Vazquez-Pagan v. Borges-Rodriguez et al, No. 3:2012cv01972 - Document 56 (D.P.R. 2014)

Court Description: OPINION AND ORDER granting in part and denying in part 32 motion for summary judgment. Signed by US Magistrate Judge Marcos E. Lopez on 9/23/2014. (MT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO DAMARIS A. VÃ ZQUEZ-PAGÃ N, et al., Plaintiffs, v. CIVIL NO.: 12-1972 (MEL) MIGUEL BORGES-RODRÃ GUEZ, et al., Defendants. OPINION AND ORDER I. PROCEDURAL HISTORY On November 30, 2012 Damaris A. VÃ¡zquez-PagÃ¡n ( VÃ¡zquez-PagÃ¡n ) filed a complaint on her own behalf and on behalf of her minor daughter, K.F.V. ( K.F.V. ), (collectively plaintiffs ) pursuant to 42 U.S.C. § 1983 against Miguel Borges-RodrÃguez ( BorgesRodrÃguez ) in his personal capacity and in his official capacity1 and Elin CintrÃ³n-GonzÃ¡lez2 ( CintrÃ³n-GonzÃ¡lez ) (collectively defendants ) alleging discrimination on the basis of her political affiliation in violation of the First Amendment and a supplemental tort claim pursuant to P.R. Laws Ann. tit. 31, § 5141 ( Article 1802 ). ECF No. 1. On February 18, 2014, defendants moved for summary judgment. ECF No. 32. Pending before the court are defendants motion for summary judgment, plaintiffs response in opposition, and defendants reply. ECF Nos. 32; 40; 1 The complaint clarifies that Borges-RodrÃguez has been sued in his official capacity solely for the purposes of prospective injunctive relief. ECF No. 1, ¶ 2.3. The sole injunctive relief which plaintiffs request is for an appointment to the Jayuya position that went to Arroyo or to a similar position that would reduce her daily commute in a similar manner. . . . Id. at ¶ 3.25. It is uncontested that VÃ¡zquez was eventually awarded the position in question, which she has occupied since August, 2013. In light of that fact, her prayer for injunctive relief is moot and all claims against Borges-RodrÃguez in his official capacity are dismissed. 2 The complaint does not indicate the capacity in which CintrÃ³n-GonzÃ¡lez has been sued. ECF No. 1. Counsel for CintrÃ³n-GonzÃ¡lez have appeared in representation of him in his individual capacity. ECF Nos. 6; 20; 26. However, to the extent, if at all, that any injunctive relief is requested against CintrÃ³n-GonzÃ¡lez in his official capacity, such claim is moot and is dismissed for the reasons discussed above with regard to Borges-RodrÃguez. 44. For the following reasons, defendants motion for summary judgment is granted in part and denied in part. II. UNCONTESTED FACTS The Puerto Rico Department of Education s (the Department of Education ) internal procedures to select school directors are governed by what are known as circular letters. ECF Nos. 32-1, ¶ 10; 40-1, ¶ 10. Circular Letter 9-2010-2011, dated October 5, 2010, delineates the Procedure for the Recruitment and Selection of the Directive, Technical, Supervisory and Facilitating Teaching Personnel. Id. Circular Letter 13-2010-2011 states the procedures for the interview, recommendation, and naming of candidates for various positions, one of which is the School Director position. ECF Nos. 32-1, ¶ 11; 40-1, ¶ 11. The procedure first requires the Secretary of Education, the Regional Director . . . or Associate Secretary, or to whomever it corresponds, [to] request from the Deputy Secretary of Human Resources the Certification of Eligible Candidates to cover the vacant job post, indicating the classification and number of the job post. ECF Nos. 32-1, ¶ 12; 40-1, ¶ 12. The Certification of Eligible Candidates contains a numerical score that considers various objective factors established by the Puerto Rico Department of Education central offices. ECF Nos. 32-1, ¶ 13; 40-1, ¶ 13. According to the procedure, the Deputy Secretary of Human Resources prepares the Certification of Eligible Candidates and sends the same to whomever it corresponds in the present case, BorgesRodrÃguez. ECF Nos. 32-1, ¶ 14; 40-1, ¶ 14. The selection procedure requires the composition of what is known as an Interview Committee, also referred to as an Evaluation Committee. ECF Nos. 32-1, ¶ 15; 40-1, ¶ 15. The Interview Committee formulates the questions that must be made at the interview and determines the strategy to be pursued at the interview. Id. The recommendations from the Interview 2 Committee are based upon several criteria considered by said committee, which include subjective factors. ECF Nos. 32-1, ¶ 16; 40-1, ¶ 16. For the School Director position, the Interview Committee must be composed of 3 individuals that represent: (1) the Regional Director; (2) a member of the School Council in representation of the parents; and (3) a member of the School Council in representation of the teachers. ECF Nos. 32-1, ¶ 17; 40-1, ¶ 17. Whenever an official from the Evaluation Committee cannot be present to the interview, a duly authorized representative will substitute this official. ECF Nos. 32-1, ¶ 18; 40-1, ¶ 18. A recommendation of candidates to the post is made by the Interview Committee, which can recommend up to 3 candidates to the Secretary of Education for final selection.3 ECF Nos. 32-1, ¶ 19; 40-1, ¶ 19. The Secretary of Education has the full discretion to adopt or reject the recommendations made by the Interview Committee.4 ECF Nos. 32-1, ¶ 21; 40-1, ¶ 21. In considering candidates for School Director positions, the Secretary of Education takes into account: (1) the Certification of Eligible Candidates; (2) a list of recommended candidates from the Interview Committee; and (3) any other factors the Secretary of Education values. ECF Nos. 32-1, ¶ 23; 40-1, ¶ 23. On January 26, 2011, VÃ¡zquez-PagÃ¡n sent a letter to Borges-RodrÃguez, the Regional Director of the Ponce Region of the Department of Education, requesting relocation from the Francisco Pietri ( Francisco Pietri ) School located in Adjuntas to the AgustÃn-Ortiz School in Jayuya ( AgustÃn-Ortiz ). ECF Nos. 32-1, ¶ 5; 40-1, ¶ 5. Plaintiffs reside in Jayuya and VÃ¡zquez-PagÃ¡n made the relocation request due to her daughter s cerebral palsy condition; she 3 Circular Letter 9-2010-2011, dated October 5, 2010 provides that the Interview Committee shall send its recommendations for the final selection to the Secretary of Education. ECF No. 47-6, at 15. It also states that [w]hen the recommendation of the Interviewing Committee is not made unanimously, any member of the same may submit an explanatory note that must reach the Secretary for consideration. Id. (emphasis added). 4 Circular Letter 9-2010-2011 also states [t]he Secretary shall select the candidate and will report it to the Assistant Secretariat of Human Resources. ECF No. 47-6, at 16. 3 wished to be closer to her daughter. ECF Nos. 32-1, ¶ 6; 40-1, ¶ 6. She understood that a vacancy for the School Director position was about to arise. Id. VÃ¡zquez-PagÃ¡n stated in the letter that she had been requesting to be relocated to Jayuya for the past 8 years, but that said requests were futile . . . even though she received the highest points during the interview processes. ECF Nos. 32-1, ¶ 7; 40-1, ¶ 7. On December 11, 2011, VÃ¡zquez-PagÃ¡n met with former Secretary of Education, Eduard Moreno, to discuss her relocation issue. ECF Nos. 32-1, ¶ 53; 40-1, ¶ 53. On April 9, 2012, VÃ¡zquez-PagÃ¡n made a second written request directed to BorgesRodrÃguez, again asking for relocation to AgustÃn-Ortiz because of her daughter s medical condition. ECF Nos. 32-1, ¶ 8; 40-1, ¶ 8. VÃ¡zquez-PagÃ¡n reiterated that she understood that a vacancy for the School Director position was about to arise. Id. On June 20, 2012, VÃ¡zquezPagÃ¡n made a written request pursuant to the Americans with Disabilities Act to former Governor Luis FortuÃ±o to be relocated from Francisco Pietri to AgustÃn-Ortiz. ECF Nos. 32-1, ¶ 9; 40-1, ¶ 9. Olga Arroyo-GarcÃa ( Arroyo-GarcÃa ) held position of the School Director at the San Patricio School in Jayuya, which she had occupied since 2010. ECF Nos. 32-1, ¶ 25; 40-1, ¶ 25. Arroyo-GarcÃa received a score of 56 on the Certification of Eligible Candidates and VÃ¡zquezPagÃ¡n received a score of 52. ECF Nos. 32-1, ¶ 26; 40-1, ¶ 26. Letters dated July 30, 2012 and signed by Borges-RodrÃguez were sent to various eligible candidates for the School Director positions at AgustÃn-Ortiz and the Josefina LeÃ³n Zayas School ( Josefina LeÃ³n Zayas ). ECF Nos. 32-1, ¶ 24; 40-1, ¶ 24. These letters were sent to VÃ¡zquez-PagÃ¡n and Arroyo-GarcÃa, among other candidates, and indicated the time and location of the interviews. Id. VÃ¡zquez-PagÃ¡n and Arroyo-GarcÃa were summoned for interviews for the School Director position at AgustÃn-Ortiz to be conducted on August 3, 2012. ECF Nos. 32-1, ¶ 29; 40-1, ¶ 29; ECF No. 47-8. 