Reyes-Orta v. Highway and Transportation

14-2172P

2016 | Cited 0 times | First Circuit | January 25, 2016

United States Court of Appeals For the First Circuit

No. 14-2172

SHEILA REYES-ORTA; JOSÉ L. CASTILLO-CARRILLO; CONJUGAL PARTNERSHIP CASTILLO-REYES,

Plaintiffs, Appellants,

v.

PUERTO RICO HIGHWAY AND TRANSPORTATION AUTHORITY; RUBÉN HERNÁNDEZ-GREGORAT, in his individual and official capacity as Secretary of Transportation and Public Works; BRENDA GOMILA- SANTIAGO, in her individual and official capacity as Executive Director of Human Resources; CÉSAR MALDONADO-VÁZQUEZ, in his individual and official capacity as Human Resources Specialist; INSURANCE COMPANY ABC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Barron, Hawkins,* and Lipez, Circuit Judges.

Juan M. Frontera-Suau, with whom Kenneth Colon and Frontera Suau Law Offices, PSC were on brief for appellant. Michelle Camacho Nieves, with whom Margarita L. Mercado- Echegaray, Solicitor General, and Zarel Soto-Acabá, Assistant Solicitor General, Department of Justice, were on brief for * Of the Ninth Circuit, sitting by designation.

appellees Rubén Hernández-Gregorat, Brenda Gomila-Santiago, and César Maldonado-Vázquez in their individual capacities. Yassmin González-Vélez, Counsel for Puerto Rico Highway and Transportation Authority, was on brief for appellee Puerto Rico Highway and Transportation Authority and appellees Rubén Hernández-Gregorat, Brenda Gomila-Santiago, and César Maldonado- Vázquez in their official capacities.

January 25, 2016

HAWKINS, Circuit Judge. Plaintiff Sheila Reyes-Orta

alleges that she was stripped of various job duties and was

ultimately terminated from her job at the Puerto Rico Highway and

Transportation Authority ("PRHTA") because of her affiliation

with the Popular Democratic Party ("PDP"). After striking

certain exhibits, the district court granted summary judgment

against her on her First Amendment political discrimination

claims because (1) there was insufficient evidence that actions

short of dismissal constituted adverse employment actions; and

(2) absent any political discrimination, she would have been

terminated in any event for nondiscriminatory reasons. We

reverse and remand.

I. Background

A. Facts

Reyes-Orta has worked for the Puerto Rico government

for nearly three decades. In 2001, she transferred from a

position as a human resources program officer at the Industrial

Commission to a higher position, human resources program chief,

at the PRHTA.

In 2001-2002 and 2004, while the PDP administration was

in office, the internal audit offices of both the Puerto Rico

Industrial Commission and PRHTA investigated Reyes-Orta's

"transfer-promotion." The internal audit office of the

Industrial Commission found that the certification of job duties

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she provided to get the PRHTA position inaccurately stated that

she had supervised clerical and secretarial personnel as an

"essential duty" of her Industrial Commission position. The

internal audit office also found that the certification was

improperly signed by a fellow human resources program officer,

who failed to verify its content and who failed to refer the

matter to the Industrial Commission's human resources director.

The office recommended that the investigation be referred to the

legal division to determine the appropriate corrective measures.

The PRHTA's internal audit office, whose report was

written by Juan Encarnación in 2004, also found that the

certification was fraudulent, but it could not determine whether

the certification was a "determining factor" in permitting Reyes-

Orta's transfer. It recommended that the PRHTA's human resources

department re-analyze Reyes-Orta's documents to determine if she

should be certified as qualified; that the legal division

evaluate the legality and validity of the documents; and that the

agency take appropriate corrective action.

No further action was taken for five years. By January

2009, Reyes-Orta was in another position, director of the Office

of Position Analysis, Compensation and Fringe Benefits at the

PRHTA. That month, Luis Fortuño of the New Progressive Party

("NPP") took office as Governor of Puerto Rico after defeating

the PDP incumbent in the 2008 general election. Rubén Hernández-

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Gregorat, an NPP member, took over as the PRHTA's executive

director. Between January and May 2009, Brenda Gomila-Santiago,

also an NPP member, served as Hernández-Gregorat's aide. In June

2009, she took over as human resources director at PRHTA from

Luis Sánchez-Casanova, who had occupied that position from

January to May 2009.

On April 29, 2009, El Nuevo Día, the largest newspaper

in Puerto Rico, reported that, according to a PDP legislator,

PRHTA executive director Hernández-Gregorat had, four months

after taking office, given his drivers and aides hefty salary

raises while PRHTA was running a $300 million operational deficit

and was at risk of having to lay off 30,000 public employees and

to halt its projects. The article prompted Hernández-Gregorat to

direct then-human resources director Sánchez-Casanova to

investigate who had leaked the information to the PDP legislator.

Reyes-Orta claims that, during that time, Sánchez-Casanova told

her several times that she should be careful because the "top"

wanted to "cut her head off" and that he was under pressure

because he did not want to take disciplinary action against her.

Reyes-Orta's co-worker Sonia Vélez-Vélez, who had joined the

PRHTA at the same time as she, claims Sánchez-Casanova also told

her during this time that he was feeling pressured by Hernández-

Gregorat to terminate PDP employees, including Reyes-Orta and

Vélez-Vélez, and that Hernández-Gregorat was looking for an

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attorney to justify those terminations.

On May 19, 2009, Sánchez-Casanova wrote a report on his

investigation, in which he stated that two witnesses had

identified Reyes-Orta as the source of the leak, something Reyes-

Orta denied. The report also stated that he had told Reyes-Orta

that he was going to request a broader disciplinary investigation

by the Office of Industrial Relations and that the leak was

"unacceptable and that, if [Reyes-Orta was the source of the

leak], she should stop [leaking information] . . . since it

affected all of the colleagues of the area."

The report was sent to the Office of Industrial

Relations, which then assigned César Maldonado-Vazquez, an NPP

member, to conduct a formal investigation. Maldonado-Vázquez

interviewed Reyes-Orta on August 31, 2009. According to Reyes-

Orta, Maldonado-Vázquez told her that he knew she was affiliated

with the PDP; that the past PDP administration had kicked him

out; that the PDP administration "did whatever [it] want[ed] when

granting steps for merit all over without having an assessment

system"; and that she and other employees were going to be laid

off because the resolutions that had allowed them to be

transferred to PRHTA back in 2001 were illegal. Three days

later, Reyes-Orta sent a letter to Hernández-Gregorat, Gomila-

Santiago, Maldonado-Vázquez, and others repeating what Maldonado-

Vázquez had said and stating that she felt humiliated and

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politically discriminated against during the interview. She

received no response.

Reyes-Orta claims that, soon after Gomila-Santiago took

over as human resources director, she stripped Reyes-Orta of

various job duties, and ignored Reyes-Orta's requests to have her

computer fixed. As a result, Reyes-Orta had no computer between

April 2009 and her eventual termination in May 2010 and had to

depend on other employees to access the software programs she

needed for her job.

