Gil-Caraballo et al v. Commonwealth of Puerto Rico, et al

Filing 83

OPINION AND ORDER denying 66 Motion for Summary Judgment. Signed by Judge Daniel R. Dominguez on 8/31/2015. (MM)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

ARNOLD GIL CARABALLO, et al.
Plaintiffs,
v.
Civil No. 13-1309 (DRD)
COMMONWEALTH
et al.,

OF

PUERTO

RICO,

Defendants.

OPINION AND ORDER
Plaintiffs Arnold Gil Caraballo (“Gil”), Joel Ramos Beltrán
(“Ramos”),

and

“Plaintiffs”),

Noel
along

Román
with

Ferrer

Nanette

(“Román”)
Guevara

(collectively,

and

the

conjugal

partnership of Gil-Guevara, filed the instant complaint against
Defendants
Secretary

Commonwealth
of

the

of

Puerto

Department

of

Rico

(“Commonwealth”),

Correction

and

the

Rehabilitation

José R. Negrón Fernández (“Negrón”), Captain Ramón López López
(“López”),

and

Lieutenant

David

Cruz

Fernández

(“Cruz”)

(collectively, “Defendants”), alleging political discrimination.
Plaintiffs

bring

this

action

under

Section

1983,

alleging

violations under the First, Fifth, and Fourteenth Amendments to
the

Constitution

Plaintiffs

also

of
seek

the

United

relief

States.

under
1

the

See

Docket

Constitution

No.

11.

of

the

Commonwealth of Puerto Rico and Puerto Rico law. Pending before
the Court is Defendants’ Motion for Summary Judgment. See Docket
No. 66.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs

are

three

(3)

sergeants

at

the

Puerto

Rico

Department of Corrections who are also affiliated to the New
Progressive
Aguadilla

Party

(“NPP”).

Detention

They

Center

for

had
many

been
years

assigned
before

to

the

they

were

transferred to a detention center in the west of Mayaguez. See
Docket No. 51 ¶ 1-3, 6, 16, 28, 31, 38, 66, 68; Docket No. 64-1
¶

2-14.

On

February

28,

2013,

all

three

Plaintiffs

were

presented with transfer letters signed by Defendant Negrón, and
personally

delivered

by

Defendant

López,

ordering

their

transfers to the Mayaguez facility.1
On June 21, 2013, Plaintiffs filed an Amended Complaint
(Docket No. 11) claiming their transfers had no legal basis and
were intentionally granted in violation of their First Amendment
rights. Plaintiffs further aver that their relocation to the
Mayaguez center was solely politically motivated, as a result of
the new government sworn in on January 2013, subsequent to the
November

2012

election

that

resulted

in

the

victory

of

the

Popular Democratic Party (“PDP”). Furthermore, Plaintiffs avow
that,

as

a

consequence

of

their

1

transfer,

they

have

been

For a more detailed summary of facts, refer to the Court’s Opinion and Order
dated January 7, 2014. See Docket No. 24, at 2-4.
2

assigned to work

rotating shifts (as opposed to the regular

schedule exerted at the Aguadilla Department of Correction) and
are now incurring in additional transportation expenses. Lastly,
Plaintiffs assert that their previous positions at the Aguadilla
facility are now occupied by employees affiliated to the PDP.
On January 7, 2014 this Court entered an Opinion and Order
(Docket

No.

24)

dismissing

Plaintiffs’

Fourth

and

Fourteenth

Amendment claims, along with all claims presented by Nanette
Guevara and her conjugal partnership with Gil Caraballo, and all
Section

1983

claims

for

monetary

damages

against

the

Commonwealth and all official capacity defendants. Plaintiffs’
First

Amendment

equitable

and

Commonwealth

and

compensation

for

personal

and

substantive

prospective
the

capacities,

were

law

injunctive

official

damages

state

capacity

against
not

all

dismissed

claims,

relief

both

against

Defendants,
Defendants
and

for
the

and

for

in

their

therefore

remain

viable causes of action. See Docket No. 24.
On November 14, 2014 Defendants filed a Motion for Summary
Judgment (Docket No. 66) on all remaining claims. Defendants
argue that Plaintiffs fail to establish a prima facie case of
political

discrimination

under

the

First

Specifically, Defendants contend that Plaintiffs

Amendment.
cannot prove

that Defendants were aware of their political affiliation, or
that their transfers from Aguadilla to the Mayaguez facility, as
3

well as their reassignments to rotating shifts, amount to an
adverse employment action under the First Amendment. Moreover,
Defendants assert that Defendant Negrón is entitled to qualified
immunity. Finally, Defendants seek the dismissal of all pendant
state law claims and injunctive relief.
On

January

Opposition

to

23,

2015,

Defendants’

Docket No. 64.

