Vargas-Feliciano et al v. Rivera-Sanchez et al
Filing
50
ORDER granting in part and denying in part 26 Motion to Dismiss. Signed by Judge Jay A Garcia-Gregory on 9/26/2012. (ASJ)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ZUHAY VARGAS FELICIANO, et
al.,
CIVIL NO. 11-1672 (JAG)
Plaintiffs,
v.
JESUS RIVERA-SÁNCHEZ, et al.,
Defendants.
OPINION AND ORDER
GARCIA-GREGORY, D.J.
This is a civil rights action brought under 42 U.S.C. § 1983
(“section 1983") and various Commonwealth of Puerto Rico laws.
(Docket No. 33 at ¶¶ 1, 44-48).
Popular Democratic Party (“PDP”)
member Zuhay Vargas Feliciano (“Vargas”), her spouse Orlando Torres
Morning (“Torres”) and the conjugal partnership established between
them
(the
“Conjugal
Partnership”)(collectively,
“Plaintiffs”),
bring suit against New Progressive Party (“NPP”) members Jesús
Rivera Sánchez (“Rivera”), Carlos Chardón (“Chardón”), Brenda A.
Virella Crespo Burset (“Virella”) and Ana Nilsa Méndez Barreto
(“Méndez”)(collectively, “Defendants”).
Plaintiffs allege that
Defendants violated Vargas’ rights when Defendants fired her from
her job with the Department of Education (“DOE”), neglected to
inform her that she was entitled to be reinstated and failed to
reinstate her to her position with the DOE because of her PDP
-1-
affiliation.
(Docket No. 33 at ¶¶ 1, 24, 30, 44).
Before the Court is Defendants’ motion to dismiss, Plaintiffs’
response, Defendants’ reply and Plaintiffs’ sur-reply.
(Docket
Nos. 26, 34, 45, 48). For the reasons discussed below, Defendants’
motion is hereby GRANTED in part and DENIED in part.
BACKGROUND
The facts contained in the complaint are as follows:
Vargas, a resident of Isabela, Puerto Rico, is a PDP member.
(Docket No. 33, ¶¶ 2, 25).
Vargas participated in a number of PDP
activities: she worked with Isbela’s PDP “barrio leader” and is
known as the PDP representative in last election’s electoral
college.
Id.
On September 3, 2008, Vargas began working as a Nutritional
Service Worker in the DOE’s Child Nutrition Program (the “Child
Nutrition Program”).
(Docket No. 33, ¶ 13).
Vargas’ duties
included preparing and serving meals, washing and sanitizing trays
and cutlery, and cleaning the kitchen and lunch room.
33, ¶ 15).
(Docket No.
Vargas received positive feedback from her supervisor,
non-party Sonia Calero Del Valle (“Calero”).
(Docket No. 33, ¶
16). On March 18, 2009, Vargas “approved her probationary period.”
Id.
On May 29, 2009, Chardón sent Vargas a letter “indicating”
that Vargas’ appointment would not be renewed pursuant to Puerto
Rico’s economic austerity plan, Law No. 7 of March 9, 2009 (“Law
-2-
7"), P.R. Laws Ann. tit. 3, § 8791 et seq.
(Docket No. 33, ¶ 18).
Calero told Vargas that she should keep her ears open when school
resumes because the Child Nutrition Program required additional
personnel.
(Docket No. 33, ¶ 19). Subsequently, Law 7 was amended
such that lunchroom employees were retroactively exempted from Law
7's layoff provisions. P.R. Laws Ann. tit. 3, § 8797(d)(“Law 37").
Nevertheless, according to Vargas, Defendants failed to inform her
that she had the right to be reinstated to her position because
they earmarked the vacant positions for NPP supporters.
(Docket
No. 33, ¶¶ 23-24).
Vargas heard that the DOE was interviewing candidates for
positions with the Child Nutrition Program. (Docket No. 33, ¶ 29).
On August 9, 2009, Vargas arrived at the interview site and handed
her
dismissal
letter,
personnel
evaluation
and
completed
application to “Méndez and/or her personnel” and waited to be
interviewed.
(Docket No. 33, ¶¶ 31-32).
