Morales-Torrens v. Consorcio del Noroeste, et al, No. 3:2009cv01413 - Document 96 (D.P.R. 2010)

Court Description: OPINION AND ORDER granting 71 motion for summary judgment. Signed by Judge Gustavo A. Gelpi on 12/15/10. (AH)

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Morales-Torrens v. Consorcio del Noroeste, et al Doc. 96 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO 3 4 5 GILBERTO MORALES-TORRENS, Plaintiff, 6 7 8 v. Civil No. 09-1413 (GAG) CONSORCIO DEL NORESTE, et al., Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 OPINION AND ORDER Plaintiff, Gilberto Morales-Torrens ( Plaintiff ), commenced this action against the Consorcio del Noreste ( Consorcio ) and its Executive Director Carlos Rodriguez-Rivera ( Rodriguez-Rivera ) (collectively, Defendants ) in their official and personal capacities. Plaintiff brings this action pursuant to 42 U.S.C. Section 1983 alleging violations of the First, Fifth, and Fourteenth Amendment to the United States Constitution. Plaintiff also brings state claims alleging violations of Puerto Rico Law 115 of December 20, 1991, P.R. Laws Ann. tit 29, §194(a); Puerto Rico Law 45 of April 18, 1935, P.R. Laws Ann. tit 11, § 7; and Articles 1802 and 1803 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, §§ 5141-5142. Presently before the court is Defendants motion for summary judgment (Docket No. 71). Plaintiff opposed this motion (Docket No. 77). By leave of the court, Defendants filed a reply brief (Docket No. 92) which Plaintiff opposed by sur-reply (Docket No. 95). After reviewing these submissions and the pertinent law, the court GRANTS Defendants motion at Docket No. 71. I. Standard of Review Summary judgment is appropriate when 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 a judgment as a matter of law. Fed.R.Civ.P. 56©; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 28 Dockets.Justia.com 1 Civil No. 09-1413 (GAG) 2 genuine if it may reasonably be resolved in favor of either party at trial, and material if it 3 possess[es] the capacity to sway the outcome of the litigation under the applicable law. Iverson 4 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (citations omitted). The 5 moving party bears the initial burden of demonstrating the lack of evidence to support the non- 6 moving party s case. Celotex, 477 U.S. at 325. The movant must aver an absence of evidence to 7 support the nonmoving party s case. The burden then shifts to the nonmovant to establish the 8 existence of at least one fact issue which is both genuine and material. Maldonado-Denis v. 9 Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmoving party must then set forth 10 specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). If the court finds 11 that some genuine factual issue remains, the resolution of which could affect the outcome of the 12 case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 13 242, 248 (1986). 2 14 When considering a motion for summary judgment, the court must view the evidence in the 15 light most favorable to the non-moving party and give that party the benefit of any and all reasonable 16 inferences. Id. at 255. Moreover, at the summary judgment stage, the court does not make 17 credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, 18 however, if the non-moving party s case rests merely upon conclusory allegations, improbable 19 inferences, and unsupported speculation. Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 20 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)). 21 II. Relevant Factual & Procedural Background 22 The Consorcio del Noreste is a government entity with the capacity to sue and be sued. (See 23 Docket No. 28-2 ¶ 4.) The Consorcio receives federal funds under the Work Investment Act 24 ( WIA ) to train, provide services and mentoring programs to increase Puerto Rico s workforce. 25 (See Docket No. 71-1 ¶ 1.) Plaintiff Morales-Torrens began working for the Consorcio on August 26 13, 2001 as a regular employee in the position of Assistant Counselor at the main offices of the 27 Consorcio. (See Docket No. 71-1 ¶ 2.) During his employment and prior to January 2005, Plaintiff 28 held various trust positions as Director and Interim Director, as well as career positions as Sub 1 Civil No. 09-1413 (GAG) 2 Director. (See Docket No. 71-1 ¶ 3.) In 2003, by recommendation of New Progressive Party 3 ( NPP ) member and then Mayor of RÃo Grande, Hon. Emilio Rosa Pacheco, Plaintiff was appointed 4 Director of the Local Office of RÃo Grande. (See Docket No. 71-1 ¶ 4.) The position of Director 5 of the Local Office of RÃo Grande was a trust position appointment. (See Docket No. 71-1 ¶ 5.) As 6 such, Plaintiff was aware that the Executive Director of the Consorcio could remove him at any point 7 in time for any reason. Id. The Executive Director that appointed Plaintiff as Director was Carlos 8 Juan Mendez, an NPP activist. (See Docket No. 71-1 ¶ 7.) Plaintiff held the position of Director 9 until 2004. (See Docket No. 71-1 ¶ 8.) 