of personnel law.
In conclusion, plaintiffs aver defendants terminated employment of plaintiffs, who had
been recruited during the two previous four years terms in which a different political party
was in power for political discrimination reasons.
First and foremost, defendants have indicated in their response having no knowledge
of plaintiffs’ political affiliation and that merely juxtaposing the events of employment
recruitment and being laid off with a change in political administration, without more,
should be considered insufficient for a claim of political discrimination to prosper.
Defendants also deny that no study or evaluation of the positions and the examination of
the public corporation’s financial condition were conducted. This last contention raises

3

Plaintiffs submit that since all these employees were recruited during the eight-year period while the PDP was
in control, it must be presumed all those employees were PDP affiliates and upon the change of government
administration to the NPP after the general elections of 2008, the cut-off date and seniority determinations to apply the
lay off plan resulted in political discrimination in employment.

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 6

significant and relevant material facts in controversy that preclude summary judgment as
requested by plaintiffs for defendants have disputed plaintiffs’ submissions.
Plaintiffs also aver that defendants have not taken into account that Law No. 7,
Special Act to Declare a State of Fiscal Emergency and to Establish a Comprehensive Fiscal
Stabilization Plan to Salvage the Credit of Puerto Rico,4 upon which their lay offs were
implemented at ACAA, did not apply to public corporations and, thus, excluded such public
corporation which generated its own profits.
Defendants oppose such averment for the lay offs attributed were not on account of
said Law No. 7, but rather all that was adopted from said Law No. 7 was the definition of
seniority in government employment which had already been sanctioned as appropriate by
the highest state court in ruling insofar as dismissals for financial considerations by the
state government Executive Branch in the Commonwealth of Puerto Rico. In turn,
plaintiffs’ reply opposed any reference to financial problems at ACAA or to the provisions
taken by defendants as to the needs of services and positions being assessed by
management as not relevant to the issues plaintiffs raise in their motion for partial
summary adjudication.
Finally, defendants’ response and their sur-reply refer to their Mt. Healthy’s defense
in that, regardless of plaintiffs’ political affiliation, the same employment action would have
followed because of financial considerations at ACAA.

4

Law Declaring a Fiscal State of Emergency and Establishing a Comprehensive Fiscal Stabilization Plan to Save
Puerto Rico Credit, 2009 P.R. Laws, Act No. 7.

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 7

LEGAL DISCUSSION
It is uncontested that plaintiffs were career employees in public service and
defendants were officers of a public corporation ACAA. As a career employee at a public
corporation ACAA, plaintiffs had a protected property interest in continued employment.
Rodriguez–Sanchez v. Municipality of Santa Isabel, 658 F.3d 125, 129 (1st Cir.2011).
It is also uncontested that the central government of Puerto Rico signed into law Act
No. 7—entitled the “Law Declaring a Fiscal State of Emergency and Establishing a
Comprehensive Fiscal Stabilization Plan to Save Puerto Rico Credit.” See 2009 P.R. Laws
Act No. 7.
Plaintiffs herein have opposed that seniority, without any additional consideration
as to the positions, was determined by ACAA to be the guide as to who would be laid off
from employment and that as a result of the cut-off date established by defendants of June
30, 2009, employees affected were in fact those who had been recruited by past government
administration which belonged to opposite political party as defendants, amounting to a de
facto political discrimination action.
It has been previously determined that close temporal proximity between the regime
change and the onset of pervasive cross-party harassment, coupled with the absence of any
legitimate reason for much of the offending conduct, permits a plausible inference at the
pleading stage that political animus was a motivating factor behind the harassment. See
Grajales v. Puerto Rico Ports Authority, 682 F.3d 40 (1st Cir. 2012).

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 8

However, such is not the situation raised by plaintiffs against defendants for there
is no significant harassment at work, no politically motivated comments, and a mere claim
that employees within the last nine to eight years in service belonged to a different political
party as the defendants would not suffice. To make out a case of political discrimination
in violation of a public employee's First Amendment rights, plaintiffs’ case must do more
than simply juxtapose evidence of unfair treatment with evidence that an employer's
political affiliation differs from the plaintiff's own; instead, there must be evidence from
which a jury reasonably may infer that the plaintiff's constitutionally protected conduct was
a substantial or motivating factor behind the plaintiff's discharge. See Padilla-García v.
Guillermo Rodríguez, 212 F.3d 69, 74 (1st Cir.2000).
Similar to herein plaintiffs’ argument, a lay off plan based exclusively on seniority,
without regard to the jobs the terminated employees performed, would pose considerable
challenges. Still, having failed to adduce evidence showing that defendants had knowledge
of the identities or political affiliations of the workers in each position, the suggestion that
particular positions were selected for elimination in order to target plaintiffs on the basis
of their political affiliation is considered speculative and unsupported. See Méndez-Aponte
v. Bonilla, 645 F.3d 60, 64 (1st Cir. 2011) (“We ignore any conclusory allegations,
improbable inferences, and unsupported speculation.” (quoting Del Toro Pacheco v.
Pereira, 633 F.3d 57, 62 (1st Cir. 2011)). See Rodríguez-Sánchez v. Municipality of Santa
Isabel, 658 at 131 (in general, one would expect a bona fide administrative reorganization

