Tevenal-Aviles v. Estrada-Figueroa et al

Filing 15

OPINION AND ORDER. The Court orders the following with respect to the motion to dismiss at Docket No. 12: (1) the motion to dismiss both direct and supervisory liability 42 U.S.C. § 1983 claims brought against Co-Defendant Estrada Figueroa is GR ANTED and dismissed with prejudice; (2) accordingly, pursuant to 28 U.S.C. § 1367, supplemental state law claims against Estrada Figueroa are dismissed without prejudice and Plaintiff has leave to refile his claims in local court; and (3) the motion to dismiss with respect to all claims against Co-Defendant Martinez-Ortiz is DENIED. Signed by Judge Daniel R. Dominguez on 07/15/2016.

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

MARIO TENEVAL AVILÉS,
Plaintiff,
Civil No.: 12-1200 (DRD)
v.
LIZA ESTRADA FIGUEROA, et al.,
Defendants

OPINION AND ORDER
I. Introduction
Plaintiff Mario Teneval Avilés (“Plaintiff”) filed a complaint on February 4, 2016,
alleging political discrimination against Defendants Liza Estrada Figueroa (“Estrada
Figueroa”) in her official and personal capacities and against Mariel Martínez-Ortiz
(“Martínez-Ortiz”) in her official and personal capacities, as well via supervisory liability
(collectively, “Defendants”). Dkt. No. 1. Plaintiff brings this action under 42 U.S.C. § 1983,
alleging a violation of the First Amendment of the United States Constitution, as well as
supplemental claims under Article II, Sections 1, 2, 3, 4, 6, and 7 of the Constitution of the
Commonwealth of Puerto Rico, and Articles 1802 and 1803 of the Civil Code of Puerto Rico.
Id. Defendants now move to dismiss all Section 1983 claims.
II. Relevant Factual and Procedural Background
Plaintiff is an Official Executive of the Corporación del Fondo del Seguro del Estado
(“CFSE”) at the Bayamón Regional Office. Dkt. No. 1, p. 2, ¶ 1. Plaintiff has been affiliated
with the New Progressive Party of Puerto Rico (“NPP”) since 1996, the same year he began
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working at CFSE. He also ran as an official candidate in the 2008 primaries for the Bayamón
District. Dkt. No. 1, p. 3, ¶¶ 1-6. At the time of filing the complaint, Plaintiff was a primary
candidate for House of Representative for the Bayamón District. Plaintiff claims that his work
colleagues are aware of his political affilation. Dkt. No. 1, p. 4, ¶ 8.
Co-Defendant Martínez-Ortiz is the CFSE Regional Director for the Bayamón Region.
Dkt. No. 1, p. 4, ¶ 12. Co-Defendant Martínez-Ortiz is an active member of the Popular
Democratic Party (“PDP”), which is the main political rival of the NPP. Dkt. No. 1, p. 4, ¶ 9.
Prior to starting her role as CFSE Regional Director in 2014, she served as SubCommissioner for the PDP State Elections Commission from 2010 to 2013. Id. at ¶ 10.
Plaintiff claims that Co-Defendant Martínez-Ortiz has at one time falsely accused him
of skipping work to participate in political activities, has excluded him from staff meetings
without explanation, and has denied his request for five months leave in what Plaintiff
believes was an effort to thwart his primary campaign. Dkt. No. 1, p. 4-5, ¶¶ 13-19.
Co-Defendant Estrada Figueroa is the Administrator of the CFSE and Co-Defendant
Martínez-Ortiz’s superior. The complaint states that José E. Ortiz Torres, a non-party in this
suit and President of the Asociación Empleados Gerenciales for CFSE (AEG-CFSE),
appealed via email to Estrada Figueroa to ask her to grant Plaintiff’s vacation request. While
the pleadings are fuzzy as to what, if any, response Estrada Figueroa gave to this entreaty,
Plaintiff contends that she did not respond and that her inaction was motivated by her political
affiliation with the PDP.
Defendants filed a motion to dismiss asserting that there is no absolute right to
vacation leave, and therefore, no qualifying adverse action occurred to qualify the described

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events as political discrimination. Furthermore, regardless of any political motivations,
Defendants argue that they are shielded from these causes of action by qualified immunity.
III. Standard of Review
Once confronted with an allegation regarding the sufficiency of a complaint, the Court
must first turn to Federal Rule of Civil Procedure 8(a), which enumerates the minimum
requirements of a valid complaint:
(1)

(2)
(3)

a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional supports;
a short plain statement of the claim showing that the pleaders is
entitled to relief; and
a demand for the relief sought which may include relief in the
alternative or different types of relief