4 On August 15, 2012, VÃ¡zquez-PagÃ¡n challenged the nomination of Arroyo-GarcÃa to the Review Committee;5 her challenge was initially denied, on September 11, 2012. ECF Nos. 32-1, ¶ 27; 40-1, ¶ 27. The Review Committee s conclusion was based on the fact that VÃ¡zquez-PagÃ¡n challenged the placement of Arroyo-GarcÃa as School Director before Arroyo-GarcÃa was officially named to the position; the Review Committee found that VÃ¡zquez-PagÃ¡n should have waited for her appointment to officially occur before challenging the same. ECF Nos. 32-1, ¶ 28; 40-1, ¶ 28. On September 19, 2012, VÃ¡zquez-PagÃ¡n submitted another challenge to the August 3, 2012 interviews and selection of Arroyo-GarcÃa. ECF Nos. 32-1, ¶ 29; 40-1, ¶ 29. She based her challenge upon two factors: (1) that the evaluation committee was not duly composed, since the representative for the parents was not an authorized representative; and (2) that the notification of the date of the interview was not made 5 days prior to the date the interviews were held. Id. On December 6, 2012, the Review Committee recommended that the Secretary of Education rescind the appointment of Arroyo-GarcÃa as the AgustÃn-Ortiz School Director, agreeing with VÃ¡zquez-PagÃ¡n s challenge to the appointment. ECF Nos. 32-1, ¶ 30; 40-1, ¶ 30. The Review Committee also stated that Arroyo-GarcÃa should be removed from the post and reinstalled as School Director at the San Patricio School, where she previously worked. Id. The Recruitment Unit 6 at the Department of Education was instructed to reactivate Arroyo-GarcÃa to the Certification of Eligible Candidates, once she rescinded her position as School Director at AgustÃn-Ortiz. Id. After that date, the Recruitment Unit was required to emit a new Certification of Eligible Candidates to fill the School Director position at AgustÃn-Ortiz. Id. 5 The parties do not propose facts that define the Review Committee s role, functions, or composition; however, it is clear from the record that the Review Committee is distinct from the Interview Committee. While the uncontested facts refer to this committee as the Review Committee, certified translations in the summary judgment record translate its name in the Spanish language, ComitÃ© de Impugnaciones, as the Impeachment Committee . See e.g., ECF Nos. 47-12; 47-13; 47-22. 6 The parties do not propose facts that define the Recruitment Unit s role, functions, or composition. 5 Pursuant to the recommendations in the report, a new Certification of Eligible Candidates was issued on December 7, 2012, certifying the eligible candidates for AgustÃn-Ortiz and Josefina LeÃ³n Zayas. ECF Nos. 32-1, ¶ 32; 40-1, ¶ 32. The list was the same as the one provided for the August 3, 2012 interview, because the top 20 scores remained the same. Id. Accordingly, letters dated December 7, 2012, signed by Borges-RodrÃguez were sent to the individuals designated in the Certification of Eligible Candidates for the School Director positions at AgustÃn-OrtÃz and Josefina Leon Zayas. ECF Nos. 32-1, ¶ 33; 40-1, ¶ 33. These letters were sent to the VÃ¡zquez-PagÃ¡n and Arroyo-GarcÃa, among other candidates, and indicated the interviews times and locations. Id. On December 14, 2012, interviews and evaluations for the School Director position at AgustÃn-Ortiz were held, which both Arroyo-GarcÃa and VÃ¡zquez-PagÃ¡n attended. ECF Nos. 32-1, ¶ 34; 40-1, ¶ 34. Carlos Escobales-PÃ©rez ( Escobales-PÃ©rez ) served as the representative for the parents; Edwin Rivera served as the representative for the teachers; and CintrÃ³n-GonzÃ¡lez served as the representative of the Regional Director, Borges-RodrÃguez. ECF Nos. 32-1, ¶ 35; 40-1, ¶ 35. CintrÃ³n-GonzÃ¡lez gave Arroyo-GarcÃa a score of 100 and Escobales-PÃ©rez and RiveraOrtÃz both gave Arroyo-GarcÃa a score of 76, giving Arroyo-GarcÃa a total score of 176 out of 200.7 ECF Nos. 32-1, ¶ 36; 40-1, ¶ 36. CintrÃ³n-GonzÃ¡lez gave VÃ¡zquez-PagÃ¡n a score of 98 and Escobales-PÃ©rez and Rivera-OrtÃz both gave VÃ¡zquez-PagÃ¡n a score of 100, giving VÃ¡zquezPagÃ¡n a total score of 198 out of 200. ECF Nos. 32-1, ¶ 37; 40-1, ¶ 37. VÃ¡zquez-PagÃ¡n, ArroyoGarcÃa, and Luis Rivera-RodrÃguez were recommended to the Secretary of Education. ECF Nos. 7 The Candidate Evaluation Sheets completed by the members of the Interview Committee suggests that CintrÃ³nGonzÃ¡lez s evaluation was worth a maximum of 100 points and Escobales-PÃ©rez s and Rivera Ortiz s evaluations were worth a maximum of 100 points combined, as CintrÃ³n-GonzÃ¡lez signed evaluations worth a total of 100 points individually, while the other two members of the Interview Committee jointly signed a single evaluation worth a total of 100 points. ECF Nos. 47-18; 47-19. The parties have not cited to other evidence within the summary judgment record to clarify how the evaluations of the members of the Interview Committee are weighted. 6 32-1, ¶ 38; 40-1, ¶ 38. The recommendation sheet left the reasons for recommendation section blank. Id. The recommendation sheet contains the names, signatures, and positions of the members of the Interview Committee, and is also initialed by Borges-RodrÃguez. Id. Both the newly emitted Certification of Eligible Candidates and the Evaluation Committee s recommendations were forwarded to the central offices of the Department of Education for the Secretary of Education s evaluation. ECF Nos. 32-1, ¶ 39; 40-1, ¶ 39. On December 14, 2012 the same day the interviews were conducted Arroyo-GarcÃa was sent a letter indicating that the Interim Secretary of Education, Nilda OrtÃz-RodrÃguez, had selected her to occupy the job posting as School Director at AgustÃn-Ortiz, effective immediately. ECF Nos. 32-1, ¶ 40; 40-1, ¶ 40. VÃ¡zquez-PagÃ¡n challenged the results of the December 14, 2012 interviews. ECF Nos. 32-1, ¶ 41; 40-1, ¶ 41. The Review Committee agreed with VÃ¡zquez-PagÃ¡n s challenge and recommended several courses of action, which were: (a) to rescind Arroyo-GarcÃa from her position as School Director at AgustÃn-Ortiz; (b) to place Arroyo-GarcÃa at her old position as School Director at the San Patricio School; and (c) for the Human Resource Department to emit a Certification of Eligible Candidates in order to fill the School Director position at AgustÃnOrtiz with the same candidate list included in the Certification of Eligible Candidates used for the August 3, 2012 interviews. Id. Arroyo-GarcÃa occupied the School Director position at AgustÃn-Ortiz between January 2013 and May 2013 and was rescinded from her position at AgustÃn-Ortiz in May 2013. ECF Nos. 32-1, ¶¶ 42, 43; 40-1, ¶¶ 42, 43. VÃ¡zquez-PagÃ¡n has occupied the School Director position at the AgustÃn-Ortiz since August 2013. ECF Nos. 32-1, ¶¶ 2, 4; 40-1, ¶¶ 2, 4. The Secretary of Education at the time effectively placed her as the School Director at AgustÃn-Ortiz. ECF Nos. 32-1, ¶ 3; 40-1, ¶ 3. 7 Prior to occupying the School Director position at AgustÃn-Ortiz, she was the School Director at the Francisco Pietri School in Adjuntas. ECF Nos. 32-1, ¶ 4; 40-1, ¶ 4. At all times relevant to the facts alleged in the complaint, VÃ¡zquez-PagÃ¡n has occupied the position of School Director within the Department of Education, albeit at different schools; she did not suffer any salary loss during the relevant time period. Id. III. LEGAL STANDARD The purpose of summary judgment is to pierce the boilerplate of the pleadings and assay the parties proof in order to determine whether trial is actually required. Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). Summary judgment is granted when the record shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the litigation. Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting RodrÃguez-Rivera v. Federico Trilla Reg l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)). 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 the movant presents a properly focused motion averring an absence of evidence to support the nonmoving party s case[,] [t]he burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). For issues where the nonmoving party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific 8 facts in the record that demonstrate the existence of an authentic dispute. McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). The plaintiff need not, however, rely on uncontradicted evidence . . . . So long as the plaintiff s evidence is both cognizable and sufficiently strong to support a verdict in her favor, the factfinder must be allowed to determine which version of the facts is most compelling. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (emphasis in original). In assessing a motion for summary judgment, the court must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party s favor. Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood . . . . Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore conclusory allegations, improbable inferences, and unsupported speculation. Medina-MuÃ±oz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted). IV. LEGAL ANALYSIS A. Standing A cause of action under § 1983 may be brought by a person who has suffered the deprivation of constitutional or certain statutory rights by virtue of the conduct of state officials. Anaya Serbia v. Lausell, 646 F.Supp. 1236, 1244 (D.P.R. 1986) (citing GÃ³mez v. Toledo, 446 U.S. 635, 640 (1980)). It is the settled law of this Circuit that family members do not have standing to sue under § 1983 in their personal capacity. Reyes Vargas v. Rosello GonzÃ¡lez, 135 F.Supp.2d 305, 308 (D.P.R. 2001) (citing Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir. 1997), cert 9 denied, 522 U.S. 819 (1997)). Family members lack an independent cause of action under § 1983, unless the constitutionally defective conduct or omission was directed at the family relationship. Caraballo v. Puerto Rico, 990 F. Supp. 2d 165, 177 (D.P.R. 2014) (citations omitted); see also Robles-VÃ¡zquez v. GarcÃa, 110 F.3d 204, 206 n.4 (1st Cir. 1997). Such cases include two categories: (1) substantive due process claims to prevent governmental interference in private decisions, and (2) claims regarding a liberty interested in the rearing of young children. See Reyes Vargas, 135 F.Supp.2d at 308-09 (citing Pittsley v. Walsh, 927 F.2d 3, 8 (1st Cir. 1991); Valdivieso OrtÃz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986)). Private family decisions protected by the right to substantive due process include decisions regarding whether to procreate, whether to school one s children in religious as well as secular matters, and defining the defining the family with whom one chooses to live. Valdivieso OrtÃz, 807 F.2d at 8 (internal citations and quotation marks omitted). With respect to the second category of cases the Supreme Court has protected the parent only when the government directly acts to sever or otherwise affect his or her legal relationship with the child. Valdivieso OrtÃz, 807 F.2d at 8. State action that affects the parental relationship only incidentally . . . is not sufficient to establish a violation of an identified liberty interest. Reyes Vargas, 135 F.Supp.2d at 309; see also Valdivieso OrtÃz, 807 F.2d at 8-9 (internal citations and quotation marks omitted) (holding that stepfather and siblings lacked a cause of action under § 1983 to sue for the deprivation of the companionship because state action in question had only an incidental effect on the familial relationship where their adult son and brother was allegedly beaten by guard and dealt a fatal blow); Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990) (holding children could not sue pursuant to § 1983 for their grief and loss of companionship based on claim that their father had been deprived of the right to be free from cruel and unusual punishment under the Eighth 10 Amendment and has been deprived of life without due process of law in violation of the Fourteenth Amendment because [a]ny damage suffered by the parent s children is merely incidental . . . . ). The complaint alleges that K.F.V. has also suffered damages from defendants discriminatory actions, in the form of being deprived of the possibility of having her mother closer to home and thereby able to take better care of her. ECF No. 1, ¶ 3.23. Taking the allegation as true, it is not sufficient to establish that K.F.V. has standing pursuant to § 1983. Plaintiffs do not allege and have not brought any evidence to the court s attention to suggest that defendants have deprived K.F.V. of any constitutional or statutory rights, and the allegations in this case do not involve a protected substantive due process right or conduct directed at the familial relationship between VÃ¡zquez-PagÃ¡n and K.F.V. Although the summary judgment record indicates that defendants were aware that VÃ¡zquez-PagÃ¡n sought the School Director position at AgustÃn-Ortiz in order to be closer to her daughter, any effect on VÃ¡zquez-PagÃ¡n s relationship with and ability to care for K.F.V. is incidental to the alleged deprivation of the position as a result of political discrimination against her. Therefore, K.F.V. lacks standing to sue under § 1983 for violations of her mother s First Amendment rights and K.F.V. s first amendment political discrimination claim is dismissed with prejudice. B. First Amendment Political Discrimination8 The First Amendment to the United States Constitution embodies the right to be free from political discrimination. Barry v. Moran, 661 F.3d 696, 699 (1st Cir. 2011). The First Circuit Court of Appeals has held that that right prohibits government officials from taking adverse action against public employees on the basis of political affiliation, unless political 8 In light of the finding that K.F.V. lacks standing to bring a claim of political discrimination pursuant to §1983, the following sections applies only to VÃ¡zquez-PagÃ¡n s political discrimination claim. 11 loyalty is an appropriate requirement of the employment. Ocasio HernÃ¡ndez v. FortuÃ±o-Burset, 640 F.3d 1, 11 (1st Cir. 2011) (internal citations omitted). A prima facie case of political discrimination based on the First Amendment consists of four elements: (1) that the plaintiff and defendant have opposing political affiliations, (2) that the defendant is aware of the plaintiff's affiliation, (3) that an adverse employment action occurred, and (4) that political affiliation was a substantial or motivating factor for the adverse employment action. Lamboy Ortiz v. Ortiz VÃ©lez, 630 F.3d 228, 239 (1st Cir. 2010). Once made, the defendant may then rebut that showing with what is commonly referred to as the Mt. Healthy defense: by proving by a preponderance of the evidence that the governmental agency would have taken the same action, regardless of plaintiff s political affiliation. Reyes-PÃ©rez v. State Ins. Fund Corp., 755 F.3d 49, 54 (1st Cir. 2014) (citing DÃaz-Bigio v. Santini, 652 F.3d 45, 52 (1st Cir. 2011)). 