Rosario Torres v. Hernandez Colon, Civ. No. 86-0504 (JP).

Decision Date21 September 1987
Docket NumberCiv. No. 86-0504 (JP).
PartiesMiguel A. ROSARIO TORRES; Antonio Bello Mendez; Victor Pedraza Rosario; Jose M. Torres Pagan; Mildred Matos, and the conjugal partnership formed by both spouses; Angel M. Diaz Mila; Juan J. Claudio Morales; Felix Resto Nieves; Eledmiro Loubriel Cancel; and Maria Soto Rodriguez, Plaintiffs, v. Rafael HERNANDEZ COLON, Governor of the Commonwealth of Puerto Rico, in his personal and official capacities, and Lila Mayoral; and the conjugal partnership formed by both spouses and Franklin Martinez, in their personal and official capacities, and Jane Doe and the conjugal partnership formed by both, Defendants.
CourtU.S. District Court — District of Puerto Rico

Rafael Sánchez Hernández, Santurce, P.R., Rafael Castro Lang, José Ramón Pérez Hernández, San Juan, P.R., for plaintiffs.

Zuleika Llovet, Saldaña, Morán, Rey & Alvarado, Santurce, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

This is a civil rights action under 42 U.S.C. § 1983, in which nine plaintiffs seek injunctive relief, back pay, and damages as a result of alleged politically motivated dismissals. These plaintiffs, mostly domestic employees of La Fortaleza, the Governor's mansion, contend they were dismissed because of their political beliefs and affiliation with the New Progressive Party (NPP), in violation of the first, fifth, and fourteenth amendments to the United States Constitution. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4).

The matter was tried without a jury, where both parties presented witnesses and documentary evidence. At the start of the trial, the plaintiffs voluntarily dismissed Governor Rafael Hernández Colón from the case, leaving Franklin Martínez Monge as the only defendant. Upon conclusion of the trial, the parties submitted the case to the Court for adjudication. Based upon the evidence, and after due deliberation, the Court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. At the time of their dismissals, all nine plaintiffs occupied career positions with the Office of the Governor at La Fortaleza. All plaintiffs are members of the NPP. The NPP lost the general elections held in Puerto Rico on November 6, 1984, and the control of the Executive Branch of the Commonwealth Government, which it held for the previous eight years. Their names, positions, and monthly salaries are set forth below:

                        Plaintiff                   Job Title                    Salary p/m
                        Miguel A. Rosario Torres    Executive Officer III           $1,029.00
                        Antonio Bello Méndez        Driver                           682.00
                        Victor Pedraza Rosario      Driver I                            549.00
                        José M. Torres Pagán        Messenger II                       586.00
                        Angel M. Díaz Mila          Driver                             590.00
                        Juan J. Claudio Morales     Warehouse Keeper                   740.00
                        Félix Resto Nieves          Driver I                           612.00
                        Edelmiro Loubriel Cancel    Driver I                           682.00
                        María Soto Rodríguez           Clerk Typist II                            570.00
                

2. Defendant Franklin Martínez Monge is the Special Aide in charge of Aministration for Governor Rafael Hernández Colón. He is a member of the Popular Democratic Party (PDP), the political party whose candidate, Rafael Hernández Colón, was elected Governor of the Commonwealth of Puerto Rico in the general elections held on November 6, 1984, and who at present holds said office. He has held the position since April 1, 1985, and in that position he dismisses, employs, and makes all personnel decisions at the Office of the Governor. Defendant Martínez Monge personally made the decision to initiate an investigation of the plaintiffs' personnel files and those of other employees working at the Office of the Governor. He made the decision to separate all the plaintiffs from their career positions they occupied at the Office of the Governor. At the time he took this personnel action he did not evaluate or consider the job performance of any of the plaintiffs. He is a member of the Popular Democratic Party (PDP), and during the 1984 elections was a candidate for the position of Member of the Municipal Assembly of San Juan for the PDP.

3. On May 20, 1985, defendant Martínez Monge sent letters to each plaintiff stating that an analysis of their appointment papers revealed that they were originally recruited without fulfilling the minimum academic preparation and experience required for their respective positions, in violation of section 4.3 of Act No. 5 of October 14, 1975, as amended, and the applicable regulations. The letter continued to say that their appointments were null and void and lacked validity. The letter also stated they had the right to an informal administrative hearing so that they could state their version and to show cause why their dismissals should not proceed. The employees were granted 15 working days to request a hearing or present their reactions to the findings. After the requested hearing or after the 15 days would have elapsed without a request, he would proceed to a determination.

4. Defendant Martínez Monge selected and appointed the examiner that held the informal administrative hearing offered to plaintiffs. The examiner held hearings between June 21, 1985, and June 26, 1985, for those employees who responded to the May 20, 1985, letter. All plaintiffs requested and received a hearing except for plaintiff José M. Torres Pagán, who did not request a hearing. The hearing examiner rendered two reports to defendant Martínez Monge resulting from the hearings, dated June 21, 1985, and July 1, 1985. The examiner gave hearings to approximately fifty other government employees who were sent letters similar to the May 20, 1985, letters regarding invalid appointments. After all these hearings, in the aforementioned reports the examiner found that no employee could show cause why they should not be separated. He found that they could produce no evidence to rebut the allegations contained in the May 20, 1985, letter. Specifically, he found that some employees were not able to produce evidence that they met the minimum requirements for their respective positions, and that all were not selected from a Register of Eligibles.

