PEREZ v. AGOSTINI

37 F. Supp.2d 103 (1999) | Cited 0 times | D. Puerto Rico | January 21, 1999

OPINION AND ORDER

Before the Court is a motion for summary judgment filed byDefendants José Fuentes Agostini ("Fuentes Agostini"), LydiaMorales, and Pedro Pierluisi (collectively "Defendants") in thisaction brought pursuant to section 1983.1 Morales is theformer director of the Special Investigations Bureau ("SIB") ofthe Puerto Rico Department of Justice. Fuentes Agostini is theSecretary of Justice in Puerto Rico. Pierluisi is his immediatepredecessor at that position. Fuentes Agostini is sued in bothhis individual and official capacity; Pierluisi and Morales aresued only in their individual capacities. Plaintiff AmilcarGuilloty Pérez ("Guilloty") is a special agent in the SIB.Armando Séanchez and Domingo Alvarez are also defendants andofficers in the SIB. Guilloty brings this claim for monetary andinjunctive relief, alleging that Sanchez, Alvarez, Morales,Pierluisi and Fuentes Agostini violated his First Amendmentrights.

The Court reviews the record in the light most favorable toGuilloty and draws all reasonable inferences in his favor. SeeLeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). Guilloty became an agent for the SIB in February 1994,with an initial probationary period of two years.2 In May1994, Guilloty was assigned to the SIB's Ponce office. Sanchezwas the director of that office; Alvarez was the director of theSIB's organized crime and corruption investigations division.Guilloty claims that in his first year of work the Ponce SIBoffice was the site of a number of irregularities which are atthe heart of this controversy. They include the followingincidents:

1. Agents from the Ponce office would use official vehicles to pick up hay and horse feed at a commercial horse stable near Ponce. The agents did not pay for these items. It appears that the stables may have been involved in a drug investigation that the office was carrying out.3

2. Guilloty was assigned to investigate drug trafficking in the town of Salinas. Pursuant to this investigation, he developed a confidential informant who informed him that a drug shipment was due to arrive on a given night. Guilloty informed Sénchez of this tip. One the night in question the informant called Guilloty to tell him that the shipment was arriving but that no agents were present to make arrests. Guilloty phoned Sanchez, who asked Guilloty for the source of this information but did nothing to stop the shipment. Guilloty called his informant and told him to contact a United States Customs agent. The shipment was detained by federal authorities. Subsequently Guilloty was removed from the Salinas investigation.4

3. In January 1995, Guilloty participated in the arrest of an individual at his home. After the arrest, the individual's car was confiscated because one of the participating agents made out a sworn statement that the individual was smoking marijuana in his car at the time of the arrest. Guilloty claims that he was present at the arrest and that the sworn statement contained a falsified version of the events. He brought this matter to the attention of Sánchez, but he asserted that the agent's statement was correct. Guilloty claims that Sánchez offered to transfer him and provide him with the use of a vehicle in exchange for his silence on this matter.5

4. In May 1996, Guilloty complained of irregularities in his time sheet. He claimed that the times and annotations were being changed without his knowledge.6 Sánchez responded to this complaint in a memorandum in which he detailed the reasons for the changes in Guilloty's time sheets.7

Guilloty brought these incidents to the attention of hissupervisors and to other high-ranking officials in the Departmentof Justice. He spoke with Sánchez about his concerns regardingthe horse feed, the Salinas drug shipment, and the swornstatement that was used to confiscate the arrested individual'svehicle.8 He met with Alvarez to discuss the sworn statementincident.9 He also met with Morales to inform her of thesealleged improprieties.10

Guilloty claims that his communications regarding the allegedimproprieties did not have the effect that he intended. Healleges that Defendants, instead of implementing correctivemeasures, began to investigate and punish him for hisoutspokenness. Sánchez wrote a number of memoranda to Alvarez andMorales complaining of Guilloty's poor work performance,attendance, and attitude; detailing misconduct by Guilloty,including the improper use of vehicles and the mishandling ofinvestigations; stating that he had not satisfactorily compliedwith the guidelines for a probationary employee; and recommendingthat he be investigated.11 Guilloty's work evaluations whenhe first started in the Ponce office were generally good. Overtime, and as the controversy regarding these allegedirregularities developed, he began to receive negativeevaluations.12 He claims that these negative evaluations weredone in retaliation for his speaking out on the incidentsmentioned above. He also claims that as an additional means ofretaliation he was given little or no work duties.13

