Alberty-Marrero et al v. Mendez et al

Filing 100

OPINION AND ORDER: For the reasons set forth in this Opinion and Order, the Court DENIES 48 Defendants' Motion for Summary Judgment and DENIES 60 Plaintiffs' Motion for Partial Summary Judgment. Plaintiffs shall have until February 28, 2023 to file a memorandum showing cause as to why their political discrimination claims should not be dismissed. Signed by Judge Raul M. Arias-Marxuach on 2/6/2023.(mrr)

Case 3:17-cv-02385-RAM Document 100 Filed 02/06/23 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
SOCORRO ALBERTY, et al.
Plaintiffs
CIVIL NO. 17-2385 (RAM)

v.
CARLOS “JOHNNY” MÉNDEZ, et al.
Defendants

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, U.S. District Judge
Pending before the Court is Defendants’ Motion for Summary
Judgment and Brief in Support Thereof (“Defendants’ Motion for
Summary Judgment”). (Docket No. 48). As Defendants only address
Plaintiffs’ First Amendment claim, the Court treats the motion as
one for partial summary judgment. Also pending before the Court is
Plaintiffs’ Motion for Partial Summary Judgment on their First
Amendment claim. (Docket No. 60). For the reasons set forth below,
the Court DENIES Defendants’ Motion for Summary Judgment and DENIES
Plaintiffs’ Motion for Partial Summary Judgment. As discussed
infra III.B, Plaintiffs shall have until February 28, 2023 to file
a memorandum showing cause as to why their political discrimination
claims should not be dismissed for failure to make a showing
sufficient to establish the existence of each element essential to

Case 3:17-cv-02385-RAM Document 100 Filed 02/06/23 Page 2 of 16
Civil No. 17-2385 (RAM)
a

prima

facie

2

political

discrimination

claim

against

each

Defendant.
I.

PROCEDURAL BACKGROUND

Plaintiffs are 11 former termed employees of the Puerto Rico
House of Representatives. 1 (Docket No. 38 ¶ 3). They identify as
members of Puerto Rico’s Popular Democratic Party (“PDP”). Id. ¶
4. Defendants are former Speaker of the House Carlos “Johnny”
Méndez

(“Méndez”);

his

wife

Lisandra

Maldonado

(“Maldonado”);

former Administrator of the House Moisés Cortés-Rosado (“CortésRosado”); and former Human Resources Director for the House Karen
Torres de la Torre (“Torres de la Torre”). Id. ¶¶ 20, 22, 23.
Defendants belong to Puerto Rico’s New Progressive Party (“NPP”).
Id.
Plaintiffs

filed

their

Complaint

on

December

29,

2017.

(Docket No. 1). They allege that Méndez, Cortés-Rosado, Torres de
la Torre, and Elizabeth Stuart-Villanueva 2 violated the First and
Fourteenth
Plaintiffs’

Amendments
employment

and

Puerto

Rico

law

contracts

due

to

by

not

their

renewing
political

Plaintiffs are Socorro Alberty-Marrero, Félix Arroyo-Molina, Margarita
Jiménez-Bracero, Wanda Llópiz-Burgos, Bárbara Ocasio-Matos, Anitza OrtizMedina, Adalberto Pantojas, Noelia Ramos-Vázquez, Martha Rivera-López, María
Sánchez-Soldevila, and Judith Soto-Calderón. (Docket No. 38 at 1).
1

The Court clarifies its July 15, 2021 Docket Order to note that the Complaint
was dismissed as to Defendant Stuart-Villanueva in her personal capacity, due
to her death and the fact that no motion to substitute her in the action was
filed. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public
officer who is a party in an official capacity dies, resigns, or otherwise
ceases to hold office while the action is pending. The officer’s successor is
automatically substituted as a party.”)
2

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3

affiliations. Id. On February 16, 2018, the case was automatically
stayed pursuant to the Puerto Rico Oversight, Management, and
Economic Stability Act (“PROMESA”). (Docket No. 12). The stay was
lifted on August 22, 2018 solely with respect to any motions to
dismiss

or

motions

for

summary

judgment.

(Docket

No.

22).

Defendants answered the Complaint on October 23, 2018. (Docket No.
25). Plaintiffs filed an Amended Complaint on January 28, 2019 to
add Maldonado, and the Conjugal Partnership Méndez-Maldonado, as
Defendants.

(Docket

No.

38).

