OPINION AND ORDER

CAMILLE L. VELEZ-RIVE, United States Magistrate Judge.

INTRODUCTION

The present case is yet another in a long line of cases that swamp the federal docket every four (4) years following gubernatorial elections held in Puerto Rico, where the incumbent party is defeated. Plaintiffs are four (4) career employees of the Puerto Rico Department of Education, Josefina Arroyo Saurí ("Arroyo"), Luis Rodríguez Ramos ("Rodríguez")1, Juan Del Valle Meléndez ("Del Valle") and Carmen Rosa García2 ("Rosa"). They claim violations to the First Amendment, to the due process and equal protection clauses of the Fourteenth Amendment, as well as a sprinkling of state law violations. At this stage, the remaining Defendants in the case are Jesús Rivera Sánchez ("Rivera"), former Secretary of Education, and Sonia Dalila Román ("Román"), one of his aides3. Plaintiff's claim these Defendants, members of the New Progressive Party ("NPP"), subjected them to short of dismissal demotions and inferior working conditions, all on the basis of their political affiliation to the Popular Democratic Party ("PDP").

In November of 2008, Gubernatorial candidate Luis Fortuño of the NPP won the election over incumbent Aníbal Acevedo Vilá of the PDP. Due to the dire financial situation the island's economy was in, Governor Fortuño implemented a series of measures, as applied to this case, Law 7, which was geared at reducing government spending and stabilizing finances. Law 7 was passed on March 9, 2009 and amongst its cost-reducing measures, it contained an island-wide layoff plan. Pursuant to the directives of Law 7, the Fiscal Restructuring and Stabilization ("JREF") was created, which was entrusted, among others, with ensuring agency compliance with Law 7 regarding the layoff plan.

At that time, the Department of Education had a budget deficit, yet there were over three (300) hundred available school directors positions, and the government was not going to assign any additional budget to the Department of Education to fill these positions with transitory employees. Since the Secretary of Education had the authority to appoint/transfer/relocate employees due to service needs, a decision was made to send employees on administrative leave ("destaque administrativo") as school directors for one year with the same salary they held for their previous positions, which would thus solve the problem of the vacancies and also avoid any budgetary impact on the department's payroll.

In the meantime, the JREF determined that, effective November 6, 2009, public employees that as of April 17, 2009, had thirteen (13) years six (6) months and zero (0) days of service or less would be affected by the layoffs. Since they would still have the problem of school director vacancies for the upcoming year, the Department of Education then carried out an internal analysis of what staff within the Department of Education complied with the requirements to become school directors and finally identified some thirty-eight (38) employees who did not have the required time and would be affected by Law 7. Two (2) of the Plaintiffs in the present case, Rodríuez and Del Valle, fell into this category. In order not to be affected by the layoffs, they would have to "accept" a demotion to that position voluntarily, which would ensure their continued employment after the detail ended. Those who accepted the proposal had to submit a letter requesting the demotion to the JREF. Both Rodríguez and Del Valle submitted their letters in October, 2009.

By the following June, 2010, the administrative detail had ended, and an agreement had been reached with the Federal Department of Education to establish a new structure that consolidated the school districts and reduced them from eighty-nine (89) to twenty-eight (28), with the objective of strengthening the student's academic achievements. By that time, Carlos Chardón was no longer Secretary of Education and co-Defendant Rivera had already been appointed Acting Secretary of Education4. Rivera began the implementation of the Department's restructuring, which resulted in the consolidation of several districts, the elimination of some, and the consolidation of other positions. The reorganization was implemented across the island. As a result of this, the employees who had been on administrative leave were now reinstated to their previous positions or a similar position. In the case at bar, Plaintiffs Rosa and Arroyo were reinstated to their previous positions as Auxiliary Superintendents. Plaintiffs Rodríguez and Del Valle were reinstated as School Directors, per the "demotion" letter they had signed in October, 2009. Plaintiffs take issue with the administrative detail, as well as to their reinstatements and other actions, alleging they were charged with political animus as they were members of the PDP.

Before the Court now is Defendants' Motion for Summary Judgment (Docket No. 121), Plaintiff's opposition thereto (Docket No. 130), and Defendants' Reply to Plaintiff's opposition (Docket No. 144). Defendants urge dismissal of all claims brought against them on the following grounds: 1) time bar; 2) lack of a causal connection between Defendants' acts and Plaintiffs' circumstances; 3) failure to show political affiliation as a substantial or motivating factor in the decision-making process; 4) the equal protection and due process claims cannot lie; and 6) Defendants are entitled to qualified immunity.

Plaintiffs in turn posit their claims are not time-barred because the continuing violation doctrine applies; they have established a prima facie case of political discrimination; their due process rights were violated, as no pre-termination hearing was held for two (2) Plaintiffs and Defendants' actions shock the conscience; and qualified immunity should be denied.

For the reasons explained herein, Defendants' Motion for Summary Judgment is GRANTED.

STANDARD

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997).

After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortés-Irizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir.1997). A fact is deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id.

At all times during the consideration of a motion for summary judgment, the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994). There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood...." Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). In fact, "[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997).

