Franco-Figueroa et al v. State Insurance Fund et al

Filing 145

OPINION AND ORDER GRANTING 89 MOTION for Summary Judgment filed by State Insurance Fund, Zoime Alvarez-Rubio, Saul Rivera-Rivera. Plaintiffs' federal law claims are DISMISSED WITH PREJUDICE. Plaintiffs' Commonwealth law claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge Jose A Fuste on 8/14/2013.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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MANUEL FRANCO-FIGUEROA, et. al.,
Plaintiffs,

Civil No. 11-1025 (JAF)

v.
STATE INSURANCE FUND, et. al.,
Defendants.
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OPINION AND ORDER

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We must decide whether an employee’s evidence of discrimination is sufficient to

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withstand his employer’s motion for summary judgment in this political discrimination

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case.
I.

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Because we must view all facts in the light most favorable to the non-moving

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party when considering a summary judgment motion, to the extent that any facts are

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disputed, the facts set forth below represent Plaintiffs’ version of the events at issue.

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However,

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where Plaintiffs’ asserted facts do not properly comply with Local Rule 56(c) and (e), we

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deem Defendants’ properly-supported statements as admitted. See Cosme-Rosado v.

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Serrano-Rodriguez, 360 F.3d 42, 45 (1st Cir. 2004) (affirming district court’s decision to

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deem moving party's statements of facts admitted if opposing party fails to controvert

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properly).

Background

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Plaintiffs were employees of Puerto Rico’s State Insurance Fund Corporation

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(“SIFC”), an entity of the Commonwealth of Puerto Rico responsible for administering

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the local workers’ compensation program. (Docket Nos. 1 at 10 and 109 at 2.) Plaintiffs’

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positions were annulled, following an audit commissioned by codefendants Zoimé

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Alvarez–Rubio, Administrator of the SIFC, and Sául Rivera, formerly the Associate

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Director of Human Resources at SIFC. (Id.at 9-10.) The audit reviewed 3,835 files and

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showed that 232 personnel appointments, including Plaintiffs, were made through closed

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or internal SIFC recruitment announcements, in violation of Article 14 of the SIFC’s

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Personnel Regulations requiring open competition. (Docket No. 109 at 7.) As a result,

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Alvarez-Rubio ordered the annulment of all the improper personnel transactions.

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(Docket No. 89-1 at 5.). She made no exceptions. (Id.) Alvarez-Rubio sent a letter to

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each affected employee, communicating her intent to annul their appointments. All of

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the letters explained the audit findings, and the policy that the improper appointments

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violated. Plaintiffs later appealed through the Commonwealth judicial system. The

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Puerto Rico Supreme Court confirmed that the promotions violated Commonwealth law

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and that the annulments were legal.

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Corporation, Offic. Trans. CC-2011-1051 (March 19, 2013).

Gonzalez-Segarra v. State Insurance Fund

II.

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The defendants are entitled to summary judgment on a claim if they can show that

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there is no genuine dispute over the material facts underlying the claim. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). We must decide whether a reasonable jury could find

Legal Standard

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for plaintiffs on each of their claims when all reasonable inferences from the evidence are

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drawn in their favor. See Scott v. Harris, 550 U.S. 372, 380 (2007).
III.

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Section 1983 creates a cause of action against those who, acting under color of

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state law, violate a plaintiff’s constitutional or federal rights. See 42 U.S.C. § 1983;

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Maine v. Thiboutot, 448 U.S. 1, 4(1980); see, e.g., Barrios-Velázquez v. Asociación de

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Empleados del Estado Libre Asociado de P.R., 84 F.3d 487, 491 (1st Cir. 1996). Here,

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Plaintiffs assert that there are triable claims, including violations of the federal

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constitution and Puerto Rico law. All of these claims lack merit.

Discussion

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Qualified immunity bars Plaintiffs’ political affiliation discrimination claim

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against Defendants. To determine whether qualified immunity applies, a court must

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decide whether (1) the facts that a plaintiff has alleged or shown make out a violation of a

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constitutional right, and (2) the right at issue was “clearly established” at the time of

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defendant's alleged misconduct.

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(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Government employees who do not

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occupy policy-making positions of trust and confidence are protected against adverse

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employment actions based on their political affiliation. Peguero-Moronta v. Santiago,

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464 F.3d 29, 45 (1st Cir. 2006).

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Pearson v. Callahan, 555 U.S. 223, 230-33 (2009)

Thus, the sole question is whether Plaintiffs have shown a violation of their

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constitutional rights.