A motion under Rule 12(b)(6) must be granted when the pleader fails “to state a claim upon
which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). A 12(b)(6) motion to dismiss will
succeed when the complaint’s allegations do not comply with Rule 8(a)(2). However,
compliance with Rule 8(a)(2) has been the subject of much debate for decades in the legal
community.
The Supreme Court sparked this discussion in 1957, when called upon to evaluate the
sufficiency of a complaint:
In appraising the sufficiency of the complaint [in this case] we follow,
of course, the accepted rule that a complaint should not be dismissed for failure
to state a claim unless it appears beyond a doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.
(emphasis added).
Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (overruled by Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)). This passage, embraced by our highest court, has been interpreted by
many judges and commentators to mean that “a wholly conclusory statement of claim would

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survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff
might later establish some ‘set of [undisclosed] facts’ to support recovery.” (alteration in
original). Twombly, 550 U.S. at 561 (describing the evil created by the controversial Conley
passage). However, such an interpretation harshly affects a defendant’s desire to defend
himself in a civil suit. “[T]he threat of discovery expense [would] push costs-conscious
defendants to settle even anemic cases.” Id. at 559. Hence, many other judges and
commentators, wary of these negative implications, declined to construe the Supreme Court’s
words in such a literal manner. The debate between these two schools of thought raged for
decades. Finally, this controversy was put to rest by the Supreme Court in 2007: “after
puzzling the profession for 50 years, this famous observation has earned its retirement.” Id. at
563 (followed by Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
The Supreme Court cleared the smoke and established that, in order to comply with
Rule 8(a)(2), a complaint must state a “plausible” claim for relief, as opposed to merely
stating a “possible” claim for relief. “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—that ‘the pleader is entitled to relief.’” (emphasis provided). Iqbal, 556 U.S. at
679 (using the language of Rule 8(a)(2) to explain plausibility). In order to “‘nudge [a claim]
across the line from conceivable to plausible,’ the complaint must contain enough facts to
support a claim for relief.” (emphasis provided). Twombly, 550 U.S. at 570.
“This plausibility standard has become the ‘new normal’ in federal civil practice.”
Garcia-Catalan v. United States, 734 F 3d 100, 101 (1st Cir. 2013) (citing A.G. v. Elsevier,
Inc., 732 F. 3d 77, 78-79 (1st Cir. 2013)). In other words, while Conley (arguably) states that
a complaint with no more than conclusory allegations need not contain any supporting facts to