The First Circuit Court of Appeals has "emphasized the importance of local rules similar to Local Rule 56 [of the District of Puerto Rico]." Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir.2007); see also, Colón v. Infotech Aerospace Services, Inc., 869 F.Supp.2d 220, 225-226 (D.Puerto Rico 2012). Rules such as Local Rule 56 "are designed to function as a means of `focusing a district court's attention on what is—and what is not—genuinely controverted.'" Hernández, 486 F.3d at 7 (quoting Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir.2006)). Local Rule 56 imposes guidelines for both the movant and the party opposing summary judgment. A party moving for summary judgment must submit factual assertions in "a separate, short, and concise statement of material facts, set forth in numbered paragraphs." Loc. Rule 56(b). A party opposing a motion for summary judgment 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 facts." Loc. Rule 56(c). If they so wish, they may submit a separate statement of facts which they believe are in controversy. Facts which are properly supported "shall be deemed admitted unless properly controverted." Loc. Rule 56(e); P.R. Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d 125, 130 (1st Cir.2010) and Colón, 869 F.Supp.2d at 226. Due to the importance of this function to the summary judgment process, "litigants ignore [those rules] at their peril." Hernández, 486 F.3d at 7.

FINDINGS OF FACT

At the outset, the Court notes that Plaintiffs' opposition to Defendants' statement of uncontested material facts is procedurally non-compliant with the Local Rules. As previously mentioned, Loc. R. Civ. P. 56(c) specifically requires that the respondent either admit, deny, or qualify each of movant's proffered uncontested facts, and for each denied or qualified statement, the non-movant must cite the specific part of the record which supports the denial or qualification. If the non-moving party wishes, he can prepare its separate statement of issues of material fact which he deems are in controversy, and which preclude the entry of summary judgment. See Loc. R. Civ. P. 56(c). Plaintiffs failed to properly deny many of Defendants' proffered facts, as many of the denials were not supported by any record citation whatsoever.

As second procedural matter, many of Plaintiffs' denials are also non-compliant, insofar as many do not oppose the truth of the statement offered. A review of Plaintiffs' qualifications of Defendants' factual statements shows that they are either irrelevant to the matter at hand, or consist of mere "speculation, generalities, conclusory assertions, improbable inferences, and, for lack of a better phrase, a lot of `hot air.'" Eli Lilly and Co., 958 F.Supp. 721, 728 (D.Puerto Rico 1997). Furthermore, many of Plaintiff's answers consist of "admitted-denied" with a wholly self-serving explanation for the denial, citing Plaintiff's deposition testimony.5 For instance, although Plaintiff admitted Defendants' proffered fact no. 227, they then "denied" it, alleging it was not the correct "outcome" given that particular plaintiff's years of experience and past jobs, thus injecting factual matters into the original submission, with only Plaintiffs' testimony to proffer for the "denial".

Another example of this are Defendants' proffered fact nos. 137, 138 and 139, which all state that Defendants never asked Plaintiffs about their political affiliation. While admitting this, Plaintiffs then add that it was "not necessary to ask, since it was known", yet they proffer no facts besides their self-serving testimony in support of such a claim. Others, like Defendants' proffered fact nos. 184 and 185, deny the statement and supply a citation to the record for this fact (yet another self-serving deposition statement), but the explanation offered does not contradict the proposed fact. For instance, Defendants' proffered fact no. 184 states that co-Defendant Rivera did not participate in the process of certifying eligible candidates for the position of Auxiliary Superintendent performed by the Recruitment Division. Plaintiff counters this statement with "Denied, since he sent a representative to these interview" (sic). While Plaintiff's proffered opposition statement may serve to perhaps add information about who was present at the interviews, the additional facts as proffered, even if considered, cannot serve to deny that Sánchez did not personally participate in the certification interview process. Insofar as this denial is not properly supported, it must be deemed as admitted pursuant to the Local Rules. Furthermore, Plaintiffs' proffered explanation offers additional facts that should have been included in a separate reply statement of material facts. Therefore, this fact, and all others like it, are in violation of the Local Rules and will not be considered by the Court.

Third, the Court is troubled to note that almost all of Plaintiffs' denials of Defendants' facts and their own proffered facts are unsupported by anything in the record except their deposition testimony, which are, of course, rather self serving and wholly conclusory. While deposition testimony is acceptable evidence, at the summary judgment stage, Plaintiffs must bring more to the table than their word, conclusions and opinions in their opposition. They must present facts, acts and documents to buttress their allegations, and cannot merely create an issue of fact by opposing all of Defendants' proffered facts with their self-serving deposition testimony. Otherwise, it would be the same as proving the case with just the allegations in the complaint, and summary judgment would never be granted. At this stage, this is insufficient to oppose summary judgment. See, Garside v. Osco Drug, Inc., 895 F.2d 46 (1st Cir.1990)("We have repeatedly held that, while notice pleading is sufficient to open the federal courthouse door, a party opposing a motion for summary judgment, properly put, may not ask the court to try the case in order to determine the facts"); Castro-Medina v. Procter & Gamble Commercial Co., 565 F.Supp.2d 343 (D.Puerto Rico 2008)("However, we note that the only evidence she provides in support of these conclusory allegations is her own deposition testimony, without any explanation or reference to evidence. `Summary judgment cannot be defeated by relying on such conclusory allegations.'" (quoting Ríos-Jiménez v. Principi, 520 F.3d 31, 42 n. 7 (1st Cir.2008)); Brisbin v. Aurora Loan Servs., LLC, 679 F.3d 748, 754 (8th Cir.2012) (holding "self-serving affidavit not sufficiently specific to raise genuine issue of material fact in face of uncontradicted facts in record"); Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir.2012) (quoting FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.1997) ("`[C]onclusory, self-serving affidavit[s], lacking detailed facts and any supporting evidence,' are insufficient to create a genuine issue of material fact")); Santiago v. Canon U.S.A., Inc., 138 F.3d 1 (1st Cir.1998) ("A plaintiff [claiming discrimination] `may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus.'") (quoting Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir.1992)).

