Mendez-Fradera v. Vazquez-Collazo

Filing 32

OPINION and ORDER: Granting in part and denying in part 28 Motion to Dismiss for Failure to State a Claim. Signed by Judge Gustavo A. Gelpi on 3/8/2016. (COL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

1
2
3

NORBERTO MÉNDEZ-FRADERA

4

Plaintiff,

5

CIVIL NO. 14-1875 (GAG)

v.

6

JAVIER VÁZQUEZ-COLLAZO

7

Defendant.

8
9

OPINION AND ORDER

10

Plaintiff Norberto Méndez-Fradera (“Méndez”) brings this action pursuant to 42 U.S.C. §

11

1983 (“Section 1983”) alleging that Defendant Javier Vázquez-Collazo (“Vázquez”) demoted him

12

because of his political affiliation in violation of the First, Fifth and Fourteenth Amendments to the

13

United States Constitution. (Docket No. 26 ¶ 54.) Plaintiff also brings state law claims pursuant

14

to Article II, §§ 1 and 7 of the Constitution of the Commonwealth of Puerto Rico, Puerto Rico Law

15

No. 100 of June 30, 1959, P.R. LAWS ANN. tit. 29, §§ 146-151 et seq. (“Law 100”), and Articles

16

1802 and 1803 of the Civil Code of Puerto Rico, P.R. LAWS ANN. tit. 31, §§ 5141, 5142 (“Article

17

1802 and 1803”). Id.

18

Presently before the Court is Defendant’s motion to dismiss for failure to state a claim

19

under FED. R. CIV. P. 12(b)(6). (Docket No. 28.) After reviewing the parties’ submissions and

20

pertinent law, the Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss

21

at Docket No. 28.

22
23
24

Civil No. 14-1875 (GAG)
1

I.

Relevant Factual and Procedural Background

2

Defendant Vázquez, a member and activist of the Popular Democratic Party (“PDP”),

3

became the Superintendent of the Puerto Rico Capitol in December, 2012, after the defeat of the

4

New Progressive Party (“NPP”) in the November, 2012 general election. (Docket No. 26 ¶¶ 15-

5

17.) The Office of the Superintendent (“the Superintendence”), established by Law No. 4 of July

6

21, 1977, P.R. LAWS ANN. tit. 2, §§ 651-60 et seq., is responsible for the maintenance,

7

conservation and repairs of the Puerto Rico Capitol Building. (Docket No. 26 ¶ 13.)

8

Plaintiff Méndez has been an employee of the Superintendence since April 1, 2001. Id. ¶¶

9

1; 21. Plaintiff has a bachelor’s degree in Business Administration and Accounting and a master’s

10

degree in Human Resources. Id. ¶ 22. He began as a cabinetmaker and gradually worked his way

11

up to become the Main Accounting Officer1 in charge of contracts in the Finance and Accounting

12

Department. Id. ¶¶ 25-29.

13

At the time he was hired, Plaintiff was affiliated with the PDP. (Docket No. 26 ¶ 24.)

14

However, Plaintiff’s political affiliation changed after developing a close professional and personal

15

relationship

16

(“Velázquez”), who is affiliated with the NPP. (Docket No. 26 ¶ 31-32.) Plaintiff began attending

17

NPP activities with Velázquez. Id. ¶ 33. Plaintiff alleges that his recent affiliation with the NPP

18

became widely known in the Superintendence because he actively participated in Velázquez’s NPP

19

campaign for the Puerto Rico Senate and he accompanied Velázquez to a highly publicized local

20

activity for then Republican presidential candidate Mitt Romney. Id. ¶ 34. Plaintiff contends that

21

as soon as Defendant assumed office, he personally engaged in reviewing the personnel records of

22
23
24

with

Defendant’s

predecessor,

former

1

Superintendent

Eliezer

Velázquez

Plaintiff refered to this position as “Main Accounting Analyst” at Docket No. 26 ¶ 29, but used “Main
Accounting Officer” in the remaining allegations. Id. ¶¶ 36; 38; 47-48. The Court adopts “Main Accounting Officer”
for this Opinion.

2

Civil No. 14-1875 (GAG)
1

employees in order to identify their respective political affilations to target NPP supporters for

2

reprisal. Id. ¶ 20. Additionally, Defendant appointed another employee to serve as Plaintiff’s

3

subordinate, allegedly to familiarize himself with Plaintiff’s work so he could replace Plaintiff in

4

the future. Id. ¶ 36.