Defendants

answered

the

Amended

Complaint on March 29, 2019. (Docket No. 42).
On November 15, 2019, Defendants filed their Motion for
Summary Judgment and proposed Statement of Uncontested Material
Facts. (Docket Nos. 48 and 49). Defendants argue that they are
entitled to judgment as a matter of law on Plaintiffs’ First
Amendment claim. (Docket No. 48). They posit that then-Speaker of
the House Roberto Rivera-Ruiz de Porras (“Rivera-Ruiz de Porras”)
was the nominating authority when the contract for 10 of the 11
Plaintiffs expired in December 2016, so Defendants could not have
been responsible for the non-renewal of those 10 contracts. Id. at
2-3,

10-11.

As

for

Plaintiff

Wanda

Llópiz-Burgos

(“Llópiz-

Burgos”), whose contract expired at the end of January 2017,
Defendants argue that she does not provide evidence that Defendants
knew of her political affiliation nor that it motivated the adverse
employment action that she may have suffered. Id. at 3, 11.

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4

Defendants do not address any of the other causes of action in
Plaintiffs’ Amended Complaint. Plaintiffs filed their opposition
on December 4, 2019 and Defendants filed a reply on December 17,
2019. (Docket Nos. 51 and 57).
On December 18, 2019, Plaintiffs filed their motion for
summary judgment. (Docket No. 60). They argue that the Court should
grant summary judgment on their First Amendment claim because the
record clearly indicates that they suffered an adverse employment
action caused by Defendants’ political discrimination. Id. They
also discuss their Due Process claim to a limited extent, but only
seek summary judgment on their First Amendment claim. Id. at 1. On
January 28, 2020, Defendants filed a Reply to Plaintiffs [sic]
Motion for Partial Summary Judgment, a Reply to Plaintiffs [sic]
Memorandum of Law, and a Reply to Plaintiff’s [sic] Statement of
Uncontested Material Facts. (Docket Nos. 64, 65, and 66). Finally,
Plaintiffs filed a reply on March 17, 2020. (Docket No. 73).
II.

APPLICABLE LAW

A. Summary Judgment
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) he is
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

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Civil No. 17-2385 (RAM)

5

party.” Thompson v. Coca–Cola Co., 522 F.3d 168, 175 (1st Cir.
2008) (citation omitted). A fact is considered material if it “may
potentially ‘affect the outcome of the suit under governing law.’”
Albite v. Polytechnic Univ. of P.R., 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)).
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 (D.P.R. 2020) (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, 948
F.3d 42, 49 (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,

Mass.,

931

F.3d

102,

105

(1st

Cir.

2019)

(citation

omitted). Moreover, the existence of “some alleged factual dispute
between the parties will not defeat an otherwise properly supported
motion for summary judgment[.]” Scott v. Harris, 550 U.S. 372, 380
(2007) (emphasis in original) (quotation omitted). Hence, a court

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6

should review the record in its entirety and refrain from making
credibility determinations or weighing the evidence. Reeves v.
Sanderson

Plumbing

Prods.,

Inc.,

530

U.S.

133,

135

(2000)

(citations omitted). If adjudicating the matter would require
“[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts[,]” then
summary judgment is not appropriate, as these “are jury functions,
not those of a judge[.]” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
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
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.” Id. 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,

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Civil No. 17-2385 (RAM)

7

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) (citations omitted). Thus,
litigants ignore this rule at their peril. See Natal Pérez, 291 F.
Supp. 3d at 219 (citation omitted).
B. Section 1983
Plaintiffs bring this action under 42 U.S.C. § 1983. Section
1983 does not create substantive rights. See 42 U.S.C.A. § 1983.
Instead,

it

constitutional

“is
and

only
other

a

procedural

federal

vehicle

statutory

to

vindicate

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) (quotation 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

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Civil No. 17-2385 (RAM)

8

the position given to him by the State.”

West v. Atkins, 487 U.S.

42, 42 (1988).
Additionally,

a

Section

1983

plaintiff

is

“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, 455 (D.P.R. 2016) (emphasis added)
(citation omitted). This can be achieved by showing any “personal
action or inaction [by the defendants] within the scope of [their]
responsibilities that would make [them] personally answerable in
damages under Section 1983.” Id. (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).
C. 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) (quoting Kusper v.
Pontikes, 414 U.S. 51, 57, 58 (1973)). 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 the employment.” Ocasio-Hernández v.

