Anaya-Padro et al v. Municipality of Arroyo et al
Filing
82
OPINION AND ORDER: Granting in part and denying in part 30 "Motion to Dismiss Second Amended Complaint as to Defendants Rodriguez-Valls, Cora, Crespo and Devarie"; Denying 32 "Motion to Dismiss Second Amended Complaint"; and Granting 63 "Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)". Accordingly, plaintiffs claims against Cora, Crespo, Devarie and Melendez Garcia are dismissed. Signed by Judge Pedro A. Delgado-Hernandez on 02/03/2014. (LMR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DIANA AYALA-PADRÓ, et al.,
Plaintiffs,
v.
CIVIL NO. 13-1876 (PAD)
MUNICIPALITY OF ARROYO, et al.,
Defendants.
OPINION AND ORDER
Plaintiffs initiated this action seeking declaratory and injunctive relief and damages under
Federal and Puerto Rico law (Docket No. 27). Before the Court are three (3) separate motions to
Dismiss: (1) “Motion to Dismiss Second Amended Complaint as to Defendants Rodriguez-Vallés,
Cora, Crespo and Devarié” (Docket No. 30); (2) “Motion to Dismiss Second Amended Complaint”
filed by the Municipality of Arroyo (Docket No. 32); and (3) “Motion to Dismiss Under Federal
Rule of Civil Procedure 12(b)(6),” filed by Carlos A. Meléndez-Garcia (Docket No. 63). For the
reasons stated below, defendants’ motions are GRANTED IN PART AND DENIED IN PART.
I.
BACKGROUND
In the November 2012 election, the Popular Democratic Party (“PDP”) candidate, Erick
Bachier-Román, defeated the New Progressive Party-affiliated (“NPP”) mayor of the Municipality
of Arroyo (Basilio Figueroa-De-Jesús) by less than a thousand votes, and for the very first time in
twenty (20) years the PDP assumed control of the Municipality (Docket No. 27 at ¶¶ 62).
Plaintiffs are twenty-three former fixed-term (“transitory”) employees and seven career
employees of the Municipality.1 The fixed-term plaintiffs claim their lost they jobs when the
1
Plaintiffs Diana Anaya-Padró, Wilmari Anaya-Torres, Yazmin Cora-Gracia, Jean Carlos Cruz-Gómez, Diana De Jesús-Figueroa,
Lysmarie Espinel-Ortega, Ausberto Flores-Figueroa, Gloria Fonseca-Delgado, Nilka Garay-Soto, Enrick D. González-González,
Javier González-Fabbiani, Omayra Guzmán-González, Xavier Marcial-Meléndez, Iricelis Lebrón, Nora J. Rivera-Rivera, Aida S.
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
Opinion and Order
Page 2
Municipality’s administration switched from NPP to the PDP, while the career plaintiffs complain
of having been subjected to a pattern of political harassment, substantial deprivation of duties, and
working conditions vastly inferior to the norm. Id. at ¶¶ 30-33, 35-36, 84, 593-601, 627-629, 641648, 660-661, 666-669, 681-685, 697-700. Along the same line, several career plaintiffs claim (1)
that they have not been given any work to do, (2) that their supervisory authority has been stripped
from them, and (3) that defendants have consistently stifled their attempt to perform the work they
were hired to perform. Id.
Plaintiffs attribute the allegedly adverse actions to their political affiliation, beliefs, and
involvement in support of a political party and candidates not affiliated with the PPD in a statewide
and municipal basis, and sued defendants under 42 U.S.C. § 1983, essentially complaining of
having been discriminated against because of their political affiliation in violation of the First
Amendment.2 The amended complaint contains 129 pages and more than 722 allegations.
Defendants moved to dismiss (Docket Nos. 30, 32 and 63), plaintiffs opposed defendants’ motion
(Docket Nos. 50 and 74), defendants Rodriguez-Vallés, Cora, Crespo, Devarié and MeléndezGarcia replied (Docket Nos. 57 and 77), and plaintiffs sur-replied (Docket No.71).
Santos-Santiago, Yesenia Silva-Rodriguez, Javier Soto-Cruz, Yadira Soto-Martínez, Juan Carlos Tirado-Vega, and Irvin TorresMeléndez are former transitory employees. Plaintiffs José Alicea-Soto, Rafael Bulgala-Rodríguez, Néstor Ramírez-Tirado, Carlos
Rodríguez-Sánchez, José Torres-Echevarría, and Luis Torres-Mariani are career employees currently employed by the
Municipality. Plaintiff Rafael Soto-Cardona is a former employee who claims to have been terminated on the false reason that he
had not completed his probationary period.
