Ortiz-Rodriguez et al v. Consorcio del Noroeste et al

Filing 63

OPINION AND ORDER: Granting Defendants' 35 motion for summary judgment. Plaintiffs' claims are hereby dismissed. Judgment shall be entered accordingly. Signed by Judge Gustavo A. Gelpi on 3/29/2016. (MET)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF PUERTO RICO

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MAYRA ORTIZ-RODRIGUEZ, et. al..

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Plaintiffs,

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v.

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CONSORCIO DEL NOROESTE, et al.,

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Defendants.

CASE NO. 14-1529 (GAG)

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OPINION AND ORDER

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Mayra Ortiz-Rodriguez (“Ortiz”) and Lilian Rodriguez (“Rodriguez”), (collectively

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“Plaintiffs”) brought this action against the Northwestern Consortium (“Consortium”), as well as

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Samuel Sanchez–Tirado (“Defendant Sanchez”) in his personal and official capacity as the

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executive director of the Consortium, (collectively “Defendants”), seeking redress for alleged acts

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of discrimination in violations of Plaintiffs rights under the First, Fifth and Fourteenth amendments

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of the Constitution of the United States. (Docket No. 1.) In addition, Plaintiffs invoke the Court’s

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supplemental jurisdiction for claims arising under the Puerto Rico personnel law, P.R. LAWS ANN.

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tit. 3, §§ 130, et seq, Law 382 of 1950, P.R. LAWS ANN. tit. 29, §§ 136-168; and Law 100 of 1959,

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P.R. LAWS ANN. tit. 29, § 146, et. seq..

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Civil No. 14-1529 (GAG)

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Currently before the Court is Defendants’ motion for summary judgment seeking dismissal

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of all claims.1 (Docket No. 35.) Plaintiffs opposed, and Defendants replied. (Docket Nos. 48;

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56.)

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I.

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The Puerto Rico Family Department (“Family Department”) and the Northwest

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Consortium entered into a contract to offer services for needy families, this agreement is also

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known as the “Temporary Assistance for Needy Families” (“TANF”). (Docket Nos. 36 ¶ 1; 48-1

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at 1 ¶ 1.) The TANF Program has always been administered by the Family Department, but the

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Consortium served as a delegate agency to administer the TANF Program funds for the period of

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time provided by the agreement and allocated the necessary funds to cover the costs. (Docket Nos.

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36 ¶ 3; 48-1 at 1 ¶ 3.

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September 30, 2012. (Docket Nos. 36 ¶ 2; 48-1 at 1 ¶ 2.) However, the date of termination of the

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agreement and its validity were extended on multiple occasions. (Docket Nos. 36 ¶ 4; 48-1 at 1 ¶

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4.) Amendments B and C extended the date of termination of the agreement until September 30,

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2013. (Docket Nos. 36 ¶ 5; 48-1 at 1 ¶ 5.) Amendment E extended the date of termination of the

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agreement until March 31, 2014. Id.

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Relevant Factual and Procedural Background

The agreement was originally set to begin November 7, 2011 until

Defendant Sanchez is the executive director of the Consortium. (Docket Nos. 36 ¶ 6; 48-1

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at 1 ¶ 6.)

The Consortium hired employees to carry out the TANF services delegated by the

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agreement.

(Docket Nos. 36 ¶ 8; 48-1 at 2 ¶ 8.) Plaintiffs were hired as term, transitory

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employees with fixed expiration dates, to carry out the services of the TANF Program. (Docket

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Nos. 36 ¶¶ 8, 10, 16; 48-1 at 2 ¶ 8, 10, 16.)

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The pending motion for summary judgment was initially filed by Defendant Sanchez. Co-Defendant
the Consortium then joined Defendant Sanchez’s motion, incorporating by reference all arguments therein.
(Docket No. 38.) As such, the Court will reference the pending motion as Defendants’ motion for summary
judgment.
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A. Plaintiff Lilian Rodriguez

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Plaintiff Rodriguez was employed on January 10, 2012. (Docket Nos. 36 ¶ 11; 48-1 at 2 ¶

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11.) Rodriguez’s appointment was valid from January 11, 2012 to June 30, 2012. (Docket Nos.

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36 ¶ 12; 48-1 at 2 ¶ 12.) Plaintiff Rodriguez accepted transitory position to work and perform

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functions for the administration of the TANF Program and throughout her employment performed

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functions for the administration of the TANF Program. (Docket Nos. 36 ¶¶ 16, 17; 48-1 at 2 ¶¶

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16-17.)
Plaintiff Rodriguez was originally appointed to work from January 11, 2012 to June 30,

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2012.

The Consortium extended Plaintiff Rodriguez’s original appointment as a transitional

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employee on five occasions: (a) from July 2, 2012 to December 31, 2012; (b) from January 1, 2013

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to May 31, 2013; (c) from June 1, 2013 to September 30, 2013; (d) from October 1, 2013 to

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December 31, 2013; and, (e) from January 1, 2014 to March 31, 2014. (Docket Nos. 36 ¶¶ 20, 23-

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24; 48-1 at 2 ¶¶ 20, 23-24.) Some of the extensions were made by the New Progressive Party

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(“NPP”) administration and others by the Popular Democratic Party (“PDP”) administration.

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(Docket Nos. 36 ¶ 21; 48-1 at 2 ¶ 21.) Rodriguez’s last two extensions of temporary appointment

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were made by Defendant Sanchez, a member of the PDP. (Docket Nos. 36 ¶¶ 27, 28; 48-1 at 2 ¶¶

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27, 28.) Plaintiff Rodriguez’s job extension offers were all documented in letters that expressly

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stated that the transitional appointment did not entitle Rodriguez to a career position and that the

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extension of Rodriguez’s appointment corresponded to the extension of the agreement between the

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Consortium and the Family Departments’ TANF Program. (Docket Nos. 36 ¶ 25; 48-1 at 2 ¶ 25.)

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On December 18, 2013, Defendant Sanchez notified Plaintiff Rodriguez of her final extension of

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transitory employment, from January 1, 2014 to March 31, 2014. (Docket Nos. 36 ¶ 30; 48-1 at 2

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¶ 30.) In that letter, Defendant Sanchez made reference to the termination of the agreement

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between the Family Department and the Consortium. Id.
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B. Plaintiff Mayra Ortiz

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Plaintiff Ortiz began working at the Consortium during February 1999. (Docket Nos. 48-1

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at 5 ¶ 1; 56 ¶ 1.) On January 2, 2013 Ortiz started working with the TANF Program as transitional

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employee. (Docket Nos. 36 ¶ 13; 48-1 at 2 ¶ 13.) Ortiz’s appointment was valid from January 1,

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2013 to May 30, 2013. (Docket Nos. 36 ¶ 14; 48-1 at 2 ¶ 14.) Plaintiff Ortiz’s appointment was a

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transitory position with the administration of the TANF Program. (Docket Nos. 36 ¶¶ 16, 17; 48-1

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at 2 ¶¶ 16-17.) Throughout her employment she performed functions for the administration of the

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TANF Program. Id.

