Cano-Rodriguez v. De Jesus-Cardona et al

Filing 65

OPINION and ORDER granting 39 motion for summary judgment. All federal claims dismissed with prejudice; all state-law claims dismissed without prejudice. Final judgment to be entered. Signed by US Magistrate Judge Bruce J. McGiverin on March 29, 2016. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROBERTO CANO-RODRIGUEZ,
Plaintiff,
v.

Civil No. 14-1284 (BJM)

NARCISO DE JESUS-CARDONA, et al.,
Defendants.
OPINION AND ORDER
Roberto Cano-Rodriguez (“Cano”) brought this § 1983 action against Cesar
Miranda Rodriguez in his official capacity as the Secretary of Justice of the
Commonwealth of Puerto Rico, Jose Negron Fernandez (“Negron”) in his official
capacity as Secretary of the Puerto Rico Department of Corrections and Rehabilitation
(“DCR”), and Narciso De Jesus-Cardona (“De Jesus-Cardona”) (collectively,
“defendants”), alleging political discrimination in violation of the First Amendment and
violation of the Due Process Clause of the Fifth and Fourteenth Amendments. 1
Defendants previously moved to dismiss the complaint, and the court dismissed monetary
claims against the Commonwealth of Puerto Rico; damages claims against the defendants
in their official capacities; and claims alleging a deprivation of substantive due process
and violation of the Fifth Amendment. Docket No. 14. Defendants moved for summary
judgment, Docket No. 39, and Cano opposed, Docket No. 43. The case is before me on
consent of the parties. Docket No. 34.
For the following reasons, the motion is GRANTED.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the movant shows “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
1

The complaint also alleged various state-law claims: Article II, Sections 1, 4, 6, and 7 of
the Puerto Rico Constitution; and P.R. Laws Ann. tit. 29, § 137, which has been repealed.

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Fed. R. Civ. P. 56(a). A dispute is “genuine” only if it “is one that could be resolved in
favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
2004). A fact is “material” only if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial burden of “informing the district court of the basis for its motion,
and identifying those portions” of the record materials “which it believes demonstrate the
absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
The court does not act as trier of fact when reviewing the parties’ submissions and
so cannot “superimpose [its] own ideas of probability and likelihood (no matter how
reasonable those ideas may be) upon” conflicting evidence. Greenburg v. P.R. Mar.
Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must “view the entire record
in the light most hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). The court may not grant summary judgment “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. But the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and may not rest upon “conclusory allegations,
improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
BACKGROUND
Except where otherwise noted, the following facts are drawn from the parties’
Local Rule 562 submissions.3
Local Rule 56 is designed to “relieve the district court of any responsibility to ferret
through the record to discern whether any material fact is genuinely in dispute.” CMI Capital
Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for
2

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Cano began working at the DCR in 1994, and served as the DCR’s Regional
Director of the Eastern Region (“regional director”) before his termination in 2013. 4
SAMF ¶¶ 1, 11. He is a Republican, is a member of the New Progressive Party (“NPP”),
and was the coordinator of an NPP-affiliated organization, “Civil Servants with Fortuño,”
at the DCR. SAMF ¶ 2.
In 2009, Cano was appointed to the regional director position and replaced De
Jesus-Cardona, a member of the Popular Democratic Party (“PDP”). SUMF ¶¶ 4–5. Cano
testified that in 2012 he had a three-month romantic relationship with Sandra PolancoRomán (“Polanco”), a social penal specialist who worked at the DCR’s Guayama 500
institution. SAMF ¶ 7. During their relationship, Cano sent Polanco a picture of himself
in his underwear. SUMF ¶¶ 2–3; OSMF ¶¶ 2–3. Also during their relationship, Polanco
asked Cano to authorize her transfer from the Guayama 500 institution to the Guayama
296 institution, where she previously worked. SAMF ¶ 8. Believing it would violate “the
electoral ban,”5 Cano declined to authorize the transfer. SAMF ¶ 8.
The 2012 gubernatorial election for Puerto Rico was held on November 6, 2012,
and the PDP candidate, Alejandro Garcia Padilla, won the election.6 Two to three days
after the election, Polanco ended her relationship with Cano and their interactions ceased
at that time. SAMF ¶¶ 9–10. On November 15, 2012, Polanco filed with the DCR a
summary judgment to accompany its motion with a brief statement of facts, set forth in numbered
paragraphs and supported by citations to the record that the movant contends are uncontested and
material. D.P.R. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts,
with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present,
in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c).
3
Defendants’ statement of uncontested material facts (“SUMF”), Docket No. 39-6,
Cano’s opposing statement of material facts (“OSMF”), Docket No. 43-1, and Cano’s additional
statement of material facts (“SAMF), Docket No. 43-1. Defendants did not file a reply statement
of material facts.
4
Around the same time he was terminated, Cano was transferred to the Lieutenant II
position. Compl. ¶ 39.
5
An electoral ban period prohibits “certain public service personnel transactions” within
a specified time period before and after an election. See Colon-Santiago v. Rosario, 438 F.3d 101,
104 (1st Cir. 2006).
6
I take judicial notice of these facts.

