Falcon v. Puerto Rico Ports Authority et al
Filing
19
OPINION AND ORDER re 13 Motion to Dismiss. The Court GRANTS in part and DENIES in part defendant Casillas' motion to dismiss. The motion to dismiss plaintiff Falcon's Fifth Amendment and Equal Protection claims is GRANTED as to all defe ndants. Those claims, accordingly, are DISMISSED WITH PREJUDICE. The motion to dismiss plaintiff Falcon's First Amendment political discrimination claim and her Puerto Rico law claims against all defendants is DENIED. Signed by Judge Francisco A. Besosa on 06/28/2013. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LINNETTE FALCON-CUEVAS,
Plaintiff,
Civil No. 12-1892 (FAB)
v.
PUERTO RICO PORTS AUTHORITY, et
al.,
Defendants.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is defendant Gilberto Casillas-Esquilin’s
motion to dismiss pursuant to Federal Rule of Civil Procedure Rule
12(b)(6) (“Rule 12(b)(6)”).
(Docket No. 13.)
For the reasons
discussed below, the Court GRANTS in part and DENIES in part
defendant’s motion.
I.
BACKGROUND
A.
Procedural Background
On October 12, 2012, plaintiff Linnette Falcon-Cuevas
(“Falcon”) filed a political discrimination complaint pursuant to
42 U.S.C. § 1983 (“section 1983”) against defendant Puerto Rico
Ports Authority (“PRPA”), defendant Gilberto Casillas-Esquilin
1
Logan Brown, a second-year law student at the Georgetown
University Law Center, assisted in the preparation of this
Memorandum and Order.
Civil No. 12-1892 (FAB)
2
(“Casillas”), and defendant Ivelisse Castro-Guzman2 (“Castro”).3
(Docket
No.
1
at
p.
2.)
Plaintiff
Falcon
alleges
general
constitutional violations of her First, Fifth, and Fourteenth
Amendment rights.
Id.
She also alleges that, as a registered
member of the Popular Democratic Party (“PDP”), she was treated
substantially
less
favorably
than
similarly
situated
New-
Progressive-Party-affiliated employees in violation of the equal
protection clause of the Fourteenth Amendment.
plaintiff
Falcon
asserts
that
the
Court
Additionally,
has
supplemental
jurisdiction over her Puerto Rico law claims.4
On January 14, 2013, defendant Casillas filed a motion to
dismiss pursuant to Rule 12(b)(6).
(Docket No. 13.)
He alleges
that plaintiff Falcon (1) failed to file her claim during the
appropriate limitations period, (2) fails to state a claim for
which relief can be granted pursuant to section 1983, (3) fails to
state a claim pursuant to the Fifth Amendment, and (4) fails to
state
an
equal
protection
claim
pursuant
to
the
Fourteenth
2
Defendant Castro is listed as a defendant in the complaint,
but has not been served.
3
Plaintiff Falcon also includes the spouses of defendants
Casillas and Castro, and their respective conjugal partnerships as
defendants.
4
Plaintiff Falcon brings claims pursuant to Law Number 100 of
1959 of the Laws of Puerto Rico, P.R. Laws Ann. tit. 29 § 146; and
“Article II, §§ 1, 4, 6, 7 of the Constitution of the Commonwealth
of Puerto Rico.” (Docket No. 1 at p. 3.)
Civil No. 12-1892 (FAB)
Amendment.
3
(Docket No. 13 at pp. 6-13.)
Plaintiff Falcon did not
oppose defendant Casillas’ motion to dismiss.
B.
Factual Background
As required by the standard Rule 12(b)(6) analysis, the
Court
treats
as
true
the
following
non-conclusory
factual
allegations stated in the plaintiff’s complaint, Ocasio-Hernandez
v. Fortuño-Burset, 640 F.3d 1, 10 (1st Cir. 2011):
Plaintiff
Falcon is
registered member of the PDP.5
an
employee
of
the
PRPA
(Docket No. 1 p. 3.)
and a
During the
events alleged in the complaint, plaintiff Falcon was a Special
Aide to the Human Resources Office of the PRPA.
Id. at p. 8.
