Rivera-Cuevas et al v. Municipality of Naranjito et al
Filing
110
OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment, as joined by all named co-defendants. (Docket Nos. 75 , 77 , 78 , 82 ). The Court hereby dismisses with prejudice all of Plaintiff Carl os Rivera-Cuevas First Amendment claims under § 1983. Within the next THIRTY (30) DAYS, Plaintiffs SHALL show cause why the Court should not decline to exercise supplemental jurisdiction and dismiss the Puerto Rico law claims without prejudice. Show Cause Response due by 3/4/2021. Signed by Judge Raul M. Arias-Marxuach on 2/2/2021. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CARLOS RIVERA CUEVAS, et al.
Plaintiffs
v.
CIVIL NO. 16-2732 (RAM)
MUNICIPALITY OF NARANJITO, et
al.
Defendants
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, U.S. District Judge
Pending before the Court is Defendants’ Memorandum of Law in
Support of Defendants’ Motion for Summary Judgment, accompanied by
a Statement of Uncontested Material Facts. (Docket Nos. 75 and
77).
For
the
reasons
discussed
below,
having
considered
the
parties’ submissions both in opposition and support of the same,
the Court hereby GRANTS in part and DENIES in part Defendants’
Motion for Summary Judgment. Accordingly, only Puerto Rico law
claims remain. Given that all federal claims have been dismissed,
Plaintiffs are ORDERED to show cause why the Court should not
decline to exercise supplemental jurisdiction and dismiss the
Puerto Rico law claims without prejudice.
Civil No. 16-2732 (RAM)
2
I.
PROCEDURAL BACKGROUND
On September 27, 2016, Plaintiffs Carlos Rivera-Cuevas, his
wife Sullynett Ocaña-Morales, and their conjugal partnership,
filed the present lawsuit alleging violations of the First, Fifth
and Fourteenth Amendments under 42 U.S.C. § 1983 as well as
violations
of
Puerto
Rico
law1
against
the
Municipality
of
Naranjito and the Municipality’s Mayor, Orlando Ortiz-Chevres;
Police Commissioner, Pedro Fuentes-Morales; Police Sergeant, Eddie
Cruz-Marcano; Human Resources Director, Solimar Hernández-Morales;
and the Mayor’s driver, Jesús Ramos-Rivera. (Docket No. 1). The
individuals
were
sued
in
both
their
official
and
personal
capacities, except for Jesús Ramos-Rivera, who was only sued in
his personal capacity. Id. ¶¶ 5-9.
In response, the individual co-defendants in their personal
capacity filed a Motion to Dismiss for Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No.
19). On their part, the Municipality of Naranjito, joined by the
individual
co-defendants
in
their
official
capacity,
filed
a
separate Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). (Docket
No. 21). Plaintiffs opposed both motions (Docket No. 28) and the
co-defendants filed individual replies (Docket Nos. 36 and 37).
1
Namely Sections
Rico, P.R. Const.
Laws Ann. tit. 29
Puerto Rico Civil
1, 4, 6 and 7 of Article II of the Constitution of Puerto
art. II, §§ 1, 4, 6-7; Law No. 115 of December 20, 1991, P.R.
§§194 et. seq (“Law 115”); and Articles 1802 and 1803 of the
Code, P.R. Laws Ann. tit. 31 §§ 5141, 5142.
Civil No. 16-2732 (RAM)
3
On September 30, 2017, the Court issued an Opinion and Order
granting in part and denying in part the motions to dismiss.
(Docket No. 43). Accordingly, only the following causes of action
remain before the Court: (1) Plaintiff Carlos Rivera-Cuevas’s
First Amendment claim under § 1983; (2) Plaintiffs’ Law 115 claims
against the Municipality of Naranjito and the individual codefendants in their official capacity; (3) Plaintiffs’ Article
1803 claims against the Municipality; and (4) Plaintiffs’ 1802
claims. Id.
Following the Court’s determination, Defendants filed their
corresponding answers to the Complaint. (Docket Nos. 48, 49, and
62).
Subsequently,
on
September
17,
2018,
co-defendants
the
Municipality of Naranjito, Orlando Ortiz-Chevres, Eddie CruzMarcano, Solimar Hernández-Morales and Pedro Fuentes-Morales, in
their official capacity, filed a Memorandum of Law in Support of
Defendants’
Motion
for
Summary
Judgment
and
an
accompanying
Statement of Uncontested Material Facts the following day. (Docket
Nos. 75 and 77).
Co-defendants
Orlando
Ortiz-Chevres,
Eddie
Cruz-Marcano,
Solimar Hernández-Morales and Pedro Fuentes-Morales, in their
official capacity, filed a Motion for Joinder seeking to join the
Motion for Summary Judgment and Docket No. 77 and adding an
argument regarding the qualified immunity doctrine. (Docket No.
Civil No. 16-2732 (RAM)
4
78). Co-defendant Jesús Ramos-Rivera also filed a Motion for
Joinder. (Docket No. 82).
On November 8, 2018, Plaintiffs filed their Response in
Opposition and Objections to Defendants Statement of Uncontested
Facts and Submission of their own Statement of Genuine Disputed
Material Facts and Response in Opposition to the Pending Motion
for Summary Judgment and Motions to Join. (Docket Nos. 91 and 92).
Both motions for joinder were ultimately granted by the Court.
(Docket No. 83 and 101).
The case at bar was transferred to the undersigned on June
13, 2019. (Docket No. 104).
II.
LEGAL STANDARD
A motion for summary judgment is governed by Fed. R. Civ. P.
56(a). Summary judgment is proper if the movant shows that (1)
there is no genuine dispute as to any material fact and (2) they
are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“A dispute is ‘genuine’ if the evidence about the fact is such
that a reasonable jury could resolve the point in favor of the
non-moving party.” Thompson v. Coca–Cola Co., 522 F.3d 168, 175
(1st
Cir.
2008).
A
fact
is
considered
material
if
it
“may
potentially ‘affect the outcome of the suit under governing law.’”
Albite v. Polytechnic Univ. of Puerto Rico, Inc., 5 F. Supp. 3d
191, 195 (D.P.R. 2014) (quoting Sands v. Ridefilm Corp., 212 F.3d
657, 660–661 (1st Cir. 2000)).
Civil No. 16-2732 (RAM)
5
The moving party has “the initial burden of demonstrat[ing]
the absence of a genuine issue of material fact with definite and
competent evidence.” Mercado-Reyes v. City of Angels, Inc., 320 F.
Supp. 344, at 347 (D.P.R. 2018) (quotation omitted). The burden
then shifts to the nonmovant, to present “competent evidence to
rebut the motion.” Bautista Cayman Asset Co. v. Terra II MC & P,
Inc., 2020 WL 118592, at 6* (quoting Méndez-Laboy v. Abbott Lab.,
424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party must show “that
a trialworthy issue persists.” Paul v. Murphy, 2020 WL 401129, at
*3 (1st Cir. 2020) (quotation omitted).
While a court will draw all reasonable inferences in favor of
the
non-movant,
it
will
disregard
conclusory
allegations,
unsupported speculation and improbable inferences. See Johnson v.
Duxbury,
Massachusetts,
931
F.3d
102,
105
(1st
Cir.
2019).
Moreover, the existence of “some alleged factual dispute between
the parties will not affect an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 379 (2007)
(quotation omitted). Hence, a court should review the record in
its entirety and refrain from making credibility determinations or
weighing the evidence. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 135 (2000).
In this District, summary judgment is also governed by Local
Rule 56. See L. CV. R. 56(c). Per this Rule, an opposing party
must “admit, deny or qualify the facts supporting the motion for
Civil No. 16-2732 (RAM)
6
summary judgment by reference to each numbered paragraph of the
moving party’s statement of material facts.” Id. Furthermore,
unless the fact is admitted, the opposing party must support each
denial or qualification with a record citation. Id.
Additionally, Local Rule 56(c) allows an opposing party to
submit additional facts “in a separate section.”
L. CV. R. 56(c).
Given that the plain language of Local Rule 56(c) specifically
requires that any additional facts be stated in a separate section,
parties are prohibited from incorporating numerous additional
facts within their opposition. See Natal Pérez v. Oriental Bank &
Trust, 291 F. Supp. 3d 215, 218-219 (D.P.R. 2018) (quoting Carreras
v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010) and
Malave–Torres v. Cusido, 919 F.Supp. 2d 198, 207 (D.P.R. 2013)).