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comply with Rule 8(a)(2), both Iqbal and Twombly take the opposite point of view. “Rule 8
marks a notable and generous departure from the hyper-technical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Iqbal, 556 U.S. at 678-79.
The doors of discovery only open when a complaint has “factual allegations [that] are
sufficient to support ‘the reasonable inference that the defendant is liable for the misconduct
alleged.’” Garcia-Catalan, 734 F. 3d at 103 (citing Haley v. City oF Boston, 657 F. 3d 39, 46
(1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678)); see also Garcia-Catalan, 734 F. 3d at 103
(“The circumstances in the complaint create a reasonable expectation that discovery may
yield evidence of the government’s allegedly tortious conduct”; citing Ocasio-Hernandez v.
Fortuño-Burset, 640 F. 3d 1, 17 (1st Cir. 2011)). The First Circuit explains the relationship
between a complaint’s plausibility and discovery in more detail:
. . . the plausibility inquiry properly takes into account whether
discovery can reasonably be expected to fill any holes in the pleaders case. See
Twombly, 550 U.S. at 556 (requiring, as a hallmark of plausibility, that a
complaint contain “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence”).
Garcia-Catalan, 734 F. 3d at 104-05. Notwithstanding, the First Circuit has been cautious
when applying the plausibility analysis to certain types of cases. Id. at 104 (citing Menard v.
CSX Trandp. Inc., 698 F. 3d 40, 45 (1st Cir. 2012)). “Generally speaking, these are cases in
which a material part of the information needed [by the plaintiff] is likely to be within
defendant’s control.” Id. This caution is not in contravention with the Supreme Court’s
detailed plausibility standard:
Because precise knowledge of the chain of events leading to the [claim] may
often be unavailable to a plaintiff at this early stage of litigation, we take to
heart the Supreme Court’s call to “draw on our ‘judicial experience and
common sense’ as we make a contextual judgment about the sufficiency of the
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pleadings.” See Sanchez v. Pereira-Castillo, 590 F. 3d 31, 48 (1st Cir. 2009)
(quoting Iqbal, 129 S.Ct. at 1950).
Ocasio-Hernandez, 640 F. 3d at 16.
Moreover, both the Supreme Court and the First Circuit have cautioned against
equating a plausibility analysis with an analysis of plaintiff’s likely success on the merits.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678; see also
Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it appears that a
recovery is very remote and unlikely”) (internal quotation marks omitted); SepúlvedaVillarini v. Dep’t of Educ. of P.R., 628 F. 3d 25, 30 (1st Cir. 2010) (affirming that the
plausibility standard assumes properly pleaded facts to be true and are to be read in plaintiff’s
favor) (citing Twombly, 550 U.S. at 556); see also Ocasio-Hernandez, 640 F. 3d at 12 (citing
Twombly, 550 U.S. at 556) (“[T]he court may not disregard properly pled factual allegation,
‘even if it strikes a savvy judge that actual proof of those facts is improbable’”). Instead, the
First Circuit has emphasized that “[t]he make-or-break standard . . . is that the combined
allegations, taken as true, must state a plausible, [but] not merely conceivable, case for relief.”
Sepúlveda-Villarini, 628 F. 3d at 29; see also Iqbal, 556 U.S. at 681 (“To be clear, we do not
reject . . . bald allegations on the ground that they are unrealistic or nonsensical . . . It is the
conclusory nature of [the] allegations, rather than their extravagantly fanciful nature, that
disentitles them to the presumption of truth.”)
The First Circuit has mapped out the proper methodology to adequately analyze the
plausibility of the claims present in a complaint:
Step one: isolate and ignore statements in the complaint that simply offer legal
labels and conclusions or merely rehash cause-of-action elements. (emphasis
provided).
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Schatz v. Republican State Leadership Committee, 669 F. 3d 50, 55 (1st Cir. 2012) (citing
Ocasio-Hernandez, 640 F. 3d at 12; Iqbal, 556 U.S. 662; and Twombly, 550 U.S. at 555.)).
This is an exception to the general rule that “a court must accept as true all of the allegations
contained in a complaint.” Iqbal, 556 U.S. at 678. As such, “[a] plaintiff is not entitled to
‘proceed perforce’ by virtue of allegations that merely parrot the elements of the cause of
action.” Ocasio-Hernandez, 640 F. 3d at 12, (citing Iqbal, 556 U.S. at 680). Slightly restated,
“[a] complaint ‘must contain more than a rote recital of the elements of cause of action,’ but
need not include ‘detailed factual allegations.’” Rodriguez-Vives v. Puerto Rico Firefighters
Corps of Puerto Rico, 743 F. 3d 278, 283 (1st Cir. 2014) (citing Rodríguez-Reyes v. MolinaRodríguez, 711 F. 3d 49, 53 (1st Cir. 2013) (reiterated by Garcia-Catalan, 734 F. 3d at 103)).
Notwithstanding, a second exception was carved out from Twombly by the First Circuit:
“some allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare
or speculative that they fail to cross the line between the conclusory and the factual.”
Peñalbert-Rosa v. Fortuño-Burset, 631 F. 3d 592, 595 (1st Cir. 2011) (citing Twombly, 550
U.S. at 557 n.5 (“The border in [DM Research, Inc. v. College of Am. Pathologists, 170 F. 3d
53, 56 (1st Cir. 1999)] was the line between the conclusory and the factual. Here it lies
between the factually neutral and the factually suggestive. Each must be crossed to either the
realm of plausible liability.”)). The First Circuit, in a separate case, expounded upon these two
exceptions:
A conclusory allegation . . . is one which simply asserts a legal conclusion,
such as “I was retaliated against,” not a specific factual allegation, such as “my
superior threw a book at me,” that merely lacks some surrounding context. See
Ocasio-Hernández, 640 F. 3d at 13-14. We have held that some allegations
may be so “threadbare” that they are in essence conclusory even if they include
more than an assertion that an element of a cause of action was satisfied. See
Peñalbert-Rosa, 631 F. 3d at 595-96 (1st Cir. 2011). But this is only the case
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where the bareness of the factual allegations makes clear that the plaintiff is
merely speculating about the fact alleged and therefore has not shown that it is
plausible that the allegation is true. Id.
Rodriguez-Vives, 743 F. 3d at 286.
After duly describing step one in detail, the First Circuit continued their meticulous
methodology of identifying a complaint’s plausibility:
Step two: take the complaint’s well-pled (i.e., non-conclusory, non-speculative)
facts as true, drawing all reasonable inferences in the pleader’s favor, and see if
they plausibly narrate a claim for relief. Ocasio-Hernandez, 640 F. 3d at 12
(again, discussing Iqbal and Twombly, among others); see also S.E.C. v.
Tambone, 597 F. 3d 436, 441-42 (1st Cir. 2010) (en banc). Plausible, of course,
means something more than merely possible, and gauging a pleaded situations’
plausibility is a “context-specific” job that compels us “to draw on” our
“judicial experience and common sense.” Iqbal, 556 U.S. at 679. And in
performing our review, we realize too that we can consider (a) “implications
from documents” attached to or fairly “incorporated into the complaint,” (b)
“facts” susceptible to judicial notice,” and (c) “concessions” in plaintiff’s
“response to the motion to dismiss.” Arturet-Vélez v. R.J. Reynolds Tobacco
Co., 429 F. 3d 10, 13 n. 2 (1st Cir. 2005); see also Hayley v. City of Boston,
657 F. 3d 39, 44, 46 (1st Cir. 2011). (emphasis added).
Schatz, 669 F. 3d at 55-56 (footnote omitted). Furthermore, such inferences must be at least as
plausible as any “obvious alternative explanation.” Iqbal, 556 U.S. at 682 (citing Twombly,
550 U.S. at 567); see also Id. at 680 (“Acknowledging that parallel conduct was consistent
with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest
an illicit accord because it was not only compatible with, but indeed was more likely
explained by, lawful, unchoreographed free-market behavior. [Twombly, 550 U.S.] at 567.”).
“Specific information, even if not in the form of admissible evidence, would likely be enough
at [the motion to dismiss] stage; pure speculation is not.” Peñalbert-Rosa, 631 F. 3d at 596.
Nevertheless, “[n]othing about the plausibility standard requires a court to blind itself to what
is obvious.” Grajales v. Puerto Rico Ports Authority, 682 F. 3d 40, 48 (1st Cir. 2012). When
considering a motion to dismiss, the court’s inquiry occurs in a two-step process under the
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current context-based “plausibility” standard established by Twombly and Iqbal. “Contextbased” means that a plaintiff must allege sufficient facts that comply with the basic elements
of cause of action. See Iqbal, 556 U.S. at 671-72 (concluding that plaintiff’s complaint was
factually insufficient to substantiate the required elements of a Bivens claim, leaving the
complaint with only conclusory statements). However, the First Circuit has also cautioned
courts that a plausibility analysis should not be done “too mechanically”:
We emphasize that the complaint must be read a whole. See Elsevier, 732 F. 3d
at 81-83. As we have explained, “[t]here need not be a one-to-one relationship
between any single allegation and the necessary element of the cause of action.”
Rodíguez-Reyes, 711 F. 3d at 55. “For pleading purposes, circumstantial
evidence often suffices to clarify a protean issue.” Id. at 56 (internal quotations
marks omitted).
Garcia-Catalan, 734 F. 3d at 103. Finally, at the expense of overstressing the obvious, “an
adequate complaint must include not only a plausible claim but also a plausible defendant.”
Peñalbert-Rosa, 631 F. 3d at 594.
Having presented a summary of the applicable standard under Federal Rule of Civil
Procedure 12(b)(6), the Court may address allegations contained in the complaint.
IV. Discussion
This discussion will proceed in three main parts. First, we will consider the merits of
the political discrimination claim with respect to each contested element. Then, we will
consider Co-Defendant Estrada Figueroa’s alleged supervisory liability, separate from her
direct liability as discussed in the first subsection. Finally, we will assess the qualified
immunity defense submitted by Martínez-Ortiz.
a. Political Discrimination
Plaintiff avers a violation of his First Amendment right under the U.S. Constitution,
for alleged acts of political discrimination perpetrated by Defendants. A Section 1983 claim
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requires a plaintiff to “allege facts sufficient to support a determination (i) that the conduct
complained of has been committed under color of state law, and (ii) that [the alleged] conduct
worked a denial of rights secured by the Constitution or law of the United States.” Cepero
Rivera v. Fagundo, 414 F. 3d 124, 129 (1st Cir. 2005) (quoting Romero-Barcelo v.
Hernandez-Agosto, 75 F. 3d 23, 32 (1st Cir. 1996)). For the sake of Section 1983 claims,
Puerto Rico is the functional equivalent of a state. Grajales, 682 F. 3d at 46 (1st Cir. 2012)
(citing Santiago v. Puerto Rico, 655 F. 3d 61, 69 (1st Cir. 2011)).
Because Defendants were acting in their official capacities for a state agency, the color
of state law requirement is met. See West v. Atkins, 487 U.S. 42, 50 (1988); see also Otero v.
Commonwealth of Puerto Rico Indus. Com’n, 441 F. 3d 18, 21 (1st Cir. 2006).
With regard to the second prong, Plaintiff claims that Defendants’ actions constituted
a violation of his First Amendment right to political association. Dkt. No. 1, p. 1. To make a
prima facie showing of political discrimination one must establish four elements: “(1) that the
plaintiff and defendant have opposing political affiliations, (2) that the defendant is aware of
the plaintiff’s affiliation, (3) that an adverse action occurred, and (4) that political affiliation
was a substantial or motivating factor for the adverse employment action.” Ocasio-Hernández,
F. 3d at 13 (quoting Lamboy-Ortiz v. Ortiz-Vélez, 630 F. 3d 228. 239 (1st Cir. 2010)).
However, at the pleading stage a one-to-one factual showing of each element of the
prima facie case is not necessary. Rodriguez-Reyes v. Molina-Rodriguez, 711 F. 3d 49, 54 (1st
Cir. 2013). The plausibility standard established in Twombly/Iqbal is controlling, and
therefore, inferences based on “judicial experience and common sense” may be drawn from
circumstantial evidence to evaluate the plausibility of a political discrimination claim. Iqbal,
556 U.S. at 679. That is not to say the prima facie claim framework is irrelevant— rather it

