Alvarado-Cotto et al v. Municipality of Aibonito et al

Filing 45

ORDER granting in part and denying in part 17 Motion to Dismiss; granting in part and denying in part 18 Motion to Dismiss. Judgment shall be entered accordingly. Answer deadline shall be set by separate docket entry. Signed by Judge Jay A Garcia-Gregory on 3/31/2012. (RJC)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

ENDALIS
al.,

ALVARADO

COTTO,

et
CIVIL NO. 10-2241(JAG)

Plaintiffs,
v.
MUNICIPALITY
al.,

OF

AIBONITO,

et

Defendants.

OPINION AND ORDER
GARCIA-GREGORY, D.J.
This is a political discrimination action brought pursuant
to 42 U.S.C. § 1983 (“section 1983”), the Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq., (the “FMLA”) and various
Commonwealth of Puerto Rico laws.
39,

41).

(“Alicea”),

Pending
Santos

Rivera-Mercado

before

the

(Docket No. 1, ¶¶ 26, 33, 37Court

Solivan-Rivera

(“Rivera-Mercado”),

is

William

(“Solivan”),
and

Lissandra

Alicea-Perez
Luis

Jacob

Maldonado-

Alvarado’s (“Maldonado”) motion to dismiss (Docket No. 17) and
the

Municipality

of

Aibonito’s

(the

“Municipality”)

(collectively, “Defendants”) motion to dismiss (Docket No. 18).
For the reasons discussed below, the Court hereby GRANTS IN PART
and DENIES IN PART Defendants’ motions to dismiss.

CIVIL NO. 10-2241 (JAG)

2
BACKGROUND

I. Factual Background
The facts contained in the complaint, which are assumed to be
true, are as follows:1
Plaintiff Ednalis Alvarado Cotto (“Alvarado”), a resident of
Cayey,

Puerto

Rico,

is

an

active

member

of

the

Popular

Democratic Party (“PDP”), and has attended political caravans
and electoral colleges in support of the PDP.
9).

In

2004

and

electoral campaign.

2008,

Alvarado

(Docket No. 1, ¶¶

participated

in

the

PDP

Id.

In 1999, non-party Alberto Diaz Robles (“Robles”), a member of
the PDP, was the Municipality’s mayor.

(Docket No. 1, ¶ 10).

Sometime around February of that year, Robles’ “conduit” hired
Alvarado

as

the

Municipality’s

“Office

System

Auxiliary

I.”

(Docket No. 1, ¶¶ 3, 10).

In November of 2008, Alicea, a member

of

Party

the

New

Progressive

Municipality’s mayor.

(“NPP”),

was

elected

(Docket No. 1, ¶¶ 11-12).

as

the

Once Alicea

assumed the Municipality’s mantle, Defendants, who are all NPP
members, allegedly began to humiliate, harass and discriminate

1

In setting forth the relevant factual background, the Court keeps in mind
that “legal conclusion[s] couched as . . . fact [],” and “[t]hreadbare
recitals of the elements of a cause of action” must be disregarded. OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)(citing Iqbal, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557))). In contrast,
“[n]onconclusory factual allegations in the complaint must . . . be taken as true,
even if seemingly incredible.” Id. (citing Iqbal, 129 S.Ct. at 1951).
-2-

CIVIL NO. 10-2241 (JAG)

3

against Alvarado because of her PDP affiliation.2

(Docket No. 1,

¶¶ 13, 26, 33, 37-39, 41).
Alvarado states that she faces undue pressure, unreasonable
terms and conditions in her work environment, a hostile work
environment,

treatment

inferior

to

other

employees

and

diminished working conditions.

(Docket No. 1, ¶¶ 13, 16, 26,

36).

pled

Specifically,

Plaintiffs

that

Alvarado

is

denied

breaks, has her computer access limited, is subject to increased
monitoring,
changed,

is

involuntary

has

her

functions

subject

to

transfers

and

interfered with.

and

instructions

unfounded
has

her

admonishment
rights

under

constantly
letters,
the

FMLA

Id. Plaintiffs allege that Defendants made

derogatory and discriminatory comments relating to Alvarado’s
PDP membership and work performance.

(Docket No. 1, ¶ 32).

Around March of 2010, Alvarado’s son fell ill and was admitted
to the hospital.

(Docket No. 1, ¶ 17).

Alvarado was granted

leave from work for five (5) days to tend to her son.

Id.

Nevertheless, Maldonado, the Municipality’s Director of Human
Resources, purportedly told Alvarado that her leave would be
deducted from her vacation days.3

Although Alvarado requested an

explanation from Alicea and Maldonado, she never received one.
Id.

2

Plaintiffs aver that Defendants discriminated against Alvarado with the hope
of pushing her to resign or fabricating cause to terminate her. Id.
3
Alicea appointed Maldonado. (Docket No. 1, ¶ 5).
-3-

CIVIL NO. 10-2241 (JAG)
In

June

of

2010,

4
Maldonado

and

nonparty

Sandra

Rivera

(“Rivera”), the director of the Municipality’s Federal Program
Office (“FPO”), assigned Alvarado a task to complete for the
FPO.

(Docket

No.

1,

¶

18).

After

Rivera-Mercado

replaced

Rivera as the FPO director, Alvarado met with Rivera-Mercado to
discuss the assignment she was completing for the FPO.

Id.

Rivera-Mercado told Alvarado that although she was not required
to work for the FPO, she may continue her assignment as long as
Alvarado’s other duties were unaffected.

Id.

Rivera-Mercado

told Alvarado that if she became overwhelmed with work, she
could return the assignment to Rivera-Mercado’s office.

Id.

Alvarado allegedly spoke to Alicea about Maldonado’s apparent
hostility on July 12, 2010.

(Docket No. 1, ¶ 19).

According to

Alvarado, despite knowing about the discrimination, Alicea did
not remedy the situation.

Id.

Rather, Alicea permitted and

promoted the discrimination, harassment and undue pressure.
Alvarado

states

that

Defendants’

discriminatory

escalated after Alvarado complained to Alicea.
On

August

7,

2010,

Maldonado

sent

Id.

behavior

Id.

Alvarado

assigning her new duties as medical plan biller.

a

memorandum

(Docket No. 1,

¶ 20).

The work was to be performed for the Human Resources

Office,

not

the

FPO.

Id.

Subsequently,

Alvarado

met

with

Rivera-Mercado to inform her of Alvarado’s new assignment and
return the work Alvarado was performing for the FPO.
-4-

(Docket

CIVIL NO. 10-2241 (JAG)
No.

1,

continue

¶

21).

5

Alvarado

monitoring

the

told

Rivera-Mercado

developments

in

that
FPO

the

she

would

since

the

assignment stalled pending completion of a construction project.
Id.

Alvarado maintained files so she could continue the project

once the construction resumed.4

Id.

On August 18, 2010, Alvarado received a letter from Solivan,
the

Municipal

Secretary,

purportedly

admonishing

refusing to perform duties assigned to her.
22).

her

for

(Docket No. 1, ¶

Solivan told Avarado that the admonishment was based on a

letter Rivera-Mercado sent to Maldonado.

Apparently, Rivera-

Mercado told Maldonado that Alvarado failed to perform duties
for

the

FPO.

(Docket

demanded

an

explanation,

Defendants

Alvarado

was

never

an

admonishment.

No.

given

1,

¶

23-24).
never

opportunity

(Docket No. 1, ¶ 25).

Although

Alvarado

investigated

to

respond

to

and
the

The complaint states that

Alvarado never refused work for the FPO, she merely told RiveraMercado about her new duties.

(Docket No. 1, ¶ 21).

Alvarado received another admonishment letter on August, 9,
2010.

(Docket

No.

1,

¶

27).

According

to

Alvarado,

she

received the letter because she asked to bring her son to work
after her son’s caretaker faced an emergency.

Id.

Alvarado

received the admonishment despite an internal memorandum, which

4

As of December 17, 2010, the construction was still “closed.”
1, ¶ 21).

-5-

(Docket No.

CIVIL NO. 10-2241 (JAG)

6

was previously circulated to employees, stating that employees
are

permitted

situations.

to

bring

their

children

(Docket No. 1, ¶ 28).

to

work

in

emergency

Alvarado avers that the

other employees were not admonished for bringing their children
to work.
At

(Docket No. 1, ¶ 29).

some

letter

point

stating

thereafter,

that

she

(Docket No. 1, ¶ 30).
absent

from

work

for

Maldonado

exhibited

a

sent

Alvarado

pattern

of

another

absenteeism.

The letter states that Alvarado was
twenty

three

(23)

days.

According

to

Alvarado, nineteen (19) of those days were authorized: ten (10)
days of annual vacation leave, five (5) days when her son was
hospitalized

and

four

(4)

days

that

Alicea

“granted

to

the

Municpality[‘s] employees to be used from their vacation days.”5
Id.

Alvarado

asked

Alicea

to

intervene

Alvarado has yet to receive an answer.

on

her

behalf,

but

(Docket No. 1, ¶ 31).

Alvarado states that Defendants’ actions caused her to suffer
emotional and mental harm and forced her to receive treatment.
(Docket

No.

1,

against

Alvarado

¶

36,
also

40).

Defendants’

allegedly

caused

discriminatory

injury

to

her

acts

spouse

Jesus Ramirez Rodriguez (“Ramirez”) and the conjugal partnership
established between them (the “Conjugal Partnership”).
No. 1, ¶ 42).