On January 24, 1996, Guilloty sent a memorandum to Pierluisi, Morales,Alvarez, and Sánchez in which he complained of the poorevaluations he received from Sánchez and requested that Sánchezbe investigated for the alleged reprisals that Sánchez had takenagainst him for making allegations of irregularities in the Ponceoffice.14 This controversy ultimately reached the office ofthe Secretary of Justice. In early 1996, Pierluisi receivedGuilloty's file, referred it to an assistant for evaluation, andauthorized Alvarez to take certain unspecified steps againstGuilloty, as permitted in the department's evaluationmanual.15 In September 1996, Guilloty met with Morales,Alvarez, and Sánchez to discuss the problem of his poorevaluations. 16 Partly as a result of that meeting, Guillotywas transferred to the SIB's office in Aguadilla. When he workedin Ponce, he received many poor evaluations; his evaluations inAguadilla, by contrast, have generally been excellent.17 Hecontinues to be a probationary employee.

In December 1996, Guilloty was a source for a series ofarticles by El Vocero newspaper. In the articles Guillotyanonymously described the irregularities regarding the Salinasdrug shipment.18 On January 2, 1997, after theabove-described events took place, Fuentes-Agostini succeededPierluisi as Secretary of Justice. Guilloty claims that the poorevaluations and Defendants' failure to take him off probationarystatus and make him a permanent employee were done as retaliationagainst him for speaking out on these alleged improprieties. Heclaims that these measures constitute violations of his FirstAmendment rights. In their motion for summary judgment, Morales,Pierluisi, and Fuentes-Agostini argue that they had no personalinvolvement in the case; that they are not subject to supervisoryliability and they did not act with reckless indifference toGuilloty's constitutional rights; and that Guilloty failed toexhaust his administrative remedies. For the reasons set forthbelow, the Court grants in part and denies in part the motion forsummary judgment.

DISCUSSION

Summary judgment is appropriate if "there is no genuine issueas to any material fact and . . . the moving party is entitled toa judgment as a matter of law." See Fed.R.Civ.P. 56(c). Theparty moving for summary judgment bears the initialresponsibility of demonstrating the absence of a genuine issue ofmaterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving partyhas satisfied this requirement, the nonmoving party has theburden of presenting any facts that demonstrate a genuine issuefor trial. Fed.R.Civ.P. 56(e); LeBlanc, 6 F.3d at 841. Thenonmovant must do more than show "some metaphysical doubt as tothe material facts." Matsushita Elec. Indus. Co., Ltd. v. ZenithRadio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d538 (1986). An issue is genuine when, based on the evidence, areasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.2505, 2510, 91 L.Ed.2d 202 (1986). "The mere existence of ascintilla of evidence in support of the plaintiffs position willbe insufficient; there must be evidence on which the jury couldreasonably find for the plaintiff." Id. at 252, 106 S.Ct. at2512.

1. Exhaustion of administrative remedies argument

[1] At the outset, the Court may dispose of in short order one ofDefendants' arguments. They claim that because Guilloty has notexhausted the administrative remedies afforded him under the PuertoRico Public Service Personnel Act,19 his claim shouldbe dismissed. Defendants cite no case law whatsoever to bolsterthis argument. This lack of supporting citations isunderstandable: a plaintiff is generally not required to exhauststate or administrative remedies before bringing a section 1983action in federal court. See Patsy v. Bd. of Regents of Florida,457 U.S. 496, 514-16, 102 S.Ct. 2557, 2567-68, 73 L.Ed.2d 172(1982); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209,1222, 39 L.Ed.2d 505 (1974); Baez-Cruz v. Municipality ofComerio, 140 F.3d 24, 30 (1st Cir. 1998); Erwin Chemerinsky,Federal Jurisdiction § 8.4, at 437-43 (2nd ed. 1994).Accordingly, the Court denies Defendants' argument to dismiss forfailing to exhaust administrative remedies.

