Opinion
No. 99-2107 (JAG).
April 23, 2002
OPINION AND ORDER
On October 1, 1999, Carlos J. Lopez Hernandez's ("Lopez") brought suit against the Puerto Rico Secretary of Education, Hon. Victor Fajardo Velez ("the Secretary"), and the Regional Director for the Department of Education's ("DE") Mayaguez Region, Nereida Gelabert ("Gelabert"), for claims of political discrimination brought under the Civil Rights Act, 42 U.S.C. § 1983, and violations of First Amendment rights to free association and freedom of expression. On February 27, 2001, defendants moved for summary judgment. Defendants ask the Court to dismiss all claims because, (1) the doctrine of res judicata bars further action, (2) the Eleventh Amendment protects defendants from monetary damages in their official capacity, (3) defendants cannot be sued under the theory of respondeat superior, and (4) there is no causal relationship between defendants' actions and plaintiff's allegations (Docket No. 16). On March 27, 2001, Lopez opposed, stating that (1) claims are for new and independent violations from those of the previous action, (2) suit is not under the theory of respondeat superior, but for acts of discrimination under color of state authority, and (3) there are genuine issues precluding summary judgment (Docket No. 20). For the reasons discussed below, defendants' motion is GRANTED.
In November 2000, general elections were held in Puerto Rico and the Honorable Sila Maria Calderon was elected governor. In the months following her inauguration, she appointed the Honorable Cesar A. Rey as Secretary of Education. Pursuant to Fed.R.Civ.P. 25(d)(1), Mr. Rey has been automatically substituted in his official capacity for Mr. Fajardo in this suit. Mr. Fajardo continues to be a defendant, however, in his personal capacity. We shall continue to refer to the "Secretary" throughout this opinion.
PROCEDURAL AND FACTUAL BACKGROUND
In 1994 Lopez filed a complaint containing allegations similar to those in this complaint, Carlos Lopez Hernandez v. Victor Fajardo, et al., Civil No. 94-1918 (HL). That action came to an end through a settlement agreement dated November 26, 1997. The agreement recognized that Lopez held the position of Executive Official V at the Department of Education's Mayaguez Regional Division. Lopez's current position is that of Administrative Auxiliary III, a position commensurate to Executive Official V. The agreement also stated that the "appearing parties agree that the settlement, which ends and prevents this and any further litigation, has been reached in their best interests and constitutes the most appropriate means of solving and concluding the instant case." (Docket No. 16, uncontested fact no. 5). On May 12 1999, Lopez filed a motion for execution of judgment and continuous damages (Civil No. 94-1918, Docket No. 99). On July 14, 1999, the Court denied plaintiff's request (Civil No. 94-1918, Docket No. 105). On October 1, 1999, Lopez filed this action.
Lopez is a career employee at the Department of Education. At the time of the complaint, Lopez was assigned to the Pre-intervention Division at the Mayaguez Regional Office. Lopez's supervisor was Mr. Noel Toro. Mrs. Zoe Cotte was Mr. Toro's supervisor and answered directly to defendant Gelabert. Lopez has not been assigned any duties since his first complaint in 1994. A position was offered to Lopez in 1998, but he refused it. On two occasions Gelabert told Lopez that he should report to Mrs. Cotte and that she would assign him new duties. Prior to this action, Lopez's requests for Mrs. Cotte to put in writing a description of his new duties were fruitless as he was referred back and forth between Gelabert and Mrs. Cotte.
DISCUSSION
A. Summary Judgment Standard
The court's discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 states, where pertinent, that the court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52. (1st Cir. 2000).
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once a properly supported motion has been presented before the court, the opposing party has the burden of demonstrating that a trial worthy issue exists that would warrant the court's denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. Suarez v. Pueblo Int'l. Inc., 229 F.3d 49 (1st Cir. 2000).