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Civil No. 17-2385 (RAM)

9

Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011) (citing Rutan v.
Republican Party of Ill., 497 U.S. 62, 75–76 (1990) and Welch v.
Ciampa, 542 F.3d 927, 938-39 (1st Cir. 2008)); see also MedinaVelázquez v. Hernández-Gregorat, 2015 WL 6829150, *3 (D.P.R. 2015)
(citations

omitted)

(“The

First

Amendment

protects

non-

policymaking public employees from adverse employment action due
to political affiliation.”).
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. P.R. Highway & Transp. Auth.,
811 F.3d 67, 73 (1st Cir. 2016) (quoting Ocasio-Hernández, 640
F.3d at 13).
To establish that political affiliation was a substantial or
motiving factor, the “plaintiff must make a fact-specific 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) (citation omitted). 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

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Civil No. 17-2385 (RAM)

10

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)). While a prima facie
case for political discrimination may be built on circumstantial
evidence, plaintiffs must point to “specific facts necessary to
take the asserted claim out of the realm of speculative, general
allegations.” Id. at 86 (citing Kauffman v. P.R. Tel. Co., 841
F.2d 1169, 1172 n.5 (1st Cir. 1988)).
If the plaintiff makes a 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 political beliefs.” Medina-Velázquez, 2015 WL
6829150, at *3 (citing Mt. Healthy City School Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)). If the defendant makes this
showing, the plaintiff may counter defendant’s proffered nondiscriminatory

motivation

by

providing

evidence

to

show

that

“discrimination was more likely than not a motivating factor.” Id.
(citing Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 77
(1st Cir. 2000)).
III. DISCUSSION
The Court next addresses each party’s motion for summary
judgment, starting with Defendants’.

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A. Defendants’ Motion for Summary Judgment
1. Plaintiffs
Alberty-Marrero,
Arroyo-Molina,
JiménezBracero, Ocasio-Matos, Ortiz-Medina, Pantojas, RamosVázquez,
Rivera-López,
Sánchez-Soldevila,
and
SotoCalderón
Defendants note that outgoing Speaker Rivera-Ruiz de Porras
was still the nominating authority when the employment contracts
of

Plaintiffs

Ocasio-Matos,

Alberty-Marrero,
Ortiz-Medina,

Arroyo-Molina,

Pantojas,

Jiménez-Bracero,

Ramos-Vázquez,

Rivera-

López, Sánchez-Soldevila, and Soto-Calderón expired. (Docket No.
48 at 2-3, 10-11). Thus, Defendants maintain they did not have the
power to make any employment decisions with regards to these 10
Plaintiffs, let alone discriminate against them due to their
political affiliation. Id.
In

response,

Plaintiffs

point

to

Administrative

Order

Governing the Process of Bringing to a Close the Work of the House
of Representatives of the Commonwealth of Puerto Rico in the
Seventeenth Legislative Assembly (the “Administrative Order” or
“AO”) and deposition excerpts that they claim prove Defendants
were responsible for their contracts not being renewed. The vast
majority, if not all, of the deposition testimony that Plaintiffs
provide is inadmissible hearsay, which the Court may not consider.
See (Dávila v. Corporación De P.R. Para La Difusión Pública, 498
F.3d 9, 17 (1st Cir. 2007) (citations omitted) (“It is blackletter law that hearsay evidence cannot be considered on summary

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Civil No. 17-2385 (RAM)

12

judgment.”). However, the AO by itself creates a genuine issue of
fact as to who was responsible for the decision not to renew those
10 Plaintiffs’ contracts.
The AO regulated the transition process between the outgoing
PDP administration and the incoming NPP administration between
2016 and 2017. (Docket No. 59-2 at 1). It states that “[c]ontracts
and personnel appointments carried out during the election year
cannot be established to go past December 31, 2016.” Id. at 5.
However, it then provides exceptions to this rule:
1. Any contract which, due to the nature of
the service to be rendered, cannot be
interrupted, because its interruption may
adversely affect the House of Representatives.
2. Any contract which, due to its object,
nature or commercial practice, is required to
remain in effect for more than one (1) year.
3. In the event of an emergency or urgent
situation, as defined and regulated in the
Procurement Regulations of the House.
4. Any contract or appointment of personnel
that, in the transition process, the Chairmen
of the Incoming and Outgoing Committees,
identify and deem necessary to make, execute
or extend, in order to ensure that the
services or processes of the House are not
affected, upon authorization by the Speaker of
the House.
Id. Of note, the last exception permitted the renewal of a contract
with the approval of the outgoing Speaker and the Chairmen of the
Outgoing and Incoming Committees. The AO thus casts doubt on
Defendants’ posture that they had no involvement in the contract

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Civil No. 17-2385 (RAM)

13

renewal process during the transition period. The Court thus finds
that there is a genuine dispute as to a material fact -- who was
responsible for the decision not to renew these 10 Plaintiffs’
contracts.
2. Plaintiff Wanda Llópiz-Burgos
As for Plaintiff Llópiz-Burgos, whose contract expired at the
end of January 2017, Defendants attack her prima facie case of
political discrimination. They argue that she does not provide
evidence that Defendants knew of her political affiliation nor
that it motivated the adverse employment action she allegedly
suffered. (Docket No. 48 at 3, 11). To survive Defendants’ Motion
for Summary Judgment, Llópiz-Burgos was “required to show the
existence of a factual dispute” on the issue of whether her
political affiliation “was the substantial or motivating factor
underlying

[her]

dismissal[].”

