ORDER IN THE MATTER OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants have moved for summary judgment requesting dismissal ofthe claims asserted in these proceedings. The court having reviewed thearguments submitted by the parties hereby finds as follows.
This action was instituted by MARIBEL CONCEPCION against the AUTOMOBILEACCIDENT COMPENSATION AUTHORITY ("ACAA") as well as FRANK ZORRILLA, itsExecutive Director, and MABEL ALVARADO, Director of Human Resources, intheir official and individual capacities. Plaintiff alleges politicaldiscrimination and seeks both equitable relief and damages pursuant tothe First, Fifth and Fourteenth Amendments of the Constitution of theUnited States, 42 U.S.C. § S 1983 and 1985. Additionally, plaintiffbrought a tort claim pursuant to art. 1802 of the Puerto Rico Civil Code,31 P.R. Laws Ann. § 5141 (1990) under our supplemental jurisdiction.Page 2
I. SUMMARY JUDGMENT STANDARD
Rule 56(c) Fed.R. Civ. P., which sets forth the standard for ruling onsummary judgment motions, in pertinent part provides that they shall begranted "if the pleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, show that thereis no genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Sands v. RidefilmCorp., 212 F.3d 657, 660-61 (1st Cir. 2000); Barreto-Rivera v.Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). The party seekingsummary judgment must first demonstrate the absence of a genuine issue ofmaterial fact in the record. DeNovellis v. Shalala,124 F.3d 298, 306 (1st Cir. 1997). A genuine issue exists if there issufficient evidence supporting the claimed factual disputes to require atrial. Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1stCir. 1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1stCir. 1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398,128 L.Ed.2d 72 (1994). A fact is material if it might affect the outcome of alawsuit under the governing law. Morrissey v. Boston Five Cents Sav.Bank, 54 F.3d 27, 31 (1st Cir. 1995).
In cases where the non-movant party bears the ultimate burden of proof,he must present definite and competent evidence to rebut a motion forsummary judgment, Anderson v. Liberty Lobby. Inc.,477 U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v.Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001); Grant's Dairy v.Comm'r of Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000),and cannotPage 3rely upon "conclusory allegations, improbable inferences, andunsupported speculation". Lopez-Carrasquillo v. Rubianes,230 F.3d 409, 412 (1st Cir. 2000); Maldonado-Denis v.Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994);Medina-Muñoz v. R.J. Reynolds Tobacco Co.,896 F.2d 5, 8 (1st Cir. 1990).
II. THE FACTS
1. Plaintiff worked in the Human Resources Office of ACAA fromAugust 1, 1999 until May 1, 2001.
2. On August 12, 1999 plaintiff's position as Assistant tothe Auxiliary Director of Human Resources was reclassified to HumanResources Manager, due to a substantial change in duties andresponsibilities.
3. On April 3, 2000 plaintiff was recommended for a meritstep increase based on her outstanding performance in the Human ResourcesOffice. At the time she was also Acting Director of the Human ResourcesOffice.
4. Effective May 1, 2001 plaintiff was transferred to a newposition entitled Operational Administration Manager in ACAA's OperationsDepartment pursuant to a letter subscribed by FRANK ZORRILLA datedApril 27, 2001.
5. Prior to her transfer, plaintiff's last position was Human ResourcesManager.
6. Two new manager positions were created in the Operations Department,including plaintiff's.
7. Plaintiff was offered a hearing to challenge her transfer but didnot act upon it.Page 4
8. Plaintiff is a New Progressive Party ("NPP") advocate whereasdefendants ZORRILLA and ALVARADO belong to the Popular Democratic Party("PDF").
III. THE CLAIMS
Plaintiff contends that her transfer was tantamount to a constructivedismissal and demotion, responding to no real government needs. She alsoclaims that in her new position she has not been assigned any managerialand/or supervisory work in accord with the description of duties for theposition but rather has been occasionally given menial clerical tasks tocarry out. Plaintiff alleges that the rest of the time she remains idleat her desk without any actual duties or responsibilities. Specifically,she notes that "[o]f the tasks and responsibilities included in the jobdescription of Manager of Operational Administration, plaintiff has neverbeen assigned the same and has not performed the same at anymoment."1
According to plaintiff, the underlying reasons used by ACAA forcreating the two new positions in the Operations Department arenonexistent. No real and necessary functions have been identified norany adequate of valid evaluation was carried out to properly determinethe needs warranting the new manager positions.
Defendants, on the other hand, deny any improper motive and argue thatplaintiff has failed to assert a valid claim because plaintiff's newposition was created due to a reorganization inPage 5ACAA's Operations Department and was within the same scale as herprevious position in the Human Resources Office. Also, her salaryremained intact. Defendants further contend plaintiff's transfer wasbecause of the necessity of service in accordance with applicable ACAARegulations.
IV. CONSTRUCTIVE DISMISSAL
At ¶ 17 of the complaint plaintiff alleges that her "demotion aposition different to which she was entitled without any supervisoryfunctions nor any apparent duties, constituted a constructivedismissal." (Emphasis ours).
This allegation borders on conduct subject to sanctions against counselpersonally. There is absolutely no factual basis for this assertioninasmuch as plaintiff has never resigned from employment ACAA. As theterm unequivocally connotes, the sine qua non requirement for aconstructive discharge claim is that a plaintiff compelled to leave hisor her employment.
