Gil A. RODRÍGUEZ-RAMOS, Plаintiff, Appellant, v. Rubén A. HERNÁNDEZ-GREGORAT; Santos M. Delgado-Marrero; Gladys Fuentes-Cruz; Judith Morales-Morales, Defendants, Appellees, Insurance Company A, B, C, Defendant.
No. 09-2531
United States Court of Appeals, First Circuit.
Decided July 12, 2012.
Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
Heard Dec. 7, 2012.
PWIC also says in passing (again, in the statement of facts) that the 2000 EPA action “is incorporated by reference in the [Emhart] Complaint.” State law, however, points another way, and PWIC has not given any attention to that authority. See, e.g., Bowen Court Assocs. v. Ernst & Young, LLP, 818 A.2d 721, 726 (R.I.2003) (holding that the mere fact that a pleading mentions or refers to a document, without attaching it to the pleading, does not cause that document to be incorporated by reference as if the pleader had appended it to the pleading).
In the end, we conclude that under the pleadings test, the Emhart complaint triggered PWIC‘s duty to defend under its policies issued in the mid-1980s. In so holding, we recognize that there is exponentially more to this sprawling litigation than the Emhart complaint and the PWIC policies. Litigation involving environmental damage at the Superfund Site was well on its way prior to the 2006 Emhart аction, and the Emhart action had advanced beyond a nascent stage by the time Travelers pursued its 2010 action against PWIC. The duty to defend question before us, however, begins and ends with the Rhode Island pleadings test. Having concluded this task, our review is complete.8
Travelers will be addressed by the district court in due course.
III. Conclusion
We reverse the district court‘s decision, vacate the judgment in favor of PWIC, and remand for the district court to enter judgment in favor of Travelers that the Emhart complaint triggered PWIC‘s defense obligations under its policies. Any remaining requests for relief sought by
Susana I. Peñagarícano-Brown, Assistant Solicitor General, Department of Justice, with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor General and Zaira Z. Girón-Anadón, Deputy Solicitor General were on brief, for appellee Rubén A. Hernández-Gregorat and for appellees Santos M. Delgado-Marrero, Gladys Fuentes-Cruz and Judith Morales-Morales in their individual capacities.
Francisco J. Amundaray, with whom Eric R. Ronda and Mercado & Soto, PSC, were on brief, for appellees Santos M. Delgado-Marrero, Gladys Fuentes-Cruz and Judith Morales-Morales in their official capacities.
Plaintiff-appellant Gil A. Rodríguez-Ramos, a former trust employee of the Metropolitan Bus Authority of Puerto Rico (“MBA“), sued various public officials under
I. FACTUAL BACKGROUND
On review of this motion to dismiss, we recount the relevant facts based upon the well-pleaded allegations in the complaint. See S.E.C. v. Tambone, 597 F.3d 436, 438 (1st Cir.2010) (en banc). We supplement that account with reference to Puerto Rico statutes and facts susceptible to judicial notice, as necessary to place the allegations in context. See Haley v. Boston, 657 F.3d 39, 44 (1st Cir.2011).
In asserting an entitlement to a position as an “Attorney I within the MBA,” the complaint alleges that Rodríguez is a longstanding and active member of the Popular Democratic Party (“PDP“). He began his public employment with the Commonwealth of Puerto Rico in 1991 and for the next decade he held career positions in various government agencies.1 He maintained his career status while attending law school, аnd he was admitted to practice law in early 2000.
That spring, after taking the pertinent competitive exam, Rodríguez was appointed to the career position of “Attorney I” in the Administration of Corrections (“AOC“), where he had previously worked in non-lawyer capacities. Approximately nine months later, in January 2001, he was appointed to the trust position of Director of the Office of Legal Affairs of the AOC. According to the plaintiff‘s translation, his appointment letter stated:
This designation [to the Director of the Office оf Legal Affairs] does not excuse you from complying with all the duties and responsibilities of the position you presently occupy as Attorney I in the Office of Legal Affairs, position in the career service to which you were promoted last March 1, 2000. Your probationary period shall not be interrupted while you prevail in this designation.
On May 1, 2001, the AOC Secretary favorably evaluated Rodríguez and approved his completion of the one-year probationary period for the Attorney I position, effective April 1.2
This period of the plaintiff‘s employment in trust positions coincided with PDP control of the governorship. In November 2008, however, the candidate of the New Progressive Party (“NPP“) was elected governor. With the resulting transfer of power impending, the outgoing administration moved Rodríguez on December 15, 2008 from his trust position as Chief of the Medical Emergency Corps to a career attorney position within the GSA.3 Two days later, on December 17, 2008, Rodríguez was aрpointed to the trust position of Special Assistant to the President in the Metropolitan Bus Authority, an agency of roughly 1,000 employees in which he had never previously worked. This was the position that Rodríguez held when the NPP government was installed two weeks later.