In December 2009, Reyes-Orta received a letter from

Hernández-Gregorat stating his intent to declare her appointment

null because an audit had revealed that her 2001 transfer was

illegitimate because she had falsely represented that she had

experience supervising office personnel and thus was not

qualified for her PRHTA position and because her transfer-

promotion violated Puerto Rico's merit principle and free

competition principle. According to the letter, the vacancy for

her job should have been posted publicly before she was

appointed.

In January 2010, Hernández-Gregorat issued Resolution

No. 2010-01, which annulled several previous regulations, Nos.

2000-15, 2001-13, and 2001-24, because they ran counter to then-

prevailing Puerto Rico law, including the merit principle. The

resolution authorized the deputy executive director of PRHTA "to

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take those measures which are legally pertinent for the

transactions of personnel enacted by the Highway and

Transportation Authority under the aforesaid Rulings be revised,

corrected, or annulled pursuant to the applicable law."

At Reyes-Orta's request, an informal hearing regarding

her termination was held in March 2010. The examining officer

upheld Hernández-Gregorat's decision to terminate her because her

appointment was null. Her official termination date was May 3,

2010.

B. Procedural History

Reyes-Orta and her husband filed this lawsuit in May

2011, alleging that Defendants PRHTA, Hernández-Gregorat, Gomila-

Santiago, and Maldonado-Vázquez violated their rights under the

First and Fourteenth Amendments and Puerto Rico law. The

district court dismissed Plaintiffs' Fourteenth Amendment claims

and some state law claims at the motion to dismiss stage. After

several rounds of briefing at the summary judgment stage, the

district court dismissed Plaintiffs' First Amendment claims and

declined supplemental jurisdiction over the remaining state law

claims.

In its summary judgment order, the district court held

that the El Nuevo Día investigation, the stripping of job

functions, and the loss of Reyes-Orta's computer, "even taken

together," did not constitute "adverse employment actions"

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because there was no evidence that the El Nuevo Día investigation

was directed at Reyes-Orta specifically or that she was

investigated because of her political affiliation; that

Defendants changed her job duties in any meaningful or

illegitimate way; or that Defendants caused her computer

problems. Reyes-Orta v. Highway & Transp. Auth., No. CIV. 11-

1410 SEC, 2014 WL 4827406 , at *5-8 (D.P.R. Sept. 29, 2014).

With regard to Reyes-Orta's claim that her personnel

file was audited and that she was terminated due to political

discrimination, the district court found that, even assuming

Reyes-Orta established a prima facie case, Defendants had

established a Mt. Healthy defense by showing that the PRHTA had

even-handedly audited all personnel files and pledged to correct

all past personnel transactions done under legally invalid

resolutions. The court rejected Reyes-Orta's attempts to rebut

this evidence with evidence that all of the personnel terminated

as a result of these audits were PDP members and that the audits

began even before Hernández-Gregorat issued Resolution No. 2010-

01.1

Plaintiffs argue that the district court erroneously

excluded some of their exhibits in evaluating their claims. They

1 The district court also held that Plaintiffs' § 1983 claims against Maldonado-Vázquez were time-barred and that their civil rights conspiracy claims against all of the Defendants were inadequately pled. Reyes-Orta, 2014 WL 4827406 , at *11-12. Plaintiffs do not appeal these decisions.

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also argue that the district court wrongly relied on inadmissible

evidence from Defendants and discounted Plaintiffs' evidence in

evaluating Defendants' Mt. Healthy defense.

We agree that the district court erred in granting

summary judgment and therefore reverse and remand the case.

II. Standard of Review

A district court's grant of summary judgment is

reviewed de novo. United States ex rel. Jones v. Brigham &

Women's Hosp., 678 F.3d 72 , 83 (1st Cir. 2012). Summary judgment

is properly granted if the movant can demonstrate that "there is

no genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

A "genuine" dispute exists when a jury can reasonably interpret

the evidence in the non-movant's favor. A "material" fact is

"one that might affect the outcome of the suit under the

governing law." Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145 , 150

(1st Cir. 2006) (quoting Morris v. Gov't Dev. Bank of Puerto

Rico, 27 F.3d 746 , 748 (1st Cir. 1994)).

A prima facie political discrimination claim has 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." Ocasio-

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Hernández v. Fortuño-Burset, 640 F.3d 1 , 13 (1st Cir. 2011)

(quoting Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228 , 239 (1st Cir.

2010)).

If the plaintiff has sufficient evidence to establish a

prima facie case, the burden then shifts to the defendants to

show that "(i) they would have taken the same action in any

event; and (ii) they would have taken such action for reasons

that are not unconstitutional." Vélez-Rivera, 437 F.3d at 152

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274 , 286-87 (1977)). A defendant can defeat liability under

Mt. Healthy "by showing that plaintiffs' positions were obtained

in violation of Puerto Rico law and that, even if political

animus was a factor, defendants would have taken corrective

action anyway against every employee whose position was obtained

in violation of law." Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d

121 , 131 (1st Cir. 2004); see also Reyes-Pérez v. State Ins. Fund

Corp., 755 F.3d 49 , 54-55 (1st Cir. 2014) (affirming summary

judgment in defendants' favor where the government employer

conducted agency-wide, merit-principle audits of all personnel,

not just individuals of a particular party); Soto-Padró v. Pub.

Bldgs. Auth., 675 F.3d 1 , 6 (1st Cir. 2012) ("[E]ven if a

plaintiff shows an impermissible political motive, he cannot win

if the employer shows that it would have taken the same action

anyway, say, as part of a bona fide reorganization.").

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Although similar at first blush to the familiar

McDonnell Douglas burden-shifting scheme used in Title VII and

other employment discrimination cases,2 Mt. Healthy is different.

Under the three-step McDonnell Douglas test, the plaintiff

retains the burden of persuasion at all times. At the second

step, the defendant's burden of production is only to articulate

some legitimate non-discriminatory reason for its actions; the

burden then shifts back to the plaintiff to show that the

articulated reason is pretextual. However, under Mt. Healthy,

there is no third step; the burden of persuasion does not shift

back to the plaintiff. To establish a successful Mt. Healthy

defense, it is the defendant's responsibility to persuade the

factfinder that it would have made the same decision even if the

illegitimate reason had not been a factor.3 See Welch v. Ciampa, 2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802-04 (1973). 3 This circuit has stated that, "[i]f the defendant succeeds in carrying its burden of persuasion as to its Mt. Healthy defense, the plaintiff may then 'discredit the proffered nondiscriminatory reason, either circumstantially or directly, by adducing evidence that discrimination was more likely than not a motivating factor.'" Reyes-Pérez, 755 F.3d at 55 (quoting Padilla-García v. Guillermo Rodriguez, 212 F.3d 69 , 77 (1st Cir. 2000)). This language makes an obvious point: in attempting to establish a Mt. Healthy defense by a preponderance of the evidence, the defendant must overcome any evidence adduced by the plaintiff. It must not be misconstrued to say that after the defendant has successfully established a Mt. Healthy defense, the burden of persuasion shifts back to the plaintiff. As we explained in Padilla-García:

In a political discrimination case, the plaintiff may discredit the proffered nondiscriminatory reason, either circumstantially or directly, by adducing evidence that

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542 F.3d 927 , 941 (1st Cir. 2008); Padilla-García v. Guillermo

Rodriguez, 212 F.3d 69 , 77-78 (1st Cir. 2000). Because all

reasonable inferences are drawn in the non-movant's favor at

summary judgment, Padilla-García, 212 F.3d at 73, a defendant

cannot win at summary judgment unless the only reasonable

interpretation of the evidence is that the plaintiff would have

been dismissed in any event for nondiscriminatory reasons.