2
Defendants are Glenda Rodríguez-Valles, Josue Crespo, Wisesther Bermúdez-Rivera, Carlos A. Meléndez-García, Juan Devarié,
Frank Cora, Erick Bachier, in their personal and official capacities, and the Municipality of Arroyo.
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
Opinion and Order
Page 3
II. STANDARD OF REVIEW
To survive a motion to dismiss, a complaint need only include sufficient facts to make it
plausible on its face. Rodriguez-Vives v. Puerto Rico Firefighters Corps. of Puerto Rico, 743 F.3d
278, 283 (1st Cir. 2014); Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013).
Plausibility exists when the pleaded facts allow the court to reasonably infer that the defendant
is liable for the misconduct alleged. Morales-Cruz v. University of Puerto Rico, 676 F.3d 220,
224 (1st Cir.2012); Sepulveda-Villarini v. Department of Educ. of P.R., 628 F.3d 25, 30 (1st Cir.
2010). It does not, however, require a plaintiff to allege every fact necessary to win at trial or to
successfully resist summary judgment. Rodríguez-Reyes, 711 F.3d at 53-54; Rodríguez-Vives,
743 F.3d at 286.
The complaint must be viewed as a whole, construing well-pleaded facts in the light most
favorable to plaintiff, accepting their truth, and drawing all reasonable inferences in plaintiff’
favor. Foley v. Wells Fargo, 772 F.3d 63, 68 (1st Cir. 2014); García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013). Dismissal is not warranted if, so measured, the allegations plausibly
narrate a claim for relief. Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 717 (1st
Cir. 2014).3
3
A motion to dismiss is designed to test the sufficiency of the pleadings. Its primary focus is on the complaint, not on materials
outside the pleadings. Consequently, the Court has not considered the exhibits attached by defendants in support of their motions
(Docket No. 30, Exhs. 1-19 and Docket No. 32, Exhs. 1-21). The “narrow exception” that would allow consideration of documents
outside of the complaint is inapplicable here. Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d at 716-717.
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
Opinion and Order
Page 4
III. DISCUSSION
A. First Amendment Claims
Section 1983 is the conventional vehicle through which relief may be sought for claims of
political discrimination by state actors. For this purpose, Puerto Rico is the functional equivalent
of a state. Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d at 54. To establish a prima facie case
of political discrimination, a plaintiff must demonstrate: (1) that he 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 that adverse employment action. García-González v. Puig-Morales, 761 F.3d 81, 96 (1st Cir.
2014).
In this context, liability may not be based on a respondeat superior theory. RamírezLluveras v. Rivera-Merced, 759 F.3d 10, 19 (1st Cir. 2014). Each defendant must have personally
participated in, encouraged, condoned, or acquiesced in rights-violating conduct.
Ayala-
Rodríguez v. Rullán, 511 F.3d 232, 236 (1st Cir. 2007); Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 16. In line with that requirement, a plaintiff must plausibly plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.
Ashcroft v. Iqbal, 556 U.S. 662, 676-677 (2009).
1. Motion to Dismiss filed by defendants Rodriguez-Vallés, Cora, Crespo and
Devarié (Docket No. 30)
Defendant Rodriguez-Vallés is the Human Resources Director of the Municipality. Cora,
in turn, is the Director of the Public Works Office. Crespo directs the Emergency Management
Office and Devarié the Section 8 Program of the Municipality. The four were appointed to these
positions by Bachier-Roman after he assumed office in January of 2013 (Docket No. 27 at ¶¶ 42,
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
Opinion and Order
Page 5
42(b), 43, 43(b), 44, 44(b), 47 and 47(b)). Their main contention is that, even assuming the
amended complaint crossed the threshold of plausibility on political discrimination, plaintiffs
failed to allege that any of them are plausible defendants or that they participated in any way –
either as perpetrators or accomplices – in the alleged adverse actions (Docket No. 30, Exh. 1 at p.
2). A purview of the pleadings in the light most favorable to plaintiffs confirms the allegations
regarding Cora, Crespo and Devarié are insufficient to link them with the personnel actions at
issue.