5. Five of the nine plaintiffs were accompanied by counsel to the hearings, but had no opportunity to cross-examine nor to present witnesses: Angel M. Díaz Mila, Juan J. Claudio Morales, Miguel Rosario Torres, Félix Resto Nieves, and María Soto Rodríguez. Francisca Pérez, Esq., and Mrs. Edna Morales, Director of Personnel, were present at the hearings representing the Office of the Governor.

6. All plaintiffs were selected to their career positions without having been recruited from a Register of Eligibles. However, it was determined at trial that the Office of the Governor maintained no Register of Elegibles from which it could select employees for the positions from which they were fired.

7. Twelve employees were named to probationary career positions in the Office of the Governor by the new PDP administration without having been selected from a Register of Eligibles. They were later appointed to transitory and confidence positions, and still maintain those positions.

8. Plaintiff Edelmiro Loubriel Cancel was appointed effective May 2, 1977, to the position of Driver I, No. 204, with a classification in the trust service. On July 1, 1977, he obtained position 165 also in the trust service. On January 3, 1978, plaintiff attained a probationary period for the position of Driver I, No. 165, in the career service as "reclassified". On April 2, 1978, he was given tenure in said position holding the same until the time of his separation. Loubriel Cancel's monthly salary at the time of his separation was $682.00.

9. As a Driver in the General Services Division, Loubriel Cancel would drive administrative personnel between the Governor's Office and other executive agencies. He never drove the Governor. He would sometimes deliver documents between the Governor's Office and other executive agencies. In 1978, Loubriel Cancel received an overall good evaluation of his work. In 1985, when the new administration took office, his working schedule was changed from Monday to Friday, from 7:00 a.m. to 3:00 p.m., to Wednesday to Sunday, from 3:00 p.m. to 12:00 m. At the time of his dismissal, he was employed for eight years and five months as a driver for the Office of the Governor.

10. Ernesto Sala was a supervisor of the drivers and drove defendant Martínez Monge home every day. Sala knew plaintiff Loubriel Cancel since he began work with La Fortaleza in 1978, and frequently discussed politics with him. Loubriel Cancel had a bumper sticker on his car indicating his political affiliation, and parked it in the employees parking lot, located next to their offices. Plaintiff Loubriel Cancel is now a driver for the Mayor's Office for the San Juan Municipality.

11. Plaintiff José M. Torres Pagán was appointed as Messenger I, position No. 142, in the trust service on January 17, 1977. On January 3, 1978, plaintiff attained a probationary period for the position of Messenger I, position No. 194, in the career service. He "obtained" tenure in said position on April 2, 1978. On March 16, 1981, plaintiff held another probationary period for the position of Messenger II, position No. 194, in the career service. On June 16, 1981, he "obtained" tenure in said position holding the same until the time of his separation. Plaintiff Torres Pagán's monthly salary at the time of his separation was $586.00.

12. Mr. Torres Pagán worked for the Division of Archives and Correspondence for the Office of the Governor. He worked in the offices accross from the old Justice Department Building on Fortaleza Street. His duties...

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4 cases
  • Rosario-Torres v. Hernandez-Colon
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 12, 1989
    ...the district court determined that plaintiffs were entitled to, and had been denied, procedural due process, Rosario Torres v. Hernandez Colon, 672 F.Supp. 639, 650-53 (D.P.R.1987); that the pretermination hearings were a "sham," id. at 648; and that the plaintiffs had been dismissed solely......
  • Castrello Merced v. Hernandez Colon
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 20, 1990
    ...were seldom if ever applied. See Rosario-Torres, 889 F.2d at 325-27 (Torruella, J., dissenting), citing Rosario Torres v. Hernández Colón, 672 F.Supp. 639, 651-52 (D.P.R.1987). 3 In addition to their due process and first-amendment claims, plaintiffs have alleged a violation of the equal pr......
  • Duchesne v. Williams
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 22, 1988
    ...sufficient. We find no Court of Appeals holdings to the contrary. Some District Courts have held otherwise. Rosario Torres v. Hernandez Colon, 672 F.Supp. 639, 652-53 (D.P.R.1987) (neutral decisionmaker required in pretermination hearing); Cook v. Bd. of Educ., 671 F.Supp. 1110, 1116 (S.D.W......
  • Maldonado Maldonado v. Lausell
    • United States
    • U.S. District Court — District of Puerto Rico
    • January 22, 1988
    ...illegality as a basis for discharge was nevertheless merely pretext for a politically motivated firing. Cf. Rosario Torres v. Hernández Colón, 672 F.Supp. 639 (D.P.R.1987) (subsequent hiring of persons in same manner as discharged NPP-affiliated governmental workers belied claim that sole m......

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