Rosario Ramos et al
Filing
74
ORDER granting 53 motion for summary judgment. Judgment shall be entered accordingly. Signed by Judge Jay A. Garcia-Gregory on 03/11/2021. (JGA)
Case 3:18-cv-01050-JAG Document 74 Filed 03/11/21 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
CARLOS L. ROSARIO RAMOS, et al.,
Plaintiffs,
v.
THE MUNICIPALITY OF RÍO GRANDE, et al.,
CIV. NO. 18-1050 (JAG)
Defendants.
OPINION AND ORDER
Before the Court is Defendants’ unopposed Motion for Summary Judgment. Docket No. 53.
For the reasons below, the Court GRANTS the Motion for Summary Judgment, DISMISSING all
federal claims WITH PREJUDICE and all state claims WITHOUT PREJUDICE.
BACKGROUND
On January 31, 2018, Carlos L. Rosario-Ramos (“Rosario-Ramos”), Ivelisse Rosario-Méndez
(“Rosario-Méndez”), and Ricardo Torrens-Osorio (“Torrens-Osorio”) (collectively, “Plaintiffs”) filed
this complaint against their employer, the Municipality of Río Grande (“Municipality”); Hon. Ángel
B. González-Damudt (“Mayor”); Rey O. Caraballo-Rodríguez (“Caraballo-Rodríguez”); Leysla
Ortiz-Sánchez (“Ortiz-Sánchez”); José A. Adorno-Aponte (“Adorno-Aponte”); and Evelyn
González-Robles (“González-Robles”) (collectively, “Defendants”) in their official and personal
capacities pursuant to 42 U.S.C. § 1983 for violations of their rights under the First Amendment of
the United States Constitution.1
In sum, Rosario-Ramos and Rosario-Méndez allege that Defendants violated their First
The complaint also includes pendent claims based on Puerto Rico’s Public Service Personnel Act, P.R. LAWS
ANN. Tit. 3, §§ 1301-1431; P.R. Law No. 131 of 1943, P.R. LAWS ANN. Tit 1, §§ 13-19; Puerto Rico’s Employment
Discrimination Act, P.R. LAWS ANN. Tit. 29, §§ 146 et seq.; and damages under Article 1802 of the Puerto Rico Civil Code,
P.R. LAWS ANN. Tit. 31, § 5141, and the Constitution of Puerto Rico. Docket No. 33 at 9.
1
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Amendment rights by discriminating and retaliating against them for making constitutionally
protected public statements. Torrens-Osorio—Rosario-Méndez’s spouse—claims First Amendment
retaliation due to his wife’s statements, as well as damages under Article 1802 for the persecution
and discrimination that he purportedly suffered while working at the Municipality’s Public Works
Department. Plaintiffs request compensatory and punitive damages of no less than $300,000.00 for
Rosario-Ramos, $300,000.00 for Rosario-Méndez, $50,000.00 for Torrens-Osorio, and $50,000.00
for the Torrens-Rosario conjugal partnership. Furthermore, they request equitable relief in the form
of a permanent injunction ordering Defendants to reinstate Plaintiffs to their positions, as well as
attorney’s fees, costs, and expenses incurred.2
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure allows for summary judgment if “the movant
shows that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “When the party
who bears the burden of proof at trial is faced with a properly constituted summary judgment
motion, defeating the motion depends on her ability to show that such a dispute exists.” Geshke v.
Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014) (citing Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st
Cir. 2010)). But the mere existence of “some alleged factual dispute between the parties will not affect
an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986); see Cherkaoui, v. City of Quincy, 877 F.3d 14, 23-24 (1st Cir. 2017) (quoting Sanchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (“Facts are material when they have the ‘potential to
affect the outcome of the suit under the applicable law.’ 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.’”).
On February 22, 2019, the Court dismissed Rosario-Ramos and Rosario-Méndez’s claims for punitive damages
against the Municipality, and all claims against co-Defendants Mayor González-Damudt, Caraballo-Rodríguez, AdornoAponte, and González-Robles in their official capacities. Docket No. 31.
2
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Failure to timely oppose a motion for summary judgment does not, automatically, justify
entry of summary judgment against that party; therefore, a court is “obliged to consider the motion
on its merits, in light of the record as constituted, in order to determine whether judgment would
legally be appropriate.” Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991) (citations omitted); see
De la Vega v. San Juan Star, 377 F.3d 111, 115-16 (1st Cir. 2004). Nonetheless, “a party that fails to oppose
a motion for summary judgment does so at its own risk and peril.” Quiñones Rodríguez v. Andoxx Corp.,
440 F. Supp. 2d 77, 78 (D.P.R. 2006); see also Corrada Betances v. Sea-Land Service, Inc., 248 F.3d 40, 43 (1st
Cir. 2001). As a result, the court may deem as uncontested all evidence and facts presented with the
unopposed motion. Nieto–Vincenty v. Valledor, 22 F. Supp. 3d 153, 161 (D.P.R. 2014). Thus, the moving
party generally prevails. Pérez–Cordero v. Wal–Mart P.R., 440 F.3d 531, 534 (1st Cir. 2006) (“While an
unopposed summary judgment still must be scrutinized in accordance with Fed. R. Civ. P. 56 . . . [i]n
most cases, a party’s failure to oppose summary judgment is fatal to its case.”).
