Falcon v. Puerto Rico Ports Authority et al

Filing 76

OPINION AND ORDER granting in part and denying in part 30 motion for summary judgment. Signed by US Magistrate Judge Marcos E. Lopez on 8/28/2014. (MT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LINNETTE FALCÓN CUEVAS,
Plaintiff,
v.
CIVIL NO.: 12-1892 (MEL)
PUERTO RICO PORTS AUTHORITY, et al.,
Defendants.

OPINION AND ORDER
I.

PROCEDURAL HISTORY

On October 24, 2012 Linnette Falcón Cuevas (“plaintiff” or “Falcón”) filed a complaint
pursuant to 42 U.S.C. §§ 1983, 1988 against the Puerto Rico Ports Authority (“PRPA” or the
“Authority”), Gilberto Casillas Esquilín (“Casillas”) in his individual and official capacity, and
Ivelisse Castro Guzmán (“Castro”) in her individual and official capacity, alleging discrimination
on the basis of her political affiliation, in violation of the First Amendment, Fifth Amendment,
and the Fourteenth Amendment to the United States Constitution and supplemental claims
pursuant the Constitution of the Commonwealth of Puerto Rico and Puerto Rico Law 100 of
1959 (“Law 100”), as amended by P.R. Laws Ann. tit. 29, § 146, et seq. and Law 115 of 1991
(“Law 115”), P.R. Laws Ann tit 11, § 1, et seq. ECF No. 1. On January 14, 2013, Casillas filed a
motion to dismiss in his individual capacity pursuant to Federal Rule of Civil Procedure
12(b)(6). ECF No. 13. The court granted in part and denied in part said motion, dismissing
plaintiff’s Fifth Amendment and Fourteenth Amendment claims against all defendants, and
denying the motion to dismiss in part with respect to Falcón’s First Amendment political

discrimination claim1 and denying it with respect her supplemental Puerto Rico law claims. ECF
No. 19. On June 27, 2013 plaintiff was ordered to show cause as to why her claims against
Castro should not be dismissed for failure to serve process on her within 120 days after the
complaint was filed. ECF No. 18. On July 8, 2013, the court dismissed plaintiff’s claims against
Castro without prejudice. ECF No. 22. On April 3, 2014, Casillas2 and PRPA (collectively
“defendants”) filed a joint motion for summary judgment and on April 29, 2014 plaintiff filed a
response in opposition. ECF Nos. 30; 52. For the reasons set forth below, defendants’ motion for
summary judgment is granted in part and denied in part.
II.

UNCONTESTED FACTS3

In February 2004, plaintiff acquired a trust position at the Authority as a Special Aide for
former Executive Director under the Popular Democratic Party (“PDP”) Administration. ECF
No. 52-2, ¶ 1. Plaintiff is affiliated with and has worked closely with the PDP in political
activities and fundraising activities, many of which were held at her home. Id. She has helped
organize fundraising activities for Governor García Padilla and Governor Acevedo Víla. Id. She
knows the governor personally and he has been at her house for political activities. Id. She has
been a poll watcher. Id. In 2012 plaintiff obtained a Master's Degree in Human Resources
(“HR”) from the Ana G. Méndez University. ECF No. 52-2, ¶ 4. Plaintiff currently holds a career

1

The court dismissed allegations regarding a denial of “study leave” that occurred around March 11, 2011, on
statute of limitations grounds. It denied defendants’ motion to dismiss with regard to plaintiff’s allegations that
Casillas deprived her of tasks that belonged to her position and that plaintiff was denied the Head Assistant of
Purchasing and Auctions position at the Authority. See ECF No. 19.
2
Counsel for PRPA has clarified that he does not represent Casillas in his official capacity as Director of HR at
PRPA, as Casillas no longer holds the position, but he does represent the individual currently in that position, in his
or her official capacity. ECF No. 67; see Fed. R. Civ. Pro. 25(d) (“An action does not abate when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.”).
3
Defendants did not file a response to plaintiff’s proposed uncontested facts. Accordingly, facts proposed by
plaintiff that are supported by evidence in the summary judgment record have been deemed admitted and
incorporated into the uncontested facts section of this opinion. See Local Rule 56(e) (“Facts contained in a
supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be
deemed admitted unless properly controverted.”).

2

position as a Special Aide for the HR Office at the PRPA, but as of the date defendants moved
for summary judgment plaintiff was on unpaid leave from the PRPA while occupying the
position of Vice President of HR and Industrial Relations in Administration at the Metropolitan
Bus Authority. ECF Nos. 30-1, ¶¶ 1, 2; 52-1, ¶¶ 1, 2.
Casillas has been a New Progressive Party (“NPP”) “follower” since childhood. ECF No.
52-2, ¶ 46. Casillas occupied the position of Director of HR at PRPA for four months, from April
2012 until July or August 2012.4 ECF Nos. 30-1, ¶¶ 3, 5, 28; 52-1, ¶¶ 3, 5, 28. After his term as
Director of HR at PRPA, Casillas went to occupy the position of Deputy Executive Director of
Administration; from September 2012 onwards Casillas was not plaintiff’s direct supervisor.
ECF Nos. 30-1, ¶¶ 5, 29; 52-1, ¶¶ 5, 29.
When Casillas had entered the Authority as Director of HR he had been away from the
HR field for many years and did not have a mastery over the agency's technical areas. ECF Nos.
30-1, ¶ 38; 52-1, ¶ 38; 52-2, ¶ 9. When Casillas was the Director of HR, his supervisor was
Ivelisse Castro (“Castro”), who then occupied the position of Deputy Executive Director of
Administration. ECF Nos. 30-1, ¶ 30; 52-1, ¶ 30. In conversations that Casillas had with Castro,
he told her that he was worried about the task, and that he wanted the job to be “perfect and
trustworthy.” ECF Nos. 30-1, ¶ 39; 52-1, ¶ 39. Castro told him that he had numerous technical
personnel in the department who are competent, “know what they have on their hands,” and
whose work was “trustworthy and good.” Id.
Janet Vega (“Vega”) has the career position of Specialist of HR at the Authority. ECF
Nos. 30-1, ¶ 32; 52-1, ¶ 30. She was occupying the position of interim Director of HR when
4

There is inconsistency in the proposed uncontested facts with regard to whether Casillas held the position until July
2012 or August 2012. Defendants propose as uncontested facts both that “Gilberto Casillas occupied the position of
Director of Human Resources from April 2012 until August 2012” and “Gilberto Casillas was the Director of
Human Resources in the Puerto Rico Ports Authority from April until July 2012, for four months.” ECF No. 30-1, ¶¶
3, 28. Plaintiff admits both these facts, without qualification. ECF No. 52-1, ¶¶ 3, 28.