First, as to defendant Cora, paragraphs 660 and 661 of the amended complaint state that
(1) after the change in administration, one of the plaintiffs (Torres-Echevarría) was transferred to
the Public Works Department, and was not assigned any duties at the office for months; (2) he
requested Cora to be assigned duties inherent to his position, to no avail; (3) instead, plaintiff has
been sporadically assigned duties as a driver, less than a handful of times each month; and (4) the
rest of the time he remains idle in the office, where he is not even allowed to answer the phone
(Docket No. 27 at ¶ 662). Nowhere in the pleadings have plaintiffs allege any political animosity
on the part of Cora or connect him to the adverse actions of which they complain.
Second, defendant Crespo is only mentioned once in paragraph 44(e) of the amended
complaint, where plaintiffs claim, without detail, that he “participated in, directed, executed and/or
condoned the adverse employment actions giving rise to this complaint.” More is needed to plead
a plausible claim for relief under Section 1983.
Third, three allegations make reference to defendant Devarié at paragraphs 597, 697 and
698 of the amended complaint. In that sense, plaintiffs point out that plaintiff Rodríguez-Sánchez4
4
Rodriguez-Sanchez was the HR Director under the NPP administration (Docket No. 27 at ¶ 591).
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
Opinion and Order
Page 6
was working at the Human Resources Department and was speaking to Devarié and a person
named Antonia Mercedes Rodríguez, when he suddenly realized that he did not have his high
blood pressure mediation and wanted to go to his home – which was near the Human Resources
Department. Because he could not find anyone with authority to request permission to briefly get
his medication, he told Devarié and Rodríguez that he would be right back, which he was.
However, on his way to get his medication, he crossed paths with the Mayor’s Chauffeur, and soon
after returning to the office, Mayor Bachier-Román admonished him as to the required permission
to leave his work area. More specifically, Bachier-Román is alleged to have told him “you have
to clear it through my people,” (which plaintiff understood to mean the PDP people from BachierRomán’s administration).
The amended complaint also links Devarié with plaintiff Torres-Mariani;5 who claims that
he has not been assigned duties as Section 8 Coordinator. Rather, he has only been assigned duties
of inferior positions (such as Housing Inspector), which only occupy half of his day once every
month, and of assisting in the payment process for Section 8 vouchers (which only takes up about
four working days each month). The amended complaint further states that Devarié has been
performing duties that correspond to his position as Director, as well as those that correspond to
Torres-Mariani’s position as Section 8 Coordinator. These allegations are not sufficient to infer
any political animosity from Devarié or to link him with adverse actions.
Considering the insufficiency in allegations regarding Cora’s, Crespo’s and Devarié’s
involvement with the personnel actions at issue, the claims against them must be dismissed. See,
Redondo Waste Systems, Inc. v. López-Freytes, 659 F.3d 136, 140 (1st Cir. 2011)( complaint must
5
Torres-Mariani was the Director of the Municipality’s Section 8 Program under the NPP administration. Id. at ¶ 696.
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
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allege facts personally connecting each defendant to the grounds on which that particular defendant
is potentially liable for the constitutional violations); Ocasio-Hernández, 640 F.3d at 16 (same);
Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 594 (1st Cir. 2011)(an adequate complaint must
include not only a plausible claim but also a plausible defendant).
That is not the case, however, with respect to defendant Rodriguez-Vallés. To the contrary,
a careful reading of the amended complaint confirms that plaintiffs’ have pled sufficient factual
content to permit the Court to link her to actionable conduct. For example, plaintiffs allege that
she (1) was the Human Resources Director for the Municipality (Docket No. 27 at ¶ 42); (2) was
appointed to that position after the PPD Mayor assumed the office, Id. ¶ 42(b); (3) enjoys the full
trust of, and is loyal to Bachier-Roman and the PPD party of which she is a well-known member,
contributor and supporter; (4) is a well- known supporter and contributor of Bachier-Ramón; and
(5) supported Bachier-Ramón’s campaign during the 2012 elections. Id. at ¶¶ 42 (c) and (d).6
Moreover, plaintiffs allege that Rodríguez-Valles participated, directed, executed and
condoned the actions giving rise to the amended complaint. Id. at ¶ 42(e). They allege that (1)
like all defendants, she was aware of their political affiliation, as they were very active in the NPP’s
candidate re-election campaign, and on many occasions crossed paths with Bachier-Román while
campaigning for his opponent, Id. at ¶ 76; and (2) within weeks of assuming the reins of the
Municipality, Bachier-Román, acting hand in hand with Rodríguez-Vallés, refused to renew
plaintiffs’ fixed-term appointments because of the plaintiffs’ political affiliation, participation, and
beliefs on behalf of a political party other than the PDP in a statewide and municipal basis, and
6
Plaintiffs also claim she is married to a PDP affiliated assemblyman in the Municipality, and that their family is actively involved
in politics in Arroyo. Id. at ¶ 59.
