BRUCE J. McGIVERIN, United States Magistrate Judge.
In an amended complaint, Alberto Cabrera de la Mata ("Cabrera"), his wife Maribel Rivera Pacheco ("Rivera"), and their conjugal partnership (collectively, "plaintiffs") sued the Puerto Rico Highway and Transportation Authority ("PRHTA"), Rubén Hernández Gregorat ("Hernández") in his personal and official capacities as Secretary of the Department of Transportation and Public Works, Brenda Gomila Santiago ("Gomila") in her personal and official capacities as Executive Director of Human Resources, Lillian Carrasco ("Carrasco") in her personal and official capacities as Special Aide to the Secretary, Ferdinand Cedeño ("Cedeño") in his personal and official capacities as Special Aide to the Secretary (collectively, "defendants"), and an unnamed insurance company. (Docket No. 24, hereinafter "Compl."). Cabrera alleges that he was subjected to retaliation because of his allegiance to the Popular Democratic Party ("PDP") following the installation of New Progressive Party ("NPP") leadership in the wake of the 2008 gubernatorial election. Cabrera alleges that this deprived him of his rights to free speech, free association, equal protection, and due process under the federal Constitution, in violation of 42 U.S.C. § 1983 ("Section 1983"), as well as rights under the Commonwealth constitution, Law No. 184 of August 3, 2004 ("Law 184"), 3 L.P.R.A. §§ 1461 et seq., Law No. 100 of June 26, 1956 ("Law 100"), 29 L.P.R.A. §§ 146 et seq., and Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141, 5142. Rivera and the conjugal partnership allege that they suffered damages based on having to "witness the anxiety and anguish this situation has had" on Cabrera.
Before the court is defendants' motion for summary judgment on all claims. (Docket No. 67). Plaintiffs opposed the motion. (Docket Nos. 84, 85). Defendants replied to plaintiffs' Local Rule 56 statement of facts. (Docket No. 99). For the reasons that follow, defendants' motion for summary judgment is
The facts of the case are summarized here after applying Local Rule 56, which structures the presentation of proof at summary judgment.
Hernández stated that he did not know Cabrera's party affiliation.
There is conflicting evidence of whether Gomila knew of Cabrera's party affiliation. In his deposition, Cabrera testified that he had told Gomila his affiliation "within the dynamics of us joking with each other." (Docket No. 85-1, p. 6). But in an answer to interrogatories, Gomila denied knowing Cabrera's affiliation.
Cedeño stated that he did not know Cabrera's party affiliation. (Def. St., ¶ 5). Cedeño never told Cabrera that he knew of his affiliation. (Def. St., ¶ 28). Cabrera never told Cedeño what his affiliation was. (Def. St., ¶ 29). And Cedeño never told Cabrera his own affiliation. (Def. St., ¶ 30).
Carrasco stated that she did not know Cabrera's party affiliation. (Def. St., ¶ 4). Cabrera never told Carrasco what his affiliation
Sonia Vélez ("Vélez") did not know Carrasco's party affiliation. (Def. St., ¶ 18). She did not know whether Carrasco knew Cabrera's affiliation. (Def. St., ¶ 19). Vélez never witnessed "any action" by Carrasco "against" Cabrera. (Def. St., ¶ 20). Vélez does not know whether Gomila knew Cabrera's affiliation. (Def. St., ¶ 26). While Vélez did not know Gomila's party affiliation, she was aware that Gomila's position was a "trust position." (Pl. St., ¶ 27). Vélez does not personally know Cedeño. (Def. St., ¶ 32). Vélez does not know who Cedeño votes for, but once heard him speaking on the radio as an NPP supporter during the PDP administration, criticizing the Highway Authority. (Pl. St., ¶ 32). Vélez does not know whether Cedeño knew Cabrera's party affiliation. (Def. St., ¶ 34). Vélez does not personally know Hernández or his party affiliation, but knows that he was appointed under the NPP administration. (Def. St., ¶¶ 44-45; Pl. St., ¶ 45). She does not know whether Hernández knows Cabrera's party affiliation. (Def. St., ¶ 46).