Vargas approached Méndez
and told her that she was qualified and knew about the vacancies
but still was not interviewed.
responded:
“let
instructions.”
me
see,
(Docket No. 33, ¶ 32).
because
I
(Docket No. 33, ¶ 32).
have
not
received
Méndez
those
Fifteen people, a majority
of which Vargas believes to be NPP members, were selected to fill
the vacancies.
(Docket No. 33, ¶ 33-35).
(See Docket No. 33, ¶¶ 31-36).
Vargas was not chosen.
According to Plaintiffs, either
Calero or Yaritza Vargas, the Director of the Child Nutrition
-3-
Program in the area, said that “this is all politics. They knew
they had to choose those that were taken out.”
(Docket No. 33, ¶
36).
On August 14, 2009, Vargas wrote Chardón and the “Challenge
Committee” questioning the legality of the hirings.
(Docket No.
33, ¶ 37).
Sometime in
Vargas did not receive a response.
Id.
August of 2009, additional personnel was selected for the Child
Nutrition Program.1
(Docket No. 33, ¶ 38).
Vargas was neither
notified about the job openings nor selected for a position.
Id.
STANDARD OF LAW
Under Fed. R. Civ. P. 12(b)(6), a defendant may move to
dismiss an action for failure to state a claim upon which relief
can be granted.
To overcome a Rule 12(b)(6) motion, the complaint
must plead sufficient facts “to state a claim to relief that is
plausible on its face.”
570 (2007);
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
see 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.”
1
It is unclear whether the additional hirings were made
before or after Vargas wrote Chardón and the Challenge Committee.
-4-
Ocasio-Hernández, 640 F.3d at 12 (internal punctuation omitted).
In this analysis, the remaining non-conclusory factual allegations
must be taken as true, even if 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.”
Id.
In conducting this 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
focuses 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 proceeds in four parts.
In the first part, the
Court addresses whether Torres and the Conjugal Partnership have
standing to bring suit pursuant to section 1983.
Next, the Court
discusses whether Puerto Rico’s notice-of-claim statute and section
1983's statute of limitations bars Plaintiffs’ case.
In the third
part, the Court analyzes whether Defendants are cloaked with
Eleventh Amendment immunity.
Fourth, the Court looks at whether
Plaintiffs state a claim under section 1983 for violations of
Vargas’ rights under the First, Fifth and Fourteenth Amendments to
the Constitution and, if so, whether the Defendants are entitled to
qualified immunity.
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CIVIL NO. 11-1672 (JAG)
I.
Section 1983 Standing
Standing concerns whether the plaintiff is the appropriate
party to bring suit.
734 (2008).
Davis v. Fed. Election Com’n, 554 U.S. 724,
“To qualify for standing, a claimant must present an
injury that is concrete, particularized, and actual or imminent;
fairly traceable to the defendant’s challenged behavior; and likely
to be redressed by a favorable ruling.”
Id. at 733.
Spouses and
conjugal partnerships do not have standing to bring suit under
section 1983 unless the alleged unconstitional conduct was aimed
directly at them or the familial relationship.2
Robles-Vazquez v.
Tirado Garcia, 110 F.3d 204, 206 n. 4 (1st Cir. 1997);
Cotto v.
Municipality of Aibonito, No. 10-2241, 2012 WL 1110177, at *4
(D.P.R. Apr. 2, 2012)(internal citations omitted).
Plaintiffs
unconstitional
do
not
conduct
was
plead
aimed
that
at
Defendants’
Torres,
Partnership, or the familial relationship.
the
alleged
Conjugal
Plaintiffs aver that
Defendants violated Vargas’ rights when Defendants fired her,
neglected to inform her that she was entitled to be reinstated and
failed to reinstate her because of her PDP affiliation.
No. 33 at ¶¶ 1, 24, 30, 44).
(Docket
Accordingly, Torres and the Conjugal
2
Although Defendants only argue that Torres lacks standing
to bring suit under section 1983, the Court considers the
Conjugal Partnership’s standing sua sponte. See Pagan v.
Calderon, 448 F.3d 16, 26 (1st Cir. 2006)(internal citations
omitted).
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CIVIL NO. 11-1672 (JAG)
Partnership’s action brought pursuant to section 1983 is hereby
DISMISSED WITH PREJUDICE.
II.