Plaintiffs
Motion

for

filed

a

Summary

Plaintiffs contend that

Response
Judgment.

in
See

Defendant López was

aware of Plaintiffs’ NPP political affiliations and that there
are genuine issues of material fact as to whether Defendants
Cruz and Negrón were aware of Plaintiff’s political sympathies.
Moreover, they assert that Plaintiffs’ transfers and assignments
to

rotating

under

the

shifts
First

are

adverse

Amendment.

employment

Lastly,

actions

Plaintiffs

cognizable
argue

that

qualified immunity is not warranted in the instant case.
II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS
Rule 56 of the Federal Rules of Civil Procedure provides
that summary judgment should be entered where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.”
56(c);
(1986).

see

Celotex

Corp.

v.

Catrett,

477

FED. R. CIV. P.

U.S.

317,

324-325

Pursuant to the clear language of the rule, the moving
4

party bears a two-fold burden: it must show that there is “no
genuine issue as to any material facts;” as well as that it is
“entitled to judgment as a matter of law.”

Veda-Rodriguez v.

Puerto Rico, 110 F.3d 174, 179 (1st Cir. 1997).

A fact is

“material” where it has the potential to change the outcome of
the suit under governing law.

See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

A fact is “genuine” where a

reasonable jury could return a verdict for the nonmoving party
based on the evidence.

Id.

Thus, it is well settled that “the

mere existence of a scintilla of evidence” is insufficient to
defeat a properly supported motion for summary judgment.

Id.

After the moving party meets this burden, the onus shifts
to the non-moving party to show that there still exists “a trial
worthy issue as to some material facts.”

Cortes-Irizarry v.

Corporacion Insular, 11 F.3d 184, 187 (1st Cir. 1997).
At the summary judgment stage, the trial court examines the
record

“in

the

light

most

flattering

to

the

non-movant

and

indulges in all reasonable references in that party’s favor.
Only if the record, viewed in this manner and without regard to
credibility determinations, reveals no genuine issue as to any
material fact may the court enter summary judgment.”
v. Hayes, 116 F.3d 957, 959-60 (1st Cir. 1997).

Cadle Co.

“Credibility

determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury
5

functions, not

those of a judge.”

Reeves v. Sanderson Plumbing Prod., 530 U.S.

133, 150 (2000)(quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250-51, 106 S.Ct. 2505 (1986)).

Summary judgment is

inappropriate where there are issues of motive and intent as
related to material facts.

See Poller v. Columbia Broad. Sys.,

369 U.S. 470, 473, 82 S.Ct. 486 (1962)(summary judgment is to be
issued “sparingly” in litigation “where motive and intent play
leading roles”); see also Pullman-Standard v. Swint, 456 U.S.
273, 288, 102 S.Ct. 1781 (1982)(“findings as to design, motive
and intent with which men act [are] peculiarly factual issues
for the trier of fact.”);

see

also

Dominguez-Cruz v. Suttle

Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)(finding that
“determinations of motive and intent . . . are questions better
suited for the jury”).

“As we have said many times, summary

judgment is not a substitute for the trial of disputed factual
issues.”
178-179

Rodríguez v. Municipality of San Juan, 659 F.3d 168,
(1st

Cir.

2011)(internal

quotations

and

citations

omitted).

Conversely, summary judgment is appropriate where the

nonmoving

party

improbable

rests

inferences

solely
and

upon

“conclusory

unsupported

allegations,

speculation.”

Ayala-

Gerena v. Bristol Myers-Squibb Co., 85 F.3d 86, 95 (1st Cir.
1996).

However,

while

the

Court

“draw[s]

all

reasonable

inferences in the light most favorable to [the non-moving party]
. . . we will not draw unreasonable inferences or credit bald
6

assertions,

empty

conclusions

or

rank

conjecture.”

Vera

v.