(Docket

Ramirez states that he suffered anxiety after

5

The complaint does not indicate whether the four (4) days Alicea granted the
Municipality’s employees to use from their vacation days were in addition to
the ten (10) days of annual vacation leave.
-6-

CIVIL NO. 10-2241 (JAG)

7

watching Alvarado’s mental health deteriorate.

(Docket No. 1, ¶

43).
II.

Procedural Background

Alvarado, Ramirez, and the Conjugal Partnership (collectively,
“Plaintiffs”),

commenced

the

instant

complaint on December 17, 2010.

action

by

(Docket No. 1).

filing

a

Plaintiffs

brought suit under (1) section 1983 alleging that their rights
under

the

First,

Constitution

were

Fifth

and

violated;6

Fourteenth
(2)

the

Commonwealth of Puerto Rico Laws.7
complaint

is

that

Defendants

Amendments

FMLA;

(3)

the

various

The gravamen of Plaintiffs’

discriminated

because of her PDP affiliation.

and

of

against

Alvarado

(Docket No. 1, ¶¶ 26, 33, 37-

39, 41).
On March 18, 2011, Alicea, Santos, Rivera and Maldonado moved
the Court pursuant to FED. R. CIV. P. 12(b)(6)(“Rule 12(b)(6)”) to
dismiss Plaintiffs’ complaint.

(Docket No. 17).

6

On the same

Plaintiffs have not pled the Fifth Amendment as a separate cause of action.
(Docket No. 1). Plaintiffs merely state, in the complaint’s “introduction,”
that Defendants deprived Plaintiffs of their rights under the Fifth Amendment
to the constitution. (Docket No. 1, p. 2). In an abundance of caution, the
Court will consider plaintiffs’ Fifth Amendment claim.
7
Plaintiffs allege that Defendants violated: (1) Article II, Sections 1, 4,
5, 6 and 7 of the Constitution of the Commonwealth of Puerto Rico; (2) the
“Public Service Personnel Laws of Puerto Rico”;
(3) Article 1802 of the
Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141 (“Article 1802”); (4)
Article 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5142
(“Article 1803”); (5) Law No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29
§ 146 (“Law 100”); (6) Law No. 184 of August 3, 2004, P.R. Laws Ann. tit. 3
§ 1461 et seq (“Law 184”). The Court is unaware and Plaintiffs do not cite
to any Puerto Rico law entitled “Public Service Personnel Laws of Puerto
Rico.”
-7-

CIVIL NO. 10-2241 (JAG)
day,

the

8

Municipality

moved

pursuant

complaint

also
Rule

12(b)(6).

to

to

dismiss

Plaintiffs’

(Docket

No.

Plaintiffs responded to both motions on April 27, 2011.
No. 25).
30).

The Municipality replied on May 16, 2011.

18).

(Docket

(Docket No.

Alicea, Santos, Rivera and Maldonado did not submit a

reply.

STANDARD OF LAW
Under Rule 12(b)(6), a defendant may move to dismiss an
action for failure to state a claim upon which relief can be
granted.
plead

To overcome a Rule 12(b)(6) motion, the complaint must

sufficient

facts

plausible on its face.”
544,

570

(2007);

see

“to

state

a

claim

to

relief

that

is

Bell Atl. Corp. v. Twombly, 550 U.S.
also

Ashcroft

v.

Iqbal,

556

U.S.

662

(2009).
In Ocasio-Hernández v. Fortuño Burset, 640 F.3d 1 (1st Cir.
2011), the First Circuit distilled from Twombly and Iqbal a twopronged test designed to measure the sufficiency of a complaint.
First,

the

reviewing

court

must

identify

and

disregard

“statements in the complaint that merely offer legal conclusions
couched as fact, or threadbare recitals of the elements of a
cause of action.”
punctuation

Ocasio-Hernández, 640 F.3d at 12 (internal

omitted).

In

this

analysis,

the

remaining

non-

conclusory factual allegations must be taken as true, even if
-8-

CIVIL NO. 10-2241 (JAG)

9

they are “seemingly incredible,” or that “actual proof of those
facts is improbable.”

Id.

Finally, the court assesses whether

the facts taken as a whole “state a plausible, not merely a
conceivable, case for relief.”
In

conducting

this

Id.

test,

a

court

must

not

attempt

to

forecast the likelihood of success even if recovery is remote
and unlikely.

Ocasio-Hernández, 640 F.3d at 12.

Thus, “[t]he

relevant inquiry forces on the reasonableness of the inference
of liability that the plaintiff is asking the Court to draw from
the facts alleged in the complaint.”

Id. at 13.

DISCUSSION
The Court’s analysis is divided into four parts.

In the first

part, the Court addresses whether Ramirez has standing to bring
suit under section 1983 and the FMLA.

Next, the Court discusses

whether Alvarado is able to state a claim under section 1983 for
violations

of

Alvarado’s

rights

under

the

First,

Fifth

and

Fourteenth Amendments to the Constitution and, if so, whether
the Defendants are entitled to qualified immunity.
part,

the

Court

analyzes

pursuant to the FMLA.

Alvarado’s

cause

of

In the third

action

brought

Finally, because the Court maintains

supplemental jurisdiction over Plaintiffs’ state law claims, the
Court discusses whether Plaintiffs adequately pled a clause of
action under Law 100, Article 1802 and Article 1803.
-9-

CIVIL NO. 10-2241 (JAG)

10

I. Standing
Standing
ha[s]

the

filed.”

concerns
requisite

“whether
stake

in

the
the

party

invoking

outcome

when

jurisdiction
the

suit

was

Davis v. Fed. Election Com’n, 554 U.S. 724, 734 (2008).

Defendants argue that Ramirez and the Conjugal Partnership lack
standing to bring a section 1983 action because they did not
suffer a constitutional violation.
Docket

No.

18,

pp.

19-22).

The

(Docket No. 17, pp. 24-26;
Court

also

reviews

whether

Ramirez and the Conjugal Partnership have standing to bring suit
pursuant to the FMLA sua sponte.

See Pagan v. Calderon, 448

F.3d 16, 26 (1st Cir. 2006)(internal citations omitted)(holding
that prior to addressing the substance of a plaintiff’s claim, a
court may address the plaintiff’s standing even if it is not
raised by the litigants).
A. Ramirez’s and the Conjugal Partnership’s Standing To Bring
Suit Under Section 1983
Defendants argue that Ramirez and the Conjugal Partnership
lack standing to sue under section 1983 because neither Alvarado
nor

the

Conjugal

deprivation.
21).

Partnership

suffered

a

constitutional

(Docket No. 17, pp. 24-26; Docket No. 18, pp. 19-

Plaintiffs

do

not

address

Ramirez’s

and

the

Conjugal

Partnership’s standing in their response to Defendants’ motions
to dismiss.

(see Docket No. 25).

-10-

The Court agrees that Ramirez

CIVIL NO. 10-2241 (JAG)
and

the

Conjugal

11

Partnership

do

not

have

standing

to

sue

pursuant to section 1983.
To have standing under section 1983, Plaintiffs must plead
that

Ramirez

and

the

Conjugal

Partnership

were

personally

injured by the alleged unconstitutional conduct.
Rotger-Sabat,
Carrión,

No.

317

F.3d

10-1153,

45,
2011

56
WL

(1st
92030,

Cir.
at

Mangual v.

2003);

*2

Vargas

(D.P.R.

Jan.

v.
3,

2011)(internal citations omitted).

Thus, the general rule is

that

partnerships

family

members

and

conjugal

do

not

have

standing to bring a section 1983 claim for their own injury.8
Robles-Vazquez v. Tirado Garcia, 110 F.3d 204, 206 n.4 (1st Cir.
1997);

Sánchez-Arroyo v. Dep’t of Educ. of P.R., No. 10-2083,

2012 WL 288676, at *13 (D.P.R. Feb. 1, 2012).
a

limited

underlying

exception

to

constitutional

relationship.

Id.

the

general

violation

rule
was

(internal

Courts recognize

where

aimed

the

at

citations

the

alleged
family

omitted).

Constitutional violations that interfere with certain private
decisions

or

the

parent-child

family relationship.

relationship

are

aimed

at

the

Ramirez-Lluveras, 2011 WL 4552536, at *4

(citing Reyes Vargas v. Rosello Gonzalez, 135 F.Supp.2d 305,

8

In contrast, in the District of Puerto Rico, a decedent’s heirs have
standing to bring suit under section 1983 on behalf of the decedent. RamirezLluveras v. Pagan-Cruz, No. 08-1486, 2011 WL 4552536, at *3 (D.P.R. Oct. 3,
2011)(citing Robertson v. Wegmann, 436 U.S. 584 (1978);
Gonzalez Rodriguez
v. Alvarado, 134 F.Supp.2d 451, 452-54 (D.P.R. 2001)).
-11-

CIVIL NO. 10-2241 (JAG)

12

308-09 (D.P.R. 2011)(citing Pittsley v. Warish, 927 F.2d 3, 8
(1st Cir. 1991))).
The complaint alleges that Defendants discriminated against
Alvarado because of her PDP affiliation.
33, 37-39, 41).

(Docket No. 1, ¶¶ 26,

The complaint also states that Defendants’

alleged discriminatory conduct caused injury to Ramirez and the
Conjugal Partnership. Yet, there is no indication that Ramirez
or

the

Conjugal

Partnership

constitutional deprivation.
alleged

damages

stem

from

were

personally

subject

(Docket No. 1, ¶ 42).
watching

Alvarado’s

a

Ramirez’s

mental

deteriorate and being forced to reorder his life.

to

health

(Docket No.