3

Casillas arrived at PRPA to assume the Director of HR position. Id. Vega directed the
classification, retribution, recruitment, and selection division at the PRPA; she is a specialist in
classification. ECF Nos. 30-1, ¶ 37; 52-1, ¶ 37; 52-2, ¶ 9. Vega had numerous “technical duties”
in her position at the PRPA, which she had not abandoned while she was interim Director of HR.
ECF Nos. 30-1, ¶ 39; 52-1, ¶ 39. Casillas asked Vega to help him with his new duties as Director
of HR, and she agreed. ECF No. 52-2, ¶ 9.
Approximately fifteen years prior to becoming Director of HR at PRPA, Casillas worked
for plaintiff’s former husband, Hiram Cerezo-Suárez (“Cerezo-Suárez”), who had been the
Commissioner of Municipal Affairs for Ex-Governor Rosselló in 1993-1994. ECF Nos. 30-1, ¶
11; 52-1, ¶ 11. Casillas had met plaintiff while working for Cerezo-Suárez. ECF Nos. 30-1, ¶ 42;
52-1, ¶ 42.When Casillas saw plaintiff in his office he was happy to see her because he knew
how she worked and that she was very responsible. ECF Nos. 30-1, ¶ 12; 52-1, ¶ 12. Casillas met
with the plaintiff and told her that he was counting on her to be his aide. ECF Nos. 30-1, ¶ 41;
52-1, ¶ 41.
While Casillas was acting as Director of HR, plaintiff was concerned that she was not
being assigned duties in accordance with her position. She attempted to resolve the matter by
talking to Casillas, and Casillas requested that plaintiff write him a letter with her complaints.
ECF Nos. 30-1, ¶¶ 14, 15; 52-1, ¶¶ 14, 15; 52-2, ¶ 47. On June 15, 2012, Falcón wrote a letter to
Casillas expressing her concern that she was not being assigned duties in accordance with her
position. ECF No. 52-2, ¶ 52; ECF No. 57-6. On August 13, 2013, an attorney wrote a letter to
the Executive Director of PRPA, Bernardo Vázquez (“Vázquez”) on plaintiff’s behalf, informing
Vázquez of the letter Falcón sent to Casillas, at Casilla’s request, and that Casillas had not met
with plaintiff to discuss the contents of the letter or responded to the letter in writing. ECF No.

4

52-2, ¶ 52; ECF No. 57-7. Plaintiff spoke with Vázquez about “the situation,” informing him that
since Casillas has assumed the role of Director of HR he had not given her any work. Id. ¶ 51;
ECF No. 52-9, at 32. Vázquez told plaintiff that he would try to resolve the situation the same
day, but she did not get assigned any work as a result of the conversation. Id.
In June 2012, plaintiff applied for the position of Head Assistant of Purchasing and
Auctions.5 ECF Nos. 30-1, ¶ 9; 52-1, ¶ 9. The position would have resulted in a higher salary for
plaintiff. ECF No. ECF No. 52-9, ¶ 26. Casillas was presented with a list of persons that had
been determined to be qualified for the position. ECF Nos. 30-1, ¶ 47; 52-1, ¶ 47. On July 13,
2012, plaintiff received a letter signed by Vega indicating that plaintiff did not qualify for the
Head Assistant of Purchasing and Auctions position. ECF Nos. 30-1, ¶ 16; 52-1, ¶ 16. Plaintiff
requested a review with Mayra Montañez (“Montañez”), the HR specialist that evaluated her
application. Id. Montañez informed plaintiff that she did not meet the experience requirements
for the position. ECF Nos. 30-1, ¶ 17; 52-1, ¶ 17. Montañez explained that she could not
consider the full span of plaintiff’s experience, but only half the time as experience. ECF Nos.
30-1, ¶ 18; 52-1, ¶ 18. A consideration of half the time as experience would have filled the
experience requirement for the position. ECF Nos. 30-1, ¶¶ 18, 19; 52-1, ¶¶ 18, 19.
On July 24, 2012, plaintiff received a letter from Casillas reaffirming that she did not
qualify for the position. ECF Nos. 30-1, ¶ 20; 52-1, ¶ 20. When the plaintiff received the letter,
she asked Casillas for a meeting to discuss her complaint regarding the experience not being
credited to the job posting. ECF Nos. 30-1, ¶ 21; 52-1, ¶ 21. Casillas told plaintiff that he would
look at the matter calmly, evaluate it, and “consult to learn about it.” ECF Nos. 30-1, ¶ 53; 52-1,
¶ 53. He informed her that he would meet with her after meeting with the legal adviser at the

5

Plaintiff indicated that the position was a career position in her deposition transcript. ECF No. 52-9, at 15. None of
the parties, however, have proposed that information as an uncontested fact.

5

time, Eric Rolón (“Rolón”). Id. Casillas consulted with Rolón about the issue. ECF Nos. 30-1, ¶
54; 52-1, ¶ 54. After the consultation, they concluded that the fact that plaintiff had been a
member of the bid board for four years meant “that she had to have learned something even
though she did not have the proper duties of a purchaser.” Id. They applied her some points for
the experience, and plaintiff was eligible for the position. Id.
On August 2, 2012, plaintiff received a letter from Casillas stating that she had been
included in the eligible register for the Head Assistant of Purchasing and Auctions position and
was provided with a date for an interview. ECF Nos. 30-1, ¶¶ 23, 54; 52-1, ¶¶ 23, 54. Plaintiff
was interviewed for the position by a panel composed by Counsel Rolón, Casillas, and María
Isabel Sierra. ECF Nos. 30-1, ¶ 24; 52-1, ¶ 24. Technicians from the “recruitment area” provided
the panel with documents containing a point system; the applicants points were calculated, the
technicians tabulated the results, and presented the results to Casillas. ECF Nos. 30-1, ¶ 56; 52-1,
¶ 56. Then, a letter containing the calculations was sent to the Executive Director for him to
make a determination as to which person he wished to recruit for the position. Id. It is the
Executive Director’s “prerogative to determine which person he wanted to recruit for the
position.” Id. The Executive Director selected Castro from the list of persons qualified for the
Head Assistant of Purchasing and Auctions position.6 ECF Nos. 30-1, ¶ 48; 52-1, ¶ 48. Castro
handed rejections letters to the other candidates for the position. ECF No. 52-2, ¶ 33.
III.

LEGAL STANDARD

The purpose of summary judgment “is to pierce the boilerplate of the pleadings and assay
the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ.

6

As plaintiff points out, Castro was Casillas’s boss at the time that he interviewed plaintiff for the position that
Castro ultimately attained. See ECF No. 52-2, ¶ 29. The citations made by the parties to the record do not
specifically evince whether Casillas interviewed Castro as well, and fail to shed light on the awkwardness of a
subordinate interviewing a candidate for a position for which his superior is also competing.

6

Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). Summary judgment is granted when the record
shows that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “‘A dispute is genuine if the evidence about
the fact is such that a reasonable jury could resolve the point in the favor of the non-moving
party. A fact is material if it has the potential of determining the outcome of the litigation.’”
Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Rodríguez-Rivera v.
Federico Trilla Reg’l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant presents a properly focused motion “averring ‘an absence of evidence to support the
nonmoving party’s case[,]’ [t]he burden then shifts to the nonmovant to establish the existence of
at least one fact issue which is both ‘genuine’ and ‘material.’” Griggs-Ryan v. Smith, 904 F.2d
112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)).
For issues where the nonmoving party bears the ultimate burden of proof, that party cannot
merely “rely on the absence of competent evidence, but must affirmatively point to specific
facts” in the record “that demonstrate the existence of an authentic dispute.” McCarthy v. Nw.
Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). The plaintiff need not, however, “rely on
uncontradicted evidence . . . . So long as the plaintiff’s evidence is both cognizable and
sufficiently strong to support a verdict in her favor, the factfinder must be allowed to determine
which version of the facts is most compelling.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d
6, 19 (1st Cir. 2004).
In assessing a motion for summary judgment, the court “must view the entire record in
the light most hospitable to the party opposing summary judgment, indulging all reasonable

7

inferences in that party’s favor.” Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is “no
room for credibility determinations, no room for the measured weighing of conflicting evidence
such as the trial process entails, [and] no room for the judge to superimpose his own ideas of
probability and likelihood . . . .” Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st
Cir. 1987). The court may, however, safely ignore “conclusory allegations, improbable
inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (citations omitted).
IV.

LEGAL ANALYSIS
A.

