Cruz et al v. Puerto Rico Planning Board et al
Filing
97
ORDER granting in part and denying in part 62 motion for summary judgment. Signed by Judge Juan M. Perez-Gimenez on 08/31/2017. (NNR)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
DAVID CRUZ, ET AL.,
Plaintiffs,
CIV. NO. 14-1016(PG)
v.
PUERTO RICO PLANNING BOARD, ET AL.,
Defendants.
OPINION AND ORDER
Before the court is defendants’ motion for summary judgment (Docket
No. 62), plaintiffs’ opposition (Docket No. 81) and defendants’ reply
thereto (Docket No. 70). For the reasons set forth below, the court GRANTS
IN PART AND DENIES IN PART the defendants’ motion.
I.
January
(“Miranda”)
BACKGROUND
9,
2014,
plaintiffs
and
their
Conjugal
David
Cruz
Partnership
(“Cruz”),
filed
the
Wanda
Miranda
above-captioned
complaint against defendants the Puerto Rico Planning Board (“PRPB”), the
Puerto Rico Developmental Disabilities Council (PRDDC or “Council”),1
Myrianne Roa2 (“Roa”), Magdalena Vazquez (“Vazquez”), and Luis GarciaPelatti (“Garcia-Pelatti”), in their official and individual capacities.
According to the complaint, plaintiffs were employees of the PRDDC and
were both affiliated with the New Progressive Party (“NPP”). Cruz was the
Executive Director at the PRDDC, and his wife, plaintiff Miranda, held the
position
of
Confidential
Secretary
I.
Miranda
was
appointed
to
this
1
The PRDDC is alleged to be an instrumentality of the Commonwealth of Puerto
Rico, the purpose of which is to provide assistance to individuals with
developmental disabilities. See Docket No. 25 at ¶¶ 3.10., 4.1. The plaintiffs
allege that pursuant to the Developmental Disabilities Assistance and Bill of
Rights Act of 1970 (“DDA” or “the Act”), 42 U.S.C. § 15001 et seq., any state that
receives federal funds under this Act must establish a Council on Developmental
Disabilities and must designate a state agency to provide support to this Council.
Id. at ¶ 4.2. In the case at hand, the PRPB was the designated state agency for
such purposes. Id. at ¶ 4.3.
2
Claims against this co-defendant were dismissed with prejudice. See Docket No.
16.
Civil No. 14-1016(PG)
Page 2
position as part of a reasonable accommodation in favor of Cruz insofar as
he has been blind since he was sixteen years old.
Co-defendant Garcia-Pelatti was the President of the PRPB at all
relevant times herein. Garcia-Pelatti was appointed to this position by
Governor Alejandro Garcia Padilla, member of the Popular Democratic Party
(“PDP”), which is plaintiffs’ opposing party. Co-defendant Vazquez was the
Human Resources Director of the PRPB at all times relevant herein.
Both Cruz and Miranda claim in the complaint they were harassed and
terminated from their employment without being afforded their due process
rights and because of their political affiliation to the NPP. According to
the plaintiffs, all individual defendants were aware that plaintiffs were
avid supporters of the NPP. Subsequent to Cruz’s dismissal, Garcia-Pelatti
replaced plaintiff Cruz with Ms. Roa, who is a member of the PDP.
Pursuant to 42 U.S.C. § 1983, the plaintiffs seek compensatory and
punitive damages, as well as injunctive relief for the alleged violations
of their constitutional rights under the First, Fifth3 and Fourteenth
Amendments. See Docket No. 25. Finally, the plaintiffs additionally invoke
the court’s supplemental jurisdiction over the state-law claims brought
pursuant to Articles 1802 and 1803 of the Civil Code of Puerto Rico
(“Articles 1802 and 1803”), P.R. LAWS ANN. tit. 31, §§ 5141 and 5142. See
Docket No. 1.
The defendants now move for summary judgment in their favor and the
plaintiffs oppose this request.
II.
STANDARD OF REVIEW
A motion for summary judgment is governed by Rule 56 of the Federal
Rules of Civil Procedure, which entitles a party to judgment if “the movant
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).
“When the party who bears the burden of proof at trial is faced with a
properly constituted summary judgment motion, defeating the motion depends
3
The claims brought pursuant to the Fifth Amendment were dismissed with prejudice.
See Docket No. 16.
Civil No. 14-1016(PG)
Page 3
on her ability to show that such a dispute exists.” Geshke v. Crocs, Inc.,
740 F.3d 74, 77 (1st Cir.2014)(citing Borges ex rel. S.M.B.W. v. SerranoIsern, 605 F.3d 1, 5 (1st Cir.2010)).
If the non-movant generates uncertainty as to the true state of any
material fact, the movant’s efforts should be deemed unavailing. See Suarez
v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir.2000). Nonetheless, the mere
existence of “some alleged factual dispute between the parties will not
affect an otherwise properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505
(1986). “Summary judgment may be appropriate if the nonmoving party rests
merely upon conclusory allegations, improbable inferences, and unsupported
speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir.1990).
At the summary judgment juncture, the court must examine the facts
in the light most favorable to the non-movant, indulging that party with
all possible inferences to be derived from the facts. See Rochester Ford
Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The court
reviews
the
determinations
record
or
“as
weigh
a
the
whole,”
and
evidence.”
“may
Reeves
not
v.
make
credibility
Sanderson
Plumbing
Products, Inc., 530 U.S. 133, 135 (2000). This is so because credibility
determinations, the weighing of the evidence and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge. Id.
III. FINDINGS OF FACT
The court found the following relevant facts to be undisputed:
1.
According to Section 125 of Public Law 106-402 or the Act, each State
that receives assistance on behalf of said Act is required to create
a council and “shall designate a State agency that shall, on behalf
of the State, provide support to the Council.”
2.
Section 125(c)(9) of the Act states that the Council shall, consistent
with State law, recruit and hire a Director to perform all duties and
functions therein established.
3.