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Plaintiff Ortiz’s original appointment was from January 1, 2013 to May 31, 2013. (Docket

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Nos. 36 ¶ 32; 48-1 at 2 ¶ 32.) Ortiz’s transitory position appointment was extended on three

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occasions: (a) from June 1, 2013 to September 30, 2013; (b) from October 1, 2013 to December

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31, 2013; and, (c) from January 1, 2014 to March 31, 2014. (Docket Nos. 36 ¶¶ 31, 32; 48-1 at 2

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¶¶ 31, 32.)

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Sanchez. (Docket Nos. 36 ¶¶ 34, 35; 48-1 at 3 ¶¶ 34, 35.) Plaintiff Ortiz’s job extension offers

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were all documented in letters that expressly stated that the transitional appointment did not entitle

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Ortiz to a career position and that the extension of Ortiz’s appointment corresponded to the

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extension of the agreement between the Consortium and the Family Departments’ TANF Program.

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(Docket Nos. 36 ¶ 33, 36, 37; 48-1 at 3 ¶ 33, 36, 37.) On, December 18, 2013, Defendant Sanchez

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notified Plaintiff Ortiz of her final extension of transitory employment, from January 1, 2014 to

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March 31, 2014. (Docket Nos. 36 ¶ 33, 36; 48-1 at 3 ¶ 33, 36.) In that letter, Defendant Sanchez

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made reference to the termination of the agreement between the Family Department and the

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Consortium. Id.

Ortiz’s last two extensions of temporary appointment were made by Defendant

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C. Alleged acts of political discrimination

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When Plaintiffs were hired, the Consortium was under the administration of the New

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Progressive Party (“NPP”). (Docket Nos. 36 ¶ 18; 48-1 at 2 ¶ 18.) Following the 2012 elections,

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Alejandro Garcia Padilla of the Popular Democratic Party (“PDP”) took office as Governor of the

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Commonwealth of Puerto Rico in January 2013. (Docket Nos. 36 ¶ 19; 48-1 at 2 ¶ 19.)

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Plaintiffs Rodriguez and Ortiz are publically affiliated with the NPP. (Docket Nos. 36 ¶¶

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45, 46; 48-1 at 3 ¶¶ 45, 46.)

Defendant Sanchez is publically affiliated with the PDP. (Docket

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Nos. 36 ¶ 47; 48-1 at 3 ¶ 47.) Plaintiffs Ortiz and Rodriguez had knowledge that the agreement

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between the Family Department and the Consortium for the TANF Program would expire March

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31, 2014, they also knew their appointments ended when the TANF Program ended. (Docket Nos.

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36 ¶¶ 52, 53, 54; 48-1 at 3 ¶¶ 52-54.) According to Plaintiffs, Defendant Sanchez had knowledge

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of Rodriguez and Ortiz’s affiliation with the NPP. (Docket No. 48-1 at 6 ¶ 3.)

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Plaintiffs were irregular transitory employees at the time of their dismissal. (Docket Nos.

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36 ¶ 9; 48-1 at 2 ¶ 9.) Defendants state that upon the termination of Plaintiffs job, no other

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employee was assigned to perform the duties and responsibilities of the TANF Program. (Docket

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Nos. 36 ¶¶ 56, 57; 48-1 at 3 ¶¶ 56, 57.) Defendants further state that Plaintiffs were dismissed

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because of a layoff plan.2 (Docket No. 36 ¶ 58) Plaintiffs deny this statement, arguing that the

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real reason behind Plaintiffs dismissal was political discrimination. (Docket No. 48-1 at 4-5 ¶ 58.)

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Plaintiffs contend Defendant Sanchez stated in front of Plaintiffs that NPP transitory

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employees would be left out. (Docket No. 48-1 at 6 ¶ 5.)

Defendants deny Sanchez ever said

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that NPP employees would be left out, arguing that Defendant Sanchez made a job offer to

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Plaintiffs, but Plaintiffs refused to accept his offer because it was for a short term temporary

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Plaintiffs argue Defendants’ statement at Docket No. 36 ¶ 58 should be dismissed for lack of clarity.
They contend Plaintiffs were dismissed for politically affiliated reasons. (Docket No. 48-1 at 4 ¶ 58.)

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position. (Docket No. 56 ¶ 5.) Defendants sustain Plaintiffs declined Sanchez’s job offer because

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their previous administrator had promised them permanent positions after their contracts with the

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TANF Program were over. Id.

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In turn, Defendants aver Plaintiffs’ dismissal was part of a layoff plan due to the

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termination of the TANF Program. (Docket No. 36 ¶ 58.) Plaintiffs deny this assertion, arguing

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Plaintiffs were dismissed because of their affiliation with the NPP Party considering that the

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employees that were not laid off —or newly hired temporary employees— were all affiliated with

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the PDP.3 (Docket No. 48-1 at 4 ¶ 58; 7 ¶ 8. )

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Specifically, Plaintiffs assert they were discriminated on account of their political

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affiliations as follows: (1) they were constantly harassed by Defendant Sanchez, Doris Vega,

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Sanchez’s second-in-command, and by other temporary employees at the Consortium whom also

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were PDP affiliates; (2) Defendant Sanchez had employees remove Plaintiffs equipment prior to

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the expiration of their appointments and Plaintiffs were ordered to exhaust their sick and leave