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 9

plan to focus on particular positions that would be eliminated, yet in the absence of
evidence of knowledge as to political affiliation, discrimination claims were speculative).5
An employer-defendant may seek to discredit the plaintiffs’ evidence that there was
an impermissible motive for the adverse employment action by producing “enough evidence
to establish that the plaintiff's dismissal would have occurred in any event for
nondiscriminatory reasons.” Acevedo-Díaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993).
Above affirmative defense, as raised by herein defendants regarding the financial
predicament at ACAA and the implementation of the lay off plan based on seniority
considerations, requires defendants to show by a preponderance of the evidence that they
would have taken the same action regardless of plaintiffs’ political affiliation. See Mt.
Healthy, 429 U.S. at 287, 97 S.Ct. 568; Padilla-García, 212 F.3d at 77. An employer may
successfully raise a Mt. Healthy defense by establishing that plaintiff's activity or status,
although it may have been improperly considered, was not the but for cause of the adverse
employment action. See Welch v. Sciampa, 542 F.3d 927, 941 (1st Cir. 2008) (citing JirauBernal v. Agrait, 37 F.3d 1, 4 (1st Cir.1994)). It is the defendant's burden to “persuade[ ] the
fact finder that its reason is credible.” Padilla-García, 212 F.3d at 77-78.

5

A triable claim of political discrimination requires, among other things, evidence that political affiliation was
a substantial or motivating factor in the conduct. Even if a plaintiff makes a prima facie showing that the government
acted from politically discriminatory motives, a defendant may avoid liability by proving that he or she inevitably would
have taken the same action without regard to politics. See generally Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 97 S.Ct. 568 (1977).

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 10

Defendants’ response in opposition submitted that audited financial statements and
other financial data of the public corporation reflected that ACAA was in a precarious
financial situation.

Defendants also raise that, consonant with the authority and

regulations of ACAA to remove employees due to elimination or positions, lack of work or
lack of funds a reduction in payroll and operational deficit, it was considered necessary to
do so through a lay off plan. Said lay off plan was drafted and presented to the Board of
Directors for approval to achieve savings in payroll and to address the operational deficit.
The lay off plan established the method whereby it was to be determined the positions that
could be eliminated from the feedback that was received from all the department directors
who were requested to prepare evaluation of all positions that could be eliminated.
Defendants indicated the evaluation of positions was submitted by, among others, Maribel
Concepción-Cantres, of the Human Resources and Labor Relations Area of ACAA; Nilda
Torres-Heredia, Auxiliary Executive Director of the General Services and Property
Management Department; Dr. Aida Morales, Auxiliary Executive Director of the
Department of Medical Affairs; Epifanio Delgado-Vázquez, Auxiliary Executive Director of
the Information Systems Department; Javier Capestany, Auxiliary Executive Director of the
Finance, Planning and Budget Department; Bolívar Morales-Román, Auxiliary Executive
Director of the Operations Department; Zamary Solivan-Cartagena, Auxiliary Executive
Director of the Internal Audit Office; Rafael Alén González, Auxiliary Executive Director of

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 11

the Legal Affairs Office; and Irma Rivera-Rivera, Auxiliary Executive Director of the Public
Relations Office.6
Above examination as to the positions presented by defendants as support for the
lay off plan at ACAA and which affected plaintiffs’ employment, besides raising a Mt.
Healthy defense, reflects existence of genuine issues of fact in controversy. The existence
of genuine issues of material fact precludes summary judgment in that plaintiffs’ aver the
only consideration as to seniority and a cut-off date for the time in service resulted in
political discrimination when individuals instead of their positions were not examined or
considered as part of the method to implement the lay offs and defendants indicate the
positions were indeed taken into consideration.
Succinctly, regardless if there is indeed a prima facie case of political discrimination
on the general allegations that all plaintiffs were PDP members and defendants of the
opposing PNP party, plaintiffs’ request for partial summary judgment cannot prosper at
this stage having relevant issues of fact in controversy.

6

Plaintiffs have opposed consideration of this response for it was not previously raised in their motion for
summary judgment. However, defendants are entitled to present their Mt. Healthy defense at this stage.

María S. Díaz Baez et al vs. ACAA, et al
Civil No. 10-1570 (CVR)
Opinion and Order
Page No. 12

CONCLUSION
In view of the foregoing, plaintiffs’ request for partial summary judgment is
DENIED. (Docket No. 143).
IT IS SO ORDERED.
San Juan, Puerto Rico, this 15th day of November of 2012.
s/CAMILLE L. VELEZ-RIVE
CAMILLE L. VÉLEZ-RIVÉ
UNITED STATES MAGISTRATE JUDGE