Kauffman,

841

F.2d

at

1172

(citations omitted).
Llópiz-Burgos alleges specific facts to support her claim
that political animus motivated her dismissal. She testified that
following the election, Maintenance Office employees, including
Olga Mojica, would tell her and the other PDP employees in that
office that they were “going out[,]” that they had “little time
here,” that “[t]he lists [were] ready,” and that they were “all
going to be fired.”(Docket No. 51-5 at 7-10). She said that she
saw a list of PDP employees titled “Populetes” -- a derogatory

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14

term for PDP affiliates -- that had been posted next to the
microwave and switchboard in the Maintenance Office “for everyone
to see[.]” Id. Allegedly, her name was the first one on that list,
and it was her belief that all but one or two employees on it were
dismissed. Id.
This evidence, though circumstantial, is specific enough to
“take the asserted claim out of the realm of speculative, general
allegations.” Kauffman, 841

F.2d

at

1172

n.5.

Along

with

the

timing of the dismissal, see Anthony v. Sundlun, 952 F.2d 603, 606
(1st Cir. 1991), it may be probative of political animus. LlópizBurgos thus met her “threshold burden of producing sufficient
direct or circumstantial evidence from which a jury reasonably may
infer that [her political affiliation] . . . was a ‘substantial’
or ‘motivating’ factor behind [her] dismissal.” Acevedo-Diaz v.
Aponte, 1 F.3d 62, 66 (1st Cir. 1993) (citations omitted).
Given

that

Plaintiffs

proffered

sufficient

evidence

of

genuine issues of material fact, Defendants’ Motion for Summary
Judgment is DENIED.
B. Plaintiffs’ Motion for Partial Summary Judgment
The Court turns next to Plaintiffs’ Motion for Partial Summary
Judgment, which argues that the record clearly indicates that
Plaintiffs

suffered

an

adverse

employment

action

caused

by

Defendants’ political discrimination. (Docket No. 60). Although
the Administrative Order may controvert Defendants’ theory that

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Civil No. 17-2385 (RAM)

15

they were not responsible for contract renewals, it does not
definitively prove that they were. Furthermore, Plaintiffs’ other
cited evidence does not establish a lack of genuine dispute as to
all material facts and that they are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The Court therefore DENIES
Plaintiffs’ Motion for Partial Summary Judgment.
On top of that, the Court questions whether every Plaintiff
has made a showing sufficient to establish the existence of each
element essential to his case against each Defendant. 3 See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court has not
ruled on this question, as Defendants only attacked the merits of
Llópiz-Burgos’s prima facie case. With regard to the other 10
Plaintiffs, Defendants’ motion focused exclusively on the theory
that they were not yet involved in the contract renewal process
and did not address the sufficiency of their prima facie cases.
Fed. R. Civ. P. 56(f) provides that courts may grant summary
judgment for a nonmovant after giving notice and a reasonable time
to respond. Fed. R. Civ. P. 56(f). Accordingly, the Court ORDERS
Plaintiffs

to

show

cause

as

to

why

each

of

their

political

discrimination claims should not be dismissed for failure to make

As discussed supra II.C, the four elements essential to a prima facie political
discrimination claim under the First Amendment are: “(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, 811 F.3d at 73 (quoting OcasioHernández, 640 F.3d at 13).
3

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Civil No. 17-2385 (RAM)

16

a showing sufficient to establish the existence of each element
essential to a prima facie political discrimination claim against
each Defendant.
IV. CONCLUSION
For reasons set forth above, the Court DENIES Defendants’
Motion for Summary Judgment and DENIES Plaintiffs’ Motion for
Partial Summary Judgment. (Docket Nos. 48 and 60). Plaintiffs shall
have until February 28, 2023 to file a memorandum showing cause as
to

why

their

political

discrimination

claims

should

not

dismissed.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 6th day of February 2023.
S/ RAÚL M. ARIAS-MARXUACH_____
United States District Judge

be