Executive Order No. 1997-19 of the Governor of the Commonwealth of
Puerto Rico was enacted to appoint the Puerto Rico Planning Board
Civil No. 14-1016(PG)
(PRPB)
as
the
Developmental
Page 4
State
agency
Disabilities
that
would
Council
provide
(PRDDC)
with
the
Puerto
support
Rico
in
the
achievement of its plans and endeavors.
4.
The salaries of all Council members are paid with federal funds.
5.
The Memorandum of Understanding between the PRPB and the PRDDC
establishes the roles and responsibilities of the State agency, which
includes,
in
its
Section
VIII,
all
matters
pertaining
to
the
designation of the Executive Director of the Council. Subsection (b)
of the Section VIII establishes that the Executive Director shall be
a permanent government employee.
6.
Plaintiff David Cruz is affiliated to the NPP. He was elected Senator
for the New Progressive Party from January 1989 – January 1993. From
January 1993 – January 2001 David Cruz was appointed by then NPP
Governor Pedro Rossello to the trust position of Advocate for Persons
with Disabilities (Procurador de Personas con Impedimentos). From
2001 to 2008 he was a consultant for the Senate of Puerto Rico, and
from January of 2009 until July of 2009 he held the trust position
of
Executive
Aide
at
the
office
of
the
Ombudsman.
All
of
the
abovementioned positions were under NPP administrations.
7.
During the 2012 general elections, David Cruz was the Chairperson on
Disability Affairs Committee for writing the NPP platform.
8.
As
a
member
of
the
PRDDC,
plaintiff
Cruz
participated
in
an
extraordinary assembly, held on June 15, 2011, where the Board voted
to remove then Executive Director Myrainne Roa from her position.
9.
Plaintiff Cruz was nominated to be the Executive Director of the
PRDDC during an extraordinary meeting of the Board of Directors.
10.
Cruz was appointed Director of the Council during this extraordinary
meeting.
11.
Thereafter, on July 21, 2011, plaintiff Cruz was appointed to a trust
position at the PRPB as Bureau Director of Location Consultations,
or Site Consulting Office. During his tenure, Cruz never performed
the functions of said position. According to job posting number 0528, Bureau Director was a trust position ascribed to the PRPB.
12.
Plaintiff Cruz admits that he was not qualified to occupy the position
of Bureau Director of the Location Consultations at the PRPB because
he had no experience or any academic background in that area.
Civil No. 14-1016(PG)
13.
Page 5
Plaintiff Wanda Miranda is affiliated to the NPP and she has been a
polling officer for many years. She has also attended political
activities for the NPP.
14.
On
July
21,
2011,
plaintiff
Miranda
was
appointed
Confidential
Secretary I at the PRPB.
15.
The Confidential Secretary I position, held by Miranda, was a trust
position, ascribed to the Board Members of the PRPB.
16.
Plaintiff Miranda admits that she never performed the duties of a
Confidential Secretary I, the position she held.
17.
During Cruz’s tenure, all personnel that worked at the Council held
career positions, except for him and Wanda Miranda, who held trust
positions.
18.
Plaintiff
Cruz
had
no
career
position
to
return
to
once
his
designation to the trust position he held ended.
19.
On January 2013, the former Governor of Puerto Rico, Hon. Alejandro
J. Garcia-Padilla, named co-Defendant Luis Garcia-Pelatti President
of the Planning Board.
20.
Garcia-Pellatti worked on the platform of Sila Calderon when she ran
for Governor under the PPD. He was then appointed by Sila Calderon
to the Planning Board as associate member of the Board, and then was
appointed as advisor to Calderon’s Chief of Staff Cesar Miranda.
21.
Garcia Pelatti helped candidates for the PDP during the 2000 and 2012
elections, but not for the NPP nor PIP.
22.
Garcia Pellatti understands that normally trust positions come with
political affiliation.
23.
Co-defendant Vazquez was appointed as Human Resources Director in the
Planning Board on an interim basis in January of 2013, and as of
right in March of 2013.
24.
Vazquez is affiliated with the PDP, and as such, she participates in
political activities, writes comments in social media, and attends
meetings for PDP employees.
25.
There is a group of employees that responds to the PDP at the Planning
Board
known
as
“PDP
Public
Employees”
(“Servidores
Publicos
Populares”) and Vazquez attended their meetings.
26.
Partisan politics are discussed at the Planning Board, especially
during the electoral period.
Civil No. 14-1016(PG)
Page 6
27.
Vazquez knows that plaintiff Cruz ran for Senator under the NPP.
28.
Co-defendant Garcia-Pelatti met plaintiff Cruz for the first time on
January 2013 in Santurce, Puerto Rico, when he went to a meeting at
the Council.
29.
Garcia-Pellati
knew
that
plaintiff
Cruz
had
been
an
NPP
representative, and member of the NPP. He also knew that Cruz had
been appointed as Ombudsman by then NPP Governor Pedro Rossello.
30.
Garcia-Pelatti met plaintiff Miranda on February 14th, 2013 at a
meeting with plaintiff Cruz.
31.
During a meeting between Cruz and Garcia-Pelatti in February or March
of 2013, plaintiff Cruz suggested that plaintiff Miranda and himself
be designated to transitory positions in the Council roster.
32.
During
the
same
meeting,
Garcia-Pelatti
informed
Cruz
that
the
Council had received a federal report that classified the Council at
high risk and the federal funds had stopped.
33.
Plaintiff Cruz received copy of the Federal Notice of Award of High
Risk to the PRDDC.
34.
Plaintiffs did not file an internal complaint after the February 14th,
2013 meeting with Garcia-Pelatti.
35.
Vazquez did not attend the meetings where Garcia-Pelatti’s team told
him that Cruz and Miranda could not be appointed to transitory
positions. See Dockets No. 62-1 at ¶ 109, 60-20 at page 85, 82 at
page 23.
36.
At the time Vazquez made the recommendation that David Cruz and Wanda
Miranda be dismissed, she did not review any documents regarding the
Council,
its
formation
nor
the
non-interference
section
of
the
federal law applicable to the Council, nor did she discuss it with
the Federal entity that oversees the Council.