1, ¶ 42-43). In addition, Defendants’ alleged unconstitutional
actions
their

were

not

conduct

Municipality.

aimed

at

concerned

the

familial

Alvarado’s

relationship;

employment

rather

with

the

(Docket No. 1, ¶¶ 13, 26, 33, 37-39, 41); Lopez-

Jimenez v. Pereira, No. 09-1156, 2010 WL 500407, at *1 (D.P.R.
Feb. 3, 2010)(citing Pittsley, 927 F.2d 3, 8 (1st Cir. 1991)).
Since Ramirez and the Conjugal Partnership did not plead that
they suffered a constitutional deprivation or that Defendants’
actions were aimed at the familial relationship, Ramirez and the
Conjugal Partnership do not have standing to bring suit under
section 1983.

Ramirez’s and the Conjugal Partnership’s actions

-12-

CIVIL NO. 10-2241 (JAG)
brought

pursuant

to

13

section

1983

are

hereby

DISMISSED

WITH

PREJUDICE.
B. Ramirez’s and the Conjugal Partnership’s Standing To Bring
Suit Under the FMLA
The FMLA provides, inter alia, that “eligible employers” must
provide “eligible employees” with up to 12 workweeks of leave
per

year

in

the

event

of

events.9

specified

29

U.S.C.

§

2612(a)(1).

The FMLA provides an employee with right of action

against

employer

an

if

the

employer

interferes

with

the

employee’s FMLA rights or retaliates against an employee who
invokes FMLA rights.

Roman v. Potter, 604 F.3d 34, 40 (1st Cir.

2010)(internal citations omitted).
It is axiomatic that a person must be an eligible employee
within the meaning of the FMLA to be offered a remedy under the
FMLA.

See 29 U.S.C. § 2612(a)(1).

The FMLA defines an eligible

employee as “an employee who has been employed (i) for at least
12

months

by

the

employer

with

respect

to

whom

leave

is

requested . . . and (ii) for at least 1,250 hours for service
with such employer during the previous 12-month period.”
U.S.C.

§

violated

2611(2)(A).
Alvarado’s

The
FMLA

complaint
rights

when

against Alvarado for taking FMLA leave.
9

alleges

29

that

Defendants

Defendants

retaliated

(Docket No. 1, pp. 13-

The specified events include: caring for a child after birth; placement of a
child for adoption or foster care; caring for a spouse, son, daughter or
parent with a serious health condition; or suffering a serious health
condition. 29 U.S.C. § 2612(A)(1)(A)-(D).
-13-

CIVIL NO. 10-2241 (JAG)
14).

14

The complaint does not aver that Ramirez or the Conjugal

Partnership were Defendants’ employees.
or

the

Conjugal

Municipality.

Partnership,

was

Alvarado, not Ramirez

hired

(Docket No. 1, ¶¶ 3, 10).

to

work

for

the

Because Ramirez is not

an eligible employee, Ramirez does not have standing to bring a
claim

pursuant

to

the

FMLA

and

Ramirez’s

and

the

Conjugal

Partnership’s action brought pursuant to the FMLA are DISMISSED
WITH

PREJUDICE.10

Bellsouth

See

Telecomms.,

29

U.S.C.

Inc.,

273

§

2611(2)(A)(i);

F.3d

1304,

1306

Smith
(11th

v.

Cir.

2001).
II.

Section 1983 Claim

Section 1983 provides a right of action against those who
violate constitutional rights.11

Inyo Cnty., Cal. v. Paiute-

Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538

10

Whether a person is an eligible employee, within the meaning of the FMLA,
is often viewed as concerning a plaintiff’s standing to bring suit.
See
Bellsouth Telecomms, 273 F.3d at 1306. Other courts approach the question as
a substantive element of a claim.
See e.g., Duckworth v. Pratt & Whitney,
Inc., 152 F.3d 1 (1st Cir. 1998).
The Court chooses to analyze the issue
under the standing rubric.
Regardless, the Court notes that Ramirez’s and
the Conjugal Partnership’s claim brought under the FMLA must also be
dismissed because they are unable to establish that they are eligible
employees and as such fail to state a claim upon which relief can be granted.
Id.
11
Section 1983 states, in pertinent part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress.
-14-

CIVIL NO. 10-2241 (JAG)

15

U.S. 701, 708 (2003).

To state a claim under section 1983,

Alvarado must plausibly plead that: (1) Alvarado was deprived of
a

constitutional

right;

(2)

“a

causal

connection

between

[Defendants’ conduct] and the [constitutional] deprivation”; and
(3) “state action.”12

Sanchez v. Pereira-Castillo, 590 F.3d 31,

41 (1st Cir. 2009)(citing 42 U.S.C. § 1983).
that

Plaintiffs

insufficiently

pled

the

Defendants argue
second

and

third

elements of a 1983 action: whether Defendants caused Plaintiffs
to be deprived of a constitutional right.
6-24; Docket No. 18, pp. 4-19).

(Docket No. 17, pp.

The essence of Defendants’

contention is that Alvarado’s “allegations are conclusory and
devoid of any facts in support thereof.”
Docket No. 18, pp. 6-7).
Rivera-Mercado

and

qualified immunity.13
Plaintiffs

counter

(Docket No 17, p. 8;

In the alternative, Alicea, Santos,

Alvarado

argue

that

they

are

entitled

to

(Docket No. 17, pp. 21-24; Docket No. 18).
that

the

complaint

plausible entitlement to relief.

adequately

describes

a

(Docket No. 25, pp. 7-11).

A. Deprivation of a Constitutional Right
Alvarado contends that Defendants violated her rights under
the First, Fifth and Fourteenth Amendments to the Constitution.

12

Alvarado and the Conjugal Partnership also allege that Defendants’ are
liable to them under section 1983.
The Court, however, already concluded
that Alvarado and the Conjugal Partnership do not have standing under section
1983.
13
The Municipality does not argue that they are entitled to qualified
immunity.
-15-

CIVIL NO. 10-2241 (JAG)
(Docket No. 1).

16

Although Alvarado plausibly pled a claim under

the First Amendment, Alvarado failed to do so under the Fifth
and Fourteenth Amendments.

1. First Amendment
The

First

Amendment

part,

that

pertinent

to

the

“[c]ongress

Constitution

shall

make

states,

no

law

.

in
.

.

abridging the freedom of speech . . . or the right of the people
to peaceably assemble . . .”14

U.S. Const., amend. 1.

The First

Amendment rights to freedom of speech and to peaceably assemble
embody

the

right

to

be

free

from

political

discrimination.

Barry v. Moran, 661 F.3d 696, 699 (1st Cir. 2011).

To state a

claim for political discrimination under the First Amendment,
Alvarado

must

have

plausibly

pled

that:

(1)

Defendants have opposing political affiliations;

Alvarado

and

(2) Defendants

knew of Alvarado’s PDP affiliation; (3) Alvarado was subject to
an adverse employment action; and (4) Alvarado’s PDP affiliation
was

a

substantial

employment action.

or

motivating

factor

for

the

adverse

Méndez-Aponte v. Bonilla, 645 F.3d 60, 64

(1st Cir. 2011)(citing Ocasio-Hernández, 640 F.3d at 13).
a. Opposing Political Affiliations
14

The First Amendment applies to Puerto Rico through the First Amendment’s
incorporation into the Fourteenth Amendment. Maymi v. P.R. Ports Auth., 515
F.3d 20 (1st Cir. 2008).
-16-

CIVIL NO. 10-2241 (JAG)

17

Alvarado adequately pled that she has an opposing political
affiliation from the Defendants because Alvarado pled that she
is a member of the PDP whereas “all of the [D]efendants are
members of the NPP.”
Hernández,

640

F.3d

(Docket No. 1, ¶¶ 11, 14);
at

13;

Acevedo-Conception

See Ocasiov.

Irizarry-

Mendez, No. 09-2133, 2011 WL 6934791, at *2 (D.P.R. Dec. 29,
2011)(holding that the plaintiffs sufficiently pled that they
had different political affiliations from the defendants when
the complaint stated that the plaintiffs are “persons identified
with the [PDP]” while the defendants are “members of the NPP, a
fact

well

known

in

[their]

workplace

and

in

[their

Circuit

Court

of

Appeals

communities].”)
In

Ocasio-Hernández,

addressed

whether

the

the

First

plaintiff

adequately

pled

that

the

plaintiff and defendants had opposing political affiliations.
640

F.3d

at

13.

There,

the

plaintiff

pled

that

the

“[d]efendants all belong to the NPP,” “[e]ach and all plaintiffs
are

members

of

the

popular

Democratic

party

.

.

.

or

are

believed to be a member of the PDP,” and that each plaintiff
“was not a known member of the [NPP].”

Id.

The First Circuit

held that the plaintiff adequately pled that the plaintiff and
defendants had opposing political affiliations.

-17-

Id.

The court

CIVIL NO. 10-2241 (JAG)

18

reasoned that, at the summary judgment stage, the plaintiffs’
averments are presumed to be true.

Id.

In the case at bar, like in Ocasio-Hernández, Alvarado pled
that she is a member of the PDP.
to

Ocasio-Hernández,

Alvarado

(Docket No. 1, ¶ 9).
also

pled

that

“all

Similar
of

the

[D]efendants are members of the NPP.”

(Docket No. 1, ¶ 14).