III. Discussion

A. Plaintiffs' Prima Facie Case

We address first the Plaintiffs' prima facie case. The

first element of Plaintiffs' political discrimination claims (the

parties having different political affiliations) not being

disputed, we address the second, third, and fourth elements in

turn.

discrimination was more likely than not a motivating factor. In this way, the burden-shifting mechanism is significantly different from the device used in other employment discrimination contexts, such as Title VII cases, where a plaintiff is required to come forward with affirmative evidence that the defendant’s nondiscriminatory reason is pretextual. In a political discrimination case, the defendant bears the burden of persuading the factfinder that its reason is credible. The evidence by which the plaintiff established her prima facie case may suffice for a factfinder to infer that the defendant’s reason is pretextual and to effectively check summary judgment.

212 F.3d at 77-78 (citations and footnote omitted).

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1. Defendants' Knowledge of Reyes-Orta's Political Affiliation

The proof that Defendants knew about Reyes-Orta's

political affiliation includes: (1) Reyes-Orta's and Vélez-

Vélez's declarations that Sánchez-Casanova told them between

January and May 2009 that Hernández-Gregorat was pressuring him

to fire PDP members, including them; and (2) the September 2,

2009 letter Reyes-Orta sent to Hernández-Gregorat, Gomila-

Santiago, and Maldonado-Vázquez, among others, complaining about

Maldonado-Vázquez's political comments to her. Defendants object

that the letter did not affirmatively state that Reyes-Orta was a

PDP member, and that Reyes-Orta lacks personal knowledge of

whether the recipients actually read the letter.

Reading the record in the light most favorable to the

Plaintiffs (even striking the Vélez-Vélez declaration, as the

district court did),4 it is reasonable to infer that, given the

4 The district court did not abuse its discretion in striking Vélez-Vélez's declaration. The district court gave a number of reasons for doing so: (1) Vélez-Vélez had not been announced as a witness for the Plaintiffs; (2) the statement was made solely to create an issue of fact to survive summary judgment, citing Orta- Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105 , 110 (1st Cir. 2006); (3) her statement lacked foundation; and (4) her statement constituted inadmissible hearsay. The first ground is sufficient to justify the district court's decision. Under Federal Rule of Civil Procedure 37(c)(1),

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply

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multiple references in the letter to Maldonado-Vázquez's

knowledge that Reyes-Orta was a PDP member, a reasonable reader

would have understood Reyes-Orta to be affiliated with the PDP.

As for whether Defendants received the letter, Reyes-Orta

testified that she personally handed copies of the letter to

Hernández-Gregorat's and Gomila-Santiago's secretaries and to the

receptionist at Maldonado-Vázquez's office. It is reasonable to

infer from her testimony that Defendants received those copies,

especially without counter-evidence that they did not. See

Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Plaintiffs argue that this sanction is not warranted because (1) Defendants deposed Vélez-Vélez in her own political discrimination lawsuit against them, and she testified there to the same facts she stated in her declaration; and (2) in their responses to Defendants' interrogatories, Plaintiffs mentioned Vélez-Vélez as a witness to an alleged discriminatory statement by Hernández- Gregorat. Plaintiffs did not make these arguments to the district court and therefore, we need not consider them on appeal. See Cochran v. Quest Software, Inc., 328 F.3d 1 , 11 (1st Cir. 2003). Even if we were to consider the arguments on the merits, they are unpersuasive. Close review of the dockets in Reyes-Orta's and Vélez-Vélez's respective cases shows that Vélez-Vélez's deposition did not take place until discovery had already closed and the motion for summary judgment was already filed in Reyes-Orta's case, leaving Defendants no opportunity to examine Vélez-Vélez about Reyes-Orta's case. Plaintiffs' interrogatory response mentioning Vélez-Vélez did not give Defendants notice that Vélez-Vélez might know something about Sanchez-Casanova. Since it is not clear that the failure to disclose was substantially justified or harmless, the district court did not abuse its discretion in striking the Vélez-Vélez declaration and its decision must be affirmed.

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302, 316 n.14 (1st Cir. 2002) (finding it reasonable to infer

that defendant received a faxed letter even though he testified

he was not sure if he received it or not). Thus, this argument

is also rejected, and we hold that Plaintiffs had sufficient

evidence to sustain a finding that Defendants were aware of

Reyes-Orta's PDP affiliation.

2. Adverse Employment Action

The district court and parties spend a great deal of

time discussing whether Reyes-Orta suffered any adverse

employment actions short of dismissal. This is somewhat

academic. Since it is undisputed that Reyes-Orta was terminated,

and that termination is an adverse employment action, Reyes-Orta

can proceed with her First Amendment claim based on her

termination whether or not the actions leading up to the

termination were adverse employment actions. And even if they

were not adverse employment actions, they could still be brought

out at trial as evidence that her final termination was motivated

by political animus.

That said, because Plaintiffs have urged throughout

this litigation that certain actions taken against Reyes-Orta

before dismissal are independently actionable as adverse

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employment actions, we take the time here to explain why we

reverse the district court's grant of summary judgment on this

point.

"Actions short of dismissal or demotion, including

denials of promotions, transfers, and failures to recall after

layoff, can constitute adverse employment actions" if the

actions, from an objective perspective, make an employee's work

situation "unreasonably inferior" to the norm for his or her

position, placing "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) (quoting

Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209 , 1218 (1st

Cir. 1989) (en banc),5 and Bergeron v. Cabral, 560 F.3d 1 , 8 (1st

Cir. 2009), abrogated on other grounds by Maldonado v. Fontanes,

568 F.3d 263 (1st Cir. 2009)). To determine whether changes in a

work situation are "sufficiently severe to warrant the

'unreasonably inferior' description -- the factfinder should

canvass the specific ways in which the plaintiff's job has

5 As this circuit has stated before, "There is some question as to the continuing vitality of Agosto-De-Feliciano in light of the Supreme Court's ruling in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). Because we conclude, however, that there exist sufficient genuine and material factual disputes to warrant a trial even under the arguably more stringent standard set forth in Agosto-De-Feliciano, we do not reach this issue." Rivera-Ruiz v. Gonzalez-Rivera, 983 F.2d 332 , 335 n.1 (1st Cir. 1993).