Aida Arocho Nieves ("Arocho") does not know whether Carrasco knows Cabrera's party affiliation. (Def. St., ¶ 52). She never discussed "politics" with Carrasco. (Def. St., ¶ 53). Arocho does not know whether Gomila knows Cabrera's party affiliation. (Def. St., ¶ 54). Arocho has never discussed politics with Gomila. (Def. St., ¶ 55). Arocho does not know whether Cedeño knew Cabrera's party affiliation. (Def. St., ¶ 56). Arocho never discussed politics with Cedeño. (Def. St., ¶ 57). Arocho does not know whether Hernández knew Cabrera's affiliation. (Def. St., ¶ 58). Arocho never had any kind of conversation with Hernández. (Def. St., ¶ 59).
Cynthia Rodríguez Vásquez ("Rodríguez") does not know whether Carrasco knew Cabrera's affiliation. (Def. St., ¶ 64). She never discussed politics with Carrasco. (Def. St., ¶ 65). She does not know whether Gomila knew Cabrera's affiliation. (Def. St., ¶ 66). She never discussed politics with Gomila. (Def. St., ¶ 67). She does not know Cedeño and has never talked about politics with him. (Def. St., ¶¶ 68-69). She has never spoken with Hernández, and does not know whether he knows Cabrera's affiliation. (Def. St., ¶¶ 70-71).
Plaintiff Rivera never discussed Cabrera's affiliation with Carrasco. (Def. St., ¶ 12). Rivera does not know whether Carrasco knew Cabrera's affiliation. (Def. St., ¶ 13). Rivera never discussed her own affiliation with Carrasco, never discussed politics with Carrasco, and does not know Carrasco's affiliation. (Def. St., ¶ 14-16). Rivera never discussed Cabrera's affiliation with Gomila. (Def. St., ¶ 21). Rivera never told Gomila her own party affiliation. (Def. St., ¶ 22). Rivera never discussed politics with Gomila. (Def. St., ¶ 23). Rivera does not know whether Gomila knew Cabrera's affiliation. (Def. St., ¶ 24). Rivera does not know Gomila's affiliation. (Def. St., ¶ 25). Rivera never discussed Cabrera's affiliation with Cedeño. (Def. St., ¶ 36). She never discussed politics with Cedeño. (Def. St., ¶ 37). She does not know whether Cedeño knew Cabrera's affiliation. (Def. St., ¶ 38). She does not know Cedeño's affiliation. (Def. St., ¶ 39).
On April 29, 2009, El Nuevo Día published an article listing the salaries of certain PRHTA trust employees; the article stated its source was a "change report" generated by the PRHTA Human Resources Office. (Def. St., ¶ 76). Hernández ordered an investigation into the leak. (Def. St., ¶ 77). Hernández never targeted any particular employee. (Def. St., ¶ 78). Cedeño lacked authority to request an investigation of the leak. (Def. St., ¶¶ 91-92).
Cabrera told Arocho he was being investigated for the leak. (Pl. St., ¶ 60). According to Arocho, Sánchez mentioned that there were rumors Cabrera had leaked the information. (Pl. St., ¶ 60). According to Cabrera, Sánchez told him there was an investigation, and said Cedeño had found two witnesses who would testify against him.
Regulation Number 02-004, "Standards of Conduct and Disciplinary Measures," provides the formal framework for disciplinary actions. (Def. St., ¶¶ 82-84). Sánchez's "Request for Investigation" refers to Regulation Number 02-004. (Def. St., ¶ 85). The report did not state that Cabrera was the target of the investigation, and did not exonerate anyone. (Def. St., ¶¶ 80-81). César Maldonado interviewed Cabrera and said he was "part of" the investigation, but never said he was the target. (Docket No. 85-1, p. 17-18). Cabrera never received any written communication regarding the investigation. (Def. St., ¶ 88). He was never reprimanded, and never received any discipline pursuant to the investigation. (Def. St., ¶¶ 89-90). On October 7, 2011, the Director of Human Resources certified that the El Nuevo Día investigation was dismissed "without any result." (Def. St., ¶ 87).
Arocho never saw any document naming Cabrera as the target of the leak investigation. (Def. St., ¶ 95). Rodríguez did not know anything about the investigation. (Def. St., ¶ 96).
In Resolution 2010-01, Hernández was vested with authority to review improper personnel appointments.
Early in the audit, files were processed in alphabetical order, but after some time, Carrasco started ordering Rodríguez to deliver specific individuals' files.
On January 26, 2010, Hernández issued a letter stating that he intended to declare Cabrera's appointment null. (Def. St., ¶¶ 122-123). Following an informal hearing on May 18, 2010, Hernández adopted a recommendation leaving the January intention letter without effect; Hernández informed Cabrera of this decision by a letter dated July 20, 2011. (Def. St., ¶¶ 124-125).
Personnel Regulation 02-005 sets forth procedures for reviewing personnel files. (Def. St., ¶¶ 97-100). Gomila sent a memorandum on June 18, 2009 designating Carrasco as "the person responsible for control and handling of files." (Def. St., ¶ 101).
Cabrera requested a copy of his personnel file, in writing, on September 21, 2009. (Def. St., ¶¶ 102-103). He paid for this copy on September 28, 2009. (Def. St., ¶ 104-105). According to Carrasco, the Human Resources Office could not make copies until proof of payment was received. (Def. St., ¶ 106).
Cabrera asked to see his personnel file on September 23, 2009. (Def. St., ¶ 107). Cabrera testified that another PRHTA employee requested her personnel file immediately after he requested his own.
Rodríguez told Cabrera that Carrasco would let him know when his personnel file would be reviewable. (Pl. St., ¶ 17). Rodríguez did not know how many times Cabrera had requested access to his file, and her only knowledge about his requests for photocopies was that he had mentioned it to her. (Def. St., ¶¶ 115-116).
On January 25, 2010, Sheila Reyes Orta sent a letter to Gomila requesting an investigation of another leak of salary information; Gomila responded with a letter declining to engage in a formal investigation.
Cabrera was one of several employees deprived of access to the Human Resources database and required to provide justifications for further access. (Def. St., ¶¶ 132, 136). His supervisor, Sonia Vélez, was also deprived of access, along with Arocho and María Ortiz. (Pl. St., ¶ 131; Def. St., ¶¶ 134, 137). On February 10, 2010, Vélez submitted a written request and justification for her and Cabrera to access the database. (Def. St., ¶ 133). On February 16, Gomila e-mailed two other persons, asking them to give Vélez and Cabrera access to the database. (Def. St., ¶ 138). Cabrera and Vélez were given access to the database again on February 22, 2010. (Def. St., ¶¶ 140-141).
According to Gomila, her directive applied "evenly to all staff," and was never targeted at Cabrera. (Def. St., ¶ 144). According to Vélez, Cabrera's access to the database was restricted and monitored.
Cabrera was appointed as Supervisor of Transactions of Human Resources on September 3, 2008. (Def. St., ¶ 159). His formal job description provides, as examples of his work, that he would: "supervise[] and coordinate[]" appointments, transfers, and so forth; prepare change reports; review information in the documents accompanying each transaction; maintain a register of positions and transactions; and prepare other reports. (Def. St., ¶ 162).
PRHTA has not made any new regular or career appointments since January 8, 2009, with the exception of an appointment made pursuant to a court order. (Def. St., ¶¶ 160-161). Cabrera verified and signed an annual report detailing personnel transactions and accounting for all active employees, on August 12, 2010. (Def. St., ¶¶ 163-165). He also verified and signed monthly reports for June 2009, for each month between August 2009 and May 2010, and for July 2010 through May 2011. (Def. St., ¶ 166). Cabrera requested a budget certification for a new appointment on May 21, 2009. (Def. St., ¶ 168). Cabrera referred another newly appointed employee to the Civil Rights Office and the Retirement Affairs Coordinator on May 26, 2009. (Def. St., ¶ 167). He requested a budget certification for another employee on June 15, 2009, and initiated the "letter of designation." (Def. St., ¶ 170). He requested a budget certification for another employee on June 17, 2009, and referred the employee to the Civil Rights Office and Retirement Affairs Coordinator on July 1, 2009. (Def. St., ¶ 169). Cabrera furnished a number of change reports to Gomila on August 3, 2009. (Def. St., ¶ 173). Cabrera referred another newly appointed employee
Cabrera testified that he continues to perform "supervisory functions." (Def. St., ¶ 192). Cabrera also said that he "would not supervise the entire process" of appointments, but rather, "be given some transactions strictly for just entering them into the system, and in the redaction or writing of letters." (Pl. St., ¶ 161). Vélez testified that certain technicians were given assignments directly, bypassing Cabrera. (Pl. St., ¶ 176). However, she also testified that Cabrera would supervise their work. (Def. St., ¶ 195). Neither Arocho nor Rodríguez had knowledge of Cabrera being deprived of any job functions. (Def. St., ¶¶ 193-194).
On October 22, 2009, Gomila wrote a letter to all supervisors informing them that the physical facilities would be reorganized, and that "closed offices" would be reassigned in accordance with Procedure Number 09-06-03. (Def. St., ¶¶ 147-148). The procedure document does not identify "Supervisor" as a rank entitled to a closed office. (Def. St., ¶ 149). Gomila stated that Cabrera was moved to a cubicle for these reasons, and not because of any political animus. (Def. St., ¶ 155). According to Vélez, Cabrera's work space was moved to a space with no privacy, construction debris was left in the middle of the floor, and he no longer had the most direct access from his work area to bathrooms and "ladders"
In a document dated September 2, 2010, a PROSHA inspector found that the exit space from a cubicle was insufficient under safety standards, and that the violation impacted Arocho.
Cabrera has never visited a doctor or psychiatrist in connection with his allegations of discrimination. (Def. St., ¶ 196). He testified that he had not done so because he did not wish to use sick leave. (Pl. St., ¶ 196). Rivera has never visited a doctor or psychiatrist for treatment related to the matter, either. (Def. St., ¶ 197). Rivera never witnessed any acts against Cabrera. (Def. St., ¶ 51). Cabrera's salary was not reduced, and he was not moved to a different geographic location. (Def. St., ¶ 199-200). His title was not changed. (Def. St., ¶ 201).
Carrasco was not Cabrera's direct supervisor. (Def. St., ¶ 17). Cedeño was not Cabrera's direct supervisor. (Def. St., ¶ 40). Carrasco lacked authority to take "any adverse personnel action" against Cabrera.
Rodríguez does not know whether Gomila, Carrasco, Cedeño, or Hernández have ever taken any actions against Cabrera. (Def. St., ¶¶ 72-75). Vélez never witnessed
Plaintiffs sued in this court on August 5, 2010. (Docket No. 1). Prior to filing suit, Cabrera never filed an administrative complaint before PRHTA. (Def. St., ¶ 1). Carrasco and Cedeño moved to dismiss the complaint. (Docket Nos. 12, 13). Plaintiffs amended the complaint on November 29, 2010. (Docket No. 24). Carrasco and Cedeño renewed their motions to dismiss. (Docket No. 32). This court ruled that plaintiffs failed to state claims as to (1) the section 1983 claims brought by Rivera and the conjugal partnership, (2) the section 1983 claims against Carrasco, and (3) the equal protection and due process claims against Cedeño. (Docket No. 100, p. 13).