3 10 In the year 2000, Plaintiff worked in the NPP primaries as an election poll watcher for the 11 mayoral candidacy of Mr. Emilio Rosa Pacheco. (See Docket No. 71-1 ¶ 22.) Plaintiff also worked 12 as an election poll watcher for the NPP in the 2000 general elections. (See Docket No. 71-1 ¶ 23.) 13 In 2004, Plaintiff worked in the advance motorcade, avanzandas, for Carlos Juan Mendez, a NPP 14 candidate for District 36 Representative. (See Docket No. 71-1 ¶ 24.) Part of his duties as a member 15 of the avanzadas was to distribute political propaganda for the NPP. Id. During the avanzadas, 16 Plaintiff spent time with Rodriguez-Rivera and other Consorcio co-workers. (See Docket No. 71-1 17 ¶ 25.) Plaintiff worked as a poll watcher for gubernatorial candidate Luis FortuÃ±o in the 2008 NPP 18 primaries. (See Docket No. 71-1 ¶ 26.) Plaintiff voted in these primaries. Id. 19 Co-defendant Rodriguez-Rivera became the Executive Director of the Consorcio in January 20 2005. (See Docket No. 71-1 ¶ 9.) Between February and March of that year, Rodriguez-Rivera 21 interviewed and appointed Plaintiff to the trust position of Director of Participant Services. Id. On 22 October 24, 2007, Plaintiff was notified by the Director of Human Resources, Mrs. Ivette Fuentes, 23 that he had been transferred from his trust position to a career position. (See Docket No. 71-1 ¶ 19; 24 see also Docket No. 71-2 at 27, l. 21-25). Plaintiff subsequently filed complaints against Defendants 25 in Puerto Rico Court of First Instance and in the United States District Court for the District of 26 Puerto Rico on October 31, 2008 and May 7, 2009, respectively. (See Docket Nos. 88-14, 1.) 27 28 On May 18, 2009, Rodriguez-Rivera notified Plaintiff by letter of disciplinary proceedings 1 Civil No. 09-1413 (GAG) 2 against him and the intention of termination. (See Docket Nos. 71-20; 28-2 ¶ 26(f)). On June 3, 3 2009, Plaintiff received a second letter notifying him of his dismissal. (See Docket No. 77-13.) 4 Plaintiff was notified through a third letter, dated June 11th, 2009 that he had been reinstated in his 5 position while an informal hearing took place. 6 administrative hearing, Plaintiff was notified of his ultimate dismissal from the Consorcio. (See 7 Docket No. 71-21.) 8 III. 9 4 (See Docket No. 77-14.) Following an Legal Analysis A. Section 1983 Claim 10 Plaintiffs bring claims under 42 U.S.C. Section 1983 alleging violations of the First, Fifth 11 and Fourteenth Amendments to the United States Constitution. Section 1983 creates a remedy for 12 those who are deprived of the rights, privileges, or immunities granted to them by the Constitution 13 or laws of the United States. See Rodriguez Garcia v. Municipality of Caguas, 354 F.3d 91, 99 (1st 14 Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979). To succeed on a Section 1983 15 claim, plaintiffs must prove that someone has deprived them of a right protected by the Constitution 16 or the laws of the United States and the perpetrator acted under color of state law. Cruz-Erazo v. 17 Rivera-MontaÃ±ez, 212 F.3d 617, 621 (1st Cir. 2000). 18 1. First Amendment Political Discrimination 19 The First Amendment protects non policymaking public employees from adverse 20 employment actions based on their political opinion. See Rutan v. Republican Party of Ill., 497 U.S. 21 62, 75-76 (1990); Padilla-Garcia v. Guillermo Rodriguez, 212 F. 3d 69, 74 (1st Cir. 2000). A prima 22 facie case of political discrimination requires evidence that (1) the plaintiff and the defendant belong 23 to opposing political affiliations; (2) the defendant has knowledge of the plaintiff s opposing political 24 affiliation; (3) a challenged employment action occurred; and (4) political affiliation was a 25 substantial or motivating factor behind the challenged employment action. See Martinez-Velez v. 26 Rey-Hernandez, 506 F.3d 32, 39 (1st Cir. 2007); Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st 27 Cir. 2006). Plaintiff must point to evidence on the record which, if credited, would permit a 28 1 Civil No. 09-1413 (GAG) 2 rational fact finder to conclude that the challenged personnel action occurred and stemmed from a 3 politically based discriminatory animus. Gonzalez-de-Blasini v. Family Dept., 377 F.3d 81, 85 (1st 4 Cir. 2004) (quoting LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir. 1996)). Additionally, the plaintiff 5 must make a fact-specific showing that a causal connection exists between the adverse treatment 6 and the plaintiff s political affiliation. Aviles-Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992) 7 (citing Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 58 (1st Cir. 1990)). 