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changed." Agosto-de-Feliciano, 889 F.2d at 1218. The plaintiff

must prove by clear and convincing evidence that her new role is

"unreasonably inferior to what the job is supposed to be." Id.

at 1220.

Here, Reyes-Orta alleges in her unsworn declaration

that the following were adverse employment actions:

(1) She was prevented from attending meetings related to

her job duties and representing Gomila-Santiago and

Hernández-Gregorat at meetings;

(2) Gomila-Santiago "gave express instructions that all

[personnel appointment] assessments had to be consulted

and performed by her office" and that, once Reyes-Orta

complained, Gomila-Santiago "began to outsource the

personnel specialized study which [Reyes-Orta] was

supposed to supervise";

(3) Gomila-Santiago stripped Reyes-Orta of her capacity to

"assign special studies to [her] office personnel" and

she was "prevented from collaborating with" the co-

Defendants;

(4) Gomila-Santiago implemented an additional screening

mechanism for changes in payroll without Reyes-Orta's

consent, which slowed down some of the work in her

division;

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(5) Reyes-Orta was intentionally deprived of the use of her

computer, the use of which was important to her job;

and

(6) Gomila-Santiago moved certain personnel files that were

previously under Reyes-Orta's supervision to her own

office and conditioned access to the files on written

request and physical transfer from her secretary.

The district court disregarded evidence of some of these actions,

Reyes-Orta, 2014 WL 4827406 , at *7 n.7 (citing Orta-Castro v.

Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105 , 110 (1st

Cir. 2006), among others), and determined that the others did not

constitute an adverse employment action, either individually or

collectively, id. at *8.

As a preliminary matter, the district court abused its

discretion in striking paragraphs 15-17, 19-22, and 27-28 of

Reyes-Orta's unsworn declaration as contradictory to her

deposition testimony. Those paragraphs were consistent with

Reyes-Orta's deposition testimony and her written responses to

Defendants' interrogatories. The district court thus should have

considered the full list of adverse actions alleged by Reyes-

Orta.

We do agree with the district court that there is

little evidence that Defendants were responsible for the computer

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problems, given that Reyes-Orta's computer issues started before

Gomila-Santiago became the director of human resources and Reyes-

Orta admittedly did not follow the proper steps to get a new

computer. There is also little evidence from which to determine

whether some of the duties taken away from Reyes-Orta, i.e.,

attending meetings, supervising the specialized personnel study,

constituted a significant portion of what her job duties were

supposed to be. However, given Reyes-Orta's contention that the

personnel files removed from her office were her "primary tool

for exercising [her] duties," and that she used them "daily,"

there is sufficient evidence to find that at least one of the

alleged actions was an adverse employment action.

Further, when these actions are considered together, a

jury could rationally conclude that the cumulative loss of job

functions constituted an adverse employment action.

Consequently, we reverse and remand for the jury to determine

whether the adverse employment action element was met in this

case.

3. Causation

Evidence that Defendants' actions against Reyes-Orta

were politically motivated includes: (1) Maldonado-Vázquez's

statements to her during the El Nuevo Día investigation;

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(2) Sánchez-Casanova's warnings that she should be "careful";

(3) Sánchez-Casanova's similar statements to Vélez-Vélez;

(4) Reyes-Orta's declaration that all the employees fired as a

result of the audit were PDP members; and (5) the temporal

proximity between the change in administration (January 2009),

the El Nuevo Día investigation (April-September 2009), and the

audit leading to her termination (starting sometime before

December 2009). Again, even with the Vélez-Vélez statements

stricken, the rest of the evidence, taken together, raises an

inference that Defendants' actions were politically motivated.

4. Conclusion

Reyes-Orta made out a prima facie case of political

discrimination.

B. Defendants' Mt. Healthy Defense

We now turn to the Defendants' Mt. Healthy defense.

The key inquiry at summary judgment is whether Defendants can

show -- with all reasonable inferences drawn in Reyes-Orta's

favor -- that they had a lawful reason to terminate her, that

they would have used that lawful reason to terminate her even if

her political affiliation had not been a factor, and that there

is no genuine dispute of material fact on these issues.

Here, assuming without deciding that Defendants had a

lawful reason to terminate Reyes-Orta (either because she

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committed fraud to get her initial position at PRHTA or because

her transfer-promotion violated Puerto Rico law),6 summary

judgment was not appropriate because there is a genuine dispute

of material fact as to whether Defendants would have terminated

her absent political factors.

Defendants introduced evidence that all PRHTA personnel

were to be audited pursuant to Resolution No. 2010-01, and that,

as of December 28, 2011, fifty-three employees were audited, with

forty-four having received intention to terminate letters. Of

these, eleven employees had actually been terminated. Defendants

provided no information about the political affiliation of these

employees. Plaintiffs introduced evidence that the audit

actually began before Resolution No. 2010-01 was issued in

January 2010, that only ten employees were terminated as a result

of the audit, and that all were PDP members, Plaintiffs also have

evidence of comments by Maldonado-Vázquez and Sánchez-Casanova

that Reyes-Orta would be fired because of her PDP affiliation.

This evidence is sufficient to create a genuine dispute

as to whether Defendants would have fired Reyes-Orta regardless

of her political affiliation. On the one hand, there is no

6 Because we do not address the legality of Reyes-Orta's termination under Puerto Rico law, we do not address the district court's evidentiary rulings regarding the 2004 audit report by Encarnación and the 2009 audit report by Iris Azalia-Ocasio, which go only to that issue.

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evidence that Defendants applied the audit in a discriminatory

manner, since the PRHTA purported to audit "all PRHTA personnel,"

which presumably includes both PDP and NPP members. Evidence of

the audit's disparate impact is not sufficient by itself to rebut

a Mt. Healthy defense. Vélez-Rivera, 437 F.3d at 154. However,

the audit began in a politicized atmosphere, illustrated by

Sánchez-Casanova and Maldonado-Vázquez's comments to Reyes-Orta

during the El Nuevo Día leak investigation. The timing of the

agency's decision to pursue termination against Reyes-Orta is

also somewhat suspicious, as she was audited twice before and

nothing was done until Defendants perceived her to be involved in

a leak of a political nature (a PDP legislator exposing NPP

excesses to El Nuevo Día). Defendants do not make any argument

that they acted against Reyes-Orta on the belief that she was

responsible for the leak. A jury could reasonably infer from

these facts that Reyes-Orta would not have been terminated but

for Defendants' political animus. Accordingly, the district

court erred in granting summary judgment based on Defendants' Mt.

Healthy defense.

IV. Conclusion

For the above reasons, we reverse the district court's

grant of summary judgment on Plaintiffs' First Amendment claims

and remand for the district court to reinstate the Puerto Rico

-23-

law claims that it dismissed in its summary judgment order, see

Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312 , 328 (1st

Cir. 2015), and to conduct further proceedings in harmony with

this order.

REVERSED AND REMANDED.