2. First Amendment claim

[2,3] In the present case, Defendants argue that they had no personalinvolvement in Guilloty's alleged constitutional injury and thatthey are not subject to supervisory liability. Under section1983, a supervisor may not be liable based upon a theory ofrespondeat superior. Monell v. Dept. of Social Services of NewYork, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d611 (1978); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,581 (1st Cir. 1994). He may only be held liable on the basis ofhis own acts or omissions. Febus-Rodriguez v. Betancourt-Lebrón,14 F.3d 87, 91-92 (1st Cir. 1994). Furthermore, a supervisor maynot be found liable pursuant to section 1983 for mere acts ofnegligence. Maldonado-Denis, 23 F.3d at 582; Febus-Rodriguez, 14F.3d at 92. A claim under section 1983 has two essentialelements: (1) the conduct complained of must have been committedunder color of state law, and (2) the conduct must have worked adenial of rights that are protected by the Constitution or lawsof the United States. Martinez v. Colon, 54 F.3d 980, 984 (1stCir. 1995). With regard to the first element, the parties do notdispute that Defendants acted under color of state law. Thesecond element has two aspects: (i) there must have been adeprivation of federal rights and (ii) there must have been acausal connection between the conduct complained of and thedeprivation of rights. Gutierrez-Rodriguez v. Cartagena.,882 F.2d 553, 559 (1st Cir. 1989); Voutour v. Vitale, 761 F.2d 812,819 (1st Cir. 1985).

[4-7] Guilloty claims that Defendants' conduct violated his FirstAmendment rights. An individual does not lose his First Amendmentrights when he becomes a government employee. Tang v. RhodeIsland; 163 F.3d 7, 10 (1st Cir. 1998). When the government isacting as an employer, it has broader powers to limit speech thanit does when it is acting as the sovereign. Waters v. Churchill,511 U.S. 661, 671-72, 689, 114 S.Ct. 1878, 1886, 1890, 128L.Ed.2d 686 (1994) (plurality opinion). The government should begiven wide discretion and control to manage its own internalaffairs and personnel. Connick v. Myers, 461 U.S. 138, 151, 103S.Ct. 1684, 1692, 75 L.Ed.2d 708 (1983) (quoting Arnett v.Kennedy, 416 U.S. 134, 168, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15(1974)) (Powell, J., concurring). Part of this managementincludes dealing with the statements and speech of governmentemployees. Although it is advisable that public officials bereceptive to constructive criticism, that does not mean that apublic agency must be run as a roundtable to hear and considerevery employee complaint regarding the agency's internal affairs.Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Thus, when thegovernment acts as an employer, its employees' First Amendmentrights must be balanced against the government's need to manageits affairs efficiently. Waters, 511 U.S. at 675, 114 S.Ct. at1888. Generally, the employees' rights of free expression will beprotected so long as that expression does not impede thegovernment's interest, as an employer, in efficiently performing itsduties. O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir.1993).

[8] A government employee's claim that his employer has violatedhis First Amendment rights is normally analyzed under a three-steptest. First, the court must determine whether the employee'sstatements were on matters of public concern or merely ofpersonal interest. Connick, 461 U.S. at 147, 103 S.Ct. at 1690;Tang, 163 F.3d 7, 10. Second, the court must balance theemployee's First Amendment rights against the government'sinterest in efficient agency performance. Pickering v. Bd. ofEduc. of Township High School, 391 U.S. 563, 568, 88 S.Ct. 1731,1734-35, 20 L.Ed.2d 811 (1968); Tang, 163 F.3d 7, 10. Third, theemployee must show that his expressions were a substantial ormotivating factor in the government's adverse employmentdecision; the government then must show that it would have madethe same decision even if the employee had never made thestatements. Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274,287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); O'Connor 994 F.2dat 913.

Under the first threshold step, the court must decide whetherthe speech at issue deals with a matter of public concern. Inmaking this analysis, it is necessary to determine, based on theform, context, and content of the speech, as indicated by thewhole record, whether the employee was speaking "as a citizenupon matters of public concern," or "as an employee upon mattersonly of personal interest." Connick, 461 U.S. at 147-48, 103S.Ct. at 1690; O'Connor, 994 F.2d at 912. If the issue is apersonal matter and not one of public concern, the employmentdecision generally may not be challenged in federal court.Connick, 461 U.S. at 147, 103 S.Ct. at 1690; O'Connor, 994 F.2dat 912. A court should not presume that all matters dealt with ina government office are of public concern. To do so would be tomake every government employee's remark or criticism the groundsfor a constitutional case. Connick, 461 U.S. at 149, 103 S.Ct. at1691.