Compounding Plaintiffs' troubles is the fact that for the statements offered for one of the Plaintiffs, Rodríguez, (referred to as "Exhibit I" of their opposition), they out-right failed to include any deposition transcript as part of the record. As a result of all these procedural mishaps by Plaintiffs, unless otherwise stated, the Court admitted most facts from Defendants' statement of uncontested material facts and did not accept Plaintiffs' submissions.

Finally, the Court must address Defendants' lengthy motion, statement of facts, and reply. Although it is cognizant that this case is a contested one with many issues, it is undeniable that Defendants' reply to Plaintiff's statements contained a great deal of "copied and pasted" arguments, particularly in their opposition to Plaintiffs' uncontested facts. The Court advises Defendants that not all Judges are willing to accept the lengthy submissions they submitted, and urges them to select more carefully the contents of their briefs on future occasions.

In light of the documentary evidence before it, and based on the parties' submissions, the Court deems the following facts to be uncontested:6

Law 7

Plaintiff Arroyo

Plaintiff Rodríguez

Department of Education Regulations

LEGAL ANALYSIS

Defendants premise their request for dismissal of Plaintiffs' claims on a variety of defenses to wit: 1) time bar as to the acts that occurred prior to July 11, 2010; 2) lack of a causal connection between Defendants' acts and Plaintiffs' circumstances; 3) failure to show political affiliation as a substantial or motivating factor in the decision-making process; 4) the equal protection claims fall within Plaintiffs' First Amendment claims and must therefore be dismissed; 5) no violation of Plaintiffs' due process rights occurred as a pretermination hearing was unnecessary because the reorganization exception applies; 6) Defendants are entitled to qualified immunity. The Court addresses each of these claims in turn.

A. Time Bar.

Defendants allege that Plaintiffs' claims arising before July 11, 2010 are time-barred, since the Complaint was filed July 11, 2011. Therefore, they occurred before the one year mark from the date the complaint was filed. Plaintiffs aver the continuing violation doctrine applies, since they were discriminated against from 2009 continuously until after the Complaint was filed. The Court agrees with Defendants that any claims before July 10, 2010 are time-barred.

It is well settled that section 1983 does not provide a statute of limitations. Rodríguez Torres v. Muñiz González, 898 F.Supp.2d 433, 436 (D. Puerto Rico 2012). However, the Supreme Court has previously held that courts must borrow the State's limitations period governing personal injury actions. See, Wilson v. García, 471 U.S. 261, 266, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Thus, state law statutes of limitations govern suits in federal courts arising under Section 1983, which is one (1) year. Benítez-Pons v. Com. of Puerto Rico, 136 F.3d 54, 59 (1st Cir.1998); P.R. Laws Ann., tit. 31, § 5141; see also Carreras-Rosa v. Alves-Cruz, 127 F.3d 172, 174 (1st Cir.1997). Therefore, the one-year personal injury statute of limitations in tort actions governs section 1983 claims. See, Rodríguez-García v. Municipality of Caguas, 354 F.3d 91, 96 (1st Cir.2004).

While state law determines the prescriptive period, it is federal law that determines the date on which the claim accrued. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.1992). It has been held time and again that the limitations period begins to run "one day after accrual", which is the date when a plaintiff "knows or has reason to know of the injury which is the basis for his claim." Benítez-Pons, 136 F.3d at 59; Rodríguez-García, 354 F.3d at 96-97.

Therefore, Defendants allege, since Plaintiffs filed their complaint on July 11, 2011, any acts that occurred over the one year mark before that date—that is, July 11, 2010—are time-barred. Plaintiffs aver their allegations fall under the continuing violation doctrine and are therefore protected.

The continuing violation doctrine is an exception to the statute of limitations that applies if an act, which would otherwise be time-barred, is deemed to be part of an ongoing series of discriminatory acts, and there is "some violation within the statute of limitations period that anchors the earlier claim[ ]." O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001). When there is a substantial relationship between the timely and untimely claims, the claims can be viewed as a continuing violation, and the untimely claim can be included in the complaint. See, Sabree v. United Broth. of Carpenters and Joiners Local No. 33, 921 F.2d 396, 401 (1st Cir.1990). In order to be able to determine whether there is a substantial relationship between the claims, the First Circuit Court of Appeals has held that the most important factor to examine is whether the plaintiff knew or should have known that she was being discriminated against at the time of the incident. Id. at 402. "A knowing plaintiff has an obligation to file promptly or lose his [or her] claim." Id.

In the case at bar, the initial acts complained of occurred in July 2009 and ran through July 2010, as follows:

—Plaintiff Arroyo was a School Superintendent in Caguas and was appointed School Director in Caguas.

—Plaintiff Rosa was Auxiliary Superintendent for Title I in San Lorenzo and was appointed Auxiliary Superintendent in San Lorenzo.

—Plaintiff Rodríguez was Auxiliary Superintendent7 in and was appointed School Director in Vega Baja.

—Plaintiff Del Valle was Auxiliary Superintendent in Bayamón and was appointed School Director in Bayamón.

As an initial matter, the Court notes that at the time these changes went into effect, co-Defendant Rivera was not the Secretary of Education. Co-Defendant Román herself was on administrative detail until January 19, 2010, when she began working as a Special Aide to the Under Secretary for Academic Affairs, at that time, co-Defendant Rivera. Co-Defendant Rivera only assumed a leadership position for the Department in July, 2010. Therefore, neither of them could have taken these allegedly discriminatory actions against Plaintiffs. This alone merits dismissing the causes of action during this period, since former Secretary Chardón, under whose leadership the administrative details actually occurred, is not a party in this action. Therefore, Plaintiffs' conclusory allegations that Defendants' goal "from beginning to end" was the removal of Plaintiffs from their career positions ring hollow.

A second reason for dismissal of the claims occurring before July 2010 is that the record is devoid of any discriminatory details ranging from the short span of time from January 2010 when co-Defendant Román was appointed to a trust position, until co-Defendant Rivera became Secretary in July, 2010, which is when Defendants aver the clock started ticking on Plaintiffs' claims. The Court can find no justification to explain what prevented Plaintiffs from filing their case after the alleged initial acts (the administrative detail on 2009) occurred. Although Plaintiffs very generally state that political discrimination occurred by these acts, the Court fails to see exactly how, as nothing in the record evidences or even implies this.

It is important to remember that Plaintiffs were not the only ones affected by the administrative detail, over three hundred (300) employees were sent on administrative detail, to cover the genuine need for positions to be filled by the beginning of the school year, and no allegation has been made that all the employees sent on detail were PDP members. Plaintiff Rosa remained in San Lorenzo on administrative detail with her same title and same salary. No one replaced her in her original position. She was reinstated to her same position in Yabucoa after the detail was over. Plaintiff Arroyo was sent to Caguas as School Director with her same salary. No one replaced her in her original position. She was reinstated to her previous position as School Superintendent in Gurabo, the next town over. After the detail ended, Plaintiffs Del Valle and Rodríguez had already submitted their voluntary demotion letters in October, 2009 and were reappointed School Directors after the leave terminated. All these actions began in July 2009, and ended in July 2010. A whole year went by, and Plaintiffs failed to bring forth their claims.

Even if the Court were to consider these actions a pattern of discrimination for the purposes of the continuing violation doctrine, it has been clearly established that doctrine is only available where a plaintiff was unaware of the discriminatory nature of otherwise time-barred conduct at the time that it occurred. See, Windross v. Barton Protective Servs., Inc., 586 F.3d 98, 103 (1st Cir.2009) and Williams v. Raytheon Co., 220 F.3d 16, 21 (1st Cir. 2000). Plaintiffs have failed to do so here. They have proffered absolutely no evidence to establish how they were "unaware" that they were being discriminated against from the time the detail began in July 2009 until it ended in July 2010. The Court therefore centers it analysis on the actions during the 2010-11 school year, specifically, from July 11, 2010 onwards, and finds that all claims before that date are time-barred.

B. First Amendment.

It has been clearly established that the First Amendment's protection of the freedom of association prohibits government officials from taking adverse employment action against non-policymaking public employees due to the employee's political affiliation. See, e.g., Welch v. Ciampa, 542 F.3d 927, 938 (1st Cir.2008); see also, Rodríguez Marín v. Rivera González, 438 F.3d 72, 75 (1st Cir.2006) (collecting cases). When evaluating a political discrimination claim, the Court uses the tripartite burden shifting test established by the Supreme Court in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); see also, Cruz-Báez, et al. v. Negrón-Irizarry, et al., 360 F.Supp.2d 326, 339 (D.Puerto Rico 2005).

First, a prima facie case of political discrimination based on the First Amendment must establish 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." Lamboy-Ortíz v. Ortíz-Vélez, 630 F.3d 228, 239 (1st Cir.2010); Martínez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st Cir. 2007). Once the plaintiff clears this hurdle, the defendant may then rebut that showing with what is commonly referred to as the Mt. Healthy defense. They must prove, by a preponderance of the evidence, that "the governmental agency would have taken the same action against the employee even in the absence of the protected conduct." Díaz-Bigio v. Santini, 652 F.3d 45, 52 (1st Cir.2011) (quoting Guilloty Perez v. Pierluisi, 339 F.3d 43, 51 (1st Cir. 2003)) (internal quotation marks omitted).

As an initial matter, it is important to note that "circumstantial evidence alone can support a finding of political discrimination." Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir.1991). "[A] plaintiff is not required to produce `smoking gun' evidence of an employer's impermissible motive to defeat a motion for summary judgment." Welch, 542 F.3d at 940 Padilla-García v. Rodríguez, 212 F.3d 69, 73 (1st Cir.2000) (emphasizing that the protected conduct need only be a factor in the employment decision, not the motivating factor). This showing, however, requires more than merely "juxtaposing a protected characteristic-someone else's politics—with the fact that Plaintiff was treated unfairly." Padilla-García, 212 F.3d at 74. With these items in mind, the Court analyzes these factors in turn.

1. Opposing Political Affiliations.

Although little evidence has been presented regarding this issue, the Court will assume it is true for purposes of this motion, as no party disputes that Governor Fortuño was a member of the NPP or that Secretary Rivera was a high-ranking official in an NPP administration. And "[i]t is no secret that political leaders most often choose political allies to fill important policymaking positions." Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir.2012). It is therefore reasonable to infer that Rivera and Román were affiliated with the NPP during the relevant period. See, Id. at 47-48 (reasoning that "a plausible inference can be drawn that the plaintiff, who was named to a prestigious trust position by a PDP hierarch under a PDP administration, was a member of the PDP," and remarking that a court is not required "to blind itself to what is obvious").

2. Knowledge of Plaintiff's Political Affiliation.

The Court finds Plaintiffs have failed to establish the second prong of this test. It is uncontested, and Plaintiffs so admitted, that Defendants Rivera and Román did not know Plaintiffs' political affiliation, and had never spoken to them about politics. Co-Defendant Rivera does not even know who three (3) of the Plaintiffs are. See Uncontested Fact nos. 68-70, 92-95, 109-110, 125-127, 137-128, and 140, supra.