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is material only if it "might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and "[a] `genuine' issue is one that could be resolved in favor of either party." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004). The court does not weigh the facts, but instead ascertains whether the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact." Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Fed. R.Civ.P. 56(c)(1). Once this threshold is met, the burden shifts to the nonmoving party, who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the court draws inferences and evaluates facts "in the light most favorable to the nonmoving party," Leary, 58 F.3d at 751, and an evaluating court may not "superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas may be) upon the facts of the record." Greenburg v. P.R. Maritime Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). Nonetheless, summary judgment is appropriate where the nonmoving party rests entirely upon "conclusory allegations, improbable inferences, and unsupported speculation" on any essential element of the claim. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
In their amended complaint, plaintiffs allege that the defendants (1) violated Cabrera's free speech and free association rights by engaging in political retaliation; (2) violated Cabrera's equal protection rights; (3) violated Cabrera's due process rights; (4) violated an assortment of Puerto Rico statutory and constitutional rights; and (5) injured Rivera and the conjugal partnership as a result of violating Cabrera's constitutional rights. (Docket No. 24).
The defendants argue that Rivera lacks standing to sue under section 1983 because she was not personally injured by any state action.
Rivera and the conjugal partnership seek damages "because of [defendants'] intentional tortious misconduct and repeated violation of plaintiff Cabrera de la Mata's constitutional rights." (Docket No. 24, ¶ 60) (emphasis added). To the extent this was intended as a section 1983 claim, defendants are entitled to summary judgment. However, this analysis has no impact on claims under Commonwealth law, so long as they share a common nucleus of fact with any of Cabrera's remaining federal claims. See Rodríguez-Rios v. Cordero, 138 F.3d 22, 26-27 (1st Cir.1998).
The individual defendants assert that they are entitled to qualified immunity because they "acted, at all times[,] within the established framework of their functions... and they neither negligently nor intentionally violated any of [Cabrera's] constitutional rights." (Docket No. 67, p. 33). A public officer is entitled to immunity from suit unless (1) the facts show a violation of a constitutional right, and (2) that right was "clearly established" at the time of the defendant's conduct. Air Sunshine, Inc. v. Carl, 663 F.3d 27, 32-33 (1st Cir.2011). I will separately address the claims of qualified immunity with respect to each alleged constitutional violation.
Defendants correctly point out the principle that "[a]n equal protection claim alleging political discrimination merely restates a First Amendment political discrimination claim and, as we have said repeatedly, should [be] considered under the First Amendment." See Uphoff Figueroa v. Alejandro, 597 F.3d 423, 430 n. 8 (1st Cir.2010) (collecting cases). The individual defendants are therefore entitled to qualified immunity, and the PRHTA is entitled to dismissal, because there is no cognizable equal protection claim.
With respect to Cabrera's due process claim, defendants correctly observe that Puerto Rico law does not consider
Here, Cabrera "does not claim to have been deprived of state employment, [his] title, or [his] salary; [he] claims only to have been deprived of duties pertaining to [his] position." See Torres-Martínez v. P.R. Dep't of Corrections, 485 F.3d 19, 24 (1st Cir.2007). Therefore, the individual defendants are entitled to qualified immunity, and the PRHTA is entitled to dismissal, because Cabrera cannot establish a federal due process violation under his claims.
The core of Cabrera's complaint is that he was subject to a variety of workplace humiliations and inequities because of his allegiance to the PDP. I begin with defendants' challenges to Cabrera's narrative, and then address whether liability may be imputed to PRHTA or the individual defendants, and conclude by revisiting the issue of qualified immunity.
"It is axiomatic that `the First Amendment protects non-policymaking public employees from adverse employment actions based on their political affiliation or opinion.'" Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 152 (1st Cir.2006) (quoting González-Piña v. Rodríguez, 407 F.3d 425, 431 (1st Cir.2005)). A plaintiff bears the burden of showing that "political discrimination was the substantial or motivating factor in a defendant's employment decision." Id. (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 132 (1st Cir.2005)). "Even `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." Barton v. Clancy, 632 F.3d 9, 29 (1st Cir.2011) (citation omitted). But "even if a plaintiff shows an impermissible political motive, he cannot win if the employer shows that it would have taken the same action anyway...." Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 6 (1st Cir. 2012); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). This is an affirmative defense; as such, a defendant cannot prevail at summary judgment "unless the evidence that he provides on that issue is conclusive." See Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir.1998).
Defendants attempt to secure summary judgment by controverting his factual account of each episode: (1) the leak investigation, (2) the PRHTA personnel audit, (3) Cabrera's ability to review his personnel file, (4) deprivation of Cabrera's access to
Defendants argue that any claims of discrimination arising out of the El Nuevo Día investigation are either (1) moot because the investigation has since been dismissed, or (2) fail to establish an "adverse employment action" because Cabrera was never the "target" of the investigation. (Docket No. 67, p. 12).
Defendants' mootness argument is unavailing. Mootness doctrine stems from the Article III requirement that federal courts only decide cases or controversies, and requires dismissal where "the issues presented are no longer live or when the parties lack a legally cognizable interest in the outcome." Chico Serv. Sta., Inc. v. Sol P.R. Ltd., 633 F.3d 20, 35 (1st Cir.2011) (quoting Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir.2001)). But a case is not moot unless "an intervening event makes it impossible for the court to grant any effectual relief." Weaver's Cove Energy, LLC v. R.I. Coastal Resources Mgmt. Council, 589 F.3d 458, 468 (1st Cir.2009) (citations and quotation marks omitted). Here, plaintiffs seek four forms of relief: (1) a determination that Cabrera's rights were violated; (2) injunctions forbidding future discrimination, ordering the disclosure of the investigation results, and ordering Cabrera's formal exoneration; (3) awards of compensatory and punitive damages, with interest; and (4) an award of attorney's fees. (Docket No. 24, p. 15-16). The fact that the internal investigation was closed (Def. St., ¶ 87) does not make it impossible for the court to provide any relief, since plaintiffs' theories of recovery do not turn on whether the investigation is ongoing or not. Defendants are therefore not entitled to dismissal on mootness grounds.
Defendants have also failed to show they are entitled to judgment as a matter of law on their version of the facts. They argue that Cabrera was never a designated target of either Sánchez's preliminary investigation or of the subsequent formal investigation, that he was never presented with any formal communications, and that he was never subjected to disciplinary action. Without further analysis, defendants summarily conclude that plaintiffs' claim is therefore "meritless and cannot be considered ... an adverse employment action." (Docket No. 67, p. 12). Thus, defendants appear to argue only that the investigation did not formally target Cabrera, and that it therefore was not adverse to him. Answering this point, plaintiffs offer evidence that Sánchez, who prepared a report on the preliminary investigation, had told Cabrera there were
Defendants' only argument regarding the audit of Cabrera's personnel file is that his claim is moot "since [Hernández] adopted the recommendation of the Examining Officer and left without effect the letter of intention to declare [Cabrera's] promotion null." (Docket No. 67, p. 16-17). As discussed above, claims are only moot when intervening events make it impossible to grant relief. Weaver's Cove, 589 F.3d at 468. Since plaintiffs seek, inter alia, damages and attorney's fees, the case is not moot, and defendants are not entitled to judgment on this claim.
Defendants argue that contrary to the complaint's allegations, there is no evidence that Cabrera's ability to examine his personnel file was ever curtailed. (Docket No. 67, p. 14-15). But plaintiffs point to Cabrera's deposition testimony that he recalled an occasion on which he was not permitted to see his file on the same day of his request. (Docket No. 85-1, p. 21-23). Since there is evidence from which a jury could conclude Cabrera was not given same-day access to his file, and because defendants do not challenge this claim on any other grounds, they are not entitled to summary judgment.
Defendants assert that Cabrera was not the only person deprived of access to the Human Resources database, and that his access was restored after Vélez, his supervisor, provided Gomila with a written justification for his continued access to the database. (Docket No. 67, p. 18-19). Defendants summarily conclude that this renders Cabrera's claim "groundless." (Docket No. 67, p. 19). But without further analysis, defendants have not met their initial burden of informing the court of the legal basis for their position, and are therefore not entitled to summary judgment.
Defendants argue that contrary to Cabrera's allegations, he continues to perform the tasks pertaining to his position as Supervisor of Personnel Transactions. To that end, they cite a number of documents evincing Cabrera's work between May 2009 and early 2011, and conclude that Cabrera's claims should be dismissed. (Docket No. 67, p. 24). Plaintiffs counter with Cabrera's testimony that he was nonetheless boxed out of supervising "the entire process" of appointments, as well as Vélez's testimony that Cabrera's underlings were given direct assignments over his head. This is enough to create a triable question as to whether Cabrera's duties were curtailed. As defendants advance no other arguments pertaining to
Addressing Cabrera's complaints about his cubicle, defendants argue that (1) he was moved there pursuant to a politically-neutral floor-space reorganization plan, and (2) there were never any PROSHA violations pertaining to his cubicle. To the extent Cabrera seeks any relief based on his cubicle being the subject of a PROSHA citation, defendants have demonstrated that there is no evidence that that ever took place. But Cabrera points to evidence that his coworkers thought his cubicle was rather small and inconveniently placed, and noticed when it was later enlarged. (Pl. St., ¶¶ 26, 72, 158). Because defendants have advanced no argument for why this incident — at least viewed together with the others — would not be actionable, they are not entitled to summary judgment on this ground.
PRHTA argues that it cannot be held liable for political discrimination because the complaint only alleges that it had an institutionalized policy of discrimination, and it is uncontested that PRHTA had written policies against political discrimination. (Docket No. 67, p. 27; Def. St., ¶¶ 203-204). Plaintiffs have failed to refute this characterization of their claim, or to identify any other basis on which to impute liability to PRHTA. Cf. Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir.2008) (describing standards for imputing local government liability under § 1983). PRHTA is therefore entitled to summary judgment on Cabrera's First Amendment claims.
The remaining
Viewing the record in the light most favorable to plaintiffs, a jury could credit Cabrera's testimony that he recalled joking with Gomila about his party alignment. (Pl. St., ¶ 3). See Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st Cir.2006) (finding adequate evidence for jury finding of knowledge where plaintiff's affiliation was "well-known" within "a relatively small workplace," and one defendant had expressly asked about the plaintiff's affiliation). Though Gomila denies this, a credibility determination is not apt for resolution at summary judgment.
As for Hernández and Cedeño, however, Cabrera's testimony about being an "expressive" supporter of the PDP is too thin to permit a rational inference that they were aware of his allegiances. See González-De-Blasini v. Family Dept., 377 F.3d 81, 85-86 (1st Cir.2004) (affirming summary judgment where plaintiff had only alleged that she "was a well-known supporter" of the outgoing party, had held a trust position, and was demoted when the incoming party came into power). See also Vázquez-Valentín v. Santiago-Díaz, 385 F.3d 23, 37-38 (1st Cir.2004), vacated on other grounds, 546 U.S. 1163, 126 S.Ct. 1329, 164 L.Ed.2d 43 (2006) (insufficient evidence of knowledge where plaintiff had once identified herself with opposing party
In sum, Hernández and Cedeño are entitled to summary judgment because there is no evidence that they knew Cabrera's political affiliation, and that they therefore discriminated against him on account of politics.
For the reasons discussed above, Gomila has failed to show she is entitled to summary judgment on the political discrimination claims, precluding a grant of immunity under the first prong of the qualified immunity analysis. Moreover, she has neither argued nor shown that the pertinent law against political discrimination was not "clearly established" at the time of the alleged discrimination. See, e.g., Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 84 (1st Cir.2006) ("Any reasonable official would clearly understand that it is improper to intentionally violate an employee's First Amendment rights."); Acevedo-García v. Monroig, 351 F.3d 547, 564 (1st Cir.2003) ("The clearly established law both in this circuit and beyond precludes government officials from discharging civil or `career' employees for politically-motivated reasons."). She is therefore not entitled to qualified immunity from Cabrera's First Amendment claims.