Eleventh Amendment Sovereign Immunity

“[I]n the absence of consent[,] a suit in which the State or one of its agencies or
departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Metcalf & Eddy v. P.R.
Aqueduct & Sewer Authority, 991 F.2d 935, 938 (1st Cir.1993); and Ramírez v. P.R. Fire Serv.,
715 F.2d 694, 697 (1st Cir. 1983). For purposes of Eleventh Amendment immunity analysis, the
Commonwealth of Puerto Rico is treated as a state. See Redondo Constr. Corp. v. P.R. Highway
& Transp. Auth., 357 F.3d 124, 125 n. 1 (1st Cir.2004); Ramírez v. P.R. Fire Serv., 715 F.2d 694,
697 (1st Cir.1983) (“Puerto Rico, despite the lack of formal statehood, enjoys the shelter of the
Eleventh Amendment in all respects”). Eleventh Amendment immunity extends to lawsuits
against “an arm of the state” and to state employees exercising their official duties. See e.g.,
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Hess v. Port Auth. Trans-Hudson
Corp., 513 U.S. 30, 32-24 (1994). “Whether an entity may be considered an ‘arm of that state’
for purposes of Eleventh Amendment immunity is a question of federal law that requires the
application of a two-part test annunciated by the Supreme Court in [Hess], and adopted by the

8

First Circuit in Fresenius Med. Care v. Puerto Rico and the Caribbean Cardiovascular Ctr. Corp.,
322 F.3d 56 (1st Cir. 2003).” Izarry-Mora v. Univ. of P.R., Civ. No. 08-2004 (ADC), 2009 WL
9041224, at *2 (D.P.R. Aug. 24, 2009) (finding that the University of Puerto Rico is an arm of
the Commonwealth that shares its sovereign immunity). Under this test, the court must “first
determine whether the state has indicated an intention—either explicitly by statute or implicitly
through the structure of the entity—that the entity share the state’s sovereign immunity.”
Redondo Const. Corp. v. P.R. Highway and Transp. Auth., 357 F.3d 124, 126 (1st Cir. 2004)
(citing Fresenius, 322 F.3d at 68-72). Relevant factors may include: the enabling statute
establishing the entity, other statutes related to the entity, state court decisions defining the
character of the entity, the entity’s functions, and the degree to which the state exercises control
over the entity. See Hess, 513 U.S. at 68-72. If this first prong does not conclusively demonstrate
that the entity is an arm of the state, the court then inquires “whether the state’s treasury would
be at risk in the event of an adverse judgment.” Id. at 72.
Defendants assert that PRPA is entitled to sovereign immunity pursuant to the Eleventh
Amendment, citing to P.R. Ports Auth. v. Federal Maritime Com’n, 531 F.3d 868 (D.C. Cir.
2008) and Orocovis Petrolem Corp. v. P.R. Ports Auth., Civ. No. 08-2359 (GAG), 2010 WL
3981665 (D.P.R. Oct. 5, 2010), which hold that the Authority is an arm of the state. ECF No. 30,
at 11. Plaintiff responds that the court should follow the Court of Appeals for the First Circuit’s
decision in Royal Caribbean Corp. v. P.R. Ports Auth., 973 F.2d 8 (1st Cir. 1992), in which it
found that PRPA was not entitled to sovereign immunity. ECF No. 52, at 26. Although Royal
Caribbean Corp. is the most recent First Circuit Court of Appeals decision to decide the discrete
issue of whether PRPA is entitled to sovereign immunity, it is not controlling in this case as the

9

standard for determining whether an entity is an arm of the state has changed since it was
decided. As stated by the court in Orocovis Petrolem Corp.:
[T]he court finds that Fresenius Medical Care Cardiovascular
Resources, Inc. v. Puerto Rico governs the question of sovereign
immunity for PRPA. See 322 F.3d 56 (1st Cir. 2003). Before
Fresenius, the First Circuit employed a multi-factor test to
determine the applicability of Eleventh Amendment immunity to
public corporations like PRPA as an ‘arm of the state.’ See Metcalf
& Eddy, Inc. v. P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 93940 (1st Cir. 1993). Under that test, PRPA’s sovereign immunity
varied from case to case, depending on the entity’s function at
issue in the case. See id. at 941 n.6 (citing P.R. Ports Auth. v. M/V
Manhattan Prince, 897 F.2d 1, 12 (1st Cir. 1990); [Royal Caribbean
Corp., 973 F.2d at 8]. Where the case involved a traditionally
governmental rather than proprietary function, the test weighed in
favor of immunity. See id.
In Fresenius, the First Circuit updated the test in light of the
decisions by the U.S. Supreme Court. See 322 F.3d at 68 (citing,
inter alia, [Hess, 513 U.S. at 30]). The court held that the Eleventh
Amendment protected both the ‘state’s dignitary interest’ in
conferring its immunity on certain entities and the state’s interest in
shielding its purse. Id. at 65. Under this revised model, a federal
court first applies a multi-factor test to examine whether ‘the state
has clearly structured the entity to share its sovereignty.” Id. at
68. . . .
2010 WL 3981665, at *1.
In deciding Fed. Maritime Comm’n, the Court of Appeals for the District of Columbia
applied the principles articulated in Hess and Fresenius, reaching the conclusion that PRPA is an
arm of the state. 531 F.3d at 874 (“We thus read Hess in much the same way as did Judge
Lynch’s thorough First Circuit opinion in [Fresenius].”). As explained in Orocovis Petrolem
Corp.:
Citing Fresenius, the sister circuit examined the legislative intent
of PRPA’s enabling statutes; the Commonwealth’s direct control
over PRPA through the composition of the governing board; and
the vulnerability of the Commonwealth fisc to liabilities arising
from PRPA’s operations. See id. at 874-80.
10

2010 WL 3981665, at *1. The District of Columbia Circuit’s “comprehensive discussion” in Fed.
Maritime Comm’n is persuasive in the case of caption. Id. at *2 (citing Fed. Maritime Comm’n,
531 F.3d at 874-81). As it points out, the language from the Authority’s enabling act “describes
PRPA as a ‘governmental instrumentality of the Commonwealth of Puerto Rico’ and
‘governmental controlled corporation.’” Fed. Maritime Comm’n, 531 F.3d at 875 (citing P.R.
Laws Ann. tit 12, § 333(a), (b)). The enabling act and Puerto Rico’s Dock and Harbor Act
indicate that the Authority “performs its functions to promote ‘the general welfare’ and to
increase ‘commerce and prosperity’ for the benefit ‘of the people of Puerto Rico.’” Id. (citing
P.R. Laws Ann. tit 12, §§ 348(b), 2109, 2202). Furthermore, “[l]ike other Commonwealth
agencies, PRPA does not have private owners or shareholders and does not pay taxes; instead, it
must submit a yearly financial statement to the legislature and Governor, and its books are
examined periodically by the Controller [sic] of Puerto Rico.” Id. at 876 (citing P.R. Laws Ann.
tit. 12, §§ 338, 348, 345). Each of these considerations “points in the direction of arm-of-theCommonwealth status” with respect to the Commonwealth’s intent to share its sovereignty with
the Authority. Id. Moreover, the Commonwealth exercises considerable control over PRPA, as
the Governor of Puerto Rico “controls the appointment of the entire Board” and “has the power
to remove at will four of the five members of PRPA’s Board of Directors from their government
offices.” Id. at 877 (citing P.R. Laws Ann. tit 23, § 334). The Board of Directors in turn appoints
PRPA’s chief executive officer, the Executive Director. P.R. Laws Ann. tit 23, § 335. “And there
is still more indicating Commonwealth control of PRPA: The Puerto Rico Attorney General has
previously opined that the Governor of Puerto Rico retains control of Puerto Rico’s public
corporations.” Fed. Maritime Comm’n, 531 F.3d at 875 (citing 1992 Op. Atty. Gen. P.R. 103
(Sept. 21, 1992)).

