Opinion
Civil No. 03-1734 (JP).
December 20, 2005
OPINION AND ORDER
I. INTRODUCTION
The Court has before it Defendants' "Motion for Summary Judgment and Memorandum in Support Thereof" ( docket No. 30), as well as Plaintiffs' opposition thereto ( docket No. 38). For the following reasons, the Court hereby GRANTS Defendants' motion ( docket No. 30).
Plaintiffs Justo Morales Santiago, Ricardo Pérez Virella, Sonia Cedeño Acosta, Emely Ramos Castillo, and Samuel Rodríguez Burgos, all career employees of the Puerto Rico Public Service Commission ("PSC") who occupied trust positions in the PSC under the New Progressive Party ("NPP") regime prior to the 2000 gubernatorial elections, claim that co-Defendants José Hernández Pérez and Alex Rodríguez subjected them to discrimination based on their political affiliation by lowering or eliminating the salary differentials they had been awarded while the PSC was still under NPP control.
II. LEGAL STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where, after drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue of material fact for trial. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993). A fact is material if it might affect the outcome of the case. Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989). An issue is "genuine" if sufficient evidence exists to permit a reasonable trier of fact to resolve the issue in the non-moving party's favor. See Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir. 1983).
The party filing a motion for summary judgment bears the initial burden of proof to show "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed. 2d 265 (1986). The burden then shifts to the non-moving party to show affirmatively, through the filing of supporting affidavits or otherwise, that a genuine issue exists for trial. See Goldman v. First National Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1992). In discharging this burden, the non-moving party may not rest upon mere allegations or denials of the pleadings. See Fed.R.Civ.P. 56(e). On issues where the non-moving party bears the ultimate burden of proof, it must present definite, competent evidence to rebut the evidence put forth by the moving party.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 2514-2515, 91 L.Ed. 2d 202 (1986). Indeed, summary judgment may be appropriate ". . . where elusive concepts such as motive or intent are at issue . . . if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994).
III. MATERIAL FACTS NOT IN GENUINE ISSUE OR DISPUTE
After thoroughly evaluating the parties' stipulations in the record, Defendants' statement of uncontested facts and supporting evidence, and Plaintiffs' opposition thereto, the Court determined that the following material facts are not in genuine issue or dispute:
1. Defendant José M. Hernández Pérez ("Hernández") was the Chairman of the PSC from October 1, 2001 until November 8, 2004.
2. Defendant Alex Rodríguez was the Director of Human Resources Division at the PSC from September 16, 2002 until January 31, 2005.
3. Plaintiffs are career employees of the PSC.
4. Plaintiffs occupied trust positions during the time the PSC was presided over by Chairpersons affiliated to and/or identified with the NPP, including Nydia Rodríguez and Waldemar Quiles.
5. The NPP won elections in 1992 and 1996, and remained in power until December 31, 2000, at which time the PDP came to power.
6. In November of 2000, Sila M. Calderón, the Popular Democratic Party's ("PDP") gubernatorial candidate, was elected Governor of Puerto Rico; she was sworn in the following January.
7. Both Defendants are members of and are affiliated with the PDP.
8. After the expiration of the appointment of Waldemar Quiles as Commissioner of the PSC on September 28, 2002, Governor Calderón appointed Marisol Gómez to replace him.
9. Defendant Hernández's appointment as Chairman of the PSC never went to the Senate for confirmation.
10. Defendant Hernández was aware of Plaintiffs' political affiliation with the NPP.Plaintiff Justo Morales Santiago
11. In 1993, Plaintiff Morales-Santiago was appointed to a position in the Senate of Puerto Rico by Honorable Roberto Rexach Benítez, then Chairman of the Senate and member of the NPP.
12. In 2001, he worked for Senator Norma Burgos (NPP) and since July 1, 2001, Plaintiff Morales-Santiago received an administrative transfer ("destaque") to the State Elections Commission at the request of NPP Commissioner Thomas Rivera Schatz.
13. In 1994, Plaintiff Morales-Santiago was appointed to a position of Executive Functionary V, with the approval of a new Classification and Retribution Plan. This position was renamed as Executive Director I, but the duties and responsibilities of the position remained unaltered.
14. On February 1, 1996, Plaintiff Justo Morales Santiago was recruited to occupy the position of Regional Director I, assigned to the Mayagüez Regional Office.
15. On December 16, 1998, Plaintiff Morales Santiago was appointed to occupy the position of Executive I, assigned to the Tourist Transportation Office, earning a monthly salary of $3,076.00.
16. The positions of Regional Director I and Executive I are classified positions of trust or confidence within the Commonwealth of Puerto Rico personnel system.
17. On August 24, 2000, Ms. Nydia E. Rodríguez Martínez, then Chairperson of the PSC, sent a letter reinstating Plaintiff Justo Morales Santiago from his trust position of Executive I to a career position of Executive Director I, assigned to the same Tourist Transportation Office of the PSC.
18. On that same date and in that same letter, in which Plaintiff Justo Morales was reinstated, Ms. Nydia Rodríguez also authorized a salary raise via exception of $1,000.00 to him, stating that it was done pursuant to the Uniform Retribution Regulation.