Thus,

averments

Alvarado’s

averments,

like

the

in

Ocasio-

Hernández, are presumed to be true, and as such, are sufficient
to

plausibly

plead

that

Alvarado

opposing political affiliations.

and

Defendants

belonged

to

Id.

b. Knowledge of Alvarado’s PDP Affiliation
Defendants also contend that Alvarado insufficiently pled
the

second

political

element

required

discrimination

claim:

Alvarado’s PDP affiliation.
No. 18, pp. 7, 11, 12).

to

establish
that

a

First

Defendants’

Amendment
knew

of

(Docket No. 17, pp. 11, 14; Docket

Defendants contend that the complaint

is insufficient because it merely alleges that Defendants knew
of Alvarado’s PDP affiliation, without explaining how Defendants
acquired the knowledge.

Id.

At the motion to dismiss stage, Alvarado need only plead facts
“to support a reasonable inference that the . . . defendants had
knowledge of their political beliefs.”

-18-

Ocasio-Hernández, 640

CIVIL NO. 10-2241 (JAG)
F.3d at 15.

19

In so doing, the Court must take into account the

“cumulative effect of the factual allegations.”

Id.

Alvarado

pled that she is an active member of the PDP and has attended
PDP political caravans and electoral colleges.
8).

In

2004

and

electoral campaign.
Alvarado

was

2008,

Alvarado

participated

(Docket No. 1, ¶ 9).

hired

as

the

(Docket No. 1, ¶
in

the

PDP

In February of 1990,

Municipality’s

“Office

Auxiliary I,” by non-party Robles, a PDP member.

System

Id.

After

Alicea, a member of the NPP, was elected the Municipality’s
mayor, Defendants made derogatory and discriminatory comments
relating to Alvarado’s PDP membership.

(Docket No. 1, ¶¶ 11-12,

32).
Moreover, Alvarado spoke to Alicea about Maldonado’s apparent
hostility on July 12, 2010.

(Docket No. 1, ¶ 19).

According to

Alvarado, despite knowing about the discrimination, Alicea did
not take action.

Id.

Defendants attempt to persuade the Court

that Alvarado did not establish that Alicea knew of her PDP
membership

because

Alvarado

spoke

to

Alicea

about

discrimination after the alleged discrimination began.
No.

17,

p.

inapposite

14;

Docket

because

No.

Alvarado

18,

p.

11).

alleges

that

This

(Docket

argument

the

the

is

political

discrimination not only continued but became even worse after
informing Alicea of the discrimination. (Docket No. 1, ¶ 19).

-19-

CIVIL NO. 10-2241 (JAG)

20

Del Toro Pacheco v. Pereira, 633 F.3d 57 (1st Cir. 2011) is
instructive.

In Del Toro, the plaintiff brought suit against

two

supervisors

of

his

alleging

that

they

plaintiff because of his political beliefs.
District

Court

granted

the

supervisors’

terminated

the

Id. at 58.

motion

for

The

summary

judgment because the plaintiff was unable to establish that the
supervisors knew of the plaintiff’s political affiliation.
at 59.

Id.

The First Circuit Court of Appeals affirmed, although

partially on other grounds.

Id. at 63-64.

The court found that

one of the plaintiff’s supervisors did not know of plaintiff’s
political

affiliation

because

the

plaintiff

admitted

that

he

never discussed politics with the supervisor, let alone know or
speak

to

the

supervisor.

Id.

at

62.

As

to

the

other

supervisor, the court found that the plaintiff raised an issue
of material fact as to whether the supervisor had knowledge of
the plaintiff’s political affiliation.15

Id. at 62-63.

The

court

supervisor

the

pointed

to

the

evidence

that

the

told

plaintiff that “[y]ou are going to be one of us, of the ‘reds,’
you are going to be a [PDP] member,” made comments deriding the
plaintiff for his NPP affiliation and urged him to switch to the
PDP in order to keep his job.

Id.

15

The court in Del Toro ultimately concluded that there is no genuine issue
of material fact concerning whether the plaintiff’s political persuasion was
a substantial or motivating factor behind the adverse employment action. Id.
at 63.
-20-

CIVIL NO. 10-2241 (JAG)

21

Here, like in Del Toro, the question before the court is
Defendants’
Similar

to

knowledge
Del

Toro,

of

Alvarado’s

Alvarado

political

alleges

that

affiliation.

Defendants

made

derogatory and discriminatory comments relating to Alvarado’s
PDP membership.

(Docket No. 1, ¶¶ 11-12, 32).

Thus, it is

plausible that the Defendants knew of Alvarado’s PDP membership.
The supervisor’s statements in Del Toro, are arguably more
detailed than Alvarado’s allegations in the instant case.

This

is not surprising because the parties had the opportunity to
conduct discovery.

The court in Del Toro, was analyzing the

supervisor’s statements at the summary judgment stage, whereas
the Court, in the instant matter, is merely at the motion to
dismiss stage.

Additionally, litigants bear a more exacting

standard at the summary judgment stage than at the motion to
dismiss stage.

To defeat a summary judgment motion, there must

be a genuine issue of material fact.

FED. R. CIV. P. 56;

See

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,
52 (1st Cir. 2000).

In contrast, in ruling on a motion to

dismiss, a plaintiff need only state a “plausible . . . case for
relief.
omitted).

Ocasio-Hernández, 640 F.3d at 12 (internal citations
Thus, because the supervisor’s statements in Del

Toro deriding the plaintiff because of his NPP affiliation and
urging him to change allegiances to the PDP were sufficient to

-21-

CIVIL NO. 10-2241 (JAG)

22

create a genuine issue of material fact as to the supervisors’
knowledge of the plaintiff’s political affiliation, Alvarado’s
averments, in the instant case, that Defendants made derogatory
and

discriminatory

comments

relating

to

Alvarado’s

PDP

membership is, a fortirori, sufficient to plausibly plead that
Defendants knew of Alvarado’s PDP membership.
This

Court’s

distinguishable.

decision

in

2011 WL 6934791.

Acevedo-Concepcion

is

In Acevedo-Conception, the

plaintiffs alleged that defendants were “all active members of
the PDP, a fact well known in their workplaces and in their
communities.”
statement,

Id. at *2.

standing

alone,

There, the Court held that this
was

insufficient

to

raise

the

inference that the defendants knew of the plaintiff’s political
affiliation.
did

not

Id.

contain

The Court also concluded that the complaint
any

“factual

basis”

that

would

permit

a

reasonable inference that the defendants had knowledge of the
plaintiffs

political

affiliation.

Id.

The

plaintiffs’

averments were threadbare, speculative and failed to cross the
line

from

conclusory

to

factual.

Id.

In

contrast

to

the

complaint in Acevedo-Conception, Alvarado pled more than that
the Defendants’ knew of her PDP membership.

Alvarado alleged

“discrete factual events” permitting a reasonable inference that
Defendants knew of her PDP membership when Alvarado states that

-22-

CIVIL NO. 10-2241 (JAG)

23

Defendants made discriminatory comments relating to Alvarado’s
PDP membership.

(Docket No. 1, ¶¶ 11-12, 13); Ocasio-Hernández,

640 F.3d at 14.

Moreover, Alvarado alleges that she told Alicea

about

Maldonado’s

hostility,

(Docket No. 1, ¶ 19).

but

Alicea

sat

on

his

hands.

Accordingly, here, unlike in Acevedo-

Conception, Alvarado’s statements are presumed to be true and
are sufficient to plausibly plead that the Defendants’ knew of
her

PDP

membership.

Thus,

Plaintiff’s

alleged

sufficient

“factual events” that give rise to the inference that Defendants
had

knowledge

of

Alvarado’s

PDP

affiliation.

See

Ocasio-

Hernández, 640 F.3d at 14-15; Del Toro, 633 F.3d 57 (1st Cir.
2011);

Rodríguez v. Municipality of San Juan, 659 F.3d 168, 177

(1st Cir. 2011).
c. Adverse Employment Action
The complaint alleges that Defendants began a pattern of
discriminatory conduct immediately after Alicea was elected the
Municipality’s mayor.

(Docket No. 1, ¶¶ 13, 26, 33, 37-39, 41).

Defendants argue that Alvarado’s allegations have “no factual
basis in the complaint.”
Court

finds

that

the

(Docket No. 17, pp. 9-10, 13).

complaint

sufficiently

pled

an

The

adverse

employment action because it plausibly described that Alvarado
was: (1) assigned duties outside of her job description; (2)

-23-

CIVIL NO. 10-2241 (JAG)

24

treated differently than other employers; and (3) subjected to
informal harassment.
An

(Docket No. 1, ¶¶ 13, 16, 26, 32, 36).

employment

action

is

adverse,

for

First

Amendment

purposes, “if those actions, objectively evaluated would place
substantial pressure on even one of thick skin to conform to the
prevailing political view.”
610

F.3d

756,

punctuation

766

(1st

omitted).

In

Rodríguez-García v. Miranda-Marín,
Cir.

2010)(internal

general,

firing,

citations

demoting,

and

denying

promotions, transfers and failing to recall a public employee
after layoffs constitute adverse employment actions.

Id.

A

“substantial alteration” in duties may also be considered an
adverse employment action.
8 (1st Cir. 2009).

See Bergeron v. Cabral, 560 F.3d 1,

Alvarado was hired in February of 1999 to be

the Municipality’s “System Auxiliary I.”
10).

(Docket No. 1, ¶¶ 3,

In June of 2010, Rivera, the director of the FPO assigned

Alvarado a task outside her regular duties.
¶ 18).

(See Docket No. 1,

Again, on August 7, 2010, Maldonado sent Alvarado a

memorandum

assigning

her

(Docket No. 1, ¶ 20).

new

duties

as

medical

plan

biller.

The record at the motion to dismiss stage

lacks sufficient facts to accurately compare Alvarado’s duties
before and after the change in administration.