FINDINGS OF FACT
After carefully reviewing Defendants’ unopposed Motion for Summary Judgment, Docket No.
53, and Statement of Uncontested Facts (“DSUMF”), Docket No. 53-1, as well as its supporting
exhibits, the Court adopts Defendants’ factual narrative by reference and deems it undisputed. 3
Although the most relevant material facts are included in the forthcoming discussion, the Court will
first provide a brief summary of each Plaintiff’s allegations.
Plaintiff Rosario-Ramos worked as a heavy equipment driver from 2009 to January 31, 2017
under a temporary employment contract renewed every certain amount of time. DSUMF ¶¶ 181-89.
On January 31, 2020, the Court deemed the Motion for Summary Judgment and the Statement of Uncontested
Facts as unopposed because Plaintiffs failed to timely respond—despite being warned of the consequences of not doing
so. See Docket Nos. 57 and 68.
3
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He had documented attendance issues prior to September 2016, and he was publicly affiliated with
the Popular Democratic Party, the Mayor’s party. Id. at ¶¶ 226-33. On September 22, 2016, per the
reading of a report filed with the police on that same day, Rosario-Ramos was involved in a physical
altercation with his supervisor, Caraballo-Rodríguez. Id. at ¶¶ 342-50. On September 25, 2016, he
posted the following on the social media website Facebook: “Populares de Rio Grande with David
Acosta” (which translates to “Popular Party Members with David Acosta”, who is the Mayor’s
political opponent). Id. at ¶¶ 192-201. On September 26, 2016, Caraballo-Rodríguez asked RosarioRamos to sign an OP-13 form to exhaust his compensatory balance. Rosario-Ramos’s contract ran
until December 31, 2016 and it was renewed by the Municipality twice during January 2017, months
after the post. Id. at ¶¶ 224-40. On January 31, 2017, after the extensions ended, his contract was not
renewed due to the attendance issues that traced back to months prior to the post. Id. at ¶¶ 235-36.
Plaintiff Rosario-Méndez, who was also under a temporary employment contract, worked as
a Purchaser for the Municipality since July 19, 2013. Id. at ¶¶ 3-5. She verified auctions and price
quotes, and kept records of orders for materials. Id. at ¶¶ 5-7. Defendant Adorno-Aponte was her
supervisor at all pertinent times. Id. at ¶¶ 25, 27. On October 2016, Rosario-Méndez talked to a
reporter named José “Cheo” Cruz regarding what she suspected were illegalities in several
transactions she handled. Id. at ¶¶ 92-99. Rosario-Méndez’s contract was renewed monthly from
January 2017 until September 2017. Id. at ¶¶ 164-74. On October 24, 2017, her contract was not
renewed due to attendance and job abandonment issues. Id. at ¶¶ 34-42; ¶¶ 164-74.
Plaintiff Torrens-Osorio works as a heavy truck driver for the Municipality since April 2006.
Id. at ¶¶ 241-246. His position is permanent, and he is married to Rosario-Méndez. Id. His only
allegation against Defendants is that the Municipality engaged in reprisal against him as a result of
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his wife’s expressions to José “Cheo” Cruz. Id. Specifically, that the Mayor ordered a “demeaning
campaign” against him and banned him from driving his truck. Id.
DISCUSSION
I.
Section 1983
Section 1983 of the Civil Rights Act of 1866, 42 U.S.C. § 1983, “provides a remedy for
deprivations of rights secured by the Constitution and laws of the United States when that
deprivation takes place under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982) (quotation marks omitted).
Here, Plaintiffs bring their § 1983 suit under the First Amendment, which “insulates public employees
who hold nonpolicymaking positions from the vicissitudes of personnel decisions rooted in partisan
political concerns.” Bergeron v. Cabral, 560 F.3d 1, 7 (1st Cir. 2009) (abrogated on other grounds by ReyesOrta v. P.R. Highway and Transp. Auth., 811 F.3d 67 (1st Cir. 2016)); see also Welch v. Ciampa, 542 F.3d 927,
938 (1st Cir. 2008) (“[T]he First Amendment also prohibits government officials from taking adverse
employment action against a non-policymaking government employee based on the employee’s
political affiliation . . . .”).
As a threshold matter, Plaintiffs did not place this Court in a position to believe a reasonable
juror would conclude that “a particular defendant’s conduct caused the deprivation of a
constitutional right.” Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1998). Less so when the record
contains little or no evidence suggesting a causal nexus between Plaintiffs’ political affiliation or
expressions, and Defendants’ conduct.4 As such, the Court will proceed to discuss each Plaintiff’s
claims in turn.
To the contrary, the uncontested facts and evidence attest otherwise. See, e.g., DSUMF ¶¶ 139-41; 179-80; 20304; 224; 339.