McHugh, 622 F.3d 17, 26 (1st Cir. 2010)(internal quotations and
citation omitted).
to

conclusory

Moreover, “we afford no evidentiary weight
allegations,

empty

rhetoric,

unsupported

speculation, or evidence which, in the aggregate, is less than
significantly

probative.”

Tropigas

De

P.R.

v.

Certain

Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.
2011)(internal citations omitted).
Further, the Court will not consider hearsay statements or
allegations presented by parties that do not properly provide
specific reference to the record. See D.P.R. CIV. R. 56(e)(“The
[C]ourt may disregard any statement of fact not supported by a
specific citation to the record material properly considered on
summary judgment.
search

or

The [C]ourt shall have no independent duty to

consider

referenced.”);

any

part

of

the

record

not

specifically

see also Morales v. Orssleff’s EFTF, 246 F.3d

32, 33 (1st Cir. 2001)(finding that, where a party fails to
buttress factual issues with proper record citations, judgment
against that party may be appropriate);
Inc.,

895

F.2d

46,

50

(1st

Cir.

Garside v. Osco Drug,

1990)(“Hearsay

evidence,

inadmissible at trial, cannot be considered on a motion for
summary judgment.”).2
2

D.P.R. CIV. R. 56(b), often referred to as the anti-ferret rule, requires the
party moving for summary judgment to submit a “separate, short, and concise
statement of material facts, set forth in numbered paragraphs, a s to which
7

If a defendant fails to file an opposition to the motion for
summary judgment, the district court may consider the motion as
unopposed and disregard any subsequently filed opposition. Velez
v.

Awning

Windows,

Furthermore,
uncontested

the

Inc.,

375

district

statements

of

F.3d

court
fact.

35,

41

must
Id.

(1st

take

at

Cir.

as

41-42;

2004).

true

see

any

D.P.R.R.

311.12; see Morales, 246 F.3d at 33 (“This case is a lesson in
summary judgment practice …. [P]arties ignore [Rule 311.12] at
their

own

disputed

peril,
facts,

and

…

failure

embroidered

with

to

present

specific

a

statement

citations

to

of
the

record, justifies deeming the facts presented in the movant’s
statement of undisputed facts admitted.”)(internal citations and
quotations omitted); see also Euromodas, Inc. v. Zanella , Ltd.,
368 F.3d 11, 14-15 (1st Cir. 2004).

However, not filing a

timely opposition does not mean that summary judgment will be
automatically entered on behalf of the moving party, as the
court “still has the obligation to test the undisputed facts in
the crucible of the applicable law in order to ascertain whether
judgment is warranted.” See Velez, 375 F.3d at 42.

the moving party contends there is no genuine issue
Similarly, the non-moving party is required to submit
“admit[ing], deny[ing] or qualify[ing] the facts by
numbered paragraph in the moving party’s statement of
unless a fact is admitted, shall support each denial
record citation.” D.P.R. CIV. R. 56(c).
8

of material fact.”
a counter-statement
reference to each
material facts and
or qualification by

III. LEGAL ANALYSIS
Section 1983 Claims in General
Section 1983 is the customary vehicle through which relief
is

sought

for

claims

of

political

discrimination

by

state

actors. Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 46
(1st Cir. 2012). For this purpose, Puerto Rico is the functional
equivalent of a state. Santiago v. Puerto Rico, 655 F.3d 61, 69
(1st

Cir.

2011).

Section

1983

“creates

a

private

right

of

action for redressing abridgments or deprivations of federally
assured rights.” Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 6 (1st Cir. 2005). As manifested by the
Supreme

Court,

Section

1983

“is

not

itself

a

source

of

substantive rights, but merely provides a method for vindicating
federal rights elsewhere conferred.” Graham v. Connor, 490 U.S.
386, 393-94 (1989). Moreover, in view that a Section 1983 claim
does

not

contain

a

built

in

limitations

period,

a

court

addressing this type of claim must borrow “the appropriate state
law governing limitations [statutory time] unless contrary to
federal law.” Poy v. Boutselis, 352 F.3d 479, 483 (1st Cir.
2003).
A claim pursuant to Section 1983 must satisfy two essential
elements: “the defendant must have acted under color of state
law, and his or her conduct must have deprived the plaintiff of
rights secured by the Constitution or by federal law.” Grajales,
9

682 F.3d at 46; Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st
Cir. 2008). There are two aspects to the second inquiry: “(1)
there

must

have

been

a

deprivation

of

federally

protected

rights, privileges or immunities, and (2) the conduct complained
of

must

have

been

causally

connected

to

the

deprivation.”