In order for the factual controversy to prevent summary judgment the contested fact must be "material" and the dispute over it must be "genuine." "Material" means that a contested fact has the potential to change the outcome of the suit under the governing law. The issue is "genuine" when a reasonable jury could return a verdict for the nonmoving party based on the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is well settled that "[t]he mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Id. at 252. It is therefore necessary that "a party opposing summary judgment must present definite, competent evidence to rebut the motion." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
To make this assessment in a given case, the court "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging in all reasonable inferences in that party's favor."Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). When carrying out that task, the court may safely ignore "conclusory allegations, improbable inferences, and unsupported speculation." See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
B. Compliance with Local Rule 311.12 .
Local Rule 311.12 requires that "[t]he papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried, properly supported by specific reference to the record." (emphasis supplied). Lopez failed to fully comply with this Rule. Although he did submit a statement of contested material facts, erroneously titled as a "Statement of Uncontested Material Facts", it is devoid of specific references to the record. In his statement, Lopez points to "Exhibit I", an eighty-five page deposition, without any reference to specific pages. The Court is not required to "ferret through the record" lurking for facts that may favor plaintiffs when those facts were not proffered under a counter designation of facts as required by Local Rule 311.12. Morales v. A. C. Orssleff's Eftf, 246 F.3d 32, 33 (1st Cir. 2001). The First Circuit has stated with reference to this particular rule, that "parties ignore [it] at their own peril," and that "failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies deeming the facts presented in the movant's statement of undisputed facts admitted." Id. Therefore, the facts as presented by defendants must be admitted by the Court for purposes of this motion.
The Court, however, "cannot provide . . . that a motion for summary judgment will be automatically granted when the opposing party fails to [properly] respond. The Court first must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law." Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989).
C. Defendants' Motion for Summary Judgment .
1. All claims arising out of the events occurring prior to the November 27, 1997 Settlement Agreement are foreclosed to litigation because they have been litigated and decided .
On the doctrine of res judicata, the First Circuit has stated that,
Under federal law, a final judgment on the merits of an action precludes the parties from relitigating claims that were raised or could have been raised in that action. For a claim to be precluded, there must be: (1) a final judgment on the merits in an earlier action; (2) sufficient identity between the causes of action asserted in the earlier and later suits; and (3) sufficient identity between the parties in the two suits.Bay State HMO Management, Inc. v. Tingley Systems, Inc., 181 F.3d 174, 177 (1st Cir. 1999) (citations omitted).
The third prong is met. The parties are the same in both complaints. The first and second prongs, however, are not met. The second prong requires that the causes of action in both complaints be identical. Any claim predating the 1997 settlement agreement is precluded by res judicata. Lopez's present claims, however, are new and independent from those which gave rise to the 1994 complaint. Even though the claims in both actions are of the same nature, Lopez's present claims arise out of discriminatory acts committed after the 1997 settlement agreement and do not rest upon any act committed prior to that date. They could not have been raised in the previous action because they had not yet been committed. It is an uncontested fact that no duties were assigned to Lopez during the period between the 1997 settlement agreement and the filing of this action.
2. The Eleventh Amendment protects both defendants from monetary damages in their official capacity .
The Eleventh Amendment bars action against a State, State Agency, or State Officials in their official capacity when seeking monetary damages which would have to be paid from the state treasury. See Vega Castro v. Puerto Rico, 43 F. Supp.2d 186, 189 (D.P.R. 1999). It has been established that the Commonwealth of Puerto Rico enjoys the full benefits of the Eleventh Amendment. See Ursulich v. Puerto Rico Nat. Guard, 384 F. Supp. 736, 737 (D.P.R. 1974). Suits seeking prospective injunctive relief, however, may be brought against State Officials in their official capacity. See Rivera Rodriguez v. Police Dept. of Puerto Rico, 968 F. Supp. 783, 786 (D.P.R. 1997). Furthermore, State Officials can be sued for monetary damages in their individual capacity when they act under color of state law, see Hafer v. Melo, 502 U.S. 21, 25 (1991), even if they act in their official capacity. Id. at 27.