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
Civil No. 13-1876 (PAD)
Opinion and Order
Page 8
particularly because of their political involvement on behalf of candidates not affiliated with the
PDP in a statewide and municipal basis. Id. at ¶ 81.
In the same axis, plaintiffs allege that Rodríguez-Vallés was instrumental in (1) identifying
NPP employees that used to work at the Municipality and/or applied for work, (2) refusing to
renew or extend plaintiffs’ appointments, (3) receiving and/or evaluating applications for available
positions, and (4) identifying PDP supporters to replace former NPP employees. Id. at ¶¶ 82-83.
She played a role in the termination of regularly employed plaintiff Rafael Soto Cardona, as well
as the mistreatment of other regularly employed plaintiffs – including one plaintiff that works
directly under her command. Id. at ¶ 84. Her knowledge of PDP supporters in Arroyo was
instrumental in the process of replacing the plaintiffs that worked as fixed-term employees. Id. at
¶ 85.
The amended complaint avers that Rodríguez-Vallés openly stated that “NPPers” would
not be given work (Id. at ¶ 86), and that a plaintiff saw Rodríguez-Vallés’ and Bachier-Román’s
receptionist putting away employment applications from notorious NPP affiliated individuals
(some of which are plaintiffs in this case) in a separate folder than the employment applications of
other individuals. Id. at ¶ 87. Additional allegations detailing Rodriguez-Vallés participation on
the alleged adverse actions were included in paragraphs 400, 596, 619. Viewed as a whole in the
light most favorable to plaintiffs, these allegations are sufficient to state a colorable First
Amendment claim against Rodriguez-Vallés.
In the alternative, defendants claim that plaintiffs Anaya-Padró7, Cora-Gracia, CruzGómez, De Jesús-Figueroa, Espinel-Ortega, Flores-Figueroa, Fonseca-Delgado, Garay-Soto,
The amended complaint states that Anaya-Torres’ had an appointment expiration date of March 31, 2013 (Docket No. 27 at ¶
12).
7
Diana Anaya-Padró, et al. v. Municipality of Arroyo, et al.
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Gonzalez-Gonzalez, Guzmán-Gonzalez, Marcial-Meléndez, Rivera-Rivera, Rivera, A.S. SantosSantiago, A. Santos-Santiago, Silva-Rodríguez, Soto-Cruz, Soto-Martínez, Tirado-Vega, TorresMeléndez, Lebrón and González-Fabbiani were “transitory” employees whose positions expired
by their own terms on December 31, 2012. As such, they posit, those plaintiffs did not have a
continued expectancy of employment.
It is well settled that under the Elrod8 line of cases, a plaintiff cannot be terminated, nor
renewal of his contract refused, for partisan political reasons. Ayala-Rodriguez v. Rullan, 511
F.3d 232, 235 (1st Cir. 2007). This is true regardless of the transitory nature of the position. Id.;
Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 75 n.3 (1st Cir. 2000)(Elrod-Branti doctrine
extends to a politically motivated non-renewal of a term of employment, regardless of the
transitory nature of the position); Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 98 (1st Cir.
1997)(a municipality may not allow transitory employees’ contracts to expire if the primary motive
is to punish them for their political affiliation; the fact that a transitory employee does not have a
reasonable expectation of renewal in his or her employment that would require due process
protections does not defeat a First Amendment claim).9 Against this measure, defendants’
argument fails.
8
Elrod v. Burns, 427 U.S. 347 (1976).
As a final ground to dismiss plaintiff Soto-Cardona’s claims, defendants aver he was separated for reasons unrelated to any
political activity (Docket No. 30, Exh. 1 at pp. 14-15). In support of their contention, they have attached a Report and
Recommendation issued by a hearing officer who presided over a hearing about Soto-Cardona’s separation from employment, to
question the veracity of Soto-Cardona’s allegations. As the Court already indicated, however, no document attached to the motions
to dismiss will be considered. See, Discussion at note 7. Defendants can bring this issue in a motion for summary judgment.
