Concepcion v. Zorrilla

• Decision Date: 08 March 2004
• Docket Number: No. CIV. 01-2000(RLA).,CIV. 01-2000(RLA).
• Citation: 309 F.Supp.2d 201
• Parties: Maribel CONCEPCION, Plaintiff, v. Frank ZORRILLA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 201

309 F.Supp.2d 201

Maribel CONCEPCION, Plaintiff, v. Frank ZORRILLA, et al., Defendants.

No. CIV. 01-2000(RLA).

United States District Court, D. Puerto Rico.

March 8, 2004.

Jesús Hernández Sánchez, San Juan, PR, Raúl Barrera-Morales, San Juan, PR, for Plaintiff.

María Luisa Martinez-López, Avila Martinez & Hernandez, San Juan, PR, Teresa M. Seda-Ramos, Sanchez Betances & Sifre, P.S.C., San Juan, PR, Ineabelle Santiago-Camacho, Reichard & Escalera, San Juan, PR, for Defendant.

ORDER IN THE MATTER OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ACOSTA, District Judge.

Defendants have moved for summary judgment requesting dismissal of the claims asserted in these proceedings. The court having reviewed the arguments submitted by the parties hereby finds as follows.

This action was instituted by MARIBEL CONCEPCION against the AUTOMOBILE ACCIDENT COMPENSATION AUTHORITY ("ACAA") as well as FRANK ZORRILLA, its Executive Director, and MABEL ALVARADO, Director of Human Resources, in their official and individual capacities. Plaintiff alleges political discrimination and seeks both equitable relief and damages pursuant to the First, Fifth and Fourteenth Amendments of the Constitution of the United States, 42 U.S.C. § S 1983 and 1985. Additionally, plaintiff brought a tort claim pursuant to art. 1802 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. § 5141 (1990) under our supplemental jurisdiction.

I. SUMMARY JUDGMENT STANDARD

Rule 56(c) Fed. R. Civ. P., which sets forth the standard for ruling on summary judgment motions, in pertinent part provides that they shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir.2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.1999). The party seeking summary judgment must first demonstrate the absence of a genuine issue of material fact in the record. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). A genuine issue exists if there is sufficient evidence supporting the claimed factual disputes to require a trial. Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993), cert. denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if it might affect the outcome of a lawsuit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.1995).

In cases where the non-movant party bears the ultimate burden of proof, he must present definite and competent evidence to rebut a motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.2001); Grant's Dairy v. Comm'r of Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir.2000), and cannot rely upon "conclusory allegations, improbable inferences, and unsupported speculation". Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st Cir.2000); Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

II. THE FACTS

1. Plaintiff worked in the Human Resources Office of ACAA from August 1, 1999 until May 1, 2001.

2. On August 12, 1999 plaintiff's position as Assistant to the Auxiliary Director of Human Resources was reclassified to Human Resources Manager, due to a substantial change in duties and responsibilities.

3. On April 3, 2000 plaintiff was recommended for a merit step increase based on her outstanding performance in the Human Resources Office. At the time she was also Acting Director of the Human Resources Office.

4. Effective May 1, 2001 plaintiff was transferred to a new position entitled Operational Administration Manager in ACAA's Operations Department pursuant to a letter subscribed by FRANK ZORRILLA dated April 27, 2001.

5. Prior to her transfer, plaintiff's last position was Human Resources Manager.

6. Two new manager positions were created in the Operations Department, including plaintiff's.

7. Plaintiff was offered a hearing to challenge her transfer but did not act upon it.

8. Plaintiff is a New Progressive Party ("NPP") advocate whereas defendants ZORRILLA and ALVARADO belong to the Popular Democratic Party ("PDP").