5 8 If the plaintiff proves his prima facie case, the burden shifts to the defendant to articulate a 9 nondiscriminatory ground for the adverse employment action and establish, by a preponderance of 10 the evidence, that the same action would have been taken regardless of the plaintiff s political beliefs 11 ( Mt. Healthy Defense ). Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 12 (1977). In response, the plaintiff may discredit the proffered nondiscriminatory reason, either 13 circumstantially or directly, by adducing evidence that discrimination was more likely than not a 14 motivating factor. Padilla-Garcia, 212 F.3d at 77 (internal citations omitted). In the end, 15 [s]ummary judgment is warranted only if defendants evidentiary proffer compelled the finding 16 that political discrimination did not constitute a but for cause for the adverse employment action. 17 Mendez-Aponte v. Puerto Rico, 656 F. Supp. 2d 277, 285 (D.P.R. 2009) (quoting Jirau-Bernal v. 18 Agrait, 37 F.3d 1, 4 (1st Cir. 1994)). 19 In their motion for summary judgment, Defendants contend that Plaintiff has failed to 20 establish a prima facie case of political discrimination. (See Docket No. 71 at 2.) They argue that 21 Plaintiff s claim for political discrimination is not supported by the facts. (See Docket No. 71 at 5 22 ¶ 2.) Specifically, Defendants aver that Plaintiff has failed as to the first and second element of a 23 prima facie political discrimination claim. Id. 24 With respect to the first element of a prima facie political discrimination claim, Defendants 25 argue that Plaintiff and Defendants do not belong to opposing political affiliations. They claim that 26 Plaintiff was a well known member of [the NPP,] the same party of the nominating authority and 27 co-defendant . . . Rodriguez-Rivera. (See Docket No. 71 at 5 ¶ 2.) Plaintiff alleges that he was 28 politically discriminated against because he supported the PDP Mayor of Rio Grande. (See Docket 1 Civil No. 09-1413 (GAG) 2 No. 77 at 2.) Without any evidence or allegation that Plaintiff belonged to an opposing political 3 affiliation, a reasonable fact-finder could not conclude that Plaintiff met his burden of establishing 4 a prima facie case of political discrimination.1 See Pica-Hernandez v. Irizarry Pagan, 671 F. Supp. 5 2d 289, 296 (D.P.R. 2009). 6 6 Even assuming that Plaintiff was able to meet the first prong of a prima facie case, he would 7 not fare better on the second prong. The second prong of a prima facie case of political 8 discrimination requires Plaintiff to show that Defendants had knowledge of his opposing political 9 affiliation. Plaintiff attempts to establish this through the submission of deposition testimony. In 10 his deposition (Docket No. 71-4), Plaintiff contends that he had repeatedly told [Rodriguez-Rivera] 11 . . . how well the Major [sic] of RÃo Grande was doing . . . and [that] [the mayor] was a member of 12 the [PDP]. (See Docket No. 71-4 at 4.) 13 The First Circuit has established that knowledge of political affiliation cannot be based on 14 testimony of having been seen, or . . . met during routine campaign activity participation, having 15 been visited by the now incumbent defendant while said defendant was a candidate to the position 16 he now holds, by having held a trust/confidential/policymaking position in the outgoing 17 administration, by having political propaganda adhered to plaintiff s car and/or house, or through 18 the knowledge of third parties. Roman v. Delgado-Altieri, 390 F. Supp. 2d 94, 103 (D.P.R. 2005). 19 After examining the arguments and evidence, the court finds that Plaintiff has failed to 20 present sufficient evidence, which would permit a reasonable jury to conclude that Defendants were 21 aware of his opposing political affiliation. Morever, throughout his employment with the Consorcio, 22 the record shows that Plaintiff was identified by Defendants as a member of the NPP, and not the 23 PDP. Plaintiff was appointed to the trust position of Director of the Local Office of RÃo Grande by 24 recommendation of an NPP mayor. (See Docket No. 71-1 ¶¶ 4-5.) The Executive Director that 25 appointed him was an NPP activist. (See Docket No. 71-1 ¶ 8.) In 2000, Plaintiff worked as an 26 27 28 1 The court notes that Plaintiff s Complaint (Docket No. 1) and Amended Complaint (Docket No. 28-2) contain no allegation of Plaintiff s political affiliation. 