437 F.3d 145 (1st Cir. 2006), 04-2719, Velez-Rivera v. Agosto-Alicea

Docket Nº:04-2719.
Citation:437 F.3d 145
Party Name:Iseut G. V
Case Date:February 10, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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437 F.3d 145 (1st Cir. 2006)

Iseut G. VÉLEZ-RIVERA; Fernando Peña-Castro, Plaintiffs, Appellants,


Hon. Juan AGOSTO-ALICEA, in his personal capacity and in his official capacity as President of the Government Development Bank; Government Development Bank of Puerto Rico; Alba Caballero-Fuentes; Lilliam Jiménez-Montijo, Defendants, Appellees.

No. 04-2719.

United States Court of Appeals, First Circuit.

February 10, 2006

        Heard Dec. 7, 2005.


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        Francisco R. González-Colón, with whom F.R. González Law Office was on brief, for appellants.

        Carlos A. Del Valle-Cruz, with whom Esther Crespin-Credi, Attorneys of the Puerto Rico Department of Justice, were on brief, for appellee Alba Caballero-Fuentes.

        Ineabelle Santiago-Camacho, with whom Rafael Escalera-Rodriguez, Michelle Taveira-Tirado, and Reichard & Escalera, were on brief, for appellee Hon. Juan Agosto-Alicea, in his personal capacity.

        Edwin J. Seda-Fernandez, with whom Patricia R. Limeres-Vargas and Adsuar Muniz Goyco & Besosa, P.S.C., were on brief, for appellees Government Development Bank of Puerto Rico and Hon. Juan Agosto-Alicea, in his official capacity.

        Irene S. Soroeta-Kodesh, Assistant Solicitor General, with whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana D. Negron-Vargas, Deputy Solicitor General, and Maite D. Oronoz-Rodriguez, Deputy Solicitor General, were on brief, for appellee Lilliam Jimenez-Montijo.

        Before Torruella, Circuit Judge, Cyr and Stahl, Senior Circuit Judges.

        TORRUELLA, Circuit Judge.

        Plaintiffs Iseut G. Velez-Rivera ("Velez") and Fernando Pena-Castro ("Pena")

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brought action under 42 U.S.C. § 1983 for injunctive relief and compensatory and punitive damages against defendants Juan Agosto-Alicea ("Agosto") in his official and personal capacities, Alba Caballero-Fuentes ("Caballero"), Lilliam Jimenez-Montijo ("Jimenez"), and the Government Development Bank of Puerto Rico ("GDB").1 Plaintiffs allege that their employment with GDB was unlawfully terminated as a result of their political affiliation with the New Progressive Party ("NPP"), in violation of their First and Fourteenth Amendment rights.

        On February 19, 2004, the magistrate judge issued a Report and Recommendation denying defendants' motion for summary judgment. On August 24, 2005, the district court dismissed all of plaintiffs' federal claims with prejudice and granted summary judgment. Plaintiffs then filed a motion for reconsideration which the district court denied on June 9, 2005. Plaintiffs now appeal.

        Because we find that the district court properly granted summary judgment against both Velez and Pena, we affirm.


        In the general elections of November 2000, the incumbent NPP was defeated by the Popular Democratic Party ("PDP"). As part of the transition to the new administration, Agosto was appointed president of GDB on January 2, 2001. Upon taking office, Agosto hired defendant Caballero, an independent contractor in the field of human resources, to investigate all employment actions executed at GDB between July 1, 2000 and December 31, 2000 to assess their legality.2 Velez-Rivera v. Agosto-Alicea, 334 F.Supp.2d 72, 90-91 (D.P.R. 2004).

        On September 7, 2000 -- one day before the commencement of the moratorium period -- plaintiff Velez had been promoted to Deputy Director of Human Resources at GDB, subject to a six-month probationary period that was scheduled to expire on March 6, 2001. Id. at 83. Although Velez maintains that her performance was at all times satisfactory, she received notice on February 15, 2001 that her probation period had been extended for three additional months so that her qualifications could be reviewed. Id. Velez claims that at one point defendant Jimenez, GDB's Human Resources and Labor Relations Director, warned her that "she would soon be dismissed because she was a New Progressive Party Member." On June 15, 2001, Jimenez presided over an informal hearing in which it was determined that Velez did not comply with the minimum requirements of her position at the time of her promotion. Velez-Rivera, 334 F.Supp.2d at 91. On July 12, 2001, Agosto sent a letter to Velez informing her that her appointment was null and void and terminating her employment. Id. at 83.

        Velez insists that she was terminated because of unlawful political discrimination.

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Defendants claim -- and the district court agreed -- that Velez did not meet the requirements for the position of Deputy Director of Human Resources in September 2000 and thus that her termination was appropriate because her promotion violated GDB personnel regulations and the "merit principle."3

        On February 4, 1999, plaintiff Pena signed a contract with GDB for services including "consulting in the sale of equity and debts of hotels, specifically, Mr. Pena [would] contribute his experience and education in areas such as valuation, negotiation and legal structuring of different transactions" Velez-Rivera, 334 F.Supp.2d at 86. On September 7, 1999, Pena signed another service order expanding the scope of his services to "consulting in the area of privatization." Id. He signed similar service orders in December 1999 and July 2000, none of which were limited by expiration dates. Id. On November 21, 2000, Pena signed a final service order that was to replace all previous orders and that specified an effectiveness period of November 1, 2000 to June 30, 2001. Id. On February 9, 2001, Pena was informed of the premature cancellation of his service order. Id.

        Pena alleges that his contract was terminated because of political discrimination. His four previous service orders had been renewed without complaint, and Pena claims that he was given no explanation when he was fired and "replaced with two PDP members who now perform the same services that he performed while employed with the GDB." Brief for Appellants at 10. He also claims that GDB's executive vice president stated publicly that "all service orders with NPP members would be cancelled." Id. at 11. Defendants maintain that Pena's contract was not terminated because of political discrimination, and that, as a contract employee, he had no legitimate expectation of continued employment with GDB.


        We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir. 2002) . Summary judgment is properly granted if the movant can demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In the summary judgment context, we have construed "genuine" to mean "that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party" United States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir. 1992) . Similarly, a fact is "material" if it is "one that might affect the outcome of the suit under the governing law." Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994) (internal citation and quotation marks omitted).


        The first issue before us is whether, as plaintiffs contend, the district court

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applied the wrong pleading standard when it granted defendants' motion for summary judgment. This claim is meritless. Plaintiffs rely on our opinion in Gorski v. New Hampshire Dep't of Corrections, 290 F.3d 466, 473 (1st Cir. 2002), to remind us that "complaints alleging employment discrimination need only satisfy 'the simple requirements of Rule 8 (a).' "4 Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). Although they have correctly stated the applicable law, plaintiffs have completely misapplied the principle to the facts of their case. Swierkiewicz specifically invalidated the requirement, formerly recognized in some circuits including this one, 5 that plaintiffs plead facts establishing a prima facie case in order to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 511. Instead, Swierkiewicz requires only a short and plain statement to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." (internal citation and quotation marks omitted). Id. at 512.

        Plaintiffs allege that the district court applied the heightened pleading standard in two separate instances. First, when it granted summary judgment for Agosto because Pena had failed to allege any material fact showing "deliberate indifference," an element of "supervisory liability." Brief for Appellants at 21. Second, when the district court found that Agosto was protected under the doctrine of qualified immunity because his actions with...

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