The political shift in the executive branch brought with it changes in trust position personnel throughout the government. The president of the NPP and new governor of Puerto Rico, Luis Fortuño-Burset, appointed Ruben Hernández-Gregorat as Secretary of Transportation and Public Works. Hernández, in turn, named Santos M. Delgado-Marrero as President and General Manager of the MBA.
Upon Delgado‘s appointment, and allegedly at Delgado‘s request, Rodríguez submitted a letter of resignation from his trust position as Special Assistant on January 7, 2009. In his letter, citing a provision of the Puerto Rico civil service law that entitles a departing trust employee to reclaim a career position equivalent to the last career position that the employee had held, Rodríguez also requested that he be reinstated to an Attorney I career position. See
Over the next few months, although remaining in his trust position, Rodríguez was gradually relieved of the duties and functions that he had performed as Special Assistant. The complaint alleges that Delgado ordered Rodríguez‘s internet access removed, excludеd him from meetings, and
Rodríguez‘s request to be placed in a career position remained pending for most of the first half of 2009, although the complaint alleges that in April Delgado did attempt to have Rodríguez transferred to another agency. In early March, Delgado‘s executive secretary had told Rodríguez “not to worry” because his request had been approved, but he remained in the Special Assistant position into June. On June 15, Rodríguez inquired about his status with Gladys Fuentes-Cruz, the MBA‘s Vice President of Management and Human Capital, in the presence of Judith Morales-Morales, Special Aide to Delgado in personnel matters. Fuentes explained that she was not working on the matter, which was being handled directly by Delgado with no involvement of Human Resources personnel.
On June 22, Rodríguez received a letter from Delgado appointing him to a career position as a Bus Terminal Administrator within the MBA, effective the first day of July. Rodríguez describes this appointment as a “demotion” to an “inferior working position to that which he is entitled to” with a salary of “$3,000/ monthly below to that which he should have been entitled.” Prior to the effective date of this assignment, neither the President of the MBA nor any member of the human resources staff met with Rodríguez to discuss the assignment. Additionally, when on June 25 Rodríguez used the standard form to request a review of his personnel file, he was told, allegedly contrary to standard procedures, that he must write a letter making the request. The complaint states that Rodríguez complied and made such a written request on June 30.
The next day, July 1, when his new duties were set to begin, Rodríguez filed this action in federal court. Invoking
The district court dismissed the federal claims pursuant to the defendants’ motion to dismiss under
II. ANALYSIS
We review de novo an order of dismissal for failure to state a claim. Tambone, 597 F.3d at 438.
A. Political Discrimination
It is well established that “[g]overnment officials are forbidden by the First Amendment from taking adverse action against public employees on the basis of political affiliation, unless political loyalty is an appropriate requirement of the employment.” Ocasio-Hernández, 640 F.3d at 13 (citing, inter alia, Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). The parties do not dispute that the plaintiff‘s position as Special Assistant to the President of the MBA was a policymaking trust position for which party affiliation was an “apprоpriate requirement for the effective performance of the [] office.” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Consequently, to the extent that the plaintiff attempts to challenge the diminution of his functions and eventual transfer from that position, his claim necessarily fails. See Valdizán v. Rivera-Hernandez, 445 F.3d 63, 66 (1st Cir.2006); Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 133 (1st Cir.2005).
The main thrust of the political discrimination claim, however, is that the plaintiff suffered political discrimination when he was reinstated to a particular career position, when he wanted another. Specifically, he challenges his assignment to the purportedly inferior position of Bus Terminal Administrator rather than to an Attorney I position in the MBA to which he claims entitlement under Puerto Rico law. With respect to this employment action, the First Amendment‘s prohibition on political discrimination potentially does apply. Cf. Gaztambide-Barbosa v. Torres-Gaztambide, 902 F.2d 112, 115-16 (1st Cir.1990) (finding First Amendment prohibition on political discrimination applicable to defendants’ failure to reinstate trust employee entitled to career position under Puerto Rico civil service law).
To state an actionable claim of political discrimination, the plaintiff‘s complaint must plausibly allege that he is not of the defendants’ political affiliation and that the defendants were aware of his affiliation. The complaint must also allege an adverse employment action and that political affiliation was a substantial or motivating factor for the adverse action. See Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir.2010). “Moreover, each defendant‘s role in the [adverse action] must be sufficiently alleged to make him or her a plausible defendant. After all, we must determine whether, as to each defendant, a plaintiff‘s рleadings are sufficient to state a claim on which relief can be granted.” Ocasio-Hernández, 640 F.3d at 16 (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir.2009)) (internal quotation marks omitted).
The allеged participation of defendant Fuentes is no less speculative. The complaint indicates that Fuentes was the MBA‘s Vice President of Management and Human Capital, a position that might more plausibly involve her in personnel decisions relating to the reinstatement of removed trust employees. But the complaint fails to include allegations to that effect, much less allegations suggesting that Fuentes played any role specifically in the plaintiff‘s reinstatement. See Ayala-Rodríguez v. Rullán, 511 F.3d 232, 235-36 (1st Cir.2007). In fact, the complaint alleges just the oрposite: that Fuentes was kept out of employment decisions involving the plaintiff. As such, there is no basis from which to infer that Fuentes engaged in or “set[] in motion a series of acts” that led to the alleged adverse employment action. Sanchez, 590 F.3d at 50 (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.1989)) (internal quotation marks omitted).