1 Civil No. 09-1413 (GAG) 2 election poll watcher in the NPP mayoral primaries of RÃo Grande. (See Docket No. 71-1 ¶ 22.) 3 That same year, he worked as an election poll watcher for the NPP in the general elections. (See 4 Docket No. 71-1 ¶ 23.) In 2004, Plaintiff worked in the avanzadas for a NPP candidate and 5 distributed political propaganda for the NPP as part of his duties. (See Docket No. 71-1 ¶¶ 24.) 6 During his time as part of the avanzadas, Plaintiff spent time with co-defendant Rodriguez-Rivera 7 and other Consorcio co-workers.2 (See Docket No. 71-1 ¶ 25.) Plaintiff also worked as a poll 8 watcher for gubernatorial candidate Luis FortuÃ±o and voted in the 2008 NPP primaries. (See Docket 9 No. 71-1 ¶ 26.) Plaintiff admitted he was a member of the NPP at the end of the year 2007 and the 10 beginning of 2008. (See Docket No. 71-1 ¶ 27.) Based on this evidence a reasonable fact finder 11 could not conclude that Defendants had knowledge of Plaintiff s PDP affiliation. A prima facie 12 case is not made out when there is no evidence that an actor was even aware of the plaintiff s 13 political affiliation. Hatfield-Bermudez v. Aldanondo-Rivera, 496 F. 3d 51, 61 (1st Cir. 2007). 14 Thus, Plaintiff fails to establish the second prong of the prima facie case of political discrimination 15 for purposes of this motion. 7 16 Because Plaintiff has failed to present sufficient evidence demonstrating that he and 17 Defendants were from opposing political affiliations, moreover that Defendants were aware of 18 Plaintiff s political affiliation, the court cannot find that Plaintiff s evidence establishes a prima facie 19 case of political discrimination under the First Amendment. Accordingly, Defendants are entitled 20 to summary judgment on Plaintiff s First Amendment Section 1983 claims for political 21 discrimination. The court GRANTS Defendants motion on these grounds and hereby DISMISSES 22 Plaintiff s First Amendment claims. 23 2. First Amendment Retaliation claim 24 Plaintiff claims that Defendants retaliated against him for his testimony in hearings before 25 an investigative body and for filing complaints before the Puerto Rico Court of First Instance and 26 27 28 2 Defendants exhibit 15 contains several photographs of Plaintiff in an NPP activity with former NPP Governor Pedro RossellÃ³ and co-defendant Rodriguez-Rivera. (See Docket No. 71-16.) 1 Civil No. 09-1413 (GAG) 2 the U.S. District Court by definitely discharg[ing] [him] from his position. (See Docket No. 28-2 3 at 7 ¶¶ 27-28.) In doing so, Plaintiff alleges, Defendants violated the First Amendment. In Mt. 4 Healthy City School District Board of Education v. Doyle, the Supreme Court established that to 5 prevail on a free speech claim, a plaintiff must show that he engaged in constitutionally protected 6 conduct and that this conduct was a substantial or motivating factor in the alleged adverse 7 employment action. Welch v. Ciampa, 542 F.3d 927, 936 (1st Cir. 2008) (citing Mt. Healthy City 8 Sch. Dist. Bd. of Educ., 429 U.S. at 287). If the plaintiff meets his prima facie burden, the 9 defendant can prevail if it can establish that it would have taken the same action regardless of the 10 plaintiff s . . . protected conduct. Id. (citing Padilla-Garcia, 212 F.3d at 74.) The court will first 11 address whether the alleged retaliation provides a basis for a Section 1983 claim. 8 12 To establish a First Amendment violation, a public employee must demonstrate that he or 13 she has suffered an adverse employment action for exercising her right to free speech. See Gagliardi 14 v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). A discharge, a demotion, or a failure to promote are 15 employment actions which have an adverse impact on the employee. See Welsh v. Derwinski, 14 16 F.3d 85, 86 (1st Cir. 1994) (citing Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1994)). 17 Accordingly, Plaintiff s termination constitutes an adverse employment action sufficient to support 18 a Section 1983 claim. The court now addresses whether Plaintiff adduced sufficient evidence in 19 support of his claim to survive summary judgment. 20 Public employees do not forfeit their First Amendment rights to speak on matters of public 21 concern simply because they are public employees. Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 22 2007). [T]he First Amendment protects a public employee s right, in certain circumstances, to 23 speak as a citizen addressing matters of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417 24 (2006). A determination must be made to ensure that the conduct at issue falls within the ambit of 25 the First Amendment. A public employee alleging that his employer has violated his First 26 Amendment right to free speech must satisfy a three-part test. See Welch, 542 F.3d at 938. First, 27 the plaintiff must establish that he spoke as a citizen on a matter of public concern. Id. (citing 28 Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir. 2008)). Then he must show that balanced against 9 1 Civil No. 09-1413 (GAG) 2 each other, the plaintiff s and the public s First Amendment interests outweigh the government s 3 interest in functioning efficiently. See Jordan v. Carter, 428 F.3d 67, 72 (1st Cir. 2005). Finally, the 4 plaintiff must show that the protected speech was a substantial or motivating factor in the adverse 5 employment action against him. Id. 6 To establish whether Plaintiff s speech is protected by the First Amendment, the court must 7 determine whether Plaintiff was both speaking as a citizen and speaking on a matter of public 8 concern. Foley v. Town of Randolph, 598 F.3d 1, 5 (1st Cir. 2010). If the answer to either of 9 these sub-parts is no, then he has no First Amendment claim based on the Defendants action in 10 relation to his speech. Id. (citing Garcetti, 547 U.S. at 418). 11 Plaintiff was summoned to give testimony in an investigation being conducted by the 12 Executive Director of the Development Council, an organism that oversees the WIA administering 13 Consorcios, on suspected irregularities. (See Docket No. 28-2 ¶ 23.) According to Plaintiff he 14 testified as a citizen regarding illegal acts that [Rodriguez-Rivera] was making at the Consorcio 15 and verbalized some situations about things he understood were irregular that could affects [sic] the 16 WIA funds. (See Docket No. 77-1 ¶ 43.) Defendants contend that [b]ecause Plaintiff was 17 summoned to give that testimony within the purview of his position, he was not speaking as a citizen 18 . . . but rather as an employee fulfilling the duties of his position. (See Docket No. 71 at 20.) An 19 employee s speech retains some possibility of First Amendment protection when it is the kind of 20 activity engaged in by citizens who do not work for the government. Id. at 6 (citing Garcetti, 547 21 U.S. at 423). 22 Plaintiff has failed to establish that he was speaking as a citizen when he gave his testimony 23 in the investigation on irregularities under Rodriguez-Rivera s administration of the Consorcio. (See 24 Docket No. 28-2 ¶ 23.) Plaintiff admits that he never presented a complaint with the Development 25 Council. (See Docket No. 71-1 ¶ 71.) He admits that he appeared before the Development Council 26 because he was summoned to give testimony in an investigation. Id. 27 know what the investigation was about. (See Docket No. 77-1 ¶ 75.) 28 Plaintiff admits he did not The court finds that because Plaintiff was summoned to give testimony as an employee of 10 1 Civil No. 09-1413 (GAG) 2 the Consorcio under the administration of Rodriguez-Rivera rather than a private citizen, this was 3 not protected speech in the context of the First Amendment. 4 With regards to Plaintiff s commonwealth court complaint (Docket No. 88-14) and the 5 original District Court complaint (Docket No. 1), the court s conclusion is the same. As earlier noted 6 by the court, for speech to be protected under the First Amendment, plaintiff must have: (1) spoken 7 as a citizen (2) on a matter of public concern. See Welch, 542 F.3d at 938. As both of these 8 elements are necessary, see Foley, 598 F.3d at 5, failure to establish one is dispositive of the issue. 9 Therefore, the court will address whether Plaintiff s speech touched upon matters of public concern. 10 Whether an employee s speech addresses a matter of public concern must be determined by 11 the content, form, and context of a given statement, as revealed by the whole record. Rosado 12 QuiÃ±ones v. Toledo, 528 F.3d 1, 5 (quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983)). 13 That determination may require an inquiry into the employee s motive for the speech. Mullin v. 14 Town of Fairhaven, 284 F.3d 31, 38 (1st Cir. 2002). 15 Plaintiff contends that his complaints denounce the illegal participation of unqualified 16 persons based upon political affiliation in federally funded programs and the illegal use of 17 government property. (See Docket No. 77 at 14.) Plaintiff claims that [t]he proper use and 18 expenditure of federal funds and property is a matter of public concern. Id. Defendants contend 19 that if Plaintiff s allegations can be deemed speech in light of the First Amendment . . . Plaintiff 20 spoke on issues related to the operation of the office while he was a trust employee . . . and therefore 21 is not entitled to First Amendment protection. (See Docket No. 71 at 20.) 