5

On December 9, 2013, the Deputy Superintendent Alvaro Vazquez-Ramos called Plaintiff

6

to the Human Resource Office and told him that he “had been reclassified from Main Accounting

7

Officer to Executive Officer” and that his monthly compensation would be reduced by $500. Id.

8

¶¶ 37-39. Plaintiff was transferred to the Security Department to perform security guard duties.

9

Id. ¶¶ 40; 42. Plaintiff maintains that he had not been charged with any misconduct before the

10

transfer and the salary reduction. Id. ¶ 41. Defendant subsequently appointed a PDP-affiliated

11

employee as the new Main Accounting Officer, with an increased salary of $950. Id. ¶¶ 47-48.

12

II.

Standard of Review

13

When considering a motion to dismiss for failure to state a claim upon which relief can be

14

granted, see FED. R. CIV. P. 12(b)(6), the court analyzes the complaint in a two-step process under

15

the current context-based “plausibility” standard established by the Supreme Court. See Schatz v.

16

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citing Ocasio-Hernández v.

17

Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) which discusses Ashcroft v. Iqbal, 556 U.S. 662

18

(2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). First, the court must “isolate and

19

ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash

20

cause-of-action elements.”

21

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

22

statements, do not suffice.” Iqbal, 556 U.S. at 678-79. Second, the court must then “take the

23

complaint’s well-[pleaded]

24

Id.

A complaint does not need detailed factual allegations, but

(i.e., non-conclusory, non-speculative) facts as true, drawing all
3

Civil No. 14-1875 (GAG)
1

reasonable inferences in the pleader’s favor, and see if they plausibly narrate a claim for relief.”

2

Schatz, 669 F.3d at 55. Plausible, means something more than merely possible, and gauging a

3

pleaded situation’s plausibility is a context-specific job that compels the court to draw on its

4

judicial experience and common sense. Id. (citing Iqbal, 556 U.S. at 678-79). This “simply calls

5

for enough facts to raise a reasonable expectation that discovery will reveal evidence of” the

6

necessary element. Twombly, 550 U.S. at 556.

7

“[W]here the well-pleaded facts do not permit the court to infer more than the mere

8

possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’—‘that the pleader

9

is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)). If, however, the

10

“factual content, so taken, ‘allows the court to draw the reasonable inference that the defendant is

11

liable for the misconduct alleged,’ the claim has facial plausibility.” Ocasio-Hernández, 640 F.3d

12

at 12 (quoting Iqbal, 556 U.S. at 678).

13
14

III.

Legal Analysis
A. Political Discrimination Claim

15

Defendant seeks dismissal of Plaintiff’s political discrimination claim arguing Plaintiff has

16

not pled sufficient facts to show Defendant knew of his political affiliation or that such knowledge

17

motivated Plaintiff’s reclassification at the Superintendence. (Docket No. 28 at 5-13.)

18

The First Amendment prohibits government officials from taking “adverse employment

19

action against public employees on the basis of political affiliation, unless political loyalty is an

20

appropriate requirement of the employment.” Ocasio-Hernandez, 640 F.3d at 13. To state a prima

21

facie case of political discrimination based on the First Amendment Plaintiff must demonstrate

22

four elements: “(1) that the plaintiff and defendant have opposing political affiliations, (2) that the

23

defendant is aware of the plaintiff’s affiliation, (3) that an adverse employment action occurred,

24

4

Civil No. 14-1875 (GAG)
1

and (4) that political affiliation was a substantial or motivating factor for the adverse employment

2

action.” Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir. 2010). The Court evaluates the

3

cumulative effect of all factual allegations instead of analyzing each of them in isolation. Ocasio-

4

Hernandez, 640 F.3d at 14.

5

At this stage, Defendant only challenges two elements of Plaintiff’s prima facie case: (1)

6

whether it is plausible that Defendant knew of Plaintiff’s political affiliation and (2) whether

7

Defendant’s knowledge of this fact motivated Plaintiff’s reclassification.2 (See Docket No. 28 at

8

4.) The Court will discuss each element in turn.
1. Knowledge of Plaintiff’s Political Affiliation

9
10
11

Defendant claims Plaintiff failed to support his allegations that Defendant knew or that he
affirmatively inquired into his political affiliation. (Docket No. 28 at 6-7.)