1. Prima Facie Case i. Opposing Political Affiliations In their briefing in support of their motion for summary judgment, defendants do not explicitly contest whether VÃ¡zquez-PagÃ¡n and defendants have different political affiliations and are silent as to whether plaintiffs can establish this prong of a prima facie case. Similarly, VÃ¡zquez-PagÃ¡n opposition does not specifically assert that the parties have different political affiliations. The uncontested facts proposed by defendants are silent with regard to defendants political affiliations, and VÃ¡zquez-PagÃ¡n does not propose any additional facts regarding the same. In her deposition, VÃ¡zquez-PagÃ¡n stated: My whole family belongs to the Popular Democratic Party ( PDP ), we are an activist family. ECF No. 40-2, at 3: ll. 8-9. With regard to CintrÃ³n-GonzÃ¡lez, plaintiffs do submit deposition testimony from Escobales-PÃ©rez,9 in which 9 Although the proposed uncontested facts do not address this matter, the complaint alleges that [u]pon learning of Mrs. Arroyo s political maneuverings, VÃ¡zquez enlisted the help of Mr. Carlos Escobales, a local community leader 12 Escobales-PÃ©rez explains that he spoke with CintrÃ³n-GonzÃ¡lez regarding VÃ¡zquez-PagÃ¡n s request to transfer to AgustÃn-Ortiz and that CintrÃ³n-GonzÃ¡lez was not going to name someone from another party. ECF No. 40-1, at 5: ll. 19-20. Although the deposition testimony does not state the political party with which each side is affiliated, taken as true a reasonable inference can be drawn from the statement that VÃ¡zquez-PagÃ¡n and CintrÃ³n-GonzÃ¡lez have opposing political affiliations. With respect to Borges-RodrÃguez, however, VÃ¡zquez-PagÃ¡n does not cite to any evidence that directly indicates he was not a member of the PDP, or from which a rational inference can otherwise be made that he and VÃ¡zquez-PagÃ¡n have opposing political affiliations. However, because defendants do not argue that VÃ¡zquez-PagÃ¡n s claim should be dismissed against Borges-RodrÃguez on grounds of failure to meet the first prong of the prima facie standard, the court will proceed to analyze the remaining prongs with respect to both defendants. ii. Knowledge of Political Affiliation With regard to knowledge of VÃ¡zquez-PagÃ¡n s political affiliation, VÃ¡zquez-PagÃ¡n asserted in her deposition that that she told CintrÃ³n-GonzÃ¡lez she belongs to the PDP: Q: Did you ever personally over the phone [sic], in person speak to him regarding your political affiliation? A: No. He knew it through other person and then once asked me, and I told him yes, I am a member of the Popular Democratic Party personally. Q: Okay so you did personally talk to him regarding your political affiliation? A: Yes, because he asked me and I told him yes, I belong to the Popular Democratic Party. Q: Could you please tell me what exactly was spoken between you and Mr. Elin CintrÃ³n-GonzÃ¡lez? and radio personality to inquire about the matter. ECF No. 1, ¶ 3.11. It continues, Mr. Escobales obtained personal knowledge that co-defendant CintrÃ³n was in charge of receiving political recommendations for personnel transactions within the Department of Education. Id. at ¶ 3.12. 13 A: I was interested in transferring districts from Adjuntas to Jayuya. Because I have a daughter with a health condition and I needed to be close to her. I asked Mr. Borges for the transfer and Mr. Borges said yes. He told me that they were going to granted [sic] as a reasonable accommodation, but when Mr. CintrÃ³nGonzÃ¡lez arrived at the educational region as assistant to director, he told Mr. Borges that I belong to the Popular Democratic Party and asked him not to grant me the transfer. That the person recommended for the transfer was Ms. Olga Arroyo-Garcia[,] recommended by Mr. Roberto PagÃ¡n. ECF No. 40-2, at 3-4. With regard to CintrÃ³n-GonzÃ¡lez, taking VÃ¡zquez-PagÃ¡n s assertion as true for summary judgment purposes, a reasonable inference can be drawn that CintrÃ³n-GonzÃ¡lez knew of her affiliation with the PDP. Additionally, Escobales-PÃ©rez s statement that CintrÃ³nGonzÃ¡lez told him that he was not going to name someone from another party provides additional corroboration suggesting that CintrÃ³n-GonzÃ¡lez knew of VÃ¡zquez-PagÃ¡n s political affiliation. ECF No. 40-3, at 5:19-20. These statements constitute sufficient evidence to satisfy VÃ¡zquez-PagÃ¡n s burden with regard to the knowledge element as to CintrÃ³n-GonzÃ¡lez. With respect to Borges-RodrÃguez, the transcript of VÃ¡zquez-PagÃ¡n s deposition states: Q: In verbal conversations, did you ever speak about politics to Miguel Borges-RodrÃguez? A: No. Q: Did he ever try and find out what your political affiliation was? A: No. Q: Did you voluntarily give your political affiliation to Mr. BorgesRodrÃguez? A: No, he knew it through Mr. Elin CintrÃ³n. Q: And how do you know that he knew it through Elin CintrÃ³n RodrÃguez? A: Because he once told me. He told me that Elin CintrÃ³n had told him that I belong to the Popular Democratic Party. 14 Q: But Ms. VÃ¡zquez-PagÃ¡n, prior I asked you whether you spoke about anything having to do with political affiliation and whether you spoke about having anything to do with politics with Mr. Borges-RodrÃguez and you answered no. A: No. ECF No. 40-2, at 9:6-25. Although the individual deposing Borges-RodrÃguez attempts to point out tension or contradictions in VÃ¡zquez-PagÃ¡n s testimony, such credibility determinations are for the jury to decide. VÃ¡zquez-PagÃ¡n s assertion that Borges-RodrÃguez told her that he learned of her affiliation with the PDP via CintrÃ³n-GonzÃ¡lez, taken as true, is sufficient evidence of Borges-RodrÃguez s knowledge of VÃ¡zquez-PagÃ¡n s political affiliation to satisfy the second prong of the prima facie standard with regard to Borges-RodrÃguez. iii. Occurrence of an Adverse Employment Action Defendants assert that VÃ¡zquez-PagÃ¡n cannot satisfy this prong of a prima facie case of political discrimination, arguing that her request was for a purely lateral transfer, and that a transfer or reassignment that does not involve a significant alteration in salary and / or responsibilities does not constitute a materially adverse employment action. ECF Nos. 32, at 1011. In support of this proposition, they rely primarily on Marrero v. Goya of Puerto Rico, Inc., in which the First Circuit Court of Appeals stated a transfer or reassignment that involves only minor changes in working conditions normally does not constitute an adverse employment action. 304 F.3d 7, 23 (1st Cir. 2002). Marrero, however, was decided in the context of a claim of retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and thus is not necessarily applicable for determining what constitutes an adverse employment action for the purposes of establishing a prima facie case of political discrimination Id. Moreover, the facts of Marrero are distinct from the uncontested facts in the case of caption. Marrerro involved an employee who was involuntarily transferred to another department at the 15 company for which she worked, and the transfer did not involve change in her job description or salary. The First Circuit Court of Appeals held that such a transfer did not involve a materially adverse employment action for Title VII retaliation purposes. Id. at 25 ( [T]he sort of intensified personal animus, hostility, disrespect, and ostracism that Marrero alleged here fails to constitute a material employment disadvantage sufficient to transform an ostensibly lateral transfer into an adverse employment action. ) (citing Jones v. Fitzgerald, 285 F.3d 705, 714 (8th Cir. 2002)). In this case, VÃ¡zquez-PagÃ¡n applied for a position at another school that would not have occasioned a change in title or salary from those associated with the position she held at the time of her application. VÃ¡zquez-PagÃ¡n desired the position because she found its location to be more convenient, allowing her to be closer to her daughter. Plaintiffs deny defendants characterization of her efforts to be appointed to the School Director position at AgustÃn-Ortiz as a lateral transfer request, labeling it as a failure to hire her to a specific career position. ECF No. 40, at 3. Regardless of whether the employment action in question is referred to as a denial of a lateral transfer request or as a failure to hire, the First Amendment bars defendants from rejecting VÃ¡zquez-PagÃ¡n for the position because of her political affiliation. In Rutan v. Republican Party of Illinois the United States Supreme Court held that denial of promotions, transfers, or rehires on the basis of political affiliation violates the First Amendment. 