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.
1989). Plaintiffs’ Section 1983 claims, as expressed below, are
grounded upon infringements of the First Amendment.
First Amendment Claim
Its

hornbook

proscribed

by

law

the

that

First

political

Amendment

of

discrimination
the

United

is

States

Constitution. Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973). As
the

First

particular

Circuit

political

association
protected

has

and
by

the

remarked,

party

freedom
First

of

is

the

freedom

“integral
political

Amendment.”

to

to
the

expression

Cortes-Reyes

support
freedom
that
v.

a
of

are

Salas-

Quintana, 608 F.3d 41, 48 (1st Cir. 2010). Moreover, it is well
established that these protections prohibit government officials
from taking adverse employment action against non-policymaking
public employees due to the employee’s affiliation. Welch v.
Ciampa, 542 F.3d 927, 938 (1st Cir. 2008).
In order to succeed on a claim of political discrimination,
a plaintiff must establish that (1) the plaintiff and defendant
have opposing political affiliations, (2) the defendant is aware
10

of the plaintiff’s affiliation, (3) an adverse employment action
occurred, and (4) political affiliation was a substantial or
motivating

factor

for

the

adverse

employment

action.

Torres-

Santiago v. Municipality of Adjuntas, 693 F.3d 230, 236 (1st
Cir. 2012); Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 13
(1st Cir. 2011); Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 239
(1st

Cir.

producing
which

a

2010).

sufficient
jury

direct

reasonably

constitutionally
motivating

Plaintiffs

protected

factor

behind

bear
or

the

threshold

circumstantial

may

infer

conduct

was

their

burden

evidence

that

of
from

plaintiffs'

a

substantial

or

dismissal.

Acevedo-Diaz

v.

Aponte, 1 F.3d 62, 66 (1st Cir. 1993). Once the plaintiffs’
prima facie burden is met, “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 against the
employee even in the absence of the protected conduct.” ReyesPerez v. State Ins. Fund Corp., 755 F.3d 49, 54 (1st Cir. 2014);
see also Angulo-Alvarez v. Aponte de la Torre, 170 F.3d 246, 249
(1st Cir. 1999).
In the instant case, it is the Defendants’ position that
this Court should dismiss Plaintiffs’ political discrimination
claims

in

view

that

Plaintiffs

are

unable

to

establish

the

second and third prongs of their prima facie case. See Docket
11

No. 66. Specifically, they argue that: 1) Defendants were not
aware of Plaintiffs’ political affiliations before the complaint
was

filed,

Mayaguez

and

and

2)

their

that

their

transfers

reassignments

to

from

rotating

Aguadilla
shifts

do

to
not

amount to an adverse employment action. Accordingly, the Court
proceeds

to

consider

whether

Plaintiffs

adequately

met

their

prima facie burden and, if so, whether the record supports the
existence of a genuine issue of material fact sufficient to
defeat Defendants’ Motion for Summary Judgment.
1. Knowledge
First, Defendants argue that Plaintiffs have not established
Defendants’

awareness

of

their

affiliation.3

political

Specifically, Defendant Negrón contends that he never personally
met

Plaintiffs,

who

therefore

never

verbally

expressed

their

political affiliations to him. See Docket No. 51, SUMF ¶ 93-99.
Moreover, Defendants support their claim by arguing that Negrón
did

not

participate

in

the

process

that

culminated

in

Plaintiffs’ transfers, but instead delegated the task to the DCR
Security

office,

then

led

by

nonparty

Colonel

Pedro

Morales

Montilla. Id. at ¶ 91. We disagree.
It is well established that “circumstantial evidence can
suffice

to

show

a

defendant's

knowledge

of

a

plaintiff's

political party.” Ocasio-Hernandez v. Fortuño-Burset, 777 F.3d
3

The Court notes that Defendants do not argue that Captain López was not
aware of Plaintiffs NPP sympathies.
12

1, 7 (1st Cir. 2015); see also Martinez–Vélez v. Rey–Hernández,
506

F.3d

32,

44

(1st

Cir.