11

Although the analysis above “ends the inquiry under First Circuit precedent” as the
pertinent considerations each suggest that PRPA is an arm of the state, “the D.C. Circuit went a
step further and found that the second prong also militates in favor of immunity . . . .” Orocovis
Petrolem Corp., 2010 WL 3981665, at *2 (Fed. Maritime Comm’n, 531 F.3d at 878-80). “The
Dock and Harbor Act makes the Commonwealth directly liable for certain torts committed by
PRPA’s officers, employees, or agents when they are acting in their official capacity and within
the scope of their function, employment or agency relationship.” Fed. Maritime Comm’n, 531
F.3d at 879 (citing P.R. Laws Ann. tit 23, § 2303). However, regardless of whether the
Commonwealth’s treasury would be jeopardized in the event of an adverse judgment in this case,
under the standard established in Fresenius, PRPA and Casillas, in his official capacity, are
covered by sovereign immunity. Therefore, plaintiff’s claims for monetary damages against the
Authority and Casillas, in his official capacity, are dismissed with prejudice.7
B.

First Amendment Political Discrimination

Section 1983 provides a cause of action against state actors acting under the color of law
who deprive a citizen of rights, privileges, or immunities secured by the Constitution and laws.
42 U.S.C. § 1983. A claim under § 1983 requires three elements for liability: (1) state action; (2)
deprivation of a right; and (3) a causal connection between the defendant's alleged conduct and

7

Plaintiff’s claims against the Director of HR in his or her official capacity for prospective injunctive relief are not
barred by Eleventh Amendment immunity. See García-Hicks v. Vocational Rehabilitation Admin., Civ. No. 13-1491
(FAB), 2014 WL 2611183, at *5 (D.P.R. June 11, 2014) (“[W]hile the Eleventh Amendment shields state officers
from actions for money damages when those suits target the officers in their official capacities, it does not preclude
official capacity suits seeking injunctive relief.”) (citing Bd. of Trustees of the Univ. of Ala v. Garrett, 531 U.S. 356,
363 (2001); Ex parte Young, 209 U.S. 123 (1908)). Plaintiff requests two forms of injunctive relief in the complaint:
an order to PRPA and the Director of HR “to reinstate her to her respective duties inherent to her position with all
the benefits she would have been entitled to” and, [i]n the alternative, to be appointed as Head Assistant of
Purchasing and Auctions.” ECF No. 1, at 20. With respect to the prayer for relief to reinstate her to the duties
associated with her career position as a Special Aide to the Office of HR, counsel for plaintiff shall clarify at the
Pretrial and Settlement Conference whether plaintiff persists in requesting such relief, in light of plaintiff’s current
employment in a trust position at the Metropolitan Bus Authority. As to the request to be appointed as Head
Assistant of Purchasing and Auctions, the same is moot in light of the decision contained within this opinion that the
claims related to her failure to attain the position are dismissed.

12

the deprivation. Gutiérrez–Rodríguez v. Cartagena, 882 F.2d 553, 558 (1st Cir. 1989). A plaintiff
must demonstrate that each defendant was personally and directly involved in the deprivation of
his federally protected rights and that the defendant’s conduct was the cause in fact of the alleged
deprivation. See Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008) (citing Rodríguez-Cirilo
v. García, 513 F.3d 301, 306 (1st Cir. 2007)); Gutiérrez–Rodríguez, 882 F.2d at 559; Medina
Pérez v. Fajardo, 257 F.Supp.2d 467, 473 (D.P.R. 2003) (citing Caraballo Cordero v. Banco
Financiero De Puerto Rico, 91 F.Supp.2d 484, 489 (D.P.R. 2000)).
The First Amendment to the United States Constitution embodies the right to be free
from political discrimination. Barry v. Moran, 661 F.3d 696, 699 (1st Cir. 2011). The First
Circuit Court of Appeals has held that that right prohibits government officials from “taking
adverse action against public employees on the basis of political affiliation, unless political
loyalty is an appropriate requirement of the employment.” Ocasio–Hernández v. Fortuño-Burset,
640 F.3d 1, 11 (1st Cir. 2011) (internal citations omitted). A prima facie case of political
discrimination based on the First Amendment consists of four elements: “(1) that the plaintiff
and defendant have opposing political affiliations, (2) that the defendant is aware of the
plaintiff's affiliation, (3) that an adverse employment action occurred, and (4) that political
affiliation was a substantial or motivating factor for the adverse employment action.” Lamboy–
Ortíz v. Ortíz–Vélez, 630 F.3d 228, 239 (1st Cir. 2010). “Once made, the defendant may then
rebut that showing with what is commonly referred to as the Mt. Healthy defense: by proving by
a preponderance of the evidence that the governmental agency would have taken the same
action,” regardless of plaintiff’s political affiliation. Reyes-Pérez v. State Ins. Fund Corp., 755
F.3d 49, 54 (1st Cir. 2014) (citing Díaz-Bigio v. Santini, 652 F.3d 45, 52 (1st Cir. 2011).

13

1.

Prima Facie Case

In the case of caption, it is uncontested that plaintiff and Casillas have opposing political
affiliations and defendants concede that Casillas knew plaintiff’s political affiliation. ECF No.
30. In arguing that plaintiff has not met her burden of establishing a prima facie case of political
discrimination, defendants state: “What the plaintiff has failed to show is any ill motivation by
defendant Gilberto Casillas towards her, in order to show that he has politically discriminated
against her. Furthermore, plaintiff has failed to establish any adverse employment action taken
by Gilberto Casillas against her . . . .” ECF No. 30, at 18. Plaintiff argues that she suffered two
adverse employment actions motivated by discriminatory animus: the deprivation of her duties as
Special Aide to the Office of HR and failure to promote her to the Head Assistant of Purchasing
and Auctions position. ECF No. 52, at 2-3.
a. Deprivation of Duties as Special Aide to the Office of HR
Actions short of dismissal or demotion can constitute adverse employment actions for the
purposes of a political discrimination claim. Rodríguez-García v. Miranda-Marín, 610 F.3d 756,
766 (1st Cir. 2010) (citations omitted). “Employment actions are sufficiently adverse to support a
First Amendment § 1983 claim if those actions, objectively evaluated, would place substantial
pressure on even one of thick skin to conform to the prevailing political view.” Id. (citing
Bergeron v. Cabral, 560 F.3d 1, 8 (1st Cir. 2009) (internal quotations omitted). This standard is
satisfied where “the employer’s challenged actions result in a work situation ‘unreasonably
inferior’ to the norm for the position.” Agosto–de–Feliciano v. Aponte–Roque, 889 F.2d 1209,
1218 (1st Cir.1989) (en banc) (explaining that the factfinder must “canvass the specific ways in
which the plaintiff’s job has changed” and “determine whether the employee has retained duties,
perquisites and a working environment appropriate for his or her Rank and title.”).

