Gomez - Cruz v. Fernandez - Pabellon et al

Filing 52

ORDER: Granting in Part and Denying in Part 13 "Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)." See opinion attached. Signed by Judge Pedro A. Delgado-Hernandez on 09/30/2014. (DJP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS GÓMEZ-CRUZ, et al.,
Plaintiffs,
CIVIL NO. 13-1711 (PAD)

v.
MARTA E. FERNÁNDEZ-PABELLÓN, et
al.,
Defendants.

OPINION AND ORDER
Carlos Gómez-Cruz, Brendaliz González-Méndez, Caira Berly-Rivera, Mariely GarcíaRuiz, Amer Ortiz-López, María Vázquez-Mojica, and Jorge Morales-Velázquez, initiated this action
against Marta Fernández-Pabellón, Vanessa Pintado-Rodríguez, Idalia Colón-Rondón, Elsa
Rodríguez-Valentín, Laura Santa-Sánchez, Wilda Ramos-Román, Carmen Annette Beltrán, and
Tamara Luciano-Fernández, alleging violations of the First, Fifth, and Fourteenth Amendments of
the United States Constitution, and of state law.
Before the Court is defendants’ “Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6)” – Docket No. 13 – which plaintiffs opposed at Docket No. 25. The defendants filed a reply
to plaintiff’s opposition at Docket No. 32, and plaintiffs sur-replied at Docket No. 42. For the reasons
explained below, the motion is GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND

Plaintiffs allege that following the November 6, 2012 general elections, the Popular
Democratic Party (“PDP”) took control of Puerto Rico’s Executive Branch and by extension, of the
Department of the Family (“DF”). After the PPD took over the DF, plaintiffs further contend, they

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terminated, demoted, transferred and/or deprived plaintiffs of their functions and harassed them on
account of their political affiliation (Docket No. 4). 1 They claim to be members of the New
Progressive Party (“NPP”), while the defendants are members of the opposing PDP. Id. at ¶¶ 79 and
18-25.
Defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), arguing that (1)
the complaint does not plead sufficient facts to state a claim upon which relief can be granted under
the First, Fifth, and Fourteenth Amendments; (2) the decisions they made were not based on political
considerations and as such, are subject to the defense set forth by the Supreme Court in Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S. 274 (1977); and (3) the DF, as an
instrumentality of the Commonwealth of Puerto Rico, is entitled to Eleventh Amendment
Immunity.
II.

STANDARD OF REVIEW

To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must allege a plausible
entitlement to relief. Rodríguez-Vives v. Puerto Rico Firefighters Corps., 743 F.3d 278, 283 (1st
Cir. 2014); Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013); RodríguezOrtiz v. Margo Caribe, 490 F.3d 92, 95 (1st Cir. 2007).
Plausibility involves a context-specific task calling on courts to examine the complaint as
a whole, separating factual allegations (which must be accepted as true) from conclusory
allegations (which need not be credited). García-Catalán v. United States, 734 F.3d 100, 103 (1st
Cir. 2013); Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012). While detailed factual
allegations are not required, more than labels and conclusions are needed. Ocasio-Hernández v.

1

Gómez-Cruz, González-Méndez, Berly-Rivera and Morales-Velázquez were terminated from their employment, while GarcíaRuiz, Ortiz-López and Vázquez-Mojica allege to have been demoted from their career positions within the department.

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Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged – but has
not shown – that the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 663, 678 (2009).
III.

DISCUSSION

A. First Amendment Claims
The Court has carefully evaluated each of the 343 paragraphs in the Amended Complaint
and finds that plaintiffs have plausibly pleaded a claim under the First Amendment (Docket No.
4). For example, the bulk of the complaint properly establishes each of the defendants’ positions
within the DF, their affiliation to the PDP, as well as their knowledge of plaintiffs’ affiliation to the
NPP. Id. at ¶¶ 79-107. In addition, the complaint contains a series of events which tend to prove
the existence of a politically-charged environment within the DF. Id. at ¶¶ 83, 96-106, 113, 114,
118, and 124. They also aver that Colón-Rondón terminated or demoted plaintiffs, presumably on
account of their political affiliations. Id. at ¶ 107. As to the remaining defendants, plaintiffs
specifically allege that they approved, condoned or disapproved of all personnel decisions,
including the adverse employment actions described in the amended complaint. Id. at ¶ 35, 74, 76,
90-91, 104-105, 112, 114, 123,125, 177, 191-193.
Viewing the pleadings as a whole, they appear to state a colorable First Amendment Claim.
On this ground, the motion to dismiss must be denied. The Mt. Healthy defense does not require
a different result. Courts in this district have consistently found this defense to be inapplicable
when evaluating the sufficiency of the pleadings. See, Landrón & Vera, LLP v. SomozaColombani, 2013 WL 2422807 *8 (D.P.R. June 3, 2013) and cases cited therein (discarding
defendants’ Mt. Healthy defense at the motion to dismiss stage); see also, Marti-Novoa v. FortuñoBurset, 2010 WL 3981917*9 (D.P.R. September 30, 2010) (holding that the Mt. Healthy burden-