19. The above-mentioned letter states that the personnel transaction reinstating Plaintiff Justo Morales to the career position of Executive Director I, as well as the salary raise authorized via exception, were to be effective on September 1, 2000.
20. As a result, Plaintiff Justo Morales' monthly salary after the above-mentioned personnel transaction was $2,708.00.
21. During the time Mr. Waldemar Quiles was Chairman of the PSC, he awarded Plaintiff Morales-Santiago with a merit pay raise and a legislative pay raise that increased Plaintiff Morales Santiago's monthly salary to $3,033.00.
22. Pursuant to the assignment of classes for career positions comprehended in the Classification Plan and applicable law, the retribution scale for the salary of the career position of Executive Director I, ranged from a minimum of $1,446.00 to a maximum of $2,017.00.
23. Plaintiff Justo Morales, even after his reinstallation to his career position, was earning $3,033.00, a higher salary than the one required by the Retribution Scale Chart.
24. The above-mentioned salary in this career position was close to the salary he was earning when he occupied the trust position of Executive I, with a salary of $3,076.
25. On November 1, 2002, Plaintiff Justo Morales Santiago was informed that the personnel transaction relating to his reinstatement had been reviewed and that his salary was to be adjusted to $2,035.00, since the reinstatement did not contemplate the salary by exception given to him pursuant to the Uniform Retribution Regulation, among other applicable legal theories.Plaintiff Ricardo Pérez Virella
26. In 1980, Plaintiff Ricardo Pérez Virella was recruited to work as a Public Service Inspector I at the PSC.
27. In 1993, Plaintiff Pérez Virella was promoted to the position of Public Service Inspector IV, a position classified within the career service.
28. The Public Service Inspector IV position is the position Plaintiff Pérez Virella occupies at present.
29. On June 1, 1993, Plaintiff Pérez Virella was recruited to occupy a position of Regional Director I, assigned to the Caguas Regional Office.
30. The position of Regional Director I is classified as a position of trust or confidence within the Commonwealth of Puerto Rico personnel system.
31. Plaintiff Pérez Virella has been an activist of the NPP and a political leader among the employees of the PSC, having presided over the PSC chapter of "Servidores Públicos Progresistas," an organization of NPP-affiliated PSC employees.
32. On August 21, 2000, Plaintiff Pérez Virella submitted his resignation to the position of Regional Director I to the Chairwoman of the PSC and requested to be reinstated to his career position, as required by the PSC.
33. On August 24, 2000, Ms. Nydia E. Rodríguez Martínez, then Chairperson of the PSC, sent a letter reinstating Plaintiff Ricardo Pérez from his trust position of Regional Director I to a career position of Public Service Inspector IV (position 354), assigned to the Surveillance, Complaints and Investigation Unit of the San Juan Regional Office.
34. On that same date and letter in which Plaintiff Ricardo Pérez Virella was being reinstated, Ms. Nydia Rodríguez also authorized a salary raise via exception of $1,000.00 to him, stating that it was done pursuant to the Uniform Retribution Regulation.
35. The above-mentioned letter states that the personnel transactions reinstating Plaintiff Pérez Virella to the career position of Public Service Inspector IV and the salary raise authorized via exception were to be effective on September 1, 2000.
36. As a result, Plaintiff Ricardo Pérez Virella's monthly salary after the above-mentioned personnel transaction was $2,367.00 in his career position.
37. However, on January 16, 2001, the then Chairperson of the PSC, Waldemar Quiles, assigned Plaintiff Ricardo Pérez Virella to another trust position of Executive II at the Office of Technical Advisement (position 480), with a monthly salary of $3,097.
38. On September 3, 2002, Plaintiff Pérez Virella submitted his resignation letter to the position of Executive II of the Technical Advisement Office, and requested his reinstatement to this career position.
39. Quiles reinstated Plaintiff Pérez Virella to the career position of Public Service Inspector IV, effective on October 1, 2002, with a monthly salary of $2,467, plus a differential of $257.00 for extraordinary conditions.
40. Pursuant to the assignment of classes for career positions comprehended in the Classification Plan and applicable law, the retribution scale for the salary of the career position of Public Service Inspector IV ranged from a minimum of $1,110 to a maximum of $1,549.00.
41. Plaintiff Ricardo Pérez Virella, even after his reinstallation to his career position, was earning a monthly salary $2,467, plus a differential of $257.00, a higher salary than the one required by the Retribution Scale Chart.
42. On October 1, 2002, Plaintiff Pérez Virella was informed that the personnel transaction relating to his reinstatement as a career employee had been reviewed and that his salary was to be adjusted to $1,425.00 with a $257.00 differential, instead of $2,467.00, plus the $257.00 differential, since the reinstatement did not contemplate the salary by exception given to him, pursuant to the Uniform Retribution Regulation, among other applicable legal theories.