22 Plaintiff s commonwealth court complaint (Docket No. 88-14) and the original District Court 23 complaint before the District Court (Docket No. 1) include the same claims.3 The complaints are 24 charged with implications of personal animosity towards him by Consorcio personnel, but they do 25 not touch upon matters of inherent public concern in the context of providing services such as 26 27 28 3 Plaintiff attests to this in his opposition to motion for summary judgment (see Docket No. 77-1 ¶ 49) and the court has examined both complaints. 11 1 Civil No. 09-1413 (GAG) 2 administering WIA funds. Plaintiff s claims of political discrimination and retaliation do not 3 implicate the ability of Consorcio personnel to carry out their responsibility to the public. See 4 Rosado QuiÃ±ones, 528 F.3d at 5. The Supreme Court held that: 7 [W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee s behavior. 8 Connick, 461 U.S. at 147. Plainly, there is no absolute First Amendment right to file lawsuits. 9 Rosado-QuiÃ±ones, 528 F.3d at 7 (citing Bill Johnson s Rests., Inc. v. NLRB, 461 U.S. 731, 743 10 (1983)). The First Circuit has found that a complaint alleging harassment by fellow employees and 11 a delay in the rearmament of a law enforcement officer was a a classic example of speech 12 concerning internal working conditions affecting only the speaker and co-workers. Rosado 13 QuiÃ±ones, 528 F.3d at 5. 5 6 14 In the present case, Plaintiff s complaints do not constitute speech on a matter of public 15 concern, and as such, he has not demonstrated a First Amendment free speech challenge. See 16 Rosado-QuiÃ±ones, 528 F.3d 1 (affirming that the content of a police officer s speech, in filing a 17 complaint, was not a matter of public concern, as required for allegedly retaliatory transfer to violate 18 officer s First Amendment rights). 19 Consequently, the court GRANTS Defendants motion for summary judgment as to 20 Plaintiff s retaliation claims. The Section 1983 claims asserted against Consorcio del Noreste and 21 Rodriguez-Rivera based on Plaintiff s First Amendment rights must be DISMISSED. 22 3. Fifth Amendment Claims 23 The Due Process Clause of the Fifth Amendment provides that [n]o personal shall . . . be 24 deprived of life, liberty, or property, without due process of law . . . . U.S. Const. amend. V. The 25 Fifth Amendment, however, applies only to actions of the federal government, not to actions of state 26 or local governments. Martinez-Rivera v. Sanchez-Ramos, 498 F.3d 3, 8 (1st Cir. 2007). 27 Plaintiff brings due process claims under the Fifth Amendment to the U.S. Constitution. 28 Defendants request that summary judgment be granted on said claims because the Fifth Amendment 12 1 Civil No. 09-1413 (GAG) 2 applies only to the actions of the federal government and Plaintiff s claims do not relate to the 3 federal government. (See Docket No. 71 at 22-23.) 4 In the actual case, Plaintiff s complaint is brought against state and not federal actors. 5 Plaintiff has failed to establish a Fifth Amendment claim. Accordingly, the court GRANTS 6 Defendants motion for summary judgment on Plaintiff s Fifth Amendment claim. 4. 7 Fourteenth Amendment Due Process Claims 8 The Due Process Clause of the Fourteenth Amendment provides that [n]o State shall . . . 9 deprive any person of life, liberty, or property, without due process of law . . . . U.S. Const. amend. 10 XIV. This due process guarantee has both procedural and substantive aspects. See Parker v. Hurley, 11 514 F.3d 87, 101 (1st Cir. 2008). Plaintiffs bring claims under both the procedural and substantive 12 due process requirements of the Fourteenth Amendment. a. 13 Procedural Due Process 14 To succeed on a procedural due process claim, Plaintiff must show that he was deprived of 15 a life, liberty, or property interest without the requisite minimum measure of procedural protection 16 warranted under the circumstances. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 32 (1st 17 Cir. 1996). Plaintiff argues that his procedural due process rights were violated because he was 18 deprived of the enjoyment of his employment as Director of Participant Services and later deprived 19 of his property interest when he was dismissed from his career position by Defendant. (See Docket 20 No. 28-1 at 1.) 21 A viable procedural due process claim must demonstrate a deprivation by state action of a 22 constitutionally protected interest in life, liberty, or property . . . without due process of law. 23 Hernandez-Agosto, 75 F.3d at 32 (citations omitted). The Due Process Clause of the Fourteenth 24 Amendment protects government employees who possess property interests in continued public 25 employment. Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005) (citing 26 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)). To determine whether public 27 employees possess such a property right, the First Circuit requires that the court examine local law 28 and the terms and conditions of the employment arrangement. Id. 1 Civil No. 09-1413 (GAG) 13 2 Puerto Rico law recognizes two categories of public employees: confidential or trust 3 employees and career employees. P.R. Laws Ann. tit. 3, § 1465; see also Morales-Santiago v. 4 Hernandez-Perez, 488 F.3d 465, 469 (1st Cir. 2007). Under Puerto Rico law, trust employees are 5 selected and removed at will. P.R. Laws Ann. tit. 3, §1465. [T]he holder of a trust position does 6 not have a constitutionally protected property interest in that position. Galloza v. Foy, 389 F.3d 26, 7 34 (1st Cir. 2004) (citing Ruiz-Roche v. Lausell, 848 F.2d 5, 7 (1st Cir.1988)). However, an 8 employee with regular status in the career service who moves to a trust position, shall have the 9 absolute right to be reinstated in a position equal or similar to the last job they held within the career 10 service. P.R. Laws Ann. tit. 3, § 1465(a). 11 It is not disputed in the present case that Plaintiff s position as Director of Participant 12 Services was a trust position. (See Docket No. 28-2 ¶ 8; see also Docket No. 71 at 27.) Having 13 no property right to continued employment in his position as a trust employee, Plaintiff is not entitled 14 to constitutional due process in the termination of his trust position. 15 Career employees, on the other hand, do have a property interest in their continued 16 employment under Puerto Rico law. Garnier v. Rodriguez, 506 F.3d 22, 27 (1st Cir. 2007) (citing 17 Gonzalez-de-Blasini, 377 F.3d at 86). Due process requires that prior to a deprivation of life, liberty, 18 or property the individual being deprived of said interest be given notice and an opportunity for a 19 hearing. See Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir. 1998) (citing Memphis Light, Gas 20 and Water Div. v. Craft, 436 U.S. 1, 19 (1978)). The root requirement is that an individual be 21 given an opportunity to be heard before he is deprived of any significant property interest. See 22 Loudermill, 470 U.S. at 542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)) 23 As it is undisputed that Plaintiff has a property interest in his career position, the court 24 addresses whether he received constitutionally adequate process in terminating his employment. 25 Due process requires only that the pre-termination hearing fulfill the purpose of an initial check 26 against mistaken decisions essentially, a determination of whether there are reasonable grounds to 27 believe that the charges against the employee are true and support the proposed action. Marrero- 28 Gutierrez v. Molina, 491 F.3d 1, 8 (2007) (quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 135 14 1 Civil No. 09-1413 (GAG) 2 (1st Cir. 2005)). This initial check requires the employee to receive notice of the charges, an 3 explanation of the evidence that supports those charges, and the ability to refute that evidence. Id. 4 Any standard that would require more process than this would unduly impede the government in 5 removing poorly performing employees. Id. 6 Plaintiff concedes in his amended complaint that on May 18, 2009, he received a letter 7 informing him of the Consorcio s intention to remove him from his position. The record shows that 8 on May 18, 2009, Plaintiff was notified by letter of disciplinary proceedings and intention of 9 termination. (See Docket No. 71-20; see also Docket No. 28-2 ¶ 26(f)). The letter informed Plaintiff 10 of the charges against him, mainly that he had violated the Consortium s Code of Ethics and Law 11 No. 12 of July 24, 1985, the evidence they had against him, and his right to request an [i]nformal 12 [a]dminstrative [h]earing before an examining officer within 15 days. (See Docket No. 71-20.) The 13 letter advised Plaintiff that he waived his right to a pre-termination hearing if he did not request one 14 within that time period. Id. 15 On June 3, 2009, Plaintiff was notified of his dismissal. As grounds, Rodriguez-Rivera cited 16 the fact that the 15 day period to request an informal hearing had expired and the Consorcio 17 understood his silence to be a waiver of the informal hearing. (See Docket No. 77-13.) In another 18 letter addressed to Plaintiff on June 11th, 2009, Rodriguez-Rivera explains that notwithstanding the 19 June 3rd letter, the Consorcio received a request for an informal hearing on June 5, 2009 through a 20 letter dated June 1, 2009.4 (See Docket No. 77-14.) In light of this, the Consorcio decided to grant 21 [Plaintiff] the opportunity to present [his] version of the facts regarding the charges mentioned in 22 the May 18th letter and reinstated Plaintiff to his position until the process of informal hearings 23 concluded and a final decision was made. (See Docket No. 77-14.) 