They must, among other things, present evidence: (1) that

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Defendants knew of their political affiliation, and (2) that their political affiliation was a

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“substantial” or “motivating” factor in Defendants’ decision to terminate Plaintiffs. Id. at

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48; Gonzalez-De-Blasini v. Family Department, 377 F.3d 81, 85 (1st Cir. 2004) (citing

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Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Plaintiffs

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have failed to present evidence of either requirement.

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A.

Knowledge of Plaintiffs’ Political Affiliation

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Plaintiffs did not make out a prim-facie case of discrimination, because they

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presented no evidence that Defendants knew or had reason to know that Plaintiffs were

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members of the PDP. Welch v. Ciampa,542 F.3d 927, 938–39 (1st Cir.2008) (stating

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that the plaintiff must show the defendant has knowledge of her political affiliation to

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establish a prima-face case of political discrimination) (quoting Martinez–Vélez v. Rey–

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Hernández, 506 F.3d 32, 39 (1st Cir. 2007). Alvarez-Rubio testified in her deposition

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that she did not have any knowledge of the Plaintiffs’ political affiliations prior to the

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complaint's filing. (Docket No. 89-2 at 12). She answered the question directly:
Q. Do you know the political affiliation of Zaida from the
hospital?

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(Docket No. 99-1 at 90-1.) Plaintiffs either admit that they cannot affirm that Alvarez-

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Rubio knows their political affiliations or that they have never talked with her regarding

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their political affiliations.

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knowledge of Plaintiffs’ political affiliation prior to receiving the complaint. (Docket

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No. 89-10 at 13.)

A. No. No, and I refer to the same answer that I gave you at
the beginning that I do not know the political affiliation of
any of my employees.

(Docket No. 109 at 18.)

Rivera, as well, did not have

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In response to this evidence from the Defendants, Plaintiffs point only to a series

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of spreadsheets included in the audit report that detail those employees whose promotions

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were annulled. (Docket No. 89-4 at 18-34.) The spreadsheets include: The names of

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each employee; their job title and location prior to their promotion; their salary; their

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position’s job announcement number; and the effective date of their promotion. (Id.)

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Despite Plaintiffs’ suggestion otherwise, nowhere does the spreadsheet include

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information regarding political affiliation.

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Plaintiffs also contend that they were well-known and open supporters of the PDP

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and that their political affiliation was common knowledge at the time of the audit and the

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subsequent annulments. (Docket No. 1 at 3-8.) We find no support for this assertion

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adequate to survive summary judgment. While it is true that some of the Plaintiffs have

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occupied municipal office or trust positions at SIFC or other agencies during PDP

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administrations, (Docket No. 89-1 at 14, 18, 36), that fact is not sufficient to establish the

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Defendants were aware of the Plaintiffs' political affiliation. “Evidence that a plaintiff

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held a trust position under a previous administration of opposing political affiliation, ...

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may not suffice to show that a challenged employment action was premised upon

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political affiliation.” Ramos-Borges v. Puerto Rico Health Department, 740 F.Supp.2d

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262, 277 (D.P.R. 2010) (quoting Febus-Cruz v. Sauri-Santiago, 652 F.Supp.2d 140, 149

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(D.P.R. 2009)). Here, such evidence, even allowing for its tenuousness, is insufficient.

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Absent this complaint, the Plaintiffs claim their political activities and, in some cases,

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service in elected office, was generally known to Defendants. But those activities took

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place away from SIFC premises and after working hours—in some cases, very long ago.

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(Docket No. 89-1 at 14, 17, 19, 21, 32, 36, 43, 45, 47, 56.)

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Defendants cannot be liable for annulling Plaintiffs’ promotions on the basis of

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their PDP affiliation unless Defendants knew or had reason to know Plaintiffs were

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members of the PDP.

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circumstantial evidence of unfair treatment with evidence that Defendants’ political

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affiliation differs from their own. Padilla-Garcia v. Guillermo-Rodriguez, 212 F.3d 69,

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74 (1st Cir. 2000). Therefore, Plaintiffs’ political discrimination claim fails on this most

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basic requirement: That the Defendants knew of Plaintiffs’ political affiliation.

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B.

Plaintiffs need to provide more than the juxtaposition of

“Substantial” or “Motivating Factor”

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Assuming arguendo that Plaintiffs had provided evidence that Defendants knew or

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had reason to know they belonged to the PDP, Plaintiffs still needed to show that their

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PDP affiliation was a “substantial” or “motivating” factor in the decision to annul their

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promotions. Mt. Healthy, 429 U.S. at 287; see Vazquez-Valentin v. Santiago-Diaz, 385

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F.3d 23, 30 (Plaintiff bears burden of producing sufficient evidence that political

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affiliation was a substantial or motivating factor in challenged employment action.)