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functions as a “prism to shed light upon the plausibility of the claim.” Rodriguez-Reyes, 711 F.
3d at 54. Thus, at this point, Plaintiffs need only plead the plausibility of a prima facie claim,
and only after discovery must they establish each element.
i. Awareness of Political Affiliation
Defendants challenge Plaintiff’s allegations with respect to the last three elements of
the political discrimination claim. First, they contend that Plaintiff has failed to adequately
plead that Defendants were aware of the Plaintiff’s political affiliation. Dkt. No. 12, p. 6, ¶17.
Generally, conclusory allegations that one’s political association is well-known will not meet
a plaintiff’s burden of showing that a defendant had knowledge of her political affiliation.
Jimenez-Gonzalez v. Alvarez-Rubio, 683 F. Supp. 2d 177, 184 (D.P.R. 2010) (stating that
Plaintiffs’ claims that they are active members of the PDP, a fact which Defendants’
supposedly knew, was insufficient to meet the requisite burden). However, in consideration of
the standard that “all reasonable inferences [should be drawn] in the pleader’s favor,” the
court has the discretionary authority, even in the presence of conclusory statements, to
consider the totality of the pleaded facts to infer knowledge of a plaintiff’s political affiliation.
Ocasio-Hernandez, 640 F. 3d at 12; see also Rodríguez-Reyes, 711 F. 3d at 55 (“There need
not be a one-to-one relationship between any single allegation and a necessary element of the
cause for action. What counts is the cumulative effect of the [complaint’s] factual
allegations.”) (quoting Ocasio-Hernanandez, 640 F. 3d at 14). (internal quotation marks
omitted); see also Albino v. Municipality of Guayanilla, 925 F. Supp. 2d 186, 196 (D.P.R.
2013) (“In this case, plaintiff Ruiz did not state a single factual allegation that any defendant
was aware of her political affiliation. . . . Taking into account the cumulative effect of the