12

The First Circuit has recogznied that political discrimination often turns on an employer’s

13

cloaked motives that can be hard for the employee to prove. Ocasio-Hernández v. Fortuño-Burset,

14

777 F.3d 1, 7 (1st Cir. 2015). Thus, knowledge may be inferred from circumstantial evidence.

15

See, e.g., Martínez-Vélez v. Rey-Hernández, 506 F.3d 32, 44 (1st Cir. 2007) (holding that a

16

reasonable jury could infer that the defendant was aware of the plaintiff’s NPP affiliation based on

17
18
19
20
21
22
23
24

2

In his opposition to Defendant’s Motion to Dismiss, Plaintiff argues discriminatory animus can be implied
from the fact that Defendant has failed to proffer any non-discriminatory reasons for Plaintiff’s reclassification.
(Docket No. 31 at 12.)
Generally, if the plaintiff proves his prima facie case of political discrimination, the burden shifts to the
defendant to articulate a non-discriminatory reason for the adverse employment action and establish, by a
preponderance of the evidence, that the same action would have been taken regardless of the plaintiff’s political beliefs
– also known as the Mt. Healthy Defense. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977). In response, “the plaintiff may discredit the proffered non-discriminatory reason, either circumstantially or
directly, by adducing evidence that discrimination was more likely than not a motivating factor.” Padilla-Garcia v.
Guillermo Rodríguez, 212 F.3d 69, 77 (1st Cir. 2000).
However, raising the Mt. Healthy defense “is inappropriate at the motion to dismiss stage because the parties
have not yet engaged in any significant discovery.” Landron & Vera, LLP v. Somoza-Colombani, No. 12-1858(SEC),
2013 WL 2422807, at *8 (D.P.R. June 3, 2013). Therefore, the Court focuses its analysis on the plausibility of
Plaintiff’s allegations to establish his political discrimination prima facie case.

5

Civil No. 14-1875 (GAG)
1

testimony that the plaintiff “spoke openly about her political views and sat in the NPP portion of

2

the de facto segregated cafeteria.”). While knowledge is not imputed to defendant when a plaintiff

3

merely alleges that his political affiliation is well known, Rivera Feliciano v. State Ins. Fund Corp.,

4

652 F. Supp. 2d 170, 186-87 (D.P.R. 2009) (citations omitted), courts are willing to infer

5

defendants knew of a plaintiff’s political affiliation when the defendant engages in a “witch-hunt”

6

to obtain such information. See Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir.

7

2013).

8

In the present case, the Court can infer from Plaintiff’s factual allegations that Defendant

9

knew of Plaintiff’s political affiliation. Plaintiff alleges that Defendant, a PDP activist, became the

10

Superintendent one month after the PDP gained the majority in the Puerto Rico legislature.

11

(Docket No. 26 ¶¶ 15-17.) Plaintiff asserts that as Defendant prepared for the transition to the new

12

PDP administration, Defendant personally identified employees with any connection to the NPP by

13

reviewing employee personnel records. Id. ¶ 20. Plaintiff also maintains he became an active

14

supporter of the NPP after developing a close relationship with former superintendent Velázquez,

15

participating in Velázquez’s campaign for the Senate and attending political events with him. Id.

16

¶¶ 31-34. Plaintiff’s friendship with Velázquez and his involvement in a highly publicized tour

17

with Republican presidential candidate Mitt Romney became widely known within the

18

Superintendence. Id. ¶ 34.

19

Thus, the Court finds that Plaintiff’s political activism outside the Superintendence and his

20

public friendship with Velázquez, coupled with the allegation that Defendant himself reviewed

21

employee personal records to identify employees potentially affiliated with the NPP, reasonably

22

support an inference that Defendant knew of Plaintiff’s political affiliation.

23
24

6

Civil No. 14-1875 (GAG)
1

2. Substantial or Motivating Factor

2

Plaintiff must allege sufficient facts to show political affiliation was a substantial or

3

motivating factor for the adverse employment action. Lamboy-Ortiz, 630 F.3d at 239. This prong

4

is often described as a showing of discriminatory animus. The First Circuit has recognized that “it

5

is rare that a ‘smoking gun’ will be found in a political discrimination case, and thus circumstantial

6

evidence alone may support a finding of political discrimination.” Id. at 240. Specifically,

7

pertinent factors include time lapsed between the reclassification and the change in political

8

administration, the absence of negative job evaluations and nondiscriminatory explanation for the

9

reclassification, and the political affiliation of the person who replaced Plaintiff. Rodríguez-Reyes,

10

711 F.3d at 57; Medina-Velázquez v. Hernández-Gregorat, 767 F.3d 103, 111 (1st Cir. 2014).

11

Additionally, Plaintiff must sufficiently allege Defendant’s involvement in the reclassification.