-24-

United States Court of Appeals For the First Circuit

No. 14-2172

SHEILA REYES-ORTA; JOSÉ L. CASTILLO-CARRILLO; CONJUGAL PARTNERSHIP CASTILLO-REYES,

Plaintiffs, Appellants,

v.

PUERTO RICO HIGHWAY AND TRANSPORTATION AUTHORITY; RUBÉN HERNÁNDEZ-GREGORAT, in his individual and official capacity as Secretary of Transportation and Public Works; BRENDA GOMILA- SANTIAGO, in her individual and official capacity as Executive Director of Human Resources; CÉSAR MALDONADO-VÁZQUEZ, in his individual and official capacity as Human Resources Specialist; INSURANCE COMPANY ABC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Barron, Hawkins,* and Lipez, Circuit Judges.

Juan M. Frontera-Suau, with whom Kenneth Colon and Frontera Suau Law Offices, PSC were on brief for appellant. Michelle Camacho Nieves, with whom Margarita L. Mercado- Echegaray, Solicitor General, and Zarel Soto-Acabá, Assistant Solicitor General, Department of Justice, were on brief for * Of the Ninth Circuit, sitting by designation.

appellees Rubén Hernández-Gregorat, Brenda Gomila-Santiago, and César Maldonado-Vázquez in their individual capacities. Yassmin González-Vélez, Counsel for Puerto Rico Highway and Transportation Authority, was on brief for appellee Puerto Rico Highway and Transportation Authority and appellees Rubén Hernández-Gregorat, Brenda Gomila-Santiago, and César Maldonado- Vázquez in their official capacities.

January 25, 2016

HAWKINS, Circuit Judge. Plaintiff Sheila Reyes-Orta

alleges that she was stripped of various job duties and was

ultimately terminated from her job at the Puerto Rico Highway and

Transportation Authority ("PRHTA") because of her affiliation

with the Popular Democratic Party ("PDP"). After striking

certain exhibits, the district court granted summary judgment

against her on her First Amendment political discrimination

claims because (1) there was insufficient evidence that actions

short of dismissal constituted adverse employment actions; and

(2) absent any political discrimination, she would have been

terminated in any event for nondiscriminatory reasons. We

reverse and remand.

I. Background

A. Facts

Reyes-Orta has worked for the Puerto Rico government

for nearly three decades. In 2001, she transferred from a

position as a human resources program officer at the Industrial

Commission to a higher position, human resources program chief,

at the PRHTA.

In 2001-2002 and 2004, while the PDP administration was

in office, the internal audit offices of both the Puerto Rico

Industrial Commission and PRHTA investigated Reyes-Orta's

"transfer-promotion." The internal audit office of the

Industrial Commission found that the certification of job duties

-3-

she provided to get the PRHTA position inaccurately stated that

she had supervised clerical and secretarial personnel as an

"essential duty" of her Industrial Commission position. The

internal audit office also found that the certification was

improperly signed by a fellow human resources program officer,

who failed to verify its content and who failed to refer the

matter to the Industrial Commission's human resources director.

The office recommended that the investigation be referred to the

legal division to determine the appropriate corrective measures.

The PRHTA's internal audit office, whose report was

written by Juan Encarnación in 2004, also found that the

certification was fraudulent, but it could not determine whether

the certification was a "determining factor" in permitting Reyes-

Orta's transfer. It recommended that the PRHTA's human resources

department re-analyze Reyes-Orta's documents to determine if she

should be certified as qualified; that the legal division

evaluate the legality and validity of the documents; and that the

agency take appropriate corrective action.

No further action was taken for five years. By January

2009, Reyes-Orta was in another position, director of the Office

of Position Analysis, Compensation and Fringe Benefits at the

PRHTA. That month, Luis Fortuño of the New Progressive Party

("NPP") took office as Governor of Puerto Rico after defeating

the PDP incumbent in the 2008 general election. Rubén Hernández-

-4-

Gregorat, an NPP member, took over as the PRHTA's executive

director. Between January and May 2009, Brenda Gomila-Santiago,

also an NPP member, served as Hernández-Gregorat's aide. In June

2009, she took over as human resources director at PRHTA from

Luis Sánchez-Casanova, who had occupied that position from

January to May 2009.

On April 29, 2009, El Nuevo Día, the largest newspaper

in Puerto Rico, reported that, according to a PDP legislator,

PRHTA executive director Hernández-Gregorat had, four months

after taking office, given his drivers and aides hefty salary

raises while PRHTA was running a $300 million operational deficit

and was at risk of having to lay off 30,000 public employees and

to halt its projects. The article prompted Hernández-Gregorat to

direct then-human resources director Sánchez-Casanova to

investigate who had leaked the information to the PDP legislator.

Reyes-Orta claims that, during that time, Sánchez-Casanova told

her several times that she should be careful because the "top"

wanted to "cut her head off" and that he was under pressure

because he did not want to take disciplinary action against her.

Reyes-Orta's co-worker Sonia Vélez-Vélez, who had joined the

PRHTA at the same time as she, claims Sánchez-Casanova also told

her during this time that he was feeling pressured by Hernández-

Gregorat to terminate PDP employees, including Reyes-Orta and

Vélez-Vélez, and that Hernández-Gregorat was looking for an

-5-

attorney to justify those terminations.

On May 19, 2009, Sánchez-Casanova wrote a report on his

investigation, in which he stated that two witnesses had

identified Reyes-Orta as the source of the leak, something Reyes-

Orta denied. The report also stated that he had told Reyes-Orta

that he was going to request a broader disciplinary investigation

by the Office of Industrial Relations and that the leak was

"unacceptable and that, if [Reyes-Orta was the source of the

leak], she should stop [leaking information] . . . since it

affected all of the colleagues of the area."

The report was sent to the Office of Industrial

Relations, which then assigned César Maldonado-Vazquez, an NPP

member, to conduct a formal investigation. Maldonado-Vázquez

interviewed Reyes-Orta on August 31, 2009. According to Reyes-

Orta, Maldonado-Vázquez told her that he knew she was affiliated

with the PDP; that the past PDP administration had kicked him

out; that the PDP administration "did whatever [it] want[ed] when

granting steps for merit all over without having an assessment

system"; and that she and other employees were going to be laid

off because the resolutions that had allowed them to be

transferred to PRHTA back in 2001 were illegal. Three days

later, Reyes-Orta sent a letter to Hernández-Gregorat, Gomila-

Santiago, Maldonado-Vázquez, and others repeating what Maldonado-

Vázquez had said and stating that she felt humiliated and

-6-

politically discriminated against during the interview. She

received no response.

Reyes-Orta claims that, soon after Gomila-Santiago took

over as human resources director, she stripped Reyes-Orta of

various job duties, and ignored Reyes-Orta's requests to have her

computer fixed. As a result, Reyes-Orta had no computer between

April 2009 and her eventual termination in May 2010 and had to

depend on other employees to access the software programs she

needed for her job.