43. Plaintiff Pérez Virella was given a $1,000.00 monthly salary increase by exception by the previous Chairperson of the PSC, Ms. Nydia Rodríguez, and he was also given two salary scales increases because of his merits ("pasos por mérito").Plaintiff Sonia Cedeño
44. From 1984 to 1993, Plaintiff Sonia Cedeño started working as a Planning Analyst II, a career position, for the Puerto Rico Planning Board.
45. On June 16, 1993 until December 1997, she began working at the PSC as an Executive Secretary, a trust position.
46. On December 1997, she went to work at the Puerto Rico Housing Department as a Special Aide IV, another trust position.
47. On April 2000, she was appointed by Gov. Pedro Rosselló as Associate Commissioner of the PSC, a position that allegedly expired on July 7, 2001, but which she occupied until November 15, 2001.
48. On October 24, 2001, Plaintiff Cedeño submitted her resignation to that position to the Chairman of the PSC and requested to be reinstated as a career employee.
49. Pursuant to the Puerto Rico Public Service Personnel Act, Plaintiff Cedeño was entitled to be reinstated in the same position she occupied within the career service before being appointed to a trust position or to a similar position.
50. On November 16, 2001, Waldemar Quiles, then Chairperson of the PSC, reinstated Plaintiff Cedeño to the career position of Management Technician I (position 429), with a salary of $1,311.00, plus an authorized salary increase by exception of $525.00.
51. The above-mentioned letter states that the personnel transaction of reinstating Plaintiff Cedeño to the career position of Administrative Technician I and the salary raise authorized via exception were to be effective the same day, on November 16, 2001.
52. Effective December 6, 2001, the Chairman of the PSC, Mr. Quiles, appointed Plaintiff Cedeño to the position of Executive I, acting as Director of the One-Call Office of the PSC.
53. This position was a position of trust or confidence within the Government of Puerto Rico.
54. She remained at said trust position, where she was earning a salary of $3,076.00, until September 30, 2002, when she was reinstated to a career position.
55. On September 30, 2002, Plaintiff Cedeño was informed that she was going to be reinstated to the last career position she held, Administrative Technician I, and that her salary pursuant to her reinstatement was to be $1,411.00.
56. In addition, the letter also informed her that her reinstatement to the career position did not contemplate the salary by exception increase of $525.00, pursuant to the Uniform Retribution Regulation.
57. However, that letter had an error, specifically in the amount of the salary that corresponded to Plaintiff, and on the next day, on October 1, 2002, another letter was sent to her to correct the errors.
58. The new letter stated that the correct salary would be $1,425.00.
59. Pursuant to the assignment of classes for career positions comprehended in the Classification Plan and applicable law, the retribution scale for the salary of the career position of Administrative Technician I, ranged from a minimum of $1,110.00 to a maximum of $1,549.00.Plaintiff Emely Ramos
60. Plaintiff Emely Ramos began working as a data entry clerk, a career position, at the PSC around 1992.
61. In the course of her twelve-year tenure at the PSC, Plaintiff Ramos has been promoted to different positions within the career service.
62. In 1998, Plaintiff Ramos Castillo was promoted to the position of Supervisor of Data Entry Clerk of the PSC, a position classified within the career service.
63. On February 1, 2000, Plaintiff Ramos Castillo was appointed to occupy the position of Executive I.
64. The position of Executive I is classified as a position of trust or confidence within the Commonwealth of Puerto Rico personnel system.
65. On August 24, 2000, Ms. Nydia E. Rodríguez Martínez, then Chairperson of the PSC, sent a letter reinstating Plaintiff Ramos from her trust position of Executive I to a career position of Supervisor of Data Entry Clerk (position 589) of the PSC.
66. On that same date and letter, in which Plaintiff Ramos was being reinstated, Ms. Nydia Rodríguez also authorized a salary raise via exception of $500.00 to her, stating that it was done pursuant to the Uniform Retribution Regulation.
67. The above-mentioned letter states that the personnel transaction reinstating Plaintiff Ramos to the career position of Supervisor of Data Entry Clerk, as well as the $500.00 salary raise authorized via exception, were to be effective on September 1, 2000.
68. As a result, Plaintiff Ramos' monthly salary after the above-mentioned personnel transaction was $1,861.00.
69. Pursuant to the assignment of classes for career positions comprehended in the Classification Plan and applicable law, the retribution scale for the salary of the career position of Supervisor of Data Entry Clerk ranged from a minimum of $1,160.00 to a maximum of $1,619.00.
70. After her reinstallation to her career position, Plaintiff Ramos was earning a monthly salary $1,861.00, a higher salary than the one required by the Retribution Scale Chart.
71. On January 1, 2000, the newly appointed Chairman of the PSC, Waldemar Quiles, appointed her to another trust position, Executive I, a position she occupied until November 15, 2001.
72. On or about November 2001, Plaintiff Ramos Castillo resigned from the position of Executive I and requested her reinstatement to her career position.
73. Plaintiff Ramos Castillo was reinstated to her career position of Supervisor of Data Entry Clerk (position 589), assigned to the One-Call Office.