Nevertheless, at

the motion to dismiss stage, plaintiffs are not expected to
color in every detail.

They must merely plead, in a plausible

-24-

CIVIL NO. 10-2241 (JAG)
manner,

that

the

25

terms

and

conditions

of

employment

were

substantially changed to Alvarado’s detriment.
Alvarado also pled that she was treated differently than
other employees because of her PDP affiliation.

(see e.g.,

Docket

an

No.

1,

¶¶

16,

29).

A

court

will

find

adverse

employment action when the plaintiff is confronted with “a work
situation unreasonably inferior to the norm for the position.”
Rodríguez-García,
punctuation

610

F.3d

omitted).

at

Alvarado

766

(internal

avers

that

citations

she

was

and

punished

because she asked to bring her son to work after her son’s
caretaker

faced

an

emergency

despite

an

internal

memorandum

stating that employees are permitted to bring their children to
work

in

case

of

emergencies.

(Docket

No.

1,

¶¶

27-28).

Alvarado states that other employees were not admonished for
bringing

their

children

to

work.

(Docket

No.

1,

¶

29).

Similarly, Alvarado alleges that the five (5) days off from work
the Municipality granted to tend to her son who was admitted to
the hospital were deducted from her vacation days.
1, ¶ 17).

(Docket No.

(Docket No. 1, ¶ 28); See Coffman v. Tracker Marine,

L.P., 141 F.3d 1241, 1244 (8th Cir. 1998)(observing that in the
Title VII, 41 U.S.C. § 2000e et seq., (“Title VII”) context,
denying days off for federal holidays constitutes an adverse
employment action).

-25-

CIVIL NO. 10-2241 (JAG)
The

First

26

Circuit

has

explained

that,

“[a]ctions

of

informal harassment, as opposed to formal employment actions . .
. can be the basis for the [F]irst [A]mendment claims . . . .”16
Welch v. Ciampa, 542 F.3d 927, 937 (1st Cir. 2008)(internal
citations omitted); Barton v. Clancy, 632 F.3d 9, 29 (1st Cir.
2011)(1st Cir. 1989).

Alvarado states that she has been denied

breaks and has her computer access limited.

See Carrasquillo-

Gonzalez v. Sagardia-De-Jesus, 723 F. Supp. 2d 428, 435 (D.P.R.
2010)(quoting
1209,

1219

additional
photocopier,
.’”).

Agosto-de-Feliciano
(1st

factors
poorer

Cir.

Aponte-Roque,

1989)(noting

such

as

office

Additionally,

v.

‘lost

889

that

“consider

access

accoutrements,

Alvarado

states

courts
to

worse

that

telephone
hours

.

“Defendants

F.2d

and
.

.

have

constantly made derogatory and discriminatory comments relating
to her political affiliation . . . .”
Admittedly,

“[a]

supervisory

power

single
is

exercising authority.”

not

insult

by

political

(Docket No. 1, ¶ 32).
a

co-worker

discrimination

with

no

by

one

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

16

In contrast, for purposes of Title VII, “adverse employment action” is used
“as a shorthand for the statutory requirement that a plaintiff show an
alteration in the material terms or conditions of his employment.” 632 F.3d
at 29 (quoting Bergeron, 560 F.3d at 7-8). The First Amendment standard is
lower than in the Title VII standard. Rivera-Jimenez v. Pierluisi, 362 F.3d
87, 94 (1st Cir. 2004). Indeed, the Supreme Court has even stated that “the
First Amendment . . . protects state employees not only from patronage
dismissals but also from even an act of retaliation as trivial as failing to
hold a birthday party for a public employee . . . .”
Rutan v. Republican
Party of Ill., 497 U.S. 62, 76-77 (1990)(internal citations and quotations
omitted).
Here, the complaint plausibly shows that Alvarado was subject to
informal harassment and had her duties “substantially altered.”
-26-

CIVIL NO. 10-2241 (JAG)

27

Webber v. Int’l Paper Co., 417 F.3d 229, 236-37 (1st Cir. 2005).
Alvarado pled that Alicea, Santos, Rivera-Mercado and Maldonado
had

some

Given

the

level

of

record

supervisory
before

the

responsibility
Court

and

the

over

Alvarado.

instant

case’s

procedural posture, whether Defendants’ purported harassment, in
fact, consisted of a single insult or was “sufficiently severe
to

cause

reasonably

hardy

individuals

to

compromise

their

political beliefs and associations in favor of the prevailing
party” is not ripe for determination.

See Twombly, 550 U.S. at

570; see also Iqbal, 556 U.S. 662.
Finally,

Alvarado

avers

that

she

received

three

admonishment letters: one for asking to bring her son to work,
one for allegedly refusing to perform her duties and one for an
apparent pattern of absenteeism.

(Docket No. 1, ¶¶ 22, 27, 30).

According to Alvarado, these admonishments were unwarranted: an
internal memorandum granted Alvarado the right to bring their
children to work in emergency situations; Alvarado never refused
work for the FPO; and Alvarado’s absences were excused.
No. 1, ¶¶ 22-25, 28, 30-31).

(Docket

See Bart v. Telford, 677 F.2d 622,

625 (7th Cir. 1982)(cited favorably in Barton, 632 F.3d at 30,
for the proposition that a “‘campaign of petty harassments,’
including groundless reprimands of plaintiff and holding her up
to

ridicule

for

bringing

a

birthday

-27-

cake

to

the

office,

CIVIL NO. 10-2241 (JAG)

28

supported First Amendment claim”). Thus, the complaint at hand
is sufficient to show, at the pleading stage, that Alvarado
suffered an adverse employment action.
d. Alvarado’s PDP Affiliation as a Substantial
Motivating Factor For the Adverse Employment Action

or

To state a claim for political discrimination under the
First Amendment, Alvarado must plead facts sufficient to support
“a reasonable inference that plaintiffs’ political affiliation
was

a

substantial

conduct.”

or

motivating

factor

in

the

Ocasio-Hernández, 640 F.3d at 16.

defendants’

Alvarado must

plead facts specifying the role of each defendant in the adverse
employment

action.

Id.

Defendants

argue,

in

conclusory

fashion, that “Alvarado has also failed to plead with specific
facts

that

there

is

any

connection

political discrimination.”

between

[Defendants]

(Docket No. 17, p. 15).

and

To survive

a motion to dismiss, Alvarado’s complaint must do more than
‘[m]erely

juxtapose[]

a

protected

characteristic

–

someone

else’s politics – with the fact that the plaintiff was treated
unfairly.’”
Cir.

Peguero-Moronta v. Santiago, 464 F.3d 29, 45 (1st

2006)(internal

citations

omitted).

Moreover,

the

Court

agrees with Defendants that the mere conclusory statement that a
plaintiff

faced

an

adverse

employment

action

because

of

the

plaintiff’s political affiliation is insufficient, without more,
to survive a motion to dismiss.

-28-

See Ocasio-Hernández, 640 F.3d

CIVIL NO. 10-2241 (JAG)

29

at 12; Twombly, 127 S.Ct. at 1966; (Docket No. 1, ¶¶ 26, 33, 3739, 41).
Alvarado’s complaint does more than merely juxtapose her
PDP

membership

Plaintiffs

with

allege

the

alleged

that

adverse

Defendants

employment

made

action:

derogatory

and

discriminatory comments relating to Alvarado’s PDP membership
and

work

performance.

(Docket

No.

1,

¶

32).

Statements

evincing political animus are often sufficient to show that a
plaintiff’s

political

affiliation

was

a

substantial

motivating favor in an adverse employment decision.
Moronta,

464

F.3d

at

45

(citing

Rodríguez-Marín

or

Peguerov.

Rivera-

González, 438 F.3d 72, 76 (1st Cir 2006)); compare Barry, 661
F.3d

at

707-708

(holding

that

certain

“stray

remarks”

are

insufficient to demonstrate discriminatory animus sufficient to
establish
Molina,

workplace

491

F.3d

1,

discrimination);
9–10

(1st

Cir.

Marrero-Gutierrez
2007)(holding

that

v.
mere

allegations that an employee was badly treated and that the
employee’s political party was mocked is insufficient, at the
summary judgment stage, to establish discriminatory animus).
Moreover,
“smoking

gun.”

omitted).
within

Alvarado
Welch,

is

not

542

F.3d

required
at

940

to

bring

(internal

forth

a

citations

Whether the adverse employment action takes place

close

temporal

proximity

-29-

of

a

change

in

political

CIVIL NO. 10-2241 (JAG)
administration

30

“unquestionably

contributes

at

the

motion

to

dismiss stage to the reasonable inference that the employment
decision was politically motivated.”

Ocasio-Hernández, 640 F.3d

at 18 (citing Peguero-Moronta, 464 F.3d at 53).
is

an

active

member

of

the

PDP.

Once

Here, Alvarado,

Alicea

assumed

the

Municipality’s mayorship in November of 2008, Defendants, who
are all member of the NPP, allegedly began to humiliate, harass
and

discriminate

affiliation.

against

Alvarado

because

of

her

PDP

(Docket No. 1, ¶¶ 13, 26, 33, 37-39, 41).