2007)

(noting

that

a

jury

could

reasonably infer that the defendant was aware of the plaintiff's
NPP affiliation based on testimony that the plaintiff “spoke
openly about her political views and sat in the NPP portion of
the de facto segregated cafeteria”). Moreover, the First Circuit
has

observed

defendants’

that

genuine

awareness

of

issues

of

plaintiffs’

material

fact

political

as

to

affiliation

precludes summary judgment of a First Amendment claim. GarciaGonzalez v. Puig-Morales, 761 F.3d 81 (1st Cir. 2014).
In the instant matter, Plaintiffs offered testimony claiming
that Defendant Negrón was made aware of Plaintiffs’ political
affiliations

by

Defendant

Cruz.

Specifically,

they

aver

that

Cruz had been tasked by Negrón to identify members of the NPP at
the agency. In addition, Plaintiffs testified that they were
consistently mocked by Cruz as well as other co-workers with
regard to their transfers from the institution. See Docket No.
64-1, SUMF ¶ 31-33. However, it is Defendant Negrón’s position
that he never issued this command. See Docket No. 51, SUMF ¶
104. Additionally, Cruz further testified he did not participate
in these transfers in any manner. Id at ¶ 91-92.

Nonetheless,

this Court understands that this allegation constitutes a prima
facie circumstantial inference that Defendant Negrón was aware
of Plaintiffs’ political affiliations before the complaint was
13

issued. Plaintiffs were active members of the NPP at the time of
their transfers. See Docket 64-1, SUMF ¶ 2, 7, 12.

They have

testified that Cruz was an aid of Negrón in identifying NPP
members at the DCR, that they were consistently mocked about
their transfers, and that no reason was given to them related to
their transfer to the Mayaguez facility. Id. at ¶ 30-33, 40.
Moreover,

Plaintiffs

claim

their

previous

positions

at

the

Aguadilla Detention Center have been occupied by PDP employees.
Id. at ¶ 43. These circumstances, combined with their temporal
proximity to Plaintiffs’ transfers, are sufficient to create a
reasonable inference in favor of the Plaintiffs that Negrón had
knowledge of all three Plaintiffs’ political affiliations.
Similarly,

we

disagree

with

Defendants’

argument

that

Plaintiffs cannot adequately establish that Cruz knew of their
political affiliations prior to the filing of the complaint.
During his sworn deposition, Cruz acknowledged he has known all
three Plaintiffs for the past 7 to 10 years. See Docket 64-1,
SUMF ¶ 28. Moreover, the evidence shows that, during that time,
Plaintiffs

and

Defendant

Cruz

were

well

known

for

their

political sympathies. Plaintiffs are prominently known members
of the NPP who actively participated in political activities in
the region, and Cruz served as President of the organization of
PDP employees at the DCR. See Docket 64-1, SUMF ¶ 2, 7, 12, 2426.

Additionally, in their sworn depositions, Plaintiffs Ramos
14

and Román claimed they specifically told Defendant Cruz that
they

were

members

of

the

NPP.

See

Docket

64,

Exhibit

B,

Deposition of Ramos, page 22, lines 2-15; Exhibit C, Deposition
of

Román,

page

42,

lines

17-23,

page

43,

lines

3-12.

Furthermore, all three Plaintiffs stated that Cruz alluded to
their political affiliations as he was telling them that they
were going to be transferred out of Aguadilla. Specifically,
Plaintiffs aver that Cruz made statements such as: “You do not
have much time here; you are going to be transferred out of
here,” “When we win the job positions are going to be for us,”
and “I’m going to take you out.” See Docket 64, Exhibit A,
Deposition of Gil, page 33, lines 7-22; Exhibit B, Deposition of
Ramos, page 28, lines 14-24, page 39, lines 15-25, page 31, line
1;

Exhibit

C,

Deposition

of

Román,

page

42,

lines

1-16.

In

addition, Plaintiffs testified that Cruz expressly made comments
about

politics

in

the

workplace

and

mocked

them

for

their

political affiliation. See Docket 64-1, SUMF ¶ 33. Thus, the
totality of the circumstances and the evidence on the record
force

the

Court

to

examine

inferences

thereto

in

Plaintiffs,

meaning

that

the

the

evidence

light

most

was

aware

Cruz

and

all

favorable
of

their

reasonable
to

the

political

affiliation before the complaint was filed. Viewing these facts
in the light most favorable to the Plaintiffs, and drawing all
reasonable inferences in their favor, we conclude that there is
15

a genuine issue of material fact as to whether Defendants were
aware of Plaintiffs’ political affiliations at the time of the
transfer.