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Plaintiffs did not.

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To show that their party affiliation was a factor in the annulment of their

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promotions, Plaintiffs argue that: Alvarez–Rubio requested the audit coincide with the

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previous PDP administration’s years in office; there was a heavily politicized

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environment at SIFC following the change in administrations; the NPP affiliates included

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in the annulments were punished for their support of a rival NPP gubernatorial

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candidate—otherwise, the annulments had a disproportionate impact on PDP affiliates.

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Looking at this evidence individually or together, nothing suggests that Plaintiffs’ PDP

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affiliation was a “substantial” or “motivating” factor in the annulment of their

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promotions. Defendants provided evidence indicating that Plaintiffs would have had

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their promotions annulled because the promotions were made in clear violation of

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Articles 2 and 14.1 of the SIFC Employee Manual.

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1.

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Plaintiffs infer that Alvarez-Rubio selected the time period for the audit because it

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Time Frame of the Audit

would disproportionately target PDP employees.

(Docket Nos. 1 at 34-5.)

Their

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argument rests on the implied supposition that Alvarez–Rubio ordered a review of all

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personnel transactions that occurred between 2001 and 2008—or the duration the

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outgoing PDP administration was in office—solely for the purposes of rooting out

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promotions given to PDP affiliates. (Docket No. 98 at 8.)

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However, the evidence in the record supports Defendants’ contention that PDP

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affiliation played no role—let alone a substantial or motivating one—in the time frame

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selected for the audit. The time frame chosen merely corresponded to the review of the

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personnel files of all active employees at the time. (Docket No. 89-1 at 4.) Indeed,

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between 2001 and 2008 no comprehensive evaluation was done to determine whether

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personnel transactions, including promotions, were compliant with SIFC regulations and

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Commonwealth law. (Docket No. 109 at 7.) As the highest executive officer of the

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SIFC, Alvarez–Rubio’s job required her to administer the agency’s work force. (Id. at 2.)

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The mere fact that she asked that the agency determine if it was in compliance with its

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own regulations does not give rise to an inference of discrimination: Quite the opposite.

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Bending the rules for political advantage might be sufficient grounds for inferring

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discriminatory intent, but enforcing the rules for all employees is not.

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2.

Politically-charged Environment

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Plaintiffs claim that there was a highly-charged political atmosphere at SIFC

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following the November 2008 elections. (Docket No. 98 at 6.) They point to one

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incident in particular where a group of employees, waving NPP flags in the lobby of an

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SIFC regional office, yelled at PDP employees that “you are going out” and “this is

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revenge for all that you fired.” Relying on Anthony v. Sundlun, 952 F.2d 603 (1st 1991),

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Plaintiffs suggest that the charged atmosphere may be probative of discriminatory

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animus, especially because the Defendants are from the opposing political faction. (Id.)

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Sometimes, “[e]vidence of a highly-charged political environment coupled with

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the parties’ competing political persuasions may be sufficient to show discriminatory

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animus, especially in an instance where a plaintiff was a conspicuous target for political

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discrimination.” Rodríguez–Ríos v. Cordero, 138 F.3d 22, 24 (1st Cir. 1998). Such

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evidence, however, is not sufficient here. Rather, in this case, government officials

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enforced the law (as the Commonwealth Supreme Court has agreed it should be

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interpreted) against all employees, including members of both parties, unaffiliated

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individuals, and employees who were themselves conducting the review. Nothing about

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those facts permits an inference of animus.

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3.

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The Audit’s Disproportionate Impact on PDP Affiliates and the
Inclusion of NPP Affiliates

Plaintiffs claim the audit had a disproportionate impact on PDP affiliates. (Docket

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No. 99 at 8.). Plaintiffs further assert that NPP affiliates were only included among those

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whose promotions were annulled because they openly favored Governor Luis Fortuño’s

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rival in the NPP primary election. (Docket No. 1 at 12.)

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Although NPP affiliates commissioned it, the audit did not merely target PDP

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employees. See Soto-Padro v. Public Bldgs. Authority, 675 F.3d 1, 2 (1st Cir. 2012) (“a

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reshuffling of positions affects people, and the people affected included NPP and PDP

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sympathizers”).

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members of the PDP.

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compliance with SIFC personnel regulations and Commonwealth law affected members

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of the PDP and NPP alike.

Plaintiffs could not provide evidence that the audit only impacted
Instead, the summary-judgment submissions here show that

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In fact, the audit revealed that even Rivera, the audit director and an affiliate of the

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NPP, had received an appointment to a career position that violated merit principles and

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notice provisions. (Id. at 5-6.) His appointment was annulled. (Id.) All told, ten

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employees affiliated with the NPP had their appointments or promotions annulled.