Unable to deny that Defendants did not know Plaintiffs' political affiliation, and in an attempt to rebut these claims, Plaintiffs proffer that the Department of Education is a "highly politicized agency" and that while admitting Defendants had not openly asked about Plaintiffs' political affiliations, they aver that it was "not necessary to ask about [Plaintiffs' political] affiliation" because "it was known". See, Plaintiffs' Opposition to Defendants' facts Nos. 137-139. Plaintiffs are mistaken. This is precisely what the Court must analyze as part of the prima facie case and what they must prove in order to surpass this hurdle. In analyzing the evidence proffered by Plaintiffs, the First Circuit has held that, although a highly charged political atmosphere alone cannot support an inference of discriminatory animus, when coupled with "the fact that plaintiffs and defendants are of competing political persuasions, may be probative of discriminatory animus." Rodríguez-Ríos v. Cordero, 138 F.3d 22, 24 (1st Cir.1998). Nevertheless, political discrimination claims always require "that defendants have knowledge of the plaintiffs['] political affiliation." (Emphasis added) Martínez-Báez v. Rey-Hernández, 394 F.Supp.2d 428, 434 (D.Puerto Rico 2005); Hatfield-Bermúdez v. Aldanondo-Rivera, 496 F.3d 51, 61-62 (1st Cir.2007).

Plaintiffs' argument that Defendants need not know Plaintiff's political affiliation because it was obvious is "conclusory and, therefore, cannot be considered." Jiménez-González v. Alvarez-Rubio, 683 F.Supp.2d 177, 183 (D.Puerto Rico 2010). Besides this self-serving statement, Plaintiffs cannot demonstrate otherwise that Defendants were aware of their political affiliation. In fact, they all expressly admit that Defendants were not aware of their political affiliation.8 Plaintiffs then vaguely address the fact that Defendant Román sometimes spoke to some Plaintiffs about politics, yet this proves nothing. They could have spoken about a number of political issues that did not necessarily involve knowledge of Plaintiffs' political affiliation.

Defendants have even established that co-Defendant Rivera had appointed some PDP members to trust positions. See, Uncontested Fact no. 54, supra. Again, while admitting, this fact, Plaintiffs then proffer that "this demonstrates that he had knowledge of who were members of the PDP". While the fact that Rivera appointed two (2) PDP members may establish that he had knowledge that these two (2) particular employees were PDP, it cannot serve to establish that he knew of anyone else's political affiliation, or, for that matter, Plaintiffs'.

Succinctly put, at this stage of the game, Plaintiffs must proffer evidence to enable a reasonable jury to find that the Defendants knew their political affiliation. They have proffered nothing except their self-serving word. It should be noted that this Court has expressly rejected the allegation that the knowledge of someone's political affiliation can be "passed" simply because it is something widely known in the workplace. Jiménez-González, 683 F.Supp.2d at 183-84; see also, López-Rosado v. Molina-Rodríguez, 2012 WL 4681956 (D.Puerto Rico 2012). As it is, this is insufficient to evidence that Defendants had knowledge of Plaintiffs' party affiliation.

Indeed, with more evidence before them that what Plaintiffs have proffered in this case, other courts have held it is insufficient to establish that one person knew of another's political affiliation. See, Hatfield-Bermúdez, 496 F.3d at 62 ("The fact that the plaintiffs were municipal employees under the previous administration, participated in political rallies, worked at electoral colleges, and were well-known supporter of the administration's political party does not constitute evidence of knowledge of their political affiliation"); Román v. Delgado Altieri, 390 F.Supp.2d 94, 102-03 (D.Puerto Rico 2005) (holding that "a plaintiff cannot prove that the defendant had knowledge of his political affiliation merely through: testimony of having been seen, or, for that matter, met during routine campaign activity participation, having been visited by the now incumbent while said defendant was a candidate to the position he now holds, by having held a trust/confidential/policymaking position in the outgoing administration, by having political propaganda adhered to plaintiff's car and/or house, or through knowledge of third parties"); González-De-Blasini v. Family Dep't, 377 F.3d 81, 86 (1st Cir.2004) (Alleging that a plaintiff is a well known supporter of a different political party by itself is not sufficient to show that a challenged employment action was premised upon political affiliation); Rodríguez-Díaz v. Marrero-Recío, 2010 WL 4117214 (D.Puerto Rico Oct. 20, 2010) ("A plaintiff does not meet the burden of showing simply by alleging that defendants must have been aware of his political affiliation simply because he is a well-known supporter of that party, has political propaganda on his house or car, held trust positions when that party was in power, or because he suffered an adverse employment action shortly after a change in administration.")

On these facts, the Court cannot find that Plaintiffs have established that Defendants knew of their political affiliation.

3. Adverse Employment Action.

The Court also finds that Plaintiffs have failed to evidence that an adverse employment action occurred. For First Amendment purposes, an adverse employment action occurs "if those actions, objectively evaluated, would place substantial pressure on even one of thick skin to conform to the prevailing political view." Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 766 (1st Cir.2010) (internal citations omitted). The following have been held to constitute "adverse employment actions", discharging or demoting an employee, denying promotions and transfers, and failing to recall a public employee after layoffs (Id.); a "substantial alteration in an employee's job responsibilities" (Bergeron v. Cabral, 560 F.3d 1, 8 (1st Cir. 2009)); a denial of "special benefits and assignments" that normally come with a job (Id.); when the plaintiff is confronted with "a work situation unreasonably inferior to the norm for the position." (Rodrí-guez-García, 610 F.3d at 766); "Informal harassment, as opposed to formal employment actions . . . can be the basis for the [F]irst [A]mendment claims if the motive was political discrimination; but only if the acts are `sufficiently severe to cause reasonably hardy individuals to compromise their political beliefs and associations in favor of the prevailing party.'" (Cordero-Suárez v. Rodríguez, 689 F.3d 77, 82 (1st Cir.2012)); "lost access to telephone and photocopier, poorer office accoutrements, worse hours" are also considered when determining whether an adverse action occurred. (Carrasquillo-González v. Sagardía-De-Jesús, 723 F.Supp.2d 428, 435 (D.Puerto Rico 2010)).

Under "short of dismissal" actions, Plaintiffs must satisfy a two (2) prong test: that is, they must show that the removal of their duties was motivated by their political affiliation, and that the challenged actions resulted in a work environment "unreasonably inferior" to the norm for the position. Román v. Delgado Altieri, 390 F.Supp.2d 94, 104 (D.Puerto Rico 2005). In deciding whether a challenged employment action resulting in unreasonably inferior conditions has occurred, "[a]ctual functions of the job, not titles, control, and an official description of job functions is a presumptively reliable basis for determining those functions." López-Quiñones v. P.R. Nat'l. Guard, 526 F.3d 23, 26 (1st Cir.2008).

Before analyzing the facts before it, the Court notes again that the reorganization, wide; districts were shrunk and consolidated, across the board. It is against this backdrop that the Court analyzes the claims before it.

At the outset, the Court finds that Plaintiffs cannot prove that the removal (if any) of their duties was motivated by their political affiliation since they have expressly admitted that Defendants did not know of it. As to the challenged actions themselves, Plaintiff Rosa was reinstated to her previous position, but in Yabucoa, instead of San Lorenzo. She specifically admitted the following facts: a) during the 2009-10 school year while she was performing the duties of director at the María T. Delgado School, nobody occupied her previous position and nobody performed the functions of her previous position of Auxiliary Superintendent Title I; b) she had no change in salary; c) she performed all the functions of School Director as indicated in form DE-16 during her administrative detail; d) once reinstated to her career position of Auxiliary Superintendent Title I, she was sent to Yabucoa, which she alleges was a hardship for her as it was far away from her home9, but she requested (and was granted) a transfer to Gurabo, where she resided, just two (2) months later10; e) since her reinstatement, she occupied her position and performed all the duties pertaining it up until her retirement; g) while she was at the District of Yabucoa as Auxiliary Superintendent, she performed all her functions except for function no. 7 of the DE-16 Position Description for her position.

Plaintiff Arroyo alleges that she was somehow stripped of functions when she was reinstated to her position as School Superintendent in Gurabo after the detail ended. Yet, the facts, as accepted by her, reveal the following: a) during the 2010-11 school year, she was a leader in the newly created Technical Assistance Unit; b) while there, she developed tools and processes which were not solely for the benefit of Gurabo's District but were also shared with other twenty-seven (27) districts; c) after the reorganization of the school districts, she was in charge of five (5) Auxiliary Superintendents (Technical Assistants) and she supervised and evaluated the Auxiliaries, among other duties; d) she visited school directors and supervised her Auxiliary Superintendents, making sure that they carried out their assigned duties. The Court notes her salary also remained unchanged. Although she challenges the duties in her new position as being "different", as her new position was a newly created one, it is logical that the responsibilities would differ.

In the case of Plaintiffs Rodríguez and Del Valle, they argue that they were "forced" to tender a letter of resignation to an inferior position (that of School Director), and that their reinstatement should have been to the position they resigned from (Auxiliary Superintendent). As an initial matter, the Court must again note that these actions occurred in October, 2009. Besides the fact that the acts are time-barred, Defendants cannot be held responsible for these actions as they had not yet been appointed to the Secretariat.

Moving on to the reinstatements themselves, Defendants aver that, since both Plaintiffs Del Valle and Rodríguez were occupying positions whose probationary period had not yet ended at the time they tendered their letters of resignation, that their reinstatement as School Directors at the time the detail ended was proper. The Court agrees with Defendants. Plaintiffs have not shown that their probationary period—which runs for two (2) years—had ended by the time they submitted their voluntary demotions. On the contrary, the record shows that it had not.

The Department of Education Regulation for Government Employees, No. 6743, states that reentry into the service is the right of a career service employee who voluntarily resigns or is laid off for lack of funds, elimination of positions, programs or departments. See, Docket No. 131-4, Section X. That person is to be considered for employment in the position or positions he last performed with permanent status (emphasis added). Personnel who do not approve the probationary period and have been employed in teaching position with permanent status in another category will be entitled to be reinstated in a position in the same category that they had last occupied in a permanent basis or in another position for which requirements are analogous. Id., at Sec. VI (emphasis added). Before their employment as Auxiliary Director, both of these Plaintiffs had been School Directors. See. D. Exhibits 64 and 74. Plaintiffs became probationary employees on September 3, 2008 (Del Valle) and August 27, 2008 (Rodríguez). Their "demotion" letters were submitted on October 6, 2009 (Del Valle) and October 7, 2009 (Rodríguez), a little over a year after they began their probationary status, and therefore did not reach the two (2) year mark. Even if the Court were to consider the additional year they spent on administrative detail towards the probationary period computation, the detail ended on June, 30, 2010. Both Plaintiffs fall short of reaching the two (2) year mark. Since they did not finish their probationary period, both Plaintiffs were simply reinstated to that position of School Director, the last position they held with permanent status (which incidentally, was the position they requested to be "demoted" to) as required under the regulations. The Court finds no error with this.

Additionally, the Court also notices that, although these two (2) Plaintiffs aver that this was a demotion, when they were reinstated as School Directors after the leave ended, they both had a payment differential that ultimately rendered their salaries higher than when they were Auxiliary Superintendents. See, D. Exhibits 67 and 77. Defendant Rodríguez' salary as Auxiliary was $2,775 and as School Director was $3,025. Plaintiff Del Valle's salary as Auxiliary was $2,860 and as School Director was $3,110. The Court cannot see the hardship here.

Plaintiffs Del Valle and Rodríguez further aver they went to numerous interviews for the position they previously held (Auxiliary Superintendent) and were not selected, and therefore, this process was somehow charged with political animus. Unfortunately for Plaintiffs, they have nothing but their word to stand for this proposition, which as this stage, is insufficient. Furthermore, the Court has examined the applicable regulations. They state that the certification of the employees will be established strictly along seniority. Even making all inferences in their favor, Plaintiffs have not even hinted that they were senior to any of the chosen employees. They have opted instead to attempt to create an issue of fact alleging that: 1) they were qualified, but not chosen for the positions; 2) that they had to compete for positions they had once held; and 3) that the scoring they received was not the "correct outcome, given the years of experience", because that they had "held the position before". See, e.g., Plaintiff's Opposition to Defendants' facts nos. 195-197. Defendants have set forth facts that have shown that: Plaintiffs qualified for some positions and not others (and were even absent to some interviews); and that for some of the ones they qualified for, the were selected as a final possible candidate but were ultimately not chosen.

As previously discussed, Plaintiffs specifically admitted that none of the Defendants knew of their political affiliation. It is also undisputed that co-Defendant Rivera did not participate in the interview or the decision making process of the eligible candidates, and that he only met Plaintiff Arroyo, whose political affiliation he did not know. Regarding Plaintiffs Del Valle and Rodríguez' interviews, it is uncontested that the interviewing committee itself was comprised of three (3) employees, which on several occasions, co-Defendant Román was a member of, who would then recommend three (3) candidates to the Secretary for his choosing. She did not participate in many of the interviews.

On these facts, the Court can find no political animus on these actions, and Plaintiffs have not proffered any evidence to sustain their allegations that these actions (in not qualifying them and/or hiring them) were motivated by political animus. On the contrary, both Plaintiffs were qualified on several occasions, and at least once, Plaintiff Del Valle was actually certified as one of the top three (3) candidates when he had received the lowest score of all certified candidates, conduct he now takes issue with regarding some of the other candidates. See, Uncontested Fact nos. 151 and 153, supra, and D. Exhibit 24. Plaintiffs cannot have their cake and eat it too—what is good for the goose is good for the gander. Plaintiffs have not proffered evidence to establish any discriminatory animus or hardship on these facts, while Defendants have established that even candidates with lower marks (like Plaintiff Del Valle) were sometimes recommended to the Secretary as final candidates.

Plaintiff Del Valle also alleged that discriminatory actions were taken against him because he received a letter of intention to commence a disciplinary proceeding against him for situations in his school, yet this proceeding was closed without any negative action having been taken against this Plaintiff by the Department. Furthermore, it is uncontested that neither co-Defendant Rivera nor Román were in charge of implementing, reporting, opening or in the subsequent follow-ups for disciplinary cases that were actually opened.

Under these facts, the Court is hard-pressed to find that an adverse employment, politically motivated action occurred towards any of the Plaintiffs.

4. Political Affiliation as a Substantial or Motivating Factor for the Adverse Employment Action.

The Court found that Plaintiffs failed to meet the adverse employment action prong. It further finds that Plaintiffs also fail this prong of the analysis, for the reasons stated in the second prong, namely, Plaintiffs have been unable to establish that Defendants knew of their political affiliation. Therefore, it is difficult to see how they can establish that the Defendants' actions taken towards them were motivated by political animus. Nieves-Hernández v. Puerto Rico Elec. Power Auth., 2006 WL 1704572 *3 (D.Puerto Rico June 16, 2006) ("For political affiliation to be a motivating factor behind an adverse employment action, those responsible for the deprivation of constitutional rights must have had knowledge of the plaintiff's political affiliation"). Furthermore, Plaintiffs have expressly admitted that Defendants did not know their political affiliation.11

The political harassment claims, as few as they are, suffer the same fate, for the same reasons, and because it is uncontested that neither of the Defendants was in charge of the monitoring, which is the thrust of the harassment claims. The Court need go no further.

Having found that Plaintiffs did not meet their prima facie burden, the Court does not reach the analysis of the Mt. Healthy defense. Plaintiffs' First Amendment claims are therefore DISMISSED WITH PREJUDICE.

C. Equal Protection Claims.

The First Circuit has stated that "[a]n equal protection claim alleging political discrimination merely restates a First Amendment political discrimination claim and, as we have said repeatedly, should have been considered under the First Amendment." See, Morales-Santiago v. Hernández-Pérez, 488 F.3d 465, 471 (1st Cir.2007); see also Uphoff Figueroa v. Alejandro, 597 F.3d 423, 426, 430 n. 8 (1st Cir.2010) ("Once again we remind litigants that political discrimination [and retaliation] claims under the First Amendment cannot be restated as claims under the Equal Protection Clause"), and Pagán v. Calderón, 448 F.3d 16, 36 (1st Cir.2006) ("appellant's equal protection claim, which was premised on allegations of political discrimination, flounders, as it is a mere restatement of her failed First Amendment claim").

In the case at bar, Plaintiff's equal protection allegations as such, are non-existent. In their complaint, Plaintiffs aver that they have been discriminatorily treated and that adverse employment actions have been taken against them by Defendants since the 2009 change in administration, all due to their political affiliation with the PDP. These are clearly First Amendment claims, and Plaintiffs have presented no other claims of selective or disparate treatment via-a-vis other similar situated individuals on the basis of race or religion. See, Docket No. 1, ¶ 130, p. 24. Therefore, to the extent that Plaintiffs' equal protection claim is merely a disguised First Amendment claim, it will be treated as such. See, Néstor Colón Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.1992) (declining to apply equal protection analysis in light of the overlap between plaintiffs' First Amendment and equal protection claims).