14

With regard to the duties plaintiff was assigned while Casillas held the position of
Director of HR, Vega indicates that plaintiff was not being assigned work, stating:
A: But I used to tell [Castro] all the time: ‘Look, you have to
assign work to [plaintiff]. Because she can’t be doing nothing. It
weirded me out.
Q: When you say that it ‘weirded you out’, what did you feel?
How can you describe it?
A: It’s because I know she is a responsible and professional
person, and she also felt bad because she was not being assigned
work.
...
Q: So you complained to Casillas as well . . .
A: Mm-hm.
Q: . . . and to [Castro].
A: Yes. I used to tell [Castro]: ‘Ivelisse, give her work. Give her
work.’
Q: And to Casillas as well.
A: Yes.
ECF No. 57-1, at 18, ll. 23-25, 19, ll. 1-20. Vega adds that when she was serving as interim
Director of HR, prior to Casillas assuming the position and while he “took some weeks off,”
Vega “would assign [plaintiff] work, you know, work that she was supposed to do.” Id. at 20, ll.
20-25, 21, ll. 1-7. As to the withdrawal of her duties, plaintiff’s deposition testimony states:
Q: Okay, you claim in your complaint that you were unduly
withdrawn some duties. What were those duties that you were
withdrawn? The whole duties, the entire role of duties. What did
you do in that time?
A: . . . So when Mr. Casillas came as Human Resources director,
the only thing that I had left was a drug procedure, drug protocol,
to make current a drug and alcohol protocol. . . . And the day to
day of the office. For example documents that were generated
inside the Human Resources offices that would go through me to
15

proofread before going up. When Mr. Casillas was named director
of the office all my job duties were halted.
Q: Who performed those duties?
A: Ms. Janet Vega.
...
Q: So your testimony is that other than reviewing and updating the
protocol for drugs and alcohol and reviewing the day to day
documentation that arrives to the office of Human Resources you
did nothing else from April 2012 until August 2012, when Casillas
was the Human Resources director[?]
A: Yes.
ECF No. 32-1, at 8, ll. 1-25, 9, ll. 1-6.
Plaintiff’s job description as Special Aide to the Office of HR states that the position’s
“nature of work” is to “[c]oordinate and carry out administrative support duties regarding
different activities of a work unit, as delegated by the Director of [HR].” ECF No. 59-1, at 1
(emphasis added). In accordance with the organizational chart, plaintiff's position is above the
technical personnel in the HR department and directly assists and responds to the Director of HR.
ECF No. 52-2, ¶ 7. The job description lists the position’s “essential duties” as to: “Organize,
coordinate and supervise special projects, services or programs assigned to him or her and
inform the Director as to these”; “Coordinate and collaborate in the supervision of
administrative, fiscal and technical activities of the Office”; “Prepare reports of state and federal
agencies that require [HR] information”; “Collaborate with the Director in coordinating and
maintaining a record of all complaints received and ensure that the established terms are
complied with. Ensure that all the documents certified by the divisions are complete in order to
refer to the legal assistant”; “Analyze the organizational behavior of the office and offer
recommendations to the Director of [HR] in order to improve efficiency and productivity of the
16

[HR] Section and Division”; “Participate in committees, work teams, and substitute and
represent the Supervisors of [HR] Managers when required by the Director in activities and
meetings”; “Prepare, implement, and follow up on work plans of the special projects or programs
assigned among others”; “Investigate, study, analyze, and make recommendations as to
administration aspects in the [HR] Office”; “Serve as a liaison between the clients of the [HR]
Office and employees of the Authority and the Director of the Office”; “Participate and
collaborate in planning, managing and carrying out studies and technical and specialized
assignments related to the assigned tasks and issues”; “Participate in the preparation, revision,
and analysis of procedures, rules, among other matters related to activities and projects of which
he or she is in charge, and issue suggestions”; “Collaborate in the supervision of administrative
and technical personnel linked to the program, project, or activity expressly assigned by the
Director of Human Resources”; “Keep the Director informed through verbal and written reports
related to the operation of special projects or programs that are expressly assigned”; “Represent
the Director in meeting and other activities expressly assigned by him or her”; and “Draft letters,
memoranda, reports and other documents for the Director’s signature.” Id. at 1-2. In light of this
extensive list of “essential duties” for the plaintiff’s position, the explicit indication in her job
description that her duties should be carried out as delegated by the Director of HR, and
plaintiff’s testimony that she did nothing else but review and update the drugs and alcohol
protocol and review day to day documentation that arrives in the office, a rational factfinder
could determine that plaintiff experienced “a work situation ‘unreasonably inferior’ to the norm
for the position” due to Casillas’s failure to assign her duties associated with her position while
he was employed as Director of HR. Therefore, she has met her burden at the summary judgment

17

of establishing she suffered an adverse employment action in the form of removal or withdrawal
of her duties.
With respect to whether plaintiff’s political affiliation was a substantial or motivating
factor behind this adverse employment action, plaintiff cites to another portion of her deposition
transcript, in which she describes a meeting8 she had with Casillas during which she attempted to
explain to him the differences between her role as a Special Aide and Vega’s role as a specialist
of Human Resources. ECF No. 52-9, at 16. Plaintiff states in the deposition that during the
meeting Casillas was “very nervous” and that he “state[d] to [her]: ‘Linnette, I am so sorry,
because you know that I know your grandfather, I know you [sic] since you were a kid, but
Ivelisse Castro instruct [sic] me that I can’t give you any work’.” Id. at 17, ll. 1-4. According to
Falcón’s deposition, Casillas then had to take a phone call: “He answered a phone call and I
heard him speak to whoever was in [sic] the other line, saying that he interviewed her husband
and he was a very nice candidate, but the instructions were to help their people from inside the
office, from inside the agency and then look for something for the outsiders.” Id. at 17, ll. 13-18.
She asserts that once Casillas hung up the phone she asked him: “When you say your people,
which people you’re saying [sic]?” Id. at l. 20. Falcón continues, “[H]e said: ‘Linnette please
don’t ask this question, you know better than that’. And I asked him: ‘Are you saying that the
reason why I’m not having work is because I am not part of this administration?’ And he said yes
with his head . . . .” Id. at ll. 20-24.

8

The uncontested facts proposed by the parties do not establish the date this meeting occurred. A review of
plaintiff’s deposition testimony reveals that the portions that plaintiff has submitted to the court also do not indicate
the date of this meeting. The complaint alleges that “[o]n May 14, 2012, Plaintiff and Mr. Casillas met at his office
to discuss Plaintiff’s lack of assigned tasks. As soon as the meeting began, Mr. Casillas apologized because he
needed to answer a call on his cell phone. In that conversation Mr. Casillas stated to the caller that he interviewed
the husband of that person who seemed like a good candidate, but the instructions were, that ‘we have the need to
accommodate our people within the Agency first that then I will seek other alternatives to accommodate the rest of
our people before the elections.’” ECF No. 1, ¶ 48.

18

In addition to her own deposition testimony, plaintiff again cites to Vega’s deposition, in
which Vega recalls that Casillas would make comments regarding getting positions approved for
fellow members of the NPP:
Q: So he wanted to accommodate his people, is that what you are
saying.
A: Yes, yes. He used to say that: ‘I came here for this . . .’
Q: Stop . . . What did he say?
A: To, you know, to achieve the mission to leave people from his
political party accommodated, from the NPP.
ECF No. 57-1, at 31, ll. 4-19. Although this portion of Vega’s deposition testimony does not
specifically refer to the allegations that Casillas did not assign plaintiff work associated with her
duties as Special Aide to the Office of HR, in conjunction with Falcón’s own deposition
testimony that Casillas admitted the reason she was not being assigned work was because she
was not affiliated with the NPP administration, a reasonable factfinder could determine that her
political affiliation was a substantial or motivating factor behind his decision whether to assign
her tasks associated with her title and role. Although the portion of plaintiff’s deposition detailed
above suggests that Casillas was following instructions from Castro not to assign work to
plaintiff, the requisite causation between the alleged deprivation of plaintiff’s right to freedom of
association and Casillas’s own actions is satisfied. As noted above, plaintiff’s job description
indicates that her duties were to be delegated by the Director of HR, suggesting that Casillas was
responsible for assigning work to plaintiff during the time that he held said position and that his
own acts or omissions contributed to the adverse employment action in question. Furthermore,
Falcón’s testimony suggests that he was aware that the decision not to assign tasks to Falcón was
politically driven and the addition of Vega’s statement gives rise to an inference that Casillas

19

was politically zealous himself. Overall, plaintiff has adduced sufficient evidence that she
suffered an adverse employment action in the form of reduction or “deprivation” of the duties
associated with her position at PRPA and that her political affiliation was a substantial or
motivating factor influencing the amount and / or type of work she was assigned. Therefore,
plaintiff has met her burden of establishing a prima facie case of political discrimination with
respect to this claim.
b.

