Opinion
Civil No. 01-2304 (PG)
August 11, 2003
Arturo Luciano-Delgado, SAN JUAN, PR., Counselor for Plaintiffs.
Luis Sánchez-Betances, SAN JUAN, PR., Defendants' Counselors.
Edgardo R. Jiménez-Calderin, Jimenez Calderin Carrasquillo SAN JUAN, PR., Defendants' Counselors.
REPORT AND RECOMMENDATION
The court has referred to this Magistrate defendants' unopposed motion for summary judgment and the motion to dismiss (Docket Nos. 30, 31, 35, 36). The allegations in plaintiffs' complaint indicate they were employees of the Municipality of Arecibo, members of the opposing political party, NPP, and public servants for many years (without indication of their career, trust, transitory or contract status).
The defendant Frankie Hermandez Colon, is the mayor of the Municipality since January of 2001, an active member of the Popular Democratic Party; and defendant Rixie V. Maldonado Arrigoitia is the Human Resources Director of said Municipality. Also included as defendant is the Municipality of Arecibo. After the general elections in Puerto Rico of 2000, there was a change in the party administration in the Municipality of Arecibo from the New Progressive Party (NPP) to the Popular Democratic Party (PDP). The previous mayor Angel M. Roman Velez, a NPP member, had prepared, because of precarious financial and budgetary conditions of the Municipality, a layoff plan for employees which was implemented in 2001 by Mayor Frankie Hernandez Colon, defendant herein. Plaintiffs in this action were terminated from their employment in March of 2001.
The Finance Director of the Municipality of Arecibo, Carmen Jimenez, submitted a sworn statement with the defendants' motion for summary judgment stating that at the time Mayor Hernandez Colon took office in January 2001, there was a financial deficit of twelve million dollars, which caused the implementation of the personnel layoff plan. The sworn statement of the Human Resources Director, defendant Rixie Maldonado Arrigoitia, refers to the dismissals letters upon which laid-off employees were informed of the dismissal plan based on seniority and given notice and information as to their right to appeal the dismissal. Defendants have also included with their motion, copy of letters to employees, included in Annex 1. These letters referred to layoff of employees holding transitory appointments in the municipality and/or those who fell under the layoff plan because of the seniority status already notified to them by letter of March 5, 2001. Plaintiffs were previously notified therein of their entitlement to seek amendment or modification to the seniority determined by notifying of previous government employment or inaccuracy of the calculations as to their seniority. The letters informed that dismissal would be effective thirty (30) days thereafter and their right to appeal this decision to JASAP (Board of Appeals of the Personnel Management System).
Plaintiffs have not addressed either in the absence of any opposition to summary judgment, nor could it be established from the unsworn complaint, that defendants' submission of a facially neutral seniority system served as grounds for the layoff plan, and such action was but a pretext and/or maintained with a discriminatory animus. Allegations in the pleadings of an unsworn complaint do not constitute facts for purposes of resolving summary judgment. Defendants have provided documents, including sworn statements based on personal knowledge of the affiants and documents showing the municipality established a seniority system which was used as grounds for dismissal and which seems bona fide. Even if plaintiffs would survive the defendants' motion to dismiss, by taking all of plaintiffs' allegations in the complaint as true and making all inferences in their favor, they would not be able to survive a well pleaded, documented, and unopposed motion for summary judgment.
In summary judgment dealing with claims of political discrimination in employment, once defendants submit an articulate reason, legitimate and nondiscriminatory, plaintiff must offer evidence to show the reason is a mere pretext. Kosereis v. State of Rhode Island, 331 F.3d 207 (1St Cir. 2003) (at the third step of the burden shifting ritual, the need arises to test the pretextuality vel a non of the employer's articulated reason for having acted adversely to the plaintiffs' interest).
In Woods Leber v. Hyatt Hotels, 124 F.3d 47, 50 (1St Cir. 1997), with respect to summary judgment, non-movant party must identify properly substantiated facts sufficient to establish a trial-worthy issue and may not rest on mere allegations or denials of their pleadings. Borschow Hospital v. Cesar Castillo, 96 F.3d 10, 14 (1St Cir. 1996) (quotingBarbours v. Dynamics Research, 63 F.3d 32, 36 (1st Cir. 1995)). Employment seniority system is bona fide and not discriminatory if it was not adopted or operated with discriminatory intent. Employer does not have the burden of proving that seniority system is bona fide. The ultimate burden falls on the employee to prove that seniority system was not bona fide. In the allocation of burden established under theMcDonnell Douglas evidentiary framework, the burden shifting mechanism, aprima facie case of discrimination should establish that 1) plaintiff is a member of a protected group 2) who was subject to adverse employment action 3) who qualifies for the position and 4) a person not of the protected class replaced or was selected over plaintiff. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
Plaintiffs need to demonstrate the existence of a trial worthy issue regarding discriminatory conduct by defendants, the Mayor and the Human Resources Director and by the Municipality of Arecibo. See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d at 50 (stating, with respect to summary judgment, "the nonmovant must identify properly substantiated facts sufficient to establish a trialworthy issue"). In attempting to meet this burden, plaintiffs may not rest on the "mere allegations or denials of his pleading." Borschow Hospital Med. Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d at 14. Rather, he must "point to evidence in the record that would permit a rational factfinder to conclude that the challenged personnel action occurred and stemmed from a politically based discriminatory animus." Rivera Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994). See also Lopez-Carrasguillo v. Rubianes, 230 F.3d 409, 413 (1st Cir. 2000).
Additionally, affidavits in opposition to a motion for summary judgment, although none were submitted in this case, must be based on the affiants personal knowledge. See Fed.R.Civ.P. 56(e); Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) (noting that such affidavits must be made on personal knowledge and set forth facts that would be admissible in evidence).
An assertion, if an opposition to the defendants' motion for summary judgment would have been filed in this case, that merely repeats the conclusory allegations in the complaint would neither have established a genuine issue of material fact regarding whether plaintiffs were treated differently because they were members of the opposing political party. See Santiago-Ramos v. Centennial P.R. Wireless Corp. 217 F.3d 46, 53 (1st Cir. 2000) ("To the extent that affidavits submitted in opposition to a motion for summary judgment merely reiterate allegations made in the complaint, without providing specific factual information made on the basis of personal knowledge, they are insufficient.").
Consonant with above, there is no evidence either from plaintiffs as to a policy or custom of a discriminatory animus, except for the unsworn complaint requesting injunctive relief, that would warrant liability by the Municipality of Arecibo. Monell v. Dept. of Soc. Servs. New York, 436 U.S. 658, 98 S.Ct. 2018 (1978) (negating respondeat superior liability of municipalities under 42 U.S.C. § 1983 for violations of federal civil rights). Both under § 1983 and/or Title VII, plaintiffs must prove that defendants acted with discriminatory intent.
Thus, it is recommended that defendants' Motion for Summary Judgment BE GRANTED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1St Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").