Answering

this

question

calls

for

“credibility

determinations, the weighing of the evidence and the drawing of
legitimate inferences from the facts, all tasks for the jury,
not the judge.” Garcia-Gonzalez, 761 F.3d at 99.
2. Adverse Employment Action
Defendants

next

argue

that

Plaintiffs’

transfers

from

Aguadilla to Mayaguez and their assignments to rotating shifts
are

not

adverse

employment

actions

protected

by

the

First

Amendment. See Docket No. 66. For First Amendment purposes, an
adverse employment action occurs “if those actions, objectively
evaluated, would place substantial pressure on even one of thick
skin to conform to the prevailing political view.” Rodríguez–
García

v.

Miranda–Marín,

610

F.3d

756,

766

(1st

Cir.2010)

(internal citations omitted). This level of burden is achieved
when

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). “To evaluate whether the changes were sufficiently
severe to warrant the
fact-finder

should

plaintiff's

job

Toledo

has

Fernandez,

‘unreasonably inferior’

canvass

the

changed.”
405

F.3d

specific
Id;
21,

16

see

ways

also

23-24

description—the
in

Ortiz

(1st

which
Garcia

Cir.

the
v.

2005).

Furthermore, it is well established that, for claims arising
under

the

demotion,

First

Amendment,

including

actions

denials

of

short

of

promotions,

dismissal

transfers,

or
and

failures to recall after layoff, constitute adverse employment
actions. Morales-Tañon v. Puerto Rico Elec. Power Auth., 524
F.3d 15, 19 (1st Cir. 2008) (emphasis ours); See also Rutan v.
Republican Party of Ill., 497 U.S. 62 (1990); Torres-Santiago v.
Municipality of Adjuntas, 693 F.3d 230, 237 (1st Cir. 2012).
In

the

instant

case,

Defendants

argue

that

Plaintiffs’

transfers from Aguadilla to Mayaguez did not result in a work
environment unreasonably inferior to the norm for the position,
and therefore, did not constitute an adverse employment action.
In support of their position, Defendants, citing First Circuit
precedent, argue that a purely lateral transfer, that is, a
transfer that does not involve a demotion, cannot rise to the
level of a materially adverse employment action. See Docket No.
66. Defendants incorrectly rely on Marrero v. Goya of Puerto
Rico, Inc.,4 a case that does not involve a First Amendment
Claim, but rather arises under Title VII of the Civil Rights
Act.

Nevertheless,

the

Court

in

Marrero

v.

Goya

expressly

acknowledges that, although a transfer that results in minor
changes
4

of

work

conditions

does

not

constitute

an

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7 (1st Cir. 2002).

17

adverse

employment action, “courts have rejected any bright line rule
that a transfer cannot qualify as an ‘adverse employment action’
unless

it

results

in

a

diminution

in

salary

or

a

loss

of

benefits.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 24
(1st Cir. 2002). Furthermore, the First Circuit has previously
expressed that in First Amendment claims a reasonable jury could
conclude that an adverse employment action was suffered when an
involuntary transfer altered an employee’s job duties and work
environment, in spite that the same salary and job title were
retained. See Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756,
766-67 (1st Cir. 2010).
Defendants

assert

that

Plaintiffs’

cannot

adequately

establish an adverse employment action in light that following
their transfers Plaintiffs retained their job titles, salaries,
and

same

responsibilities

Additionally,

they

argue

as
that

other
the

Mayaguez

rotating

sergeants.

shifts

which

Plaintiffs’ endured subsequent to their transfers (as opposed to
the regular schedule they exerted at the Aguadilla facility) are
normal to their positions as sergeants. See Docket 51, SUMF ¶ 5,
18, 22, 38, 42-44, 49, 64, 85-86, 89; Docket 64-1, SUMF ¶ 5, 10,
15, 34.
of

Finally, Defendants contend that the change of location

Plaintiffs’

unreasonably

employment

inferior

work

is

insufficient

environment

18

in

to

amount

view

that

to

an

their

commute only requires them to cross one or two municipalities.
We disagree with the Defendants’ position.
Although it is true that all three Plaintiffs retained the
same job title and salary after their transfer to the Mayaguez
facility, it is possible that a juror could determine that an
adverse

employment

Aguadilla
regular

action

facility,

shifts

and

in

fact

Plaintiffs
low

job

occurred.

enjoyed

related

a

While

shorter

expenses.

at

the

commute,

However,

their

transfer to Mayaguez has impacted their daily work experiences.
Specifically, Plaintiffs now incur in a longer commute, greater
expenses, and a change in work schedule. See Docket 64-1, SUMF
¶5, 10, 15, 44-59. Whether these circumstances are “unreasonably
inferior” and therefore, enough to establish that an “adverse
employment action” occurred, is an issue of fact for the jury to
decide.