Defendants argue that the Law 100 claims against them should be dismissed because PRHTA is not a government agency, and not an "employer" as contemplated by the law. Law 100 prohibits employers from discriminating against employees on the basis of, among numerous other factors, the employee's political affiliation or ideology. 29 L.P.R.A. § 146. An "employer" is defined as any person employing laborers, as well as the agents or representatives of such employers. § 151(2). The phrase also includes "all such agencies or instrumentalities of the Government of Puerto Rico as may be operating as private businesses or enterprises." Id. Reviewing the legislative history, the Supreme Court of Puerto Rico interpreted this phrase to reach the Commonwealth's public corporations:
See Rodríguez Cruz v. Padilla Ayala, 125 D.P.R. 486, 1990 WL 657488 (1990) (emphasis added).
Because the Supreme Court has construed Law 100 to reach public corporations, defendants' unadorned assertion that PRHTA "is not an instrumentality that operates as a private business" is unconvincing. Therefore, neither PRHTA nor its agents are entitled to summary judgment on this ground.
The amended complaint alleges, without elaboration, that the defendants violated Cabrera's rights under Law No. 184 of August 3, 2004, 3 L.P.R.A. §§ 1461 et seq. (Docket No. 24, ¶ 58). Defendants briefly argue that:
(Docket No. 67, p. 36). This position appears to be an oblique reference to 3 L.P.R.A. § 1461e(3), which states that the law "shall not apply" to "[p]ublic or public-private corporations or instrumentalities that operate as private business." Since public corporations are exempted from Law 184, defendants are entitled to the dismissal of any cause of action under that statute.
Defendants seek dismissal of plaintiffs' tort claims under Puerto Rico law, correctly arguing that to the extent Law 100 provides a remedy for discrimination, that remedy is exclusive of any tort claim. (Docket No. 67, p. 36) (citing Medina v. Adecco, 561 F.Supp.2d 162, 175-76 (D.P.R.2008)). They are therefore entitled to dismissal of any tort claims by Cabrera himself. But this principle does not dispose of Rivera and the conjugal partnerships' contingent claims, as the Puerto Rico Supreme Court squarely held that:
Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1, 1994 P.R.-Eng. 909,527, 1994 WL 909527 (1994). Since Cabrera has viable political discrimination claims under section 1983 and Law 100, the defendants are not entitled to dismissal of the contingent tort claims on that ground.
Defendants also attack plaintiffs' requests for damages and injunctive relief. First, under a heading reading "PLAINTIFFS HAVE NOT SUFFERED ANY DAMAGES," they observe that Cabrera was not deprived of a salary or position, and neither he nor his wife ever sought treatment from a doctor or psychiatrist. (Docket No. 67, p. 27). But plaintiffs are not required to either seek medical treatment
Second, defendants argue that plaintiffs are not entitled to equitable relief. (Docket No. 67, p. 30-31). Though they correctly observe that plaintiffs never moved for the entry of a preliminary injunction, their attacks on any final relief are premature. The grant of injunctive relief is rooted in equity, and is therefore discretionary. See generally 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2942 (West 1995). Since the extent of defendants' liability, if any, has not yet been established, I find it would be both inappropriate and impermissibly advisory to rule on the availability of equitable relief at this time.
For the foregoing reasons, defendants' motion for summary judgment is
A motion for summary judgment must be supported by "a separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact to be tried." Local Rule 56(b). The opposing party must admit, deny, or qualify the moving party's facts by reference to each numbered paragraph, and may make a separately numbered statement of material facts. Local Rule 56(c). The moving party may reply and admit, deny, or qualify the opponent's newly-stated facts, again in a separate statement and by reference to each numbered paragraph. Local Rule 56(d). Any facts supported by citation to record evidence and not properly controverted as described by the rule are deemed admitted. Local Rule 56(e).
Plaintiffs also point to Arocho's testimony that she assumed Cabrera's cubicle was altered to meet PROSHA requirements. (Docket No. 85-5, p. 29). But read in context of the preceding questions, Arocho's response is speculative; she earlier admitted that she had never seen the citation, and did not know what requirements were at issue. (See Docket No. 85-5, p. 27-29). Thus, the testimony does not show what plaintiffs offer it to prove: that the cubicle cited by PROSHA belonged to Cabrera.