4
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II.
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Political Discrimination
“A plaintiff bringing a political discrimination claim under the First Amendment bears the
burden of producing sufficient evidence from which a jury may infer that plaintiff’s constitutionally
protected conduct [or political affiliation] was a substantial or motivating factor behind the adverse
employment action.” Torres-Rivera v. P.R. Elec. Power Auth., 598 F. Supp. 2d 250, 255-56 (D.P.R.
2009) (citing Maymi v. P.R. Ports Auth., 515 F.3d 20, 28 (1st Cir. 2008)); see also Rodríguez-Ríos v. Cordero,
138 F.3d 22, 24 (1st Cir. 1998). To establish a prima facie case of political discrimination, one must
show: “(1) the plaintiff and the defendant belong to opposing political affiliations; (2) the defendant
has knowledge of the plaintiff’s affiliation; (3) a challenged employment action occurred; and (4)
political affiliation was a substantial or motivating factor behind it.” Martín-Vélez v. Rey-Hernández, 506
F.3d 32, 39 (1st Cir. 2007) (citations and quotation marks omitted).
Here, only one Plaintiff alleges discrimination based on his change of political affiliation.
Specifically, Rosario-Ramos, a truck driver for the Municipality, alleges he was subjected to political
discrimination after he published a post on Facebook supporting the incumbent Mayor’s political
rival, David Acosta. The post stated the following: “Populares de Río Grande with David Acosta”
(which translates to “Popular Party Members with David Acosta”).5 While David Acosta was the
mayoral candidate for the New Progressive Party, the Mayor belonged to the Popular Democratic
Party. See DSUMF ¶¶ 192-201. As such, Rosario-Ramos contends that, following the post, (1) he was
stripped of his functions because he was given an OP-13 Form6 the day after the publication, and (2)
he was discriminated up until the nonrenewal of his contract in January 2017. See Docket No. 33 at
As will be discussed in the next section, Rosario-Méndez and Torrens-Osorio only alleged a free speech
retaliation claim.
6 The Form, which was handed to him by Caraballo-Rodríguez, forces Rosario-Ramos to use his accumulated
compensatory time. See generally DSUMF ¶¶ 206-24.
5
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2-3. He further alleges that, because his post was public, Defendants knew about his statements in
support of the Mayor’s political contender. Id.
After reviewing the record, the Court concludes that Rosario-Ramos has failed to present
evidence for a reasonable juror to conclude (1) that Defendants had knowledge of the post (and of
Rosario-Ramos’s change of political affiliation for that matter) at all pertinent times, and (2) that
Rosario-Ramos’s public support for David Acosta was the “but-for cause” for the challenged
employment actions.7 See Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (citations omitted).
A. Rosario-Ramos Failed to Show that Defendants Knew of his Political Affiliation
To satisfy the second part of the prima facie discrimination test, Rosario-Ramos needed to
“point” to sufficient evidence suggesting that Defendants knew about his change of political affiliation
at the time of the alleged adverse employment actions. LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir. 1996)
(citation omitted); Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st Cir. 2006). This Court has
previously held that statements of political patronage by themselves, as well as being seen supporting
a particular candidate in a political activity or having political propaganda on one’s house or car, do
not automatically satisfy the prima facie test for political discrimination. Morales-Torrens v. Consorcio del
Noroeste, 767 F. Supp. 2d 287, 294 (D.P.R. 2010) (citing Roman v. Delgado Altieri, 390 F. Supp. 2d 94, 103
(D.P.R. 2005)); see also González–Pina v. Rodríguez, 407 F.3d 425, 432 (1st Cir. 2005) (“[S]upport for a
rival mayoral candidate in the primary, even if the Mayor was aware of such support, is by itself
insufficient to establish political animus.”) (citation omitted). Furthermore, a single “assertion about
statements of political affiliation—unaccompanied by any specific factual information to support a
The Court finds that prongs one and three of the prima facie case have been satisfied. Thus, such prongs will not
be discussed in detail.
7
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claim, and unrelated to any employment action . . . is patently insufficient to establish an act of
political discrimination.” López-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000).
Here, while the Facebook post expressed support for the Mayor’s political rival, RosarioRamos has failed to establish that Defendants knew about the post or his change in political
affiliation. In his deposition, Rosario-Ramos admitted that, during his employment, he was publicly
known as a supporter of the Mayor and the Mayor’s political party. Docket No 53-3 at 99. Thus,
except for the post, the record contains no evidence to suggest that Defendants had any reason to
believe Rosario-Ramos to be a supporter of the opposing party. Moreover, Rosario-Ramos admitted
not knowing whether Defendants saw the post. Docket No 53-3 at 100; DSUMF ¶¶ 192-201; ¶ 224.