74. The reinstatement became effective on November 16, 2001, with a monthly salary of $1,861.00.
75. On June 16, 2002, Plaintiff Ramos Castillo received a pay raise based on her merits as a career employee and a legislative pay raise that increased her monthly salary to $2,094.00.
76. On October 25, 2002, Plaintiff Ramos was informed that the personnel transaction relating to her reinstatement as a career employee had been reviewed and that her salary was to be adjusted to $1,619.00, instead of $2,094.00, since the reinstatement did not contemplate the salary by exception given to her pursuant to the Uniform Retribution Regulation.
77. Plaintiff Ramos is an active member of the NPP; she is presently Vice-President of the NPP Municipal Committee in Toa Alta.
78. Plaintiff Ramos ran for elected office as an NPP candidate in 2004.
79. Plaintiff Ramos alleges that, after Defendant Hernández became Chairman of the PSC, her work conditions changed, and essential functions of her position were either altered, eliminated, or transferred to other employees.Plaintiff Samuel Rodríguez Burgos
80. Plaintiff Samuel Rodríguez Burgos has been a public employee since 1997.
81. In 1999, Plaintiff Rodríguez Burgos was appointed to the position of Administrative Officer of the Retirement Systems Administration, a position classified within the career service.
82. On March 1, 2001, Plaintiff Rodríguez Burgos was appointed by Waldemar Quiles to occupy the position of Special Assistant II at the PSC.
83. The position of Special Assistant II is classified as a position of trust or confidence within the Commonwealth of Puerto Rico personnel system.
84. On or about March 2002, Plaintiff Rodríguez Burgos submitted his resignation to the position of Special Assistant II to the Chairman of the PSC and requested his reinstatement to his career position and/or to a similar position, as required by the Puerto Rico Public Service Personnel Act.
85. Plaintiff Rodríguez Burgos was reinstated to a career position of Administrative Auxiliary I (position 291), assigned to the San Juan Regional Office.
86. The Administrative Auxiliary I position is classified as a career position.
87. The reinstatement became effective on March 16, 2002, with a monthly salary of $2,200.00.
88. On that same date and in the same letter in which Plaintiff Rodríguez Burgos was being reinstated, Mr. Quiles also authorized him a salary raise via exception of $598.00 to him, stating that it was done pursuant to the Uniform Retribution Regulation.
89. The above-mentioned letter states that the personnel transaction reinstating Plaintiff to the career position of Administrative Auxiliary I, and the salary raise authorized via exception of $598.00, were to be effective on March 16, 2002.
90. As a result, Plaintiff Rodríguez Burgos' monthly salary after the above-mentioned personnel transaction was $2,200.00.
91. Pursuant to the assignment of classes for career positions comprehended in the Classification Plan and applicable law, the retribution scale for the salary of the career position of Administrative Auxiliary I ranged from a minimum of $992.00 to a maximum of $1,281.00.
92. Plaintiff Rodríguez Burgos, even after his reinstallation to this career position, was earning a monthly salary $2,200.00, a higher salary than the one required by the Retribution Scale Chart, almost $1,000.00 in excess of the retribution scale.
93. On October 30, 2002, Plaintiff Rodríguez Burgos participated in a political activity of the NPP youth at the University of Puerto Rico.
94. A photograph of Plaintiff Rodríguez Burgos at said event was published in the cover of The San Juan Star on October 31, 2002.
95. On October 31, 2002, Plaintiff Rodríguez Burgos was informed that the personnel transaction relating to his reinstatement as a career employee had been reviewed and that his salary was to be adjusted to $1,702.00, instead of $2,200.00, since the reinstatement did not contemplate the salary by exception given to him pursuant to the Uniform Retribution Regulation.
96. After the correction made to his salary by Defendants, his actual salary of $1,702.00 is still about $500.00 higher than the maximum range of the retribution scale.
97. Plaintiff Rodríguez Burgos is the Vice President of the NPP Youth in Loíza and the Assistant Secretary of the NPP Youth.
98. Plaintiff Rodríguez Burgos also held the position of political coordinator of the NPP at the PSC.
IV. CONCLUSIONS OF LAW
A. Political Discrimination
It is a bedrock principle of democratic rule that the party that was selected at the ballot box has a right to appoint employees to key policy-making positions in order to put into effect the policy of the party elected by the people. There are two types of positions in public employment in Puerto Rico: confidential (or "trust") and career. 3 P.R. Laws Ann. § 1349. A career employee who ascends to a trust position has an absolute right to be reinstated back to a position equal to the last position that he or she held while in the career service, without retaining any increase in salary that accompanied the trust position. 3 P.R. Laws Ann. § 1350. When an employee is reinstated to his past career position, the agency cannot take into account the increase in responsibility and salary that the employee experienced in his trust position. Cardona Martínez v. Rodríguez Quiñones, 306 F.Supp. 2d 89, 96 (D.P.R. 2004) (Pieras, J.).