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shifting analysis is not applicable at the pleadings stage). The Court finds no reason to deviate
from this ruling, and will accordingly refrain from addressing the issue at this juncture. Thus,
defendants’ Mt. Healthy-based request is denied.
B. Fifth Amendment Claims
Plaintiffs contend defendants deprived them of rights secured by the Fifth Amendment
(Docket No. 49 at ¶¶ 332-339). The First Circuit Court has held this Amendment applies only to
actions of the federal government – not to those of state or local governments. Martínez-Rivera v.
Sánchez-Ramos, 498 F.3d 3, 8 (1st Cir. 2007). Given that none of the defendants has been alleged
to be a federal actor, fifth amendment claims must be dismissed.
C. Fourteenth Amendment Claims
Defendants moved to dismiss plaintiffs Gómez-Cruz’ and Berly-Rivera’s claims under the
Fourteenth Amendment, arguing that (1) they were probationary employees at the time of their
discharge, and (2) therefore, they have no property rights for which process is due (Docket No. 13,
Exh. 1 at p. 21).
In the context employment termination cases, the employee must demonstrate that she was
deprived of that property interest without the minimum amount of process that was due under the
Constitution, including some kind of hearing and some pre-termination opportunity to respond.
Senra v. Town of Smithfield, 715 F.3d 34, 38-39 (1st Cir. 2013); see also Board of Regents v. Roth,
408 U.S. 564, 576-578 (1972). Ordinarily, probationary employees have no property right to
continued employment and as such, no right to notice and pre-termination hearing. See, FebusCruz v. Sauri-Santiago, 652 F.Supp.2d 140 (D.P.R. 2009) and cases cited therein.
Plaintiffs Gómez-Cruz, González-Méndez, Berly-Rivera, and Morales-Velázquez, allege
that they were terminated from their positions (Docket No. 4 at ¶¶ 11-13 and 17). The complaint

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asserts that plaintiffs González-Méndez and Morales-Velázquez, both career employees, were
allegedly terminated without notice or a prior hearing. Id. at ¶¶ 229 and 315. Accordingly, the
Court finds that at this juncture these plaintiffs have pled a plausible entitlement to relief under the
procedural due process component of the Fourteenth Amendment. As such, their claims will
remain.
Berly-Rivera began working at the DF in April 2007. Id. at ¶ 13. On December 1, 2011,
she was appointed to a career position and completed her probationary period on March 31, 2012.
Id. at ¶ 241. On December 5, 2012, she was appointed to another career position, this time as
Director of the “Amor y Vida” Shelter. Id. at ¶ 242. Her probationary period was scheduled to
end on August 5, 2013, but on April 30 of that same year, she received a termination letter on
grounds that there was no evidence that the aforementioned shelter was ever created. Id. at ¶ 243.
Berly-Rivera claims that pursuant to the DF’s Regulation No. 5455, she was entitled to
regular employee treatment and as such, to receive written notice 30 days before her termination,
informing her of her right to file an appeal. 2 To the extent the complaint asserts that Berly-Rivera
was dismissed without notice or pre-termination hearing as required by the Regulation No. 5455,
she has plausibly pled a claim under the Fourth Amendment. Id. at ¶ 245. Therefore, her claims
will remain.
Gómez-Cruz began working at the Administration for Socioeconomic Development of
Families (“ADSEF”) in February 2009 as a trust employee. Id. at ¶ 136. On September 4, 2012,

2

DF’s Regulation 5455 provides, in part, that probationary employees who immediately before acquiring such status
were regular employees shall be considered as regular employees. Id. at ¶ 171. In addition, the regulation states that
the Secretary shall provide written notice to all employees to be laid off at least 30 days before the effective termination
date, informing the employee of his right to file an appeal. And that no layoff shall be effective unless the notice
requirement is complied with. Id. at ¶ 172.

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he was appointed to a career position in the same department. Id. at ¶ 137. His probationary period
was supposed to end on March 3, 2013, but he received a termination letter on March 1, 2013,
effective on March 4, 2013. Id. at ¶ 11. According to the complaint, the letter adduced to the fact
that he had not approved his probationary period as a result of a single alleged incident. Id.
The complaint is devoid of any allegation claiming that Gómez-Cruz occupied a career
position at any point during his tenure with the DF. Accordingly, the Department’s Regulation No.
5455 is inapplicable to this particular plaintiff. To the extent that Gómez-Cruz was a probationary
employee at the time of his termination, he had no right to notice and pre-termination hearing. For
the same reason, his claims under the Fourteenth Amendment must fail.
D. Eleventh Amendment Argument
The defendants contend that any claims for monetary damages against them in their official
capacities and/or the department are barred by the Eleventh Amendment. However, plaintiffs
clarified they are not seeking monetary damages against these defendants (Docket No. 25, Exh. 1
at p. 31). On this ground, defendants’ request for dismissal must be denied.
E. Supplemental State Claims
The defendants request that plaintiffs’ state law claims be dismissed is predicated on the
assumption that the Court will dismiss all federal claims. To the extent the Court found that
plaintiffs have plausibly pled a colorable claim under the First Amendment, the request must be
denied.
F. CONCLUSION
In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART the
defendants’ motion to dismiss – Docket No. 13 – as follows:
•

The request to dismiss plaintiffs’ First Amendment claims is DENIED;

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•

To the extent it seeks dismissal of plaintiffs’ Fifth Amendment claims, defendants’
request is GRANTED;

•

Insofar as it seeks dismissal of plaintiff Gómez-Cruz’ claims under the Fourteenth
Amendment, defendants’ request is GRANTED.

•

The request to dismiss sate-law claims is DENIED.

Defendants may choose to revisit their dismissal request on a motion for summary judgment under
Fed. R. Civ. P. 56 on a later date if warranted, upon conclusion of discovery.
SO ORDERED.
In San Juan, Puerto Rico, this 30th day of September, 2014.
S/Pedro A. Delgado-Hernández
PEDRO A. DELGADO HERNANDEZ
U.S. DISTRICT JUDGE