[9] An employee's complaints about his personal working conditionswill generally not be protected. Tang, 163 F.3d 7, 10-11.Expressions which raise the issues of official misconduct, abuseof office, misappropriation of public funds, on the other hand,are matters of public concern and should be protected. SeeO'Connor, 994 F.2d at 908, 913-15 (Claim that municipal officerwas making purchases of items for personal use through themunicipality's account to avoid state sales tax was a matter ofpublic concern); Breuer v. Hart, 909 F.2d 1035, 1038 (7th Cir.1990) (Allegation that a government employee was paid for workthat she did not perform only because of her personalrelationship with the sheriff).

[10] In the present case, Guilloty's allegations of a mishandleddrug investigation, a falsified sworn statement by a policeofficer, and the use by police officers of official vehicles toreceive gifts from a commercial stable which was the target of apossible drug investigation are all claims that raise the uglyspecter of public corruption and mismanagement. These arecertainly matters of public concern, and Defendants do not argueotherwise. Guilloty's claims about his time sheets, however,present a different matter. They are complaints that he was notproperly credited for hours worked. In a memorandum responding tothese complaints, Sánchez explained why Guilloty was credited forthe hours that appear on his time sheets.20 The time sheetcontroversy is a dispute between Guilloty and Sánchez over thenumber of hours to which Guilloty is entitled. This issue fallsin the general category of employee working conditions. It is apersonal matter, and thus it is not entitled to First Amendmentprotection. The Court will therefore proceed to the next two stepsof the test only as to Guilloty's statements regarding the Salinas drugshipment, the horse feed, and the falsified sworn statement.

[11] Once the court determines that the employee's speech is amatter of public concern, it must next do a balancing under thesecond step. At this step, a court should balance the employee'sFirst Amendment rights, as well as any public interest in theinformation about which the employee was speaking, against thegovernment's interest in promoting the efficient performance ofthe service the government agency seeks to provide through itsemployees. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35;O'Connor, 994 F.2d at 912. The court must consider thesignificance of the interests of the employee's speech againstthe government employer's interests of avoiding unneededdisruptions to its mission of serving the public. O'Connor, 994F.2d at 915. It is the government's dual role of a publicemployer and the sovereign operating under the First Amendment'sconstraints which makes this balancing necessary. Rankin v.McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d315 (1987). In making this analysis, a court must consider themanner, time, place, and context of the employee's statements.Id. at 388, 107 S.Ct. at 2899. Among the factors which a courtshould take into account are whether the employee's commentsdisrupt harmony among co-workers; impede superiors frommaintaining discipline; interfere with the agency's regularoperations; or detract from the speaker's performance. Id.

When an agency requires close working relationships to enableit to fulfill its public duties, the public employer's judgmentshould be afforded a wide degree of deference. Connick, 461 U.S.at 151-52, 103 S.Ct. at 1692; Propst v. Bitzer, 39 F.3d 148,152-53 (7th Cir. 1994). This is particularly true in the lawenforcement field, where order, discipline, and esprit de corpsare essential for operating in what can be life or deathsituations. Breuer, 909 F.2d at 1041. Additionally, at thissecond step the employer must show that the employee's speech hada detrimental impact on working relationships. Brasslett v. Cota,761 F.2d 827, 845 (1st Cir. 1985). The employer has the burden ofpresenting legitimate reasons for the adverse action takenagainst the employee. Rankin, 483 U.S. at 388, 107 S.Ct. at 2899;Breuer, 909 F.2d at 1039. This burden will vary depending uponthe nature of the employee's statements. Connick, 461 U.S. at150, 103 S.Ct. at 1691-92.

[12] In the present case, it appears that Guilloty voiced hisconcerns about the alleged irregularities through internalchannels of communication. He spoke directly to Sánchez aboutthem, he wrote memoranda to other supervisors in the agency, andhe met with these people as well. The evidence does not indicatethat the manner in which Guilloty made these expressionsdisrupted the functioning of the SIB office in Ponce, damagedharmony in the office, or prevented Sánchez from maintainingdiscipline. The topic upon which Guilloty was speaking wascertainly a delicate one, but his use of the channels ofcommunication does not appear to have prevented the SIB officefrom doing its work. As discussed above, Defendants have theburden at this step to justify the adverse actions taken againstGuilloty. They have failed to address this issue, and thereforehave failed to meet their burden. Thus, for purposes of thismotion for summary judgment only, the Court assumes that thebalancing required at this second step of the analysis favorsGuilloty's interest in speaking out on these issues.