37.
Co-defendant Vazquez was notified about the decision to terminate
plaintiffs’
appointments
and
ordered
to draft
their
termination
letters.
38.
It was Garcia-Pelatti’s determination to dismiss plaintiffs Cruz and
Miranda. Vazquez brought to the attention of Garcia-Pellatti David
Cruz and Wanda Miranda’s appointments at the Council and she discussed
with him the hybrid nature of the appointments and the relationship
of the Planning Board and the Council.
Civil No. 14-1016(PG)
39.
Page 7
After various unsuccessful attempts to meet with plaintiffs Cruz and
Miranda to personally hand deliver their termination letters, codefendant Vazquez was instructed to go to Aguas Buenas on June 14,
2013, to personally deliver the termination letters. The letters were
signed by Garcia-Pelatti.
40.
Cruz’s dismissal letter terminated his employment from the position
of Bureau Director at the Planning Board. See Docket No. 83-10.
41.
Miranda’s
dismissal
letter
terminated
her
employment
from
the
position of Confidential Secretary at the Planning Board. See Docket
No. 83-11.
42.
Vazquez went on June 14, 2013 to an activity held by the Council to
hand Wanda Miranda and David Cruz their dismissal letters.
43.
Garcia-Pelatti does not have the authority to fire the Executive
Director of the Council; the Council is the one who appoints and
removes. Garcia-Pelatti’s administrative function is to create that
position.
44.
Garcia-Pelatti
knew
that
appointing
and
removing
the
Executive
Director of the Council is a faculty and authority of the Council,
and not his.
45.
As to appointments of personnel at the Council, the Executive Director
of the Council informs the Human Resources department of their need
of an employee, the Planning Board does the job posting and receives
the applications, then Executive Director of the Council performs the
interviews and has the authority to choose the employee. The Planning
Board President nor its Executive Director have any involvement in
the selection and appointment process of Council employees.
46.
After the termination of his appointment, plaintiff Cruz has not
participated in any job posting at the PRPB.
47.
Co-defendant Vazquez recommended Roa to be the interim Director of
the Council after plaintiff’s Cruz’s termination because she was the
only person that had experience in the Council that worked within the
agency.
48.
From
2003
to
2013,
co-defendant
Garcia-Pelatti
had
no
personal
relationship with Roa.
49.
Garcia-Pelatti was aware the Roa was litigating a case against the
Planning
Board
and
against
the
Council
regarding
political
Civil No. 14-1016(PG)
Page 8
discrimination, and still appointed her to substitute plaintiff David
Cruz as Executive Director of the Council.
50.
Roa is a PDP supporter, she acknowledges everyone knew it at the
Planning Board and she went to some PDP activities. There is a
Committee of PDP employees at the Planning Board.
51.
Roa had performed the duties of the Executive Director of the Council
since February 3rd, 2005 until 2011 when she was removed from her
position.
52.
Back in 2005, Roa had competed in a job posting for the position of
Administrative Executive at the Planning Board.
53.
By
October
31,
2005,
Roa
was
appointed
to
the
position
of
Administrative Executive of the Planning Board but was still doing
the daily duties of the Executive Director of the Council.
54.
Since December 3, 2006, Roa holds a Regular Career Position as
Administrative Executive.
55.
Roa’s duties between 2005 and 2011, as Executive Director, are the
same as the ones she is currently doing as Executive Director of the
Council.
56.
Roa filed a complaint in 2011 against the Planning Board, the Council,
Council members and others alleging political discrimination and that
her dismissal was due to unlawful intervention of the Planning Board
with the Council. The complaint also alleged that she was affiliated
to the PDP and that she was substituted by David Cruz, who was
affiliated to the NPP.
57.
In 2013, Myrainne Roa was approached by Garcia-Pellatti at the
Planning Board, who informed her “he had some issues” with the Council
and he wanted her to help with the Council and fill the position.
58.
Since 2013, Roa was performing the duties of Executive Director, on
an interim basis.
59.
On June 14, 2013, Garcia-Pellatti sent a letter to the Council
informing them that he had dismissed David Cruz, leaving vacant the
position of Executive Director of the Council, and therefore he was
appointing Myrainne Roa as the Executive Director of the Council.
60.
On June 17, 2013, Garcia-Pellatti received a letter from the President
of the Board of Directors of the Council, Arturo Deliz, explaining
that he had no faculty in law to dismiss the Executive Director of
Civil No. 14-1016(PG)
Page 9
the Council.
61.
On February 17, 2016, the Council ratified Roa as Executive Director
and was designated by Garcia-Pelatti effective March 1, 2016.
IV.
DISCUSSION
Section 1983 “provides a remedy for deprivations of rights secured
by the Constitution and laws of the United States when that deprivation
takes place under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory.” Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 924 (1982) (internal quotation marks omitted). To prevail in a
Section 1983 claim, a plaintiff “must allege facts sufficient to support
a determination (i) that the conduct complained of has been committed under
color of state law, and (ii) that [the alleged] conduct worked a denial of
rights secured by the Constitution or laws of the United States.” Cepero–
Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.2005) (quoting Romero–Barcelo
v. Hernandez–Agosto, 75 F.3d 23, 32 (1st Cir.1996)). For Section 1983
liability purposes, “a state employee generally acts under color of state
law when, while performing in his official capacity or exercising his
official responsibilities, he abuses the position given to him by the
State.” West v. Atkins, 487 U.S. 42, 49 (1988).
Section 1983 claims require that a plaintiff establish three elements
for liability to ensue: deprivation of a right, a causal connection between
the actor and the deprivation, and state action. See Sanchez v. Pereira–
Castillo, 590 F.3d 31 (1st Cir.2009); see also 42 U.S.C. § 1983. The
causation element requires that the plaintiff establish (1) that the
actions of the defendant deprived the plaintiff of a protected right, and
(2) “that the defendant’s conduct was intentional, grossly negligent, or
amounted
to
a
reckless
or
callous
indifference
to
the
plaintiff’s
constitutional rights.” Concepcion v. Municipality of Gurabo, 558 F.Supp.2d
149, 162 (D.P.R. 2007). Moreover, a plaintiff must link each particular
defendant to the alleged violation of federal rights. See González–Piña v.