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facts pled, the Court finds that an inference may be drawn that defendant Mayor Arlequin was
aware of plaintiff Ruiz’s political affiliation . . .”).
In this instance, Plaintiff has in fact provided plausible facts as to each defendant’s
knowledge of his political affiliation. With respect to Co-Defendant Martínez-Ortiz, Plaintiff
describes an exchange that took place three months prior to Plaintiff’s vacation request in
which Martínez-Ortiz chided Plaintiff for missing work to participate in a political event to
support Pedro Pierluisi—current NPP Resident Commissioner. Dkt. No. 1, p. 4, ¶¶14, 17. This
allegation is sufficient for the Court to plausibly infer that Co-Defendant Martínez-Ortiz was
aware of Plaintiff’s political affiliation.
Slightly more fraught is whether Co-Defendant Estrada Figueroa was aware of
Plaintiff’s political affiliation. Accepting as true the allegations made in the complaint,
Estrada Figueroa became involved in this dispute after José Ortiz Torres, a non-party,
appealed to her in an email asking her to override Martínez-Ortiz’s denial Plaintiff’s vacation
request. Dkt. No. 1, p. 5, ¶21. As a part of that request, he informed Estrada Figueroa of the
purpose of the leave request and of Plaintiff’s political party association. Id. Accepting as true
that she received the email, one can infer that Estrada Figueroa knew of Plaintiff’s political
affiliation before tacitly affirming Martínez-Ortiz’s decision. As such, for the purposes of this
motion, the Court finds that Co-Defendant Estrada Figueroa was aware of Plaintiff’s political
affiliation.
ii. Adverse Employment Action
Moving to the third prong, we now consider whether an adverse employment action
occurred. Adverse employment actions may range from demotion or outright dismissal to
lesser events “including denials of promotions, transfers, and failures to recall after layoff . . .”