If a court determines that a public employee's interests inspeaking out on a matter of public concern outweigh thegovernment's legitimate interest in promoting efficiency andcurbing the employee's speech, the court must then proceed to thethird step of the test. O'Connor, 994 F.2d at 913. Under thisstep, the employee has an initial burden to show that his protectedexpression was a substantial or motivating factor in the adverseemployment action taken against him. Mt. Healthy, 429 U.S.at 287, 97 S.Ct. at 576; O'Connor, 994 F.2d at 913. Theplaintiff may meet this burden with circumstantial evidence. Theclose chronological order of a plaintiffs protected conduct and adefendant's alleged retaliatory conduct may warrant an inferenceof retaliation. See Ferranti v. Moran, 618 F.2d 888, 892 (1stCir. 1980); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979);see also Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991)(Circumstantial evidence can be helpful to determine an actor'smotive). Once the plaintiff has met his burden, the defendantmust then show by a preponderance of the evidence that it wouldhave taken the same action even in the absence of the plaintiffsprotected conduct. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576;O'Connor, 994 F.2d at 913.

[13,14] In the present case, Guilloty claims that he was subjectto adverse treatment in reprisal for his statements regarding theirregularities. There is evidence in the record that his jobevaluations, which initially were positive, became negative andcritical after he began to speak out.21 There is alsoevidence that he was denied substantial work duties after thiscontroversy developed.22 Although Sanchez appears to be theone who took these measures against Guilloty, Morales andPierluisi were made aware of them through meetings or memorandaon the topic. This evidence is sufficient to raise an inferencethat Morales and Pierluisi were aware of the alleged retaliationagainst Guilloty. This circumstantial evidence is sufficient toallow Guilloty to meet his burden at the summary judgment stageas to these two defendants. As to Fuentes Agostini, however, theevidence is less convincing. He did not become Secretary ofJustice until January 2, 1997, after the events and allegedretaliation about which Guilloty complains. There is no evidencethat he was aware of this situation or personally involved in it.Accordingly, the Court must grant the motion for summary judgmentas to Fuentes Agostini in his individual capacity.23

Once Guilloty met his burden in the Mt. Healthy test, Moralesand Pierluisi had the burden of showing that the same actionswould have been taken against Guilloty even if he had not spokenout on the alleged irregularities. See Mt. Healthy, 429 U.S. at287, 97 S.Ct. at 576; O'Connor, 994 F.2d at 913. As discussedabove, there is sufficient evidence to create a genuine issue asto the personal involvement of Morales and Pierluisi inGuilloty's complaints and subsequent adverse treatment. Andalthough Defendants acknowledge the applicability of the Mt.Healthy test, they completely fail to make any arguments oradduce any evidence to support their burden at this stage of thetest. They do claim that Morales and Pierluisi tools affirmativesteps to respond to Guilloty's situation. With regard toPierluisi, the only evidence in the record is that someunspecified action was taken by his office as to Guilloty.Pierluisi's sworn statement does not indicate what was the natureof this action nor whether it was favorable to Guilloty.24Without more specifics, his motion for summary judgment mustfail. As to Morales, the record indicates that she met withand received memoranda from Guilloty on this problem. However,it is not clear from the record that she corrected thesituation and took steps to stop the alleged retaliatorymeasures. Also, Guilloty continues to be a probationary employee,even though he is now receiving excellent evaluations andeven though his two-year probationary period has passed. Moralesand Pierluisi have failed to meet their burden in the Mt.Healthy test. Accordingly, their motion for summary judgmentmust be denied.