We turn, then, to whether the political discrimination claim survives the motion to dismiss with respect to defendant Delgado. There can be no disputing that the complaint satisfies the first two political discrimination claim elements, which incorporate an awareness by the defendant(s) that the plaintiff is of a different political persuasion. The complaint contains straightforward allegations that the plaintiff and Delgado are of competing political parties, stating that Rodríguez is a member of the PDP and each of the defendants is a member of the NPP. It also contains detailed descriptions of the plaintiff‘s history of trust positions held under PDP administrations and his active and visible role in party politics, from which it is plausible to infer that the defendants knew of his political affiliation.5 See Grajales v. P.R. Ports Auth., 682 F.3d 40 (1st Cir.2012)
Taken as whole, the complaint also adequately alleges Delgado‘s involvement in the decision to assign the plaintiff as a Bus Terminal Administrator. We have noted that Fuentes was not involved in the plaintiff‘s reinstatement to a careеr position because, according to the complaint, Delgado took the matter into his own hands. The plaintiff alleges that he was told that Delgado was directly handling his reinstatement request, and his inquiries into the status of that request were repeatedly directed back to Delgado personally. Accepting these well-pleaded facts as true, they give rise to the inference that Delgado was involved in, if not directly responsible for, the reinstatement decision.
“The requirement of plausibility on a motion to dismiss under
Rodríguez asserts that the Bus Terminal Administrator position to which he was assigned is inferior to an Attorney I position within the MBA to which he claims entitlement and that his placement therefore effectively constituted a demotion. Cf. Gaztambide-Barbosa, 902 F.2d at 116 (reasoning that refusal to reinstate trust employee in career position “amounted, functionally, to a dismissal from the agency“).
Defendant Delgado does not dispute that demotions fall within the scope of employment decisions subject to First Amendment scrutiny. See e.g., Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 101 (1st Cir.1997); Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705-706 (1st Cir.1993). He maintains, however, that the complaint is devoid of factual allegations sufficient to show political motivation, as well as of allegations that the plaintiff was deprived of rank or salary as a career employee and thus fails to support the inference that a demotion occurred. See Acosta-Orozco, 132 F.3d at 101 (defining demotions as “involv[ing] reductions in pay and official rank.” (quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218 n. 8 (1st Cir.1989))).
Whether or not he has such an entitlement under state law (оn the law or the facts) is a matter which is unclear, as are the contours of such an entitlement, if any. Even if he did have a state law claim on the attorney‘s job, this panel of judges is divided as to whether his complaint passes muster under Iqbal, including as to the allegations of causation and political animus. We are mindful that Iqbal was decided only weeks before this complaint was filed, and that there may be further facts which may enhance the pleadings and elucidate the theory advanced. As this court commented in Peñalbert-Rosa, 631 F.3d at 597, another political discrimination case: “But Twombly and Iqbal are relatively rеcent; developing a workable distinction between ‘fact’ and speculation is still a work in progress.”
In Peñalbert, we affirmed the dismissal as to certain named defendants but vacated dismissal of the entire case to allow plaintiff leave to amend. Id. It is within the power of a federal appellate court to do so when doing so is in the interests of justice, as set forth in Peñalbert and Rivera-Gomez v. de Castro, 843 F.2d 631 (1st Cir.1988), and the cases cited therein. We think it appropriate under our precedent to vacate the dismissal as to defendant Delgado only and to remand with instructions to allow plaintiff leave to amend as to Delgado.
B. Procedural Due Process
Rodríguez argues that in addition to suffering political discrimination, he was denied his substantive due process rights when he was deprived of his property interest in a career position equivalent to his former attorney position without the benefit of a “pre-demotion” hearing. In response, Delgado6 asserts that the plaintiff never completed his probationary period and thus had no property interest in a career position; in any event, Delgado argues, he is еntitled to qualified immunity because a reasonable official could have concluded that the plaintiff had no right to reinstatement. We need not address the viability of these arguments in relation to the due process claim, because the plaintiff has failed to demonstrate that Puerto Rico post-deprivation remedies are constitutionally inadequate.
As mentioned, Rodríguez asserts that Delgado violated his due process rights by denying him a “pre-demotion” hearing prior to placing him in a position other than the attоrney position to which he claims entitlement. What Rodríguez terms a “demotion,” however, is not a demotion in the classic sense: he was not removed from, but rather seeks an affirmative reassignment to, a position that he has not held
III. CONCLUSION
We affirm the district court‘s order dismissing the federal claims with prejudice, as well as the dismissal of the supplemental claims without prejudice, as to all defendants save for Delgado. As to Delgado, the dismissal is vacated only as to the First Amendment claim. The case is remanded for further proceedings consistent with this opinion.
The parties shall bear their own costs.