Eleventh Amendment Immunity
The Supreme Court Government officials sued in their official
capacities for monetary relief are not “persons” under section
1983.
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 123 (1st Cir.
2003)(citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 71
(1989)). In contrast, government officials sued in their official
capacities are not immune from suits for injunctive relief.
Defendants
injunctive
and
Accordingly,
are
sued
in
relief.3
monetary
Plaintiffs’
their
action
official
(Docket
against
Id.
capacities
No.
33
Defendants
for
at
in
13).
their
official capacities for money damages are hereby DISMISSED WITH
PREJUDICE.
Plaintiffs’ suit against Defendants in their official
capacities
for
injunctive
relief
are
not
afforded
Eleventh
Amendment protection and hence survive.
III. Section 1983's Statute of Limitations and Puerto Rico’s
Notice-of-Claim Statute
A.
Section 1983's Statute of Limitations
3
Plaintiffs also bring suit against Defendants in their
personal capacities. (Docket No. 33, ¶¶ 2-7). Government
officials sued in their personal capacities are not entitled to
Eleventh Amendment Immunity. Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682, 687-89 (1949); Kentucky v. Graham,
473 U.S. 159, 167 (1985).
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CIVIL NO. 11-1672 (JAG)
The limitations period in section 1983 suits is borrowed from
state personal injury actions. Benitez-Pons v. Commw. of P.R., 136
F.3d 54, 59 (1st Cir. 1998)(internal citations omitted).
Puerto
Rico law establishes a one year limitations period for personal
injury suits.
Id. (internal citations omitted).
Defendants argue
that Plaintiffs’ section 1983 suit is time-barred because the
instant suit was commenced more than one year after Plaintiffs
requested a voluntary dismissal of an analogous suit brought in
state court.
(Docket No. 25, at 5-6).
The general rule under Puerto Rico law is that commencing an
action tolls the statute of limitations. Rodriguez v. Suzuki Motor
Corp., 570 F.3d 402, 407 (1st Cir. 2009).
If an otherwise timely
action is dismissed with prejudice, the limitations period resets
running from the time of dismissal.
Id.
The complaint states that Plaintiffs filed an analogous suit
against Defendants in Puerto Rico court on October 14, 2009.
(Docket No. 33, ¶ 41).
The complaint also states that Plaintiffs
requested a voluntary dismissal of that action on May 17, 2011.
Id. Plaintiffs commenced the instant action on July 13, 2011, less
than one year after requesting a voluntary dismissal of the Puerto
Rico action.4
(Docket No. 1).
4
Accordingly, the complaint is
Plaintiffs’ original complaint states that they requested
the voluntary dismissal of the Puerto Rico action on May 17,
2010. (Docket No. 1, ¶ 41). Nevertheless, Plaintiffs submitted
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CIVIL NO. 11-1672 (JAG)
timely on its face.
B.
Puerto Rico’s Notice-of-Claim Statute
Defendants argue that Plaintiffs complaint must be dismissed
because Plaintiffs failed to comply with Puerto Rico’s notice-ofclaim statute, Law No. 104 of June 29, 1995, P.R. Laws Ann tit. 32,
§ 3077a (“Law 104").
(Docket No. 26 at 43-45).
Law 104 requires
a plaintiff bringing suit against Puerto Rico to give notice to the
Secretary of Justice within ninety days after the plaintiff becomes
aware of their damages.
P.R. Laws Ann tit. 32, § 3077(c).
Defendants argument does not hold water.
State notice-of-
claim statutes, such as Law 104, are inapplicable to section 1983
actions brought in federal court. See Felder v. Casey, 487 U.S.
131, 140-41 (1988).5
Because Plaintiffs complaint arises under
section 1983, Plaintiffs were not required to comply with Law 104.
Id.
IV.
Section 1983 Liability and Qualified Immunity
To state a claim under section 1983, Vargas must plausibly
plead three elements: (1) Vargas was deprived of a constitutional
right; (2) “a causal connection between [Defendants’ conduct] and
a second amended complaint, which states that Plaintiffs
requested the voluntary dismissal. (Docket No. 33, ¶ 41).
5
In contrast, a plaintiff bringing a state law claim in
federal court must comply with Law 104. See Felder, 487 U.S. at
151.