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sexual harassment complaint, accusing Cano of sending her a picture of himself in his
underwear, accosting her, and making sexually charged comments. SUMF ¶ 1; OSMF ¶
1. On April 10, 2013, Cano received a letter stating that the DCR intended to terminate
him due to Polanco’s sexual harassment complaint. SUMF ¶ 4; OSMF ¶ 4; Docket No.
39-1.7 This decision was made by DCR’s Secretary, Negron, whose signature appears on
the letter. Docket No. 39-1. A few days later, Cano requested an administrative hearing to
contest Negron’s decision. SUMF ¶ 6; OSMF ¶ 6; Docket No. 39-2.8 On May 6, 2013, a
hearing officer confirmed the decision to terminate Cano. SUMF ¶ 8; OSMF ¶ 8; Docket
No. 39-3.9
On May 21, 2013, De Jesus-Cardona called Cano and asked him to pick up his
termination letter at the DCR’s central headquarters. Docket No. 39-5, Cano Dep. 16:8–
11, 35:1–20, 37:17–22. When Cano did so, De Jesus-Cardona told him that: (1) in 2009
he had been replaced by Cano for political reasons; (2) he did everything possible, with
DCR’s Secretary, Negron, to dismiss Cano; and (3) that Cano was dismissed because he
was a Republican and member of the NPP.10 See Cano Dep. 14:1–11, 25:13–17.
Cano appealed his dismissal to the Investigative, Processing, and Appeals
Committee (“CIPA”) of Puerto Rico, and CIPA determined that Cano should be
reinstated. Docket No. 47-1 at 4–5. CIPA decided so because the DCR failed to produce
Polanco, as she allegedly left Puerto Rico to reside elsewhere. Id. CIPA later reversed its
decision, but the Puerto Rico Court of Appeals held that CIPA had correctly decided the
case the first time and ordered Cano reinstated. Id. at 17–18. Defendants informed the

7
8

A translation of the letter is available at Docket No. 62-1.
A translation of the request for an informal administrative hearing is available at Docket

No. 62-2.
A translation of the hearing officer’s report is available at Docket No. 62-3.
I note that Cano first said De Jesus-Cardona made the comments above on April 11,
2013, and later clarified that the comments were made on May 21, 2013. See Cano Dep. 13:16–
25, 14:1–11, 25:13–17.
9

10

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court that DCR is in the process of reinstating Cano, and Cano has informed the court
that his request for reinstatement is moot. Docket Nos. 56, 61.
DISCUSSION
Defendants contend that they had no knowledge of Cano’s political affiliation,
that it was not a substantial or motivating factor for his termination, and that he would
have been terminated in any event for nondiscriminatory reasons. Cano contends that he
was dismissed because of his political affiliation, and genuine disputes of material fact
allow his claims to survive summary judgment.11
I.

Political Discrimination
“To the victor belong only those spoils that may be constitutionally obtained.”

Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990). The First Amendment shields
government employees who are not in policymaking positions of confidence from
adverse employment decisions based on their political affiliations. Borges Colon v.
Roman-Abreu, 438 F.3d 1, 14 (1st Cir. 2006). Section 1983 provides a procedural
mechanism for enforcing constitutional rights, Albright v. Oliver, 510 U.S. 266, 271
(1994), and so it “is the conventional vehicle through which relief is sought for claims of
political discrimination by state actors.” Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d
49, 54 (1st Cir. 2013).
A plaintiff seeking to establish a prima facie case of political discrimination has
the burden of establishing four elements: “(1) that the plaintiff and defendant have
opposing political affiliations, (2) that the defendant is aware of the plaintiff’s affiliation,
(3) that an adverse employment action occurred, and (4) that political affiliation was a
substantial or motivating factor for the adverse employment action.” Ocasio–Hernández,
640 F.3d at 13 (quoting Lamboy–Ortiz v. Ortiz–Vélez, 630 F.3d 228, 239 (1st Cir. 2010)).
11

Although Cano was transferred from the regional director position to the Lieutenant II
position, he challenges only his dismissal from the DCR and does not allege that he was
improperly demoted.