3. Qualified immunity

[15,16] As is often the case in section 1983 cases, the defendantsclaim that they are entitled to qualified immunity protection.The qualified immunity doctrine protects state officials fromcivil liability under section 1983 so long as their conduct doesnot violate a clearly established constitutional right of which areasonable official would have been cognizant. Harlow v.Fitzgerald; 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d396 (1982); Ringuette v. City of Fall River, 146 F.3d 1, 5 (1stCir. 1998). A state actor claiming qualified immunity must do soeither under a theory that the asserted constitutional right wasnot clearly established or under the theory that his conductsatisfies the test of objective legal reasonableness.Camilo-Robles v. Hoyos, 151 F.3d 1, 5-6 (1st Cir. 1998). Thequestion in this analysis is not whether the right is clearlyestablished at a highly abstract level; rather, the question iswhether, under the circumstances at hand, a reasonable officerwould understand that his conduct was violating a constitutionalright. Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998). Thistest is purely an objective one. Crawford-El v. Britton,523 U.S. 574, ___, 118 S.Ct. 1584, 1591-93, 140 L.Ed.2d 759 (1998);Brown v. Ives, 129 F.3d 209, 211 (1st Cir. 1997).

[17] It has long been clearly established that government actiontaken in retaliation for an individual's exercise of his FirstAmendment rights is a constitutional violation. See Crawford-El,523 U.S. at ___, 118 S.Ct. at 1594; Mt. Healthy, 429 U.S. at283-84, 97 S.Ct. at 574; Ferranti, 618 F.2d at 892 a. 4;McDonald, 610 F.2d at 18. In the present case, there are factualissues as to the motives and actions of Morales and Pierluisi.Granting qualified immunity at the summary judgment stage may notbe appropriate where there is a factual issue as to an essentialelement of the plaintiffs' claim. Swain v. Spinney, 117 F.3d 1,10 (1st Cir. 1997). The qualified immunity standard is anobjective one. However, if there is a factual issue in dispute asto an essential subjective element of the underlying claim,granting the defendant qualified immunity at the summary judgmentstage would not be appropriate. Crawford-El, 523 U.S. at ___, 118S.Ct. at 1592. In the present case, there are factual issues bothas to the nature of the involvement of Morales and Pierluisi, aswell as their motivations for their involvement. Because thereare factual issues as to essential elements of Guilloty's claim,the request for qualified immunity must be denied.

WHEREFORE, the Court grants the motion for summary judgment(docket no. 27) as to Fuentes Agostini in his individualcapacity, but denies it as to the arguments to dismiss the claimsagainst Morales and Pierluisi.

IT IS SO ORDERED.

1. 42 U.S.C.A. § 1983 (West Supp. 1998).

2. Docket no. 35, exhibits 1 & 2.

3. Docket no. 35, exhibit 3, at 6-14; exhibit 4, at 2.

4. Docket no. 35, exhibit 4, at 3-4; exhibit 7, at 17-25.

5. Docket no. 35, exhibit 4, at 4-5; exhibit 7, at 41-51.

6. Docket no. 35, exhibit 4, at 8; exhibits 25 & 26.

7. Docket no. 35, exhibit 27.

8. Docket no. 35, exhibit 4, at 2-5.

9. Docket no. 35, exhibit 3, at 17-18; exhibit 4, at 5.

10. Docket no. 35, exhibit 3, at 7-8, 11; exhibit 7, at 25-28.

11. Docket no. 35, exhibits 8, 9, 11, 12, 14, 15, 21, 24, 29.

12. Docket no. 35, exhibit 35.

13. Docket no. 35, exhibit 3, at 20; exhibit 4, at 5, 7;exhibit 7, at 32-34.

14. Docket no. 35, exhibit 22.

15. Docket no. 27, exhibit III.

16. Docket no. 35, exhibit 4. at 8-9.

17. Docket no. 35, exhibits 34 & 35.

18. Docket no. 35, exhibit 32.

19. P.R.Laws Ann. tit. 3, §§ 1301 - 1431 (1992).

20. Docket no. 35, exhibit 27.

21. Docket no. 35, exhibit 35.

22. Docket no. 35, exhibit 3, at 20; exhibit 4, at 5, 7;exhibit 7, at 32-34.

23. In addition to monetary relief, Guilloty is also seekinginjunctive relief that he be promoted from probationary topermanent employee status. Thus, only insofar as the Secretary ofJustice will be required to order that Guilloty receive permanentemployee status should be prevail, Fuentes Agostini remains adefendant in his official capacity.

24. Docket no. 27, exhibit III.

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