It has become common practice in Puerto Rico politics that close to election time, the party in power, as a political measure to protect its party members, returns its trust employees to their old positions as career employees, not at the salary called for the position, but rather at a salary in excess of that traditionally awarded for the position. See e.g., Cardona Martínez, 306 F.Supp. 2d 89; see also Céspedes Rodríguez v. Rivera Hernández, 135 Fed. Appx. 441 (1st Cir. 2005). This practice is illegal, and if the new administration reduces said salary to the correct one called for by the position, it cannot be said that such is politically motivated and that such action is therefore tantamount to political discrimination.
Both of the above-cited cases were centered around NPP-affiliated Plaintiffs who returned to career positions subsequent to being elevated to trust positions, and whose salaries were reduced by the new administration upon a determination that their salaries had been raised illegally.
Defendants move for summary judgment on Plaintiffs' claim for political discrimination in violation of their First Amendment rights pursuant to 42 U.S.C. § 1983. Defendants argue that they have offered legitimate, non-discriminatory reasons for the adverse employment actions they took regarding Plaintiffs, specifically, the reduction of the Plaintiffs' salaries on account of the salaries having been increased in violation of the Puerto Rico Public Service Personnel Act, 3 P.R. Laws Ann. § 1301.
To establish a prima facie case of political discrimination, a plaintiff must show that he or she is engaged in constitutionally protected conduct, and that this conduct was a substantial or motivating factor for the adverse employment decision. See Padilla-García v. Guillermo Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000). This requires more than merely "juxtaposing a protected characteristic — someone else's politics — with the fact that plaintiff was treated unfairly." Id.,quoting Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49, 58 (1st Cir. 1990). Evidence that a plaintiff is politically active and that a defendant is aware of plaintiff's opposing views is not sufficient to meet this burden. Rodríguez-Ríos v. Cordero, 138 F.3d 22, 24 (1st Cir. 1998). In order to prevail, a plaintiff must point to evidence in the record that would permit a rational fact finder to conclude that the challenged personnel action occurred and stemmed from a politically based discriminatory animus. See Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994).
It has been clearly established that plaintiffs need not produce direct evidence of a politically-based discriminatory animus. Acosta-Orozco v. Rodríguez de Rivera, 132 F.3d 97, 101-102 (1st Cir. 1997). Instead, in order to demonstrate that political discrimination was a substantial or motivating factor behind an adverse employment action taken against a plaintiff, the First Circuit has held that circumstantial evidence alone can support a finding of political discrimination. See Acosta-Orozco, 132 F.3d at 101-102; Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991); Estrada-Izquierdo v. Aponte-Roque, 850 F.2d 10, 14-15 (1st Cir. 1998). A plaintiff must point to evidence on the record which, if credited, would permit a rational fact finder to conclude that the challenged action occurred and stemmed from politically based discriminatory animus. González de Blasini v. Family Department, 377 F.3d 81, 85 (1st Cir. 2004). The operative question in this kind of scenario is "does the circumstantial evidence, taken as a whole, give rise to a plausible inference of discriminatory animus which ultimately possesses enough convictive force to persuade a rational fact-finder that the defendants' conduct was politically motivated?" Anthony, 952 F.2d at 606. However, though the Court can make its ruling based on circumstantial evidence, the plaintiff is still required to show that a causal connection exists linking defendants' conduct, as manifested in the adverse employment decision, to plaintiff's politics. LaRou v. Ridlon, 98 F.3d 659 (1st Cir. 1996). See also Avilés-Martínez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992) (plaintiff-employee must show causal connection between his political affiliation and the adverse treatment).
If the plaintiff has shown that his or her political affiliation was a substantial or motivating factor in the adverse employment decision, the defendant will not be held liable if it can persuade the factfinder that it would have taken the same course of action anyway, without regard to plaintiff's political affiliation. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed. 2d 471 (1977); see also Sánchez-López v. Fuentes-Pujols, 375 F.3d 121, 124 (1st Cir. 2004). The Supreme Court has made clear that a defendant's Mt. Healthy defense serves to prevent an employee who would have received an adverse employment decision based on legitimate reasons from being "in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." Mt. Healthy, 429 U.S. at 285, 97 S.Ct. 568. If a plaintiff does not produce evidence sufficient to allow a reasonable inference that political discrimination was a substantial or motivating factor in the challenged employment action, the Court need not examine the defendant's Mt. Healthy defense. Vázquez-Valentín v. Santiago-Díaz, 385 F.3d 23, 30-31 (1st Cir. 2004).
The discrimination alleged by Plaintiffs is that their salary differentials, whereby Plaintiffs were paid salaries higher than those provided by regulations, bringing their salaries as career employees closer to those that they had received while employed as trust employees under the NPP administration, were eliminated by Defendants due to political animus. Plaintiffs are all still employed by the PSC, having been reinstated, as is their right, to their previous career positions at the same salaries they had when they held their last career positions.