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CIVIL NO. 11-1672 (JAG)
the
[constitutional]
deprivation”;
and
(3)
action.”6
“state
Sánchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009)(citing
42 U.S.C. § 1983).
At issue is the first and second elements:
whether
caused
Defendants
Vargas
to
be
deprived
of
her
constitutional rights.
A.
Constitutional Violation
Plaintiffs argue that Defendants violated Vargas’ rights under
the First, Fifth and Fourteenth Amendments of the Constitution when
Defendants fired her, neglected to inform her that she was entitled
to be reinstated and failed to reinstate her because of her PDP
affiliation.
(Docket No. 33 at ¶¶ 1, 24, 30, 44).
Each Amendment
will be discussed in turn.
1.
The
First Amendment
First
Amendment
of
the
Constitution
states
that
“[c]ongress shall make no law . . . abridging the freedom of speech
. . . or the right of the people to peaceably assemble . . . .”7
U.S. Const., amend. 1.
The First Amendment grants non-policy
making
the
public
employment
employees
actions
taken
right
as
a
to
result
be
free
of
from
their
adverse
political
6
Torres and the Conjugal partnership also bring suit under
section 1983. Their claims were already dismissed because they
lack standing.
7
The First Amendment applies to Puerto Rico through
incorporation into the Fourteenth Amendment. Ramírez v. Sánchez
Ramos, 438 F.3d 92 n. 1 (1st Cir. 2006).
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CIVIL NO. 11-1672 (JAG)
affiliations.
Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 594
(1st Cir. 2011)(internal citations omitted).
To state a claim for political discrimination, Plaintiffs must
plausibly plead: “[1] that the protagonists are members of opposing
political parties; [2] that the defendant knows of the plaintiff’s
political
affiliation;
[3]
that
an
adverse
employment
action
occurred; and [4] political affiliation was a substantial or
motivating factor behind the adverse action.”
Grajales v. P.R.
Ports Auth., 682 F.3d 40, 46-47 (1st Cir. 2012)(internal citations
omitted). Defendants contend that Plaintiffs insufficiently pleads
that Defendants were aware of Vargas’ PDP affiliation.8
8
(Docket
Defendants also argue that Plaintiffs insufficiently pled
that Defendants’ behavior was motivated by discriminatory animus.
(Docket No. 26, at 10). Defendants reserve three sentences out
of their forty-five page memorandum of law to their position.
(Docket No. 26, at 10). The three sentences are conclusory and
devoid of legal reasoning. See e.g., id. (“Likewise, there is
insufficient factual matter pled in the Complaint to enable a
Court to find that plaintiff’s political affiliation was a
substantial or motivating factor behind the alleged adverse
employment decision.”). A statement that a plaintiff’s complaint
is conclusory is itself conclusory. Accordingly, Defendants
waive their argument. United States v. Zannino, 895 F.2d 1, 17
(1st cir. 1999)(“issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.”).
In any event, Plaintiffs’ complaint adequately pleads that
Vargas’ PDP affiliation was a substantial or motivating factor
for the alleged unconstitional conduct. Of the fifteen people
selected for positions with the Child Nutrition program, a
majority of them were known NPP members. (Docket No. 33, ¶ 3335). Vargas, a PDP member, received positive evaluations for her
work with the Child Nutrition member, but was not chosen for a
position. (Docket No. 33, ¶¶ 16, 31-36). Indeed, either Calero,
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CIVIL NO. 11-1672 (JAG)
No. 26 at 2, 8-10).
To
determine
Plaintiffs decline responding.
whether
the
complaint
plausibly
pleads
the
knowledge element the Court is not limited to allegations directly
addressing Defendants knowledge.
Rather, the Court is required to
evaluate “the cumulative effect” of the pleadings.
P.R. Ports Auth., 682 F.3d at 47.
a “well-known” PDP member.
Grajales v.
Plaintiffs state that Vargas is
(Docket No. 33, ¶ 25).
Vargas works
with the PDP “barrio leader” and participated in a number of PDP
activities.
Id.
The complaint states that Vargas is publicly
known as the PDP representative in last election’s electoral
college.
Id.
Moreover, the majority of people selected to fill
positions with the Child Nutrition Program were known NPP members,
whereas Vargas, who was not selected, was a PDP member.