On
April 2, 2012, defendant Casillas was appointed as the Director of
Human Resources of PRPA.
Id. at p. 9.
Plaintiff Falcon alleges
that defendant Casillas is “an activist and supporter” of the New
Progressive Party (“NPP”).6
Id. at p. 5.
In her complaint, plaintiff Falcon alleges that as a
result of her political affiliation, (1) she was stripped of
functions and duties inherent to her position as Special Aide, and
(2)
that
she
was
denied
the
position
of
Head
Assistant
of
5
The Court notes plaintiff Falcon’s inconsistency in
referring to the Popular Democratic party as both PPD and PDP. PPD
is the Spanish acronym for Partido Popular Democratico, in English
the Popular Democratic Party.
The Court would prefer that
plaintiff Falcon use uniform abbreviations in all future documents.
6
As noted in note 5, the Court assumes that when the
complaint refers to “PNP” and “NPP,” it means the New Progressive
Party.
Civil No. 12-1892 (FAB)
4
Purchasing and Auctions.
(Docket No. 1 at p. 2.)
Plaintiff Falcon
contends that she was so “viciously and maliciously” discriminated
against when she was stripped of tasks and denied the position that
she applied for that she “has suffered severe and substantial
economic
and
emotional
$3,200,000.00 in damages.
1.
damages”
amounting
to
no
less
than
Id. at p. 20-21.
Alleged Discriminatory Treatment at PRPA
The NPP administration officially assumed control of
the Puerto Rico government in 2009, and plaintiff Falcon alleges
that as a result of this change she experienced a series of
discriminatory acts.
(Docket No. 1 at pp. 6-7.)
First, on or
around March 11, 2011, Falcon was denied “study leave” by then-PRPA
deputy director Bernardo Vazquez (“Vazquez”). Id. at p. 7. Falcon
felt discriminated against for “political reasons” because her
request was denied while the request of Blanca Saez, a member of
the NPP, was granted.
Vazquez.
Plaintiff Falcon voiced these concerns to
Id.
Second,
plaintiff
Falcon
alleges
that,
as
the
Director of Human Resources, defendant Casillas entrusted tasks
that belonged to plaintiff Falcon’s position to Jannette Vega
(“Vega”), a Human Resources Specialist.
(Docket No. 1 at p. 9.)
Plaintiff Falcon alleges that she was repeatedly “ignored” and “by
passed” by defendant Casillas.
Id.
Defendant Casillas told
plaintiff Falcon that she should suspend her work with the Drug
Civil No. 12-1892 (FAB)
5
Testing Manual because the task had been delegated to the Federal
Funds Office.
Id. at p. 10.
On May 10, 2012, plaintiff Falcon met with defendant
Casillas to discuss her lack of tasks.
(Docket No. 1 at p. 10.)
In the meeting, plaintiff Falcon informed defendant Casillas that
she understood the removal of tasks to be a result of her nonaffiliation with the NPP, which was the political party of the
current administration.
Id.
Defendant Casillas answered that
plaintiff Falcon should not feel that way, and said that he had
been told by Vazquez that “Linette is the only PDP employee that
did not pretend to be of any other party in order to benefit
herself — she who is trustworthy about less remains trustworthy.”
Id.
On May 12, 2012, plaintiff Falcon and defendant
Casillas met, once more, to discuss plaintiff Falcon’s lack of
tasks.
(Docket No. 1 at p. 10.)
During their meeting, defendant
Casillas took a phone call where he said that a person who had been
interviewed was a good candidate, but that “we have the need to
accommodate our people within the Agency first and then I will seek
other alternatives to accommodate the rest of our people before the
Civil No. 12-1892 (FAB)
elections.”7
6
Id. at 11.
After the phone call, plaintiff Falcon
asked if there was a reason why she was not being assigned tasks.
Id.
Defendant Casillas responded that he was told by defendant
Castro which employees were supposed to help him with the Human
Resources Office’s tasks.
Id.
Once again, plaintiff Falcon
alleged to defendant Casillas that the removal of her tasks was
politically motivated.
Id.
Defendant Casillas “nervously” ended
the meeting and requested that plaintiff Falcon put her concerns in
writing, so they could be discussed with defendant Castro.