The Court takes judicial notice of the fact that prior to serving as Chairman of the PSC, Waldemar Quiles served as the Mayor of the Municipality of Utuado, and was later elected to Puerto Rico's House of Representatives, representing Ponce. In a prior case before the undersigned, Quiles Rodríguez v. Calderón, 172 F.Supp. 2d 334, Quiles sought an injunction when the newly-elected Governor of Puerto Rico, the Honorable Sila M. Calderón, a member of the PDP, sought to remove him from his position of Chairman of the PSC, leaving him to serve out the remainder of his term as a Commissioner of the PSC. The Court held that Quiles was entitled to an injunction enjoining his removal, but denied the issuance of said injunction due to Quiles' procedural failure to file essential English translations of evidence presented to the Court. As is discernible from the evidence on the record, it was Quiles that reappointed Plaintiffs back to their former career positions and authorized the various raises that each Plaintiff received, which resulted in salaries well above the salary scale for the career positions.
Following is a snapshot of Plaintiffs' compensation as approved by Waldemar Quiles, before Plaintiffs' salaries were reviewed and reduced in the Fall of 2002 by the new PDP administration, delineating the salaries the Plaintiffs, all of whom had previously held trust positions under the NPP administration, were earning upon being reinstated to career positions. Plaintiff Justo Morales, reinstated to the career position of Executive Director I, the scale for which ranged from $1,446.00 to $2,017.00 per month, was being paid $3,033.00 per month. Plaintiff Ricardo Pérez Virella, reinstated to the career position of Public Service Inspector VI, the scale for which ranged from $1,110.00 to $1,549.00 per month, was being paid a total of $2,724.00 per month. Plaintiff Sonia Cedeño, who held a trust position until September 30, 2002, was being paid $4,001.00 per month at said position, and was then reinstated to the career position of Administrative Technician I, the scale for which ranged from $1,110.00 to $1,549.00 per month, and was awarded a monthly salary of $1,425.00. Plaintiff Emely Ramos, reinstated to the career position of Supervisor of Data Entry Clerk, the scale for which ranged from $1,160.00 to $1,619.00 per month, was being paid $2,094.00 per month. Plaintiff Samuel Rodríguez Burgos, reinstated to the career position of Administrative Auxiliary I, the scale for which ranged from $992.00 to $1,281.00 per month, was being paid $2,200.00 per month.
As stated above, when an employee is reinstated to his past career position, the agency cannot take into account the increase in responsibility and salary that the employee experienced in his trust position. Cardona Martínez, 306 F.Supp. 2d 89, 96. The Court here takes an opportunity to note the similarities between the controversies in the instant case and in Cardona Martínez, a case involving a very similar factual scenario to the one currently before the Court. As in the instant case, the plaintiffs in Cardona Martínez were NPP-affiliated government employees that had entered government service as career employees and had later been elevated to trust positions; upon the PDP's victory in the 2000 elections, the plaintiffs in that case were reassigned back to career positions, but their salaries were increased to levels beyond those typically awarded for employees in those career positions. Carmen Márquez, one of the plaintiffs, testified on cross-examination that she requested the move back to a trust position prior to the 1996 and 2000 elections in order to protect her job from her party's potential loss in the upcoming elections, since trust employees are subject to discharge. Id. at 94. The Cardona Martínez plaintiffs sued, alleging that their salaries were lowered due to political animus; the PDP-affiliated defendants in that matter argued that their actions were taken in order to correct the illegality of the personnel transactions that had resulted in the plaintiffs' higher salaries. A jury trial was held, and the defendants moved for judgment as a matter of law under Fed.R.Civ.P. 50 at the conclusion of plaintiffs' case in chief. The Court found for the defendants in that matter, finding that the plaintiffs had failed to prove that the defendants' actions had been motivated by political animus.
As in Cardona Martínez, the work history of Plaintiffs in this matter is a series of salary increases and reclassifications culminating in reinstatements back to career positions previously held in anticipation of a change in gubernatorial administrations, resulting in former trust employees holding career positions at salary levels not commensurate with the salary scale for said positions. In Cardona Martínez, the Court found that the plaintiffs'
duties and salar[ies] were systematically increased by the prior New Progressive Party administration in a concerted attempt to protect [them] from reinstatement to the lesser duties and salary of [their] last legal career position[s] upon the coming change in administration. This was the administration's attempt to keep their NPP employees in positions with high salaries [. . .] The Court finds that the conduct of the Plaintiffs' NPP administration would create a situation where a political party would permanently be in power in violation of constitutional principles and of the concept of a democracy, where the rule is by general vote. With Plaintiffs' plan to change trust positions to career positions, giving the executive the powers, duties, and salary of a trust position, it would become impossible to manage the agency in accordance with the will of the people. According to the U.S. Constitution, executives have the power to remove employees in policy making positions. See Santana v. Calderón, 342 F.3d 18 (1st Cir. 2003). The plan put in place by Plaintiffs' administration controverts this principle, because it would allow employees who are effectively occupying trust positions to continue in those positions after the change in administration.Cardona Martínez, 306 F.Supp. 2d 96-97.