No. 33, ¶ 31-36).
(Docket
Thus, it is plausible that Defendants knew that
Vargas was a member of the PDP.
As the First Circuit recently
stated, “nothing about the plausibility standard requires a court
to blind itself to what is obvious.”
Grajales is apposite.
Id. at 48.
The plaintiff in Grajales brought suit
alleging that he was discriminated against because of his PDP
affiliation.
Id. at 43.
The district court held that the
plaintiff’s complaint must be dismissed because, inter alia, the
Vargas’ former supervisor or Yaritza, the Director of the Child
Nutrition Program in the area told Vargas that “this is all
politics.” (Docket No. 33, ¶ 36).
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CIVIL NO. 11-1672 (JAG)
plaintiff failed to plead that the defendants were aware of the
plaintiff’s PDP affiliation.
Id. at 44.
of Appeals reversed the district court.
the
complaint
plausibly
stated
The First Circuit Court
The Circuit reasoned that
defendants
awareness
when
the
plaintiff was appointed to a trust position at the defendants place
of employment by a high ranking member of the PDP during a PDP
administration.
Id. at 47.
The allegations in the case at bar are as detailed as those
found sufficient in Grajales.
682 F.3d 40.
Here, like in
Grajales, Plaintiffs bring suit alleging that Defendants fired
Vargas from her job, neglected to inform Vargas that she was
entitled to be reinstated and failed to reinstate Vargas because of
her PDP membership.
Similar to Grajales, Vargas held a prominent
position with the PDP: she was the PDP representative in last
election’s electoral college.
Furthermore, the complaint states
that Vargas, a PDP member, was qualified for the position but was
passed over in favor of NPP members.
(Docket No. 33, ¶ 31-36).
Thus, here, like in Grajales, the cumulative effect of
the
allegations pled in the complaint, coupled with the Courts judicial
experience leads to the conclusion that Plaintiffs plausibly plead
that Defendants were aware of Plaintiffs’ PDP membership.
The complaint also contains additional information indicating
that Chardón knew Vargas’ PDP affiliation.
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Plaintiffs aver that
CIVIL NO. 11-1672 (JAG)
Vargas wrote Chardón on August 14, 2009 challenging the lawfulness
of Defendants actions.
the
alleged
adverse
According to Vargas, she told Chardón that
employment
political considerations.
decisions
were
motivated
(Docket No. 33, ¶ 37).
by
Thus, it is
plausible that Chardón knew of Vargas’ political affiliation when
Vargas purportedly told him that she was being discriminated
against because of it.
See Cotto v. Municipality of Aibonito, No.
10-2241, 2012 WL 1110177, *7 (D.P.R. Apr. 2, 2012).
Accordingly, Plaintiffs state a First Amendment violation.
2.
Fifth Amendment
The due process clause of the Fifth Amendment states that
“[n]o person shall . . . be deprived of life, liberty, or property
without due process of law.”
U.S. Const. amend. V.
The Fifth
Amendment is inapplicable to causes of action asserted against
public officials in Puerto Rico.
See Martínez-Rivera v. Sánchez
Ramos, 498 F.3d 3, 8 (1st Cir. 2007);
Natal-Rosario v. P.R. Police
Dep’t, 609 F.Supp.2d 194, 201 (D.P.R. 2009)(internal citations
omitted).
Accordingly, Vargas’ cause of action against Defendants
brought under a Fifth Amendment theory is hereby DISMISSED WITH
PREJUDICE.
3.
Fourteenth Amendment
The Fourteenth Amendment states that “nor shall any State
deprive a person of life, liberty, or property, without due process
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CIVIL NO. 11-1672 (JAG)
of law . . . .”
U.S. Const. amend. XIV.
The Fourteenth Amendment
protects certain public employees from termination without being
afforded due process. Colón-Santiago v. Rosario, 438 F.3d 101, 109
(1st Cir. 2006)(internal citations omitted). To state a Fourteenth
Amendment violation, Vargas must plausibly plead that she: (1) is
a
public
employee
with
a
property
interest in
her continued
employment; and (2) Defendants deprived Vargas of her property
interest without due process.
20, 29 (1st Cir. 2008).