12

Medina-Velázquez, 767 F.3d at 111-12 (citing Ocasio-Hernández, 640 F.3d at 16) (“[p]ublic

13

officials may be held liable . . . for a constitutional violation only if a plaintiff can establish that

14

constitutional injury resulted from the direct acts or omissions of the official, or from indirect

15

conduct that amounts to condonation or tacit authorization.”).

16

The Court first determines if Plaintiff alleged sufficient facts to infer Defendant was

17

involved in the decision to reclassify him. In doing so, the Court must decide whether Defendant

18

was put on actual or constructive notice of Plaintiff’s reclassification. Medina-Velázquez, 767

19

F.3d at 112 (citations omitted). The Court can infer involvement if the defendant directed,

20

encouraged, or chose not to remedy the adverse employment action. Id. (citing Lipsett v. Univ. of

21

P.R., 864 F.2d 881, 902 (1st Cir. 1988)). Plaintiff alleges that Defendant had at least constructive

22

notice of Plaintiff’s reclassification.

23
24

7

Civil No. 14-1875 (GAG)
1

Defendant has authority over personnel decisions at the Superintendence because he

2

appointed another employee to be Plaintiff’s subordinate. (Docket No. 26 ¶ 36.) Not only did

3

Defendant personally review the personnel records of employees to identify their political

4

affiliations as he prepared for the transition to the new PDP administration, but it was also the

5

deputy Superintendent acting under Defendant’s direct authority who informed Plaintiff of his

6

reclassification. Id. ¶¶ 20; 37-38. Thus, the Court finds it plausible that Defendant could have

7

been involved in Plaintiff’s reclassification.

8

The Court is not convinced by Defendant’s argument that a causal connection is missing

9

because it took a year to re-classify Plaintiff. (Docket No. 28 at 10.) Courts usually find political

10

animus where there is temporal proximity between the administration change and the adverse

11

employment action. See, e.g., Medina-Velázquez, 767 F.3d at 111; Grajales v. P.R. Ports Auth.,

12

682 F.3d 40, 50 (1st Cir. 2012). Nonetheless, a longer time interval, alone, does not prove absence

13

of political animus. Rodríguez-Reyes, 711 F.3d at 56-57. The Court notes that this lag could

14

result from the difficulty of filling Plaintiff’s position, given the skills required and level of

15

expertise needed to become the Main Accounting Officer in the Department of Finance and

16

Accounting. (Docket Nos. 26 ¶ 36; 31 at 12.) Plaintiff has a bachelor’s degree in Business

17

Administration and Accounting and a master’s degree in Human Resources, and maintains that it

18

took him six years and two promotions to become the Main Accounting Officer. (Docket No. 26

19

¶¶ 22-28.) Even with political animus, Defendant might have had trouble fringing someone

20

qualified to replace Plaintiff.

21

The Court finds that Plaintiff has alleged sufficient facts to support an inference of

22

Defendant’s discriminatory motive. According to Plaintiff, at no point was he charged with

23

misconduct that may have led to his transfer and salary reduction, nor was he given any reasons for

24

8

Civil No. 14-1875 (GAG)
1

his reclassification. (Id. ¶ 41; Docket No. 31 at 12.) Plaintiff was taken from a position that he

2

held for six years and transferred to perform security duties and physical activities for which he

3

had no prior training or experience. (Docket No. 26 ¶¶ 29, 42-43.) Moreover, the Superintendent

4

subsequently appointed a PDP-affiliated individual to replace Plaintiff. Id. ¶ 47. Plaintiff alleges

5

that quickly after Defendant took office, he appointed another employee to be Plaintiff’s

6

subordinate “in order to gain acquaintance with his job, while a replacement affiliated to the PDP

7

could be named.” Id. ¶ 36. These allegations support a plausible inference that political affliation

8

was a substantial or motivating factor behind Plaintiff’s reclassification.