[T]he purpose of the constructive discharge doctrine [is] to protect employees from conditions so unreasonably harsh that a reasonable person would feel compelled to leave the job. The doctrine reflects the sensible judgment that employers charged with employment discrimination ought to be accountable for creating working conditions that are so intolerable to a reasonable employee as to compel that person to resign.Ramos v. Davis & Geck, Inc., 167 F.3d 727, 732 (1stCir. 1999).Page 6
In order to establish a claim based on constructive discharge"plaintiff must prove that his employer imposed working conditions sointolerable that a reasonable person would feel compelled to forsake hisjob rather than to submit to looming indignities." Landrau-Romero v.Banco Popular de P.R., 212 F.3d 607, 613 (1st Cir. 2000) (citationsand internal quotations omitted); Simas v. First Citizen's Fed.Credit Union, 170 F.3d 37, 46 (1st Cir. 1999); Serrano-Cruz v.DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. 1997). Seealso, Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc.,273 F.3d 30, 36 (1st Cir. 2 001) ("treatment so hosfile or degrading thatno reasonable employee would tolerate continuing in the position").
The "subjective perceptions" of the employee are insufficient. Thereasonableness of plaintiff's decision to leave his employment is anobjective one and will be examined based on the ability to "presentsufficient evidence to allow the jury to credit his claim that areasonable employee would have felt compelled to resign under thecircumstances," Ramos v. Davis & Geck, Inc., 167 F.3d at731 and "cannot be triggered solely by the employee's subjective beliefs,no matter how sincerely held." Marrero v. Goya of P.R., Inc.,304 F.3d 7, 28 (1st Cir. 2002). See also,Serrano-Cruz, 109 F.3d at 26 (applying "objective standard"in examining employer's actions).
Likewise, discriminatory intent is not part of the probative calculusfor this particular type of claim. Thus, plaintiff is not required topresent "proof that the employer created the intolerable work conditionswith the specific intent of forcing the employee to resign." Ramosv. Davis & Geck, Inc., 167 F.3d at 732.Page 7
Based on the foregoing, plaintiff's claim for constructive dischargeis DISMISSED.
V. SECTION 1983
Section 1983 does not create substantive rights but is rather aprocedural mechanism for enforcing constitutional or statutory rights.Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807,127 L.Ed.2d 114 (1994). The statute, i.e., § 1983 "`is not itself a source ofsubstantive rights, but a method for vindicating federal rights elsewhereconferred . . . by the United States Constitution and federalstatutes.'" Rodriguez Garcia v. Municipality of Caguas,354 F.3d 91, 99 (1st Cir. 2004) (citing Baker v. McCollan,443 U.S. 137, 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Hence, it isplaintiffs' burden to identify the particular underlying constitutionalor statutory right that is sought to be enforced via judicialproceedings.
In order to prevail in a § 1983 claim plaintiff must bring forthevidence that (1) defendant acted "under color of state law" and (2)deprivation of a federally protected right. Rogan v. City ofBoston, 267 F.3d 24 (1st Cir. 2001); Dimarco-Zappa v.Cabanillas, 238 F.3d 25, 33 (1st Cir. 2001); Collins v.Nuzzo, 244 F.3d 246 (1st Cir. 2001); Barreto-Rivera,168 F.3d at 45.
There is no controversy over the fact that the named defendants wereacting within the scope of their duties as state officials at allrelevant times. Therefore, the first element is satisfied. We must thenascertain whether plaintiff was deprived of any federally protectedright as a result of the events alleged in the complaint.Page 8
A. Due Process
Plaintiff alleges a deprivation of property rights without due process.Property interests, however, are not created by the Constitution butderive instead from state law provisions. "In order to establish aconstitutionally-protected property interest, a plaintiff mustdemonstrate that she has a legally recognized expectation that she willretain her position." Santana v. Calderon, 342 F.3d 18, 24 (1stCir. 2003). "Under the Due Process Clause of the Fourteenth Amendment,persons who possess a property interest in continued public employmentcannot be deprived of that interest without due process of law."Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 6 (1st Cir.2000). "Puerto Rican law grants a property interest in employment tocareer employees." Id.
In this particular case plaintiff's property interest in employment hasnot been put at issue by the defendants. Hence, we shall proceed toascertain whether the aforementioned constitutional guarantee wasbreached.
Plaintiff's argument in support of her due process claim is limited toa procedural due process discussion and citing Cleveland Bd. ofEduc. v. Lourdermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494."At a minimum, due process rights entitle such individuals to `notice andmeaningful opportunity to respond' prior to [the change in employmentstatus]". Figueroa-Serrano, 221 F.3d at 5-6 (citingKerkado-Melendez v. Aponte-Rogue, 829 F.2d 255, 263 (1st Cir.1987)).
In the April 27, 2001 notice transferring plaintiff to aposition in the Operations Department she was given notice of thePage 9procedural safeguards available to her to challenge the Agency'sdetermination. Specifically, the letter apprised plaintiff that she had30 days to request a hearing in the event that she was not in agreementwith the change. Defendant submitted a declaration from MABEL ALVARADOvouching for the fact that plaintiff never challenged her transferthrough the administrative mechanisms in place at ACAA.2 Plaintiffhas failed to contest this assertion.