497 U.S. 62 (1990). In doing so, the Supreme Court considered the shorter commuting hours and lower maintenance expenses incident to transfers to more convenient work locations as a benefit that could not be denied on the basis of one s political affiliation or support. Id. at 62-63. In reaching this decision, the Supreme Court in no way suggested that in order to constitute an adverse employment action for purposes of First Amendment political discrimination a transfer request had to be akin to a 16 promotion. To the contrary, Rutan identifies requests for transfers as a distinct category from requests for promotions, neither of which may be denied because of a candidate s political affinities. It is uncontested that VÃ¡zquez was denied the School Director position at AgustÃnOrtiz on September 7, 2012 when the position in question was awarded to Arroyo-GarcÃa, after interviews for the position that occurred on August 3, 2012, and again on December 14, 2012, when the position was Arroyo-GarcÃa was again selected for the position after interviews that occurred the same day. Based on these uncontested facts VÃ¡zquez-PagÃ¡n has met her burden of establishing that she suffered an adverse employment action on each of these two occasions. iv. Political Affiliation as a Substantial or Motivating Factor In her deposition, VÃ¡zquez-PagÃ¡n asserts that CintrÃ³n-GonzÃ¡lez asked what political party she belongs to so that he could ask for the recommendation of Roberto PagÃ¡n-GelpÃ ( PagÃ¡n-GelpÃ ), who was the candidate for mayor of Jayuya from the New Progressive Party ( NPP ): Q: So Ms. VÃ¡zquez, you mentioned Mr. Roberto PagÃ¡n-GelpÃ and you mentioned that Elin CintrÃ³n-GonzÃ¡lez would recommend to Roberto PagÃ¡n-GelpÃ the candidate. Did ElÃn CintrÃ³n-GonzÃ¡lez urge you to change your political affiliation in order for him to recommend to Ms. [sic] Roberto PagÃ¡n-GelpÃ you candidacy? A: Yes, he told me to engage in a dialogue and in exchange for the transfer to affiliate with their party. Q: And how do you respond? A: No, I told him that I wouldn t do it, that I had my principles, that those were the teachings of my parents; that I belong to the Popular Democratic Party and that I wouldn t do it. ... Q: Did Mr. Elin CintrÃ³n-GonzÃ¡lez tell you that because you would not switch your political affiliation he would not help you in attaining the position of director at AgustÃn Ortiz School? 17 A: He told me that the person who was recommended for that position was Ms. Olga Arroyo because she was the electoral commissioner for the New Progressive Party. ECF No. 40-2, at 6-8. The record also contains testimony from Escobales-PÃ©rez, who states that he spoke with PagÃ¡n-GelpÃ, who told Escobales-PÃ©rez that he was the mayoral candidate to the New Progressive Party and that the persona [sic] that was going to be named had to go through his approval. ECF No. 40-3, at 3:3-5. According to Escobales-PÃ©rez, PagÃ¡n-GelpÃ continued: [T]he person that had applied for recommendation to be named in that position was Ms. Olga Arroyo, who was his electoral commissioner, and that it was an arrangement he had with her. That he knew before hand [sic] the case of Ms. Damaris VÃ¡zquez because they are cousins, but unfortunately he had a commitment with is [sic] electoral commissioner and because Damaris was of the other party, that he had to see where he was going to lose less, naming Damaris or naming his electoral commissioner. ECF No. 40-3, at 3:5-13. Escobales-PÃ©rez states that on the same day that he spoke with PagÃ¡nGelpÃ, June 12, 2012, he also went to speak with Borges-RodrÃguez to ask about VÃ¡zquez-PagÃ¡n: I start to talk to him about Damaris case and his answer was that he met with Damaris and that he had knowledge, a particular knowledge of her case and her daughter s case. That she had even showed him a photo album of her daughter. That he had agree [sic] to make a commitment to have her change [sic] to AgustÃn Ortiz School, but unfortunately that he has to follow instructions and that there was another person already for that position. Id., at 4:10-13, 7:11-14. Escobales-PÃ©rez continues that [a]t that same moment Mr. Elin CintrÃ³n comes into the office, and describes: As soon as he walked in the door, he didn t even say hi, he just looked at me and he said: I know what you are doing here; you are talking about Damaris case. I told him yes, that I wanted to know and to investigate what was going on in her case. He told me in a brazen way that he was not going to name Damaris for that position. That he had to name the electoral commissioner for his candidate that was doing the political campaign for this candidate. 18 ECF No. 40-3, at 4:16-24. Escobales-PÃ©rez indicated that CintrÃ³n-GonzÃ¡lez was very sad, that he knew of [VÃ¡zquez-PagÃ¡n s] daughter s situation but he was going to name his electoral commissioner, that he was not going to name someone from another party. That over his cadaver he would name Damaris. Id. at 5, ll. 17-20. During his deposition, Escobales-PÃ©rez was also asked: Did anybody in the committee ever made [sic] political comments or ask questions regarding political affiliations during the evaluation? Id. at 8, ll. 12-14. He responded: Mr. Elin CintrÃ³n did make some comments about the other candidate that had been there that I understood were out of place and I let him know right there. Once the interview was over that the candidate leave [sic], the scores are taken between the thee [sic] people that were there, taking into consideration who was going to be the next director of the school, Damaris on the score is the highest score, she wins the score [sic] and he states: Don t dream that she is going to that position because you know who I am going to name to that position. Id. at 8:18-24. The statements described above, taken as true, do evince that CintrÃ³n-GonzÃ¡lez, to the extent he had a role in the appointment process, planned to use his influence as a member of the Interview Committee to appoint Arroyo-GarcÃa over VÃ¡zquez-PagÃ¡n. Even assuming for argument s sake that Escobales-PÃ©rez s testimony regarding PagÃ¡n-GelpÃ s statement is inadmissible hearsay, both VÃ¡zquez-PagÃ¡n and Escobales-PÃ©rez recall statements made by CintrÃ³n-GonzÃ¡lez indicating that he preferred Arroyo-GarcÃa for the position over VÃ¡zquezPagÃ¡n based on political affiliation and are sufficient evidence of politically discriminatory animus on their own. With regard to Borges-RodrÃguez, however, VÃ¡zquez-PagÃ¡n does not present direct evidence that he possessed political animus toward VÃ¡zquez-PagÃ¡n, based on her affiliation with the PDP. Instead, she points to Escobales-PÃ©rez s deposition testimony, which indicates that Borges-RodrÃguez was present in the room when CintrÃ³n-GonzÃ¡lez expressed his discriminatory intentions to Escobales-PÃ©rez. ECF No. 40, at 2 n.1. VÃ¡zquez-PagÃ¡n argues that 19 [n]ot only did Borges fail to intervene with CintrÃ³n s discriminatory actions but he eventually designated the latter as his representative several months later when the position was called before the requisite interview committee. ECF No. 40, at 2 n.1. As VÃ¡zquez indicates, a reasonable jury could infer political animus from the evidence that Borges-RodrÃguez heard CintrÃ³n-GonzÃ¡lez s statements and later permitted CintrÃ³n-GonzÃ¡lez to serve on the Interview Committee in his place. Although the summary judgment record contains evidence from which defendants political animus towards VÃ¡zquez-PagÃ¡n may rationally be inferred, she is required to show not only that their actions or omissions were based on political animus, but that their actions were the cause in fact of her alleged constitutional deprivation. Sullivan v. City of Springfrield, 561 F.3d 7, 14 (1st Cir. 2009); see also GutiÃ©rrez RodrÃguez v. Cartagena, 882 F.2d 553, 558 (1st Cir. 1989). Accordingly, [p]ublic officials may be held liable under § 1983 for a constitutional violation only if a plaintiff can establish that his or her constitutional injury resulted from the direct acts or omissions of the official, or from indirect conduct that amounts to condonation or tacit authorization. Ocasio-HernÃ¡ndez v. Fortuno-Burset, 640 F.3d 1, 16 (1st Cir. 2011) (quoting GarcÃa v. Miranda-MarÃn, 610 F.3d 756, 768 (1st Cir. 2010). The causal connection alluded to by [§ 1983] can be established not only by some kind of [ ] personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. SÃ¡nchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009) (citing GutÃerrez-RodrÃguez, 882 F.2d at 561). In the context of a § 1983 claim for political discrimination in violation of the First Amendment, it is not only the ultimate decision-maker who may be held liable for a particular