Plaintiffs present some alleged statements by Defendants Hernández and Rodríguez as their primary evidence to the effect that they were the victims of discriminatory animus. In an unsworn statement under penalty of perjury, Elena Ocasio Rivera, former Director of Human resources for the PSC, stated that Defendant Rodríguez told her and Edgar Padilla that Defendant Hernández intended to revoke the salary differentials awarded by Waldemar Quiles and Nydia Rodríguez. Plaintiff Pérez Virella claims that after he was notified of the readjustment to his salary, Defendant Hernández told him that "that's the way things are going to be from now on, daddy." Plaintiff Samuel Rodríguez alleges that Defendant Alex Rodríguez told him that all salary differentials would be taken away from "all you guys," allegedly referring to employees associated with the NPP. These statements are not enough to raise a genuine issue of material fact as to whether Defendants' actions were motivated by political animus. See Cardona Martínez, 306 F.Supp. 2d 89, 97 ("[C]omments made generally around the office as to the employment future of the NPP employees do not bear a sufficient connection to the employment actions taken to indicate that the personnel actions taken by Defendants were motivated by political discrimination.").
"Así e que van a ser las cosas ahora, papá."
It remains undisputed by Plaintiffs that the salaries they were receiving thanks to pay raises granted to them while the PSC was under NPP control were higher than those provided for by the Retribution Scale Chart. Under Puerto Rico's Public Service Personnel Act, differentials in salary outside of the schedule may be established when:
(a) The geographical location of the position, the special working conditions, the special knowledge required, or the extraordinary difficulties in the recruitment and/or retention of personnel for specific positions so justify it; or
(b) the appointing authority designates an employee to discharge all the normal duties of a position of a higher classification in substitution of another employee for a period longer than three (3) months, uninterruptedly.
3 P.R. Laws Ann. § 1354(5).
Moreover, an examination of Plaintiffs' salaries as they stand since they were reevaluated is very telling. Plaintiff Justo Morales' salary was reduced from $3,033.00 per month to $2,035.00 per month, which is still greater than what the salary scale for his position, which sets a maximum salary of $2,017.00, required. Plaintiff Ricardo Pérez Virella's salary was reduced from $2,724.00 per month to $1,425.00, a salary at the upper end of the salary scale for his position, which ranged from $1,110.00 to $1,549.00 per month. Plaintiff Sonia Cedeño, upon reclassification as a career employee, was awarded a $1,425.00 monthly salary, well within the salary scale for her positions, which ranged from $1,110.00 to $1,549.00 per month. Plaintiff Emely Ramos' salary was reduced from $2,094.00 per month to $1,619.00 per month, which constituted the maximum salary on the salary scale for her position, which ranged from $1,160.00 to $1,619.00 per month. Finally, Plaintiff Samuel Rodríguez Burgos' salary was reduced from $2,200.00 per month to $1,702.00 per month, which is well above the upper end of the salary scale for his position, which ranges from $992.00 to $1,281.00 per month. The Plaintiffs are all currently earning salaries either towards the upper reaches of the salary scales for their respective positions, or, in the case of Plaintiffs Morales and Rodríguez Burgos, greater than the maximum set by the salary scale.
Plaintiffs in this matter, having no direct evidence of discrimination, rely instead on circumstantial evidence. As stated above, the operative question to ask in this type of scenario is "does the circumstantial evidence, taken as a whole, give rise to a plausible inference of discriminatory animus which ultimately possesses enough convictive force to persuade a rational fact-finder that the defendants' conduct was politically motivated?" Anthony, 952 F.2d at 606. Plaintiffs have produced no evidence to support the contention that their salary differentials conformed with any of the situations wherein a differential in salary is permissible under the Public Service Personnel Act, and thus no evidence that they were entitled to the salary differentials which Defendants eliminated.
The circumstantial evidence in this matter, taken as a whole, does not give rise to a plausible inference of discriminatory animus which would allow a rational fact-finder to find that Defendants' conduct was motivated by political animus. Therefore, Defendants are entitled to summary judgment on Plaintiffs' First Amendment Section 1983 claims for political discrimination, and the Court GRANTS Defendants' motion on these grounds and hereby DISMISSES Plaintiffs' First Amendment claims WITH PREJUDICE. B. Failure to State an Equal Protection Violation
In the instant case, Plaintiffs also allege that they have been denied the equal protection of the laws in violation of the U.S. Constitution. However, the main thrust of this argument is that Plaintiffs were invidiously classified for unfavorable treatment based on their political affiliation. Plaintiffs have already invoked the protection of the First Amendment for the alleged patronage actions based on their political affiliation and there is therefore no need to analyze this claim under the equal protection clause. See Medina Díaz v. González Rivera, 371 F.Supp. 2d 77 (D.P.R. 2005) (Pieras, J.).
To this effect this Court has previously indicated that:
[T]he United States Courts of Appeals for the First Circuit has specifically noted the overlapping nature of the protections provided by the Fourteenth Amendment's Equal Protection Clause and the First Amendment's implied freedom of association in the context of political discrimination."[Plaintiff] has no need for protection under the equal protection clause. His equal protection theory is simply that, in addition to violating his First Amendment rights, the denial of permits in purported retaliation for his political expression violated his equal protection rights as well. Given the overlap of these claims . . . we see little basis or justification for applying equal protection analysis . . ." Dávila Alemán v. Feliciano Melecio, 992 F.Supp. 91, 102, n. 12 (D. Puerto Rico 1997) (Pieras, J.), citing Néstor Colón Medina Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992).