If a party opposing summary judgment fails to comply with
the rigors that Local Rule 56(c) imposes, “a district court is
free, in the exercise of its sound discretion, to accept the moving
party's facts as stated.” Caban Hernandez v. Philip Morris USA,
Inc., 486 F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this
rule at their peril. See Natal Pérez, 291 F. Supp. 3d at 219
(citations omitted).
III. FINDINGS OF FACT
To make findings of fact, the Court analyzed Defendants’
Statement of Uncontested Material Facts in Support of their Summary
Judgment
Motion
(Docket
No.
77)
and
Plaintiffs’
Response
in
Civil No. 16-2732 (RAM)
7
Opposition and Objections to Defendants’ Statement of Uncontested
Facts and Submission of their Own statement of Genuine Disputed
Material Facts (Docket No. 91).
After
only
crediting
material
facts
that
are
properly
supported by a record citation and uncontroverted, the Court makes
the following findings of fact:2
A. The Naranjito Municipal Police Force
1.
Co-Defendant Orlando Ortiz-Chevres has been the Mayor of
the
Municipality
“Municipality”)
of
since
Naranjito
2009
(“Naranjito”
(henceforth
“Mayor
or
the
Ortiz”).
(Docket No. 77 ¶ 1).
2.
Co-Defendant
Solimar
Hernández-Morales
has
been
the
Municipality’s Human Resources Director since August 2012
(henceforth “HR Director Hernández”). (Docket Nos. 77 ¶ 2;
77-2 ¶¶ 2-3).
3.
Co-Defendant
Pedro
Fuentes-Morales
was
Naranjito’s
Municipal Police Commissioner from January 2013 until June
2018 (henceforth “Commissioner Fuentes”). (Docket No. 77 ¶
3).
4.
Co-Defendant Eddie Cruz-Marcano became a Sergeant in 2009
and has served as the Interim Municipal Police Commissioner
since June 2018 (henceforth “Sergeant Cruz”). Id. ¶ 4.
2
References to a specific Finding of Fact shall be cited in the following
manner: (Fact ¶ _).
Civil No. 16-2732 (RAM)
5.
8
The organizational structure of the Naranjito Municipal
Police Force consists of: (1) the Municipality’s Mayor as
the commander in chief; (2) followed by the Municipal
Police Commissioner; (3) then the sergeants; and lastly
(4) the municipal police officers (“MPO”).
Id. ¶¶ 10, 124.
B. Plaintiff Rivera’s Employment
6.
In 2011, Plaintiff Carlos Rivera-Cuevas (“Plaintiff” or
“Rivera”) applied for the position of Municipal Guard in
the police force of the Municipality. (Docket Nos. 77 ¶ 5;
89-1).
7.
MPO
Pedro
A.
investigation
Fuentes-Ortiz,
regarding
Badge
Plaintiff’s
103,
conducted
application,
an
which
included interviewing Plaintiff’s relatives and members of
his community. (Docket No. 77 ¶¶ 6, 8).
8.
MPO Pedro A. Fuentes-Ortiz was assigned the investigation
by the Municipal Police Commissioner at that time, Mr.
Ramón Vázquez-Báez. (Docket Nos. 77 ¶ 7; 89-1).
9.
Ultimately, MPO Pedro A. Fuentes-Ortiz made a favorable
recommendation as to Rivera’s application. (Docket Nos. 77
¶ 8; 89-1).
10.
On May 1, 2013, Rivera was appointed to the position of
MPO. (Docket No. 77 ¶ 9).
11.
Pursuant to the MPO Job Description, Plaintiff worked under
the supervision of the Municipal Police Commissioner or
Civil No. 16-2732 (RAM)
9
the person designated by the Commissioner. (Docket Nos. 77
¶ 11; 89-3).
12.
Accordingly,
Plaintiff
was
assigned
duties
by
his
supervisors, namely: co-defendants Commissioner Fuentes
and Sergeant Cruz. (Docket No. 77 ¶ 12).
13.
During
his
received
employment
awards
for
at
the
his
work
Municipality,
including
Plaintiff
an
official
recognition for his labor from Mayor Ortiz on September
14, 2015 and a pay raise effective July 1, 2016. (Docket
Nos. 77 ¶¶ 40 and 42; 89-13).
14.
According to Rivera’s personnel file, he was not subject
to
any
disciplinary
or
remedial
actions
during
his
employment at the Municipality. (Docket No. 77 ¶ 41).
15.
Plaintiff was not disciplined, demoted, suspended or fired
while he served as an MPO in Naranjito. Id. ¶ 43.
16.
Rivera’s salary was not withheld at any time during his
employment. Id. ¶ 39.
17.
On
June
27,
certification
2016,
stating
HR
Director
that
Hernández
Plaintiff’s
issued
personnel
a
file
“contains no evidence of reports, memos, administrative
investigations or personnel actions against him.” (Docket
No. 89-12 at 1).
18.
Plaintiff received a pay raise effective July 1, 2016.
(Docket Nos. 77 ¶ 40; 89-13).
Civil No. 16-2732 (RAM)
19.
On
October
27,
10
2016,
HR
Director
Hernández
issued
a
certification stating that in Plaintiff’s personnel file
“there is no evidence of administrative investigations
against the same nor have any disciplinary actions been
taken against said employee.” (Docket No. 88-12 at 2).
C. Rivera’s Political Affiliation
20.
Prior to being hired by the Municipality, Rivera attended
New Progressive Party (“NPP”) meetings where he saw codefendants
HR
Director
Hernández,
Sergeant
Cruz
and
Commissioner Fuentes. (Docket No. 91-1 at 280-281).
21.
Rivera assumes that Mayor Ortiz, HR Director Hernandez,
Sergeant Cruz and Commissioner Fuentes knew that he was an
active member of the Popular Democratic Party (“PDP”)
because there were photos on Facebook of him participating
in PDP campaign events. (Docket Nos. 77 ¶¶ 77-78; 91-1 at
38-39).
22.
Specifically, there exist photos of Rivera campaigning with
PDP candidates Jordán Rodríguez, who was running for mayor
of Naranjito, and Manuel Natal. (Docket No. 91-1 at 39-41,
58).
23.
Rivera also had photos with Anibal Acevedo Vilá and David
Bernier, leaders of the PDP. (Docket No. 91-1 at 57-58).
Civil No. 16-2732 (RAM)
24.
11
Plaintiff does not remember how many photographs he was
in, how many were published, nor when the photographs were
published. (Docket Nos. 77 ¶ 79; 91-1 at 40-41).
25.
Although Rivera does not remember being friends on Facebook
with any of the co-defendants, his page was not private
and thus accessible. (Docket Nos. 77 ¶ 80; 91 ¶ 249; 91-1
at 57).
26.
No
one
told
Plaintiff
that
Mayor
Ortiz,
HR
Director
Hernández, Commissioner Fuentes, or Sergeant Cruz were
investigating him regarding being a member of the PDP.
(Docket No. 77 ¶¶ 81-84).
27.
Plaintiff testified that politics were discussed at the
workplace. (Docket Nos. 91 ¶ 278; 91-1 at 116-117).
28.
Rivera testified that he was not threatened nor approached
in a violent matter regarding his political affiliation by
Mayor Ortiz, HR Director Hernández, Commissioner Fuentes
or Sergeant Cruz. (Docket Nos. 77 ¶ 115; 91-1 at 93-94).
D. Rivera’s Transfer Request to the Municipality of San Juan
29.
On July 28, 2015, Plaintiff sent a letter to the Mayor of
the Municipality of San Juan, Carmen Yulin-Cruz, expressing
his interest in joining the San Juan Municipal Police
force. (Docket No. 99-5).
Civil No. 16-2732 (RAM)
30.
12
Plaintiff did not provide the Municipality with a copy of
this letter expressing his interest in a transfer. (Docket
No. 77 ¶ 45).
31.
Plaintiff does not know what process the Municipality of
San Juan implemented after receiving his application. Id.
¶ 56.
32.
Plaintiff does not remember the year or the month when he
talked to the Sergeant in charge of the investigation
process in the Municipality of San Juan. Id. ¶ 67.
33.
There
is
no
Municipality
evidence
of
San
of
Juan
communications
and
between
Naranjito
the
regarding
Plaintiff’s transfer request. (Docket Nos. 77 ¶ 54; 89-6).
34.
Plaintiff does not know if the Municipality of San Juan
sent a communication to Naranjito regarding his application
nor has he seen any communication to that effect. (Docket
No. 77 ¶¶ 55, 57, 58).
35.
Rivera did not attend or request any orientation by the
Municipality’s
Human
Resources
Office
regarding
the
transfer process or his transfer request. Id. ¶ 59.
36.
Instead, Plaintiff only consulted another MPO who had
worked in Naranjito regarding the transfer process. Id. ¶
60.
37.
Plaintiff does not know when Mayor Ortiz, HR Director
Hernandez or Commissioner Fuentes learned that he was
Civil No. 16-2732 (RAM)
13
interested in transferring to the Municipality of San Juan.
Id. ¶¶ 74-76.
38.
Plaintiff did not talk about his interest in transferring
to the Municipality of San Juan with Mayor Ortiz nor with
HR Director Hernández but did discuss his interest with
Sergeant Cruz. (Docket Nos. 77 ¶¶ 61-62; 91-1 at 30).
39.
Mayor Ortiz never received a formal request for a transfer
from
the
Municipality
of
San
Juan
or
from
Plaintiff.
(Docket No. 77 ¶ 46).
40.
Plaintiff does not know whether Mayor Ortiz, HR Director
Hernández, Sergeant Cruz nor Commissioner Fuentes made any
negative comments about him during the Municipality of San
Juan’s
investigation
regarding
Plaintiff’s
transfer
request. Id. ¶¶ 63-66.
41.
Plaintiff does not know if someone from the Municipality
of San Juan interviewed Commissioner Fuentes, Sergeant
Cruz, Mayor Ortiz, or HR Director Hernández regarding his
transfer application. Id. ¶¶ 70-73.
42.
Neither Commissioner Fuentes, Sergeant Cruz, Mayor Ortiz,
nor
HR
Director
interviewed
on
Hernández
September
are
25,
listed
2015
as
as
having
part
of
been
the
Municipality of San Juan’s Hiring Process for Plaintiff.
(Docket No.
99-3).
Civil No. 16-2732 (RAM)
43.
14
Mayor Ortiz did not take any action regarding Plaintiff’s
application to the Municipality of San Juan. (Docket Nos.
77 ¶ 47; 77-1 ¶ 16; 91-6 ¶ 3).
44.
On November 25, 2015, Inspector Edwin Negron Pedroza of
the Municipality of San Juan’s Field Operations Bureau sent
a letter to Police Commissioner Guillermo Calixto Rodriguez
stating: “After analyzing and corroborating the captioned
investigative
file
of
Mr.
Carlos
X.
Rivera
Cuevas,
candidate for transfer to the San Juan Municipal Police,
we
recommend
that
same
[sic]
may
continue
with
the
admission process as a transfer.” (Docket Nos. 91 ¶ 376;
99-2).
45.
Plaintiff does not know when the Municipality of San Juan’s
investigation
regarding
his
transfer
request
ended.
(Docket No. 77 ¶ 69).
46.
Rivera did not hear back regarding his transfer request to
the Municipality of San Juan. (Docket No. 91 at 294).
47. Plaintiff testified that he does not have any proof that
Mayor Ortiz intervened with his request to transfer to the
Municipality of San Juan. (Docket No. 77 ¶ 202).
E. Other MPO Transfers
48.
MPO
Michael
Cotto-Ferrer
(“MPO
Cotto”)
worked
in
the
Naranjito Municipal Police and requested a transfer to the
Municipality of Guaynabo. (Docket Nos. 77 ¶ 85; 89-7).
Civil No. 16-2732 (RAM)
49.
15
On January 15, 2016, the Municipality of Guaynabo sent a
letter to the Municipality of Naranjito, via HR Director
Hernández, informing them that they selected MPO Cotto for
a transfer. (Docket Nos. 77 ¶ 89; 89-7 at 1).
50.
On February 1, 2016, Mayor Ortiz sent a letter in response
authorizing the transfer effective March 1, 2016. (Docket
Nos. 77 ¶ 89; 89-7 at 2).
51.
Plaintiff
does
not
know
when
MPO
Cotto
presented
his
transfer request, when he was ultimately transferred, nor
how
much
time
transpired
between
the
request
and
the
transfer. (Docket No. 77 ¶¶ 86-88).
52.
Plaintiff is aware that MPO Frances Rivera was transferred
to the Municipality of Caguas but does not know how much
time
transpired
between
her
transfer
request
and
the
subsequent transfer. Id. ¶¶ 90-91.
53.
On September 1, 2015, the Municipality of Caguas sent a
letter to Mayor Ortiz requesting MPO Frances Rivera’s
transfer. (Docket Nos. 77 ¶ 92; 89-8 at 1).
54.
On September 15, 2015, MPO Frances Rivera sent a letter to
Mayor
Ortiz
authorization
and
of
Commissioner
her
transfer
Fuentes
to
the
requesting
Municipality
the
of
Caguas. (Docket No. 89-8 at 2).
55.
On October 13, 2015, Mayor Ortiz responded to MPO Frances
Rivera’s letter informing her that her request for transfer
Civil No. 16-2732 (RAM)
16
to the Municipality of Caguas had been approved and the
transfer would be effective November 1, 2015. (Docket Nos.
77 ¶ 92; 89-8 at 3).
56.
William Miranda Marin, a member of the PDP party, has been
the Mayor of the Municipality of Caguas since 2010. (Docket
No. 77 ¶ 93).
57.
Plaintiff
was
aware
that
MPO
Christian
Vargas
was
transferred to the Municipality of Comerío. Id. ¶ 94.
58.
José A. Santiago, a member of the PDP party, has been the
mayor of the Municipality of Comerío since 2000. Id. ¶ 95.
F. September 4, 2015 Autoexpresso Fine Incident
59.
On
September
4,
2015
a
meeting
with
other
MPOs,
Commissioner Fuentes stated in front of those present that
Plaintiff had received an Autoexpresso administrative fine
while on duty and that Plaintiff would have to pay for the
fine out of his own pocket. (Docket Nos. 77 ¶ 136; 91-1 at
150-152; 99-4).
60.
The fine had been caused by the police vehicle having
insufficient
funds
in
its
corresponding
Autoexpresso
account. (Docket Nos. 91 ¶ 292; 99-4).
61.
After the meeting, no one asked Plaintiff to pay the fine
and
no
disciplinary
or
corrective
actions
against Plaintiff. (Docket No. 77 ¶ 139).
were
taken
Civil No. 16-2732 (RAM)
62.
17
Mayor Ortiz was not aware of the fine or any incident
related to Autoexpresso and Plaintiff. Id. ¶ 140.
G. The November 6, 2015 incident with Jesús Ramos-Rivera
63.
Co-defendant
Jesús
Ramos-Rivera
(“Ramos”)
was
Mayor
Ortiz’s driver. Id. ¶ 97.
64.
On
November
6,
2015,
Ramos
confronted
Rivera
in
the
Naranjito public square while he was working and walking
to his patrol car. Ramos called Plaintiff an expletive
related
to
his
political
affiliation,
specifically
a
“cabrón Popular,” while putting his finger in Rivera’s
face. (Docket Nos. 91 ¶ 251; 91-1 at 61, 66-67; 99-6).
65.
Prior to this incident, Ramos had sent Plaintiff a message
via WhatsApp asking why he was liking or commenting on
certain PDP Facebook pages. (Docket Nos. 91 ¶ 248; 91-1 at
56-57 and 64).
66.
Plaintiff does not have any evidence that Ramos was acting
on behalf of the NPP. (Docket Nos. 77 ¶ 114; 91-1 at 8788).
67.
Plaintiff told Sergeant Cruz about the incident and that
Ramos had disrespected him. Plaintiff did not tell Sergeant
Cruz that Ramos had used vulgar words nor aggression.
(Docket Nos. 77 ¶ 105; 77-4 ¶ 11).
Civil No. 16-2732 (RAM)
68.
18
Plaintiff does not remember everything he told Sergeant
Cruz about the incident. (Docket Nos. 77 ¶ 106; 91-1 at
74-75).
69.
Sergeant Cruz told Plaintiff that, if he wanted to, he
should
file
an
incident
report
with
the
state
police
because Sergeant Cruz had a conflict of interest and could
not investigate the incident. (Docket No. 77 ¶ 111).
70.
Plaintiff also approached Commissioner Fuentes to inform
him that Ramos had assaulted him and that he was going to
denounce him. Id. ¶ 101.
71.
Commissioner Fuentes told Plaintiff that the proper forum
to do so was the state police. Id.
72.
Plaintiff filed a criminal complaint with the Puerto Rico
Police Department (“PRPD”) the same day of the incident,
i.e. November 6, 2015. Id. ¶ 98.
73.
The Puerto Rico Police Incident report states that the
offense Rivera allegedly committed was conduct against
public morality. (Docket Nos. 91-14; 99-6)
74.
Plaintiff did not file a complaint against Ramos in the
Municipality’s Human Resources Office. (Docket No. 77 ¶
109).
75.
Plaintiff did not give the Municipality a copy of the
criminal complaint he filed with the PRPD against Ramos.
Id. ¶ 112.
Civil No. 16-2732 (RAM)
76.
19
Plaintiff does not know when Mayor Ortiz or HR Director
Hernández became aware of the incident with Ramos. Id. ¶
113.
77.
Ramos had previously applied for and received a special
permit to carry weapons under Puerto Rico’s firearms law.
Id. ¶ 96.
78.
After the November 6th incident, Mayor Ortiz agreed with
Commissioner Fuentes’ recommendation to relieve Ramos of
the possession of the firearm, since it belonged to the
Municipality. Id. ¶ 99.
79.
Ramos was disarmed as part of the PRPD investigation. Id.
¶ 103.
80.
The Court of First Instance ordered the PRPD to seize
Ramos’ weapon. Id. 102.
81.
Because the weapon was Municipal property, the firearm was
turned over to Commissioner Fuentes. Commissioner Fuentes
put the weapon in a safe box, where it has remained. Id. ¶
104.
82.
Ramos was not reissued a new firearm after the incident.
Id. ¶ 100.
83.
Rivera testified that Commissioner Fuentes told him that
the criminal complaint against Ramos affected the Mayor’s
image and there would be “a lot of consequences” if he did
Civil No. 16-2732 (RAM)
20
not remove his police report against Ramos. (Docket No.
91-1 at 90, 136-138).
84.
Plaintiff understood this to mean that he would lose his
job or something bad would happen to him. Id. At 90.
85.
Rivera continued the case against Ramos and did not receive
any disciplinary nor corrective actions from Mayor Ortiz,
Commissioner Fuentes or anyone else. (Docket Nos. 91-1 at
131-133; 77 ¶¶ 39, 41)
86.
Ramos was found guilty of a misdemeanor (disturbing the
peace) following Plaintiff’s criminal complaint against
him. (Docket No. 91 ¶¶ 268, 387).
H. November 17, 2015 Incident Regarding Unnotified Absence
87.
On November 17, 2015, Sergeant Cruz wrote a memorandum to
Commissioner Fuentes informing him that Plaintiff did not
show up for his scheduled duty on November 13, 2015, and
did not notify his absence, in violation of Section 4,
Subsection 4(v) of the Municipal Police Regulation. (Docket
Nos. 77 ¶ 126; 89-9).
88.
Sergeant
Cruz
had
previously
verified
the
service
entry/exit book and found that Plaintiff had not shown for
duty on November 13, 2015. (Docket No. 77 ¶ 128).
89.
Upon further revision, it was confirmed that Plaintiff had
been at the Bayamon district attorney’s office that day in
an official capacity for eight (8) hours, but had failed
Civil No. 16-2732 (RAM)
21
to inform his superiors and MPOs on duty that he would be
absent from his scheduled shift, creating a logistical
problem for the police force. Id. ¶¶ 129-130.
90.
A
further
investigation
was
not
conducted,
and
no
disciplinary action was taken against Plaintiff. Id. ¶ 131.
91.
Article 9 of the Municipal Police Regulation controls the
use and accumulation of compensatory time. Id. 133.
92.
The main factor considered when authorizing compensatory
time is the municipal police force’s service needs. Id. ¶
134.
93.
Mayor Ortiz is not involved with the authorization of
compensatory time to MPOs. Id. ¶ 135.
I.
Letters from HR Requesting Attendance Records
94.
HR Director Hernández sent Plaintiffs three (3) letters
dated April 8, 2014, November 10, 2014 and May 24, 2016,
requesting that Plaintiff submit evidence of his attendance
at the Police Academy for the period from March 2012 to
September 2013. (Docket Nos. 77 ¶ 142; 89-11).
95.
The letter dated April 8, 2014 informed Plaintiff that if
the attendance records were not provided on or before May
15,
2014,
“the
bimonthly
(Docket No. 89-11 at 1).
payment
would
not
be
made.”
Civil No. 16-2732 (RAM)
96.
22
The letter dated November 10, 2014 informed Plaintiff that
if he did not provide the missing attendance sheets by
November 30, 2014 his “fortnight payment shall not be
made.” Id. At 3.
97.
Both the April 8, 2014 and the November 10, 2014 letters
also requested that Rivera provide the birth certificate
for his son to approve the paternity leave he claimed from
June 26 through July 1, 2013. Id. At 1-3.
98.
The November 10, 2014 letter cautioned that if Rivera did
not provide his son’s birth certificate, the days requested
for paternity leave would be deducted as regular vacation
leave. Id. At 3.
99.
The May 24, 2016 letter was received on June 2, 2016 and
required that Rivera provide the requested information by
July 15, 2016. (Docket No. 77 ¶ 141).
100. Plaintiff was notified that his failure to provide the
attendance sheets would result in his bimonthly payment
being withheld. (Docket No. 89-11 at 4).
101. Neither Mayor Ortiz, Commissioner Fuentes nor Sergeant Cruz
participated in the Human Resources letters requesting
Rivera’s police academy attendance records. (Docket Nos.
77 ¶ 143; 77-1 ¶ 18).
Civil No. 16-2732 (RAM)
23
J. Incident with MPO John Redding
102. While on duty, Plaintiff had an incident with MPO John
Redding (“MPO Redding”). In front of other officers, MPO
Redding mentioned Plaintiff’s previous incident with Jesús
Ramos. Plaintiff testified that he asked MPO Redding to
not discuss it and that MPO Redding told Plaintiff not to
talk to him like that and stated he would do something
violent against him. (Docket No. 91-1 at 224-225).
103. The state police investigated the incident and disarmed
both Plaintiff and MPO Redding. (Docket No. 77 ¶ 149).
104. The
Municipality
investigated
the
incident
with
John
Redding. (Docket No. 91 ¶ 388).
105. Commissioner Fuentes became aware of the incident through
the state police. Further, he went to the state police
station to collect the officers’ firearms and store them
in a safe box. (Docket No. 77 ¶¶ 154-155).
106. HR Director Hernández became aware of the incident when
Plaintiff and MPO Redding visited her office and informed
her. Id. ¶ 146.
107. Commissioner Fuentes filed a standard form requesting that
both
Plaintiff
and
MPO
Redding
be
evaluated
by
a
psychologist. Id. ¶ 151.
108. Upon the commissioner’s request, both MPOs were referred
to
Mrs.
Lisa
Rosado,
the
person
in
charge
of
the
Civil No. 16-2732 (RAM)
municipality’s
24
assistance
program,
for
a
psychological
evaluation. (Docket Nos. 77 ¶¶ 150, 152; 77-2 ¶ 11).
109. The
psychologist
issued
a
positive
report
as
to
both
officers and recommended that their firearms be returned.
(Docket No. 77 ¶ 153).
110. Plaintiff and MPO Redding provided the report to Human
Resources, which in turn informed Commissioner Fuentes of
the results and recommendation therein. Id.
111. Upon the completion of the investigation and psychological
evaluation, the firearms were returned to both MPOs. Id. ¶
156.
K. Miscellaneous Undated Workplace Incidents
112. The MPO Job Description requires police officers to conduct
guard duty during the night and early in the morning.
(Docket Nos. 77 ¶ 117; 89-3 at 1).
113. Shifts are assigned by sergeants and the Municipal Police
Commissioner, not by the Human Resources Director. (Docket
No. 77 ¶ 123).
114. Pursuant to an order from Commissioner Fuentes, Plaintiff
was assigned to a special shift from 12:00 a.m. to 8:00
a.m. with another officer, MPO Leo Díaz. Plaintiff does
not remember the days, months or years of this shift
assignment nor why the shift was created. Id. ¶ 118.
Civil No. 16-2732 (RAM)
25
115. In this special shift, Plaintiff conducted the same duties
as in other shifts, specifically patrolling the streets.
Id. ¶ 119.
116. Plaintiff requested that he be removed from the special
shift. This request was granted, and Plaintiff returned to
his regular shift of 4:00 p.m. to 12:00 a.m. Id. ¶ 120.
117. Plaintiff does not remember the days, months or years of
this shift assignment nor why the shift was created. Id.
¶¶ 116, 118.
118. Plaintiff does not know if this shift continued after he
was removed from it. Id. ¶ 122.
119. Plaintiff testified that only on one occasion Sergeant Cruz
required Plaintiff to come to work or provide a medical
certificate after sending a text message stating that he
was sick. (Docket No. 77 ¶¶ 164, 166).
120. Plaintiff does not remember the date, month, or year when
this happened. Id. ¶ 165.
121. Plaintiff went to work that day and stayed working although
Sergeant Cruz subsequently told him to take the day off.
Id. ¶ 167.
122. Plaintiff testified that he did not have knowledge if other
MPOs were allowed to call in sick without submitting a
medical certificate. Id. ¶¶ 168-169.
Civil No. 16-2732 (RAM)
26
123. Plaintiff testified that he does not remember any other
instance where he was sick and required to go to work or
required to provide a medical certificate. Id. ¶¶ 170-171.
124. The Municipal Police Officer Job Description states that
“[t]he
work
environment
in
which
employees
must
act
involves constant exposure to risks or fatal accident, thus
requiring knowledge and due diligence in following detailed
safety
precautions,
with
continuous
exposure
in
work
areas.” (Docket No. 77 ¶ 177; 89-3 at 1).
125. During the Christmas season of an unspecified year, State
Police reported via the Police Department’s radio that
there was a group of heavily armed individuals and that
they needed backup. Sergeant Cruz ordered Plaintiff to
approach the area. (Docket No. 91-1 at 196-199).
126. Plaintiff testified that Sergeant Cruz instructed him to
talk with State Police and to go with them in a patrol.
Plaintiff
was
then
joined
by
another
police
officer.
(Docket Nos. 77 ¶ 174; 91-1 at 200-202).
127. Plaintiff does not remember if he went to the area where
the there was a group of heavily armed individuals or
whether the plan was called off. (Docket No. 91-1 at 203).
128. Plaintiff testified that after arresting an individual with
an AK-47 weapon, he was going to obtain a warrant for his
house and confiscate other weapons and needed more officers
Civil No. 16-2732 (RAM)
27
to join him and Sergeant Cruz suggested he find other
officers to go with him. Id. At 206-207.
129. Plaintiff testified that he was required to take weapons
to the San Juan General Police Headquarters without a
partner or backup. Plaintiff believes that he risked his
life doing so because he “could’ve been intercepted by
other thieves.” (Docket Nos. 77 ¶ 176; 91-1 at 212-214).
130. Plaintiff testified that he did not remember an instance
stated in the Complaint where he allegedly arrested a
citizen and was left alone with the person in custody.
(Docket Nos. 77 ¶ 178; 91-1 at 242).
131. Plaintiff
never
heard
either
Commissioner
Fuentes
or
Sergeant Cruz instruct other officers not to assist him in
his functions. (Docket No. 77 ¶¶ 179-180).
132. Plaintiff testified that approximately three (3) of the
thirteen (13) police cars were new but he was not assigned
to drive one of the new police cars. However, he would
drive the new cars during his night shift if Sergeant Cruz
and Commissioner Fuentes were not there. (Docket Nos. 77 ¶
181, 91-1 at 218-220).
133. Plaintiff testified that Commissioner Fuentes and Sergeant
Cruz would give him directions through third parties and
that
it
was
misleading.
However,
Plaintiff
further
Civil No. 16-2732 (RAM)
testified
that
28
other
MPOs
also
received
instructions
through third parties. (Docket No. 77 ¶¶ 182-183).
134. Rivera testified that he was no longer assigned to be
“Officer in Charge,” i.e. shift supervisor, of other MPOs.
(Docket No. 91-1 at 110).
135. The MPO job description, which applied to Plaintiff, does
not include any supervisory functions. (Docket No. 77 ¶
125).
136. The Naranjito Police Department gives an award each year
to the officer with the most arrests. Plaintiff testified
that he was not given the award but that he does not know
how many arrests the winner, MPO Eduardo Colón, made nor
how many arrests other fellow officers made. (Docket Nos.
91 ¶ 314; 91-1 at 249-252).
137. On an unspecified date, Plaintiff lost his keys, and did
not remember where he placed them. Plaintiff testified that
he believes MPO Leonardo Díaz took them, but he has no
evidence. (Docket No. 77 ¶¶ 187-188, 190).
138. Neither Commissioner Fuentes nor Sergeant Cruz were present
on the shift where Plaintiff lost his keys. Id. ¶ 189.
139. Plaintiff does not remember who found the keys. Id. ¶ 191.
140. Plaintiff testified that he does not have proof that anyone
in the Municipality violated the confidentiality of his
psychological evaluation. Id. ¶ 200.
Civil No. 16-2732 (RAM)
29
141. Plaintiff testified that he does not have any proof that
Mayor Ortiz delivered any instructions to other MPOs in
the Municipality to alter the functions of his employment.
Id. ¶ 201.
L. Rivera’s Resignation
142. On
January
25,
2017,
Plaintiff
sent
a
letter
to
Commissioner Fuentes informing his intention of resigning.
Id. ¶ 13.
143. In his January 25, 2017 letter, Plaintiff stated that
during
his
five
years
working
in
the
municipality
he
learned a lot from all of his colleagues, but that he was
searching for new work opportunities. (Docket Nos. 77 ¶
14; 89-14).
144. On January 25, 2017, Plaintiff also sent a letter to Mayor
Ortiz resigning from his position in the Municipality,
effective February 1, 2017. (Docket No. 77 ¶ 15).
145. In his letter to Mayor Ortiz, Plaintiff stated:
I have reached this decision in view of the fact that
I found a better job offer for my professional career
in criminal justice, a field in which I can grow and
gain more experience. I am grateful for the
opportunity given to me to work in the communities of
our city of Naranjito.
(Docket Nos. 77 ¶ 16; 89-4).
146. Mayor Ortiz accepted Plaintiff’s resignation in a letter
dated January 30, 2017. (Docket Nos. 77 ¶ 17; 89-5).
Civil No. 16-2732 (RAM)
147. Plaintiff
applied
30
to
the
Baltimore
Police
Department.
(Docket No. 91 ¶ 319).
IV.
DISCUSSION
1. Federal Law Claims
A. Section 1983 in General
Section 1983 does not create substantive rights. See 42
U.S.C.A. § 1983. Instead, it “is only a procedural vehicle to
vindicate constitutional and other federal statutory violations
brought about by state actors.” Pagan-Garcia v. Rodriguez, 2015 WL
5084640, at *5 (D.P.R. 2015). To prevail in a Section 1983 claim,
a
plaintiff
“must
allege
facts
sufficient
to
support
a
determination (i) that the conduct complained of has been committed
under color of state law, and (ii) that [the alleged] conduct
worked a denial of rights secured by the Constitution or laws of
the United States.” Cepero–Rivera v. Fagundo, 414 F.3d 124, 129
(1st Cir. 2005) (internal quotations omitted). In this context, a
state
employee
acts
“under
color
of
state
law
when,
while
performing in his official capacity or exercising his official
responsibilities, he abuses the position given to him by the
State.”
West v. Atkins, 487 U.S. 42, 49 (1988).
Additionally,
a
§
1983
plaintiff
is
also
“required
to
plausibly establish the link between each particular defendant and
the alleged violation of federal rights.” Torres Lopez v. GarciaPadilla, 209 F. Supp. 3d 448, 454–55 (D.P.R. 2016) (citation
Civil No. 16-2732 (RAM)
31
omitted) (emphasis added). This can be achieved by showing any
“personal action or inaction [by defendants] within the scope of
[their]
responsibilities
answerable
in
damages
that
under
would
make
Section
[them]
1983.”
Id.
personally
(quotation
omitted). “[W]hile plaintiffs are not held to higher pleading
standards in § 1983 actions, they must plead enough for a necessary
inference to be reasonably drawn.” Montañez v. State Ins. Fund, 91
F. Supp. 3d 291, 297 (D.P.R. 2015) (quotation omitted).
B. Political Discrimination under the First Amendment
The First Amendment protects the rights of individuals to
freely
associate
with
others
“for
the
common
advancement
of
political beliefs and ideas.” Ramirez-Nieves v. Municipality of
Canovanas,
2017
WL
1034689,
at
*7
(D.P.R.
2017)
(quotation
omitted). As a corollary to this protection, the First Amendment
prohibits government officials from “taking adverse action against
public employees on the basis of political affiliation, unless
political loyalty is an appropriate requirement of employment.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011)
(citing Rutan v. Republican Party of Ill., 497 U.S. 62, 75–76
(1990). See also Medina-Velazquez v. Hernandez-Gregorat, 2015 WL
6829150, *3 (D.P.R. 2015) (“The First Amendment protects nonpolicymaking public employees from adverse employment action due
to political affiliation.”).
Civil No. 16-2732 (RAM)
32
A prima facie political discrimination claim under the First
Amendment requires evincing four elements: “(1) that the plaintiff
and defendant have opposing political affiliations, (2) that the
defendant is aware of the plaintiff's affiliation, (3) that an
adverse
employment
action
occurred,
and
(4)
that
political
affiliation was a substantial or motivating factor for the adverse
employment action.” Reyes-Orta v. Puerto Rico Highway & Transp.
Auth., 811 F.3d 67, 73 (1st Cir. 2016) (quoting Ocasio-Hernandez,
640 F.3d at 13)). To establish that political affiliation was a
substantial or motiving factor, the “plaintiff must make a factspecific showing that a causal connection exists between the
adverse treatment and the plaintiff's political affiliation.”
Aviles-Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992). In other
words, “[t]he plaintiff must point ‘to evidence on the record
which, if credited, would permit a rational fact finder to conclude
that the challenged personnel action occurred and stemmed from a
politically based discriminatory animus.’” Gonzalez-De-Blasini v.
Family Dep't, 377 F.3d 81, 85 (1st Cir. 2004) (quoting LaRou v.
Ridlon, 98 F.3d 659, 661 (1st Cir. 1996).
If the plaintiff successfully shows all four prongs of the
prima
facie
case,
the
burden
“shifts
to
the
defendant
to
articulate a non-discriminatory ground for the adverse employment
action and to establish, by a preponderance of the evidence, that
the same action would have been taken regardless of the plaintiff's
Civil No. 16-2732 (RAM)
political
beliefs.”
33
Medina-Velazquez,
2015
WL
6829150,
at
*3
(citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)). If defendants make this showing, the
plaintiff may counter defendant's proffered non-discriminatory
motivation by providing evidence to show that “discrimination was
more likely than not a motivating factor.” Id. (citing PadillaGarcía v. Rodríguez, 212 F.3d 69, 77 (1st Cir. 2000)).
C. Plaintiff has not established a prima facie case of
political discrimination
Defendants do not contest that that the first element of the
prima
facie
case,
distinct
political
affiliations
between
plaintiffs and defendants, is met. Rivera testified regarding his
own political affiliation and that he learned of co-defendants HR
Director Hernández, Commissioner Fuentes, and Sergeant Cruz’s
political affiliation by seeing them at NPP meetings on various
occasions. (Fact ¶ 20). The Court can also take judicial notice
that Mayor Ortiz is an elected official of the NPP.3 See Fed. R.
Evid. 201(b)(2).
Co-defendants
Mayor
Ortiz,
HR
Director
Hernández,
Commissioner Fuentes, and Sergeant Cruz maintain that they were
not aware of Rivera’s PDP affiliation. (Docket No. 77 ¶¶ 18-38).
3
See Puerto Rico State Commission on Elections, 2008 General Election Results,
Mayor Results by Municipality, http://209.68.12.238/elecciones2008/CEE_Events/
ELECCIONES_GENERALES_2008_4/ESCRUTINIO_GENERAL_8/default.html (last updated on
June 15, 2009). As stated above, Mayor Ortiz has served as the mayor Naranjito
since 2009. (Fact ¶ 1).
Civil No. 16-2732 (RAM)
34
To controvert this fact, Rivera testified that these co-defendants
would have known his political affiliation because he was an active
member of the PDP and there were photos of him participating in
various
PDP
campaign
events.
(Facts
¶¶
21-23).
“Generally,
conclusory allegations that one’s political association is wellknown
will
not
meet
a
plaintiff’s
burden
of
showing
that
a
defendant had knowledge of [their] political affiliation.” Avilés
v. Figueroa, 195 F. Supp. 3d 435, 445 (D.P.R. 2016). See also
Gonzalez-De-Blasini,
377
F.3d
at
85.
However,
following
the
November 6, 2015 incident where Ramos publicly made disparaging
remarks towards Plaintiff for being a member of the PDP, there is
sufficient circumstantial evidence that co-defendants Mayor Ortiz,
HR Director Hernández, Commissioner Fuentes and Sergeant Cruz
would have been made aware of Rivera’s actual or perceived PDP
affiliation. (Facts ¶¶ 64-86). See Welch v. Ciampa, 542 F.3d 927
(1st Cir. 2008) (holding that discrimination based on a perceived
affiliation instead of an actual affiliation may suffice for a
First Amendment violation).
Rivera
Municipality.
voluntarily
(Facts
¶¶
resigned
142-146).
from
his
Thus,
in
position
the
in
absence
the
of
termination, Rivera “must meet the severity of the harm test
enunciated by the First Circuit in Agosto–de–Feliciano v. Aponte–
Roque.” Rosado De Velez v. Zayas, 328 F.Supp. 2d 202, 208 (D.P.R.
2004). Adverse employment actions in political discrimination
Civil No. 16-2732 (RAM)
cases
need
not
35
constitute
a
“constructive
discharge”
nor
be
“tantamount to dismissal.” Agosto-de-Feliciano v. Aponte-Roque,
889 F.2d 1209, 1217 (1st Cir. 1989) (en banc). Instead, a plaintiff
can meet their burden by showing “clear and convincing evidence”
that “the employer’s challenged actions result in a work situation
‘unreasonably inferior’ to the norm for the position.” Id. at 1218,
1220. Said differently, “an employee must show a permanent, or at
least sustained, worsening of conditions to reach the threshold of
constitutional injury.” Id. at 1219. Then, the plaintiff must
“prov[e] by a preponderance of the evidence that [their] political
affiliation was a substantial or motivating factor behind the
personnel
actions
at
issue.”
Cardona
Martinez
v.
Rodriguez
Quinones, 306 F.Supp.2d 89, 94 (D.P.R. 2004), aff'd, (1st Cir.
2006).
In the case at bar, Rivera testified regarding a wide range
of instances that purportedly constitute an unreasonably inferior
work environment and thus, political discrimination. First, and
most importantly, Plaintiff alleges that he was denied a transfer
to the Municipality of San Juan because of his political beliefs.
The Supreme Court has determined that “promotions [and] transfers,
[…] based on political affiliation or support are an impermissible
infringement on the First Amendment rights of public employees.”
Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1990).
Being denied a transfer for political reasons, would thus be
Civil No. 16-2732 (RAM)
36
equally sanctionable. However, Plaintiff has failed to establish
that any of the co-defendants were responsible for his requested
transfer not being authorized. Plaintiff admitted that he did not
know what process the Municipality of San Juan implemented to
handle his application. (Fact ¶ 31). He further testified that he
does not have any proof that Mayor Ortiz intervened with his
transfer
request.
(Fact
¶
47).
The
record
shows
that
other
municipalities would send a formal letter to Naranjito requesting
authorization of the transfer. (Facts ¶¶ 49; 53). In Rivera’s case,
there is no evidence of communications between the Municipality of
San Juan and the Municipality of Naranjito regarding Plaintiff’s
transfer request, let alone a letter from the Municipality of San
Juan requesting approval of a transfer. (Fact ¶ 33).
Even
assuming
arguendo
that
the
denial
of
Plaintiff’s
transfer request was attributable to Mayor Ortiz or any other codefendant, Plaintiff has not established that it was denied on
account of Plaintiff’s political affiliation. Rivera alleges in
his Opposition that Defendants saw his request for a transfer to
the Municipality of San Juan, whose mayor was a member of the PDP
at the time, as a betrayal and that people were mad at him for
requesting said transfer. (Docket No. 92 at 6; 91-1 at 129-130).
Yet, he sustains these claims with information he did not perceive
directly. Instead, he cites third parties who informed him about
other co-worker’s alleged anger towards him. Id. At the summary
Civil No. 16-2732 (RAM)
37
judgment stage, this constitutes inadmissible hearsay as to the
truth of the matter asserted. See L. CV. R. 56(e), see also
Evergreen Partnering Grp., Inc. v. Pactiv Corp., 832 F.3d 1, 12
(1st
Cir.
2016).
Moreover,
Defendants
presented
evidence
of
various instances in which other municipal police officers were
authorized transfers to Municipalities with PDP mayors. (Facts ¶¶
55-58).
While Jesús Ramos’ disparaging comments regarding Plaintiff’s
PDP affiliation were politically motivated, even this dramatic
incident does not rise to the level of political discrimination
necessary to sustain a prima facie political discrimination claim.
Ramos was not one of Rivera’s supervisors and “[a] single insult
by
a
co-worker
with
no
supervisory
power
is
not
political
discrimination by one exercising official authority.” RosarioUrdaz v. Velazco 433 F.3d 174, 179 (1st Cir. 2006). The First
Circuit
has
substantial
explained
campaign
that
of
unless
harassment,
co-workers
instigated
“carried
or
on
a
knowingly
tolerated by superiors, their acts would not constitute the misexercise of government power at which section 1983 is aimed.” Id.
(citations omitted). Plaintiff failed to show that any of the
Defendants tolerated this behavior. Instead, the Municipality
proved how it did not tolerate such behavior when it came to a
subsequent incident where MPO John Redding brought up Rivera’s
complaint against Ramos and became aggressive. (Fact ¶ 102). The
Civil No. 16-2732 (RAM)
38
State Police conducted an investigation which entailed disarming
Redding
and
Rivera.
(Fact
¶
103).
Furthermore,
Commissioner
Fuentes requested that both Redding and Rivera be evaluated by a
psychologist. (Facts ¶¶ 107-108). Human resources evaluated the
psychologist’s report and recommendation. Only upon completion of
the investigation and psychological evaluation were the firearms
returned to the MPOs. (Facts ¶¶ 109-111). Therefore, despite
Rivera’s isolated incidents with co-workers, Plaintiff failed to
show that the Municipality allowed them to carry out a campaign of
harassment against Plaintiff.
As
another
example
of
alleged
political
discrimination,
Plaintiff states that on September 4, 2015, Commissioner Fuentes,
in the presence of other officers, stated that Rivera would be
required to pay an Autoexpresso fine. (Fact ¶ 59). Yet, Plaintiff
did not successfully establish whether Commissioner Fuentes was
aware of his political affiliation at the time of this encounter.
Moreover, Rivera was never required to pay the fine. (Facts ¶¶ 6162).
It is uncontested that on November 17, 2015, Sergeant Cruz
informed Commissioner Fuentes that Plaintiff had an unnotified
absence. (Fact ¶ 87). No disciplinary action was taken once further
revision demonstrated that Rivera had merely failed to inform his
supervisors that he would be absent from his scheduled shift to
attend the Bayamon district attorney’s office. (Fact ¶¶ 89-90).
Civil No. 16-2732 (RAM)
Ensuring
that
employees
39
are
present
for
assigned
shifts
or
otherwise notify their absences through the appropriate channels
cannot be considered an adverse employment action. See Moore v.
Def. Logistics Agency, 670 F. Supp. 800, 804 (N.D. Ill. 1987) (“An
agency is entitled to make rules and regulations in order to
facilitate its efficient operation, and to have its employees
respect such rules and regulations in order to achieve that end.”).
Rivera further posits that the Municipality’s Human Resources
Department discriminated against him when it issued a letter in
May 2016 asking Rivera to submit his Police Academy attendance
records and notifying that failure to comply would keep him from
receiving his bimonthly paycheck. (Facts ¶¶ 94, 99-100). But
Plaintiff had previously received two letters in 2014 requesting
the exact same information and containing the same penalty for
lack
of
compliance.
(Facts
¶¶
94-98).
Importantly,
Rivera’s
paycheck was not withheld. (Fact ¶ 16).
In addition to these aforementioned instances, Rivera details
various workplace occurrences, assignments or general grievances
to support his discrimination claim but fails to specify when they
transpired. This is crucial, because it makes it impossible to
know whether any of the co-defendants were actually aware of
Rivera’s political affiliation at the time of these incidents.
Rivera testified that for an unspecified time, pursuant to
Commissioner Fuentes orders, Rivera was assigned to a special shift
Civil No. 16-2732 (RAM)
40
where he conducted the same duties from 12:00 a.m. to 8:00 a.m.
with another officer. (Fact ¶ 114-116). Although being assigned an
unfavorable work schedule can be considered an adverse employment
action, Plaintiff was notably not the only officer assigned to the
special shift and once Plaintiff requested to be removed from the
same, his request was granted. (Fact ¶ 114). See Juarbe-Velez v.
Soto-Santiago, 558 F.Supp.2d 187, 202 n. 5 (D.P.R. 2008) (holding
that initially receiving a problematic work schedule that was later
remedied, albeit a minimal adverse employment action, “would not
rise to the level of creating an unreasonably inferior work
environment” for an officer of the Puerto Rico Emergency Management
Office).
On another occasion, Rivera was required to attend work,
despite informing Sergeant Cruz that he was sick via text message,
because he did not provide a medical certificate. (Fact ¶ 119).
Plaintiff subsequently admitted that he was unaware whether other
MPOs had been authorized to take a sick day without submitting a
medical certificate. (Fact ¶ 122). A policy requiring medical
certificates as a requirement to approve medical leave is not an
adverse action. Nor is an isolated denial of leave. See Amaro Amaro
v. Caribbean Restaurants LLC, 2008 WL 11502469, *8 (D.P.R. 2008)
(finding that the denial of an employee’s “specific medical leave
request does not rise to the level of materially adverse employment
action.”).
Civil No. 16-2732 (RAM)
41
Rivera asserts that he was placed in two dangerous situations
while on duty. First, Sergeant Cruz ordered Plaintiff to approach
an area where a group of heavily armed individuals were located
and assist the State Police. (Fact ¶ 125). Rivera was not required
to go alone, as he was joined by another police officer, and
ultimately could not remember if he went to the area or if the
plan was called off. (Facts ¶¶ 126-127). Second, Rivera was once
tasked with transporting weapons to the San Juan General Police
Headquarters
without
a
partner.
(Fact
¶
198).
The
MPO
Job
Description delineates that a police officer’s work environment
“involves constant exposure to risks.” (Fact ¶ 124). While both
instances represented a certain degree of risk to Plaintiff, Rivera
did not allege that the requests were unusual for a municipal
police officer nor that he was the only officer directed to
complete such dangerous tasks.
Although he did not provide a date, Rivera also testified
that he was no longer assigned to be “Officer in Charge” or the
shift supervisor of other MPOs. (Fact ¶ 134). In Agosto-deFeliciano, the First Circuit advised that the loss of supervisory
status can amount to an adverse employment action depending on
“whether the supervisory role had been a primary part of the job,
whether
the
significant,
duties
and
[plaintiff]
whether
new
retained
and
were
inferior
challenging
working
and
conditions
accompanied the change in duties.” Agosto-de-Feliciano, 889 F.2d
Civil No. 16-2732 (RAM)
42
at 1219. Here, Rivera did not have a supervisory role within the
hierarchy
of
the
Naranjito
Municipal
Police
Force
and
any
supervisory functions he performed were not a part of his formal
MPO job description. (Fact ¶¶ 5, 135).
In more general terms, Rivera testified that he was not
assigned one of the new police cars, although approximately only
three out of the thirteen available cars were new, and thus other
police officers also used the older vehicles. (Fact ¶ 132).
Similarly, although Rivera also complained that he was given
instructions from Commissioner Fuentes and Sergeant Cruz through
third parties, allegedly to confuse him, Plaintiff also admitted
that other MPOs would receive their instructions in the same
fashion. (Fact ¶ 133).
After
“canvass[ing]
the
specific
ways”
Plaintiff’s
job
allegedly changed, the Court finds that Rivera “retained duties,
perquisites and a working environment appropriate for his […] rank
and
title.”
Agosto-de-Feliciano,
889
F.2d
at
1209.
Rivera’s
duties, pursuant to his job description, never changed. Having to
comply with rules regarding notifying absences and requesting sick
leave cannot reasonably be equated with an adverse employment
action, let alone discrimination. Similarly, being required to
respond to dangerous situations is not unusual for a police
officer. The Municipality did not allow Plaintiff to be harassed
by co-workers and Rivera failed to evince that he was harassed by
Civil No. 16-2732 (RAM)
any
superiors
for
his
43
political
beliefs.
Thus,
even
in
the
aggregate, Rivera has not provided clear and convincing evidence
that he was subjected to unreasonably inferior working conditions.
Rivera has therefore not been able to establish the third element
of a prima facie political discrimination case.
D. Retaliation for Seeking Redress in Court
The First Amendment protects the right “to petition the
Government for a redress of grievances.” U.S. Const. amend. I.
This protection also encompasses “the right to be free from
retaliation by a public official for the exercise of that right.”
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000).
“Claims of retaliation for the exercise of First Amendment rights
are cognizable under § 1983.” Powell v. Alexander, 391 F.3d 1, 16
(1st Cir. 2004). To prevail on such a claim, a plaintiff must show
that their “conduct was constitutionally protected, and that this
conduct was a ‘substantial factor’ or ... a ‘motivating factor’
for the defendant's retaliatory decision[]” or adverse employment
action. Id. at 17. (quoting Mt. Healthy, 429 U.S. at 287).