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Rodriguez-Garcia v. Miranda-Marín, 610 F. 3d 756, 766 (1st Cir. 2010) (citing Rutan v.
Republican Party of Illinois, 497 U.S. 62, 75). Moreover, to qualify as political discrimination
a plaintiff must show that “if those actions, objectively evaluated, would place substantial
pressure on even one of thick skin to conform to the prevailing political view.” RodriguezGarcia, 610 F. 3d at 766 (citing Bergeron v. Cabral, 560 F. 3d 1, 8 (1st Cir. 2009); and then
quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F. 2d 1209, 1218 (1st Cir. 1989)). The
First Circuit evaluates “substantial pressure” by looking to whether a plaintiff’s work
conditions are “unreasonably inferior to the norm for that position” and then requires a
plaintiff to “canvass the specific ways in which the plaintiff’s job has changed” in order to
assess whether the alleged actions meet the severity requirement Agosto-de-Feliciano v.
Aponte-Roque, 889 F. 2d at 1218; see also Reyes-Orta v. Puerto Rico Highway and Transp.
Authority, 811 F. 3d 67, 76 (1st Cir. 2016); Otero v. Commonwealth of Puerto Rico Indus.
Com’n, 441 F. 3d 18, 21 (1st Cir. 2006).
In the instance case, the Court finds that Plaintiff’s allegations meet the severity
threshold, in part. Plaintiff relies on three main allegations to support his claim of political
discrimination by Martínez-Ortiz: (1) exclusion from managerial meetings (Dkt No. 1, p. 4,
¶13), (2) persistent harassment from Martínez-Ortiz during work hours regarding his political
activism (Dkt No. 1, p. 4, ¶15), and (3) a denied vacation request, impeding his ability to run
for public office (Dkt No. 1, p. 5, ¶18). While it is true that our brother courts have found that
a denied vacation request does not constitute an adverse employment action 1, our analysis
must be specific to the facts at hand. Agosto-de-Feliciano, 889 F. 2d at 1218. The present
situation is distinct from other cases because the denied vacation request (1) did not happen in
1

See, e.g., Kaur v. New York City Health & Hosp. Corp., 688 F. Supp. 2d 317, 332, 2010 WL 64284 9S.D.N.Y.
2010); Murphy v. The McGraw–Hill Companies, Inc., No. 02–40136, 2003 WL 21788979, *4 (S.D.Iowa July 30,
2003)

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isolation, see Barton v. Clancy, 632 F.3d 9, 29–30 (1st Cir. 2009) (“a campaign of minor
harassments, including removing plaintiff's long distance phone line, denying requests for
vacation time, confining duties to paperwork, and not allowing her to change lunch hour, was
sufficient to support a First Amendment claim (citing Pieczynski v. Duffy, 875 F.2d 1331,
1335–36 (7th Cir. 1989)), and (2) has the effect of curtailing the exercise of a right superior to
and independent of a potential right to vacation time. Thus, the denied vacation request
carries considerable weight in assessing the plausibility of this political discrimination claim.
Taken in their totality, particularly the combined effects of pointed political harassment and
the denied vacation, the aforementioned actions are enough to plausibly claim an adverse
employment action occurred.
However, this finding only applies to Co-Defendant Martínez-Ortiz. Unlike MartínezOrtiz, claims against Estrada Figueroa stem from a single instance of inaction. See supra p. 12.
Furthermore, the pleadings do not suggest that Martínez-Ortiz’s decision was necessarily
outside the norm. See Dkt. No. 14, p. 9 n.4. Absent the context of other potentially
discriminatory allegations or room to infer inferior treatment, this single act is not sufficient to
meet the severity threshold for an adverse employment action, and the alleged facts do not
plausibly support this element of the claim. Thus, the political discrimination claim against
Liza Estrada Figueroa is DISMISSED. The remaining analysis in this section applies
exclusively to Martínez-Ortiz.
iii. Political Animus
Finally, this Court moves to consider whether political affiliation was a moving factor
in the adverse employment action. For pleading purposes, circumstantial evidence often
suffices to clarify “a protean issue such as an actor’s motive or intent.” Rodriguez-Reyes, 711

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F. 3d at 56 (quoting Anthony v. Sundlun, 952 F. 2d 603, 605 (1st Cir. 1991). Furthermore, the
plausibility threshold “simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of the illegal conduct.” Ocasio–Hernández, 640 F.3d at 17
(quoting Twombly, 550 U.S. at 556). Though the complaint presents no facts which evidenced
a direct causal link, Co-Defendant Martínez-Ortiz’s harassment did focus specifically on
Plaintiff’s political activity. Dkt. No. 1, p. 4, ¶¶14-15. In Rodriguez-Reyes, the First Circuit
also takes into consideration the timing of the alleged adverse action in assessing causation.
711 F. 3d at 56. In this case, within months of her trust appointment by the PDP as Regional
Director, Co-Defendant Martínez-Ortiz began making politically charged accusations against
Plaintiff. Dkt. No. 1, p. 4, ¶¶12-15. Additionally, the First Circuit looks to nondiscriminatory
explanations offered by nonmoving parties as a factor in its determination. Rodriguez-Reyes,
711 F. 3d at 57. With regard to the denied vacation request, Defendant cites concerns of a
drop in efficiency if Plaintiff were to be absent for several months. Dkt. No. 12, p. 8, ¶21.
However, the pleadings remain silent as to any nondiscriminatory reason for the politically
charged accusations and Plaintiff’s sudden exclusion from managerial meetings. Dkt. No. 1, p.
4, ¶13. Viewing the facts in their totality and in light most favorable to Plaintiff, the pleadings
provide sufficient grounds to meet the plausibility requirements of the fourth and final
element of the test.
In sum, this Court finds that Plaintiff has adequately pled a case for political
discrimination against Co-Defendant Martínez-Ortiz. Notwithstanding our findings, Plaintiff’s
complaint left the Court wanting. Moving forward, neither the boost of weak circumstantial
evidence nor mere plausibility will be enough to sustain this claim throughout the life of the
action. See Grajales, 682 F. 3d at 50. But for today, it will suffice.