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Defendants deny and object Plaintiffs statement that all new temporary employees are affiliated with
the PDP, arguing said statement is speculative and constitutes inadmissible hearsay. (Docket No. 56 at ¶ 8.) In
her deposition, Plaintiff Ortiz testifies about the employees that were assigned the duties she previously
performed. She further details that she knew that Aleida Rivera, “Firpo,” Ortiz, Adalis Crispin and Danny
Mendez took over her duties because these employees “made it known” that they had been appointed to said
positions. (Docket No. 36-2 at 20.) Ortiz also stated that the work area was also revealing because at the
Consortium work areas are divided and grouped by job classification. Id. Lastly, Ortiz states she was aware of
the employees’ affiliation with the PDP because of their political activism, particularly during the elections
where they publicly participated in rallies, motorcades and meetings for the PDP. Id. At 21.
The record evidence reveals that Plaintiffs were aware of the all the personnel changes that were being
made. Although among the factors Plaintiffs base their knowledge are statements made by the employees
themselves, those statements do not constitute hearsay within the meaning of Rule 801 because said statements
are not being introduced to prove the truth of the matter asserted, instead Plaintiff
Ortiz is testifying as to
her personal knowledge of the fact that said employees were performing her duties. A statement offered to
show declarant’s knowledge of facts, not the facts stated. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 408
(1st Cir. 2002) (reference by a supervisor to “Crowley’s little stalker,” when offered to show management’s
awareness of a co-worker’s behavior, and not to show that the co-worker was actually a stalker, was not
hearsay); see also Bennett v. Nucor Corp., 656 F.3d 802, 811 (8th Cir. 2011).
The Court therefore finds that Plaintiffs’ testimony about the personnel changes that took place shortly
before their dismissal, including the reassignment of their duties, to new temporary employees affiliated with
the PDP, does not constitute hearsay pursuant to FED. R. EVID. 801.
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benefits; (3) other temporary employees affiliated with the PDP were not dismissed; and (4) the

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remaining temporary employees had fewer years of service and experience at the Consortium. Id.

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In her deposition, Plaintiff Ortiz explains that she believes her dismissal had political

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animus because she had more experience was better prepared than those employees that were not

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laid off, and all employees that were not dismissed were members of the PDP. (Docket No. 36-2

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at 15.)

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In their Complaint, Plaintiffs allege Defendant Sanchez, directly or by way of his

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subordinates, discriminated against them on account of their political affiliation with the NPP,

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creating continuous harassment of Plaintiffs, subjecting them to a hostile work environment and

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ultimately terminating Plaintiffs’ employment by failing to renew their employment contracts, on

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account of their constitutionally protected affiliation with the NPP. (Docket No. 1 ¶ 15-19; 33.)

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Plaintiffs further allege that Defendant Sanchez hired, appointed and/or contracted new employees

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that were publically affiliated with the PDP, to perform duties and responsibilities previously

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performed by Plaintiffs. (Docket No. 1 ¶¶ 36-37.)

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Moreover, Plaintiffs allege the only reason for their dismissal was their opposition to the

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PDP. (Docket No. 1 ¶ 47.) Consequently, Plaintiffs request reinstatement, that Defendants be

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enjoined from discriminating against them because of their political beliefs, and compensatory

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damages. Id. ¶¶ 56-57.

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Defendants move for summary judgment in their favor, arguing Plaintiffs do not meet the

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requisite elements of a political discrimination claim. (Docket No. 35.) Defendants argue in the

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alternative, that dismissal is warranted under the Mt. Healthy defense because they demonstrate

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that they would have taken the same action regardless of Plaintiffs’ affiliation with the NPP. Id. at

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amendment —because Defendants are not federal actors— and under the Fourteenth amendment

Lastly, Defendants move for dismissal of Plaintiffs’ due process claims under the Fifth

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because Plaintiffs, as temporary employees, never had protected property interest over their

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employment.4 Id. at 18-19.

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Plaintiffs oppose Defendants’ motion, arguing there are genuine issues of material fact that

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preclude the entry of summary judgment. (Docket No. 48.)

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statement of uncontested facts. (Docket No. 48-1.) Defendants replied Plaintiffs’ opposition brief

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and opposed Plaintiffs’ additional statement of facts, raising objections as to the admissibility of

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Plaintiffs’ additional statement of facts and evidence provided in support. (Docket No. 56.)

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II.

Plaintiffs provide an additional

Defendants’ Objections to Plaintiffs’ Additional Statement of Uncontested
Facts

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As a threshold matter, the Court addresses Defendants’ objections regarding the admissibility

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of some of Plaintiffs’ additional statement of uncontested facts, arguing these are inadmissible

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hearsay, and should be stricken from the record. (Docket No. 56.) Facts provided in support of

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summary judgment “typically set forth in affidavits, depositions, and the like, must have

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evidentiary value; as a rule, ‘evidence that is inadmissible at trial, such as inadmissible hearsay,

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may not be considered on summary judgment.’” Noviello v. City of Boston, 398 F.3d 76, 84 (1st

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Cir. 2005) (quoting Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998)).

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Plaintiffs failed to respond Defendants’ objections, therefore, the Court dives into the
admissibility of Plaintiffs’ statements without their involvement.
A.

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“Clean House” Statement by Doris Vega

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Plaintiffs posit that shortly after the PDP administration took office, Doris-Vega told

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Plaintiffs that “they were going to clean house.” (Docket Nos. 48-1 at 6 ¶ 4; 36-2 at 12.)

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Defendants deny and object to Plaintiffs “clean house” statement, arguing it constitutes

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In their opposition, Plaintiffs concede and acknowledge that dismissal of their claims under the Fifth
and Fourteenth amendments is proper. (Docket No. 48 at 4.) Thus, the Court’s grants summary judgment as
to Plaintiffs’ due process claims.
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inadmissible hearsay under Rule 801(c) of the Federal Rules of Evidence and is irrelevant under

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Rule 401. (Docket No. 56 ¶ 4.) Plaintiff Ortiz testifies about a statement made by Doris Vega in

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her presence. Ortiz sustains Vega said that “the new administration was going to clean house with

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the transitory employees who worked for the NPP.” (Docket No. 48-1 at 6 ¶ 4.) In support of this

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statement, Plaintiffs point to their own deposition testimony in which they both say they witnessed

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Doris Vega’s “clean house” statement.

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According to the Federal Rules of Evidence, an admission by a party-opponent “to an agent

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or employee on a matter within the scope of th[e employment] relationship” is not hearsay. FED.

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R. EVID. 801(d)(2)(d). To be excluded as hearsay under this rule, evidence must be provided to

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evince that the statement was made within the scope of the declarant’s employment and that the

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declarant had the authority to make the admission. Vazquez, 134 F.3d at 35. To introduce

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statement under Rule 801(d)(2)(D) a party “must establish, by a preponderance of the evidence, (1)

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that an agency relationship existed; (2) that the statements were made during the course of the

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relationship; and (3) that the statements relate to matters within the scope of the agency.” Gomez

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v. Rivera Rodriguez, 344 F.3d 103, 116 (1st Cir. 2003) (citing Larch v. Mansfield Mun. Elec.