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(Docket No. 109 at 11.) Additionally, eight employees unaffiliated with either the PDP

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or the NPP had their promotions annulled. (Id.)

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The Supreme Court of Puerto Rico independently concluded that the audit

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revealed real violations of law that required the improper promotions to be annulled. The

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Court held that the internally-posted promotions “violated the SIFC Personnel

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Regulations and contravened the merit principle.” Wanda I. Gonzalez-Segarra v. State

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Insurance Fund Corporation, P.R. Offic. Trans. CC-2011-1051.

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postings guarantee “that appointments and promotions were based in merit and not

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favoritism" and, here, no circumstances existed to allow for “sidestep[ping] the open

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competition mechanism.”

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occasions that the merit principle protects the public interest and affirms the primacy of

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equal treatment in the selection and promotion of civil servants. See Rodriguez v. Banco

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Gubernamental de Formento para Puerto Rico, 151 D.P.R. 383, 410.

Id.

Moreover, outside

The Puerto Rico Supreme Court has held on many

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Plaintiffs maintain that the inclusion of NPP affiliates and unaligned employees

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among those whose promotions were annulled was purely pretextual but that the audit

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had a disproportionate impact on PDP affiliated employees. While “we recognize that a

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prima facie case for political discrimination may be built on circumstantial evidence,”

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Plaintiffs have not supplied “the specific facts necessary to take the asserted claim out of

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the realm of speculative, general allegations.” Kauffman v. P.R. Tel. Co., 841 F.2d 1169,

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1173 (1st Cir.1988). Moreover, the mere fact that the uniformly-applied audit had a

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disproportionate impact on PDP affiliates does not prove Defendants improperly targeted

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Plaintiffs. Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 140 (1st Cir. 2004) (“If

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uniformly applied personnel practices, predicated on legitimate reasons, result in

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terminations, those terminations are not unconstitutional because those affiliated with one

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political party are disproportionately impacted.”).

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The Mt. Healthy defense deals with employment actions driven by “mixed

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motives,” where both “lawful” and “unlawful” reasons justify an adverse employment

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action. The defense provides that “if the lawful reason alone would have sufficed to

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justify the [action],” then the employee cannot prevail. McKennon v. Nashville Banner

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Pub. Co., 513 U.S. 352, 359 (1995). In this context, that means a plaintiff cannot prove

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impermissible political discrimination where the Defendants would have taken the same

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action anyway based on a legitimate reason. Nereida–Gonzalez v. Tirado–Delgado, 990

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F.2d 701, 706 n. 4 (1st 1993).

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Defendants would have reclassified Plaintiffs’ positions regardless of any political

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considerations. So, even if the Defendants had mixed motives for reclassifying Plaintiffs'

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positions, Defendants have sufficiently established a Mt. Healthy defense that the

That is the situation here: The record shows that

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Plaintiffs have not been able to rebut.

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C.

Plaintiffs’ Commonwealth Claims

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Plaintiffs allege violations of rights afforded by the Puerto Rico Civil Code.

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(Docket No. 1 at 25-7.) Specifically, Plaintiffs allege violations of Law 100 and Articles

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1802 and 1803 of the Puerto Rico Civil Code, and violations of Article II, Sections One,

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Four, and Six of the Constitution of Puerto Rico. (Id.) The complaint does not make

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clear what action constitutes the basis for these violations. Plaintiffs are alleging tort

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violations under Article 1802 of the Puerto Rico Civil Code. (Docket No. 68 at 26-27.)

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We have discretion to decline supplemental jurisdiction over the remaining

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Commonwealth law claims, since we have dismissed all of the claims over which we

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have original jurisdiction. See 28 U.S.C. § 1367(c)(3); see also United Mine Workers v.

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Gibbs, 383 U.S. 715, 726 (1966) (“if the federal law claims are dismissed before trial …

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the state claims should be dismissed as well).

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§ 1367(c), we must consider the issues of “judicial economy, convenience, fairness, and

In exercising our discretion under

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comity.” Che v. Massachusetts Bay Transp. Authority, 342 F.3d 31, 37 (1st Cir. 2003).

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Having considered these factors, we decline to exercise supplemental jurisdiction over

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Plaintiffs’ Commonwealth law claims and we dismiss them without prejudice.

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IV.
Conclusion
For the foregoing reasons, Defendants’ summary judgment motion, (Docket
No. 89), is GRANTED.

Plaintiffs’ federal law claims are DISMISSED WITH

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PREJUDICE. Plaintiffs’ Commonwealth law claims are DISMISSED WITHOUT

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PREJUDICE.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 14th day of August, 2013.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE