Rodriguez-Cardona v. Questell-Alvarado et al
Filing
26
OPINION AND ORDER ruling on 12 Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 8/15/2018. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NATALIE RODRIGUEZ CARDONA
Plaintiff
vs
HON. ENRIQUE H. QUESTELL
ALVARADO, in his personal and
official capacity as Mayor of Santa
Isabel; DAMARIS GUTIERREZ
SANTIAGO, in her personal and
official capacity as Director of Human
Resources of the Municipality of Santa
Isabel; HON. PEDRO J. RODRIGUEZ
ROSADO, in his personal and official
capacity as President of the Municipal
Assembly, his wife MARY DOE and
the conjugal legal partnership
constituted between them;
MUNICIPALITY OF SANTA ISABEL;
DEFENDANTS A and X
Defendants
CIVIL 17-2182CCC
OPINION AND ORDER
This is an action under 42 U.S.C. section 1983 brought by plaintiff Natalie
Rodríguez Cardona (Rodríguez Cardona) against the Municipality of Santa
Isabel (Municipality), three of its officers, the wife of one of said officers and
their conjugal partnership. Rodríguez Cardona avers that her freedom of
association right under the First Amendment to the U.S. Constitution as well
as her equal protection and due process right under the Fourteenth
Amendment to the U.S. Constitution were infringed by defendants when she
was terminated from her position as Director of the Community Office of the
Municipality after failing to work as a poll officer in a voting unit during the
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2
status plebiscite held in the Commonwealth on June 11, 2017. Before the
Court now is the Motion to Dismiss filed on January 8, 2018 by two of the
defendants, Damaris Gutiérrez Santiago (Gutiérrez) and Pedro J. Rodríguez
Rosado (Rodríguez Rosado) (d.e. 12), which plaintiff opposed on February 9,
2018 (d.e. 18).
The relevant facts, taken from the Complaint (d.e. 1), follow. Plaintiff
Rodríguez Cardona began to work in the Municipality in 2005 after being
appointed by the Mayor, defendant Enrique H. Questell Alvarado (Questell), to
be its Human Resources Director. In September 2013, she was designated by
Questell as Director of the Municipality’s Community Office. Plaintiff describes
herself as a “supporter of the NPP [New Progressive Party]” (Complaint, ¶ 3)
and also as “favor[ing] statehood for Puerto Rico,” (Complaint, ¶ 24), who had
“previously served as an electoral polling station official representing the
NPP on several occasions [and as] NPP Parish president” (Complaint, ¶ 21)
and an “active participant in the NPP campaign in Santa Isabel” (Complaint,
¶ 66).
Aside from Questell, also included as defendants are Gutiérrez, who is
the Director of Human Resources of the Municipality; Rodríguez Rosado, the
President of the Municipal Assembly, Rodríguez Rosado’s wife, identified as
Mary Doe, and their conjugal legal partnership. All defendants are described
as “well-known supporters and members of the NPP,” (Complaint, ¶ 16), who
“favored statehood for Puerto Rico” (Complaint, ¶ 24).
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The 2016 general elections held in the Commonwealth resulted in
victories for Ricardo Rosselló (Rosselló) as Governor of Puerto Rico and
Questell as Mayor of Santa Isabel. Following his victory, Rosselló called for a
plebiscite to be held on June 11, 2017 to determine Puerto Rico’s political
status. In April 2007, plaintiff informed Mr. Carlos Pérez, a municipal legislator,
that she would not work in the plebiscite. On June 5, 2017, plaintiff received
several calls from Zulma Velázquez, another member of the Municipal
Assembly, insisting that she work in the plebiscite as an NPP polling station
officer at unit 7 of Santa Isabel. Plaintiff informed her that she was unable to
work as polling station officer since “she had other endeavors said day”
(Complaint, ¶ 41). On June 7, 2017, plaintiff received a call from Mayor
Questell screaming and yelling at her and questioning why she could not work
at a polling station official that day because she was a “confidence” (sic)
employee and had to follow orders. Plaintiff reiterated to Questell that she
could not work that day, but the Mayor aggressively insisted that she had to
and hung up the phone. On June 8, 2017, Rodríguez Rosado called plaintiff
to ask her to work in the plebiscite because there was a shortage of people
available to work as polling station officers. Plaintiff reiterated to him that she
could not work, which prompted Rodríguez Rosado to remind her that she had
to work because she had a position of trust and all trust employees were
required to work in electoral events. Rodríguez Rosado also conditioned her
confirmation as Human Resources Director, a position to which Questell had
reappointed plaintiff in 2017, to her working as polling station officer during the
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plebiscite. On June 9, 2017, plaintiff received a text message from Jennifer
Fuentes, an assistant to the Mayor, stating that “Piguan had told the Mayor that
you [Plaintiff] were going to work, but that they were already able to resolve
that.” (Complaint, ¶ 49).
The plebiscite took place as scheduled on June 11, 2017. After the
plebiscite, the Mayor held a staff meeting where he spoke individually with
everyone except for plaintiff. On June 15, 2017, plaintiff was cited to the
Human Resources Office where she was given a letter signed by Questell
stating that she had to liquidate her vacation until August 9, 2017. Gutiérrez
then informed plaintiff that on June 14, 2017 Questell had decided to fire her,
and that his decision was final and he would not meet with her. On June 16,
2017, plaintiff personally delivered letters to Questell and Gutiérrez requesting
reconsideration of the Mayor’s decision. Questell did not budge.
Defendants Gutiérrez and Rodríguez Rosado have moved for dismissal
of all the claims filed against them (d.e. 12) essentially alleging that since they
did not take the final decision to dismiss the plaintiff, they may not be held
liable for her termination. They also aver, in passing, that the complaint fails
to state a plausible claim under the First Amendment since it nowhere
mentions that plaintiff’s political beliefs regarding the plebiscite were different
from that of the defendants. Plaintiff opposed the dismissal motion (d.e. 18)
claiming that she made specific allegations in her Complaint of the hostile and
adverse treatment allegedly received from both Gutiérrez and Rodríguez
Rosado. She rebuts movant’s assertion of having failed to state a claim for
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political discrimination professing that her dismissal was motivated for having
expressed her disagreement with the plebiscite.
We start with bedrock law. It is well-established that “non-policymaking
public employees are protected from adverse employment decisions based on
their
political
affiliation.”
Padilla-Garcia
v.
Guillermo
Rodriguez,
212 F.3d 69, 74 (1st Cir. 2000). The Supreme Court has made clear that the
constitutional protection extends to the decision not to associate with a political
party or faction. Rutan v. Republican Party of Ill., 497 U.S. 62, 76, 110 S.Ct.
2729 (1990). “The freedom not to support a candidate or cause is integral to
the freedom of association and freedom of political expression that are
protected by the First Amendment.” Welch v. Ciampa, 542 F.3d 927, 939
(1st Cir. 2008).
But, as the Court of Appeals has made clear, in order to receive First
Amendment protection “the association, or refusal to associate, must be
political in nature or implicate some other constitutional concern.” Barry v.
Moran, 661 F.3d 696, 704 (1st Cir. 2011). This is so for while “the First
Amendment invests public employees with certain rights, it does not empower
them to ‘constitutionalize the employee grievance.’” Garcetti v. Ceballos,
547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed. 2d 689 (2006) (quoting
Connick v. Myers, 461 U.S. 138, 154, 103 S.Ct. 1684, 75 L.Ed. 2d 708 (1983)).
Thus, the Court has required that a plaintiff must allege discrimination
on the basis of “ideology” or “partisan affiliation.”
Correa-Martinez v.
Arrillaga-Belendez, 903 F.2d 49, 57 (1st Cir. 1990). It has also found that there
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was no protected activity under the First Amendment where a plaintiff was not
motivated by campaign plans, affiliation with a particular candidate, or beliefs
animating a disputed election.
LaRou v. Ridlon, 98 F.3d 659, 662
(1st Cir. 1996).
We have painstakingly reviewed the allegations of plaintiff’s Complaint,
and find that it fails to state that she engaged in conduct protected under the
First Amendment. According to its allegations, plaintiff and all defendants are
supporters of the NPP who favor statehood for Puerto Rico.
Although
defendant claims that she was terminated from her position as Director of the
Community Office solely due to her political beliefs, the specific reason
mentioned by her in the Complaint time and again that allegedly prompted her
dismissal was her failure to work in the status plebiscite despite being asked
to do so by Mayor Questell and others. Plaintiff, however, never states in her
Complaint that her refusal to work was due to a political decision not to support
the plebiscite or the cause that it represented, which placed her in an
antagonistic position with all the defendants. She merely alleges that she
“could not work” that day (Complaint, ¶¶ 43, 47), and the only reason offered
is that “she had other endeavors said day” (Complaint, ¶ 41). It is not until she
filed the opposition to the dismissal motion that she first averred that she “did
not support the plebiscite,” “was adamantly against it” (Opposition, at p. 7), and
“did not believe or agree with it” (Id., at p. 10). But said factual averments in
her opposition brief do not serve to supplement the allegations missing from
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her Complaint. As pled, the complaint simply fails to state an actionable
political discrimination claim under the First Amendment.
We note that, founded on the same facts, plaintiff also invoked the Equal
Protection Clause. However, “an equal protection claim alleging political
discrimination merely restates a First Amendment political discrimination claim”
and should only be considered under the First Amendment. Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 430 n. 8 (1st Cir. 2010). Accordingly, plaintiff’s claim
under the Equal Protection Clause is also DISMISSED since it arises from the
same exact factual background as the First Amendment political discrimination
claim.
For the reasons stated, plaintiff’s political association claim under the
First Amendment and her equal protection claim under the Fourteenth
Amendment are both hereby DISMISSED as to ALL defendants. Partial
judgment shall be entered accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on August 15, 2018.
S/CARMEN CONSUELO CEREZO
United States District Judge
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