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Dep’t, 272 F.3d 63, 72 (1st Cir. 2001)).

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The agency or employee relationship cannot be proven just by relying on out-of-court

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statements. Plaintiffs’ declaration of Vega’s statement could only be admissible by the party-

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opponent hearsay exclusion. Plaintiffs bring Declarant-Doris Vega’s “clean house” statement by

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way of their Plaintiffs’ own testimony; however, nowhere in the cited record do Plaintiffs provide

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a direct statement by Vega. Moreover, Plaintiffs also fail to authenticate Vega’s agency

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relationship, or that she had the authority to make such an admission on Sanchez’s behalf.

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Plaintiffs limit their argument by stating that Vega is Defendant Sanchez’s “second-in-command”

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(Docket No. 48-1 at 6 ¶ 4), however, they fail to point to record evidence to support Vega’s

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employment relationship.

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Although Plaintiffs witnessed Doris Vega’s statement, personal knowledge does not

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suffice when a statement made by a non-party is brought for the truth of the matter asserted, i.e.,

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its politically charged content. Thus, the statement cannot be brought by way of Plaintiffs’

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testimony.

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Consequently, Plaintiff Ortiz’s testimony where she echoes Vega’s “clean house” statement is

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inadmissible under the party-opponent hearsay exclusion of Rule 801(d)(2).

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statement constitutes inadmissible hearsay under Rule 801 and cannot be considered by the Court

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As such, the

at this summary judgment stage.
B.

Defendant Sanchez’s statement that employees affiliated with NPP were
going to leave and that he was going to take away their work spaces. (Docket
No. 48-1 at 7 ¶ 10.)

This statement is one of multiple statements Plaintiffs bring as made by Defendant
Sanchez. Interestingly, Plaintiffs’ evidence in support of these statements is circumscribed to their
own deposition testimony. Plaintiffs’ declaration of statements made by Defendant Sanchez, if
made within the scope of his employment, would be permissible under the scope of the partyopponent exclusion of Rule 801(d)(2). It is an uncontested fact that Defendant Sanchez was
Executive Director of the Consortium at the time of the events and is a named Defendant in the
captioned action, thus, he is a party-opponent within the meaning of Rule 801(d)(2).

However,

Plaintiffs’ proposed statement involves additional declarants that carried over Defendant Sanchez’s
expressions. What Plaintiffs then really proposed is Defendant Sanchez’s statement to an
employee, who then relays the statement to Plaintiffs. This testimony contains multiple out-ofcourt statements, and, as per Rule 805, constitutes double-hearsay.

To be admissible, each

statement —Defendant Sanchez’s statement to an employee and the statement made by the
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Civil No. 14-1529 (GAG)

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employee to Plaintiffs— must fall under a hearsay exception or exclusion, here party-opponent

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exclusion.5

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According to Plaintiffs, Defendant Sanchez stated that those employees that belonged to

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the PDP were going to leave and would be removed from their work areas.6 (Docket No. 48-1 at 7

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¶ 10.) The Court holds this statement constitutes inadmissible hearsay. Id.

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testimony, Plaintiff Rodriguez said that Sanchez used his subordinates to harass Plaintiffs.

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(Docket No. 36-3 at 33.) Rodriguez states that Defendant Sanchez “had made comments to them

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to the effect that they were going to take us away from our work areas.” Id. Later on those

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subordinates would make comments in the hallway, close to Plaintiff Rodriguez’s work area. Id.

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However, when asked to identify Defendant Sanchez subordinates, Rodriguez stated she did not

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know their names. For purposes of the party-opponent exclusion of Rule 801(d)(2), a statement

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that cannot be attributed cannot be admissible. Vazquez, 134 F.3d at 34. If the author of the

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original statement is unknown, the statement cannot be admitted as party-opponent admission. Id.

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Although Plaintiffs present the statement as originally stated directly by Defendant

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Sanchez, the record evidence demonstrates that Plaintiff Rodriguez overheard it “through the

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grapevine” as part of office “hallway gossip” when she overheard other employees reiterating

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Sanchez’s statement. In her testimony, Plaintiff Rodriguez explains the hostile work environment

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was by and a direct result of Defendant Sanchez’s antagonism towards their affiliation with the

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PDP. As an example of the hostile environment, Rodriguez recounts one time she overheard some

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employees talking in the hallway, talking about and repeating the statements Defendant Sanchez

In her deposition

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Under Rule 805, the Court must assess each statement individually to determine its admissibility
under an exception to the hearsay rules or is not defined as hearsay. FED. R. EVID. 805.
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Defendant deny and object Plaintiffs statement arguing it is inadmissible hearsay and that Plaintiffs
admit that Sanchez Tirado made Plaintiffs a job offer they did not accept. (Docket No. 56 ¶ 10.) Defendants
deny it, arguing Defendant Sanchez made Plaintiffs a job offer, but they rejected the offer because it was for
temporary position. (Docket No. 56 ¶ 10.)
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told them, regarding Plaintiffs’ political affiliation. Plaintiffs propose this statement as Defendant

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Sanchez’s direct testimony, yet the record reveals that the statement is really a product of water

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cooler chatter.

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“Insofar as the plaintiff is attempting to introduce this statement as evidence of other

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coworkers’ harassing behavior, it is hearsay; its probative value ultimately depends on the truth of

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the declarant’s own unsworn out-of-court utterance. It is, therefore, inadmissible.” Noviello, 398

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F.3d at 85. “Were that statement offered as evidence of the declarant’s contribution to the hostile

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work environment, it would likely be admissible. In that event, its effect on the plaintiff would be

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the same regardless of the truth of the matter asserted.” Noviello, 398 F.3d at 85 (citing Mota v.

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Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 526 n. 46 (5th Cir. 2001)).

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Considering Plaintiffs fail to provide a non-hearsay objective —or any evidentiary

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purpose— the Court deduces that the statement is brought for the truth of the matter asserted, that

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is, to prove Defendants’ alleged politically-motivated discriminatory animus that created a hostile

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work environment.

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summary judgment do not validate or suggest using the statement for “its impact on the work

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environment” as allowed by Noviello. Thus, both statements constitute inadmissible hearsay as

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per Rule 801.

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cannot be certified under the party-opponent hearsay exclusion of Rule 801(d)(2).

By the same token, Plaintiffs pleadings and arguments in opposition to

Because the identity of these declarant-employees is unknown, their statements

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Defendant Sanchez stated to Plaintiff Rodriguez he could not receive
Plaintiffs because they were undecided about affiliating with their group and he
only saw people that belonged to their group. (Docket No. 48-1 at 7 ¶ 7.)