In December 2009, Reyes-Orta received a letter from

Hernández-Gregorat stating his intent to declare her appointment

null because an audit had revealed that her 2001 transfer was

illegitimate because she had falsely represented that she had

experience supervising office personnel and thus was not

qualified for her PRHTA position and because her transfer-

promotion violated Puerto Rico's merit principle and free

competition principle. According to the letter, the vacancy for

her job should have been posted publicly before she was

appointed.

In January 2010, Hernández-Gregorat issued Resolution

No. 2010-01, which annulled several previous regulations, Nos.

2000-15, 2001-13, and 2001-24, because they ran counter to then-

prevailing Puerto Rico law, including the merit principle. The

resolution authorized the deputy executive director of PRHTA "to

-7-

take those measures which are legally pertinent for the

transactions of personnel enacted by the Highway and

Transportation Authority under the aforesaid Rulings be revised,

corrected, or annulled pursuant to the applicable law."

At Reyes-Orta's request, an informal hearing regarding

her termination was held in March 2010. The examining officer

upheld Hernández-Gregorat's decision to terminate her because her

appointment was null. Her official termination date was May 3,

2010.

B. Procedural History

Reyes-Orta and her husband filed this lawsuit in May

2011, alleging that Defendants PRHTA, Hernández-Gregorat, Gomila-

Santiago, and Maldonado-Vázquez violated their rights under the

First and Fourteenth Amendments and Puerto Rico law. The

district court dismissed Plaintiffs' Fourteenth Amendment claims

and some state law claims at the motion to dismiss stage. After

several rounds of briefing at the summary judgment stage, the

district court dismissed Plaintiffs' First Amendment claims and

declined supplemental jurisdiction over the remaining state law

claims.

In its summary judgment order, the district court held

that the El Nuevo Día investigation, the stripping of job

functions, and the loss of Reyes-Orta's computer, "even taken

together," did not constitute "adverse employment actions"

-8-

because there was no evidence that the El Nuevo Día investigation

was directed at Reyes-Orta specifically or that she was

investigated because of her political affiliation; that

Defendants changed her job duties in any meaningful or

illegitimate way; or that Defendants caused her computer

problems. Reyes-Orta v. Highway & Transp. Auth., No. CIV. 11-

1410 SEC, 2014 WL 4827406 , at *5-8 (D.P.R. Sept. 29, 2014).

With regard to Reyes-Orta's claim that her personnel

file was audited and that she was terminated due to political

discrimination, the district court found that, even assuming

Reyes-Orta established a prima facie case, Defendants had

established a Mt. Healthy defense by showing that the PRHTA had

even-handedly audited all personnel files and pledged to correct

all past personnel transactions done under legally invalid

resolutions. The court rejected Reyes-Orta's attempts to rebut

this evidence with evidence that all of the personnel terminated

as a result of these audits were PDP members and that the audits

began even before Hernández-Gregorat issued Resolution No. 2010-

01.1

Plaintiffs argue that the district court erroneously

excluded some of their exhibits in evaluating their claims. They

1 The district court also held that Plaintiffs' § 1983 claims against Maldonado-Vázquez were time-barred and that their civil rights conspiracy claims against all of the Defendants were inadequately pled. Reyes-Orta, 2014 WL 4827406 , at *11-12. Plaintiffs do not appeal these decisions.

-9-

also argue that the district court wrongly relied on inadmissible

evidence from Defendants and discounted Plaintiffs' evidence in

evaluating Defendants' Mt. Healthy defense.

We agree that the district court erred in granting

summary judgment and therefore reverse and remand the case.

II. Standard of Review

A district court's grant of summary judgment is

reviewed de novo. United States ex rel. Jones v. Brigham &

Women's Hosp., 678 F.3d 72 , 83 (1st Cir. 2012). Summary judgment

is properly granted if the movant can demonstrate that "there is

no genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

A "genuine" dispute exists when a jury can reasonably interpret

the evidence in the non-movant's favor. A "material" fact is

"one that might affect the outcome of the suit under the

governing law." Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145 , 150

(1st Cir. 2006) (quoting Morris v. Gov't Dev. Bank of Puerto

Rico, 27 F.3d 746 , 748 (1st Cir. 1994)).

A prima facie political discrimination claim has 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." Ocasio-

-10-

Hernández v. Fortuño-Burset, 640 F.3d 1 , 13 (1st Cir. 2011)

(quoting Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228 , 239 (1st Cir.

2010)).

If the plaintiff has sufficient evidence to establish a

prima facie case, the burden then shifts to the defendants to

show that "(i) they would have taken the same action in any

event; and (ii) they would have taken such action for reasons

that are not unconstitutional." Vélez-Rivera, 437 F.3d at 152

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274 , 286-87 (1977)). A defendant can defeat liability under

Mt. Healthy "by showing that plaintiffs' positions were obtained

in violation of Puerto Rico law and that, even if political

animus was a factor, defendants would have taken corrective

action anyway against every employee whose position was obtained

in violation of law." Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d

121 , 131 (1st Cir. 2004); see also Reyes-Pérez v. State Ins. Fund

Corp., 755 F.3d 49 , 54-55 (1st Cir. 2014) (affirming summary

judgment in defendants' favor where the government employer

conducted agency-wide, merit-principle audits of all personnel,

not just individuals of a particular party); Soto-Padró v. Pub.

Bldgs. Auth., 675 F.3d 1 , 6 (1st Cir. 2012) ("[E]ven if a

plaintiff shows an impermissible political motive, he cannot win

if the employer shows that it would have taken the same action

anyway, say, as part of a bona fide reorganization.").

-11-

Although similar at first blush to the familiar

McDonnell Douglas burden-shifting scheme used in Title VII and

other employment discrimination cases,2 Mt. Healthy is different.

Under the three-step McDonnell Douglas test, the plaintiff

retains the burden of persuasion at all times. At the second

step, the defendant's burden of production is only to articulate

some legitimate non-discriminatory reason for its actions; the

burden then shifts back to the plaintiff to show that the

articulated reason is pretextual. However, under Mt. Healthy,

there is no third step; the burden of persuasion does not shift

back to the plaintiff. To establish a successful Mt. Healthy

defense, it is the defendant's responsibility to persuade the

factfinder that it would have made the same decision even if the

illegitimate reason had not been a factor.3 See Welch v. Ciampa, 2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802-04 (1973). 3 This circuit has stated that, "[i]f the defendant succeeds in carrying its burden of persuasion as to its Mt. Healthy defense, the plaintiff may then 'discredit the proffered nondiscriminatory reason, either circumstantially or directly, by adducing evidence that discrimination was more likely than not a motivating factor.'" Reyes-Pérez, 755 F.3d at 55 (quoting Padilla-García v. Guillermo Rodriguez, 212 F.3d 69 , 77 (1st Cir. 2000)). This language makes an obvious point: in attempting to establish a Mt. Healthy defense by a preponderance of the evidence, the defendant must overcome any evidence adduced by the plaintiff. It must not be misconstrued to say that after the defendant has successfully established a Mt. Healthy defense, the burden of persuasion shifts back to the plaintiff. As we explained in Padilla-García:

In a political discrimination case, the plaintiff may discredit the proffered nondiscriminatory reason, either circumstantially or directly, by adducing evidence that

-12-

542 F.3d 927 , 941 (1st Cir. 2008); Padilla-García v. Guillermo

Rodriguez, 212 F.3d 69 , 77-78 (1st Cir. 2000). Because all

reasonable inferences are drawn in the non-movant's favor at

summary judgment, Padilla-García, 212 F.3d at 73, a defendant

cannot win at summary judgment unless the only reasonable

interpretation of the evidence is that the plaintiff would have

been dismissed in any event for nondiscriminatory reasons.