On
June
14,
2012,
plaintiff
Id.
Falcon “informally
learned, through a phone conversation with the State Office of the
Ombudsman,” that she was removed as PRPA Ombudsman Coordinator, and
that defendant Castro had been appointed to replace her.
No. 1 at p. 12.)
official
letter
(Docket
Plaintiff Falcon, however, has yet to receive the
from
the
PRPA
Executive
officially remove her from this designation.
Director
Id.
that
will
On August 31,
7
Plaintiff Falcon alleges that defendant Casillas would make
other comments related to the appointment of PNP members to
positions at PRPA including saying to Vega:
[R]elax [Vega] keep making personnel transactions to
accommodate our people. If they ask why we haven’t been
successful in appointing all of them I will explain that
the Budget Office (OGP) has not approved them. Then I
will go to my friend Tommy Rivera-Schatz[, then President
of the Senate of Puerto Rico, and a member of the PNP,]
and inform him about this and he will straighten OGP and
things will be solved.
(Docket No. 1 at p. 11.)
Civil No. 12-1892 (FAB)
7
2012, employees of the Human Resources Office, including plaintiff
Falcon, filed a letter “requesting that their corresponding merit
steps be granted in accordance with the applicable Personnel
Manual” because the majority of merit steps recommended by Castro
were of NPP-affiliated employees.
Deputy
Id. at p. 15-16.
The PRPA
Director reversed the merit steps granted by Castro.
Id.
at 16.
On September 11, 2012, Vega informed plaintiff, via
email,
that
she
would
no
longer
be
the
Domestic
Coordinator, and that Gladys Martinez would replace her.8
pp. 12-13.
Violence
Id. at
When asked for the grounds for such removal, Vega
responded merely that she was carrying out Casillas’ instructions.
Id. at p. 13.
In response to a letter from plaintiff Falcon
complaining about her lack of work, defendant Casillas sent her a
letter, dated September 12, 2012, that listed eight tasks and jobs
assigned to plaintiff Falcon from April 2012 until September 2012.
Id.
Plaintiff Falcon contends that the “jobs” were assigned by
prior Human Resource Directors and were completed before defendant
Casillas was an employee of the PRPA, and that the “tasks” “are
mostly functions below the level of complexity of the work of a
Special Aide.”
8
Id.
Plaintiff Falcon fails to allege Gladys Martinez’s political
affiliation.
Civil No. 12-1892 (FAB)
2.
8
Denial of New Position
On June 11, 2012, plaintiff Falcon submitted a job
application for Job Posting No. 12-05-08 for Head Assistant of
Purchasing and Auctions at the PRPA.
(Docket No. 1 at p. 13.)
Plaintiff Falcon was initially disqualified for failure to meet the
experience
requirement.
Id.
at
p.
14.
After
requesting
reconsideration, and notwithstanding the recommendation of Eric
Rolon — PRPA General Legal Counsel — that her previous experience
not be considered,9 she was granted an interview.
15.
On
August
17,
2012,
plaintiff
Falcon
Id. at pp. 14-
interviewed
defendant Casillas, Eric Rolon, and Maria Isabel Sierra.
with
Id. at
p. 15. On August 20, 2012, plaintiff Falcon learned that defendant
Castro had been selected for the position.
Id.
Plaintiff Falcon
contends that defendant Castro was not better qualified for the
position, and alleges that defendant PRPA could not corroborate
defendant Castro’s work experience.
II.
Id.
RULE 12(b)(6) STANDARD
Rule 12(b)(6) allows the Court to dismiss a complaint when it
fails
to
state
Fed.R.Civ.P.
9
a
claim
12(b)(6).
upon
When
which
relief
considering
can
a
be
granted.
motion
under
The complaint mentions that defendant Casillas also told
plaintiff Falcon that he consulted with Vega, Marisol Ramos, and
Mildred Muñoz, and that they also recommended that her experience
not be considered.
(Docket No. 1 at p. 14.)
Plaintiff Falcon
contends that these three people “were not even aware of her
reconsideration,” thus implying that defendant Casillas did not
consult with them. Id.