Admittedly,

whether

Alvarado

adequately

pled

that

Defendants acted with discriminatory animus is a close call.17
Nevertheless,
made

because

discriminatory

affiliation,

and

the

Alvarado’s

allegation

comments

regarding

purported

temporal

that

Defendants’

Alvarado’s
proximity

PDP

between

Defendants purported adverse employment actions with the change
in the mayorship from PDP to NPP coupled with the low threshold
required to survive a Rule 12(b)(6) motion leads the Court to
17

The Court’s determination is especially difficult in light of the fact that
Alvarado has not pled that the atmosphere in the Municipality was politically
charged.
A plaintiff may adequately plead that political affiliation was a
substantial or motivating factor for an adverse employment action if: “[A]
politically charged employment atmosphere ‘occasioned by the major political
shift from the NPP to the PDP . . . coupled with the fact that plaintiffs and
defendant are of competing political persuasion [].
Ocasio Hernández, 640
F.3d at 17 (internal citations omitted).
As previously mentioned, Alvarado
plausibly pleaded that Defendants’ and Alvarado are members of competing
political parties and the alleged unconstitutional conduct
only began once
Alicea, a NPP member, replaced Robles, a PDP member as the Municipality’s
mayor. Nevertheless, Alvarado is unable to gain the benefit of the inference
because Alvarado did not plead that the atmosphere in the Municipality was
politically charged, or something analogous thereto.

-30-

CIVIL NO. 10-2241 (JAG)
conclude

that

31

Alvarado

plausibly

pled

that

Alvarado’s

PDP

affiliation was a substantial motivating factor in the alleged
adverse employment action.
2. Fifth Amendment
The

Fifth

Amendment

to

the

United

States

Constitution

provides, in pertinent part, that “[n]o person shall . . . be
deprived of life, liberty, or property without due process of
law.” U.S. Const. amend. V.

The First Circuit Court of Appeals

has consistently held that the Fifth Amendment is inapplicable
to causes of action against the Commonwealth of Puerto Rico and
private persons.

See, e.g., Martinez-Rivera v. Sanchez Ramos,

498 F.3d 3, 8 (1st Cir. 2007);

Sanchez v. Pereira-Castillo, 573

F.Supp.2d

2008)(citing

Public

Utilities

Commission v. Pollak, 343 U.S. 451, 461 (1952))).

Alvarado

brought

474,

suit

484

against

(D.P.R.

the

Municipality

employees; not the federal government.

and

various

Municipal

Thus, Alvarado’s Fifth

Amendment claim is hereby DISMISSED WITH PREJUDICE.
3. Fourteenth Amendment
The

Fourteenth

Amendment

to

the

Constitution

states,

in

pertinent part, “nor shall any state deprive any person of life,
liberty,

or

property,

without

due

process

of

law

(the

“Due

Process Clause”); nor deny to any person within its jurisdiction

-31-

CIVIL NO. 10-2241 (JAG)

32

the equal protection of laws (the “Equal Protection Clause”).”
U.S. Const. amend. XIV.

The Court will address both clauses in

turn.
a. Equal Protection Clause
Defendants argue that Alvarado’s claim brought under the
Equal Protection Clause must be dismissed because Alvarado is
not

in

merely

a
an

protected

class

alternative

discrimination claim.
p. 17-18).
explaining

legal

her

Equal

theory

to

Protection

present

her

claim

is

political

(Docket No. 17, pp. 20-21; Docket No. 18,

Alvarado does not set forth a substantive argument
why

her

passes muster.18
The

and

claim

under

the

Equal

Protection

Clause

(Docket No. 25, p. 13-15).

Equal

Protection

requires

similarly

individuals to be treated in a similar manner.

situated

See Marrero-

Gutierrez, 491 F.3d at 9 (citing City of Cleburne v. Cleburne
Living

Ctr.,

protection

473

claim

U.S.

432

alleging

(1985).
political

However,

“[a]n

discrimination

equal
merely

restates a First Amendment political discrimination claim and .
. . [should be] considered under the First Amendment.” Uphoff
Figueroa v. Alejandro, 597 F.3d 423, 426, 430 n. 8 (1st Cir.
2010);

Pagan, 448 F.3d at 36.

18

Alvarado’s response merely outlines the requirements to establish a claim
under the Equal Protection Clause.
-32-

CIVIL NO. 10-2241 (JAG)
The

gravamen

discriminated
(Docket

No.

of

33
Alvarado’s

against
1,

¶¶

her

13,

complaint

because

26,

33,

of

37-39,

is

that

her

PDP

41).

Defendants
membership.

As

previously

discussed at length, the First Amendment addresses a person’s
right to be free from political discrimination.

See Barry, 661

F.3d 696, 699 (1st Cir. 2011).

Therefore, Alvarado’s claim

pursuant

Clause

First

to

the

Amendment

Equal

Protection

discrimination

claim

merely

and

is

of

due

restates

hereby

her

DISMISSED

WITH PREJUDICE.
b. Due Process Clause
A

party

may

assert

two

categories

process

substantive due process and procedural due process.
515 F.3d at 29.

rights:

See Maymi,

Alvarado only alleges that Defendants violated

her procedural due process rights.

(Docket No. 1, p. 12-13;

Docket No. 25, pp. 13-15).
To establish liability under procedural due process, Alvarado
must

plausibly

plead

that:

Alvarado

was

“[1]

deprived

of

a

property interest, [2] by [D]efendants acting under color of
state

law,

and

constitutionally

[3]

adequate

without
process.”

the

Maymi,

(citing Marrero-Gutierrez, 491 F.3d at 8.

-33-

availability
515

F.3d

of

a

at

29

CIVIL NO. 10-2241 (JAG)
Property

interests

34
are

not

derived

from

the

Constitution.

Rather, property interests are created and have their contours
defined by state law.

Colon-Santiago v. Rosario, 438 F.3d 101,

108 (1st Cir. 2006)(internal citations and punctuation omitted).
Puerto Rico law grants career employees a property interest in
their continued employment.

Colon-Santiago, 438 F.3d at 108

(internal citations omitted).

Thus, in Puerto Rico, a public

employee like Alvarado may not be terminated from employment
without due process.

Id.

Yet, Alvarado does not contend that

she was terminated from her job with the Municipality.
Alvarado

argues

that

her

procedural

due

process

Rather,

rights

were

violated when Defendants (a) “proceeded to strip plaintiff of
practically all function and duties inherent to her position . .
. [and was] relegated to the performance of occasional tasks
that properly pertain to a lower position”; and (b) “has been
subject

to

written

challenge them.

reprimands”

without

the

opportunity

to

(Docket No. 1, p. 12-13; Docket No. 25, p. 13-

15).
Puerto Rico law grants public employees a property interest in
their job. Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 134
(1st

Cir.

2005)(internal

citations

omitted).

In

contrast,

public employees do not have a property interest in the duties
the employee performs for their employer. Id. (holding that the

-34-

CIVIL NO. 10-2241 (JAG)

35

plaintiff did not have a claim under the Fourteenth Amendment
because the plaintiff was not fired, his duties were merely
downgraded).
claim

when

Therefore, Alvarado does not have a due process
Defendants

purportedly

stripped

Alvarado

of

her

process

right

to

Alvarado

was

not

duties.
Similarly,
challenge

Alvarado

Defendants’

does

not

have

admonishments

a

due

because

terminated or subject to an adverse employment action that had
the effect of termination.

“[T]he Supreme Court has not decided

whether procedural due process protections extend to employee
discipline short of termination.” See O'Connor v. Pierson, 426
F.3d 187, 197 (2d Cir. 2005)(citing Gilbert v. Homar, 520 U.S.
924, 929 (1997)).

In Torres-Rosado v. Rotger-Sabat, 335 F.3d 1,

9 (1st Cir. 2003), the First Circuit noted that an open-ended
paid

suspension

suspension

may

functions

trigger
like

due
a

process
discharge

protection
from

if

the

employment.

Nevertheless, Alvarado was not suspended, with pay or otherwise.
Alvarado does not cite, and the Court does not know of any
Puerto Rico law, that grants Alvarado a right to due process
prior to being sent an admonishment.

The Court declines to

blaze new legal trails.
Alvarado does not have a property interest in her purportedly
lost vacation days.

Alvarado argues that Defendants deducted

-35-

CIVIL NO. 10-2241 (JAG)

36

accrued vacation days without due process.
14).

(Docket No. 25, p.

Alvarado does not point to any Puerto Rican law creating a

property interest in vacation days.

Puerto Rico law permits

employees to “be paid a lump sum of money for the leaves of
absence he may have accumulated . . . and for his sick leave he
may have accumulated . . . on his removal from service.”

3 P.R.

Laws Ann. tit. 3 § 703a. However, Alvarado was not discharged
from the Municipality.

Ramírez-De Leon v. Mujica-Cotto, 345 F.

Supp. 2d 174, 189 (D.P.R. 2004)(“[P]ayment of the accumulated
vacation
separation
Moreover,

leave

is

results
even

if

only
in
the

in

the

order

when

definite

loss

of

the

severance

vacation

resignation
from

days

or

service.”)

constituted

a

property right, any purported loss of vacation days would have
been de minimis. See Germano v. City of Mayfield Heights, 648
F.Supp. 984, 985 (N.D.Ohio 1986), aff'd 833 F.2d 1012 (6th Cir.
1987) (holding that the alleged property interests at stake,
sick leave and a clothing allowance, were insignificant such
that a predetermination hearing was not required).
B. Defendants’ Participation in the Constitutional Violation
To be held liable under section 1983, Alvarado must plausibly
plead that her purported constitutional injury “resulted from
direct

acts

or

omissions

of

the

official,

or

from

indirect

conduct that amounts to condonation or tacit authorization.’”
Ocasio-Hernández, 640 F.3d at 16 (citing Rodríguez-García, 610
-36-

CIVIL NO. 10-2241 (JAG)

37

F.3d at 768).

