Borrás-Borrero v. Corporación Del Fondo Del Seguro Del Estado

• Decision Date: 01 May 2020
• Docket Number: No. 17-1769,17-1769
• Citation: 958 F.3d 26
• Parties: Antonio BORRÁS-BORRERO; Ivelisse Serrano-Rodríguez; Conjugal Partnership Borrás-Serrano, Plaintiffs, Appellants, v. CORPORACIÓN DEL FONDO DEL SEGURO DEL ESTADO ; Liza Estrada-Figueroa; Migdali Ramos-Rivera; Francisco Irlanda-Méndez; María Enid Barreto-Rodríguez; Juan Escobar-del Valle, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

958 F.3d 26

Antonio BORRÁS-BORRERO; Ivelisse Serrano-Rodríguez; Conjugal Partnership Borrás-Serrano, Plaintiffs, Appellants,

v.CORPORACIÓN DEL FONDO DEL SEGURO DEL ESTADO ; Liza Estrada-Figueroa; Migdali Ramos-Rivera; Francisco Irlanda-Méndez; María Enid Barreto-Rodríguez; Juan Escobar-del Valle, Defendants, Appellees.

No. 17-1769

United States Court of Appeals, First Circuit.

May 1, 2020

Rafael E. Rivera-Sánchez, San Juan, for appellants. Carlos Lugo-Fiol, with whom Isaías Sánchez-Báez, Solicitor General, was on brief, for appellees Lisa Estrada-Figueroa, Migdali Ramos-Rivera, Francisco Irlanda-Méndez, María Enid Barreto-Rodríguez, and Juan M. Escobar-del Valle.

Peter W. Miller, Old San Juan, with whom Javier A. Vega-Villalba, Stuart A. Weinstein-Bacal, Old San Juan, and Weinstein-Bacal, Miller & Vega, P.S.C. were on brief, for appellee Corporación del Fondo del Seguro del Estado.

Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

HOWARD, Chief Judge.

Antonio Borrás-Borrero appeals the district court's dismissal of his complaint¹ alleging that the Corporación del Fondo del Seguro del Estado (the "SIFC"² ), along with its administrators (the "Individual Defendants"), conspired to deprive Borrás of his First, Fourth, Fifth, and Fourteenth Amendment rights. Specifically, Borrás asserts that several adverse employment actions taken against him by the SIFC — a demotion, suspension with pay, and suspension without pay — were acts of retaliation to punish him for his constitutionally-protected whistleblowing activities.

We address the claims in two sets: first, we summarily affirm the district court's dismissal of the following claims because Borrás has failed to "seriously develop[ ]" arguments in their favor on appeal: (1) deliberate and intentional infliction of economic and emotional injury; (2) violation of Borrás's Fifth Amendment right against self-incrimination; (3) impermissible disclosure of Borrás's personnel file; and (4) malicious prosecution. Tejada-Batista v. Morales, 424 F.3d 97, 103 (1st Cir. 2005) (stressing that "[a]n argument not seriously developed in the opening brief" is lost); see also Rodríguez v. Mun. of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (holding that arguments "adverted to in a cursory fashion, unaccompanied by developed argument," are waived).

Next, for the reasons discussed below, we also affirm the district court's dismissal of the remaining claims, although we vacate the district court's dismissal of the Puerto Rico law claims with prejudice and remand with instructions to dismiss those claims without prejudice.

I. Factual History

The SIFC is a public governmental agency created under Puerto Rico law to administer workers' compensation and medical treatment programs for employees injured in the workplace. Borrás has been an SIFC employee since 1984. The Individual Defendants, also employees of the SIFC, include: (1) Liza Estrada-Figueroa, the head Administrator of the SIFC; (2) Migdali Ramos-Rivera, the Associate Director of the SIFC's Labor Relations Office under Estrada's direct supervision; (3) Francisco Irlanda-Méndez, an officer in the Labor Relations Office under Ramos's direct supervision; (4) Juan Escobar-del Valle, a janitor and internal messenger; and (5) María Enid Barreto-Rodríguez, a Regional Director under Estrada's direct supervision, who, at all times relevant to the complaint, was the regional director for Borrás and Escobar.

Two allegedly retaliatory actions by the SIFC comprise the basis of Borrás's complaint. The first took place in 2010. Early that year, soon after his promotion to supervisor of his office, which produced worker's compensation policies for employers, Borrás reported to the SIFC's audit division that an employee named Nury Curet, whom he supervised, had been absent for two days. According to Borrás, following his report documenting Curet's absence, Curet's husband approached Borrás in his office "full of rage" and attempted to physically assault him. Borrás reported this incident both to the SIFC's internal Labor Relations Office and to law enforcement. However, when the police came to take Borrás's complaint, SIFC administrators told them that the incident would be handled internally.