24 An administrative hearing was held on June 18, 2009 and a resolution was issued by an 25 26 27 28 4 The letter requesting an informal hearing was addressed June 1, 2009, a day prior to the expiration of the 15 day period, but was received by the Consorcio on June 5, 2009. (See Docket No. 77-14.) 15 1 Civil No. 09-1413 (GAG) 2 examining officer. (See Docket No. 71-1 ¶ 51.) Plaintiff was represented by counsel in said hearing. 3 Id. After receiving and analyzing the report by the examining officer that presided over the hearing, 4 Rodriguez-Rivera notified Plaintiff of his termination through a letter. Id. The letter, dated July 1, 5 2009, informed Plaintiff of the reasons for his dismissal, including the norms and regulations he was 6 found to be in violation of, and of his right to appeal this decision within 30 days. (See Docket No. 7 71-21.) 8 In the instant case, Plaintiff was provided with notice of the charges brought against him 9 when he received the May 18th letter from Defendant Rodriguez-Rivera. (See Docket No. 71-20.) 10 The letter also informed him of his right to request an informal hearing. Id. Plaintiff requested and 11 was afforded an informal hearing. (See Docket No. 71-1 ¶ 51.) The record shows that the process 12 provided to Plaintiff was sufficient. See Calderon-Garnier v. Rodriguez, 578 F.3d 33 (1st Cir. 2009) 13 (finding that presenting the employee with notice of the charges and offering an informal hearing 14 once requested was sufficient). Therefore, the court finds that Plaintiff was provided with sufficient 15 process before terminating his employment. 16 In summary, the court finds that Plaintiff had a property interest in his career employment. 17 Notwithstanding Plaintiff s property interest, he was given sufficient process in the termination of 18 his career position. Accordingly, the court GRANTS Defendants motion for summary judgment 19 and DISMISSES Plaintiff s claim under the Due Process Clause. 20 b. Substantive Due Process 21 Defendants move for the dismissal of Plaintiff s substantive due process claim on grounds 22 that Plaintiff cannot seek relief under substantive due process because he seeks relief of a First 23 Amendment violation. (See Docket No. 71 at 23.) Substantive due process is an inappropriate 24 avenue of relief when the governmental conduct at issue is covered by a specific constitutional 25 provision. Pagan v. Calderon, 448 F.3d 16, 33 (1st Cir. 2006). It is the first Amendment, not the 26 Fourteenth Amendment, that guards individuals against state-sponsored acts of political 27 discrimination or retaliation. Id. at 33-34. 28 Plaintiff s substantive due process claims relate to his First Amendment political 16 1 Civil No. 09-1413 (GAG) 2 discrimination and retaliation claims. Because Plaintiff seeks relief pursuant to Section 1983 for a 3 First Amendment violation, he may not also seek relief under the more scarce and open ended 4 guideposts of substantive due process. Collins v. Harker Heights, 503 U.S. 115, 125 (1992). 5 Therefore, the court DISMISSES Plaintiff s substantive due process claim. 6 B. State Law Claims 7 As a general principle, the unfavorable disposition of a plaintiff s federal claims at the early 8 stages of a suit, well before the commencement of trial, will trigger the dismissal without prejudice 9 of any supplemental state-law claims. Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st 10 Cir. 1995). In cases where the federal claims are dismissed, the balance of factors to be considered 11 under the pendent jurisdiction doctrine judicial economy, convenience, fairness, and comity will 12 point toward declining to exercise jurisdiction over the remaining state-law claims. Id. The use of 13 supplemental jurisdiction in these circumstances is completely discretionary, and is determined on 14 a case-by-case basis. Id. As all of the federal claims by Plaintiff have been dismissed, the court, in its discretion, 15 16 DISMISSES, without prejudice, all state law claims brought by Plaintiff. 17 IV. 18 19 Conclusion For the foregoing reasons, the court GRANTS Defendants motion for summary judgment at Docket No. 71 and DISMISSES all claims before this court. 20 21 SO ORDERED 22 In San Juan, Puerto Rico this 15th day of December, 2010. 23 24 S/Gustavo A. GelpÃ 25 GUSTAVO A. GELPÃ 26 United States District Judge 27 28

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