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Defendants object to this statement arguing it violates the anti-ferreting rule.7 In her

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deposition, Plaintiff Rodriguez asserts that she was told by other employees that Defendant

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C.

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Sanchez would not meet with Plaintiffs because they were “undecided about whether or not to

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affiliate [with] their group because Defendant Sanchez was only seeing people who belonged to

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their group. (Docket No. 33-6 at 15.) Rodriguez identifies these employees as Adalis Crispin,

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Danny Mendez, Aleida Rivera and Ylona Acevedo (collectively “Declarant-Employees”). Id.

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Even though Defendants do not argue the above statement is hearsay, the Court finds

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evidentiary issues are present that warrant further scrutiny. Unlike the previous statement, Plaintiff

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Rodriguez identifies declarant-employees and provides the names of the employees that uttered the

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statement made by Defendant Sanchez about him only talking to PDP affiliates. To pass the

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evidentiary party-opponent muster, a plaintiff has the burden of establishing the existence of the

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agent/employee relationship of the declarant-employee. See Gomez, 344 F.3d at 116. Plaintiffs

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again fail to accompany their proposed statement with evidence in support of the agent/employee

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relationship. As such, the Court is unable to properly ascertain the employee/agent relationship of

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the declarant-employees. Without the requisite evidence in support, Plaintiffs fail to meet their

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burden. As per Rule 801, this statement constitutes inadmissible hearsay.
D.

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PDP transitory employees told Plaintiffs that Plaintiffs were going to leave
because of their affiliation to the NPP. (Docket No. 48-1 at 7 ¶ 9.)

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The above reasoning also applies to this statement. Plaintiffs affirm they were told by PDP

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transitory employees that they were going to leave because of their affiliation to the NPP. (Docket

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No. 48-1 at 7 ¶ 9.) Defendants argue this statement is also irrelevant and constitutes inadmissible

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hearsay. (Docket No. 56 ¶ 9.) Plaintiffs bring the above statement made by PDP transitory, non-

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They also controvert it with Defendant Sanchez’s own deposition testimony where he states he offered
Plaintiffs temporary contacts, which they rejected because they were told by the previous administrator that they
would be offered permanent positions upon the termination of their respective TANF Program. (Docket No. 56 ¶
7.)
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party employees to Plaintiffs, to evince Defendants’ politically discriminatory animus against

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them. Hence, the statement is offered for the truth of the matter asserted.

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Again, Plaintiffs fail to satisfy their burden as to the employee/agent relationship

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required by the party-opponent hearsay exclusion of Rule 802(d)(2). As such, this statement is

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also inadmissible under Rule 801, and will be stricken from the record.

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III.

Standard of Review

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Summary judgment is appropriate when “the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

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of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see FED. R. CIV. P. 56(a). “An issue

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is genuine if ‘it may reasonably be resolved in favor of either party’ at trial, . . . and material if it

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‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’” Iverson

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v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations

14

omitted). The moving party bears the initial burden of demonstrating the lack of evidence to

15

support the non-moving party’s case. Celotex, 477 U.S. at 325. “The movant must aver an

16

absence of evidence to support the nonmoving party’s case.

17

nonmovant to establish the existence of at least one fact issue which is both genuine and material.”

18

Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may

19

establish a fact is genuinely in dispute by citing particular evidence in the record or showing that

20

either the materials cited by the movant “do not establish the absence or presence of a genuine

21

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R.

22

CIV. P. 56(c)(1)(B). If the court finds that some genuine factual issue remains, the resolution of

23

which could affect the outcome of the case, then the court must deny summary judgment. See

24

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
14

The burden then shifts to the

Civil No. 14-1529 (GAG)

1

When considering a motion for summary judgment, the court must view the evidence in the

2

light most favorable to the non-moving party and give that party the benefit of any and all

3

reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the court does not

4

make credibility determinations or weigh the evidence.

5

appropriate, however, if the non-moving party’s case rests merely upon “conclusory allegations,

6

improbable inferences, and unsupported speculation.” Forestier Fradera v. Mun. of Mayaguez,

7

440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st

8

Cir. 2003)).

9

IV.

Id.

Summary judgment may be

Legal Analysis

10

Defendants move for summary judgment in their favor, arguing Plaintiffs do not meet the

11

requisite elements of a political discrimination claim. (Docket No. 35.) Specifically, Defendants

12

argue Plaintiffs fail to establish that their political affiliation was a substantial or motivating factor

13

for the adverse employment action. (Docket No. 35.) Additionally, in the event that the Court

14

finds Plaintiffs meet their prima facie case, Defendants argue, in the alternative, that dismissal is

15

warranted under the Mt. Healthy defense because they demonstrate that the same action would

16

have been taken, regardless of Plaintiffs’ affiliation with the NPP. Id. at 17. Plaintiffs oppose

17

Defendants Motion for Summary Judgment, arguing there are genuine issues of material fact that

18

preclude summary judgment. (Docket No. 48.)

19

A. Political Discrimination: Prima Facie Case

20

“[A] government employer cannot discharge public employees merely because they are

21

not sponsored by or affiliated with a particular political party.” Galloza v. Foy, 389 F.3d 26, 28

22

(1st Cir. 2004) (citing Elrod v. Burns, 427 U.S. 347, 350 (1976)). To establish a claim of

23

political discrimination, Plaintiffs must show that: (1) they and the defendants have opposing

24

political affiliations, (2) the defendants were aware of the employees’ political affiliations, (3) an
15

Civil No. 14-1529 (GAG)

1

adverse employment action (e.g., an employment termination) occurred, and (4) political

2

affiliation was a substantial or motivating factor for the adverse employment action. Ocasio-

3

Hernandez v. Fortuno-Burset, 777 F.3d 1, 5 (1st Cir. 2015) (internal quotations omitted).

4

The first three prongs are not at issue in the case at bar. It is uncontested that Plaintiffs

5

Rodriguez and Ortiz are publically affiliated with the NPP, and that Defendant Sanchez is

6

publically affiliated with the PDP. As a matter of fact, in his deposition testimony, Defendant

7

Sanchez admits having knowledge of Plaintiffs’ affiliation with the NPP.8 (Docket No. 48-1 at 6

8

¶3.)

9

Plaintiffs’ temporary employment contracts with the Consortium were terminated on

10

March 31, 2016.