Accordingly, we find that no legal grounds exist to supportplaintiff's procedural due process claim inasmuch as she had availablea constitutionally adequate administrative process to challenge thetransfer. Accordingly, the due process claim is thereforeDISMISSED.
Dismissal of the due process claim, however, does not dispose of thepolitical discrimination allegations subject to First Amendmentprotection. See, Gomez v. Rivera Rodriguez,344 F.3d 103, 111 n.5 (1st Cir. 2003) (discussing difference between the twocauses of action). "Public employees can never be fired in violation oftheir First Amendment rights." Id.
B. First Amendment
Plaintiff alleges that her transfer, which was tantamount to a defacto demotion, responded to improper political motives.
Political discrimination in employment is conduct proscribed by theFirst Amendment. "It is now well established that political patronagerestrains freedom of belief and association, corePage 10activities protected by the First Amendment." Padilla-Garciav. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000).
Our initial inquiry in this case is to determine whether plaintiff'sparticular job was shielded from political bias or whether, on the otherhand, she held a "policymaking position" or a "position of unusualconfidence" which do allow for political affiliation as an appropriateconsideration when making personnel-related decisions. Gomez v.Rivera Rodriguez, 344 F.3d at 110; Padilla-Garcia, 212F.3d at 74. "Public employees who do not hold confidential policy-makingpositions are protected from adverse employment actions based onpolitical affiliation." Figueroa-Serrano, 221 F.3d at 7.See, Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4, 11(1st Cir. 2001) ("position is one in which political affiliation is areasonably necessary requirement").
No claim has been made in this case that plaintiff held a policymakingposition prior to her transfer nor one that would demand confidentiality.Accordingly, we conclude that plaintiff's political views could not beconsidered in the transfer determination.
The protection against political patronage practices resulting indismissals initially validated in Elrod v. Burns, 427 U.S. 347,96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel,445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), was subsequentlyextended to also cover promotions, transfers, recalls or hiring decisionsin Rutan v. Republican Party of Illinois, 497 U.S. 62,110 S.Ct. 2729, ill L.Ed.2d 52 (1990). Rutan specifically ruledthat "promotions, transfers, and recalls after layoffs based on politicalaffiliationPage 11or support are an impermissible infringement on the First Amendmentrights of public employees." 497 U.S. at 75.
In order to determine whether or not plaintiff was the victim ofobjectionable political patronage we must follow the Mt. HealthyCity Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287,97 S.Ct. 568, 50 L.Ed.2d 471 (1977) route which places the initial burden uponplaintiff who must present sufficient evidence to establish that"political affiliation was a substantial or motivating factor in thedecisional calculus." Gomez v. Rivera Rodriguez, 344 F.3d at110; Padilla-Garcia, 212 F.3d at 74. See also,Figueroa-Serrano, 221 F.3d at 7 (constitutionally protectedconduct substantial factor in the decision).
"If the plaintiff satisfies this burden the devoir of persuasion shiftsto the defendants to prove that they would have taken the same actionregardless of plaintiff's political affiliation." Gomez v. RiveraRodriguez, 344 F.3d at 110, "commonly referred to as the Mt. Healthydefense." Padilla-Garcia, 212 F.3d at 74.
Merely juxtaposing plaintiff's political affiliation with a claim thatshe was treated unfairly will not suffice to meet the causationrequirement. Id.; Correa-Martinez v.Arrillaga-Belendez, 903 F.2d 49, 58 (1st Cir. 1990).
Similarly, the mere fact that the defendants charged with thediscriminatory conduct belong to a different political party isinsufficient for plaintiff to meet his burden and avoid summarydisposition of a patronage claim. Figueroa-Serrano, 221 F.3dat 7-8; Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1172 (1stCir. 1988).Page 12
An "assertion about statements of political affiliation —unaccompanied by any specific factual information to support [a politicaldiscrimination] claim, and unrelated to any employment action taken by[defendant] against [plaintiff] — is patently insufficient toestablish an act of political discrimination."Lopez-Carrasquillo, 230 F.3d at 414. However, plaintiff is notrequired to prove her discrimination claim by direct evidence. "In apolitical discrimination case, the plaintiff may discredit the profferednondiscriminatory reason, either circumstantially or directly, byadducing evidence that discrimination was more likely than not amotivating factor." Padilla-Garcia, 212 F.3d at 77.Circumstantial evidence of politically-based discriminatory animus maysuffice if, when considered in toto, would allow a rational juryto make a reasonable inference of improper motive. Acosta-Orozco v.Rodriguez-de-Rivera, 132 F.3d 97, 101-02 (1st Cir. 1997);Anthony v. Sundlun, 952 F.2d 603, 605-06 (1st Cir. 1991).
On a motion for summary judgment scenario plaintiff must producesufficient evidence for a reasonable fact finder to infer that herpolitical affiliation was a substantial or motivating factor behind theemployment practice in controversy. Thus, the defendant "bears the burdenof persuading the factfinder that his/her reason for the adverseemployment action is credible." Reyes-Canada v. Rey-Hernandez,286 F. Supp.2d 174, 178 (D.P.R. 2003).