He further testified that his supervisor, Caraballo-Rodríguez—who asked him to sign the OP-13
Form the day after the post—was not his friend in Facebook. Docket No. 53-3 at 103. In addition,
two coworkers testified not knowing about the Facebook post or Rosario-Ramos’s change in
political affiliation. See Docket Nos. 53-5 at 7-9; 53-6 at 17-18, 20. As such, the only factual allegation
put forth by Rosario-Ramos to show knowledge is simply that Facebook typically notifies your
network—i.e., your Facebook friends—when you publish a post. Docket No. 53-3 at 100, 103.8 This
sort of speculation is not enough to satisfy the second prong of the test; nor does it imply that
Defendants’ knew of Rosario-Ramos’s political affiliation.
B. Rosario-Ramos Failed to Establish Nexus Between his Post and the Challenged Conduct
Moreover, Rosario-Ramos also failed to meet the fourth prong of the political discrimination
test, regarding causal nexus. The record contains little or no evidence that would suggest, let alone
The fact that Facebook is a social media website does not by itself compel this Court to conclude that the
contents of the post are public knowledge. In other words, from the evidentiary record presented, it does not
automatically follow that Defendants—who were generally not part of Rosario-Ramos’s Facebook network—knew
about Rosario-Ramos’s post simply because of Facebook’s “public square” status. See Packingham v. North Carolina, 137 S.Ct.
1730, 1732 (2017) (describing social media, inter alia, as the “modern public square” for purposes of the First Amendment).
8
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establish by a preponderance of the evidence, that the Facebook post was a substantial or motivating
factor for Defendants’ decision to hand Rosario-Ramos the OP-13 Form 9 or for eventually not
renewing his contract. Instead, Rosario-Ramos’s contentions are based on hearsay statements and
conclusory remarks, whereby he alleges that other municipal employees—Luis Acevedo and Alberto
Morales—told him that the employment decisions stated above “came from the Mayor,” and that he
“[could not] do anything” because he was “carrying on a war on Facebook against the mayor.” See
Docket No. 53-3 at 85-87; DSUMF ¶ 224. Rosario-Ramos even admitted having “no personal
knowledge” that the Mayor or Caraballo-Rodríguez ordered any challenged employment action or,
again, that any Defendant saw his post. Docket No. 53-3 at 87, 100; DSUMF ¶¶ 195, 224.
As courts have recognized, “simply [] asserting an inequity and tacking on the self-serving
conclusion that the defendant was motivated by political animus” does not satisfy the prima facie factspecific showing that a plaintiff was victim of political discrimination. See Cruz-Baez v. Negrón-Irizarry,
360 F. Supp. 2d 326, 339 (D.P.R. 2005) (citing Avilés–Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992);
and Mt. Healthy City Sch. Dist. Bd. v. Doyle, 429 U.S. 274, 287 (1977)). The statements allegedly made by
Rosario-Ramos’s colleagues—none of which are in decision-making positions—do not establish a
politically discriminatory motivation for any of the challenged employment actions. The Court
cannot conclude otherwise simply because Rosario-Ramos was instructed to sign the OP-13 Form
the day after his Facebook post. See Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 28 (1st Cir.
2012) (treating “temporal proximity” between adverse employment actions and protected conduct
as just one factor, that must be reinforced by other evidence).10
Supra footnote 6.
In this sense, it is worth adding that the burden of proving discriminatory motivation in this scenario “is more
substantial than the burden of producing prima facie evidence in, for example, the first stage of a Title VII discrimination
case.” Diaz-Bigio v. Santini, 652 F.3d 45, 56 (1st Cir. 2011) (citations omitted).
9
10
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Perhaps most importantly, the record indicates that on September 22, 2016—four days before
the OP-13 Form was tendered—Rosario-Ramos was involved in a physical altercation with
Caraballo-Rodríguez, because of job-related discrepancies. DSUMF ¶¶ 342-53. As a result,
Caraballo-Rodríguez filed a report of simple aggression with the police. Id. This event alone could
have reasonably prompted the OP-13 Form.11 Similarly, Rosario-Ramos claims he suffered political
discrimination due to his Facebook post, yet his contract was renewed at least twice after the
publication and it was not until the end of January 2017—four months after—that his contract was
not renewed. Id. at ¶ 236. In addition, the record shows that Rosario-Ramos had attendance issues
dating back to months before his Facebook post and he admitted having been warned about such
issues months prior to the post. Id. at ¶¶ 231-33. These findings strengthen the Court’s conclusion
that Rosario-Ramos failed to show, by a preponderance of the evidence, that his political affiliation
was the substantial or motivating factor behind any of the alleged discriminatory actions.
III.
Free Speech Retaliation
“To establish free-speech retaliation, a plaintiff . . . must show that he spoke as a citizen on a
matter of public concern, that his interest in speaking outweighed the government’s interest, as his
employer, in promoting the efficiency of the public services it provides . . . and that his speech was a
substantial or motivating factor [for the adverse employment action].” Rodríguez v. Municipality of San
Juan, 659 F.3d 168, 180 (1st Cir. 2011) (citations and quotation marks omitted). For the speech to be
protected, the employee must speak as a concerned citizen, not as an employee. Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968); see also Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). If the employee’s
In other factual circumstances, it has been determined that the Fair Labor Standards Act (“FLSA”) does not
prohibit an employer from compelling an employee to utilize his compensatory leave. See Christensen v. Harris County, 529
U.S. 576, 585 (2000) (“[FLSA] says nothing about restricting an employer’s efforts to require employees to use
compensatory time. Our interpretation . . . finds support in two other features of the FLSA . . . .”).
11
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speech was made “pursuant to” his official duties or if the government’s interests in functioning
efficiently outweigh the First Amendment interests, then the first and second prongs, respectively,
are not satisfied. Id. Meanwhile, to satisfy the third prong, plaintiff must show a causal connection
between the allegedly protected speech and the retaliatory response. Goldstein v. Galvin, 719 F.3d 16,
30 (1st Cir. 2013) (citation omitted).
Here, both Rosario-Ramos and Rosario-Méndez claim free speech retaliation. While the
former alleges retaliation due to his Facebook post, Rosario-Méndez alleges that she was demoted
and stripped away of her duties as a Purchaser because she disclosed “the truth about the illegal use
of public funds” to José “Cheo” Cruz (“Cheo”)—a reporter who later divulged the information.12
Docket No. 33 at 4-5. For purposes of the free speech retaliation test, the Court will assume without
deciding that both Rosario-Ramos and Rosario-Méndez spoke as private citizens on matters of
public concern. Nonetheless, the Court concludes that Plaintiffs fail to satisfy the rest of the test.
A. Rosario-Méndez Failed to Show that her Interest Outweighed that of the Municipality
The second prong of the free speech retaliation test requires the Court to balance certain
interests. In this sense, “government interests outweigh First Amendment rights when employee
speech prevents efficient provision of government services or disrupts the workplace.” Torres-Rosado
v. Rotger-Sabat, 335 F.3d 1, 13 (1st Cir. 2003) (citations omitted). “In performing the balancing, the
statement will not be considered in a vacuum; the manner, time, and place of the employee’s
expression are relevant, as is the context in which the dispute arose.” Ranking v. McPherson, 483 U.S.
378, 388 (1987). As such, courts must analyze “whether the statement impairs discipline by superiors
or harmony among co-workers, has a detrimental impact on close working relationships for which
It is worth noting that the publications made by Cheo specifically referenced two purchase transactions made
by Rosario-Méndez. DSUMF ¶¶ 46-55. In addition, Rosario-Méndez herself admitted disclosing the transactions to
Cheo for him to investigate them. Id. at ¶¶ 100-110.
12
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personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or
interferes with the regular operation of the enterprise.” Id. (citing Pickering, 391 U.S. at 570–73).
Contrary to her claims, the record demonstrates that: (1) Rosario-Méndez’s expressions to
Cheo were made in a reckless and speculative manner; (2) the expressions posed a substantial risk
of impairing the Municipality’s provision of services; and (3) the Municipality had a legitimate
interest in investigating the disclosures to guarantee the efficiency of its processes and the integrity
of its relations. 13 As such, the Court concludes that the Municipality’s interest in functioning
efficiently was greater than Rosario-Méndez’s interest in expressing herself. See Hennessy v. City of
Melrose, 194 F.3d 237, 248 (1st Cir. 1999) (determining that a City’s “robust interest in implementing
the curriculum without undue interference easily outweighs the [plaintiff’s] interest in [publicly
criticizing the curriculum] at the time and manner that he chose.”).
Rosario-Méndez first contacted Cheo regarding a purchase order, believing that it illegally
authorized the acquisition of materials for the rehabilitation of a private home. Docket No. 53-2 at
59-60. However, she later learned she was mistaken because the materials were destined to the
rehabilitation of a school, which was previously donated through a valid municipal resolution to a
private individual. Id. Furthermore, the rehabilitation of the school was done in order to prepare the
building for upcoming political primaries. Id. at 70. She also incorrectly assumed that the school was
registered as a private, for profit institution because it had the name of “Colegio Abriendo Surcos.”
Id. at 60-61. Such admissions, inter alia, demonstrate that Rosario-Méndez had no reasonable basis to
While the Court will not go as far as to rule on whether Rosario-Méndez’s communications—or Cheo’s, for
that matter—amount to false information or defamation, it will highlight the fact that Defendants posed this question in
their Motion for Summary Judgment. Docket No. 53 at 16. For more on defamation, see Gertz v. Robert Welch, Inc., 418 U.S.
323, 339-40 (1974) (noting that the First Amendment protects false ideas but holds no value for false statements of facts).
13
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believe that the purchase order was illicit when she decided to disclose the information to Cheo. Id.
at 62, 71; see id. at 61, 67, 74-77.
In the second set of disclosures made to Cheo, Rosario-Méndez incorrectly alleged that the
Municipality had processed a purchase order to acquire a replacement tire for a truck owned by a
private individual, a municipal employee. Docket 53-2 at 74. However, when the tire blew, the truck
had been lent to the Municipality to assist in a public works project—specifically, in the
rehabilitation of the private school. See Docket No. 53-2 at 74. Rosario-Méndez also admitted having
no personal knowledge as to whether the Municipality actually paid for the tire. See DSUMF ¶¶ 77107. Again, Rosario-Méndez’s deposition testimony shows that she had no reasonable basis to believe
that an illegality was taking place so as to justify her disclosures to Cheo. See Docket 53-2 at 77-80;
DSUMF ¶¶ 77-107.
These facts underscore the speculative nature of the disclosures and the reckless manner in
which they were made to a reporter, without Rosario-Méndez first verifying the accuracy of her
allegations or reporting the matter to a supervisor. Instead, Rosario-Méndez went on to question her
supervisor, Adorno-Aponte, about the transactions in a way that could jeopardize the efficiency and
integrity of certain municipal services.14 See DSUMF ¶¶ 84-89; Docket No. 53-2 at 62, 71. On this note,
“[t]he First Amendment notwithstanding, a supervisor is entitled to a modicum of respect and
decorum in work-related situations.” Hennessy v. City of Melrose, 194 F.3d 237, 248 (1st Cir. 1999). As a
result, on September 2016—before learning that it was Rosario-Méndez who made the disclosures to
Note the distinction between the type of disclosures and expressions in this case vis-a-vis the statements at
issue in Torres-Rosado v. Rotger-Sabat, 335 F.3d 1 (1st Cir. 2003). In that case, the First Circuit determined that the plaintiff’s
First Amendment interests outweighed Defendants’, particularly because “plaintiff wrote a private memo which she
worded fairly diplomatically; it is difficult to think of a less disruptive manner in which plaintiff might have communicated.”
Id. at 13 (emphasis added). Here, the Court cannot say the same about Rosario-Méndez’s statements and the manner in
which they were offered.
14
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Cheo—Adorno-Aponte retained Rosario-Méndez’s order logbook 15 until the Municipality could
ascertain the source of the published leaks. DSUMF ¶ 49. Subsequently, Rosario-Méndez stopped
handling the purchases or requisitions until January 2017. See id. at ¶¶ 46-55. However, at that
moment, Adorno-Aponte merely knew about Cheo’s publications accusing the Municipality of
illegal purchases, not the identity of the source of the leak. Id.
As mentioned, the balancing of interests requires this Court to consider the manner, time,
and place of the expressions, and “requires full consideration of the government’s interest in the
effective and efficient fulfillment of its responsibilities to the public.” Connick v. Myers, 461 U.S. 138,
151-52 (1983) (citing Ex parte Curtis, 106 U.S. 371, 373 (1882)). Here, the Court finds that RosarioMéndez’s speculative disclosures and statements carried a substantial risk of disruption to the
Municipality’s purchase department. See Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) (determining
that a “substantial risk of disruption to the department” may be apparent from the “text of the speech
and the escalation of [plaintiff’s] speech.”) (citations omitted). Thus, it logically followed that the
Municipality would take appropriate measures—such as retaining the order logbook—to prevent
any future disruption of its services and investigate the leaks as well as the corruption allegations. Id.
(“Significant weight is given to the public employer’s reasonable predictions of disruption, even
when the speech involved is on a matter of public concern.”) (quotation marks and citation omitted).
The foregoing is particularly true not only because of the content and nature of the
expressions themselves, but because the disclosures were made to a reporter and it was reasonable
to assume that he would publish the information as conveyed to him. In this sense, the disclosures
The order logbook is a “book where all orders that have been placed are entered into, to maintain an altogether
record at hand of processed orders in case any municipal office called to inquire information regarding the status of a
requisition”. DSUMF ¶ 18. Rosario-Méndez admitted that the logbook was not the basis of her functions. Id. at ¶ 52. After
the logbook was retrieved, none of her office equipment or office space was taken away. Id. at ¶ 56.
15
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risked causing—and indeed caused—“a detrimental impact on close working relationships for
which personal loyalty and confidence are necessary, [] impede[d] the performance of the speaker’s
duties [and] interfere[d] with the regular operation of the enterprise.” Ranking, 483 U.S. at 388
(citation omitted). Moreover, the record shows that the actions taken by Adorno-Aponte after
noticing Cheo’s publications—that is, to retain the order logbook, and temporarily halting RosarioMéndez’s handling of purchases—were objectively reasonable.
As such, and in light of Pickering and its progeny, the Court reiterates that speculative remarks
done with no reasonable basis risk disrupting work relations and undermining the operations of an
entire department—particularly when such a department is composed of only two employees.