Further,

the

matter

of

the

transfer

constitutes

an

action infused with issues as to motive and intent which belong
to a jury determination. See Poller, 369 U.S. at 473; PullmanStandard, 456 U.S. at 288; Dominguez-Cruz, 202 F.3d at 433.
In light of the aforementioned, we find that Plaintiffs have
met their burden of demonstrating a genuine issue of material
fact as to the prima facie elements of their First Amendment
claim. Viewed in the light most favorable to the Plaintiffs, the
summary judgment record amply demonstrates that a rational fact
finder could conclude that the transfers both constituted an
19

adverse

action

Therefore,

we

and

stemmed

hereby

DENY

from

a

discriminatory

Defendants’

move

for

animus.

dismissal

of

Plaintiffs’ political discrimination claims.
Qualified Immunity
Finally, Defendants assert that Secretary Negrón is entitled
to qualified immunity for his actions. See Docket No. 66. The
qualified immunity doctrine is known to protect public officials
from “the specter of damages liability for judgment calls made
in a legally uncertain environment.” Ryder v. United States, 515
U.S. 177, 185 (1995). It “provides defendant public officials
immunity

from

suit

and

not

a

mere

defense

to

liability.”

Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). Under
this doctrine, entitlement to immunity is warranted if there is
no violation of “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Mitchell
v.

Forsyth,

472

U.S.

511,

524

(1985)

(citing

Harlow

v.

Fitzgerald, 457 U.S. 800, 818 (1982)).
A two-part test shapes the qualified immunity inquiry. A
court should deny a defendant qualified immunity if: (1) the
facts

a

plaintiff

has

either

alleged

or

shown

establish

a

violation of a constitutional right; and (2) the constitutional
right

at

issue

was

clearly

established

at

the

time

of

the

defendant's alleged violation. Cortes-Reyes v. Salas-Quintana,
608

F.3d

41,

51

(1st

Cir.

2010).
20

Law

is

considered

clearly

established
materially

“either
similar

if

courts

conduct

was

have

previously

unconstitutional,

ruled
or

that
if

‘a

general constitutional rule already identified in the decisional
law [applies] with obvious clarity to the specific conduct’ at
issue.” Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 527
(1st Cir. 2009); see also Jennings v. Jones, 499 F.3d 2, 16 (1st
Cir.2007). Furthermore, it has been interpreted that a right is
clearly

established

sufficiently

clear

if
such

the

contours

that

“a

of

the

reasonable

right

official

are
would

understand that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 640 (1987). That is, “a right is
clearly established if, at the time the defendant acted, he was
on clear notice that what he was doing was unconstitutional.”
Costa-Urena v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009). As to
clearly established law concerning First Amendment claims, the
First Circuit has indicated that “the clearly established law
both in this circuit and beyond precludes government officials
from discharging civil or ‘career’ employees for politicallymotivated reasons.” Acevedo-Garcia v. Monroig, 351 F.3d 547, 564
(1st Cir. 2003).
Regarding this two-part analysis, it has been observed that
both

questions

are

matters

of

law

for

the

court

to

decide.

However, the First Circuit has expressed that the “objective
reasonableness of the offense,” although also a question of law,
21

is a matter that must be determined by the jury when there are
factual

disputes

as

to

material

issues

of

fact.

Kelley

v.