While it is true, as defendants allege, that the Eleventh Amendment protects them from monetary damages in their official capacity, it does not preclude Lopez from seeking monetary damages from defendants in their personal or individual capacity. The Eleventh Amendment obligates the Court to dismiss claims seeking monetary damages from defendants in their official capacity. Claims seeking injunctive relief and claims seeking damages from defendants in their personal capacity, however, can still be maintained. For that reason, claims seeking monetary damages from defendants in their official capacity must be dismissed.
3. Defendants cannot be sued under the theory of respondeat superior .
Under the doctrine of respondeat superior, a master is liable for the wrongful acts of his servant in the course and scope of his employment.Burger Chef Systems, Inc. v. Govro, 407 F.2d 921, 925 (8th Cir. 1969). In § 1983 actions, however, respondeat superior is not sufficient to impose supervisor liability. See Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 279 (1st Cir. 2000); Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994). A supervisor may be found liable only on the basis of his or her own acts or omissions. Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir. 1989).
With regard to the Secretary, Lopez has failed to proffer sufficient evidence of an "affirmative link" between the Secretary and Gelabert's actions. See Figueroa-Torres v. Toledo-Davila, supra at 279. The only allegations against the Secretary are in his capacity as Gelabert's supervisor and not in relation to any of his own acts or omissions. Because respondeat superior is not sufficient to impose supervisor liability in § 1983 claims, all claims against the Secretary in his personal capacity are also dismissed. See Bowen v. City of Manchester, 966 F.2d 13, 20 (1st Cir. 1992).
Gelabert, however, is not being sued under this doctrine. Gelabert is being sued "for her actions in discriminating, under color of State authority, against Plaintiff for political reasons." (Docket No. 20 at 3). Therefore, defendants' argument of respondeat superior does not justify a dismissal of Lopez's claims against Gelabert in her individual capacity.
4. There is no causal relationship between Gelabert's actions and Lopez's allegations of civil rights violations .
Defendants argue that plaintiff has failed to proffer sufficient evidence of a causal relationship between his political affiliation and the adverse employment actions allegedly taken against him. This Court has held that,
In order to state a valid claim under 42 U.S.C. § 1983 Plaintiff must allege and prove the following elements: (1) that the conduct complained of was committed by a person acting "under color of state law"; (2) that this conduct "deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States"; and (3) that the defendant was personally and directly involved in causing the violation of the plaintiff's federally protected rights. This third element requires a showing of a causal connection between the specific defendant and plaintiff's federal rights deprivation. This may consist of direct acts by the defendant, certain acts performed at defendant's direction, or knowledge and consent.Rodriguez-Vazquez v. Cintron-Rodriguez, 160 F. Supp.2d 204, 209 (D.P.R. 2001) (citations omitted). The first and third factors are met. Lopez alleges that, Gelabert, acting in her State Official capacity, through her own actions or omissions in this case her failure to assign him duties caused the deprivation of his civil rights.
Defendants take issue with the second factor. Defendants rely onRodriguez-Rios v. Cordero, 138 F.3d 22 (1st Cir. 1998), to state that "[i]n political discrimination cases, non-policymaking employees have the threshold burden to produce sufficient direct or circumstantial evidence from which a rational jury could find that political affiliation was a substantial or motivating factor behind the adverse employment action." Id. at 24. Defendants have, however, conveniently ignored that in that opinion the First Circuit also states that,
Although a highly charged political atmosphere alone cannot support an inference of discriminatory animus, "`[a] highly charged political atmosphere' . . . coupled with the fact that plaintiffs and defendants are of competing political persuasions, may be probative of discriminatory animus." Thus, unlike in Correa-Martinez, but just as noted in Acevedo-Diaz, here "[a] jury reasonably could have concluded that [plaintiff] . . . [was a] conspicuous target for political discrimination." Therefore, even standing alone such circumstantial evidence "would give us serious pause."Id. (citations omitted) (alterations in the original). The shift in power from one party to another, as happened in Puerto Rico in 1992, has been known to create a highly charged political atmosphere. See Pagan-Cuebas v. Vera-Monroig, 91 F. Supp.2d 464, 473 (D.P.R. 2000); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264 (1st Cir. 1987). Although Lopez's claims arise from acts committed after 1997, the record shows that his problems at the DE began in 1994, only a year after the New Progressive Party ("NPP") took over the government. That the parties in this action are members of opposing political parties is not in controversy.