DSUMF ¶¶ 7-13; see Waters v. Churchill, 511 U.S. 661, 680 (1994) (admonishing that the balance must
take into account the employer’s strong interest in avoiding friction in the workplace). While the
Court sees no reason to doubt Rosario-Méndez’s sense of responsibility and commitment to
denouncing corruption, the record leaves no room to conclude that a reasonable juror would find
that her interest in disclosure outweighed the Municipality’s interest in the efficient administration
of its services. Less so when the Municipality—as an employer—had a legitimate interest in
investigating the disclosures to guarantee transparency, efficiency, the correctness of the
information, and the continuation of public services. DSUMF ¶ 49; see Docket Nos. 53-13 and 54-14.16
B. Rosario-Méndez Failed to Establish Nexus Between her Statements and the Challenged
Conduct
In any case, Rosario-Méndez failed to proffer evidence to show causation between her
statements and Defendants’ conduct. To evaluate whether a causal nexus exists, Plaintiffs must
See also Connick, 461 U.S. at 147 (“So long as employees are speaking as citizens about matters of public concern,
they must face only those speech restrictions that are necessary for their employers to operate efficiently and
effectively.”).
16
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adduce “proof of a causal connection between the allegedly protected speech and the allegedly
retaliatory response.” Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir. 2013) (citation omitted). As such,
It is not enough to show that an official acted with a retaliatory motive and that the
plaintiff was injured—the motive must cause the injury. Specifically, it must be a
‘but-for’ cause, meaning that the adverse action against the plaintiff would not have
been taken absent the retaliatory motive.
Nieves, 139 S.Ct. at 1722 (citation omitted). Yet, “the mere fact that an adverse action was taken after
an employee exercises First Amendment rights is not enough by itself to establish a prima facie
case.” Acosta–Orozco v. Rodríguez de Rivera, 132 F.3d 97, 101 (1st Cir. 1997).
The record is devoid of evidence as to whether Adorno-Aponte—or any other superior—
knew about Rosario-Méndez’s disclosures before the challenged employment actions took place. To
the contrary, Rosario-Méndez testified that it was sometime between October and November 2016
when Martha Negrón—the other Purchaser for the Municipality—allegedly told Adorno-Aponte
about Rosario-Méndez’ statements to Cheo. Docket No. 53-2 at 110-13. However, the challenged
employment action against Rosario-Méndez began earlier that year, in September. Id. In fact,
Rosario-Méndez testified that the only reason for her to believe that her duties were stripped as a
result of her communications with Cheo is that a coworker told her that Martha Negrón had told
the Municipality that Rosario-Méndez disclosed the information. Docket 53-2 at 115-16. This hearsay
within hearsay is insufficient to show causation.
Rosario-Méndez also claims that the Municipality’s failure to renew her contract in October
2017, after Hurricane Maria, was retaliation for her communications with Cheo, even though this
non-renewal occurred one year after her disclosures to Cheo. The record, however, shows that her
contract was renewed several times after her disclosures. DSUMF ¶¶ 4, 164-72. It also shows that
before the disclosures, Rosario-Méndez was repeatedly warned of her attendance issues. Id. at ¶¶ 29-
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40. She even admitted that she would oftentimes fail to timely inform her supervisor of her tardiness
or absence. Id. In fact, Rosario-Méndez and other coworkers were even summoned to the Human
Resources Office and notified by letter about their attendance issues. Id. at ¶¶ 30; 37. Yet, after
Hurricane Maria, she failed to report to work as instructed for approximately three weeks and failed
to sign the attendance sheet as instructed. Id. at ¶¶ 150-51, 154-55, 158-63. These findings further
strengthen the fact that there is no “but-for” causality between her expressions and the non-renewal
of her contract. See Nieves, 139 S.Ct at 1722 (citations omitted).
C. Rosario-Ramos Again Failed to Establish Causal Nexus
As to Rosario-Ramos, the statements in his Facebook post supporting a political candidate,
made approximately two months before an election, certainly constituted the type of individual
speech that is of the upmost public importance in our democratic society. See, e.g., Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 333-35 (2010). Hence, his interest in expressing support for a political
candidate clearly outweighs whatever hindrance such post could cause the Municipality or his
Mayor. This is especially true when nothing in the record sheds light as to how such a post would
disrupt the Municipality’s provision of services.
Nevertheless, Rosario-Ramos failed to proffer enough evidence to conclude that there exists
causation between his political statement—the Facebook post—and Defendants’ supposed
retaliatory actions. As explained above, supra section II.A, the record does not contain evidence that
Rosario-Ramos’s supervisors were aware of his Facebook post or that any Defendant ordered the
challenged employment actions. Furthermore, as also stated above, supra section II.A, Rosario-Ramos
had been involved in a workplace altercation with a supervisor before the challenged actions took
place. This event alone would provide a legitimate explanation for the employer’s conduct. Supra
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section II.A. Thus, no reasonable juror could conclude that the post was the motivating factor or the
“but-for” cause for the conduct taken against him. See Nieves, 139 S.Ct at 1722 (citations omitted).
D. Torrens-Osorio did not Make any Protected Expressions
Finally, as to Torrens-Osorio—the truck driver who claims First Amendment retaliation due
to his wife’s communications with Cheo—, his allegations do not support a cause of action under the
First Amendment because nothing in the record shows that he made any statements himself on
matters of public concern. Hence, he automatically fails to meet the first prong of the retaliation test:
that plaintiff engaged in a constitutionally protected activity related to a form of public concern
speech. Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir. 2008) (citing Ranking, 483 U.S. at 384) (“As a
threshold matter, we must determine whether the employee spoke as a citizen on a matter of public
concern.”). Only by satisfying this prong could the Court proceed to consider prongs two and three.