adverse employment action, but other individuals who share responsibility for the decision. See Ocasio- 20 HernÃ¡ndez, 640 F.3d at 16-17. Bearing in mind the causation standard under § 1983, whether VÃ¡zquez-PagÃ¡n has made the requisite prima facie showing that political affiliation was a substantial or motivating factor for the denial of the School Director position at AgustÃn-Ortiz based on the August 3, 2012 interviews and December 14, 2012 interviews will be considered. i. August 3, 2012 Interviews The summary judgment record does not contain evidence and / or proposed facts regarding the scores given to VÃ¡zquez-PagÃ¡n or Arroyo-GarcÃa by the members of the Interview Committee with respect to the August 3, 2012 interviews. Thus, although based on CintrÃ³nRodrÃguez s comments that he intended to name Arroyo-GarcÃa to the position a rational jury could conclude that he gave Arroyo-GarcÃa a favorable score on his evaluation, no evidence has been brought to the court s attention regarding the intentions or motivations of the other two members of the Interview Committee with regard to their role in the process. Thus, any inference regarding how the other two members of the Interview Committee voted would based on conjecture. Even though it lacks evidence regarding how the members of the Interview Committee voted in evaluating the candidates, the evidentiary record does contain a recommended candidates list completed by the Interview Committee based on the interviews conducted on August 3, 2012. ECF No. 47-11. While it is uncontested that the Interview Committee may recommend up to three candidates to the Secretary of Education, the list, which is signed by CintrÃ³n-GonzÃ¡lez as Educational Region Rep., only recommends Arroyo-GarcÃa for the position. Id. at 1. In the recommended reasons section, it states: Olga Arroyo is the person with the best score. Id. Defendants assert the evaluation committee s report put Arroyo-GarcÃa as the recommended candidate since she had the highest score in the Certification of Eligible 21 Candidates. Thus, Arroyo-GarcÃa was the person brought forth to the Secretary of Education for recommendation as School Director for the AgustÃn Ortiz School. ECF No. 32-1, at 7. The record cited by the parties, however, does not specify whether Arroyo-GarcÃa had the best score from the Certification of Eligible Candidates list or based on the scores awarded by the Interview Committee. Indulging reasonable inferences in plaintiffs favor, a reasonable jury could find that Interview Committee awarded Arroyo-GarcÃa the best score based on their own evaluations, one of which was completed by CintrÃ³n-GonzÃ¡lez Borges-RodrÃguez s representative on the committee. Even assuming that the best score references the score from the Certification of Eligible Candidates, the Interview Committee nonetheless only recommended a single candidate that is, Arroyo-GarcÃa. When considering candidates for the position of School Director, the Secretary of Education takes into account: (1) the Certification of Eligible Candidates; (2) a list of recommended candidates from the Interview Committee; and (3) any other factors the Secretary of Education values. ECF Nos. 32-1, ¶ 23; 40-1, ¶ 23. With respect to the Certification of Eligible Candidates, the summary judgment record does not establish that defendants had a role in compiling it, but nonetheless it is uncontested that it is based on objective factors established by the Puerto Rico Department of Education central offices. ECF Nos. 32-1, ¶ 13; 40-1, ¶ 13. Thus, the fact that the Secretary of Education considers the Certification of Eligible Candidates list does not implicate CintrÃ³n-RodrÃguez in the decision to appoint Arroyo-GarcÃa. With regard to the list of recommended candidates, however, taking into consideration CintrÃ³n-GonzÃ¡lez s comments indicating that for political reasons he planned to name Arroyo-GarcÃa to the position rather than VÃ¡zquez-PagÃ¡n, the fact that CintrÃ³n-GonzÃ¡lez was on the Interview Committee for the August 3, 2012 interviews, that the Interview Committee 22 only recommended Arroyo-GarcÃa for the position, that the Secretary of Education takes into account the Interview Committee s recommendation, and finally that Arroyo-GarcÃa was ultimately awarded the position on September 19, 2012, a reasonable jury could find that CintrÃ³n-GonzÃ¡lez s actions caused Arroyo-GarcÃa to be appointed to the position and that political affiliation was a substantial or motivating factor in the decisional calculus. GÃ³mez v. Rivera RodrÃguez, 344 F.3d 103, 110 (1st Cir. 2003) (citing Mt. Healthy, 429 U.S. at 287). Although gaps in the summary judgment record exist regarding the motivations of the other two members of the Interview Committee in recommending Arroyo-GarcÃa and the reasons for the Secretary of Education s ultimate decision to appoint Arroyo-GarcÃa, [t]he causation question typically is grist for the factfinder s mill. Id. (citations omitted). Based on the totality of the evidence in the record, VÃ¡zquez-PagÃ¡n has established a prima facie case with respect to CintrÃ³n-GonzÃ¡lez as to her claim for failure to appoint her to School Director position at AgustÃn-Ortiz based on the August 3, 2012 interview process shifting the burden of persuasion to CintrÃ³n-GonzÃ¡lez to establish a Mt. Healthy defense with regard to this decision. With regard to Borges-RodrÃguez, however, the evidence that his own actions or omissions were politically motivated and that his actions or omissions were causally linked to the adverse employment action in question is more tenuous than that which the record contains regarding CintrÃ³n-GonzÃ¡lez s role. Despite the fact that the summary judgment record does not contain direct evidence of Borges-RodrÃguez s political animus, as plaintiffs assert EscobalesPÃ©rez s deposition testimony does strongly imply that Borges-RodrÃguez was present while CintrÃ³n-GonzÃ¡lez made comments that he would not name VÃ¡zquez-PagÃ¡n to the position because he planned instead to name the electoral commissioner for his candidate, and establishes that this conversation occurred on June 12, 2012, prior to the August 3, 2012 23 interviews. Additionally, although Borges-RodrÃguez did not sit on the Interview Committee, in a sworn statement made under penalty of perjury, Borges-RodrÃguez states: Elin CintrÃ³n-GonzÃ¡lez served as special aide of the Ponce Regional Director at both the August 3, 2012 and December 14, 2013 interviews. Accordingly, Elin CintrÃ³n-GonzÃ¡lez served as my subordinate during the interview evaluation, and eventual recommendations made for the Agustin-Ortiz School in said dates. At no time could Cintron-GonzÃ¡lez go beyond my own determinations as Regional Director of Ponce. ECF No. 47-5, at 4. In view of this statement, a rational jury could infer that Borges-RodrÃguez retained some control over the recommendations made by the individual substituting for him as representative of the Ponce Regional Director on the Interview Committee. Considering the evidence that Borges-RodrÃguez was aware of CintrÃ³n-GonzÃ¡lez s intentions to appoint ArroyoGarcÃa to the position in question based on political reasons, the that fact that CintrÃ³n-GonzÃ¡lez substituted for him as representative of his position as Regional Director of Ponce, and that by his own admission at no point could CintrÃ³n-GonzÃ¡lez go beyond [Borges-RodrÃguez s] own determinations in making recommendations to the Secretary of Education, a reasonable jury could infer that he gave at least tacit authorization to CintrÃ³n-RodrÃguez s recommendation, and that political animus was a substantial and motivating factor behind his actions or omissions. As with regard to CintrÃ³n-RodrÃguez, Vazquez-PagÃ¡n has adduced sufficient evidence to shift the burden of persuasion to Borges-RodrÃguez to show that the same action would have been taken regardless of her political affiliation. Thus, VÃ¡zquez-PagÃ¡n has also satisfied the fourth prong of the prima facie standard as to Borges-RodrÃguez with respect to the August 3, 2012 interview process. ii. December 14, 2012 Interviews Defendants point out that CintrÃ³n-GonzÃ¡lez gave