For purposes of political discrimination claims, contract non-renewal is

11

considered an adverse employment action. “An adverse employment action includes not only a

12

discharge or a demotion, but also a government entity’s refusal to promote, transfer, recall after a

13

layoff, or even hire an employee.” Morales-Tañon. v. PREPA, 524 F.3d 15, 19 (1st Cir. 2008)

14

(citing Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990)). Thus, Plaintiffs also satisfy this

15

element of their claim.
1. Substantial and Motivating Factor

16
17

The Court now turns to the crux of the parties’ arguments. To establish a prima-facie case,

18

a plaintiff must show that party affiliation was a substantial or motivating factor behind a

19
20
21
22
23
24

8

Defendants object the above arguing it violates the anti-ferreting rule because the record evidence is
not in harmony with Plaintiffs’ proposed statement. (Docket No. 56 ¶ 3.) Instead, Defendants posit that in his
deposition testimony, Sanchez admits having knowledge of Plaintiffs’ affiliation but then clarifies that he had
direct knowledge of Plaintiff Ortiz’s affiliation by her own admission, whereas Plaintiff Rodriguez never
admitted her affiliation directly to him. (Docket No. 36-4 at 75-76.) The Court notes Defendants’ objection,
nevertheless finds that it has no bearing. Defendant Sanchez’s admission —that he was aware of Plaintiff
Rodriguez’s affiliation with the NPP— is sufficient to satisfy the awareness element. A defendant is not
required to have direct knowledge. It is well-established principle that “circumstantial evidence can suffice to
show a defendant’s knowledge of a plaintiff’s political party.” Ocasio-Hernandez, 777 F.3d at 7; see also
Martinez-Velez v. Rey-Hernandez, 506 F.3d 32, 44 (1st Cir. 2007).

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Civil No. 14-1529 (GAG)

1

challenged employment action. See Padilla-García v. Rodriguez, 212 F.3d 69, 74 (1st Cir. 2001).

2

To establish the causation, the “plaintiff bears the burden of producing sufficient evidence from

3

which a jury may infer that plaintiff’s constitutionally protected conduct was a substantial or

4

motivating factor behind the adverse employment action.” Maymi v. Puerto Rico Ports Auth., 515

5

F.3d 20, 28 (1st Cir. 2008) (citing Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993)). “[A]

6

plaintiff may not prevail simply by asserting an inequity and tacking on the self-serving conclusion

7

that the defendant was motivated by a discriminatory animus.” Correa-Martínez v. Arrillaga-

8

Beléndez, 903 F.2d 49, 53 (1st Cir. 1990).

9

Defendants argue the causation element is not met. They posit the evidence on record is

10

insufficient, and no reasonable jury could find that Plaintiffs’ political affiliation with the NPP was

11

a substantial or motivating factor in the termination of their employment. (Docket No. 35.) They

12

maintain Plaintiffs’ political views had no bearing on the termination of their contracts.

13

“[S]tatements of political affiliation—unaccompanied by any specific factual information to

14

support [the] claim and unrelated to any employment action taken by [defendant] against

15

[plaintiff]—[are] patently insufficient to establish an act of political discrimination.” Mercado-

16

Alicea v. P.R. Tourism Co., 396 F.3d 46, 52 (1st Cir. 2005) (alteration in original) (quoting López-

17

Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000)).

18

In opposition, Plaintiffs argue that their affiliation with the NPP was a substantial and

19

motivating factor in their dismissal. To further their argument, Plaintiffs posit they has established

20

causation because they were harassed and discriminated by Defendant Sanchez, directly and by

21

way of his subordinates, on account of their political affiliation, and this harassment led to their

22

termination.

23

Order, most of the evidence offered in support of this element cannot be considered by the Court

24

because it is inadmissible hearsay. The only admissible evidence that remains in support of

(Docket No. 48.)

Nonetheless, as discussed in part II of the Court’s Opinion and

17

Civil No. 14-1529 (GAG)

1

causation is Plaintiff Ortiz’s deposition testimony, where she declares that Defendant Sanchez

2

stated —in front of Plaintiffs— that NPP transitory employees would be left out [of the

3

Consortium]. (Docket Nos. 48-1 at 6 ¶ 5; 36-2 at 17.) Not only do Defendants deny having stated

4

NPP employees would be left out, but they also counter arguing he offered Plaintiffs temporary

5

employment positions at the Consortium, but they refused because the positions offered were

6

short-term and temporary, and Plaintiffs expected permanent employment as they had been

7

promised by their previous administrator. (Docket No. 56 ¶ 5.)

8

The First Circuit has also recognized that while “‘unsupported and speculative assertions

9

regarding political discrimination will not be enough to survive summary judgment,’ [the Court

10

has] also made it clear that ‘one rarely finds ‘smoking gun’ evidence in a political discrimination

11

case,’ and that ‘circumstantial evidence must, at times, suffice.’”

12

Morales, 761 F.3d 81, 100 (1st Cir. 2014) (quoting Vazquez, 134 F.3d at 36; Ocasio-Hernández v.

13

Fortuño-Burset, 640 F.3d 1, 17 (1st Cir. 2011)).

Garcia-Gonzalez v. Puig-

14

The evidence provided is circumscribed. Plaintiff Ortiz’s deposition testimony, albeit self-

15

serving, evinces Defendant Sanchez’s threatening behavior towards his employees, prompted by

16

their affiliation with the NPP. Therefore, the Court finds that the record contains sufficient

17

evidence that a reasonable jury could find that Plaintiffs’ constitutionally protected conduct was a

18

substantial or motivating factor behind the adverse employment action. Thus, Plaintiffs have

19

established their prima facie case of political discrimination.

20

B. The Mt. Healthy Defense

21

The Court now addresses Defendants Mount Healthy defense. Under Mt. Healthy, a

22

defendant is given the opportunity to establish that it would have taken the same action regardless

23

of the plaintiff’s political beliefs. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 97 S.Ct. 568

24

(1977). After a plaintiff establishes its prima facie case, the burden shifts to defendants who must

18

Civil No. 14-1529 (GAG)

1

establish that they would have taken the same action regardless of plaintiffs’ political beliefs.

2

Soto-Padro v. Public Buildings Auth., 675 F.3d, 1 6 (1st Cir. 2012); see also Vázquez-Valentín v.

3

Santiago-Díaz, 385 F.3d 23, 30 (1st Cir. 2004). The Mt. Healthy defense “deals with employment

4

actions driven by ‘mixed motives,’ and provides that where there are both ‘lawful’ and ‘unlawful’

5

reasons for the adverse employment action, ‘if the lawful reason alone would have sufficed to

6

justify the [action],’ then the employee cannot prevail.” Soto-Padro, 675 F.3d at 6 (quoting

7

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 359 (1995)).