Accordingly, the equal protection claims are therefore DISMISSED WITH PREJUDICE.

D. Due Process Claims.

Defendants also argue they are entitled to summary judgment on Plaintiffs Del Valle and Rodríguez' due process claims. (Docket No. 34 at pp. 30-34). As previously discussed, the main thrust of these two (2) Plaintiffs' arguments is that they were "removed" from their positions as Auxiliary Superintendent and placed in the position of School Director, and that this somehow violated their due process rights.

Again, the Court must mention that any acts that pertain to the administrative are time-barred, as Plaintiffs failed to sue within the one (1) year statute of limitations. If Plaintiffs' allegations refer to the reinstatement to the School Director positions after the detail ended, Plaintiffs' claims must also fail.

A plaintiff can be said to have evidenced a due process violation when he or she can prove he/she had property interest as defined by state law and that the defendants, acting under color of state law, deprived them of that property interest without constitutionally adequate process. See, Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Puerto Rico creates a property interest in continued career employment. Soto González v. Rey Hernández, 310 F.Supp.2d 418, 425 (D.Puerto Rico 2004) (citing Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 (1st Cir.1988)).

Due process requires that a deprivation of property "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). An exception to the due process requirement that an individual is entitled to some kind of prior hearing before having protected interest taken away is the "reorganization exception," which Defendants allege applies here. In that case, when a reorganization or cost-cutting measure results in the dismissal of public employees, employees are not entitled to a pre-termination hearing as long as the reorganization or cost-cutting measure is not merely pre-textual. United Auto. v. Fortuño, 677 F.Supp.2d 530 (D.Puerto Rico 2009). The Court finds this exception is inapplicable here, as it applies only when an employee has been dismissed, and no such actions has occurred here.

Under Puerto Rico law, however, the substantive requirements of the probationary period must have been met in order for a probationary employee to become a career employee. See P.R. Laws Ann. tit. 3 § 1462b(3)(g) ("Upon satisfactorily completing the probation period, the employee shall become a regular career employee"); Zambrana v. González, 145 D.P.R. 616, 632-33 (1998) ("The satisfactory completion of the probationary period is one of the most important stages of the recruiting process"); Gierbolini Colón v. Aponte Roque, 666 F.Supp. 334, 337 (D.Puerto Rico 1987) ("[plaintiff] was a probationary employee until the last evaluation on that probation was finished and a decision on whether he satisfactorily completed the period was made.").

Thus, given the law's focus on evaluation and satisfactory completion of the probationary period, Plaintiffs Del Valle and Rodríguez have not shown that they were regular career employees. On the contrary, the record evidences they had not met the two (2) year probationary period time limit before they tendered their demotion letter, which Defendants have established was necessary in order to avoid layoffs that were part of a comprehensive layoff plan fostered by the administration (which the Court takes judicial notice of the fact that it was judicially challenged on many occasions, and with few exceptions, upheld in the courts). Since the probationary period had not ended, Plaintiffs Del Valle and Rodríguez cannot be said to have had a protected property interest in their positions as Auxiliary Superintendents. See, e.g., Febus-Cruz v. Saurí-Santiago, 652 F.Supp.2d 140 (D.Puerto Rico 2009)(Dismissing procedural due process claims because as a probationary employee, plaintiff had no property right to continued employment and thus, no right to due process right to notice and a pre-termination hearing).

Plaintiffs also seem to raise, for the first time at summary judgment, a substantive due process violation, which was not alleged in the complaint. It has been well established that a claimant cannot bring forth a claim at the summary judgment stage for the first time. See, Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004) (holding that a plaintiff could not raise a new claim in response to a summary judgment motion); see also, generally, 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed. Supp.2005). To be sure, allowing Plaintiffs to raise these new issue at this late stage would subject Defendants to unfair surprise. See, Guiffre v. Local Lodge No. 1124, No. 90-3540, 1991 WL 135576, at *5 (6th Cir., July 24, 1991) (unpublished) (refusing to hear claims raised for the first time in opposition to summary judgment because, "[h]aving received no notice of them, the defendants had no opportunity to investigate them when they conducted their own discovery"); EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir.2001) (stating that even under the liberal notice-pleading regime, the Federal Rules of Civil Procedure still require "that the complaint give the defendant fair notice of the claim and its supporting facts"). Therefore, Plaintiffs' substantive due process at this late stage cannot lie.

For the aforementioned reasons, Plaintiffs Rodríguez and Del Valle's procedural and substantive due process claims are DISMISSED WITH PREJUDICE.

E. Qualified Immunity.

In light of the above findings, there is no need to discuss whether Defendants are entitled to qualified immunity.

F. State Law Claims.

Plaintiffs also bring forth claims under the Puerto Rico Constitution; the Public Service Law, No. 184 of August 3, 2004, as amended; and Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann., tit. 31, §§ 5142 and 5142.

Having dismissed the federal causes of action, this Court declines to exercise supplemental jurisdiction over the state-law claims in the present case. As such, the state law claims are DISMISSED WITHOUT PREJUDICE.

CONCLUSION

For the reasons stated above, the Court hereby GRANTS Defendants' Motion for Summary Judgment (Docket No. 121). Accordingly, the federal claims brought against co-Defendants Jesús Rivera Sánchez and Sonia Dalila Román are hereby DISMISSED WITH PREJUDICE. In addition, all state law claims against the named individual Defendants are DISMISSED WITHOUT PREJUDICE.

Judgment will be entered accordingly.

IT IS SO ORDERED.