III. Discussion

A. Plaintiffs' Prima Facie Case

We address first the Plaintiffs' prima facie case. The

first element of Plaintiffs' political discrimination claims (the

parties having different political affiliations) not being

disputed, we address the second, third, and fourth elements in

turn.

discrimination was more likely than not a motivating factor. In this way, the burden-shifting mechanism is significantly different from the device used in other employment discrimination contexts, such as Title VII cases, where a plaintiff is required to come forward with affirmative evidence that the defendant’s nondiscriminatory reason is pretextual. In a political discrimination case, the defendant bears the burden of persuading the factfinder that its reason is credible. The evidence by which the plaintiff established her prima facie case may suffice for a factfinder to infer that the defendant’s reason is pretextual and to effectively check summary judgment.

212 F.3d at 77-78 (citations and footnote omitted).

-13-

1. Defendants' Knowledge of Reyes-Orta's Political Affiliation

The proof that Defendants knew about Reyes-Orta's

political affiliation includes: (1) Reyes-Orta's and Vélez-

Vélez's declarations that Sánchez-Casanova told them between

January and May 2009 that Hernández-Gregorat was pressuring him

to fire PDP members, including them; and (2) the September 2,

2009 letter Reyes-Orta sent to Hernández-Gregorat, Gomila-

Santiago, and Maldonado-Vázquez, among others, complaining about

Maldonado-Vázquez's political comments to her. Defendants object

that the letter did not affirmatively state that Reyes-Orta was a

PDP member, and that Reyes-Orta lacks personal knowledge of

whether the recipients actually read the letter.

Reading the record in the light most favorable to the

Plaintiffs (even striking the Vélez-Vélez declaration, as the

district court did),4 it is reasonable to infer that, given the

4 The district court did not abuse its discretion in striking Vélez-Vélez's declaration. The district court gave a number of reasons for doing so: (1) Vélez-Vélez had not been announced as a witness for the Plaintiffs; (2) the statement was made solely to create an issue of fact to survive summary judgment, citing Orta- Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105 , 110 (1st Cir. 2006); (3) her statement lacked foundation; and (4) her statement constituted inadmissible hearsay. The first ground is sufficient to justify the district court's decision. Under Federal Rule of Civil Procedure 37(c)(1),

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply

-14-

multiple references in the letter to Maldonado-Vázquez's

knowledge that Reyes-Orta was a PDP member, a reasonable reader

would have understood Reyes-Orta to be affiliated with the PDP.

As for whether Defendants received the letter, Reyes-Orta

testified that she personally handed copies of the letter to

Hernández-Gregorat's and Gomila-Santiago's secretaries and to the

receptionist at Maldonado-Vázquez's office. It is reasonable to

infer from her testimony that Defendants received those copies,

especially without counter-evidence that they did not. See

Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

Plaintiffs argue that this sanction is not warranted because (1) Defendants deposed Vélez-Vélez in her own political discrimination lawsuit against them, and she testified there to the same facts she stated in her declaration; and (2) in their responses to Defendants' interrogatories, Plaintiffs mentioned Vélez-Vélez as a witness to an alleged discriminatory statement by Hernández- Gregorat. Plaintiffs did not make these arguments to the district court and therefore, we need not consider them on appeal. See Cochran v. Quest Software, Inc., 328 F.3d 1 , 11 (1st Cir. 2003). Even if we were to consider the arguments on the merits, they are unpersuasive. Close review of the dockets in Reyes-Orta's and Vélez-Vélez's respective cases shows that Vélez-Vélez's deposition did not take place until discovery had already closed and the motion for summary judgment was already filed in Reyes-Orta's case, leaving Defendants no opportunity to examine Vélez-Vélez about Reyes-Orta's case. Plaintiffs' interrogatory response mentioning Vélez-Vélez did not give Defendants notice that Vélez-Vélez might know something about Sanchez-Casanova. Since it is not clear that the failure to disclose was substantially justified or harmless, the district court did not abuse its discretion in striking the Vélez-Vélez declaration and its decision must be affirmed.

-15-

302, 316 n.14 (1st Cir. 2002) (finding it reasonable to infer

that defendant received a faxed letter even though he testified

he was not sure if he received it or not). Thus, this argument

is also rejected, and we hold that Plaintiffs had sufficient

evidence to sustain a finding that Defendants were aware of

Reyes-Orta's PDP affiliation.

2. Adverse Employment Action

The district court and parties spend a great deal of

time discussing whether Reyes-Orta suffered any adverse

employment actions short of dismissal. This is somewhat

academic. Since it is undisputed that Reyes-Orta was terminated,

and that termination is an adverse employment action, Reyes-Orta

can proceed with her First Amendment claim based on her

termination whether or not the actions leading up to the

termination were adverse employment actions. And even if they

were not adverse employment actions, they could still be brought

out at trial as evidence that her final termination was motivated

by political animus.

That said, because Plaintiffs have urged throughout

this litigation that certain actions taken against Reyes-Orta

before dismissal are independently actionable as adverse

-16-

employment actions, we take the time here to explain why we

reverse the district court's grant of summary judgment on this

point.

"Actions short of dismissal or demotion, including

denials of promotions, transfers, and failures to recall after

layoff, can constitute adverse employment actions" if the

actions, from an objective perspective, make an employee's work

situation "unreasonably inferior" to the norm for his or her

position, placing "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) (quoting

Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209 , 1218 (1st

Cir. 1989) (en banc),5 and Bergeron v. Cabral, 560 F.3d 1 , 8 (1st

Cir. 2009), abrogated on other grounds by Maldonado v. Fontanes,

568 F.3d 263 (1st Cir. 2009)). To determine whether changes in a

work situation are "sufficiently severe to warrant the

'unreasonably inferior' description -- the factfinder should

canvass the specific ways in which the plaintiff's job has

5 As this circuit has stated before, "There is some question as to the continuing vitality of Agosto-De-Feliciano in light of the Supreme Court's ruling in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). Because we conclude, however, that there exist sufficient genuine and material factual disputes to warrant a trial even under the arguably more stringent standard set forth in Agosto-De-Feliciano, we do not reach this issue." Rivera-Ruiz v. Gonzalez-Rivera, 983 F.2d 332 , 335 n.1 (1st Cir. 1993).