Following the First Circuit's line of reasoning in Rodriguez-Rios, we find that, because of the highly charged political atmosphere prevalent in Puerto Rico and the fact that Lopez and Gelabert are known and active members of opposing political parties, Lopez has stated a prima facie case of political discrimination. Given the allegations, a reasonable jury could conclude that Lopez was a target for discrimination. "At that point the employer must articulate a nondiscriminatory basis for the adverse employment action and prove by a preponderance of the evidence that it would have been taken without regard to plaintiff's political affiliation." Rodriguez-Rios v. Cordero, supra. at 24. We find that defendants have also met their burden.
Defendants point out that Lopez was left without duties because of a reorganization within the DE. Lopez was a DE career employee assigned to a Legal Division which was under contract with the DE. He was left without duties only after the contract was not renewed in 1994. The record also shows that Lopez was offered, and he rejected, several other positions outside the Mayaguez Regional Office. At least one of the positions offered to Lopez was as Administrative Auxiliary III, which is commensurate with his previous position as Executive Official V.
The burden now shifts back to Lopez to demonstrate by competent evidence that defendants' non-discriminatory reason constitutes a mere pretext for discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Minimally sufficient evidence of pretext will not suffice and evidence that reasonably supports a finding of discriminatory animus is required. See Goldman v. First Nat. Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993); Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 720 (1st Cir. 1994).
Lopez alleges that several positions within the scope of his classification were available within the Mayaguez Regional Office, but they were given to lesser ranking staff who wore insignia on their clothes identifying them as members of the NPP. He further alleges that Gelabert "has in effect admitted her bias against the Plaintiff." (Docket No. 20 at 8). These allegations, if true, could constitute sufficient evidence that defendants' nondiscriminatory reason is a pretext. But without specific reference to the record as required by Local Rule 311.12, they are mere allegations or arguments of counsel that cannot be considered by the Court in a summary judgment context. See Cosme Rosado v. Serrano Rodriguez, Civil No. 98-1491, 2002 WL 471844, at *4 (D.P.R. March 21, 2002).
This circuit has held that when a defendant employer has provided "specific non-discriminatory reasons" for a dismissal, then a plaintiff must address "those reasons and show, by a preponderance of the evidence, that they were most probably not the actual reasons."
Menzel states that if an employer alleges general inadequacy in job performance, then proof of outstanding job performance may be sufficient to rebut the articulated reasons; but if plaintiff's rebuttal evidence fails to address specific reasons advanced, then summary judgment is appropriate for defendant since no material facts remain in dispute.Escobar v. Office of Disabled Persons Investigating Official, 797 F. Supp. 70, 76 (D.P.R. 1992) (citing Menzel v. Western Auto Supply Company, 848 F.2d 327, 329 (1st Cir. 1988)). Because Lopez failed to proffer sufficient evidence to demonstrate that Gelabert's nondiscriminatory reason is a mere pretext, the claims against Gelabert are also dismissed.
CONCLUSION
For the foregoing reasons, defendants' motion is GRANTED. All claims are dismissed with prejudice. Judgment shall be entered accordingly.
JUDGMENT
Based on the Opinion and Order issued on this date, the Court hereby enters judgment dismissing all claims against defendants with prejudice.
This case is now closed for statistical purposes.