Rodríguez, 407 F.3d 425, 432 (1st Cir.2005). A plaintiff may do so by
indicating any “personal action or inaction [by the defendants] within the
scope
of
[their]
responsibilities
that
would
make
[them]
personally
answerable in damages under Section 1983.” Pinto v. Nettleship, 737 F.2d
Civil No. 14-1016(PG)
Page 10
130, 133 (1st Cir.1984).
A. First Amendment Claims
The plaintiffs here sue for the violation of their constitutional
rights under the First Amendment. “The First Amendment generally prohibits
government officials from dismissing or demoting an employee because of
the
employee’s
engagement
in
constitutionally
protected
political
activity.” Heffernan v. City of Paterson, N.J., 136 S.Ct. 1412, 1416
(2016). In essence, “[g]overnment officials are forbidden by the First
Amendment from taking adverse action against public employees on the basis
of political affiliation, unless political loyalty is an appropriate
requirement of the employment.” Ocasio–Hernandez v. Fortuno–Burset, 640
F.3d 1, 10 (1st Cir.2011) (citing Rutan v. Republican Party of Illinois,
497 U.S. 62, 75–76 (1990); Welch v. Ciampa, 542 F.3d 927, 938–39 (1st
Cir.2008)). Accordingly, “a government employer cannot discharge public
employees merely because they are not sponsored by or affiliated with a
particular political party.” Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004)
(citing Elrod v. Burns, 427 U.S. 347, 350 (1976)).
“To prove his claim of political discrimination, [plaintiff] must
show that (1) he and the defendants have ‘opposing political affiliations,’
(2) the defendants knew his affiliation, (3) he experienced an adverse
employment action, and (4) his political affiliation was a ‘substantial’
or ‘motivating’ factor for the adverse action.” Santiago-Diaz v. RiveraRivera, 793 F.3d 195, 199 (1st Cir. 2015) (citing Ocasio–Hernández v.
Fortuño–Burset, 777 F.3d 1, 5 (1st Cir.2015)). “If the plaintiff has
sufficient evidence to establish a prima facie case, the burden then shifts
to the defendants to show that ‘(i) they would have taken the same action
in any event; and (ii) they would have taken such action for reasons that
are not unconstitutional.’” Reyes-Orta v. Puerto Rico Highway & Transp.
Auth., 811 F.3d 67, 73 (1st Cir. 2016) (citing Velez–Rivera v. Agosto–
Alicea, 437 F.3d 145, 152 (1st Cir.2006) (citing Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286–87 (1977)). “Finally, the
burden shifts back to the plaintiff to ‘discredit the … nondiscriminatory
reason, either circumstantially or directly, by adducing evidence that
discrimination was more likely than not a motivating factor.’” Pierce v.
Civil No. 14-1016(PG)
Page 11
Cotuit Fire Dist., 741 F.3d 295, 302 (1st Cir. 2014) (citing Padilla–Garcia
v. Guillermo Rodriguez, 212 F.3d 69, 77 (1st Cir.2000)).
1. Prima Facie Case
In their motion for summary judgment, defendants seek the dismissal
of plaintiffs’ First Amendment claims of political discrimination on the
grounds that they have not met their burden of establishing a prima facie
case. Although they do not challenge that the plaintiffs suffered an
adverse employment action, the defendants deny that Garcia-Pelatti belongs
to an opposing political party, that they have knowledge of the plaintiffs’
political
affiliation
or
that
political
affiliation
motivated
their
determination to dismiss the plaintiffs. The court will address these
arguments in turn.
In their motion, the defendants set forth that Garcia-Pelatti does
not have a political affiliation. See Docket No. 62 at page 10.
In
response, the plaintiffs point to Garcia-Pelatti’s “political activism” by
way of his work for PDP candidates that ran for office between 2000 and
2012. In addition, the plaintiffs note that Garcia-Pelatti was appointed
to several trust positions under PDP Governors, such as Sila Calderon and
Alejandro Garcia-Padilla. See Docket No. 81 at page 21; Findings of Fact
No. 19-21. “It is no secret that political leaders most often choose
political allies to fill important policymaking positions.” Grajales v.
Puerto Rico Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012). Drawing all
reasonable inferences in plaintiffs’ favor, a jury could find that GarciaPelatti, “who was named to a prestigious trust position by a PDP hierarch
under a PDP administration, was a member of the PDP.” Id. “Answering this
question calls for ‘[c]redibility 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 v. Puig-Morales, 761
F.3d 81, 99 (1st Cir. 2014)(citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)). Issues of fact thus remain as to Garcia-Pelatti’s
political affiliation.
Co-defendants
Garcia-Pelatti
and
Vazquez
also
deny
knowing
the
plaintiffs’ political affiliation. See Docket No. 62. at pages 11-12.
Civil No. 14-1016(PG)
Page 12
However, the plaintiffs negate this assertion on several grounds. First,
the plaintiffs claim that Garcia-Pellatti “informed them that he was being
pressured by the Popular Democratic Party member’s organization within the
Puerto Rico Planning Board to fire all NPP members hired by the previous
administration who were in management positions.” Docket No. 81 at page
11. Taking plaintiffs’ version of events as true would allow a rational
factfinder to conclude that Garcia-Pelatti was aware of their political
affiliation. Garcia-Pelatti, however, denies making such statements. See
Docket No. 62-1 at ¶ 101.
Other facts relevant to the knowledge prong include that both GarciaPelatti and Vazquez knew that plaintiff Cruz ran for an elective post under
the NPP, see Findings of Fact No. 27, 29; that both plaintiffs were
appointed to trust positions under NPP administrations and Vazquez was an
NPP polling officer for many years, see Findings of Fact No. 6, 11, 13-14;
that partisan politics were discussed at the Board, see Findings of Fact
No. 26; and, that there was a group of PDP-affiliated employees at the
Board called “Servidores Publicos Populares,” in which Vazquez partook,
see Findings of Fact No. 25.