The probative onus placed on the parties in political discriminationcases differs from that required in employment discrimination suitsbrought under Title VII. "In contrast [to TitlePage 13VII suits],3 under the Mt. Healthy analysis for politicaldiscrimination, the burden of persuasion passes to the defendant-employeronce the plaintiff produces sufficient evidence of her prima facie case.In other words, the plaintiff-employee will prevail unless the factfinder concludes that the defendant has produced enough evidence toestablish that the plaintiff's dismissal would have occurred in any eventfor nondiscriminatory reasons." Padilla-Garcia, 212 F.3d at 78n.8 (citations and internal quotation marks omitted).
(1) The Parties' Memoranda
Plaintiff challenges her transfer — which she characterizes as ademotion. Defendants, on the other hand, deny discriminatory animus andclaim instead that plaintiff's transfer was premised on valid objectivecriteria grounded on the "needs" of the Agency and executed pursuant toits Personnel Regulations. They argue the position of Manager ofOperations Administration was created based on a bona fide reorganizationin that Department.
Additionally, defendants allege plaintiff's new position at theOperations Department was not unreasonably inferior to the one shePage 14previously held inasmuch as it was within the same scale with thesame salary.
(2) Plaintiff's Evidence of Political Animus
Defendants have not disputed the fact that plaintiff MARIBEL CONCEPCIONand defendants belong to opposing political parties4 and that theywere personally aware of plaintiff's political affiliation prior to thetransfer at issue. In any case, plaintiff has proffered ample evidence ofher long prior history of active participation in partisan politics, awell-known fact at ACAA5 and to defendants personally.6
The highly charged political tone at ACAA subsequent to the change ingovernment was also noted. MARIA LOPEZ PACHECO, plaintiff's co-worker,described the tense mood prevailing at ACAA after the 2000 elections whenthe PPD party overthrew the NPP governor then inPage 15power. According to the deponent, prior to the elections there wasa "cordial and professional atmosphere" amongst all employees. However,as soon as the elections were over the PDF supporters became "euphoric",would dress in red and wear pins with the party's insignia. The situationwas described as "very tense" and MABEL ALVARADO would no longer speak orgreet NPPs. ACAA became completely polarized with each political factionkeeping to itself.7 Plaintiff also submitted evidence indicating thatthe PDP sympathizers viewed her as a stumbling block in the HumanResources Office because she would be dealing with the new appointmentsto the Agency.8
LUIS CARRION LOPEZ, Director of the Human Resources Area until the 2000elections and a member of ACAA's Transition Committee, testified thatwhen codefendant MARIBEL ALVARADO was appointed Director of HumanResources she held a staff meeting and informed the office personnel thatsome of the tasks previously performed by plaintiff as Manager of HumanResources such as the office budget and work plan would be reassigned.Further, "as the week passed . . . [plaintiff] began to stop doingsome of the tasks that she normally had been performing." She was askedto turn over the roster of ACAA employeesPage 16and would no longer be responsible for the selection andrecruitment of personnel.9
(3) The Transfer
FELIX GONZALEZ SANTIAGO,10 a PPD member, was the Director of theOperations Department for approximately 10 months commencing on or aboutMarch 20, 2001. On April 18, 2001 MR. GONZALEZSANTIAGO submitted a memorandum to ZORRILLA justifying a reorganizationof his department and the creation of two manager positions. A detailedlist of the proposed duties of the new positions were included in thememorandum. Two days later, on April 20, 2001, MABEL ALVARADOrecommended this matter to FRANK ZORRILLA for his approval and onApril 27, 2001 plaintiff was notified of her transfer effectiveMay 1, 2001.
According to MR. GONZALEZ SANTIAGO, MS. ALVARADO recommended plaintifffor the position.
Codefendant MABEL ALVARADO,11 a PDF supporter, and Director ofHuman Resources at the time of the events charged in the complaint,acknowledged that she felt upset upon the appointment of MS. CONCEPCIONto head the Human Resources Department back in September 1999because she expected to be the one named to the position. According tothe deponent she had filed an administrative grievance in 1996charging her reclassification from Manager of IndustrialPage 17Relations to Human Resources Specialist based on a ReclassificationPlan was tantamount to a politically motivated demotion.
MS. ALVARADO participated in the process culminating in plaintiff'stransfer at issue in this case. According to the deponent, she evaluatedthe petition made by FELIX GONZALEZ, Director of Operations, for a newmanager position. MS. ALVARADO testified that MR. GONZALEZ submitted alist of duties to be performed and the position was created in accordancethereto. She then evaluated candidates for the position and recommendedplaintiff.
Codefendant FRANK ZORRILA indicated that he approved plaintiff'stransfer upon the recommendation of codefendant MABEL ALVARADO and theDirector of the Operations Department. Prior to the approval he haddiscussed plaintiff's transfer with MABEL ALVARADO but very briefly sincepersonnel needs were handled through the Human Resources Office.12
EVA LOPEZ CUMBA13 testified that she was recruited by codefendantMABEL ALVARADO where she commenced as Human Resources Specialist onMarch 26, 2001. MS. LOPEZ CUMBA, a PPD sympathizer, hadpreviously worked with codefendant ALVARADO at the Administration ofMunicipal Services Administration. According to the deponent, shereceived instructions directly from codefendant ALVARADO and substitutedher when on vacations. MS. LOPEZ CUMBA also participated in the creationof the position of Manager of Operations Administration.Page 18
(4) No Duties
There is ample evidence that in her new position plaintiff was assignedno managerial duties.