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b. Supervisory Liability
Defendants also assert that Plaintiff has failed to make a claim of supervisory liability
against Co-Defendant Estrada Figueroa. There are several layers of rules governing
supervisory liability under Section 1983; in general, it is approached as a two-prong test. First,
“that one of the supervisor’s subordinates abridged the plaintiff’s constitutional rights.”
Guadalupe-Báez v. Pesquera, 819 F. 3d 509, 514-15 (1st Cir. 2016); see also Pineda v.
Toomey, 533 F. 3d 50, 54 (1st Cir. 2008). Second, “the [supervisor]’s action or inaction was
affirmative[ly] link[ed] to that behavior in the sense that it could be characterized as
supervisory encouragement, condonation, or acquiescence or gross negligence amounting to
deliberate indifference.” Id. (alterations in Original) (quoting Lipsett v. Univ. of P.R., 902 (1st
Cir. 1988)). The second element requires three additional considerations: (1) “that the
officials had knowledge of facts,” from which (2) “the official[s] can draw the inference,” and
(3) “that a substantial risk of serious harm exists.” Ramirez-Lluveras v. Rivera-Merced, 759 F.
3d 10, 20 (1st Cir. 2014) (internal citations omitted).
Finally, a plaintiff must establish a causal connection between the constitutional
violation and supervisory acts or omissions. Id. at 19. See also Feliciano-Hernandéz v.
Pereira-Castillo, 663 F. 3d 527 (1st Cir. 2011) (“[A] supervisor may not be held liable for the
constitutional violations committed by his or her subordinates, unless there is an affirmative
link between the behavior of a subordinate and the action or inaction of the supervisor . . .
such that the supervisor’s conduct led inexorably to the constitutional violation”) (quoting
Soto–Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)) (internal quotation marks
omitted). Such a link can be made by showing a “known history of widespread abuse

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sufficient to alert a supervisor to ongoing violations.” Gudalupe-Báez, 819 F. 3d at 515
(quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F. 3d 576, 582 (1st Cir. 1994)).
The First Circuit is quick to note that “isolated instances of unconstitutional activity
ordinarily are insufficient to establish a supervisor’s policy or custom, or otherwise to show
deliberate indifference” Id.; see also Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir. 1985)
(finding no supervisory liability despite police chief’s knowledge of complaint of brutality
because plaintiff failed to show a pattern which intimated approval of subordinates actions).
Considering these rules as applied to this case, Plaintiff’s supervisory liability claim
fails to reach the plausibility standard. As discussed above, Co-Defendant Estrada Figueroa’s
subordinate does indeed abridge Plaintiff’s constitutional rights—thus fulfilling the first prong
of the test described in Gudalupe-Báez. However, Plaintiff falls short of meeting the burdens
contained within the second prong of the test. The supervisory liability allegations against CoDefendant Estrada Figueroa hinge exclusively on the email received from José E. Ortiz
Torres. 2 The receipt of this email alone is not enough to plausibly lead Estrada Figueroa to
infer that there was a “substantial risk of serious harm to Plaintiff’s constitutional rights.”
Ramirez-Lluveras, 759 F. 3d at 20. Furthermore, Plaintiff’s supervisory liability claim also
falters when one considers the First Circuits warning that “isolated incidences of
unconstitutional activity are insufficient to support supervisory liability claims.” Maldonado,
23 F. 3d at 582. In this case, the pleadings make no attempt to cite to any pattern of abuse
within the CFSE. Cf. Guadalupe-Báez, 819 F. 3d at 516 (holding that the DOJ report on
PRPD patterns and practices of excessive force put the Superintendent on sufficient notice
such that one could infer he had assented to the offending conduct).

2

The Court notes that Plaintiff neither includes nor provides direct quotations from the email correspondence.