Alvarado adequately pled that the Defendants

participated

the

in

adverse

employment

action.

Once

Alicea

assumed the Municipality’s mayorship, Defendants, who are all
members of the NPP, allegedly began to humiliate, harass and
discriminate against Alvarado because of her PDP affiliation.
(Docket No. 1, ¶¶ 13, 26, 33, 37-39, 41). Plaintiffs allege that
Defendants made derogatory and discriminatory comments relating
to Alvarado’s PDP membership and work performance.

(Docket No.

1, ¶ 32).
In

addition,

Alvarado

also

pled

other

facts

regarding

Maldonado’s involvement in the alleged political discrimination.
According

to

the

complaint,

“Plaintiff

has

been

denied

her

breaks, limited her access to her computer and is constantly
being monitored by Defendant Maldonado . . .”
16).

(Docket No. 1, ¶

Moreover, after Alvarado was informed that the five (5)

days she requested as leave to take care of her sick son would
be deducted from her vacation days, Maldonado did not provide an
official explanation even after being asked to do so.

(Docket

No. 1, ¶ 31).
As

for

Alicea,

Alvarado

spoke

to

apparent hostility on July 12, 2010.

him

about

Maldonado’s

(Docket No. 1, ¶ 19).

According to Alvarado, despite knowing about the discrimination,
Alicea did not take action.

Id.

-37-

Rather, Alicea has permitted

CIVIL NO. 10-2241 (JAG)

38

and promoted the discrimination, harassment and undue pressure
asserted against Alvarado.

Id.

Since Alverado complained to

Alicea, Defendants’ discriminatory behavior has escalated.

Id.;

See Ocasio-Hernández, 640 F.3d at 16 ("This standard can be
satisfied

by

conduct

setting

in

motion

a

series

of

acts

by

others which the actor knows or reasonably should know would
cause

others

to

inflict

the

constitutional

citations and quotations omitted).

injury")(internal

Supervisors may be liable

under section 1983 if the supervisor was a direct participant in
the alleged unconstitutional conduct or when “the supervisor's
action or inaction was affirmatively linked to the behavior in
the

sense

that

it

could

be

characterized

as

supervisory

encouragement, condonation or acquiescence or gross negligence
of the supervisor amounting to deliberate indifference." BisbalRamos v. City of Mayaguez, 467 F.3d 16, 24 (1st Cir. 2006).
Alvarado,

therefore,

alleged

sufficient

facts

to

raise

a

plausible inference that Alicea was deliberately indifferent to
Alvarado’s

First

Amendment

right

to

be

free

from

political

discrimination.
Alvarado also alleges that Solivan and Rivera-Mercado violated
the constitution when they altered her duties and assisted in
issuing the purportedly unwarranted admonishment letters.

In

June of 2010, Maldonado and nonparty Rivera assigned Alvarado a

-38-

CIVIL NO. 10-2241 (JAG)

39

task to complete for the FPO.

(Docket No. 1, ¶ 18).

Mercado replaced Rivera in the FPO.

Rivera-

After assuming the post,

Rivera-Mercado told Alvarado that although she was not required
to work for the FPO, she may continue her assignment as long as
her

other

duties

did

not

suffer.

Id.

Rivera-Mercado

told

Alvarado that Alvarado could return the assignment to RiveraMercado’s office should she become overwhelmed with her other
work.

Id.

Despite the fact that Alvarado never refused to do

work for the FPO, on August 18, 2010, Alvarado received a letter
from Solivan, admonishing her for refusing to perform duties
assigned to her.

(Docket No. 1, ¶¶ 21, 22).

Solivan told

Avarado that the admonishment was based on a letter RiveraMercado

sent

to

Maldonado.

Apparently,

Rivera-Mercado

told

Maldonado that Alvarado failed to perform duties for the FPO.
(Docket No. 1, ¶¶ 23-24). The complaint states that Alvarado
never refused work for the FPO, she merely told Rivera-Mercado
about her new duties.
Rivera-Mercado

were

(Docket No. 1, ¶ 21).
plausibly

involved

in

Thus, Solivan and
an

alleged

adverse

employment action.
C. Qualified Immunity
“The qualified immunity doctrine provides public officials an
immunity

from

suit

and

not

a

mere

defense

to

liability.”

Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009)(citing

-39-

CIVIL NO. 10-2241 (JAG)

40

Mitcell v. Forsyth, 472 U.S. 511, 526 (1985)).

To determine

whether a defendant is entitled to qualified immunity, the Court
applies a two-part test.

Id.

“A court must decide: (1) whether

the facts shown by the plaintiff make out a violation of a
constitutional

right;

and

(2)

if

so,

whether

the

right

was

‘clearly established’ at the time of the defendant’s alleged
violation.’”
815-16)).
Court

Id. (citing Pearson v. Callahan, 129 S.Ct. 808,

Here, the first prong is not at issue because the

previously

concluded

that

Alvarado

plausibly

pled

a

political discrimination claim under the First Amendment.

At

issue is the second element, whether the violation was “clearly
established” at the time of the alleged violation.
“A right is ‘clearly established’ if the contours of the right
are sufficiently clear such that ‘a reasonable official would
understand that what he is doing violates that right.’”
Urena

v.

Segarra,

citations
Maldonado

590

omitted).
are

plaintiff’s

not

First

F.3d

18,

29

Alicea,

entitled
Amendment

to

(1st

Cir.

Santos,

to

be

discrimination is clearly established.19
115 F.3d 58, 65-66 (1st Cir. 1997).

2009)(internal

Rivera-Mercado

qualified

right

Costa-

immunity
free

from

and

because

a

political

Roldan v. Cerez-Suarez,

Alvarado alleges that she

was discriminated against because of her PDP membership after

19

The Municipality
immunity.

does

not

allege

that

-40-

they

are

entitled

to

qualified

CIVIL NO. 10-2241 (JAG)

41

Alicea, a member of the NPP, was elected the Municipality’s
mayor in November of 2008.

(Docket No. 1, ¶¶ 11-12).

Because

the right to be free from political discrimination is clearly
established,

Defendants’

request

for

dismissal

on

qualified

immunity grounds is hereby DENIED WITH PREJUDICE.
III. FMLA
Pursuant

to

the

FMLA,

an

“eligible

employee”

may,

under

certain circumstances, be entitled to 12 weeks of unpaid leave
from

work.

Div.,

429

See
F.3d

omitted).
seek

Colburn
325,

330

v.

Parker

(1st

Cir.

Hannifin/Nichols

Portland

2005)(internal

citations

As previously mentioned, an eligible employee may

redress

from

an

eligible

employer

if

the

employer

interferes with, or retaliates against, an employee seeking FMLA
leave.

Roman, 604 F.3d at 40 (internal citations omitted).

Alicea,

Maldonado,

Rivera-Mercado

and

Solivan

argue

that

Alvarado’s FMLA action must be dismissed because they are the
Municipality’s employees, not Alvarado’s employer.
17, p. 24).

(Docket No.

The Municipality contends that Alvarado did not

state a claim under the FMLA because employers are permitted to
“substitute any of the accrued paid vacation leave for any leave
provided under the FMLA.”

(Docket No. 18, p. 19).

1. Supervisor Liability under the FMLA

-41-

CIVIL NO. 10-2241 (JAG)
Neither

the

42

Supreme

Court

nor

the

First

Circuit

Court

of

Appeals have addressed whether an employee’s supervisors may be
personally liable under the FMLA.

See Mason v. Mass. Dep’t of

Envtl.

360

Prot.,

774

F.Supp.2d

349,

(D.

Mass.

2011).

The

Third, Fifth and Eighth Circuits comprise the majority approach
and recognize that a supervisor may be held liable under the
FMLA. See Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667
F.3d 408 (3d Cir. 2012)(citing Modica v. Taylor, 465 F.3d 174,
184 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th
Cir. 2002)).
Sixth

and

In contrast, the minority approach adopted by the
Eleventh

Circuits

liability under the FMLA.
(6th Cir. 2003);

do

not

recognize

supervisory

Mitchell v. Chapman, 343 F.3d 811

Wascura v. Carver, 169 F.3d 683 (11th Cir.

1999).
As explained by the court in Mason, the FMLA’s plain meaning
supports
F.Supp.2d

imposing
at

employers.

liability

363.
Section

The

supervisors.20

on

FMLA

only

2611(4)(A)(i)

attaches
of

the

Mason,
liability

FMLA

defines

774
onto
an

employer as: “any person engaged in commerce or in any industry
or

activity

employees

for

affecting
each

commerce

working

day

who

employees

during

each

of

50
20

or

more

or

more

calendar workweeks in the current or preceding calendar year.”
20

The Mason court also rebutted the three arguments set forth by the Sixth
Circuit Court of Appeals in Mitchell, 343 F.3d 811.
The Court finds the
Mason court’s reasoning compelling.
-42-

CIVIL NO. 10-2241 (JAG)
In

section

43

2611(4)(A)(ii)(I),

the

definition

extends

to

“any

person who acts, directly or indirectly, in the interest of an
employer to any of the employees of such employer.”

Section

2611(4)(A)(iii) states that public agencies are also considered
employers.

Thus, the definition of employer includes public

agency employees, such as Alicea, Maldonado, Rivera-Mercado and
Solivan,

who

F.Supp.2d

act

at

363.

in

their

employer’s

Accordingly,

the

interest.
Court

Mason,

agrees

with

774
the

majority approach: Alicea, Maldonado, Rivera-Mercado and Solivan
may be considered employers that may be held liable under the
FMLA.