VÃ¡zquez-PagÃ¡n a score of 98 out of 100 based on the Interview Committee s December 14, 2012 interview and argue [t]his type of 24 excellent review is hardly the type of over-my-dead-body-evaluation that someone would bestow upon a candidate whom they harbor an acute bias towards. ECF No. 32, at 17. They argue that his evaluation was the only means by which he could have influenced the selection process for the AgustÃn-OrtÃz School Director position, and that if he did not perform an adverse employment action at the only moment that he could have, the Court is simply forced to conclude that he did not have a discriminatory animus against the Plaintiff. Colloquially speaking, it is irrelevant that someone said something regarding an individual s political affiliation or animus if at the moment of truth this individual did not act upon such mens rea. ECF No. 32, at 17. Their argument, however, overlooks that fact that although CintrÃ³n-GonzÃ¡lez gave VÃ¡zquez-PagÃ¡n a score of 98 out of 100, he gave Arroyo-GarcÃa a score of 100 out of 100. Regardless of whether an inference can be drawn that CintrÃ³n-GonzÃ¡lez s decision to award VÃ¡zquez-PagÃ¡n a score of 98 was politically motivated, however, plaintiffs have another problem regarding CintrÃ³n-GonzÃ¡lez s role in the selection of Arroyo-GarcÃa instead of VÃ¡zquez-PagÃ¡n based on the interviews conducted on December 14, 2012. It is uncontested that the Certification of Eligible Candidates and the Interview Committee s recommendations were sent to the Secretary of Education; however, the parties have not proposed that the Interview Committee s scores of the candidates were also sent to the Secretary of Education. The selection procedure establishes that the Interview Committee shall send its recommendations for the final selection to the Secretary of Education, but does not contain a similar requirement regarding the scores from the Interview Committee members. ECF No. 47-6, at 15. As previously mentioned, the Secretary of Education possesses the authority to select the candidate he or she desired for the AgustÃn-Ortiz School Director position and takes into account: (1) the Certification of Eligible Candidates; (2) a list of recommended candidates from 25 the Interview Committee; and (3) any other factors the Secretary of Education values. As with respect to the August 3, 2012 interviews, there is no indication from the summary judgment record that either defendant influenced the decision to hire Arroyo-GarcÃa based on the Certification of Eligible Candidates. With respect to the list of recommended candidates, however, in contrast to the recommendation made by the Interview Committee based on the August 3, 2012 interviews, the list for the December 14, 2012 interviews states that the recommended candidates are a) DÃ¡maris VÃ¡zquez PagÃ¡n ; b) Olga Arroyo GarcÃa ; and c) Luis A. Rivera RodrÃguez. Id. The recommended reasons section is left entirely blank. Id. Thus, there is no indication from the list of recommended candidates that CintrÃ³n-GonzÃ¡lez, via his participation on the Interview Committee, favored Arroyo-GarcÃa over VÃ¡zquez-PagÃ¡n. The record is silent as to whether the order of the recommended candidates on the list is material in terms of how highly the Interview Committee recommended the three recommended candidates relative to one another. However, if such a hierarchy does in fact exist, VÃ¡zquez-PagÃ¡n s name comes before Arroyo-GarcÃa s on the list. A review of the list of recommendations made by the Interview Committee (ECF No. 47-20, at 2) reveals that it does not even contain the recommended candidates aggregate evaluation scores, let alone a list of the scores awarded by each member of the Interview Committee to each recommended candidate. Thus, without any indication to the contrary, no reasonable jury could infer that the Interview Committee recommended Arroyo-GarcÃa more highly than VÃ¡zquez-PagÃ¡n to the Secretary of Education based on the list of recommended candidates. While it is possible that the Secretary of Education valued CintrÃ³n-GonzÃ¡lez s evaluation or opinion as representative of the Ponce Regional Director and that CintrÃ³n-GonzÃ¡lez s evaluation or opinion had a causal influence on the Secretary of Education s decision to choose Arroyo-GarcÃa over VÃ¡zquez-PagÃ¡n, the parties have 26 not brought evidence to the court s attention that would establish a causal link between CintrÃ³nGonzÃ¡lez s acts or omissions and the decision to select Arroyo-GarcÃa in December, 2012. Any inference regarding the same would be based on conjecture and speculation. Acknowledging that the record contains substantial evidence which credited as true for summary judgment purposes establishes that CintrÃ³n-GonzÃ¡lez was not going to name VÃ¡zquez-PagÃ¡n to the School Director position for politically motivated reasons, it does not establish that he actually influenced the decision to appoint Arroyo-GarcÃa instead of VÃ¡zquezPagÃ¡n for a second time in December, 2012. The uncontested facts establish that a list of three recommended candidates was transmitted to the Secretary of Education. The list sent regarding the December 14, 2012 interviews, however, would not enable a rational jury to determine that CintrÃ³n-GonzÃ¡lez influenced the Secretary of Education to select Arroyo-GarcÃa. Thus, with respect to the result of the December 14, 2012 interviews, summary judgment is granted as to CintrÃ³n-GonzÃ¡lez. With regard to Borges-RodrÃguez, VÃ¡zquez-PagÃ¡n also points to a letter from the Review Committee regarding its evaluation of VÃ¡zquez-PagÃ¡n s complaint submitted on December 19, 2012. ECF No. 47-22, at 2. The letter states: [Arroyo-GarcÃa] was never ceased between December 6, 2012 and December 14, 2012 (date of issuance of the summons letter and the date of the celebration of the interview for appointment). The inaction of the Ponce Educational Region in ceasing the respondent and reinstalling her into her old position technically remained with the incumbent in the position of School Principal of the AgustÃn Ortiz School of the Municipality of Jayuya between December 6, 2012 and December 14, 2012, the date in which the interview process was held to cover the position for a second occasion. Such inaction leads the Assistant Secretariat of Human Resources to incur in an error when authorizing to issue a Certification of Eligible Candidates for Principal of the AgustÃn Ortiz Rivera School of the Municipality of Jayuya without being available or without incumbent. The error was greater from the 27 Ponce Educational Region when, [sic] knowingly, performed an interview process and recommendation of candidates for the Secretary of Education to appoint a candidate in a position that is not vacant. However, the Ponce Educational Region generated a report of Appointment and Change (Report 409) in favor of the respondent, Mrs. Olga Arroyo GarcÃa, performing an appointment from the position of School Principal of the AgustÃn Ortiz School at the same AgustÃn Ortiz School with the effective date of December 14, 2012. ECF No. 47-22, at 5-6. VÃ¡zquez-PagÃ¡n asserts that this portion of the Review Committee s decision constitutes direct evidence of political discrimination, i.e., the proverbial smoking gun. ECF No. 40, at 3 (emphasis in original). The excerpt, however, contains no indication that the fact that Arroyo-GarcÃa remained as School Director between December 6, 2012 and December 14, 2012 was politically motivated. Taking the Review Committee s determination that there was inaction on the part of the Ponce Educational Region in removing Arroyo-GarcÃa as true, the excerpt does not establish the reason for such inaction, and plaintiffs have not cited to any additional evidence to shed light on why she was not removed from the position during that eight-day period. Furthermore, there is no evidence that the failure to vacate Arroyo-GarcÃa from the position prior to the second interview process bore any relation to the decision to re-appoint Arroyo-GarcÃa instead of VÃ¡zquez-PagÃ¡n based on the interviews conducted on December 14, 2012. Based on the summary judgment record, a finding that Borges-RodrÃguez caused Arroyo-GarcÃa to be chosen for the position on that date for politically-motivated reasons would require speculation. Although Borges-RodrÃguez s initials are contained on the sheet listing the three recommended candidates, as previously discussed that sheet lists both VÃ¡zquez-PagÃ¡n s and Arroyo-GarcÃa s names. The fact that it contains BorgesRodrÃguez s initials would not enable a rational jury to determine that he had a causal role in the decision to appoint Arroyo-GarcÃa instead of VÃ¡zquez-PagÃ¡n. Because plaintiffs have not presented evidence from which a reasonable jury could find that Borges-RodrÃguez s actions or 28 omissions contributed to her being denied the AgustÃn-Ortiz position based on the December 14, 2012 interview, defendants motion for summary judgment is granted with respect to BorgesRodrÃguez as to that claim. 