III. THE CLAIMS

Plaintiff contends that her transfer was tantamount to a constructive dismissal and demotion, responding to no real government needs. She also claims that in her new position she has not been assigned any managerial and/or supervisory work in accord with the description of duties for the position but rather has been occasionally given menial clerical tasks to carry out. Plaintiff alleges that the rest of the time she remains idle at her desk without any actual duties or responsibilities. Specifically, she notes that "[o]f the tasks and responsibilities included in the job description of Manager of Operational Administration, plaintiff has never been assigned the same and has not performed the same at any moment."¹

According to plaintiff, the underlying reasons used by ACAA for creating the two new positions in the Operations Department are non-existent. No real and necessary functions have been identified nor any adequate of valid evaluation was carried out to properly determine the needs warranting the new manager positions.

Defendants, on the other hand, deny any improper motive and argue that plaintiff has failed to assert a valid claim because plaintiff's new position was created due to a reorganization in ACAA's Operations Department and was within the same scale as her previous position in the Human Resources Office. Also, her salary remained intact. Defendants further contend plaintiff's transfer was because of the necessity of service in accordance with applicable ACAA Regulations.

IV. CONSTRUCTIVE DISMISSAL

At ¶ 17 of the complaint plaintiff alleges that her "demotion to a position different to which she was entitled without any supervisory functions nor any apparent duties, constituted a constructive dismissal." (Emphasis ours).

This allegation borders on conduct subject to sanctions against counsel personally. There is absolutely no factual basis for this assertion inasmuch as plaintiff has never resigned from employment at ACAA. As the term unequivocally connotes, the sine qua non requirement for a constructive discharge claim is that a plaintiff is compelled to leave his or her employment.

[T]he purpose of the constructive discharge doctrine [is] to protect employees from conditions so unreasonably harsh that a reasonable person would feel compelled to leave the job. The doctrine reflects the sensible judgment that employers charged with employment discrimination ought to be accountable for creating working conditions that are so intolerable to a reasonable employee as to compel that person to resign.

Ramos v. Davis & Geck, Inc., 167 F.3d 727, 732 (1st Cir.1999).

In order to establish a claim based on constructive discharge "plaintiff must prove that his employer imposed working conditions so intolerable that a reasonable person would feel compelled to forsake his job rather than to submit to looming indignities." Landrau-Romero v. Banco Popular De P.R., 212 F.3d 607, 613 (1st Cir.2000) (citations and internal quotations omitted); Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 46 (1st Cir.1999); Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir.1997). See also, Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir.2001) ("treatment so hostile or degrading that no reasonable employee would tolerate continuing in the position").

The "subjective perceptions" of the employee are insufficient. The reasonableness of plaintiff's decision to leave his employment is an objective one and will be examined based on the ability to "present sufficient evidence to allow the jury to credit his claim that a reasonable employee would have felt compelled to resign under the circumstances," Ramos v. Davis & Geck, Inc., 167 F.3d at 731 and "cannot be triggered solely by the employee's subjective beliefs, no matter how sincerely held." Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28 (1st Cir.2002). See also, Serrano-Cruz, 109 F.3d at 26 (applying "objective standard" in examining employer's actions).

Likewise, discriminatory intent is not part of the probative calculus for this particular type of claim. Thus, plaintiff is not required to present "proof that the employer created the intolerable work conditions with the specific intent of forcing the employee to resign." Ramos v. Davis & Geck, Inc., 167 F.3d at 732.

Based on the foregoing, plaintiff's claim for constructive discharge is DISMISSED.

V. SECTION 1983

Section 1983 does not create substantive rights but is rather a procedural mechanism for enforcing constitutional or statutory rights. Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). The statute, i.e., § 1983" `is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred... by the United States Constitution and federal statutes.'" Rodriguez-Garcia v. Municipality of Caguas, 354 F.3d 91, 99 (1st Cir.2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Hence, it is plaintiffs' burden to identify the particular underlying constitutional or statutory right that is sought to be enforced via judicial proceedings.

In order to prevail in a § 1983 claim plaintiff must bring forth evidence that (1) defendant acted "under color of state law" and (2) deprivation of a federally protected right. Rogan v. City of Boston, 267 F.3d 24 (1st Cir.2001); DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 33 (1st Cir.2001); ...