Shortly after this incident, the Regional Director of Borrás's office allegedly told Borrás that he would be demoted from his position as supervisor because of "his political affiliation with the Popular Democratic Party." According to Borrás, the Regional Director added that the incident with Curet and her husband "had precipitated his demotion." The relationship between Borrás's political affiliation and the incident with Curet remains unclear from the complaint. Thereafter, Borrás was removed from his post as supervisor and reassigned to his previous union-protected position. In response, Borrás filed a lawsuit against the SIFC — unrelated to this one — alleging that he had been impermissibly demoted because of his political affiliation.³

The second allegedly retaliatory act against Borrás took place in 2014. According to Borrás, Defendant Juan Escobar-del Valle had been engaged in a "pattern of hostilities" towards Borrás for several years. In March 2014, these hostilities escalated when Escobar allegedly "tried to assault and batter" Borrás at a shopping mall and again at work the next day. Borrás reported these incidents to the internal Labor Relations Office, as well as to the Regional Director in charge of his office. Borrás alleges that the SIFC failed to investigate these events.

On August 29, 2014, Borrás found himself in yet another physical altercation with Escobar, this time at a union assembly meeting. According to Borrás, Escobar deliberately bumped into him and then used the bump to start a fight, "physically assault[ing]" Borrás and hitting him in the face. Borrás sustained "bruises and injuries to his eyes, especially his left eye that had been operated [on] for glaucoma

." This time, Borrás reported the incident to the police.

Borrás alleges that after this incident, Escobar contacted Defendant Maria Enid Barreto-Rodríguez (then the Regional Director of the SIFC office in which Borrás and Escobar worked) to inform her of the fight. Borrás further alleges that after receiving this information, Barreto turned to Defendant Migdali Ramos-Rivera (then the Chief of the Labor Relations Office), asking her to fabricate disciplinary charges against Borrás "as if [Borrás] had been the assailant." Finally, Borrás alleges that Ramos assigned the task of creating a falsified disciplinary action to Defendant Francisco Irlanda-Méndez (then an employee at the Labor Relations Office for the SIFC), who did as he was asked.

Four days after the fight at the union assembly meeting, Irlanda summoned Borrás for an interview regarding the incident. Borrás refused to speak to Irlanda about the physical altercation, citing his Fifth Amendment right against self-incrimination and explaining that because there was an ongoing criminal investigation by the San Juan Municipal police, he did not know if he would be charged. The next day, September 3, 2014, Borrás received a letter indicating that, as a result of the fabricated assault allegations against him, he had been suspended from work, with pay.

On September 11, 2014, criminal charges were filed against Escobar in Puerto Rico court for the alleged assault. At one point, the judge instructed Ramos, who was present in the courtroom for a discovery conference, to produce a copy of Borrás's personnel file for in camera inspection. Ramos complied, giving the file directly to Escobar's attorney, despite Borrás's protests that the production of his personnel file constituted a violation of both his privacy rights and SIFC policy. The court ultimately found Escobar not guilty.

Borrás also alleges that while all of this was going on, the SIFC "unlawfully transferr[ed]" his wife, Plaintiff Ivelisse Serrano-Rodríguez, to a different regional office, allegedly in retaliation for her testimony during the trial. Serrano immediately filed an internal complaint challenging her transfer, and she was reinstated to her original post.

On September 22, 2014, the SIFC held a Loudermill hearing for Borrás. The examiner at the hearing ultimately recommended that Borrás be suspended without pay for sixty days. Shortly thereafter, Boráas received a letter signed by Estrada notifying him of his suspension without pay, which adopted by reference the recommendation made by the hearing examiner.

II. Procedural History

In January 2016, Borrás filed the present complaint in the United States District Court for the District of Puerto Rico, alleging that the SIFC and its officers had conspired to deprive him of his constitutional rights. Specifically, Borrás asserted that his internal and external reporting of the various incidents were constitutionally-protected "whistleblowing activities," and that the SIFC and its administrators had punished him for these activities by demoting and suspending him. The complaint includes claims brought under 42 U.S.C. § 1983 (" Section 1983") that the SIFC and its administrators' behavior violated the U.S. Constitution, as well as claims that the SIFC violated Puerto Rico law.

The SIFC moved to dismiss Borrás's complaint based on Eleventh Amendment immunity. A few weeks later, the Individual Defendants followed suit, filing a "Motion for Joinder and Motion to Dismiss under Additional Grounds." Borrás timely filed his opposition to each motion. In his response to the Individual Defendants' motion, Borrás referenced the need to amend his complaint. Nevertheless, despite the ability to amend the complaint "once as a matter of course" under Fed. R. Civ. P. 15(a)(1), at no point did Borrás actually amend his complaint or request leave to file an amended complaint.

The district court entered a partial judgment granting the SIFC's motion to dismiss based on Eleventh Amendment immunity on March 22, 2017, and a...