The First Circuit Court of Appeals has “consistently held that
circumstantial evidence can suffice to show a defendant’s knowledge of a
plaintiff’s political party.” Ocasio-Hernandez, 777 F.3d at 7 (citing
Martinez–Velez v. Rey–Hernandez, 506 F.3d 32, 44 (1st Cir.2007)). It has
“also held that a government official’s knowledge that an employee was
hired by a prior administration — when considered in tandem with other
relevant facts — could certainly help prove the defendant’s knowledge of
the employee’s political affiliation.” Ocasio-Hernandez, 777 F.3d at 7
(citing Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir.1991) (“Given the
nature of the [employees’] positions, the defendants’ knowledge that the
plaintiffs had originally been hired by the previous [ ] administration,
the timing of the moves, the identities of those consulted, the lack of
any
legitimate
reason
for
ousting
the
incumbents,
and
the
partisan
connections of the replacement workers, it seems disingenuous to suggest
that
[the
defendant]
acted
without
regard
to
the
politics
of
the
situation.”)). See also Martinez–Velez v. Rey–Hernandez, 506 F.3d 32, 44
(1st
Cir.2007)
(noting
that
a
jury
could
reasonably
infer
that
the
Civil No. 14-1016(PG)
Page 13
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); Peguero–Moronta v.
Santiago, 464 F.3d 29, 48 (1st Cir.2006) (holding reasonable jury could
conclude that political affiliation of plaintiffs was sufficiently wellknown that the defendants were aware of it where evidence of relatively
small workplace); Garcia–Gonzalez v. Puig–Morales, 761 F.3d 81, 99 (1st
Cir.2014)
(genuine
plaintiff’s
issue
political
of
fact
affiliation
as
to
where
whether
defendant
plaintiff
publicly
knew
of
displayed
affiliation and defendant had “ready source” for such knowledge).
The court finds that plaintiffs have set forth a number of different
facts from which a jury could infer that defendants became aware of
plaintiffs’
testified
political
that
affiliation.
Garcia-Pelatti
In
made
addition,
statements
the
plaintiffs
indicating
that
have
their
termination was due to their political affiliation. See Rodriguez–Marin v.
Rivera–Gonzalez,
evidence
of
defendants
politically
438
F.3d
political
“made
72,
81
(1st
discrimination
statements
motivated”).
to
her
Although
Cir.2006)
where
indicating
the
(finding
witness
that
defendants’
sufficient
testified
her
deny
that
demotion
making
was
these
statements and having knowledge of the plaintiffs’ political affiliation,
“it is for the jury to resolve such issues of credibility.” RodriguezMarin, 438 F.3d at 81.
Finally, the defendants contend that Cruz’s termination was not
politically-motivated but responded to the fact that his appointment after Roa’s “hasty and rushed removal” - was illegal in the first place.
See Docket No. 62 at pages 23-24. In contrast, the court notes that the
plaintiffs were terminated a few months after the new administration took
office and Cruz was replaced by Roa, a PDP-affiliated employee. Also,
whether Garcia-Pelatti indeed made comments to plaintiffs regarding the
reasons for their removal from their posts is in dispute. As a result, the
court finds a genuine issue exists as to whether political affiliation was
a substantial motivating factor for the adverse actions taken against
defendants. See Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230,
240 (1st Cir. 2012) (“While mere temporal proximity between a change of
administration
and
an
adverse
employment
action
is
insufficient
to
Civil No. 14-1016(PG)
Page 14
establish discriminatory animus […] it is relevant to whether political
affiliation
was
a
substantial
or
motivating
factor
in
that
adverse
employment decision[.]”) (citations omitted); Acosta–Orozco v. Rodriguez–
de–Rivera, 132 F.3d 97 (1st Cir.1997)(noting that Plaintiffs had presented
enough evidence to avoid summary judgment because “the plaintiffs were all
members of the adverse party … their superiors knew this, and … their
duties were given to active supporters of the party in power”).
2. Mt. Healthy Defense
In their motion for summary judgment, the defendants raise Mt. Healthy
defenses in support of their request that this court summarily dismiss the
plaintiffs’ claims. “A defendant can defeat liability under Mt. Healthy
‘by showing that plaintiffs’ positions were obtained in violation of Puerto
Rico law and that, even if political animus was a factor, defendants would
have taken corrective action anyway against every employee whose position
was obtained in violation of law.’” Reyes-Orta, 811 F.3d 67, 73 (1st Cir.
2016) (citing Sanchez–Lopez v. Fuentes–Pujols, 375 F.3d 121, 131 (1st
Cir.2004); see also Reyes–Pérez v. State Ins. Fund Corp., 755 F.3d 49, 54–
55 (1st Cir.2014) (affirming summary judgment in defendants’ favor where
the government employer conducted agency-wide, merit-principle audits of
all personnel, not just individuals of a particular party); Soto–Padró v.
Pub. Bldgs. Auth., 675 F.3d 1, 6 (1st Cir.2012) (“[E]ven if a plaintiff
shows an impermissible political motive, he cannot win if the employer
shows that it would have taken the same action anyway, say, as part of a
bona fide reorganization.”)). “To establish a successful Mt. Healthy
defense, it is the defendant’s responsibility to persuade the factfinder
that it would have made the same decision even if the illegitimate reason
had not been a factor.” Reyes-Orta, 811 F.3d at 73–74. “Because all
reasonable inferences are drawn in the non-movant’s favor at summary
judgment, … a defendant cannot win at summary judgment unless the only
reasonable interpretation of the evidence is that the plaintiff would have
been dismissed in any event for nondiscriminatory reasons.” Id. at 74
(citing Padilla–Garcia, 212 F.3d at 73). “The evidence by which the
plaintiff established her prima facie case may suffice for a factfinder to
Civil No. 14-1016(PG)
Page 15
infer that the defendant’s reason is pretextual and to effectively check
summary judgment.” Padilla-Garcia, 212 F.3d at 78.
With regards to plaintiff Cruz, the defendants argue that regardless
of his political affiliation, his lack of experience and qualifications
justified his removal from the trust position he occupied at the Board. In
addition, the defendants contend that Cruz’s illegal appointment to the
Executive Director position at the Council and the federal report GarciaPelatti received classifying the Council at “high risk” justified his
dismissal. See Docket No. 62 at pages 17-24. In response, the plaintiffs
make reference to Garcia-Pelatti’s statements referencing the political
motivations behind the plaintiffs’ dismissals. The plaintiffs also poke
holes at the defendants’ assertion that Roa’s removal from the Executive
Director position back in 2011 and Cruz’s subsequent appointment were
illegal. See Docket No. 81 at pages 25-28. Both matters are clearly in
dispute and there are issues of fact preventing the court from reaching
any conclusions as to the same.
Nevertheless, it is uncontested that Garcia-Pelatti’s termination
letter dismissed plaintiff Cruz from the Bureau Director position he held
at the PRPB. See Finding of Fact No. 40; Docket No. 83-10. As President of
the PRPB, Garcia-Pelatti presumably had the authority and was justified to
dismiss him from said position given Cruz’s admission that he was not
qualified to occupy said post. See Findings of Fact No. 12; Velez-Rivera
v. Agosto-Alicea, 437 F.3d 145, 153-154 (1st Cir. 2006) (affirming district
court grant of summary judgment where plaintiff would have been terminated,
regardless of political affiliation, because she was unqualified for her
position).
However,
the
record
is
devoid
of
any
letter
from
anyone
informing Cruz of his termination from the Executive Director position at
the Council. Moreover, the defendants admit that Garcia-Pelatti knew that
he lacked the authority to discharge the Executive Director of the Council.
See Findings of Fact No. 43-44. In fact, Garcia-Pelatti received a letter
from the President of the Board of the Council shortly after Cruz’s
termination from the PRPB informing Garcia-Pelatti that he lacked the
faculty to dismiss the Executive Director of the Council. See Findings of
Fact No. 60. Therefore, if Cruz’s appointment was purportedly illegal
according to the defendants, by the same token, so was Cruz’s termination
Civil No. 14-1016(PG)
by
Page 16
Garcia-Pelatti.
In
light
of
the
foregoing,
the
court
finds
that
plaintiff Cruz has sufficiently discredited the defendants’ reasons for
removing him from the Executive Director position at the Council. See
Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st
Cir.2000)
(noting
weaknesses,
that
plaintiff
implausibilities,
may
prove
pretext
inconsistencies,
by
demonstrating
incoherency
or
contradictions in the employer’s proffered legitimate reasons such that a
fact finder would infer that the employer did not act for the asserted
nondiscriminatory reasons). The defendants’ request to dismiss Cruz’s First
Amendment political discrimination claims is thus DENIED.
Now, plaintiff Miranda’s situation is a different story. In their
motion for summary judgment, the defendants contend that Miranda was
appointed to the trust position of Confidential Secretary at the PRPB to
assist Cruz, who is blind. Because Cruz was dismissed from the position he
held at the PRPB, her services were no longer necessary. Moreover, the
defendants point out that Miranda admits to not performing the duties of
her position, and thus, her dismissal was justified. See Docket No. 62 at
page 24. The plaintiffs’ oppose the defense raised by the defendants by
making reference to Garcia-Pelatti’s comments and claiming that, inasmuch
as Cruz’s dismissal from the Council was contrary to law, it follows that
the dismissal of his “reasonable accommodation” is also contrary to law.
See Docket No. 81 at page 28.
The facts pertaining to plaintiff Miranda’s employment merit some
clarification. First of all, as opposed to what the plaintiffs allege in
the complaint (Docket No. 25 at ¶ 3.2), Miranda was not an employee of the
Council.
Or
so
the
court
gathers
from
the
uncontroverted
facts
and
documents submitted. It stems from the record of this case that Miranda’s
Confidential Secretary position was a trust position ascribed to the PRPB.
See Finding of Fact No. 14; Docket No. 62-13. She assumed the post on July
21st, 2011, the same day her husband was appointed Bureau Director at the
PRPB,
a
position
Cruz
has
readily
admitted
he
was
unqualified
for.
Therefore, it is reasonable to conclude that the PRPB, and not the Council,
is
the
agency
that
provided
plaintiff
Cruz
with
the
“reasonable
accommodation” of having his wife as his assistant due to his blindness.
Ergo, Garcia-Pelatti had the authority and was reasonably justified to
Civil No. 14-1016(PG)
Page 17
terminate Cruz’s employment at the PRPB. The court thus finds that the
defendants’
defense
concerning
Miranda’s
employment
holds
water,
especially in light of Miranda’s admission that she was not performing the
duties of the position she was hired and getting paid for. See Findings of
Fact No. 16.
The defendants have successfully established a non-discriminatory
reason that would have resulted in the adverse employment action taken
against
Miranda,
Miranda’s
charged
regardless
controverted
comment
of
her
assertions
during
a
meeting
political
about
are
affiliation.
Garcia-Pelatti’s
enough
to
Although
politically-
establish
that
the
defendants may have had an impermissible political motive, Miranda fails
to show that it was substantial or that the legitimate grounds asserted by
the
defendants
are
a
mere
ruse.
As
a
result,
Miranda’s
political
discrimination claims against defendants must be summarily dismissed and
the defendants’ request to that effect is GRANTED.
B. Due Process Claims
In the complaint, the plaintiffs allege they had property interests
in their respective positions and were dismissed without being afforded a
hearing in violation of their Due Process rights. See Docket No. 25 at ¶
8.1-8.6. In their motion for summary judgment, the defendants request the
dismissal of the plaintiffs’ procedural due process claims under the
Fourteenth
Amendment.
classified
as
“trust”
The
defendants
employees,
and
argue
thus,
that
the
had
no
plaintiffs
were
constitutionally
protected interest in their position. See Docket No. 62 at pages 13-15.
“Under the Due Process Clause of the Fourteenth Amendment, persons
who possess a property interest in continued public employment cannot be
deprived of that interest without due process of law.” Figueroa–Serrano v.
Ramos–Alverio, 221 F.3d 1, 5–6 (1st Cir.2000)(citing Kercado–Melendez v.
Aponte–Roque, 829 F.2d 255, 263 (1st Cir.1987)). “The root requirement of
the Due Process Clause is that an individual must be provided notice and
an opportunity to be heard prior to being deprived of any significant
property interest.” Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 88 (1st
Cir.
2014)
(citations
and
quotation
marks
omitted).
To
establish
a
Civil No. 14-1016(PG)
Page 18
procedural due process violation, a plaintiff must, first, identify a
protected liberty or property interest and, second, that the defendant,
acting under color of state law, deprived him or her of that interest
without constitutionally adequate process. See Hightower v. City of Boston,
822
F.Supp.2d
38,
56
(D.Mass.2011),
aff’d,
693
F.3d
61
(1st
Cir.2012)(citing González–Droz v. González–Colón, 660 F.3d 1, 13 (1st
Cir.2011)).
In Puerto Rico, public employees fall generally in two categories:
those
who
hold
“career”
positions
and
those
who
hold
“trust”
or
“confidence” positions. See Costa–Urena v. Segarra, 590 F.3d 18, 22 (1st
Cir.2009) (citing Figueroa–Serrano, 221 F.3d at 3 n. 1). “Career employees
… hold ‘permanent’ positions.” Costa–Urena, 590 F.3d at 22 (citing Maymi
v. P.R. Ports Auth., 515 F.3d 20, 24 n. 2 (1st Cir.2008)). As such, these
employees “may only be removed for cause and after certain procedures are
followed.” Id. (citations omitted). The First Circuit has explained that
career
employees
are
entitled
to
the
protections
of
the
First
and
Fourteenth Amendments. See id. at 22–23 (citing Rodriguez–Marin v. Rivera–
Gonzalez, 438 F.3d 72, 79–80 (1st Cir.2006)(“The First Amendment protects
the right of public career employees … to engage in political activities
without fear of adverse employment actions.”); Colon–Santiago v. Rosario,
438 F.3d 101, 108 (1st Cir.2006)(recognizing that under Puerto Rico law,
career employees have a property interest in their continued employment
that is protected by the Due Process Clause of the Fourteenth Amendment)).
Therefore, “‘before a significant deprivation of liberty or property takes
place at the state’s hands, the affected individual must be forewarned and
afforded an opportunity to be heard at a meaningful time and in a meaningful
manner.’” Gonzalez–Droz, 660 F.3d at 13 (internal quotations and citations
omitted).
On the other hand, “Puerto Rico ‘trust’ employees participate in
policymaking and can be hired and fired on political grounds.” Medina–
Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 110 (1st Cir.2014)(citing
Uphoff Figueroa v. Alejandro, 597 F.3d 423, 430 n. 7 (1st Cir.2010)). The
First Circuit has “recognized that political affiliation is an appropriate
Civil No. 14-1016(PG)
Page 19
requirement for … effective performance in such trust positions.” Medina–
Velazquez, 767 F.3d at 110 (internal citations omitted).
In his complaint, Cruz only complains of his termination from the
Executive Director position at the PRDDC, not the Bureau Director position
at the PRPB. See Docket No. 25. It is undisputed that according to the
Memorandum of Understanding between the PRDDC and the PRPB, the Executive
Director of the PRDDC shall be a permanent government employee. See Finding
of Fact No. 5. “It is well established, both in Puerto Rico and in federal
law, that a person has secured a property right in his employment if he
has an expectation of continuity in said employment.” Quiles Rodriguez v.
Calderon, 172 F.Supp.2d 334, 344 (D.P.R.2001). However, the record is
devoid of any notification of termination from this position or of proof
that Cruz was given an opportunity to be heard prior to his discharge. In
their motion, the defendants fail to address or explain these lapses. And
although defendants make a passing reference in their discussion to the
illegality of Cruz’s designation to the post,4 it was already found that
co-defendant Garcia-Pelatti lacked the authority to dismiss Cruz from the
Executive Director position at the PRDDC. Needless to say, “[i]n law as in
life, two wrongs do not make a right.” Mulero-Abreu v. Puerto Rico Police
Dep’t, 675 F.3d 88, 92 (1st Cir. 2012). In light of these inconsistencies
in the record, the defendants request for dismissal of Cruz’s Due Process
claims is thus DENIED.
With regards to Miranda, it is undisputed that the Confidential
Secretary position she occupied was classified as a trust position. See
4
The court understands that “[t]o possess constitutionally protected property interests
in their career positions, the plaintiffs must have valid claims to those positions. … An
employee’s claim is not valid if the hire contravened Commonwealth laws and regulations,
which include the Puerto Rico Personnel Act and agency regulations promulgated under that
Act.” Costa-Urena v. Segarra, 590 F.3d 18, 27 (1st Cir. 2009) (citing Kauffman v. Puerto
Rico Tel. Co., 841 F.2d 1169, 1173 (1st Cir.1988); see also Vazquez–Valentin v. Santiago–
Diaz, 459 F.3d 144, 149 (1st Cir.2006) (recognizing that hirings made “in violation of
Commonwealth laws and regulations normally are null and void ab initio”) (citation omitted);
Correa–Martinez v. Arrillaga–Belendez, 903 F.2d 49, 54 (1st Cir.1990) (“We have regularly
held that, under Puerto Rico law, government employees hired illegally to permanent or
career positions are neither invested with property interests in continued employment nor
entitled to the due process protections which inure to their legally hired counterparts.”)).
However, material issues of fact prevent the court at this stage to determine if Cruz has
a valid claim to his designation as Executive Director of the Board of the PRDDC after
Roa’s removal.