LaForce, 288 F. 3d 1, 6-7 (1st Cir. 2002). That is, “while
preliminary factual questions regarding qualified immunity are
sent to the jury, the legal question of the availability of
qualified

immunity

is

‘ultimately

committed

to

the

court's

judgment.’” Rodriguez-Marin v. Rivera-Gonzalez, 438 F.3d 72, 8384 (1st Cir. 2006).
Having discussed the applicable two-pronged analysis for a
qualified immunity defense, the Court now refrains from applying
the test to the facts of the case because there are unresolved
issues of fact at this time that preclude the need for such an
analysis. Concerning the qualified immunity defense, the First
Circuit has observed the following:
pretrial resolution sometimes will be impossible
because of a dispute as to material facts. In such a
case, the factual issues must be decided by the trier
of fact, thereby precluding summary judgment. Only
after the facts have been settled can the court
determine
whether
the
actions
were
objectively
reasonable so as to fall under the qualified immunity
umbrella.
Kelley v. Laforce, 288 F.3d
at 7 (1st Cir.2002) (citations
omitted); see also Rodriguez-Marin, 438 F.3d 83-84 (1st Cir.
2006).
As previously proclaimed, issues of fact remain as to Defendant
Negrón’s motivations and intent, if any, at the time of the

22

alleged

violation

Therefore,

it

to

cannot

Plaintiffs’
be

First

determined

Amendment

whether

the

Claim.

qualified

immunity defense is available to Defendant Negrón Fernandez at
this time. The qualified immunity defense cannot be adjudicated
until this factual dispute is resolved by the appropriate trier
of

fact-the

jury.

It

is

often

remarked

that

the

Court

must

always proceed with caution in the qualified immunity context,
as the Court now does, because the fact-specific nature of the
defense leaves “ample room for mistaken judgments.” Malley v.
Briggs, 475 U.S. 335, 343 (1986). The aforementioned facts in
controversy are enough to keep this Court from taking a headlong
leap into the qualified immunity inquiry at this point in time.
See Santa Carrasquillo v. Rey Hernandez, No. CIV. 01-1428 (DRD),
2005 WL 2206449, at *7-8 (D.P.R. Sept. 9, 2005); Velez-Herrero
v. Guzman, 330 F. Supp. 2d 62, 72 (D.P.R. 2004)(both refusing to
apply the qualified immunity doctrine at the summary judgment
stage

due

to

unresolved

motivations

for

the

Fernandez’s

qualified

warranted

at

this

Defendant

Negrón’s

issues

alleged

of

misconduct).

immunity

stage
request

of

fact

defense

the

for

as

to

Defendant
is

Negrón

therefore

proceedings.

summary

defendants

judgment

not

Consequently,
as

to

the

qualified immunity defense is hereby DENIED due to unresolved

23

issues

of

fact

that

preclude

entitlement

to

the

suggested

defense.5
Supplemental State Claims
Finally, defendants argue that all of plaintiffs’ pendent
state

law

Under

and

28

injunctive

U.S.C.

relief

claims

§1367

“the

supplemental

jurisdiction

over

all

related

claims

the

action

form

part

to

jurisdiction

that

in
they

should

district
other

courts
claims

within
of

be

the

dismissed.
shall

that

have

are

so

such

original

same

case

or

controversy.” Because federal claims still remain in the case at
bar,

the

court

will

refrain

from

assessing

Plaintiff’s

supplemental state law claims at this time, See Rodriguez v.
Doral

Mortg.

Accordingly,

Corp.,

57

F.3d

Defendants’

1168,
move

1176-77
to

(1st

dismiss

Cir.

1995).

Plaintiffs’

supplemental state law claims is hereby DENIED.
IV.CONCLUSION
In view of the above, the Court hereby DENIES Defendants'
Motion for Summary Judgment (Docket No. 66).

Plaintiffs have

met their burden of demonstrating a genuine issue of material

5

A jury instruction shall be given as to Defendant Negrón’s knowledge of
Plaintiffs’ political affiliation before, during, or after their transfers to
the Aguadilla facility. If the trier of fact were to find that Defendant
Negrón had knowledge of Plaintiffs’ political affiliation after the transfers
had taken place, then Negrón would either not be held liable or at least be
able to mitigate the potential effects of the transfers. For all other
Defendants, a jury instruction shall be provided as to their animus of
political discrimination.
24

fact as to the prima facie elements of their First Amendment
claim. Therefore, summary judgment is not warranted. Defendant
Negrón’s

request

for

summary

judgment

as

to

the

qualified

immunity defense is also DENIED due to unresolved issues of fact
that

preclude

Consequently,

entitlement
Plaintiffs’

to

the

supplemental

suggested
state

claims

defense.
remain

before the Court.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st day of August, 2015.
/s/ DANIEL R. DOMINGUEZ
DANIEL R. DOMINGUEZ
U.S. District Judge

25