Id.
2. Substitution of Vacation Leave for FMLA Leave

Defendants argue that they may not be held liable under the
FMLA because Defendants were permitted to deduct the five (5)
days Alvarado was absent from work to tend to her son from
Alvarado’s accrued vacation days.

(Docket No. 18, p. 19).

The

FMLA provides that “an employer may require the employee, to
substitute

any

of

the

accrued

paid

vacation

leave,

leave, or family leave . . .” for FMLA leave.
2612(D)(2)(A).

personal

29 U.S.C. §

Alvarado’s complaint does not indicate whether,

at the time of her son’s emergency, Alvarado had as many as five
(5) unused vacation days.

Therefore, the Court is unable to

dismiss Alvarado’s FMLA claim because the Court is unable to

-43-

CIVIL NO. 10-2241 (JAG)

44

determine that Defendants lawfully substituted FMLA leave for
vacation leave.

Whether Defendants’ conduct was lawful will be

addressed at the summary judgment stage when the parties are
permitted to submit evidence extrinsic to the complaint.
IV.

Commonwealth of Puerto Rico Law

Plaintiffs

invoke

the

Court’s

supplemental

jurisdiction

to

bring state law claims under: Article II, section 1, 4, 6 and 7
of the Constitution of Puerto Rico; Public Personnel Laws of
Puerto Rico;21 Article 1802; Article 1803; Law 100; and Law 184.
Defendants argue that Plaintiffs fail to state a cause of action
under Law 100, Article 1802 and Article 1803.

(Docket No. 17,

pp. 26-29; Docket No. 18, pp. 22-24)
A. Law 100
Law 100 makes it unlawful for an employer to discriminate
against

an

employee

political affiliation.

because

of,

inter

alia,

the

29 P.R. Laws Ann. § 146.

employee’s
Defendants

argue that Plaintiffs’ claims brought under Law 100 must be
dismissed because: (1) Plaintiffs failed to establish a prima
facie case of political discrimination under either the First,
Fourteenth or Fifteenth Amendments to the Constitution;

(2) Law

100 is not applicable to the Municipality; and (3) there is no
21

The Court is unaware of any Puerto Rico statute entitled “Public Personnel
Laws of Puerto Rico. Plaintiffs do not provide a citation to that statute.
-44-

CIVIL NO. 10-2241 (JAG)

45

individual liability under Law 100.
Docket No. 18, pp. 23-24).

(Docket No. 17, pp. 27-28;

Defendants’ first argument fails

because the Court previously concluded that Alvarado stated a
claim under the First Amendment.

Although Plaintiffs are unable

to

Defendants

state

a

claim

against

the

in

their

official

capacities, Alvarado is able to state a claim against Alicea,
Maldonado,

Rivera-Mercado

and

Solivan

in

their

individual

capacities.
As

a

preliminary

matter,

Ramirez’s

and

the

Conjugal

Partnership’s action must be dismissed because they are not the
Municipality’s

employees.

See

Santini

Rivera

v.

Inc., 137 D.P.R. 1, 1994 P.R. Eng. 909 (1994).
concerned

exclusively

relationship;

Law

100

with

labor

and

“has

nothing

to

the
do

Serv.

Air,

Law 100 is

employee-employer
.

.

.

with

third

persons or with other persons that are not employees.”

Id.

Thus, an employee’s spouse and the conjugal partnership formed
between them do not have standing to assert a claim under Law
100. See Id.
Ramirez

does

Because Ramirez was not Defendants’ employee,
not

assert

a

claim

under

Law

100.

Id.

Accordingly, Ramirez and the Conjugal Partnership’s claim under
Law 100 are DISMISSED WITH PREJUDICE.
Unlike
employed

Ramirez
by

the

and

the

Conjugal

Municipality.

-45-

Partnership,

(Docket

No.

1,

Alvarado
¶¶

3,

is

10).

CIVIL NO. 10-2241 (JAG)

46

Alvarado brought suit against the Municipality and several of
the

Municipality’s

employees

because

they

allegedly

discriminated against Alvarado while she was working for the
Municipality.

(see Docket No. 1).

Law 100, however, does not

apply to municipalities and municipal employees.
v.

Aponte-Rogue,

873

F.2d

432,

436

(1st

Cir.

Marin-Piazza
1989);

Pérez-

González v. Municipality of Añasco, 769 F.Supp.2d 52, 65 (D.P.R.
2010)(internal

citations

omitted).

Accordingly,

Alvarado’s

cause of action, under Law 100, against Defendants in their
official capacities is hereby DISMISSED.
Although Alvarado is unable to state a cause of action
against Defendants in their official capacities, Law 100 permits
claims against a public agency’s employees in their personal
capacities.

Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 240 (1st

Cir. 2010)(citing Rodriguez-Narvaez v. Pereira, 552 F.Supp.2d
211, 217-18 (D.P.R. 2007); Santiago-Díaz v. Rivera-Rivera, No.
10-1749, 2011 WL 2898964, at *6 (D.P.R. July 15, 2011)(internal
citations omitted).

Accordingly, Alvarado’s claim, pursuant to

Law 100, against Alicea, Alvarado, Rivera-Mercado and Solivan in
their personal capacities survives.
B. Article 1802 and 1803
Pursuant to Article 1802 persons are obligated to pay damages
when

“by

an

act

or

omission

[they]
-46-

cause

damage

to

another

CIVIL NO. 10-2241 (JAG)

47

through fault or negligence.”

P.R. Laws Ann. Tit. 31, § 5141.

Article 1803 provides an exhaustive list of circumstances in
which a party, such as an employer, may be vicariously liable
for the torts committed by another party.
31 § 5142;

P.R. Laws Ann. tit.

Vernent v. Torres, 740 F.Supp.2d 280, 286-87 (D.P.R.

Sept. 28, 2010)(internal citations omitted).

Defendants posit

that Plaintiffs’ Article 1802 claim must be dismissed because
Plaintiffs’

Article

1802

claim

and

Law

100

claim

overlap.

(Docket No. 17, p. 27; Docket No. 18, p. 23). Defendants also
state,

in

conclusory

fashion,

that

Plaintiffs’

claim

brought

under Article 1803 must be dismissed because “that statute is
inapplicable to appearing defendants.” (Docket No. 17, p. 27).
Alvarado alleges that she was discriminated against because
of her PDP affiliation.
41).

Since

political

the

(Docket No. 1, ¶¶ 13, 26, 33, 37-39,

gravamen

discrimination

of

Alvarado’s

pursuant

to

state

Law

100,

law

claim

is

Alvarado

is

precluded from also bringing suit under Article 1802 and Article
1803.

Santiago-Díaz,

2011

WL

2898964,

at

*6;

Gonzalez

v.

Torres, No. 09-1850, 2011 WL 4529924, at *25 (D.P.R. July 1,
2011)(report and recommendation adopted in part and rejected in
part by González Santos v. Torres Maldonado, No. 09-1850, 2011
WL

4498950,

at

*2

(D.P.R.

Sept.

-47-

28,

2011).

Accordingly,

CIVIL NO. 10-2241 (JAG)

48

Alavardo’s claim brought under Article 1802 and Article 1803 is
hereby DISMISSED WITH PREJUDICE.
Nevertheless,
pursue

Ramirez

derivative

and

claims

the

under

Conjugal
Article

Partnership

1802

may

1803.22

and

Gonzalez-Figueroa v. J.C. Penny P.R., Inc., 568 F.3d 313, 318
(1st Cir. 2009)(internal citations omitted);
767

F.

gravamen

Supp.
of

2d

at

320

Ramirez’s

(internal

suit

isn’t

Rivera-Cartagena,

citations
that

he

omitted).
was

subject

The
to

political discrimination but he suffered an injury derivative of
the discrimination suffered by his wife.
43).

(Docket No. 1, ¶¶ 42-

Accordingly, Ramirez’s claim under Article 1802 does not

overlap with Law 100 and should not be dismissed.

Santiago-

Díaz, 2011 WL 2898964, at *6.
CONCLUSION
For the reasons stated above, Alicea, Solivan, Rivera-Mercado,
Maldonado’s

motion

to

dismiss

22

(Docket

No.

17)

and

the

The Court notes that, unlike an action brought under section 1983, a spouse
and conjugal partnership may have standing under Article 1802 and Article
1803, even if they were not the subject of the alleged underlying unlawful
conduct. Rodriguez-Rios v. Cordero, 138 F.3d 22, 23 (1st Cir. 1998)(internal
citations omitted); Rivera-Caragena,767 F.Supp.2d at 320 (internal citations
omitted). The complaint states that Defendants’ discriminatory acts towards
Alvarado also caused injury to Ramirez and the Conjugal Partnership. (Docket
No. 1, ¶ 42). Ramirez suffered from anxiety after watching the deterioration
of Alvarado’s mental health.
(Docket No. 1, ¶ 43).
Thus, Ramirez and the
Conjugal Partnership have standing to bring suit under Article 1802 and
Article 1803.

-48-

CIVIL NO. 10-2241 (JAG)
Municipality’s

motion

49
to

dismiss

(Docket

No.

18)

are

hereby

GRANTED IN PART and DENIED IN PART.
In short, the claims remaining in this case are as follows:
(1) Alvarado’s First Amendment claim pursuant to section 1983;
(2)

Alvarado’s

FMLA

claim;

(3)

Alvarado’s

Law

100

claim

against Alicea, Maldonado, Rivera-Mercado and Solivan in their
personal

capacities;

and

(4)

Ramirez’s

and

the

Conjugal

Partnership’s derivative Article 1802 and Article 1803 claims.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of March, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge

-49-