Civil No. 14-1016(PG)
Page 20
Finding of Fact No. 15. In the plaintiffs’ opposition, however, they claim
that Miranda’s position was improperly classified. The court agrees with
the plaintiffs’ assertion that position’s classification is not necessarily
conclusive. The First Circuit has held that the designation of a position
as “trust” or “career” under Puerto Rico law, although entitled to some
deference, is not dispositive in determining the federal question of
whether a position is afforded constitutional protection. See Velazquez v.
Mun. Gov’t of Catano, 91 F.Supp.3d 176, 193 (D.P.R.2015) (citing Duriex–
Gauthier v. Lopez–Nieves, 274 F.3d 4, 8 (1st Cir.2001), Ruiz Casillas v.
Camacho Morales, 2004 WL 3622480 (D.P.R.2004)). “[W]hether a government
position is trust/confidential/policymaking does not depend upon such
loose-fitting labels as substance of the duties inherent in the position
itself.” Roman v. Delgado Altieri, 390 F.Supp.2d 94, 105 (D.P.R.2005)
(citing Ortiz–Pinero v. Rivera–Arroyo, 84 F.3d 7, 12 (1st Cir.1996))).
“The
official
determining
job
the
description
actual
is
a
functions
presumptively
of
the
reliable
position.”
basis
Mendez-Aponte
for
v.
Bonilla, 645 F.3d 60, 66 (1st Cir. 2011).
In support of their Due Process claims, however, the plaintiffs have
stated, without more, that they were not privy to confidential information
nor
were
they
in
policymaking
positions
that
would
justify
their
classification of trust employees. See Docket No. 81 at pages 24-25. The
plaintiffs have provided the court with no evidence in support of this
argument.
No
job
descriptions
nor
statements
attesting
to
Miranda’s
functions and duties are on record.
“A person is only entitled to procedural due process if she can
establish that the government deprived her of a constitutionally protected
interest.” Costa-Urena v. Segarra, 590 F.3d 18, 26 (1st Cir. 2009). “[T]o
demonstrate a constitutionally protected property interest, a plaintiff
must identify a ‘legitimate claim of entitlement’ to the property in
question and must show more than an abstract need, desire, or unilateral
expectation of that property.” Garcia-Gonzalez v. Puig-Morales, 761 F.3d
81, 88 (1st Cir. 2014) (citing Redondo–Borges v. U.S. Dep’t of Hous. &
Urban Dev., 421 F.3d 1, 8 (1st Cir.2005)). Having Miranda failed to
establish that she had a protected property interest, her due process claim
must fail. See Garcia-Gonzalez, 761 F.3d at 88 (citing Redondo–Borges, 421
Civil No. 14-1016(PG)
Page 21
F.3d at 11 (“Because the plaintiffs identify no constitutionally protected
property interest, it is unnecessary to delve any deeper into the section
1983 inquiry.”). As a result, the defendants’ request to dismiss Miranda’s
Due Process claims is GRANTED.
C. Qualified Immunity
In their motion for summary judgment, defendants claim they are
entitled
to
qualified
immunity,
because
they
have
not
violated
any
constitutional right of plaintiffs. They argue the actions they took were
objectively reasonable and in accordance with the law. See Docket No. 62
at pages 27-29.
“Long-standing principles of constitutional litigation entitle public
officials to qualified immunity from personal liability arising out of
actions
taken
in
the
exercise
of
discretionary
functions.”
Glik
v.
Cunniffe, 655 F.3d 78, 81 (1st Cir.2011). The First Circuit applies a
three-part test to determine whether a public official is entitled to
qualified immunity, asking “(1) whether plaintiff’s allegations, if true,
establish a constitutional violation; (2) whether that 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.” Guillemard–
Ginorio v. Contreras–Gomez, 490 F.3d 31, 38 (1st Cir. 2007) (quoting Mihos
v. Swift, 358 F.3d 91, 102 (1st Cir.2004)). If all three questions are
answered in the affirmative, then qualified immunity is not available. See
Mihos, 358 F.3d at 110.
It has long been held that patronage dismissals of non-policymaking,
non-confidential government employees is proscribed by the First Amendment
to the United States Contitution. See Branti, 445 U.S. at 518; Rutan, 497
U.S. at 64-65; Ocasio-Hernandez, 640 F.3d at 13. Thus, the analysis turns
on the objective reasonableness of the defendants’ actions. “The objective
reasonableness inquiry is highly fact specific, … and often requires [an]
examination of the information possessed by the defendant officials.” Diaz–
Garcia v. Surillo–Ruiz, 113 F.Supp.3d 494, 525 (D.P.R. 2015) (internal
quotation marks omitted) (citing Swain v. Spinney, 117 F.3d 1, 9–10 (1st
Civil No. 14-1016(PG)
Page 22
Cir.1997); Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009); Kelley
v. LaForce, 288 F.3d 1, 7 (1st Cir.2002)).
At this juncture, the court is unable to render a determination as
to qualified immunity insofar as questions of fact that are within the
sole province of the jury remain regarding the facts known to the defendants
at the time of the events in question. That is, although defendants argue
in their favor that they were acting pursuant to the law and that Cruz had
no protected property interests in his position, they also knew they had
no authority to terminate Cruz from the Executive Director of the PRDDC.
And, as previously explained, there is a factual issue as to whether Cruz’s
political affiliation substantially motivated his termination.
Although we recognize that the immunity question
should be resolved, where possible, in advance of
trial, pre-trial 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 1, 7 (1st Cir. 2002) (internal citations and
quotation marks omitted).
Summary judgment based on qualified immunity would be inappropriate
at this stage. Consequently, the defendants’ request to be shielded from
suit on qualified immunity grounds is DENIED WITHOUT PREJUDICE.
V.
CONCLUSION
For the reasons stated above, the defendants’ motion for summary
judgment (Docket No. 62) is hereby GRANTED IN PART AND DENIED IN PART.
Plaintiff Miranda’s claims under the First and Fourteenth Amendment are
hereby DISMISSED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, August 31, 2017.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
SENIOR U.S. DISTRICT JUDGE
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