As such, Plaintiffs failed to show (1) that a prima facie case of First Amendment violations has
been established as to any Defendant, or (2) that each individual Defendants’ conduct constitutes a
deprivation of Plaintiffs’ rights. From the facts and evidence presented, no reasonable juror could
reasonably infer otherwise. The Court thus must DISMISS ALL FIRST AMENDMENT CLAIMS
WITH PREJUDICE.
IV.
Qualified Immunity and Municipal Liability
Assuming arguendo that Plaintiffs could have successfully established a prima facie case of First
Amendment discrimination or retaliation, Defendants—in their individual capacity—would still be
entitled to qualified immunity. “[T]he doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Guillemard-Ginorio v.
Contera-Gomez, 585 F.3d 508, 526 (1st Cir. 2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
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To bypass such immunity, Plaintiffs had to “point to controlling authority or a body of persuasive
authority, existing at the time of the incident, that can be said to have provided the defendant with
‘fair warning’” of the illegality of their actions or inactions. Decotiis v. Whittemore, 635 F.3d 22, 37 (1st
Cir. 2011) (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)). They did not do so. Moreover, from the
record presented, as well as the set of facts discussed, it is “far from clear if Defendants’ actions were
sufficiently oppressive to chill the speech of a reasonable hardy individual,” or if Defendants had “fair
warning” that their particular conduct was unconstitutional. Barton v. Clancy, 632 F.3d 9, 30 (1st Cir.
2011). The Court cannot simply assume that each Defendant knew or should have known that their
actions constituted a constitutional violation, especially since Plaintiffs have failed to show they did
in fact suffer a constitutional deprivation of rights.
On the other hand, in Monell v. Dep’t of Soc. Servs. of City of N.Y., the Supreme Court held that
municipalities could be held liable for violations of § 1983, but not on the basis of respondeat superior.
436 U.S. 658, 691 (1978). Rather, municipal liability must be based on the enforcement of an “official
policy” that serves as the “moving force of the constitutional violation.” Id. at 694-95; Haley v. City of
Bos., 657 F.3d 39, 51 (1st Cir. 2011) (“[A] plaintiff who brings a section 1983 action against a
municipality bears the burden of showing that, through its deliberate conduct, the municipality was
the moving force behind the injury alleged.”) (quotation marks and citation omitted). Therefore,
“municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a
course of action is made from among various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati,
475 U.S. 469, 483 (1986) (citation omitted). Here, the record is devoid of evidence that the Mayor
was personally involved in the decision-making behind the challenged employment actions, that he
either sanctioned or ordered other officials to carry out the challenged conduct, or that such actions
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were part of a customary practice commonly accepted by him. Plaintiffs instead relied on hearsay
evidence about isolated remarks from co-workers, to allege that the Mayor knew about or was
behind the challenged conduct.17 Thus, the Court cannot conclude that the Municipality is liable.
V.
State Law Tort Claims
Plaintiffs’ remaining claims are grounded on Puerto Rico law. Generally, district courts
should decline to exercise supplemental jurisdiction over a plaintiff’s state law claims when all
federal claims are dismissed. Camelio v. Am. Fed., 137 F.3d 666, 672 (1st Cir. 1998) (“the balance of
competing factors ordinarily will weigh strongly in favor of declining jurisdiction over state law
claims where the foundational federal claims have been dismissed at an early stage in the litigation.”).
Because the Court dismisses Plaintiff’s federal claims, the Court declines to exercise supplemental
jurisdiction and DISMISSES WITHOUT PREJUDICE any claims made under Puerto Rico law.
CONCLUSION
This Court hereby GRANTS Defendants’ Motion for Summary Judgment. Docket No. 53.
Accordingly, Plaintiffs’ federal claims for discrimination and retaliation are DISMISSED WITH
PREJUDICE, and the claims pursuant to Puerto Rico law are hereby DISMISSED WITHOUT
PREJUDICE. Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, March 11, 2021.
S/ JAY A. GARCIA-GREGORY
JAY A. GARCIA-GREGORY
SENIOR U.S. DISTRICT JUDGE
For example, Plaintiffs themselves testified that they were told certain actions were carried out “by order of
the Mayor,” or by “instructions of the mayor.” See DSUMF ¶¶ 32, 173-76; Docket No. 53-2 at 67. These few self-serving
remarks do not compel the Court to change today’s decision. Likewise, there are facts and testimony suggesting the
Mayor (1) was either unaware of the alleged retaliatory conduct or (2) did not typically interact with Plaintiffs, and (3)
gave no direct instructions regarding how to proceed with Plaintiffs. See, e.g., DSUMF ¶¶ 92-93, 173-76, 195-96, 224, 32629, 332, 338, 339.
17
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