ELISA MARQUEZ ACEVEDO, who was already working in the OperationsDepartment when plaintiff was transferred thereto and sat almost acrossfrom plaintiff's office specifically noted that from the time MARIBELCONCEPCION was transferred up to late April 2002 plaintiff had nofunctions assigned and had nothing to do. "[S]he wasn't doing anything.She had nothing on her desk. All the time taking pills for the nerves anddepressed . . . I saw her reading the newspaper."14
MS. MARQUEZ ACEVEDO further indicated that approximately on April24, 2002 she was called to a meeting by JUAN CIRINO, the Director atthe time, who informed them that plaintiff would be MS. MARQUEZ ACEVEDO'ssupervisor. Prior to that meeting plaintiff had no functions assigned andeven thereafter she had no tangible supervisory responsibilities.According to MS. MARQUEZ ACEVEDO plaintiff exercised no supervision overher or any other employee in the Operations area.15
Additionally, MS. MARQUEZ ACEVEDO testified that FELIX GONZALEZ, theformer Operations Department Director, also PDP member, had noprofessional relationship with plaintiff. He did not "greet and almostnever talked to [plaintiff]." She never saw MR. GONZALEZPage 19approach plaintiff "in relation to her functions or anything."16 Specifically, the deponent noted: Well, what I mean is that I did not see that relationship between . . . between her and the boss; Him assigning functions or . . . him delegating to her. Nothing like that. Simply, she was all the time in her office.17
MR. GONZALEZ SANTIAGO also acknowledged in his deposition thatplaintiff was not doing any work. Further, he conceded that even thoughhe allegedly received the job description for plaintiff's position inMay 2001 it was not until November 6, 2001 that hefinally handed her the document. He explained the delay alleging that hehad forgotten to do it "due to an involuntary oversight".18
On October 30, 2001 plaintiff requested MR. GONZALEZ SANTIAGOin writing a written description of the duties of her position andassignment of the corresponding work.19
On February 27, 2002 plaintiff wrote a letter to FRANKZORRILLA confirming a prior conversation with him and complaining of notbeing assigned any tasks or duties corresponding to her position.20Page 20
(5) Unreasonably Inferior to the Norm
In Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218(1st Cir. 1989) the Court of Appeals ruled that the First Amendment'sprotection extends to situations in which employment changes broughtabout by the employer — albeit not as extreme as dismissal —result in working conditions "`unreasonably inferior' to the norm for theposition" at issue.
The current status of the "unreasonably inferior" doctrine applied incases of "discrimination short of actual demotion" after Rutanhas not been addressed by the First Circuit Court of Appeals.See, Acosta-Orozco, 132 F.3d at 101 n.5. However, ithas been routinely applied at the district court level. See,Reyes-Canada, 286 F. Supp.2d at 180 ("whether [plaintiff's]allegations amount to an altered work environment that is `unreasonablyinferior to the norm' is a question of act for the jury.");Acevedo-Garcia v. Vera-Monroig, 170 F. Supp.2d 169, 172 (D.P.R.2001) (internal citation omitted) ("record must contain evidence whichwould allow the fact finder to conclude . . . that the employee's newposition is `unreasonably inferior to the norm'". See also,Cuebas v. Vera-Monroig, 91 F. Supp.2d 464 (D.P.R. 2000);Morales-Narvaez v. Rossello, 852 F. Supp. 104 (D.P.R. 1994);Cabrero v. Ruiz, 826 F. Supp. 591 (D.P.R. 1993);Agosto-de-Feliciano, 800 F. Supp. at 1033.
(6) Conclusion
Plaintiff has proffered sufficient facts to conclude that her transferis tantamount to a demotion and that the position she is currentlyholding is "unreasonably inferior" to the norm for aPage 21manager position which precludes summary judgment on this matter.It is evident from the evidence submitted by plaintiff that theunderlying facts and motives behind the transfer as well as her workingconditions in her new position are in controversy. Whether her duties asManager of Operations Administration as well as the circumstances underwhich she was expected to perform are equal or similar to those expectedfor that position cannot be decided under the summary judgment vehicle.
Based on the evidence filed by plaintiff we find that a fact findercould reasonably infer that party affiliation was a substantial ormotivating factor in defendant's decision to move her out of the HumanResources Office. Faced with the overwhelming proof of political animussubmitted by plaintiff there is a genuine dispute of fact as to thegenuineness of the reasons proffered by the defendants for the switch inplaintiff's employment.
Additionally, plaintiff has also presented ample proof to support herclaim that she was not assigned any managerial or supervisory duties norany of the responsibilities corresponding to the position she iscurrently occupying.
Accordingly, the request for dismissal of plaintiffs' First Amendmentclaim is DENIED.
VI. QUALIFIED IMMUNITY
Qualified immunity protects public officials from personal liabilityfor determinations made in situations where the rights at issue are notunequivocally established. "Qualified immunity specially protects publicofficials from the specter of damagesPage 22liability for judgment calls made in a legally uncertainenvironment." Santana v. Calderon, 342 F.3d at 23 (quotingRyder v. United States, 515 U.S. 177, 185, 115 S.Ct. 2031,132 L.Ed.2d 136 (1995)).
This protection seeks to ensure that prior to engaging in particularconduct public officers have advance notice of whether or not it wouldviolate clearly established law. Santana v. Calderon, 342 F.3dat 23. See also, Duriex, 274 F.3d at 9 ("theimportance of providing certainty as to what are the clearly establishedrules of primary conduct for government officials.")
Qualified immunity is not merely a defense from constitutional claimsasserted in a proceeding but rather shields a public officer from suit.Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151,150 L.Ed.2d 272 (2001); Santana v. Calderon, 342 F.3d at 23.
Qualified immunity will be denied where (1) the facts as proffereddenote defendants violated a constitutional right, and (2) "the contoursof this right [were] `clearly established' under the then-existing law sothat a reasonable officer would have known that his conduct wasunlawful." Id.; Duriex, 274 F.3d at 9. Seealso, Huertas-Morales v. Agosto-Alicea, 278 F. Supp.2d 164,172 (D.P.R. 2003) (court should first consider whether plaintiff hasadduced a constitutional violation and if so, whether that particularright was clearly established at the time of the alleged breach.) Hence,the request for immunity must be rejected if there is no issue as to theexistence of a particular statutory or constitutional right which areasonable public official should be aware of.Page 23
The qualified immunity inquiry must start with the court ascertainingwhether or not plaintiff has pled sufficient facts to denote violation ofa constitutional right. Santana v. Calderon, 342 F.3d at 23;Duriex, 274 F.3d at 9.
Defendants contend that they are entitled to the qualified immunitydefense "because it was objectively reasonable for [them] to believe thatany of their actions in participating in the process of plaintiff'stransfer would not violate plaintiff's rights."21 They argue thatplaintiff's transfer was "legitimate . . . not based on any politicalcriteria, but rather on objective criteria grounded on ACAA's PersonnelRegulations."22 Specifically, they state that "[t]here was anobjective non-discriminatory reason for plaintiff's transfer anddefendants had no reason to know that plaintiff's transfer would resultin a violation of plaintiff's rights, assuming such a violation may befound."23 Further, they note that plaintiff was transferred to a newposition within the same scale and no changes in her salary wereeffected.
There is no issue as to the status of the law at the time of the eventsgiving rise to this litigation. As previously discussed, protection frompolitical patronage in government employment, including transfers, hasbeen recognized at least since Rutan was decided in 1990, longbefore the events giving rise to thisPage 24litigation occurred. Additionally, defendants were expected to knowthat government employees may not be subjected to altered conditions ofemployment "inferior to the norm" for the position in question because oftheir political inclinations.
Because plaintiff has met her burden under Rule 56 of raising a genuinefactual dispute regarding her conditions of employment and whether or notthese were "unreasonably inferior to the norm" as well as presentingample evidence of political animus defendants' request for qualifiedimmunity is unavailing and is therefore, DENIED.
VII. CONSPIRACY CLAIM § 1985
Defendants have also requested dismissal of plaintiff's conspiracyclaims asserted under 42 U.S.C. § 1985(3).24 In order to state aclaim under § 1985(3) plaintiff "must allege the existence of (1) aconspiracy, (2) conspiratorial purpose to deprive a person or class ofpersons, directly or indirectly, of the equal protection of the laws orequal privileges and immunities under the laws, (3) an overt act infurtherance of the conspiracy, and (4) either (a) an injury to person orproperty, or (b) a deprivation of a constitutionally protected right orprivilege." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).Page 25
Equal protection within the aforementioned provision specificallydenotes conduct motivated by "some racial, or . . . otherwiseclass-based, invidiously discriminatory animus". Griffin v.Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338(1971); Aulson, 83 F.3d at 3 ("conspiratorial conduct . . .[must be] propelled by . . . `invidiously discriminatory animus.")(citing Griffin)). See, Donahue v. City ofBoston, 304 F.3d 110, 122 (1st Cir. 2002) (in order to prevailplaintiffs must present evidence that "(1) some class-based animus(usually racial) lay behind the conspirators' action, and (2) that theconspiracy was aimed at interfering with protected rights."); Burnsv. State Police Ass'n of Mass., 230 F.3d 8, 12 (1st Cir. 2000).Subsequently, in United Bhd. of Carpenters and Joiners v.Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), theSupreme Court narrowed the scope of § 1985(3) by specificallyexcluding "conspiracies motivated by economic or commercial animus". TheCourt, however, declined to rule on whether its protection extended to"any class or organization on account of its political views oractivities". Id. at 838.
In this case plaintiff alleges defendants' conduct was motivated by herpolitical affiliation. The debate of whether membership in a politicalparty, absent racial bias, falls within the scope of aPage 26§ 1985(3) protected class subsequent to Scott stillcontinues25 with some courts ruling in its favor26 and othersagainst it.27
The First Circuit Court of Appeals has not yet issued an opinion onthis matter. However, previous decisions in this particular district haveruled against extending the scope of § 1985(3) to conspiracies basedexclusively on political discriminatory animus. See,Torres-Ocasio v. Melendez, 283 F. Supp.2d 505, 518 (D.P.R.2003); Reyes v. Municipality of Guaynabo, 59 F. Supp.2d 305, 310(D.P.R. 1999); Morales-Narvaez v. Rossello, 852 F. Supp. 104,114-5 (D.P.R. 1994); Rodriguez v. Nazario, 719 F. Supp. 52, 55-6(D.P.R. 1989). This court accordingly, will follow suit.
Based on the foregoing, plaintiff's § 1985(3) conspiracy claim ishereby DISMISSED.Page 27
VIII. SUPPLEMENTAL CLAIMS
Defendants have also moved to dismiss the local torts claim assertedunder our supplemental jurisdiction, 28 U.S.C. § 1367 (a) allegingthat (1) plaintiff has failed to "specifically allege[] any fault ornegligence on the part of defendants . . . under Article 1802" and (2)that in the event that the court were to dismiss all federal causes ofaction dismissal is proper under § 1367(c). Memorandum of Law(docket No. 67) p. 26.
Art. 1802 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. §5141 (1990), governs tort liability in Puerto Rico. According to thisprovision, a person is liable for damages resulting from his/hernegligent acts or omissions. In order to prevail plaintiff mustestablish: (1) a negligent act or omission, (2) damages, and (3) acausal relationship between them. Irvine v. Murad Skin ResearchLaboratories, Inc., 194 F.3d 313, 321-322 (1st Cir. 1999);Adorno v. Browning Ferris Indus, of P.R., Inc., 160 F.3d 839,842 (1st Cir. 1998); Marshall v. Perez Arzuaga, 828 F.2d 845,847 (1st Cir. 1987); Pons Anca v. Engebretson, 2003 TSPR 150,2003 WL 22399583, *3-4; Montalvo v. Cruz, 144 D.P.R. 748, 755(1998); Toro-Aponte v. E.L.A., 142 D.P.R. 464, 473 (1997).
The mere fact that injuries or damages ensue is not grounds forliability under art. 1802 for that would entail absolute liability.Defendants will be liable only for those reasonably foreseeableconsequences to their conduct. De-Jesus-Adorno, 160 F.3d at842; Pons Anca, 2003 TSPR 150, 2003 WL 22399583, *3-4;Montalvo, 144 D.P.R. at 755; Toro-Aponte, 142D.P.R. at 473; Ocasio Juarbe v.Page 28Eastern Airlines, Inc., 125 D.P.R. 410, 418 (1990)official translation reproduced in full in 902 F.2d 117 (1stCir. 1990); Jimenez v. Pelegrina Espinet, 112 D.P.R. 700,704, 1982 WL 210615 (1982); Pacheco v. A.F.F., 112 D.P.R.296, 300 (1982).
The duty of care "is anticipating reasonably probable injuries toprobable victims," Irvine, 194 F.3d at 322; "[the] failure toexercise due diligence to avoid foreseeable risks."Malave-Felix, 946 F.2d at 971.
A review of the facts as pled in the complaint easily meets theaforementioned criteria. Plaintiff has detailed intentionaldiscriminatory conduct on the part of the individual defendants which haspurportedly brought about unfavorable physical and emotionalsequelae.28 The evidence as proffered can lead a reasonable factfinder to conclude that the damages asserted by plaintiff were"reasonably foreseeable" to both defendants as a consequence of theirintentional discriminatory acts.
Accordingly, the request to dismiss the art. 1802 claims isDENIED.Page 29
Inasmuch as we have rejected defendants' plea to dismiss all federalclaims, the petition to decline supplemental jurisdiction is alsoDENIED.
IX. CONCLUSION
Accordingly, defendants' Motion for Summary Judgment (docket No.67)29 is GRANTED with respect to the dismissal of thefollowing claims: (1) constructive discharge, (2) due process, and (3)conspiracy under § 1985(3). Judgment shall be entered accordingly.
The motion is DENIED regarding plaintiff's § 1983political discrimination claim asserted under the First Amendment, thelocal negligence causes of action, and defendants' qualified immunityrequest.
IT IS SO ORDERED.
1. Plaintiff's Statement of Facts docket (No. 69) ¶ h.
2. Defendants' Motion for Summary Judgment (docket No. 67) Exh.7.
3. In Title VII suits plaintiff retains the burden of persuasionthroughout the litigation with defendant's duty limited to a proffer ofnon-discriminatory reasons. Thus, in Title VII discrimination cases, onceplaintiff meets the threshold of prima facie discrimination "only alimited burden of production passes to the employer to articulate alegitimate, nondiscriminatory reason for its actions. The employer underTitle VII need not submit sufficient evidence to persuade the factfinderbecause the plaintiff retains the burden of persuasion at all times."Padilla-Garcia, 212 F.3d at 78 n.8 (citations and internalquotation marks omitted).
4. Codefendant FRANK ZORRILLA is a long-time PDP supporter.See, Plaintiff's Opposition (docket No. 69) Exh. XI pp. 7-10.So is codefendant MABEL ALVARADO. See, Plaintiff's Opposition(docket No. 69) Exh. XIII pp. 48 and 50.
5. ELBA A. VALLES PEREZ, a co-worker, vouched that plaintiff'spolitical affiliation was known by everyone at ACAA. Id. Exh. VIpp. 22-3. This was confirmed by MARIA LOPEZ PACHECO, also a co-worker,who indicated that "at ACAA everybody knows who is PNP and who is Popular[PDP]". MS. LOPEZ PACHECO also detailed plaintiff's active role ininvolving fellow NPP ACAA employees in partisan events. Plaintiff'sOpposition (docket No. 69) Exh. VII pp. 30-31. See also,deposition testimony of CARMEN ZAYAS ORTIZ. Plaintiff's Opposition(docket No. 69) Exh. VIII pp. 33-37.
6. FERMIN SAGARDIA testified in his deposition that in February2001 he personally met with codefendant ZORRILLA in an attempt tointercede on plaintiff's behalf so as to allow her to. continue with herposition at the Human Resources Office but that ZORRILLA allegedlyspurned his proposal claiming that plaintiff was a "political activist".Plaintiff's Opposition (docket No. 69) Exh. V pp. 37-38.
7. Plaintiff's Opposition (docket No. 69) Exh. VII pp. 28-29.
8. According to the deposition testimony of CARMEN ZAYAS ORTIZ, JUANGUARDIN ROSA, Maintenance Supervisor, indicated that plaintiff "was notto be dealing with [the new appointments]." Plaintiff's Opposition(docket No. 69) Exh. VIII p. 35.
9. Deposition of LUIS CARRION LOPEZ. Plaintiff's Opposition (docketNo. 69) Exh. X pp. 47-48.
10. Plaintiff's Opposition (docket No. 69) Exh. XV.
11. Plaintiff's Opposition (docket No. 69) Exh. XIII.
12. Deposition of FRANK ZORRILLA. Plaintiff's Opposition (docket No.69) Exh. XI pp. 14-16.
13. Plaintiff's Opposition (docket No. 69) Exh. XIV.
14. Plaintiff's Opposition (docket No. 69) Exh. IX pp. 40-41.
15. Plaintiff's Opposition (docket No. 69) Exh. IX pp. 40-42.
16. Plaintiff's Opposition (docket No. 69) Exh. IX pp. 43-44.
17. Plaintiff's Opposition (docket No. 69) Exh. IX p. 44.
18. Plaintiff's Opposition (docket No. 69) Exh. XV p. 89.
19. Plaintiff's Opposition (docket No. 69) Exh. XVI.
20. Plaintiff's Opposition (docket No. 69) Exh. XII.
21. Defendants' Memorandum (docket No. 67) p. 29.
22. Id.
23. Id.
24. In pertinent part, § 1985(3) reads: If two or more persons . . . conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
25. See, Kenneth A. K. Martin, The Sixth Circuit Takesa Stand: Conklin v. Lovely and the Protection under 42 U.S.C. § 1985(3) to Victims of Non-racial, Discriminatory Conspiracies, 20 U.Tol. L. Rev. 733 (Spring, 1989) and E. Durden, Republicans as aProtected Class?: Harrison v. KVAT Food Management, Inc. and the Scope ofSection 1985(3), 36 Am. U. L. Rev. 193 (Fall, 1986) for anextensive discussion on this subject.
26. Political association is a protected class. Gleason v.McBride, 869 F.2d 688, 695 (2nd Cir. 1989); Conklin v.Lovely, 834 F.2d 543, 549-50 (6th Cir. 1987); Dohner v.Neff, 240 F. Supp.2d 692, 705 (N.D. Ohio 2002); Larkin v. Townof West Hartford, 891 F. Supp. 719, 731 (D.Conn. 1995).
27. Political association is not a protected class. Grimes v.Smith, 776 F.2d 1359 (7th Cir. 1985); Brown v. Reardon,770 F.2d 896, 907 (10th Cir. 1985); Harrison v. KVAT Food Mgt.Inc., 766 F.2d 155 (4th Cir. 1985); D'Aurizio v. Palisades,Park, 963 F. Supp. 387, 393 (D.N.J. 1997) aff'd 151 F.3d 1024(1998).
28. Family members of victims of employment discrimination have beenfound to have independent causes of action arising under art. 1802 fortheir own damages resulting from the discrimination suffered by arelative. Santini-Rivera v. Service Air., Inc., 94 J.T.S. 121(P.R.1994). "[T]he Puerto Rico Supreme Court has referred to that causeof action as flowing from, or `contingent upon,' the underlyingdiscrimination claim of the employee, although the cause of action isindependently founded in the general tort provision of the civil code(Article 1802) and not in the anti-discrimination laws."Marcano-Rivera v. Pueblo Int'l, Inc., 232 F.3d 245, 258 n.7(1st Cir. 2000).
29. See, Opposition (docket No. 69); Reply(docket No. 71); Sur-Reply (docket No. 73) andMotion Filing English Translations (docket No. 75).Plaintiff's Request for Leave to file Document in Spanish Language(docket No. 68) is MOOT. See, Motion FilingEnglish Translations (docket No. 70).