8

“[E]ven if a plaintiff shows an impermissible political motive, he cannot win if the

9

employer shows that it would have taken the same action anyway regardless of Plaintiffs’

10

political affiliation.” Soto-Padro, 675 F.3d at 6 (citing Nereida-Gonzalez v. Tirado-Delgado, 990

11

F.2d 701, 706 n. 4 (1st Cir. 1993)). Defendants assert the valid, lawful and only reason for the

12

termination of Plaintiffs employment was the termination of the TANF agreement between the

13

Family Department and the Consortium. Furthermore, Defendants argue that Plaintiffs’

14

termination was a result of the conclusion of the agreement between the Family Department since

15

Plaintiffs’ temporary employment contracts were conditioned on the availability of program

16

funds. Id. For this reason, Defendants posit that the conclusion of the agreement between the

17

Family Department and the Consortium —and not Plaintiffs’ affiliation with the NPP— was the

18

basis for termination. (Docket No. 35.) Once the TANF Program ended due to the discontinued

19

funds, Plaintiffs’ temporary employment with the Consortium also ended. Id.

20

Defendants stress the fact that the temporary employment contracts had fixed end dates that

21

were analogous and conditioned to the date of termination of the agreement between the

22

Consortium and the Family Department. To further their defense that the termination completely

23

lacked political motivation, Defendants point towards the multiple extensions of Plaintiffs’

24

employment contracts. Id. at 15. Every time the agreement between the Family Department and
19

Civil No. 14-1529 (GAG)

1

the Consortium was extended, so were Plaintiffs employment contracts. It was not until the

2

complete termination of the TANF Program that Plaintiffs were terminated. Id.

3

The employment contracts expired on March 31, 2014, when “the Family Department

4

reassumed its role as the delegate agency and the Consortium lost the funds to support the

5

program.” (Docket No. 35 at 17.) Consequently, Defendants argue they had no other choice but

6

to terminate the contracts under the TANF Program because said program no longer existed. For

7

this reason, Defendants argue Plaintiffs political discrimination claims should be dismissed under

8

Mt. Healthy, given that the lawful reason behind Plaintiffs’ dismissal —the termination of the

9

TANF Program— demonstrates that “they would have taken the same action regardless of

10

plaintiffs’ political beliefs.” The Supreme Court has described the Mt. Healthy defense this way:

11

it deals with employment actions driven by “mixed motives,” and provides that where there are

12

both “lawful” and “unlawful” reasons for the adverse employment action, if the lawful reason

13

alone would have sufficed to justify the [action],’ then the employee cannot prevail.” Soto-

14

Padro, 675 F.3d at 6 (internal quotations omitted).

15

appropriate because the record shows that Defendants would have terminated Plaintiffs’

16

employment contracts even if they were PDP affiliates or sympathizers. Soto-Padro, 675 F.3d at

17

6; see also Corcino-Rodriguez v. State Ins. Fund Corp., 965 F. Supp. 2d 187, 207 (D.P.R. 2013).

18

The termination of Plaintiffs’ employment contracts under the TANF Program is a legitimate,

19

non-discriminatory reason for termination, and not targeted directly at Plaintiffs because all other

20

contracts under the program were terminated. Not to mention the offer and extension letters

21

given to Plaintiffs for every temporary contract expressly state that the temporary employment is

22

subject to the availability of TANF Program funds.

In other words, Plaintiffs dismissal is

23

Plaintiffs oppose arguing that the distinction between the TANF Program and the WIA

24

Program is irrelevant. (Docket No. 48 at 9.) Plaintiffs stand by their position that they were
20

Civil No. 14-1529 (GAG)

1

unlawfully discriminated against because of their political affiliation with the NPP given that

2

Defendant Sanchez did not offer Plaintiffs any alternative and terminated their employments and

3

instead opted to favor his fellow PDP affiliates. (Docket No. 48 at 9.)

4

“[A]fter defendant has introduced evidence sustaining his Mt. Healthy defense, plaintiff

5

still will prevail if it is found that she would not have been fired but for her political affiliation.”

6

Acosta-Sepulveda v. Hernandez-Purcell, 889 F.2d 9, 13 (1st Cir. 1989) (citations omitted). The

7

First Circuit has rejected the argument that an audit that disproportionately impacts on a certain

8

political party defeats an otherwise valid Mt. Healthy defense. See Corcino-Rodriguez, 965 F.

9

Supp. 2d. at 208 (citing Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 26 (1st Cir. 2006)).

10

Thus, Plaintiffs allegation here, that NPP affiliates were impacted by the termination of the

11

agreement is not, by itself, indicative of political discrimination.

12

disproportionate impact is insufficient to bring a case of political discrimination to trial.” Id. In

13

this case, the termination of Plaintiffs contracts was the result of the termination of the TANF

14

agreement. The layoff plan that took place in the case at bar was not selective or targeted at

15

Plaintiffs; it was program wide, “focused on positions not persons.” Soto-Padro, 675 F.3d at 6.

16

The Court recognizes that these valid personnel practices can have a collateral effect on those

17

employees not affiliated with the administration in power.

18

recognized by the First Circuit as natural to any change in administration, and cannot be

19

catalogued as per se political discrimination.

“The existence of

Said collateral effect has been

22

[i]f uniformly applied personnel practices, predicated on legitimate reasons, result
in terminations, those terminations are not unconstitutional because those
affiliated with one political party are disproportionately impacted. It is in the
nature of a change in administrations that job actions by the new party in power
will have a disparate impact on members of the outgoing party.

23

Aguiar-Carrasquillo, 445 F.3d at 26 (quoting Sánchez-López v. Fuentes-Pujols, 375 F.3d 121,

24

140 (1st Cir. 2004)).

20
21

21

Civil No. 14-1529 (GAG)

1

In light of foregoing, the Court finds that this is a classic example of the Mt. Healthy

2

defense.

3

employment contracts was lawful and that the same action would have been taken in spite of their

4

political affiliation. Considering that the Mt. Healthy defense applies to the case at bar, and as

5

reasoned above and that the record is devoid of evidence to rebut Defendants’ legitimate non-

6

discriminatory reason for the termination of Plaintiffs’ employment contracts, Plaintiffs’ political

7

discrimination claims cannot prevail.