Competition for the Head of Purchasing and Auctions Position

It is uncontested that Vázquez, the Executive Director at the time that plaintiff applied for
the Head of Purchasing and Auctions position, selected Castro for that position. Defendants
assert that the fact that Vázquez, who is not a party to this case, made the decision demonstrates
that Casillas did not undertake an adverse employment action against plaintiff with regard to this
claim. ECF No. 30, at 18-19. Plaintiff responds that “[d]efendants fail to recognize the precise
nature and scope of adverse actions when they attempt to dismiss plaintiff’s claims by simply
pointing out to [sic] the fact that she ultimately became part of the list of eligible [sic]. What
transpired before and after this fact seems to have vanished.” ECF No. 52, at 22.
With regard to the events that occurred prior to plaintiff’s placement on the list of eligible
candidates for the position in question, plaintiff does not offer additional argumentation
regarding what precisely constituted an adverse employment action; however, the original
decision that she was ineligible and the initial reaffirmation of that determination from Casillas
do not rise to the level of an adverse employment action. Plaintiff has not articulated how this
determination impacted her then current position as a Special Aide to the Office of HR, nor does
the summary judgment record support the theory that she was denied an opportunity to compete
for the Head of Purchasing and Auctions position based on the initial determination that she was
ineligible. It is uncontested that Casillas met with Rolón regarding plaintiff’s qualifications for
20

the role and plaintiff was placed on the eligible register for the position subsequent to their
meeting.
With respect to the events related to plaintiff’s application for the Head Assistant of
Purchasing and Auctions position that happened after she was placed on the eligible roster,
pursuant to § 1983, plaintiff “must ‘show that the [defendant’s] conduct was the cause in fact of
the alleged deprivation.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008) (finding
plaintiff failed to state a § 1983 claim under the First Amendment where complaint intimated that
defendants caused the adverse employment decision, but did not allege sufficient well-pleaded
facts to demonstrate that defendants’ behavior caused that decision) (citing Rodríguez-Cirilo v.
García, 115 F.3d 50, 52 (1st Cir. 1997)). The uncontested facts establish that Casillas was on the
panel of individuals that interviewed plaintiff for the position and that the members of the panel
used documents containing a point system to evaluate candidates. The summary judgment record
also contains evidence that Castro, Casillas’s boss at the time who ultimately was awarded the
position, instructed Casillas not to give plaintiff any work. It also contains evidence that Casillas
stated he came to the Authority with the “mission” of accommodating members of the NPP.
Moreover, according to Vega’s deposition testimony, Casillas inquired “how are we doing on
Ivelisse’s position” with regard to the Head Assistant of Purchasing and Bids position, while the
position was in the process of being approved by the Office of Management and Budget
(translation ours for “Oficina de Gerencia y Presupuesto”).9 ECF No. 57-1, at 30, ll. 21-15. It is
uncontested that technicians from the “recruitment area” presented the results of the points
awarded by the panelists to Casillas and that a letter containing the calculations was sent to the

9

It is unclear from Vega’s deposition whether she personally heard him say this or whether the statement was heard
by Sara Gregory, who Vega indicates sat behind her at the Authority and “heard [Casillas] as well.” ECF No. 57-1, at
30, ll. 9-10. It is also not entirely clear from the portion of her deposition testimony to which plaintiff cites that
Casillas made this statement prior to the interview process and / or decision to award Castro the position.

21

Executive Director for him to make a determination as to which person he wished to hire for the
position.10 The record also indicates that Castro handed the other candidates their rejection letters
for the position, and supports a reasonable inference that Casillas assumed Castro’s former
position as Deputy Executive Director of Administration after Castro was awarded the Head
Assistant of Purchasing and Auctions role. See ECF Nos. 30-1, ¶¶ 29, 30; 52-1, ¶¶ 29, 30.
Acknowledging, as plaintiff asserts, that this combination of facts, taken as true for
summary judgment purposes, raises “red flags,” the same falls short of demonstrating a causal
link between Casillas’ actions or omissions and that adverse employment action in question—
that is, the failure to promote plaintiff to the Head Assistant of Purchasing and Auctions position.
ECF No. 52, at 22. It is uncontested that Vázquez, not Casillas, made the decision to hire Castro
instead of plaintiff. The record is silent with regard to what impact, if any, the evaluation that
Casillas had a role in compiling had on the Executive Director’s decision to hire Castro in favor
of plaintiff. Plaintiff has not cited to any evidence as to the contents of the letter sent to Vázquez
regarding the calculations of the panel; it is unclear from the record whether Casillas gave
plaintiff a positive or negative evaluation, whether Casillas’s review of plaintiff was better or
worse than his review of Castro, or whether there was a split among the three panelists regarding
the points awarded to the candidates for the positions. Plaintiff points out that Casillas asked her
“questions about her purchasing experience and thus her qualifications for the position” during
the interview and that “[h]e even found odd that she wanted that position after finishing her
master’s degree.” ECF No. 52. These questions and statement he made during the interview,
however, do not evince that he caused her not to attain the job.
It uncontested that it is the Executive Director’s “prerogative” to decide which candidate
to select for the position. Plaintiff has not presented evidence that Vázquez was bound by the
10

It is unclear from the record whether Casillas himself sent this letter to the Executive Director.

22

points awarded by Casillas or by Casillas’s recommendations regarding the interviewees in
making his decision regarding which candidate to choose. Overall, the evidence to which the
parties have cited does not shed light on why Vázquez made the decision to hire Castro from the
eligible roster for the positions. Any inference that Casillas somehow supported or encouraged
Vázquez’s ultimate decision to select Castro, or that Casillas’s acts or omissions otherwise
caused Falcón not to be promoted, would be speculative based on the evidence that has been
brought to the court’s attention regarding this claim.
Plaintiff does not allege in the complaint or otherwise present evidence to suggest that
Vázquez’s decision to promote Castro to the position instead of Falcón was motivated by
discriminatory animus. Furthermore, Vázquez is not a defendant in the case of caption.
Plaintiff’s allegations focus on the events transpiring during the application process, and the
initial determination that she did not qualify for the position, as discussed above. See ECF No. 1,
at 14-15. Because this initial determination does not constitute an adverse employment action, in
light of the subsequent reconsideration of the determination and because the record does not
support a rational inference that Casillas caused plaintiff not to attain the position in question,
this claim is dismissed with prejudice, as to all defendants.

2.

Mt. Healthy Defense11

Defendants raise a Mt. Healthy defense, stating “the evidence will show that the actions
taken were not because of plaintiff’s alleged political affiliation, but because of the fact that the
duties assigned to Janet Vega were those of a Technician and not of the Aid [sic] of the Human
Resources Director. Also, it has been established that the plaintiff had been assigned work by

11

Based on the dismissal of the failure to promote claim, discussed above, this section applies only to the claim
regarding the “deprivation” or withdrawal of plaintiff’s duties.

23

defendant Casillas, including, the review of the Fire Weapons Regulations.” ECF No. 30, at 20.
In support of their Mt. Healthy defense, defendants cite only to the job description for an HR
Specialist (ECF No. 59-2) and that of a Special Aide for the Office of HR (ECF No. 59-1). Id. A
review of the uncontested facts does not substantiate the proposition that the duties assigned to
Vega were strictly within her job description as a technician or “HR Specialist,” or that she was
not in fact assigned duties that fell within plaintiff’s job description as a Special Aide for the
Office of HR. Although the two job descriptions to which defendants cite indeed list different
duties, the evidence defendants have brought to the court’s attention does not substantiate that
only duties associated with Vega’s own positions were assigned to Vega during the period of time
in which Casillas was Director of HR at the Authority. Moreover, the evidence to which plaintiff
has cited suggests Vega was in fact assigned duties associated with plaintiff’s job description.
With regard to the contention that Casillas assigned plaintiff work, including a review of the
firearms regulations, the uncontested facts, as proposed by defendants, establish that “plaintiff
reviewed the Regulation of Fire Arms and requested Casillas to know about the status”—
defendants do not propose and the record does not establish that Casillas assigned a review of the
firearms regulations to her. ECF Nos. 30-1, ¶ 57; 52-1, ¶ 57. Overall, defendants have not shown
by a preponderance of evidence that they would have taken the same actions with regard to the
distribution of job duties between plaintiff and Vega, regardless of plaintiff’s political affiliation.
C.

Qualified Immunity

“The doctrine of qualified immunity protects defendants in their individual capacities
from liability for money damages.” Roldan-Plumey v. Cerezo-Suárez, 115 F.3d 58, 66 (1st Cir,
1997). To determine if a public official is entitled to qualified immunity, the court examines:
“(1) whether plaintiff’s allegations, if true, establish a constitutional violation; (2) whether that

24

right was clearly established at the time of the alleged violation; and (3) whether a similarly
situated reasonable official would have understood that the challenged action violated the
constitutional right at issue.” Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004) (citation omitted).
Casillas raises a qualified immunity defense in his individual capacity, stating in a conclusory
matter that “[i]n the instant case, the complaint failed to survive the steps of the qualified
immunity defense, since the plaintiff failed to establish the violation of her constitutional rights
by the appearing defendants. It is clear that the defendants acted within their duties and
discretion.” ECF No. 30, at 21.
Plaintiff has alleged facts that, if found by a jury to be true, would establish that Casillas
violated her First Amendment right to freedom of association by failing to assign her duties
associated with her position because of her political affiliation. As to the second prong, “First
Circuit precedent has clearly established that reduction in responsibility, when alleged under the
auspices of political discrimination, violates the First Amendment. . . .” Davila-Torres v.
Feliciano-Torres, 924 F. Supp. 2d 359, 370 (D.P.R. 2013) (citing Torres–Santiago v.
Municipality of Adjuntas, 693 F.3d 230, 242 (1st Cir. 2012); Agosto–de–Feliciano, 889 F.2d
1209, 1219 (1st Cir. 1989)). The reason that Casillas altered plaintiff’s job duties “is a disputed
issue of material fact. Under such circumstances, a grant of qualified immunity is inappropriate.”
Costa-Urena v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009) (citing Roure v. Hérnandez-Colón, 824
F.2d 139, 141 (1st Cir. 1987)); see also Flores Camilo v. Álvarez Ramírez, 283 F. Supp. 2d 440,
450 (D.P.R. 2003) (“[D]ue to the factual disputes regarding a possible political discriminatory
motivation and the circumstances surrounding Defendant’s personnel decisions, all of which are
vital to this case as a whole and the Court’s assessment of the qualified immunity defense in
particular, the Court is not in a position to grant Defendant’s motion for qualified immunity at

25

this time.”); and Irizarry-López v. Torres-González, 363 F. Supp. 2d 7, 10 (D.P.R. 2005)
(“Whether and to what extent Ortiz’s involvement in the employment decision was motivated by
a discriminatory animus remains an issue in this case which the trier of fact, and not the Court,
should decide. Accordingly, Ortiz’s qualified immunity argument . . . should be denied given the
factual underpinnings.”). Because of the issue of material fact with regard to Casillas’s
involvement in depriving plaintiff of her duties and whether the same was motivated by
politically discriminatory animus, Casillas’s request to dismiss plaintiff’s political discrimination
claim on the basis of qualified immunity is denied.12
D.

Supplemental Claims

Federal courts may decline to exercise supplemental jurisdiction over a plaintiff’s state
law claims if “the district court has dismissed all claims over which it has original jurisdiction.”
See 28 U.S.C. § 1367(c)(3); González-De-Blasini v. Family Dept., 377 F.3d 81, 89 (1st Cir.
2004); Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir. 1998). If all federal claims are
dismissed prior to trial, then the state law claims “‘should be dismissed as well.’” Rodríguez v.
Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) (quoting United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966)). Defendants submit that “since plaintiff has failed to allege any
cause of action under federal law, the claims brought forth under supplemental jurisdiction
should also be dismissed . . . .” ECF No. 30, at 22 (emphasis omitted). Because plaintiff’s federal
First Amendment political discrimination claim with regard to the withdrawal of her duties
survives defendants’ motion for summary judgment, defendants’ request for dismissal of the
supplemental claims on the basis of § 1367(c)(3) is denied.

12

As to the claim of failure to promote, the qualified immunity defense is moot in view of the previous conclusion
with respect to said claim.

26

With respect to Law 100, however, any claims against Casillas in his official capacity or
against PRPA are nonetheless dismissed. Law 100 seeks to prevent discrimination in the
workplace based on numerous protected classifications, including political affiliation and
political ideas. See P.R. Laws Ann. tit. 29, § 146. Its definition of employer specifically excludes
government agencies from coverage unless they “operat[e] as private businesses or enterprises.”
P.R. Laws Ann. tit. 29, § 151(2). Because, as discussed above, PRPA is an arm of the state, any
claims pursuant to Law 100 against it or the Director of HR at PRPA in his or her official
capacity must be dismissed with prejudice. See e.g., Torres-Santiago v. Alcaraz-Emanuelli, 553
F.Supp.2d 75, 86 (D.P.R. 2008) (dismissing Law 100 claims against the Puerto Rico Department
of Transportation and Public Works based on finding that the same was an arm of the state).
Law 100 does not, however, automatically exclude plaintiff’s claims against Casillas in
his individual capacity. The Supreme Court of Puerto Rico has held that “contrary to the majority
interpretation of Title VII, Puerto Rico’s law against discrimination in the workplace, Law 100,
does provide for the imposition of supervisor liability” when a plaintiff’s supervisor is personally
responsible for causing plaintiff’s injury. Torres-Santiago, 553 F.Supp. at 86. Therefore, based on
the analysis above, plaintiff’s Law 100 claim against Casillas in his individual capacity survives
with regard to the deprivation of plaintiff’s duties as Special Aide to the Office of HR, but is
dismissed with prejudice with regard to the allegations that she failed to attain the Head Assistant
of Purchasing and Auctions position, for lack of evidence that Casillas caused her not to attain
the position.
In contrast to Law 100, The Puerto Rico Whistle-Blower Act, commonly known as Law
115, defines an employer more broadly as “any person who has one or more employees. That

27

includes the employer’s agents.” P.R. Laws Ann. tit. 29, § 194. However, plaintiff’s Law 115
claim is nonetheless problematic. First, Law 115 provides:
(a) No employer may discharge, threaten, or discriminate against
an employee regarding the terms, conditions, compensation,
location, benefits or privileges of the employment should the
employee offer or attempt to offer, verbally or in writing, any
testimony, expression or information before a legislative,
administrative or judicial forum in Puerto Rico, when such
expressions are not of a defamatory character nor constitute
disclosure of privileged information established by law.
P.R. Laws Ann. tit. 29, § 194a. “In order to make out a prima facie case under Law 115, a
plaintiff must ‘establish, by direct or circumstantial evidence . . . that he or she (1) participated in
an activity protected by [Law 115] and (2) was subsequently discharged or otherwise
discriminated against.” Ríos v. Municipality of Guaynabo, 938 F.Supp.2d 235, 259 (D.P.R. 2013)
(citing Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 45 (1st Cir. 2010)). A review of
the complaint reveals that plaintiff’s Law 115 claim is based on the conclusory allegation that
“[d]efendant’s conduct and retaliation practices constitutes [sic] a callous or reckless disregard
for Law No. 115 rights to [sic] Plaintiff not to be retaliated nor discriminated for choosing to
point out irregularities concerning her work assignments and the jop [sic] posting process to
which she applied.” ECF No. 1, ¶ 102. With respect to PRPA and to Casillas in his official
capacity, plaintiff’s claims for monetary damages against them are dismissed pursuant to the
doctrine of sovereign immunity, discussed above. As to plaintiff’s Law 115 claim against
Casillas in his individual capacity, “the question of individual liability . . . goes unanswered by
the Puerto Rico Supreme Court, and this court has reached conflicting results.” Rosario García v.
Bd. of Trustees of Royalty Fund and Mechanized Cargo ILA 1575, Civ. No. 09-2175 (FAB),
2010 WL 5095421, at *6-7 (D.P.R. Sept. 2, 2010) (citing Otero Merced v. Preferred Health, Inc.,
680 F.Supp.2d 388 (D.P.R. 2010)); compare Rivera Maldonado v. Hospital Alejandro Otero
28

López, 614 F.Supp.2d 181, 198 (D.P.R. 2009) (“The Puerto Rico Court of Appeals [has] found
that it stems from the text of the act that the sanctions imposed therein are only against the
employer, and thus, the statute contains no provision imposing personal liability.”) (citing Vargas
Santiago v. Lilliam Álavarez Moore, No. DPE-2004-0541, 2006 WL 3694659, at *5 (P.R. Cir.
Nov. 29, 2006)); with Arroyo-Pérez v. Demir Group Intern, 733 F.Supp.2d 322, 324 (D.P.R.
2010) (denying motion to dismiss Law 115 claims for personal liability) (citing Hernandez v.
Raytheon Serv. Co.P.R., 05-1937 (CCC), 2006 WL 1737167 (D.P.R. Apr. 27, 2006)) and RamosSantos v. Hernandez-Nogueras, 867 F. Supp. 2d 235, 261 (D.P.R. 2012) (“Additionally, claims
for violations of Laws 115 and 426 may be brought against individual employees. This court has
held that Law 115 allows for individual liability against a supervisor who retaliates against an
employee.”). Notwithstanding this split of authority, a review of the Proposed Pretrial Order
reveals that it makes no reference to Law 115 or any mention that Casillas retaliated against
plaintiff in any manner for voicing her concerns regarding her job duties or the selection process
for the Head Assistant of Purchasing and Auctions position.13 In light of the same, plaintiff shall
show cause at the Pretrial and Settlement conference why her Law 115 claim should not be
dismissed.
Finally, Article 1802 provides that a person who “causes damages to another through
fault or negligence” shall be liable in damages. P.R. Laws Ann. tit. 31, § 5141. A plaintiff may
not bring claims under Articles 1802 and 1803 based on the same allegations which underlie a
13

The proposed pretrial order states: “This is an action arising under the 1 st, [sic] Amendment to the Constitution of
the United States of America and 42 U.S.C. § 1983 and § 1988, as well as Articles 1802 and 1803 of the Puerto Rico
Civil Code, 31 L.P.R.A. § 5141 and § 5142; the Constitution of Puerto Rico as a result of the violation of Plaintiff’s
freedom of association; Law 100 of June 30, 1959, as amended, 29 LPRA § 146-151; Jurisdiction over Federal
claims is invoked pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343 and 42 U.S.C. 1983. Supplemental Jurisdiction is
requested over the State law based on Law 100; under the Constitution and Laws of Puerto Rico, and; under 28
U.S.C. §1367 . . . .” ECF No. 63, at 3. Local Rule 16(d)(2) requires the parties to provide “a brief factual statement
of each party’s claim or defense . . . .” Furthermore, a review of plaintiff’s proposed jury instructions reveals that she
has not proposed an instruction regarding the elements of a retaliation claim; she makes only a conclusory reference
to “the right to be free from . . . retaliation” in the damages section of her instructions. ECF No. 75, at 18.

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political discrimination claim pursuant to Law 100. Cotto v. Muni. Of Aibonito, Civ. No. 102241 (JAG), 2012 WL 1110177, at *19 (D.P.R. April 2, 2012) (“Since the gravamen of
Alvarado’s state law claim is political discrimination pursuant to Law 100, Alvarado is precluded
from also bringing suit under Article 1802 and 1803.”); Medina v. Adecco, 561 F.Supp.2d 162,
176 (D.P.R. 2008) (“Medina based her Article 1802 claim on the same conduct that supports her
employment law claims; she alleged not independently tortious conduct. Accordingly, the court
must dismiss Medina’s Article 1802 claim.”). A review of the complaint does not reveal
allegations of any tortious conduct distinct from that which is related to plaintiff’s discrimination
claims. Therefore, the Article 1802 and 1803 claims against defendants are dismissed with
prejudice.
V.

CONCLUSION

Based on the foregoing analysis, defendants’ motion for summary judgment is
GRANTED IN PART AND DENIED IN PART, as follows. Pursuant to the doctrine of Eleventh
Amendment sovereign immunity, all federal claims for monetary damages against PRPA and
Casillas in his official capacity are dismissed with prejudice. With respect to plaintiff’s cause of
action for political discrimination in violation of the First Amendment, her claim with respect to
the “deprivation” of her duties as Special Aide for the Office of HR survives, but her claim with
regard to the application process for the Head Assistant of Purchasing and Auctions position is
dismissed, with prejudice. Casillas’ individual capacity request for qualified immunity is
DENIED. With regard to plaintiff’s supplemental law claims, although defendants’ request to
dismiss them pursuant to § 1367(c)(3) is DENIED, plaintiff’s Law 100 claims are dismissed with
prejudice against PRPA and Casillas in his official capacity. Plaintiff’s Law 100 claim related to
the failure to promote her to the Head Assistant of Purchasing and Auctions position is dismissed

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with prejudice as to Casillas in his individual capacity, but the Law 100 claim as to Casillas in
his personal capacity, with respect to the allegations that plaintiff was deprived of her duties,
survives. All claims against all parties under Articles 1802 and 1803 are dismissed with
prejudice. Plaintiff’s Law 115 claims for monetary damages against PRPA and the Authority are
barred by the doctrine of sovereign immunity and thus are dismissed. At or before the Pretrial
and Settlement Conference, plaintiff shall show cause as to why her Law 115 claims for
injunctive relief and for monetary damages against Casillas in his individual capacity should not
be dismissed.
IT IS SO ORDERED
In San Juan, Puerto Rico, this 28th day of August, 2014.
s/Marcos E. López
U.S. Magistrate Judge

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