10 2. Mt. Healthy Defense Defendants assert a Mt. Healthy Defense stating [a]s per [the] Certification of Eligible Candidates Arroyo-Garcia has a score of 56 while Plaintiff had a score of 52. 11 ECF No. 32, at 20 (emphasis omitted). They continue, [a]ccordingly, as per one of the metrics considered by the Secretary of Education in nominating a School Director, Arroyo-Garcia scored higher than Plaintiff. ECF No. 32, at 20 (emphasis in original). As defendants themselves admit, this is only one factor taken into account by the Secretary of Education in selecting a School Director. The fact that Arroyo-GarcÃa had a better score than plaintiff with respect to one criterion considered by the Secretary of Education does not establish by a preponderance of evidence that the Secretary of Education would have selected Arroyo-GarcÃa after the August 3, 2012 regardless of VÃ¡zquez-PagÃ¡n s political affiliation. Defendants do not point to any evidence that the Secretary of Education based the decision solely on the scores from the Certification of Eligible Candidates. As defendants state the evidentiary record does not contain specifics about what 10 Additionally, while the parties spend a considerable portion of their briefing regarding defendants motion for summary judgment on the failure to appoint VÃ¡zquez-PagÃ¡n to the School Director position at AgustÃn-Ortiz for a second time, on December 14, 2012, the complaint in this case was filed on November 30, 2012, and does not include allegations related to the second interview process or failure to grant her the position for a second time. See ECF No. 1. A review of the record reveals that the complaint was never amended to add allegations regarding the December 14, 2012 interviews, and that plaintiffs did not request leave to do so at any point. Therefore, although plaintiffs include the failure to appoint VÃ¡zquez-PagÃ¡n to the School Director position at AgustÃn-Ortiz on December 14, 2012 in the Proposed Pretrial Order as part of their factual contentions in support of this case, defendants move to dismiss allegations related to the failure to appoint her on December 14, 2012, and VÃ¡zquezPagÃ¡n makes arguments regarding the same in their opposition to defendants motion to summary judgment, she has not actually raised a claim regarding the failure to hire her to the position in question on December 14, 2012. Thus, in addition to the merit-based reasons for granting defendants motion for summary judgment regarding the December, 2012 interview process, VÃ¡zquez-PagÃ¡n s claim regarding the result of the December 14, 2012 interviews is barred from proceeding to trial based on the failure to include such allegations in the complaint. 11 The remainder of defendants arguments in favor of a Mt. Healthy defense pertain to the December 14, 2012 interview, about which, as discussed above, VÃ¡zquez-PagÃ¡n has not established a prima facie case of discrimination, or even included allegations in the complaint. 29 exactly was considered by the Secretary of Education . . . . in selecting Arroyo-GarcÃa. ECF No. 32, at 21. Additionally, it contains limited evidence regarding the Interview Committee s decision to recommend only Arroyo-GarcÃa to the Secretary of Education based on the August 3, 2012 interviews. While in light of these gaps in the summary judgment record it is possible the same decision would have been made regardless of VÃ¡zquez-PagÃ¡n s political affiliation, defendants have not brought adequate proof to the court s attention to sustain that contention by a preponderance of the evidence. Merely showing that based on one criterion Arroyo-GarcÃa had a higher score than VÃ¡zquez-PagÃ¡n is not sufficient to establish a Mt. Healthy defense. Therefore, in light of the fact that VÃ¡zquez-PagÃ¡n has met her burden of establishing a prima facie case of political discrimination, defendant s motion for summary judgment is denied with regard to the August 3, 2012 interview process. C. Supplemental Claim Plaintiffs base their Article 1802 claim upon the same allegations which underlie their § 1983 political discrimination claim. See ECF No. 1. Article 1802, Puerto Rico s general tort statute, provides that a person who causes damages to another through fault or negligence shall be liable in damages. P.R. Laws Ann. tit. 31 § 5141. [T]he Puerto Rico Supreme Court has clarified that [a]s a general rule, in the face of conduct by an employer that has been typified and penalized by a specific labor legislation, the employee only has recourse to the relief of said Act, and is barred from seeking additional compensation under [Article 1802]. IrizarrySantiago v. Essilor Indus., 982 F. Supp. 2d 131, 140 (D.P.R. 2013) (citing Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1, 16 (1994)) (emphasis added). Puerto Rico Law 100 of 1959 ( Law 100 ), as amended by P.R. Laws Ann. tit. 29, § 146, et seq., seeks to prevent discrimination in the workplace based on numerous protected classifications, including political affiliation. See 30 P.R. Laws Ann. tit. 29, § 146. Because Law 100 specifically protects employees against political discrimination in the workplace and VÃ¡zquez has not identified any tortious conduct that is unrelated to her claim of political discrimination, VÃ¡zquez is barred from relief pursuant to Article 1802 in this case. Therefore, VÃ¡zquez s Article 1802 claim is dismissed with prejudice. With regard to K.F.V., [a] relative can recover under Article 1802 in a separate cause of action from a discrimination claim brought under Law 100. Baralt v. Nationwide Mut. Ins. Co., 183 F. Supp. 2d 486, 488 (D.P.R. 2002). The tort claim of the relatives is dependent on the successful prosecution of a Law 100 claim. Id.; see also Reyes Guadalupe v. Casas Criollas, 597 F.Supp.2d 255 (D.P.R. 2008) ( [T]he Article 1802 claim is derivative of the discriminatedagainst individual s Law 100 claim and can only stand if a claim for discrimination has been made out under Law 100. ); and Olivieri v. Abbot Laboratories, Civ. No. 05-1244 (ADC), 2008 WL 747082, at *16 (D.P.R. March 19, 2008); DomÃnguez v. Eli Lilly and Co., 958 F.Supp. 721, 745 (D.P.R. 1997). In this case, however, VÃ¡zquez-PagÃ¡n has not pursued a discrimination claim pursuant to Law 100 and no evidence has been brought to the court s attention that she has prevailed on such a claim in the past. Therefore, K.F.V. s derivative Article 1802 claim cannot prevail and is dismissed without prejudice. V. CONCLUSION Based on the foregoing analysis, defendants motion for summary judgment is granted in part and denied in part, as follows. All claims against defendants in their official capacities are dismissed with prejudice. K.F.V. s § 1983 political discrimination claim against all defendants is dismissed with prejudice. VÃ¡zquez-PagÃ¡n s § 1983 political discrimination claim survives as to both defendants with respect to the alleged failure to appoint her to the School Director position at AgustÃn-Ortiz based on the August 3, 2012 interview process and is dismissed as to both 31 defendants with regard to the December 14, 2012 interview process. Plaintiffs Article 1802 claims are dismissed with prejudice. IT IS SO ORDERED In San Juan, Puerto Rico, this 23rd day of September, 2014. s/Marcos E. LÃ³pez U.S. Magistrate Judge 32

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