Because Plaintiffs' principal claim under § 1983 for political discrimination based on political affiliation in violation of their First Amendment rights overlaps with their equal protection claims, and because the Court has already determined in the context of Plaintiffs' First Amendment claims that there is no genuine issue as to whether the Defendants' actions were motivated by political animus, the Court GRANTS Defendants' motion on these grounds and hereby DISMISSES WITH PREJUDICE Plaintiffs' equal protection claims.
C. Fifth Amendment Claims
In their complaint, Plaintiffs allege that their Fifth Amendment rights were violated by Defendants. Defendants argue that these claims should be dismissed because the Fifth Amendment does not apply to the case at bar. The Court agrees and disposes of this matter quickly.
The Due Process Clause of the Fifth Amendment provides that: "No person shall . . . be deprived of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. V. The Fifth Amendment applies to actions of the federal government, not those of private individuals. See Gerena v P.R. Legal Serv. Inc., 697 F.2d 447, 448 (1st Cir. 1983), citing Public Utilities Comm'n v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952).
Because neither the federal government nor any of its agents are named defendants in this action, the Court GRANTS Defendants' Motion on this basis, and will enter judgment DISMISSING WITH PREJUDICE Plaintiffs' Fifth Amendment claims.
D. Due Process
Plaintiffs further claim they have a property right to the salaries they were earning before their salary differentials were reversed, and argue that their due process rights were violated because they were not given prior notice of their salary reductions and were not afforded a hearing prior to the reduction.
To state a procedural due process claim, a plaintiff must show the following elements: (1) that she/he has a protected interest in life, liberty, or property afforded by the Constitution; and (2) that the State deprived the person of any of those interest without due process of law. See Romero Barceló v. Hernández Agosto, 75 F.3d 23, 32 (1st Cir. 1996).
Career employees hold a property interest in their employment sufficient to invoke due process clause protection. See Board of Regents of State Colleges v. Rother, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed. 2d 548 (1972). The Due Process Clause of the Fourteenth Amendment guarantees public employees with a property interest in continued employment the right to a pre-termination hearing. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed. 2d 494 (1985); see also Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1173 (1st Cir. 1988); Arizmendi-Corales v. Javier Rivera, 176 F.Supp. 2d 114, 119 (2001). However, Plaintiffs in this matter were not terminated. The due process violations they allege are that they were not given prior notice of the decision to revoke their salary differentials, and that they were not afforded a hearing prior to said revocation. There is no termination scenario at issue here. Plaintiffs were not at risk of losing their employment, but rather a part of their salary. They continued to work at their positions and continued drawing a salary after their salary differentials were revoked. Moreover, each Plaintiff was notified in the letter informing them of the revocation decision that they had the right to an appeal before the Appeals Board of the System of Personnel Administration ("JASAP" for its Spanish acronym).
The record is unclear as to whether any of the Plaintiffs exercised their right to an appeal.
Courts have recognized situations where a post-deprivation hearing satisfies the constitutional due process requirements.See Torres Rosado v. Rotger Sabat, 204 F.Supp. 2d 252 (D.P.R. 2002) (Pieras, J.), citing Ewing v. Mytinger Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908); see also Bennett v. City of Boston, 869 F.2d 19 (1st Cir. 1989) (holding that a suspension without pay oftentimes does not raise due process concerns). InLoudermill, supra, Justice Marshall, concurring with the majority, commented on the importance of a hearing "before the decision is made to terminate an employee's wages . . ." Loudermill, 105 S.Ct. 1487, 1496. However, Plaintiffs in the instant case were not stripped of their livelihood without a hearing; rather, they retained their livelihood, but their salaries were reduced by eliminating salary differentials which were deemed to be improperly awarded.
The record indicates that Plaintiffs were notified of the action being taken with regard to their salaries and were given an opportunity to appeal said action. There is no evidence on the record nor any allegations to the effect that the mechanism of appeal before JASAP was in any way procedurally inadequate. Therefore, they were not deprived of their property interest in their salaries without due process. The Court accordingly DISMISSES WITH PREJUDICE Plaintiffs' claims against Defendants under the Due Process Clause of the Fourteenth Amendment.
E. Supplemental Claims
In addition to their federal claims, Plaintiffs included several claims under Puerto Rico law. However, because there is no independent basis for federal jurisdiction over Plaintiffs' supplemental state law claims given the dismissal of Plaintiffs' federal claims, the Court declines to accept supplemental jurisdiction over Plaintiffs' claims under Puerto Rico law. See 28 U.S.C. § 1367(c)(3). Therefore, the Court will enter judgment dismissing Plaintiffs' supplemental claims under Puerto Rico Law WITHOUT PREJUDICE.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants' "Motion for Summary Judgment" ( docket No. 30). The Court will enter judgment DISMISSING the federal claims WITH PREJUDICE and the claims under Puerto Rico law WITHOUT PREJUDICE.
IT IS SO ORDERED.