9

Considering Plaintiff’s political activism with the NPP, Defendant’s personal review of

10

employee records to identify potential NPP supporters, and Plaintiff’s allegations about the

11

unexplained reclassification and the subsequent PDP-affiliated replacement, the Court finds that

12

Plaintiff has sufficiently pled facts to establish his prima facie case. Thus, Defendant’s motion to

13

dismiss Plaintiff’s political discrimination claim is DENIED.

14

B. Fifth Amendment Due Process Claim

15

Defendant argues that Plaintiff failed to state a due process claim under the Fifth

16

Amendment because Defendant is not a federal actor and the reclassification was not a federal

17

action. (Docket No. 28 at 14.)

18

The due process clause of the Fifth Amendment only applies to actions by the federal

19

government. Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447, 449 (1st Cir. 1983) (citing

20

Public Utilities Commission v. Pollak, 343 U.S. 451, 461 (1952)). Plaintiff concedes that there is

21

no federal actor or federal action involved in his complaint, and consents to the dismissal of his

22

Fifth Amendment claim. (Docket No. 31 at 16.) Thus, Defendant’s motion to dismiss Plaintiff’s

23

Fifth Amendment due process claim is GRANTED.

24

9

Civil No. 14-1875 (GAG)
1
2

C. Fourteenth Amendment Due Process Claim
1. Procedural Due Process

3

The Fourteenth Amendment forbids a state to “deprive any person of life, liberty, or

4

property, without due process of law . . . .” U.S. Const. amend. XIV. The due process guarantee

5

has both procedural and substantive aspects. See Amsden v. Moran, 904 F.2d 748, 753 (1st Cir.

6

1990). A viable procedural due process claim must demonstrate a “deprivation by state action of a

7

constitutionally protected interest in ‘life, liberty, or property’. . . without due process of law.”

8

Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32 (1st Cir. 1996). “The Due Process Clause

9

of the Fourteenth Amendment protects government employees who possess property interests in

10

continued public employment.” Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st Cir.

11

2005) (citations omitted). In order to determine whether public employees possess such a property

12

right, the First Circuit requires that the Court examine local law and the terms and conditions of

13

the employment arrangement. See Ruiz-Casillas, 415 F.3d at 134.

14

Under Puerto Rico law, career employees have a property interest in their continued

15

employment. Garnier v. Rodriguez, 506 F.3d 22, 27 (1st Cir. 2007) (citing González-de-Blasini v.

16

Family Dept., 377 F.3d 81, 86 (1st Cir. 2004)). Due process requires that prior to a deprivation of

17

life, liberty, or property the individual being deprived of said interest be given notice and an

18

opportunity to be heard. See Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir. 1998) (citing

19

Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 19 (1978)). However, this property

20

interest extends only to the position itself, not to the functions performed by the employee. Ruiz-

21

Casillas, 415 F.3d at 134 (finding no violation of due process under the Fourteenth Amendment

22

because the plaintiff only had his duties downgraded but he was not fired). Where a plaintiff does

23

not contend that his employment was terminated, but rather asserts that he was demoted, or his

24

10

Civil No. 14-1875 (GAG)
1

compensation diminished, Puerto Rico law will not afford him a constitutionally protected interest.

2

See Rodriguez-Pinto v. Tirado Delgado, 798 F. Supp. 77, 83-84 (D.P.R. 2004), aff’d on this

3

ground, 982 F.2d 34, 41 (1st Cir. 1993); see also Morales-Narvaez v. Rossello, 852 F. Supp. 104,

4

113 (D.P.R. 1994) (summarizing cases holding that a plaintiff is not deprived of a property interest

5

by a change in duties or title).

6

In this case, Plaintiff has failed to state a claim for a procedural due process violation

7

because he was not fired. Even though Plaintiff was transferred to the security department within

8

the Superintendence, under Puerto Rico law, Plaintiff has no property interest in his original job

9

functions. Thus, Plaintiff’s procedural due process claim based solely on the transfer to a different

10

department, even with a change of duties and salary reduction, is not sufficient to show he was

11

deprived of a property interest. See Quiles-Santiago v. Rodriguez-Diaz, 851 F. Supp. 2d 411, 427

12

(D.P.R. 2012).