8
9
10

Defendants have successfully demonstrated that the termination of Plaintiffs’

Accordingly, Plaintiffs’ claims under Section 1983 for violation of their First Amendment
rights are DISMISSED.

Defendants’ Motion for Summary Judgment at Docket No. 35 is

GRANTED.9
C. Supplemental State Law Claims

11

1.

12

Law 100

13

Law 100 prevents private enterprises or government agencies acting as a private business

14

from discriminating by reason of age, race, color, religion, gender or national origin or social

15

condition. Mulero Abreu v. Oquendo-Rivera, 729 F. Supp. 2d 498, 524 (D.P.R. 2010). Puerto

16

Rico’s Law 100 makes it unlawful for an employer to discriminate against an employee because

17

of the employee’s political affiliation. Tit. 29, § 146. To state a claim under Puerto Rico’s Law

18

100, an employee must allege: (1) that he was actually or constructively discharged, and (2) that

19
20
21
22
23
24

9

Parallel to the First Amendment of the U.S. Constitution, Section I, Article II of the Puerto Rico
Constitution protects public employees from political discrimination. P.R. CONST. Art II, § 1. Likewise, the
Puerto Rico Supreme Court has incorporated the Mt. Healthy defense to political discrimination claims under the
Puerto Rico Constitution. See S.L.G. v. Alcalde De Aguas Buenas, 2001 PRSC 66 (P.R. 2001); Camacho Torres
v. AAFET, 2006 PRSC (P.R. 2006). In light of the Court’s reasoning dismissing Plaintiffs’ First amendment
political discrimination claims under the Mt. Healthy defense, Plaintiffs’ political discrimination claims under
the Puerto Rico Constitution are also DISMISSED with prejudice.
22

Civil No. 14-1529 (GAG)

1

the decision was discriminatory. Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st

2

Cir. 2007).

3

The Puerto Rico Supreme Court has repeatedly held that the cardinal objective of Law

4

100 “‘[w]as to protect employees in the private sector from all types of discrimination although,

5

via exception, the protection covered all employees of government agencies or instrumentalities

6

that operate as private businesses or companies.’” Santini-Rivera v. Serv. Air, Inc., 1994 P.R-

7

Eng. 909, 527, 137 P.R. Dec. 1, 4 (1994).

8

employees like Plaintiffs were already protected against discrimination—by the Puerto Rico

9

Constitution. See P.R. CONST. Art. II, § 1. Law 100, therefore, was the vessel by which the

10

Puerto Rico Legislature extended such protections against discriminations to employees in the

11

private sector. Santini-Rivera, 1994 P.R.-Eng. 909, 137 P.R. Dec. at 21 n. 6. It necessarily

12

follows that the Commonwealth of Puerto Rico falls short of meeting Law 100’s definition of

13

“employer.” The foregoing legal principles clearly point out that the Consortium, as a nonprofit

14

government instrumentality, also falls outside the purview of Law 100. See Marquez-Ramos v.

15

Puerto Rico, No. Civ. 11-1547 (SEC), 2012 WL 1414302, at *10 (D.P.R. 2012).

At the time of Law 100’s enactment, public

16

Plaintiffs’ claims are brought against Defendants in their personal and official capacities.

17

(Docket No. 1 ¶¶ 31-32.) Because Law 100 claims cannot be brought against state actors in their

18

official capacity, Plaintiffs’ Law 100 claims against Defendants in their official capacities are

19

DISMISSED with prejudice.

20

The Court now turns to Plaintiffs’ claims against Defendants in their individual capacities.

21

In Rosario-Toledo v. Distribuidora Kikuet, 151 D.P.R. 634 (2000), the Puerto Rico Supreme Court

22

held that, unlike Title VII, Law 100 does provide for the imposition of supervisor liability on the

23

president of a corporation when he is plaintiff’s supervisor, and is personally responsible for

24

causing plaintiff’s injury. The Court’s holding was later extended to include not only the actual
23

Civil No. 14-1529 (GAG)

1

employer or the owner and the president of the corporation, but also any other person responsible

2

for the illegal conduct, without any distinction.

3

(“Rosario I”); Rosario-Toledo v. Distribuidora Kikuet, Inc.,153 P.R.Dec. 125 (2001) (“Rosario

4

II”); Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 240 (1st Cir. 2010); Pacheco Bonilla v. Tooling

5

& Stamping, Inc., 281 F.Supp. 2d 336 (D.P.R. 2003); Rodríguez-Narváez v. Pereira, 552 F. Supp.

6

2d 211, 217-18 (D.P.R. 2007) (citing Rosario I).

Rosario-Toledo, 151 P.R. Dec. 634 (2000)

7

Personal liability under Law 100 applies “to any supervisor responsible for an act of

8

discrimination.” Rodríguez-Narváez, 552 F. Supp at 218. However, this Court is split as to

9

whether the individual liability applies to any employee, irrespective of its employer or any

10

individual employed by an entity covered by Law 100. Compare Rodríguez-Narváez, 552 F.

11

Supp at 218; Pacheco-Muniz v. Gonzalez-Cruz, No. CIV. 12-2058 (JAG), 2014 WL 1320276, at

12

*12 (D.P.R. 2014) with Marquez-Ramos, No. Civ. 11-1547 (SEC), 2012 WL 1414302, at *10.

13

The undersigned reasons with Marquez-Ramos in reading Rorario I and Rosario II as

14

extending Law 100’s individual liability to any individual responsible —not just supervisors— for

15

the discriminatory conduct, as long as that person is employed by a covered entity. Marquez-

16

Ramos, No. Civ. 11-1547 (SEC), 2012 WL 1414302, at *10. In other words, Law 100’s individual

17

liability applies to individuals employees of a covered entity within the scope of Law 100.

18

In light of the above finding that the Consortium is not an employer as defined by Law

19

100, Plaintiffs’ Law 100 claims against Defendant Sanchez in his individual capacity also fall

20

outside the scope of Law 100. As such, Plaintiffs’ Law 100 claims against Defendant Sanchez in

21

his individual capacity are also DISMISSED with prejudice.

22
23
24
24

Civil No. 14-1529 (GAG)

1

V.

Conclusion

2

For the foregoing reasons, the Court GRANTS Defendants’ Motion for Summary

3

Judgment at Docket No. 35. Plaintiffs’ claims are hereby DISMISSED. Judgment shall be

4

entered accordingly.

5

SO ORDERED.

6

In San Juan, Puerto Rico this 29th day of March, 2015.
s/ Gustavo A. Gelpí

7

GUSTAVO A. GELPI

8

United States District Judge
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