Civil No. 12-1892 (FAB)
9
Rule 12(b)(6), a court is “obligated to view the facts of the
complaint in the light most favorable to the plaintiffs, and to
resolve any ambiguities in their favor.”
F.3d at 17.
Ocasio–Hernandez, 640
While detailed factual allegations are not necessary
to survive a motion to dismiss, “[a] plaintiff is not entitled to
‘proceed perforce’ by virtue of allegations that merely parrot the
elements of the cause of action.”
Id. at 12 (quoting Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1950 (2009)). Any “[n]on-conclusory factual
allegations [sic] in the complaint[, however,] must . . . be
treated as true, even if seemingly incredible.” Id. (citing Iqbal,
129 S.Ct. at 1951). An adequate complaint “must contain sufficient
factual matter to state a claim to relief that is plausible on its
face.”
Grajales v. P.R. Ports Auth., 682 F. 3d 40,44 (1st Cir.
2012).
The complaint need not plead facts sufficient to establish
a prima facie case, but “the elements of a prima facie case may be
used as a prism to shed light upon the plausibility of the claim.”
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir.
2013).
A
court,
however,
may
not
“attempt
to
forecast
a
plaintiff’s likelihood of success on the merits; ‘a well-pleaded
complaint may proceed even if . . . a recovery is very remote and
unlikely’.”
Ocasio-Hernandez,
640
F.3d
at
13
(quoting
Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Overall, the
relevant inquiry “focuses on the reasonableness of the inference of
Civil No. 12-1892 (FAB)
10
liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint.”
Id.
III. ANALYSIS
A.
Statute of Limitations
Defendant Casillas contends that this action is barred by
the statute of limitations.
(Docket No. 13 at p. 9.)
“Because
[section 1983] has no internal statute of limitations, section 1983
claims ‘borrow[] the appropriate state law governing limitations
unless contrary to federal law.’” Marrero-Gutierrez v. Molina, 491
F.3d 1, 5 (1st Cir. 2007) (quoting Poy v. Boutselis, 352 F.3d 479,
483 (1st Cir. 2003)).
In Puerto Rico, First Amendment claims for
political discrimination pursuant to section 1983 are subject to a
one-year statute of limitations. Morales-Tañon v. P.R. Elec. Power
Auth., 524 F.3d 15, 18 (1st Cir. 2008).
The continuing violation doctrine is an exception to the
statute
of
limitations
that
applies
if
an
act,
which
would
otherwise be time-barred, is deemed to be part of an ongoing series
of discriminatory acts, and there is “some violation within the
statute of limitations period that anchors the earlier claim[].”
O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001).
When there is a substantial relationship between the timely and
untimely
claims,
the
claims
can
be
viewed
as
a
continuing
violation, and the untimely claim can be included in the complaint.
See Sabree v. United Broth. of Carpenters and Joiners Local No. 33,
Civil No. 12-1892 (FAB)
11
921 F.2d 396, 401 (1st Cir. 1990). In determining whether there is
a substantial relationship between the claims, the First Circuit
Court of Appeals has held that the most important factor is whether
the
plaintiff
knew
or
should
have
known
that
discriminated against at the time of the incident.
she
was
being
Id. at 402.
“A
knowing plaintiff has an obligation to file promptly or lose his
[or her] claim.”
Id.
Plaintiff Falcon alleges that she was denied a study
leave request in March of 2011.
(Docket No. 1 at p. 7.)
She
further alleges that at that time she felt that she was being
discriminated against for political reasons.
Id.
Plaintiff
Falcon, however, did not file her complaint until October 24, 2012,
more than one year after statute of limitations began to run in
March of 2011.
Because plaintiff Falcon admits that she felt
discriminated against at the time of the study leave request
incident, it must be treated as a discrete act.10
Accordingly, the
Court will not consider this incident as part of a continuing
violation, and the statute of limitations for this incident has
10
The Court notes, additionally, that plaintiff Falcon does
not allege that defendant Casillas was involved in this incident.
Civil No. 12-1892 (FAB)
run.11
12
Any claims arising from this incident are time-barred, and,
therefore, DISMISSED WITH PREJUDICE.
B.
Plaintiff’s Section 1983 Political Discrimination Claim
“Section 1983 is the conventional vehicle through which
relief is sought for claims of political discrimination by state
actors.”
Rodriguez-Reyes,
711
F.3d
at
54.
Puerto
Rico
is
considered the functional equivalent of a state for purposes of
section 1983.
Id.
under section 1983:
“There are two essential elements of an action
(i) that the conduct complained of has been
committed under the color of state law, and (ii) that this conduct
worked a denial of rights secured by the Constitution or laws of
the United States.”
Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.
1995) (internal quotation marks omitted). Within this section 1983
framework,
a
political
discrimination
claim
encompasses
four
elements:
“[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] that political affiliation was a substantial or
motivating factor behind the adverse action.”
Grajales, 682 F. 3d
at 46. When considering a Rule 12(b)(6) motion to dismiss, a court
11
Defendant Casillas contends that because plaintiff Falcon
was aware of the alleged political discrimination at the time of
this time-barred incident, all of plaintiff Falcon’s claims are
time-barred. The Court is not persuaded by this reasoning, and
because defendant Casillas fails to provide legal authority to
support its conclusion, the Court declines to dismiss all claims on
that ground.
Civil No. 12-1892 (FAB)
13
may “limn the elements of a prima facie political discrimination
case as a backdrop against which [it] must decide the plausibility
of the claim.”
See Rodriguez-Reyes, 711 F.3d at 54.
For pleading
purposes, a plaintiff does not need to establish each element; the
facts contained in the complaint need only show that each element
is plausible.
Id. at 56.
1.
Opposing Political Parties
The complaint states that plaintiff Falcon is an
active supporter of PDP and that defendant Casillas is a member of
the NPP.
(Docket No. 1 at pp. 4-5.)
When the Court takes these
factual allegations as true, plaintiff Falcon has pleaded adequate
factual
material
plaintiffs
and
to
support
defendants
a
are
reasonable
members
of
inference
that
the
opposing
political
Plaintiff’s
Political
parties.
2.
Defendant’s
Affiliation
Knowledge
of
The complaint alleges that Vazquez told defendant
Casillas that plaintiff Falcon was a PDP employee.
at
p.
10.)
While
the
rest
of
the
complaint
(Docket No. 1
contains
only
conclusory allegations as to defendant Casillas’ knowledge of
plaintiff Falcon’s political affiliation, this alleged statement,
coupled
with
the
fact
that
plaintiff
Falcon
repeatedly
told
defendant Casillas about her political affiliation, is enough to
satisfy the standard required at the pleading stage.
Accordingly,
Civil No. 12-1892 (FAB)
14
the Court finds that it is plausible that defendant Casillas had
knowledge of plaintiff Falcon’s political affiliation.
3.
Adverse Employment Action
Employment
actions
are
sufficiently
adverse
to
support a political discrimination claim pursuant to section 1983
when
those
actions,
objectively
evaluated,
place
substantial
pressure on a thick-skinned employee to conform to the prevailing
political view.
Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756,
766 (1st Cir. 2010).
This standard can be met if an employee’s
duties are substantially altered or taken away, even when the
employee does not lose his or her job title or salary.
See id.
at 767.
Plaintiff Falcon repeatedly alleges that defendant
Casillas took away her employment duties.
While many of the
statements are conclusory or threadbare, plaintiff Falcon does
provide factual examples like the suspension of her work on the
Drug Testing Manual, her removal as PRPA Ombudsman Coordinator, and
her removal as the Domestic Violence Coordinator. (Docket No. 1 at
pp. 10, 12-13.)
Additionally, plaintiff Falcon claims that the
tasks defendant Casillas assigned to her were “mostly functions
below the level of complexity of the work of a Special Aide.”
at p. 13.
plaintiff
Id.
Taking those facts in the light most favorable to
Falcon, the
Court finds
that
it is
plausible
plaintiff Falcon experienced an adverse employment action.
that
Civil No. 12-1892 (FAB)
4.
Political
Factor
15
Affiliation
as
Substantial
Motivating
For pleading purposes, a plaintiff’s complaint need
not
establish
motivating
that
factor
political
behind
the
animus
is
the
substantial
adverse
employment
complaint need only show that causation is plausible.
action;
or
the
Rodriguez-
Reyes, 711 F.3d at 56. Because direct evidence is rarely available
to demonstrate an actor’s motive, circumstantial evidence often
suffices at the pleading stage.
See id. at 56.
Nevertheless, the
plaintiff must do more than “[m]erely juxtapose a ‘protected
characteristic — someone else’s politics — with the fact that the
plaintiff was treated unfairly.’” Peguero-Moronta v. Santiago, 464
F.3d 29, 45 (1st Cir. 2006) (internal citations omitted).
Still,
“[t]here need not be a one-to-one relationship between any single
allegation and a necessary element of the cause of action.
What
counts is the ‘cumulative effect of the [complaint’s] factual
allegations.’”
Rodriguez-Reyes, 711 F.3d at 55 (quoting Ocasio-
Hernandez, 640 F.3d at 14).
The First Circuit Court of Appeals has consistently
“found similar compendia of allegations adequate to make out
plausible claims of political animus.”
Rodriguez-Reyes, 711 F.3d
at 57; see, e.g., Grajales, 692 F.3d at 49-50; Ocasio-Hernandez,
640 F.3d at 17-18. In Rodriguez-Reyes, the Court of Appeals found:
the
combination
of [1]
the
politically
charged
questioning of the [employees], [2] the statements of
officials indicating an intent not to renew the contracts
Civil No. 12-1892 (FAB)
16
of persons affiliated with other political parties, [3]
the absence of any nondiscriminatory explanation for the
adverse employment actions, [4] the temporal proximity of
the regime change to the adverse employment actions, and
[5] the replacement of the separated workers with NPP
adherents permit[ted] a plausible inference, at the
pleading stage, that political animus was a substantial
or motivating factor behind the adverse employment
actions.
711 F.3d at 57.
Although
plaintiff
Falcon’s
complaint
does
not
contain all of the factors relied on in Rodriguez-Reyes, the Court
finds that, when all factual allegations are taken as true and all
ambiguities are resolved in plaintiff Falcon’s favor, the complaint
permits a plausible inference of political animus sufficient to
survive a motion to dismiss.
First, there is no allegation of
politically charged questioning by defendants; the facts show that
each discussion of political affiliation was initiated by plaintiff
Falcon herself and none of the defendants directly talked to her
about her political affiliation.
Factual allegations exist, as
discussed above, however, that they knew she was a PDP supporter.
(Docket No. 1 at pp. 7, 10, 11, 12.)
Second, although there are no
allegations of statements by officials referring to planned adverse
employment actions to PDP employees, plaintiff Falcon twice quotes
defendant Casillas’s statements about accommodating “our people”
— once in connection with an election and once in connection to
Civil No. 12-1892 (FAB)
17
Tomas Rivera Schatz.12 Third, plaintiff Falcon’s allegations, taken
as true, provide no other explanation for the adverse employment
actions.
Fourth, the adverse employment actions began three years
after the regime change, a more distant temporal proximity than has
been found to support an inference of political animus in other
similar cases.13
Compare Rodriguez, 711 F.3d at 52 (finding that
adverse employment
action
earliest
opportunity”
practical
less
than
two
after
months
the
or
regime
“[a]t
the
change
had
adequate temporal proximity to support an inference of political
animus), and Ocasio-Hernandez, 640 F.3d at 16 (finding adverse
employment action less than three months after the regime change
supported an inference of political animus), with Quiles-Santiago
v. Rodriguez-Diaz, 851 F. Supp. 2d 411, 425 (D.P.R. 2012) (finding
adverse employment action one year after the regime change had
insufficient
temporal
proximity
to
support
an
inference
of
12
Additionally, plaintiff Falcon concludes that Vazquez’s
alleged statement, “she who is trustworthy about less remains
trustworthy,” means that he thinks “if PDP comes back into power
[plaintiff Falcon] would still be a PDP trustworthy person.”
(Docket No. 1 at p. 10.)
The Court disagrees with plaintiff
Falcon’s chimerical conclusion.
If anything, this quote cuts
against plaintiff Falcon’s allegations by suggesting that plaintiff
Falcon is trustworthy in her workplace regardless of which party is
in power. Indeed, she remained in her job position for the four
years after the regime change while the NPP was in power.
13
Plaintiff alleges that she was denied a study leave request
about two years after the regime change in March of 2011. (Docket
No. 1 at p. 7.) As discussed above, however, that incident was
previously barred for failing to comply with the appropriate
statute of limitations.
Civil No. 12-1892 (FAB)
political
animus).
18
Finally,
plaintiff
Falcon
alleges
that
defendant Castro, a member of PNP, both was given her duty as PRPA
Ombudsman Coordinator14 and awarded the job for which plaintiff
Falcon applied.
The factors do not all fall in plaintiff Falcon’s
favor
—
particularly
the
temporal
proximity
employment action to the regime change.
of
the
adverse
None of factors, however,
is essential to show political animus, and none needs to be
established to survive a motion to dismiss; each merely sheds light
upon the plausibility of the claim.
district
court
in
assessing
“The relevant question for a
plausibility
is
not
whether
the
complaint makes any particular factual allegations but, rather,
whether ‘the complaint warrant[s] dismissal because it failed in
toto to render plaintiff[’s] entitlement to relief plausible.”
Rodriguez-Reyes, 711 F.3d at 55 (quoting Twombly, 550 U.S. at 569
n. 14).
Furthermore, the “paucity of direct evidence is not fatal
in the plausibility inquiry. ‘Smoking gun’ proof of discrimination
is rarely available, especially at the pleading stage.”
682 F.3d at 49.
effect
of
Grajales,
Accordingly, the Court finds that the cumulative
plaintiff
Falcon’s
factual
allegations
permits
a
reasonable inference that it is plausible that political animus was
14
The Court notes that plaintiff Falcon acknowledges that she
has not received the official letter from the PRPA Executive
Director that will make her alleged removal official. (Docket No.
1 at p. 12.)
Civil No. 12-1892 (FAB)
19
the substantial or motivating factor behind the adverse employment
action.
“‘[A] well-pleaded complaint may proceed even if .
. . a recovery is very remote and unlikely[;]’” the plausibility
requisite “‘simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of the illegal’
conduct.”
Ocasio-Hernandez, 640 F.3d at 13, 17 (quoting Twombly,
550 U.S. at 556).
When the non-conclusory facts alleged by plaintiff
Falcon are examined, with the prima facie elements as the backdrop,
the Court finds that plaintiff Falcon has stated a plausible claim
of political discrimination.
Accordingly, defendant Casillas’
motion to dismiss plaintiff Falcon’s section 1983 claim is DENIED.
C.
Plaintiff’s Fifth Amendment Claim
Defendant Casillas argues that plaintiff Falcon fails to
state a due process claim pursuant to the Fifth Amendment. (Docket
No. 13 at p. 12.)
Notwithstanding defendant’s argument, the
complaint does not discuss a Fifth Amendment due process claim, but
merely includes the Fifth Amendment in a list of Amendments that
are claimed to be violated by actions limiting plaintiff’s rights
of speech, expression, association, and belief.
(Docket No. 1 at
p. 2.) Plaintiff Falcon, however, fails to provide any explanation
as to how her Fifth Amendment rights were violated.
“Judges are
not mind-readers, so parties must spell out their issues clearly,
Civil No. 12-1892 (FAB)
20
highlighting the relevant facts and analyzing on-point authority.”
Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011).
A party may not merely “mention a possible argument in the
most skeletal way, leaving the court to do counsel’s work, create
the ossature for the argument, and put flesh on its bones.”
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
United
Accordingly,
the Court finds that plaintiff Falcon fails to state a Fifth
Amendment claim.
Additionally, it is well settled 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).
Plaintiff Falcon
does not bring suit against the federal government or any federal
actors, and she fails to explain the basis for her Fifth Amendment
claim.
Accordingly, plaintiff Falcon’s Fifth Amendment claims are
DISMISSED WITH PREJUDICE.
D.