-17-

changed." Agosto-de-Feliciano, 889 F.2d at 1218. The plaintiff

must prove by clear and convincing evidence that her new role is

"unreasonably inferior to what the job is supposed to be." Id.

at 1220.

Here, Reyes-Orta alleges in her unsworn declaration

that the following were adverse employment actions:

(1) She was prevented from attending meetings related to

her job duties and representing Gomila-Santiago and

Hernández-Gregorat at meetings;

(2) Gomila-Santiago "gave express instructions that all

[personnel appointment] assessments had to be consulted

and performed by her office" and that, once Reyes-Orta

complained, Gomila-Santiago "began to outsource the

personnel specialized study which [Reyes-Orta] was

supposed to supervise";

(3) Gomila-Santiago stripped Reyes-Orta of her capacity to

"assign special studies to [her] office personnel" and

she was "prevented from collaborating with" the co-

Defendants;

(4) Gomila-Santiago implemented an additional screening

mechanism for changes in payroll without Reyes-Orta's

consent, which slowed down some of the work in her

division;

-18-

(5) Reyes-Orta was intentionally deprived of the use of her

computer, the use of which was important to her job;

and

(6) Gomila-Santiago moved certain personnel files that were

previously under Reyes-Orta's supervision to her own

office and conditioned access to the files on written

request and physical transfer from her secretary.

The district court disregarded evidence of some of these actions,

Reyes-Orta, 2014 WL 4827406 , at *7 n.7 (citing Orta-Castro v.

Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105 , 110 (1st

Cir. 2006), among others), and determined that the others did not

constitute an adverse employment action, either individually or

collectively, id. at *8.

As a preliminary matter, the district court abused its

discretion in striking paragraphs 15-17, 19-22, and 27-28 of

Reyes-Orta's unsworn declaration as contradictory to her

deposition testimony. Those paragraphs were consistent with

Reyes-Orta's deposition testimony and her written responses to

Defendants' interrogatories. The district court thus should have

considered the full list of adverse actions alleged by Reyes-

Orta.

We do agree with the district court that there is

little evidence that Defendants were responsible for the computer

-19-

problems, given that Reyes-Orta's computer issues started before

Gomila-Santiago became the director of human resources and Reyes-

Orta admittedly did not follow the proper steps to get a new

computer. There is also little evidence from which to determine

whether some of the duties taken away from Reyes-Orta, i.e.,

attending meetings, supervising the specialized personnel study,

constituted a significant portion of what her job duties were

supposed to be. However, given Reyes-Orta's contention that the

personnel files removed from her office were her "primary tool

for exercising [her] duties," and that she used them "daily,"

there is sufficient evidence to find that at least one of the

alleged actions was an adverse employment action.

Further, when these actions are considered together, a

jury could rationally conclude that the cumulative loss of job

functions constituted an adverse employment action.

Consequently, we reverse and remand for the jury to determine

whether the adverse employment action element was met in this

case.

3. Causation

Evidence that Defendants' actions against Reyes-Orta

were politically motivated includes: (1) Maldonado-Vázquez's

statements to her during the El Nuevo Día investigation;

-20-

(2) Sánchez-Casanova's warnings that she should be "careful";

(3) Sánchez-Casanova's similar statements to Vélez-Vélez;

(4) Reyes-Orta's declaration that all the employees fired as a

result of the audit were PDP members; and (5) the temporal

proximity between the change in administration (January 2009),

the El Nuevo Día investigation (April-September 2009), and the

audit leading to her termination (starting sometime before

December 2009). Again, even with the Vélez-Vélez statements

stricken, the rest of the evidence, taken together, raises an

inference that Defendants' actions were politically motivated.

4. Conclusion

Reyes-Orta made out a prima facie case of political

discrimination.

B. Defendants' Mt. Healthy Defense

We now turn to the Defendants' Mt. Healthy defense.

The key inquiry at summary judgment is whether Defendants can

show -- with all reasonable inferences drawn in Reyes-Orta's

favor -- that they had a lawful reason to terminate her, that

they would have used that lawful reason to terminate her even if

her political affiliation had not been a factor, and that there

is no genuine dispute of material fact on these issues.

Here, assuming without deciding that Defendants had a

lawful reason to terminate Reyes-Orta (either because she

-21-

committed fraud to get her initial position at PRHTA or because

her transfer-promotion violated Puerto Rico law),6 summary

judgment was not appropriate because there is a genuine dispute

of material fact as to whether Defendants would have terminated

her absent political factors.

Defendants introduced evidence that all PRHTA personnel

were to be audited pursuant to Resolution No. 2010-01, and that,

as of December 28, 2011, fifty-three employees were audited, with

forty-four having received intention to terminate letters. Of

these, eleven employees had actually been terminated. Defendants

provided no information about the political affiliation of these

employees. Plaintiffs introduced evidence that the audit

actually began before Resolution No. 2010-01 was issued in

January 2010, that only ten employees were terminated as a result

of the audit, and that all were PDP members, Plaintiffs also have

evidence of comments by Maldonado-Vázquez and Sánchez-Casanova

that Reyes-Orta would be fired because of her PDP affiliation.

This evidence is sufficient to create a genuine dispute

as to whether Defendants would have fired Reyes-Orta regardless

of her political affiliation. On the one hand, there is no

6 Because we do not address the legality of Reyes-Orta's termination under Puerto Rico law, we do not address the district court's evidentiary rulings regarding the 2004 audit report by Encarnación and the 2009 audit report by Iris Azalia-Ocasio, which go only to that issue.

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evidence that Defendants applied the audit in a discriminatory

manner, since the PRHTA purported to audit "all PRHTA personnel,"

which presumably includes both PDP and NPP members. Evidence of

the audit's disparate impact is not sufficient by itself to rebut

a Mt. Healthy defense. Vélez-Rivera, 437 F.3d at 154. However,

the audit began in a politicized atmosphere, illustrated by

Sánchez-Casanova and Maldonado-Vázquez's comments to Reyes-Orta

during the El Nuevo Día leak investigation. The timing of the

agency's decision to pursue termination against Reyes-Orta is

also somewhat suspicious, as she was audited twice before and

nothing was done until Defendants perceived her to be involved in

a leak of a political nature (a PDP legislator exposing NPP

excesses to El Nuevo Día). Defendants do not make any argument

that they acted against Reyes-Orta on the belief that she was

responsible for the leak. A jury could reasonably infer from

these facts that Reyes-Orta would not have been terminated but

for Defendants' political animus. Accordingly, the district

court erred in granting summary judgment based on Defendants' Mt.

Healthy defense.

IV. Conclusion

For the above reasons, we reverse the district court's

grant of summary judgment on Plaintiffs' First Amendment claims

and remand for the district court to reinstate the Puerto Rico

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law claims that it dismissed in its summary judgment order, see

Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312 , 328 (1st

Cir. 2015), and to conduct further proceedings in harmony with

this order.

REVERSED AND REMANDED.

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