13

2. Substantive Due Process

14

“A substantive due process claim requires allegations that the government conduct was, in

15

and of itself, inherently impermissible irrespective of the availability of remedial or protective

16

procedures.” Maymi v. P.R. Ports Auth., 515 F.3d 20, 30 (1st Cir. 2008). When Plaintiff has

17

stated a viable First Amendment claim, a substantive due process claim based on the same conduct

18

is barred. Ramírez v. Arlequín, 447 F.3d 19, 25 (1st Cir. 2006); see also Cruz v. P.R. Planning

19

Bd., 99 F. Supp. 3d 249, 259-60 (D.P.R. 2015). In the instant case, there is no basis for a

20

substantive due process claim because Plaintiff’s assertion that the reclassification and the salary

21

reduction are acts of political discrimination are covered by the First Amendment. The same

22

allegations cannot also support a substantive due process claim. Thus, Defendant’s motion to

23

dismiss Plaintiff’s Fourteenth Amendment due process claims is GRANTED.

24

11

Civil No. 14-1875 (GAG)
1

IV.

State Law Claims

2

Because Plaintiff’s First Amendment political discrimination claim survives Defendant’s

3

motion to dismiss, the Court may, in its discretion, exercise supplemental jurisdiction over his

4

remaining state law claims. See Vera-Lozano v. Int’l Broad., 50 F.3d 67, 70 (1st Cir. 1995)

5

(citations omitted) (holding when a state law claim and a federal claim “derive from a common

6

nucleus of operative fact” and the plaintiff “would ordinarily be expected to try them both in one

7

judicial proceeding,” the district court may exercise supplemental jurisdiction over the state law

8

claim.). The Court addresses each of Plaintiff’s state law claims in turn.

9

First, Defendant moves to dismiss Plaintiff’s Law 100 claim because it is only applicable to

10

private entities or those governmental agencies that act as a private business. (Docket No. 28 at

11

19-20.) Law 100 prevents private enterprises or government agencies acting as a private business

12

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

13

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

14

concedes Defendant in his personal capacity does not operate as a private business or enterprise

15

subjecting to Law 100. (Docket No. 31 at 20.) Thus, the Court GRANTS Defendant’s motion to

16

dismiss Plaintiff’s Law 100 claim.

17

Second, Defendant argues that Plaintiff’s Article 1802 claim should be dismissed because

18

Plaintiff has failed to include factual allegations regarding negligent acts, or show that Defendant

19

caused the tortious conduct. (Docket No. 28 at 18-19.) In order to recover under Article 1802,

20

Plaintiff must show negligent acts, damages, and a causal link between the negligent acts and

21

damages. Irvine v. Murad Skin Research Lab., 194 F.3d 313, 321 (1st Cir. 1999). In the instant

22

case, Plaintiff alleged that he suffered emotional distress and lost wages and benefits arising from

23

the unexplained reclassification, downgraded duties and salary reduction. (Docket No. 26 ¶¶ 38-

24

12

Civil No. 14-1875 (GAG)
1

40; 54). Furthermore, in support of his Section 1983 claim, Plaintiff sufficiently alleges that

2

because of his political affiliation, Defendant discriminated against him by demoting him from the

3

Finance and Accounting Department to the Security Department and reducing his salary. (Docket

4

No. 26 ¶¶ 38-40; 53-54.) The underlying factual allegations of Plaintiff’s Section 1983 claim also

5

encompass the essential elements of his Article 1802 claim. Thus, Defendant’s motion to dismiss

6

Plaintiff 1802 claim is DENIED.

7

Lastly, “the Federal and Puerto Rico Constitutions contain analogous provisions protecting

8

an individual’s right to Due Process of Law.” Nazario v. Dep’t of Health of Puerto Rico, 415 F.

9

Supp. 2d 48, 48-49 (D.P.R. 2006); compare U.S. Const. Amend. XIV, § 1 with P.R. Const. art. II,

10

§ 7. Because the Court grants Defendant’s motion to dismiss as to Plaintiff’s federal Due Process

11

claims, Defendant’s motion as to Plaintiff’s claim under Article II, § 7 of the Puerto Rico

12

Constitution is also GRANTED.

13

V.

Conclusion

14

For the reasons stated above, Defendants’ motion to dismiss at Docket No. 28 is

15

GRANTED in part and DENIED in part. Defendant’s motion to dismiss Plaintiff’s First

16

Amendment political discrimination claim and Article 1802 claim is DENIED. Defendant’s

17

motion to dismiss Plaintiff’s Fifth and Fourteenth Amendment Due Process, and Law 100 claims is

18

GRANTED.

19

SO ORDERED.

20

In San Juan, Puerto Rico, this 8th day of March 2016.
s/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge

21
22
23
24

13