“For purposes of a First Amendment retaliation claim, even in
an employment setting, a plaintiff need not suffer an ‘adverse
employment
action’
as
that
term
ordinarily
is
used
in
the
employment discrimination context.” Barton v. Clancy, 632 F.3d 9,
29 (1st Cir. 2011). Instead, “the pertinent question in a § 1983
retaliation case based on the First Amendment is whether the
Civil No. 16-2732 (RAM)
44
defendant's actions would deter ‘a reasonably hardy individual[ ]’
from exercising his constitutional rights[,]” thereby causing a
chilling effect. Id. (quoting Agosto–de–Feliciano, 889 F.2d at
1217). In this context, “relatively minor events can give rise to
§ 1983 liability, so long as the harassment is not so trivial that
it would not deter an ordinary employee in the exercise of his or
her First Amendment
rights.”
Id.
(internal
quotations
and
citations omitted) (emphasis added).
Even by this lesser standard, Rivera has not shown that he
was retaliated against for filing a complaint and participating in
the trial against Ramos.4 It is uncontested that Rivera exercised
his First Amendment Right when he submitted his complaint against
Jesús Ramos with the State Police. (Fact ¶ 72). Nevertheless, as
discussed at length above, Rivera has failed to establish that he
suffered
any
adverse
employment
actions.
Although
temporal
proximity is not the only relevant factor, many of the instances
Plaintiff raised, including that of the special shift assignment
(Fact ¶ 114), lack even an estimated date. This makes it impossible
to know if they occurred in response of Rivera’s complaint. See
e.g. Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25
(1st Cir. 2014) (explaining that “‘temporal proximity’ is merely
4
The Court notes that Defendants did not directly address this claim in their
Motion for Summary Judgment. (Docket No. 75). They did, however, discuss
retaliation within the context of Law 115. Plaintiffs on their part, reaffirmed
that the elements of a First Amendment retaliation claim were present.
Civil No. 16-2732 (RAM)
45
one factor relevant to causation and usually only later in the
proceedings, for example at summary judgment.”). Furthermore, the
incident involving the Autoexpresso fine certainly happened prior
to Rivera’s complaint against Ramos. (Fact ¶ 59). Moreover, not
being able to always drive one of the few new cars does not amount
to harassment nor the removal of privileges. Nor does it amount to
an adverse employment action. Lastly, Rivera did not show that his
duties as an MPO were altered nor that he was unduly requested to
perform dangerous tasks. Once again, the Court notes that the
Municipality did not tolerate MPO Redding’s aggression towards
Plaintiff and did not allow there to be a campaign of harassment
towards Rivera. (Facts ¶¶ 102-111).
Rivera was equally unable to show that his complaint against
Ramos was a substantial or motivating factor in his transfer to
the Municipality of San Juan not being approved. Rivera did not
provide insight as to the process that the Municipality of San
Juan uses to approve transfers. Moreover, there is no evidence on
the record that the Municipality of San Juan requested Rivera’s
transfer and that the same was not approved out of retaliation.
In
his
deposition,
Rivera
did
testify
that
Commissioner
Fuentes told him that there would be consequences if he did not
remove his complaint. (Fact ¶ 83). However, Plaintiff has not shown
that these consequences materialized. Even in § 1983 claims,
“[t]hreats
of
retaliation
standing
alone
do
not
generally
Civil No. 16-2732 (RAM)
46
constitute adverse employment actions.” Rivers v. New York City
Hous. Auth., 176 F. Supp. 3d 229, 251 (E.D.N.Y. 2016), aff'd sub
nom. Crenshaw v. New York City Hous. Auth., 697 F. App'x 726 (2d
Cir. 2017) (emphasis added); see also Sensabaugh v. Halliburton,
937 F.3d 621, 629 n. 2 (6th Cir. 2019), cert. denied, 140 S. Ct.
1116, 206 L. Ed. 2d 184 (2020) (“threats alone are generally not
adverse actions for retaliation purposes”); Bollinger v. Thawley,
304 F. App'x 612, 614 (9th Cir. 2008) (quoting Nunez v. City of
Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998)) (“Mere harsh words
or threats are insufficient to constitute an actionable adverse
employment action.”); Akins v. Fulton Cty., Ga., 420 F.3d 1293,
1301 (11th Cir. 2005) (concluding that Plaintiffs did not establish
that they suffered an adverse employment action because they did
not allege “that the reprimands or the threats of suspension and
job loss affected the terms and conditions of their employment or
their status as employees.”); Kubala v. Smith, No. 20-3085, 2021
WL 56149 (6th Cir. Jan. 7, 2021) (finding that while direct,
repeated threats can constitute an adverse employment action, a
singular, ambiguous threat, via a proxy, cannot).
In light of the above, Rivera has not met his burden of
showing
that
he
suffered
a
retaliatory
decision
or
adverse
Civil No. 16-2732 (RAM)
47
employment action that would have led to a chilling effect of his
First Amendment Rights.5
2. Supplemental Jurisdiction over Puerto Rico Law Claims
In accordance with the above, all
federal
law
claims
have
been dismissed. However, dismissal of the federal retaliation
claim does not dispose of this matter because the plain text of
Law 115, also known as Puerto Rico’s Whistleblower Act, provides
that:
No employer may discharge, threaten, or
discriminate against an employee regarding the
terms, conditions, compensation, location,
benefits or privileges of the employment
should the employee offer or attempt to offer,
verbally or in writing, any testimony,
expression
or
information
before
a
legislative, administrative or judicial forum
in Puerto Rico, when such expressions are not
of a defamatory character nor constitute
disclosure
of
privileged
information
established by law.
P.R. Laws Ann. tit. 29 § 194a(a) (emphasis added). Law 115 also
creates a cause of action for employees affected by a violation of
the cited provision. Id. § 194a(b). Moreover, the Whistleblower
5
At Docket No. 78, co-defendants Orlando Ortiz-Chevres, Eddie Cruz-Marcano,
Solimar Hernández-Morales and Pedro Fuentes-Morales, in their official
capacities, raised an argument regarding the qualified immunity doctrine. “The
doctrine of qualified immunity protects a state official from liability for
damages under § 1983 where [their] conduct did ‘not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 9 (1st Cir. 2013)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because Rivera has
failed to establish a genuine issue of material fact as to whether said codefendants violated any of his constitutional rights under § 1983, the Court
“need not reach the issue of qualified immunity.”
Gonzalez-De-Blasini, 377
F.3d at 88 n. 4.
Civil No. 16-2732 (RAM)
48
Act provides that an employee can “establish a prima facie case of
violation of the act by proving that he/she participated in an
activity protected by §§ 194 et seq. of this title and that he/she
was subsequently discharged, threatened or discriminated against
regarding his/her employment.” Id. § 194a(c) (emphasis added).6
The First Circuit has held that “when all federal claims have
been dismissed, it is an abuse of discretion for a district court
to retain jurisdiction over the remaining pendent state law claims
unless doing so would serve the interests of fairness, judicial
economy, convenience, and comity.” Zell v. Ricci, 957 F.3d 1, 15
(1st Cir. 2020) (quoting Wilber v. Curtis, 872 F.3d 15, 23 (1st
Cir. 2017)) (internal quotations omitted).
However, in the case
at bar, there may be factors in favor of retaining jurisdiction.
Thus, Plaintiffs are ORDERED to show cause why the Court should
not decline to exercise supplemental jurisdiction and dismiss the
Puerto Rico law claims without prejudice.
V. CONCLUSION
For reasons set forth above, the Court GRANTS in part and
DENIES in part Defendants’ Motion for Summary Judgment, as joined
by all named co-defendants. (Docket Nos. 75, 77, 78, 82). The Court
hereby dismisses with prejudice all of Plaintiff Carlos RiveraCuevas First Amendment claims under § 1983. Within the next THIRTY
6
Similarly, Sullynett Ocaña-Morales’ derivative Article 1802 cause of action
for damages caused by the alleged Law 115 violation cannot be dismissed at
this juncture.
Civil No. 16-2732 (RAM)
49
(30) DAYS, Plaintiffs SHALL show cause why the Court should not
decline to exercise supplemental jurisdiction and dismiss the
Puerto Rico law claims without prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 2nd day of February 2021.
S/ RAÚL M. ARIAS-MARXUACH_____
United States District Judge
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