Plaintiff’s Equal Protection Claim
Defendant Casillas argues that plaintiff Falcon’s claim
pursuant to the Equal Protection Clause of the Fourteenth Amendment
must be dismissed because a plaintiff may not “assert parallel
claims under the First Amendment and the Equal Protection Clause
for the same [alleged] discriminatory conduct.”
p. 13.)
(Docket No. 13 at
Civil No. 12-1892 (FAB)
The
Equal
21
Protection
Clause requires
that
situated individuals be treated in a similar manner.
similarly
See Marrero-
Gutierrez v. Molina, 491 F.3d 1, 9-10 (1st Cir. 2007) (citing City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)).
equal
protection
however,]
claim
merely
alleging
restates
a
political
First
“An
discrimination[,
Amendment
political
discrimination claim and . . . [should be] considered under the
First Amendment.”
Uphoff Figueroa v. Alejandro, 597 F.3d 423, 430
n. 8 (1st Cir. 2010).
Plaintiff Falcon’s equal protection claim is based on the
same set of facts as her First Amendment political discrimination
claim: that defendants allegedly discriminated against her because
of her PDP membership.
(See Docket No. 1 at p. 2.)
Because
plaintiff Falcon’s claim pursuant to the Equal Protection Clause
merely reiterates her First Amendment political discrimination
claim, therefore, plaintiff Falcon’s equal protection claim is
DISMISSED WITH PREJUDICE.
E.
Plaintiff’s Claims Against All Other Defendants
Plaintiff Falcon also brings claims against defendant
Casillas’ wife and the conjugal legal partnership composed by them;
defendant Castro’s husband and the conjugal legal partnership
composed by them; and defendant PRPA.
(Docket No. 1 at pp. 4-6.)
Defendant Casillas, however, is the only party who filed a motion
Civil No. 12-1892 (FAB)
to dismiss.15
(Docket No. 13.)
22
Nevertheless, the Court finds sua
sponte that plaintiff Falcon’s Fifth Amendment and Equal Protection
claims against the remaining defendants fail for the same reasons
as those claims brought against defendant Casillas.
As discussed
previously, plaintiff Falcon fails to state a Fifth Amendment claim
and her Equal Protection claim merely restates her First Amendment
Accordingly, the Court DISMISSES WITH PREJUDICE plaintiff
claim.
Falcon’s Fifth Amendment and Fourteenth Amendment actions against
all defendants.
F.
Plaintiff’s Supplemental Puerto Rico Law Claims
When a district court has original jurisdiction over a
claim, the court also has supplemental jurisdiction over state law
claims that form part of the same case or controversy.
§ 1367(a).
28 U.S.C.
Because plaintiff Falcon’s section 1983 claim remains,
the Court may exercise supplemental jurisdiction over state law
claims that “derive from a common nucleus of operative fact.” Mine
Workers v. Gibbs, 383 U.S. 715, 725 (1966).
A court should
consider “the values of judicial economy, convenience, fairness,
and comity in order to decide whether to exercise jurisdiction over
a case brought in that court involving [supplemental] state law
claims.”
(1988).
15
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
In light of these factors, as well as plaintiff Falcon’s
Defendant PRPA did file an answer to the complaint, however,
where it outlined affirmative defenses and requested that the Court
“dismiss the complaint.” (Docket No. 14 at pp. 9-10.)
Civil No. 12-1892 (FAB)
23
remaining section 1983 claim to ground jurisdiction, the Court will
exercise its supplemental jurisdiction over plaintiff Falcon’s
Puerto Rico law claims. Accordingly, defendant’s motion to dismiss
plaintiff Falcon’s Puerto Rico law claims is DENIED.
IV.
CONCLUSION
For the reasons expressed above, the Court GRANTS in part and
DENIES in part defendant Casillas’ motion to dismiss.
The motion
to dismiss plaintiff Falcon’s Fifth Amendment and Equal Protection
claims is GRANTED as to all defendants. Those claims, accordingly,
are DISMISSED WITH PREJUDICE.
The motion to dismiss plaintiff
Falcon’s First Amendment political discrimination claim and her
Puerto Rico law claims against all defendants is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 28, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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