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That burden satisfied, “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.” Vélez–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) (Mt. Healthy)). To make this showing, the defendant must
persuade the factfinder it would have made the same decision even if the illegitimate
reason had not been a factor. See Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008);
Padilla–García v. Guillermo Rodriguez, 212 F.3d 69, 77–78 (1st Cir. 2000).
For the purposes of this motion, defendants do not contest that they and Cano
have opposing political affiliations and that Cano suffered an adverse employment action
when he was terminated. They contend, however, that they were unaware of Cano’s
political affiliation and that his political affiliation was not a substantial or motivating
factor for his termination.
II.

Knowledge of Cano’s Political Affiliation
Cano faults defendants for not coming forward with evidence negating their

awareness of his political affiliation. Pl.’s Opp’n 10. But the burden of establishing at
trial that each defendant knew his political affiliation rests with Cano, not the defendants.
See, e.g., Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993) (in “a First Amendment
political discrimination claim, the burden of persuasion itself passes to the defendantemployer once the plaintiff produces sufficient evidence from which the fact finder
reasonably can infer that the plaintiff's protected conduct was a ‘substantial’ or
‘motivating’ factor behind her dismissal”). Accordingly, defendants may (and do) simply
“point out” that Cano lacks sufficient evidence to establish that either Negron or De
Jesus-Cardona knew his political affiliation. Celotex Corp., 477 U.S. at 325 (“the burden
on the moving party may be discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the nonmoving party’s case”).

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The First Circuit considered a case similar to the one here in Del Toro Pacheco v.
Pereira, 633 F.3d 57 (1st Cir. 2011) (Del Toro). In that case, Del Toro claimed he was
terminated from his position at the DCR’s special arrest unit (SAU) because the director
of that unit, Izquierdo, and the DCR’s Secretary, Pereira, disagreed with Del Toro’s
affiliation with the NPP. Id. at 58. The court held there was a genuine dispute of material
fact as to whether Izquierdo knew Del Toro’s political affiliation. Id. at 63. It held so
because Izquierdo denied any such knowledge and that denial conflicted with the
evidence Del Toro submitted––that Izquierdo gave Del Toro poor evaluations and made
various comments urging and pressuring him to become a PDP member. Id.
On the other hand, Del Toro failed to establish a prima facie case against Pereira
because he admitted that he did not know Pereira, that they never discussed politics, and
that Pereira was included in the complaint due to his position as secretary of the DCR. Id.
at 62. And although Del Toro was an escort for a former NPP governor, a position that
suggested to others his political affiliation, he did not allege Pereira knew that he held
that position. Id. at 63.
As in Del Toro, while there is a genuine dispute of material fact as to whether De
Jesus-Cardona knew Cano’s political affiliation, there is insufficient evidence that DCR’s
Secretary, Negron––the person who made the decision to terminate Cano––had the
requisite knowledge. Cano testified that he is a Republican, is a well-known NPP
member, and was the coordinator of an NPP-affiliated organization, “Civil Servants with
Fortuño,” at the DCR. SAMF ¶ 2. Because he was the coordinator of the NPP-affiliated
organization, Cano claims everybody at the DCR knew his political affiliation. Although
Cano seems to suggest the DCR is a “relatively small workplace where everyone kn[ows]
who everyone else [is] and political affiliations are common office knowledge,” Peguero
–Moronta v. Santiago, 464 F.3d 29, 48 (1st Cir. 2006), there is insufficient evidence in the
record to establish that is so. Indeed, Del Toro suggests the DCR is not such a workplace
because it declined to find that DCR’s Secretary knew Del Toro’s political affiliation even