Additionally, although defendants claim they are entitled to qualified immunity, the portion of their motion dedicated to the
immunity issue is devoid of any legal analysis or reference to specific factual allegations justifying the disposition they seek.
9
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Page 10
2. Motion to Dismiss filed by the Municipality of Arroyo (Docket No. 32)
The Municipality’s motion to dismiss includes (1) a summary of the allegations in the
amended complaint without any reference to the complaint (Docket No. 32 at ¶¶ 1-5); (2)
conclusory statements apparently intended to show that certain plaintiffs “had no right or the
expectancy for their contracts to be renewed” (Id. at ¶ 6); (3) twenty-one (21) exhibits that “prove”
that some plaintiffs were notified by the NPP administration that the fixed term or transitory job
contract would expire on December 31, 2012, without explaining why the “narrow exception” that
would allow consideration of documents outside of the amended complaint applies to this case (Id.
at ¶¶ 7, 10); (4) reference without analysis of two provisions of the “Ley de Municipios Autónomos
del Estado Libre Asociado” (Id. at ¶¶ 8-9); and (5) a conclusory statement that plaintiffs lack a
federal claim under the First Amendment (“their allegations claim of political discrimination,
without even explaining why”) Id. at ¶ 16.
The motion falls short of demonstrating why dismissal is appropriate. More developed
argumentation is required to sustain a motion under Fed. R. Civ. P. 12(b)(6). See, Rolón v. Rafael
Rosario & Associates, Inc., 450 F.Supp.2d 153, 167 (D.P.R. 2008)(it is not enough to merely
mention a possible argument in support of a motion without developed argumentation.)
3. Motion to Dismiss filed by Meléndez-Garcia (Docket No. 63)
Meléndez-Garcia is the Director of the Municipality’s Federal Programs Office. He was
appointed by Bachier-Román after the former director, Bermúdez-Rivera, resigned (Docket No.
63). His motion almost mirrors the motion filed by defendants Rodriguez-Vallés, Cora, Crespo
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Civil No. 13-1876 (PAD)
Opinion and Order
Page 11
and Devarié at Docket No. 30, and similarly questions whether plaintiffs’ adequately allege that
he is a plausible defendant.10
In the main, plaintiffs allege that Meléndez-García (1) enjoys the full trust of, and is loyal
to Bachier-Román and the PDP (Id. at ¶ 46(c)); (2) is a well-known member of the PDP in the
Municipality, and a loyal follower, contributor and supporter of the PDP and Bachier-Román, and
of his mayoral campaign during the 2012 election (Id. at ¶ 46(d)); and (3) has “participated in,
directed, executed, authorized and/or condoned the adverse employment actions giving rise to this
Complaint.” Without a factual nexus, it is not feasible to conclude that plaintiff have plausibly
pled Meléndez-Garcia’s connection to the personnel actions in question.
4. Supplemental State-Law Claims
Defendants requested dismissal of plaintiffs’ state-law claims on the assumption the Court
would dismiss the federal claims.
Considering the preceding discussion, dismissal is not
appropriate at this stage except as to Cora, Crespo Devarié, and Meléndez-García.
C. CONCLUSION
In light of the standard applicable to motions under Fed. R. Civ. P. 12(b)(6), the Court rules
as follows:
(i)
the “Motion to Dismiss Second Amended Complaint as to Defendants RodriguezVallés, Cora, Crespo and Devarié” (Docket No. 30) is GRANTED IN PART AND
DENIED IN PART. Accordingly, plaintiffs’ claims against Cora, Crespo and
Devarié are dismissed;
10
The motion similarly argues that, in the alternative, Meléndez-Garcia is entitled to qualified immunity (Docket No. 63, Exh. 1 at
pp. 8-12). As with Docket No. 30, the portion of their motion dedicated to qualified immunity lacks the analysis linked to specific
factual allegations necessary to sustain dismissal.
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(ii)
the “Motion to Dismiss Second Amended Complaint” filed by the Municipality of
Arroyo (Docket No. 32) is DENIED WITHOUT PREJUDICE; and
(iii)
the “Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6),” filed by
Carlos A. Meléndez-Garcia (Docket No. 63) is GRANTED.
SO ORDERED.
In San Juan, Puerto Rico, this 3rd day of February, 2015.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge
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