Maymí v. P.R. Ports Auth., 515 F.3d
Defendants argue that Vargas did not have
a property interest in her continued employment. (Docket No. 26 at
28-30).
The Court disagrees.
Property interests are created and defined by state law.
Colón-Santiago, 438 F.3d at 108 (internal citations omitted).
Puerto Rico law grants career public employees a property right in
their continued employment.
1, 8 (1st Cir. 2007).
Marrero-Gutiérrez v. Molina, 491 F.3d
Vargas does not argue that she was deprived
of a property interest when she was initially terminated as part of
Law 7.
(Docket No. 38 at 3)(“Law 7 did permit the defendants to
dismiss her for economic reasons without a pre-termination hearing
. . . .”).
Rather, Vargas argues that Law 7 was amended by Law 37
to exclude employees working in DOE lunchrooms, such as Vargas,
from its’ layoff provisions.
Puerto Rico passed Law 7 as a three phase economic austerity
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CIVIL NO. 11-1672 (JAG)
plan to help eliminate Puerto Rico’s deficit.
The first phase
provides for voluntary resignations and work reductions. While the
second phase calls for involuntary layoffs of certain public
employees while, the third phase entails a temporary suspension of
collectively bargained for contracts.
See P.R. Laws Ann. tit. 3,
§§
7
8794-8802.
Section
8797
of
Law
provides
that
certain
categories of employees, such as police officers and firefighters,
are excluded from phase two’s involuntary layoff provisions.
On
May 29, 2009, Chardón wrote Vargas “indicating” that Vargas was
terminated pursuant to Law 7.
(Docket No. 33, ¶ 18).
After Vargas was laid-off, section 8797 of Law 7 was amended
by Law 37 to exclude DOE “employees working in lunchrooms attached
to the Department of Education.” P.R. Laws Ann. tit. 3, § 8707(d).
Law 37 states that it applies retroactively to March 9, 2009.
Thus, because Law 37 excludes DOE employees such as Vargas from Law
7's layoff provisions and Law 37 applies retroactively to when Law
7 was passed, Plaintiffs plausibly pled that Vargas had a property
interest in her continued employment.
Because Defendants do not
challenge that Plaintiffs were provided with due process prior to
her termination, Plaintiffs state a Fourteenth Amendment violation.
B.
Causation
Defendants may be liable under section 1983 only if: “a
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CIVIL NO. 11-1672 (JAG)
plaintiff can establish that his or her constitutional injury
resulted from [1] the direct acts or omissions of the official, or
[2] from indirect conduct that amounts to condonation or tacit
authorization.”
Grajales,
Hernández, 640 F.3d at 16).
under
a
respondeat
682
F.3d
at
47
(quoting
Ocasio-
A supervisor may not be held liable
superior
theory.
Id.
As
such,
“each
defendant’s role in the [challenged] decision must be sufficiently
alleged to make him or her a plausible defendant.”
Hernández, 640 F.3d at 16.
Ocasio-
Plaintiffs allege that Defendants
violated Vargas’ rights when Defendants fired her from her job,
neglected to inform her that she was entitled to be reinstated and
failed to reinstate her because of her PDP affiliation.
No. 33 at ¶¶ 1, 24, 30, 44).
(Docket
Yet, The complaint does not contain
any facts linking Defendants conduct to the alleged constitutional
deprivations.
Plaintiffs argue that they are able to satisfy the causation
element because Defendants have the authority to make personnel
decisions.
(Docket No. 34, at 18).
Plaintiffs’ complaint does
contain a number of details concerning Defendants position and
duties within the DOE.
(see e.g., Docket No. 33, ¶¶ 10-12).
Nevertheless, it is well settled that section 1983 “liability
cannot rest solely on a defendant’s position of authority . . . .”
Ocasio-Hernández, 640 F.3d at 16 (internal citations omitted).
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CIVIL NO. 11-1672 (JAG)
Embedded in the complaint are a number of generic accusations,
concerning Defendants’ collective conduct. Specifically, Plaintiffs
state that Defendants “[d]ismissed and then failed to reinstate
Vargas as an employee at the Child Nutrition Program” and neglected
to inform Vargas that she had the right to be reinstated.
No. 33, ¶¶ 1, 23, 30).
(Docket
These statements are insufficient because
the complaint does not allege facts indicating that each of the
defendants played a role in dismissing, neglecting to inform and
failing to reinstate. See Soto-Torres v. Fraticelli, 654 F.3d 153,
159 (1st Cir. 2011)(holding that the plaintiff’s statement that the
defendant “participated in or directed the constitutional violation
. . .” was insufficient to survive a motion to dismiss because it
“provided no facts to support either that he participated in’ or
‘directed’ the alleged violations).
Admittedly, Plaintiffs’ general statements are, in essence,
factual
allegations.
However,
threadbare
and
speculative
allegations are insufficient to bring a complaint within the realm
of plausibility.
See Peñalbert-Rosa, 631 F.3d at 595 (internal
citations and quotations omitted). Here, Plaintiffs averments that
Defendants dismissed, neglected to inform and failed to reinstate
Vargas are speculative and threadbare: the Court is left guessing
as
to
each
Defendants’
employment actions.
participation
in
the
alleged
adverse
See id. at 595-97 (“Specific information even
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CIVIL NO. 11-1672 (JAG)
if not in the form of admissible evidence, would likely be enough
at this stage; pure speculation is not.”).
The specific allegations contained in the complaint do not
link Defendants’ conduct to the alleged deprivation. The complaint
avers
that
Chardón
sent
Vargas
a
letter
stating
appointment would not be renewed pursuant to Law 7.
33, ¶ 18).
that
her
(Docket No.
However, Plaintiffs concede that Vargas’ initial
termination was lawful. (Docket No. 38 at 3)(“Law 7 did permit the
defendants to dismiss her for economic reasons without a pretermination hearing . . . .”).
Vargas also pleads that Méndez
received her application and told Vargas that she did not receive
instructions to interview her.
Yet, Méndez’s statement does not
indicate that she decided who to interview or select to fill the
positions.
To the contrary, Méndez’s statement shows that the
decision came from elsewhere.
Finally, the complaint states that
Chardón never responded to Vargas after she wrote Chardón alleging
that personnel decisions were motivated by political patronage.
Chardón’s
failure
to
respond
does
not
indicate
that
Chardón
participated in or encouraged, condoned or acquiesced to the
alleged unconstitional conduct.
(Docket No. 33, ¶ 37).
The Court
declines to bring a supervisor to task for merely receiving a
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CIVIL NO. 11-1672 (JAG)
complaint alleging a constitutional deprivation.9
To survive a
motion to dismiss, Plaintiffs must provide facts that describe the
role in the alleged unconstitional actions.
Thus,
although
Plaintiffs
plausibly
They have not.
plead
that
Vargas’
constitutional rights were violated, they fail to plausibly plead
that the named Defendants caused the deprivation.
failure typically warrants dismissal.
Plaintiffs’
However, the interests of
justice counsel that Plaintiffs should be permitted to conduct
discovery to uncover who, if anyone, deprived Vargas’ of her
rights.
See Peñalbert-Rosa, 631 F.3d at 596-97.
In Peñalbert-Rosa, the plaintiff alleged that the governor and
the
governor’s
chief
of
staff
violated
the
plaintiff’s
constitutional rights when they terminated her shortly after they
took office.
Id. at 594.
There, the First Circuit Court of
Appeals affirmed the lower court’s dismissal of the plaintiff’s
complaint because although the plaintiff adequately pled that she
was unlawfully fired, the complaint did not contain any facts
9
In Grajales, the First Circuit indicated that allegations
that a defendant deliberately ignored the plaintiff’s complaints
of harassment were sufficient to satisfy the causation element.
Grajales, 682 F.3d at 49. However, here, unlike in Grajales,
Vargas does not allege that she was harassed. Rather, Vargas
alleges that Defendants fired her from her job, neglected to
inform her of her right to be reinstated and failed to reinstate
her. The complaint does not contain allegations indicating that
Chardón was involved in the alleged unlawful actions.
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CIVIL NO. 11-1672 (JAG)
suggesting
that
the
defendants
actually
termination decision.
Id. at 594-97.
declined
the
to
dismiss
participated
in
the
The Circuit Court, however,
plaintiff’s
suit:
the
plaintiff
was
afforded the opportunity to amend the complaint to include “John
Doe” as a placeholder and conduct discovery to uncover who was
responsible for firing the plaintiff. Id. The court in PeñalbertRosa reasoned that because the complaint adequately alleged that
the plaintiff was unlawfully fired and the continued post-Twombly
and Iqbal uncertainty, the interests of justice warranted the
plaintiff to advance to the discovery stage.
Id.
Here, Plaintiffs, like the plaintiff in Peñalbert-Rosa, allege
that Defendants violated Vargas’ rights when they fired her from
her job, neglected to inform her of her right to be reinstated and
failed to reinstate her.
Similar
to
sufficiently
violated,
but
the
plead
(Docket No. 33 at ¶¶ 1, 24, 30, 44).
complaint
that
in
Vargas’
insufficiently
plead
Peñalbert-Rosa,
constitutional
that
the
Plaintiffs’
rights
named
were
Defendants
participated in the constitutional deprivation. Moreover, although
the First Circuit has issued a number of opinions clarifying the
post-Twombly and Iqbal pleading standard, the law continues to
evolve.
Thus, here, like in Peñalbert-Rosa, there is no reason to
throw the baby out with the bath water: the interests of justice
counsel granting Plaintiffs the opportunity to conduct discovery to
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CIVIL NO. 11-1672 (JAG)
uncover who participated in the termination decision.
Accordingly, Plaintiffs’ section 1983 action predicated on a
First and Fourteenth Amendment violation brought against Defendants
is hereby DISMISSED WITHOUT PREJUDICE.10
Plaintiffs section 1983
action brought under a First and Fourteenth Amendment theory may
proceed against John and Jane Doe.11
C.
Qualified Immunity
An official is entitled to qualified immunity if: (1) the
plaintiff
sufficiently
pleads
that
the
official
violated
a
constitutional right; and (2) the constitutional right in question
was
not
“clearly
established”
at
the
time
of
the
alleged
constitutional violation. Maldonado v. Fontanes, 568 F.3d 262 (1st
Cir. 2009)(internal citations omitted). Defendants are not entitled
to qualified immunity because Plaintiffs fail to state a claim
10
In Peñalbert-Rosa, the First Circuit affirmed the district
court’s decision to dismiss the plaintiff’s complaint. It is
unclear whether the district court dismissed the complaint with
or without prejudice.
Penalbert-Rosa v. Fortuno-Burset, 692 F.
Supp. 2d 206, 212 (D.P.R. 2010)(“Accordingly, defendants’ Motion
to Dismiss (docket entry 24) is GRANTED and this action is
DISMISSED.”).
The Court deems it prudent to dismiss the
complaint without prejudice to afford Vargas the opportunity to
proceed against Defendants in the event that discovery reveals
that Defendants were involved in the termination decision.
11
The court in Peñalbert-Rosa granted the plaintiffs the
opportunity to amend her complaint to seek relief against a “John
Doe” as a placeholder. Id. at 597. Here, Plaintiffs do not need
to amend their complaint because the complaint already lists
“John and Jane Doe” as defendants. (Docket No. 33, ¶ 7).
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CIVIL NO. 11-1672 (JAG)
against the Defendants under section 1983.
V.
Puerto Rico Law
The Court maintains supplemental jurisdiction over
Plaintiffs’ state law claim because Plaintiffs’ section 1983
claim against John and Jane Doe subsist.
See 28 U.S.C. § 1367.
Accordingly, Defendants’ motion to dismiss Plaintiffs’ Puerto
Rico claims is DENIED.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss
(Docket No. 26) is hereby GRANTED IN PART and DENIED IN PART as
follows:
A.
Torres and the Conjugal Partnerships action brought
pursuant to section 1983 is hereby DISMISSED WITH
PREJUDICE for lack of standing.
B.
Plaintiffs’ section 1983 action against Defendants in
their official capacities for money damages are hereby
DISMISSED WITH PREJUDICE.
C.
Vargas’ cause of action against Defendants brought
under a Fifth Amendment theory is hereby DISMISSED WITH
PREJUDICE.
D.
Plaintiffs’ section 1983 action predicated on a First
and Fourteenth Amendment violation brought against
Defendants is hereby DISMISSED WITHOUT PREJUDICE.
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CIVIL NO. 11-1672 (JAG)
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 26th day of September, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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