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though the latter was an escort for a former NPP governor, a position that would suggest
to others that Del Toro was affiliated with the NPP. 633 F.3d at 63 n.8.
To establish that De Jesus-Cardona knew his political affiliation, Cano testified
that on May 21, 2013, De Jesus-Cardona told him that he was terminated because he is a
Republican and member of the NPP. De Jesus-Cardona’s deposition testimony submitted
to the court does not, however, reveal that he knew Cano’s political affiliation. While the
record is sparse, a reasonably jury could find that De Jesus-Cardona knew Cano’s
affiliation with the NPP.
A reasonable jury could not similarly so find with respect to DCR’ Secretary,
Negron. The complaint states that Negron is the nominating authority at the DCR,
Compl. ¶ 20; was the person who intended to dismiss Cano, id. ¶ 38; was the person who
reassigned Cano from the regional director position to the Lieutenant II position, id. ¶ 39;
was the person who placed De Jesus-Cardona in the regional director position, id. ¶ 46;
and was the person who signed Cano’s dismissal letter, id. ¶ 51. Notably, the complaint
did not specifically allege that Negron knew Cano’s political affiliation.
Moreover, Negron was not deposed in this case, and Cano does not claim that
Negron made any statements to him or that he knew about Cano’s position as the
coordinator of the NPP-affiliated organization. What is more, Cano does not allege he has
met Negron or that they have discussed each other’s political affiliations. Cano
exclusively relies on is his own sworn testimony that De Jesus-Cardona, the person who
gave Cano the letter of dismissal on May 21, said that the dismissal was “his” revenge for
displacing him from the regional director position in 2009. To the extent Cano contends
he can use his own sworn testimony regarding De Jesus’s Cardona’s statements in order
to establish Negron’s knowledge, the First Circuit rejected a similar argument in Del
Toro. See Del Toro, 633 F.3d at 63 n.8. (inadmissible hearsay where Del Toro attempted
to establish Pereira’s knowledge by relying on his own sworn statement that Izquierdo
said, “Pereira knows that you filed a claim against us and that you are a member of the

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NPP.”). Thus, while a reasonable jury could find that De Jesus-Cardona knew Cano’s
political affiliation, there is insufficient evidence for a reasonable jury to so find with
respect to Negron.
III.

Substantial or Motivating Factor
To survive summary judgment, Cano must establish that his political affiliation

was “at least a ‘motivating factor’ in the [DCR’s] decision to dismiss him.” Vazquez v.
Lopez-Rosario, 134 F.3d 28, 36 (1st Cir. 1998) (quoting LaRou v. Ridlon, 98 F.3d 659,
661 (1st Cir. 1996)). Because “unsupported and speculative assertions regarding political
discrimination will not be enough to survive summary judgment,” he must point to
admissible evidence in the record “which, if credited, would permit a rational fact finder
to conclude that [his dismissal] stemmed from a politically based discriminatory animus.”
Vazquez, 134 F.3d at 36. In political patronage cases, “one rarely finds ‘smoking gun’
evidence.” Ocasio-Hernández, 640 F.3d at 17 (quoting Lamboy-Ortiz, 630 F.3d at 240).
For this reason, “circumstantial evidence must, at times, suffice.” Ocasio-Hernández, 640
F.3d at 17.
A set of circumstances similar to the ones in this case were presented in Del Toro.
633 F.3d at 57. In that case, a woman accused Del Toro of raping her, and Del Toro told
his supervisor, Izquierdo, about the accusation. Id. at 59. As is the case here, Del Toro
denied the accusations and claimed that the woman accused him only after their
consensual relationship ended. Id. at 59–60. Izquierdo relayed this information to
individuals at the DCR, and an internal investigation ensued when a report about the
accusations was delivered to DCR’s Secretary, Pereira. Id. at 60. Thereafter, Pereira sent
Del Toro a letter outlining the results of an internal investigation and stating that Del Toro
was going to be terminated. Id. at 60–61. After unsuccessfully challenging that decision
before a hearing officer and the CIPA, Del Toro was terminated. Id. at 61. Under these
circumstances, the First Circuit held Del Toro failed to establish a prima facie case that

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his political affiliation was a substantial or motivating factor behind the termination. Id.
at 63.
As an initial matter, because Cano has failed to submit evidence from which a
reasonable jury could infer that Negron was aware of his political affiliation, there is
similarly insufficient evidence that Negron was “at least motivated” to terminate Cano on
that basis. But even assuming, for the moment, that a reasonable jury could proceed to the
fourth element of Cano’s prima facie case, there is insufficient evidence that Negron was
motivated to dismiss Cano on account of his political affiliation.
Although Cano homes in on De Jesus-Cardona’s conduct, the record lacks
evidence relating to Negron. As in Del Toro, this is problematic and fatal to Cano’s prima
facie case because Negron––not De Jesus-Cardona––made the decision to terminate
Cano. See Del Toro, 633 F.3d at 63 (“the record reflects that it was Pereira [, DCR’s
Secretary,] who made the decision to fire [the DCR employee], not Izquierdo [, who was
the employee’s immediate supervisor]”). And to the extent Cano claims that De JesusCardona was involved in the termination because he delivered the letter of dismissal, the
First Circuit rejected such an attenuated connection in Del Toro. Id. (prima facie case not
established where “Izquierdo stated that his only participation in the termination . . . was
to serve as a witness to the delivery of Pereira's termination letter”).
Moreover, Negron decided to terminate Cano only after an internal investigation
and hearing officer determined that Polanco accused him of sexually harassing conduct.
Cano nonetheless presses that the state administrative agency decided to reinstate him. A
review of the administrative proceeding, however, reveals that CIPA determined that
Cano should be reinstated because the DCR could not produce Polanco to testify. But
even if the DCR was unable to sustain its case due to Polanco’s unavailability, it does not
automatically follow that Negron was motivated to terminate Cano on the basis of his
political affiliation. Cano does not allege, for example, that in an effort to terminate him
on account of his political affiliation, Polanco and Negron conspired to manufacture the