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Motion to dismiss claim of supervisory liability against Liza Estrada Figueroa,
GRANTED.
c. Qualified Immunity
Lastly, this Court now moves to consider whether Co-Defendant Martínez-Ortiz is
protected by qualified immunity. The qualified immunity doctrine offers public officials
complete immunity from suit. Maldonado v. Fontanes, 568 F. 3d 263, 268 (1st Cir. 2009)
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). In order to grant qualified immunity,
the First Circuit has clearly laid out a two-step process in which the court must engage:
The two-step procedure for assessing a plea of qualified immunity at
the motion to dismiss stage is well-rehearsed. See, e.g., Feliciano–Hernández
v. Pereira–Castillo, 663 F.3d 527, 532–33 (1st Cir.2011); Eldredge, 662 F.3d
at 104–05. On the basis of the pleadings, we must decide “(1) whether the
facts alleged or shown by the plaintiff make out a violation of a constitutional
right; and (2) if so, whether the right was ‘clearly established’ at the time of
the defendant's alleged violation.” Maldonado, 568 F.3d at 269 (quoting
Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 8 (1st Cir. 2013).Within the second
prong, the First Circuit requires two further considerations. First, whether “[t]he contours of
the right [were] sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Maldonado, 586 F. 3d at 269 (citing Anderson v. Creighton, 483
U.S. 635, 640 (1987)). The second consideration looks to the specific facts of the case and
asks whether a reasonable defendant would have understood that his conduct violated the
plaintiffs' constitutional rights.” Id. (citing Brosseau v. Hougan, 543 U.S. 194, 198 (2004)). In
short, the question is whether a reasonable official have had sufficient notice that his
particular actions were contrary to law. Id.
Looking to the first prong, the question is whether Plaintiff has presented facts to
make out a violation of a constitutional right. Plaintiff has alleged Martínez-Ortiz’s actions

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constituted political discrimination in violation of his First Amendment rights. As this Court
has previously discussed, Plaintiff has made sufficient factual pleadings to meet the
plausibility standard for a claim of political discrimination. See supra Section IV.A.
Next, we move to consider whether if at the time of the alleged violation, the right was
“clearly established.” A court must consider controlling authority, both in and out of circuit,
to determine whether a right is clearly established. Barton v. Clancy, 632 F. 3d 9, 21 (1st Cir.
2011) (citing Bergeron v. Cabral, 560 F.3d 1, 11-12 (1st Cir. 2009) (noting that “a plaintiff
need not show that the conduct of which he complains is an exact replica of conduct that
previously has been held unlawful.”)); see also El Dia, Inc. v. Rossello, 165 F.3d 106, 110 n.
3 (1st Cir. 1999) (declining to adopt “a hard-and-fast rule” that out-of-circuit precedent is
either determinative of or irrelevant to whether a law is clearly established, and instead stating
that whether precedent “clearly establishes” a law may depend in part upon “the location and
level of the precedent, its date, its persuasive force, and its level of factual similarity to the
facts before this Court”).
Under the First Amendment, government officials are prohibited from taking an
adverse employment action against a public employee because of the employee’s political
affiliation, unless political loyalty is a legitimate requirement for the position in question. See
Rutan, 497 at 75-76; Branti v. Finkel, 445 U.S. 507, 516-518 (1980); Elrod v. Burns, 427 U.S.
347, 372-73 (1976) (plurality opinion). Additionally, actions short of demotion or discharge
maybe qualify as adverse employment actions. See Rutan, 497 U.S. at 75 (“[p]romotions,
transfers, and recalls after layoffs based on political affiliation or support are an impermissible
infringement on the First Amendment rights of public employees.”); Rodriguez-Garcia, 610 F.
3d at 766-67 (holding that plaintiff’s transfer resulting in a significant reduction in

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employment activities constituted an adverse action). Even looking beyond the First Circuit,
others have also long prohibited the kind of actions alleged in this case:
[T]he principle that a campaign of petty harassments can violate the First
Amendment (unless de minimis) was clearly stated in Bart, and should have
placed these defendants on notice that false accusations and petty humiliations,
if orchestrated into a campaign of political retaliation, are actionable. See
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523
(1987); Kurowski v. Krajewski, supra, 848 F.2d at 773.
Pieczynski v. Duffy, 875 F. 2d 1331, 1336 (7th Cir. 1989).
In light of clear and lengthy legal precedent across circuits and at the Supreme Court
level, this Court finds that the right to freely associate with the political party of one’s
choosing without being subject to discriminatory treatment is a clearly established right.
Thus, Defendant’s qualified immunity defense is DENIED.
V. Conclusion
For the above state reasons, the Court orders the following with respect to the motion
to dismiss at Docket No. 12: (1) the motion to dismiss both direct and supervisory liability 42
U.S.C. § 1983 claims brought against Co-Defendant Estrada Figueroa is GRANTED and
dismissed with prejudice; (2) accordingly, pursuant to 28 U.S.C. § 1367, supplemental state
law claims against Estrada Figueroa are dismissed without prejudice and Plaintiff has leave
to refile his claims in local court; and (3) the motion to dismiss with respect to all claims
against Co-Defendant Martínez-Ortiz is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 15th day of July, 2016.
/s/Daniel R. Domínguez
DANIEL R. DOMÍNGUEZ
U.S. DISTRICT JUDGE
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