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sexual harassment allegations, or that Negron “set in motion a series of acts by others
which the actor knows or reasonably should know would cause others to inflict the
constitutional injury.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009). And
more importantly, for purposes of summary judgment, there is certainly no evidence––
direct or circumstantial––of such things in the record.
Attempting to avoid summary adjudication, Cano hangs his hat on his own
deposition testimony. As an initial matter, plaintiff’s counsel mischaracterized the
deposition testimony, stating Cano “declared that when he was appointed as Regional
Director [in 2009] defendant De Jesus-Cardona . . . told him that he had lost his job as
Regional Director because of him, and that he would do anything possible to have him
removed from this position.” SAMF ¶ 6. The record does not support this statement.
After appearing to confuse both parties’ counsel during his deposition, Cano made clear
that it was on May 21, 2013––not in 2009––that De Jesus-Cardona told him that he
worked with Negron to dismiss him due to his political affiliation. Docket No. 39-5,
Cano Dep. 13:16–25, 14:1–11, 25:13–17. As noted above, to the extent Cano seeks to
rely on his own deposition testimony to establish that De Jesus-Cardona said that Negron
decided to terminate him because of his political affiliation, that reliance is misplaced.
See Del Toro, 633 F.3d at 63 n.8.
And contrary to Cano’s contention, the temporal proximity between Cano’s
termination in May 2013 and the 2012 gubernatorial election does not suggest a
discriminatory animus. See Peguero-Moronta v. Santiago, 464 F.3d 29, 53 (1st Cir. 2006)
(“The temporal proximity between a change in political administrations and an adverse
employment action is relevant to the issue of whether political affiliation was a
substantial or motivating factor in the adverse employment decision”). Because Cano has

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failed to establish a prima facie case of political discrimination, summary judgment is
granted on those claims.12
To be sure, even if Cano had established a prima facie of political discrimination,
his claim would ultimately fail because of the defendants’ Mt. Healthy defense. See Mt.
Healthy, 429 U.S. at 286–87. As noted above, when Negron dismissed Cano, he relied on
the result of the internal investigation: that Cano sexually harassed Polanco. Even
assuming, for the moment, that Negron had some inclination to inflict an adverse action
against Cano on account of his political affiliation, “the only reasonable interpretation of
the evidence” is that Cano would have been dismissed in any event because of the result
of the internal sexual harassment investigation. Reyes-Orta v. P.R. Highway & Transp.
Auth., 811 F.3d 67, 74 (1st Cir. 2016). Thus, summary judgment is granted on Cano’s
political discrimination claims against all defendants.
IV.

Remaining Claims
Cano’s complaint alleged the DCR deprived him of due process when it

terminated him. The court previously dismissed any Fifth Amendment and substantive
due process claims. Docket No. 14. In their motion for summary judgment, defendants
argue Cano is unable to establish a Fourteenth Amendment procedural due process claim.
Cano made no effort to respond to that argument, and so he has waived that claim.
Muniz-Cabrero v. Ruiz, 23 F.3d 607, 609 (1st Cir. 1994) (“A party opposing a summary
judgment motion must inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered. If it does not do so, and loses the motion, it
cannot raise such reasons on appeal.”). The complaint also alleges various state-law
claims. Because summary judgment is proper on Cano’s federal claims, I decline to

12

Although there is a genuine dispute of material fact as to whether De Jesus-Cardona
knew Cano’s political affiliation, Cano’s prima facie case against De Jesus-Cardona also fails.
This is so because the only adverse action alleged is Cano’s dismissal, and it is undisputed that
De Jesus-Cardona was not the person who made that decision.

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exercise jurisdiction over his ancillary state-law claims, and so they are dismissed. 28
U.S.C. § 1367(c).
CONCLUSION
For the foregoing reasons, summary judgment is GRANTED. All federal claims
against all the defendants are DISMISSED WITH PREJUDICE, and all state-law
claims are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of March 2016.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge