O'Connell v. Marrero-Recio

• Decision Date: 22 July 2013
• Docket Number: No. 12–2191.,12–2191.
• Citation: 724 F.3d 117
• Parties: Rosemarie O'CONNELL; Alejandro Franco, Plaintiffs, Appellants, v. Humberto MARRERO–RECIO, in his personal and official capacity; Jorge García–Faneytt, in his personal and official capacity; Jesús Méndez–Rodríguez, in his personal and official capacity, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

724 F.3d 117

Rosemarie O'CONNELL; Alejandro Franco, Plaintiffs, Appellants,

v.Humberto MARRERO–RECIO, in his personal and official capacity; Jorge García–Faneytt, in his personal and official capacity; Jesús Méndez–Rodríguez, in his personal and official capacity, Defendants, Appellees.

No. 12–2191.

United States Court of Appeals, First Circuit.

July 22, 2013.

Harry Anduze–Montaño, with whom José A. Morales–Boscio was on brief, for appellants.

Michelle Camacho–Nieves, Assistant Solicitor General, Department of Justice, with whom Margarita Mercado–Echegaray was on brief, for appellees.

Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

After brief stints as the Human Resources Director of two Puerto Rico governmental agencies, Plaintiff–Appellant Rosemarie O'Connell sued her former supervisors seeking redress under 42 U.S.C. § 1983 and the laws of Puerto Rico. The district court dismissed some of her claims at the pleading stage, and the rest at summary judgement. O'Connell now appeals the dismissal of three of those claims.

Specifically, O'Connell first challenges the dismissal of her First Amendment free speech claim, arguing that the district court erred in finding that her “speech” exclusively revolved around her professional responsibilities as Human Resources Director. Second, O'Connell challenges the dismissal of a claim she made under the Puerto Rico Whistleblowers Protection Act (“Law 426”), P.R. Laws Ann. tit. 1, § 601, and takes issue with the court's determination that she never engaged in the kind of whistleblowing activities protected under the statute. Third, O'Connell challenges the judgment on her First Amendment freedom of association claim. According to O'Connell, the court erred in holding the First Amendment inapplicable to her position as Human Resources Director.

After careful consideration, we affirm the district court on all fronts.

I. Background¹

After the New Progressive Party (“NPP”) won Puerto Rico's November 2008 general elections, O'Connell, a long-time NPP affiliate,² became the Human Resources Director of the Puerto Rico Permits and Regulation Administration (Spanish acronym “ARPE”). Shortly thereafter, Defendants–Appellees, Humberto Marrero–Recio and Jorge García–Faneytti, also NPP affiliates, were respectively appointed as the first and second in command at ARPE.³ O'Connell, Marrero, and García appear to have coexisted without conflict during their first months at ARPE.

Things changed in May 2009 when an NPP primary election pitted O'Connell and Marrero's candidates against each other. When Marrero learned that O'Connell stood in a different camp for the election, he prohibited her from campaigning in favor of her candidate. Marrero also threatened her by stating that “he did not want to learn that she voted in the primaries for [her candidate].” O'Connell voted for her candidate anyway, and a few days after the election, Marrero told O'Connell that he knew how she had voted and that, from that point on, she was not allowed to engage in any “off-office” political activities. Marrero also enlisted some of his subordinates at ARPE to spy on O'Connell. A clandestine newsletter circulating at ARPE stated that O'Connell was being videotaped and that she held a parallel private-sector job. O'Connell later learned that a subordinate of Marrero was responsible for the publication of the newsletter and that Marrero exerted control over its content.

O'Connell and Marrero also butted heads when it came time to implement the “Special Act Declaring a State of Fiscal Emergency,” also known as “Law 7.” As ARPE's Human Resources Director, O'Connell was responsible for determining and reporting the agency employees' “years of service” to a so-called Stabilization Board created under Law 7. The Board was required to determine the respective “seniority” of each employee in order to make downsizing decisions. Employees could challenge the Board's determinations within a period of 30 days.

In an attempt to prevent the possible layoff of certain NPP employees under Law 7, Marrero instructed O'Connell to falsify their personnel records by increasing their years of service. She refused, and, a few days later, García made the same request. But O'Connell reaffirmed her position “and explained that the[ ] same employees [had] failed to challenge the calculated time within the term established by Law 7[and] [t]hat it was illegal for her to change the numbers adjudicated by the Stabilization Board.”

Unable to impose his will over O'Connell, Marrero entrusted one of his subordinates with reviewing employees' challenges to the year-of-service computations made by the Stabilization Board. Marrero then instructed O'Connell to certify the work of his subordinate without validating the information provided to her. She refused and told Marrero that “the Internal Auditor, the IT Director, the License Supervisor, and human resources personnel would verify the calculations.”

O'Connell and Marrero's working relationship continued to deteriorate as she consistently refused to follow his politically motivated orders. For example, among other things, O'Connell refused to acquiesce to Marrero's wishes to (1) reinstate an NPP employee who was previously terminated because of dishonesty; (2) ignore an Office of Government Ethics request for information as to possible unethical conduct at the agency; (3) disregard personnel related inquiries made by NPP employees considered to be traitors because they were friends with employees affiliated with the opposing party; and (4) arbitrarily transfer an ARPE employee as punishment for supporting the opposing party. In refusing to act as instructed, O'Connell told Marrero that his requests “could not be legally justified and would surely bring upon [them negative legal repercussions].” Marrero responded “that he was ‘disappointed’ with her failure to act according to his wishes.” And when O'Connell reinstated the duties of another employee affiliated with an NPP opponent, Marrero responded by having an employee under his direct supervision threaten her, stating that “those who do not follow our instructions (gestured by ‘passing a finger across his neck’) ... [and we] know where your husband works and where your daughter studies.”

O'Connell tendered her resignation on October 9, 2009, effective on December 15, 2009. A few days later, however, O'Connell received an offer to become the HumanResources and Labor Relations Director for the Puerto Rico Public Buildings Authority (Spanish acronym “AEP”) under the direction of Defendant–Appellee Jesús Méndez–Rodríguez (together with Marrero and García, “Defendants”). She accepted the offer and changed the effective date of her resignation to October 31, 2009. But during O'Connell's first day at AEP, Méndez summoned her to a meeting and informed her that “she was [being] terminated immediately” because Marrero had threatened to cause problems if she was employed at the agency. As O'Connell left the AEP building, she came across an edition of ARPE's clandestine newsletter already in circulation stating that she had been immediately terminated from AEP.

O'Connell filed her complaint on October 7, 2010, and amended it on January 19, 2011. O'Connell divided Count One of her amended complaint into two sections. The first section claimed that she had been constructively discharged at ARPE, and then discharged at AEP, due to her allegiance with an NPP faction disfavored by Defendants, in violation of her First Amendment freedom of association rights. The second section claimed First Amendment free speech violations in the form of retaliation on account of “her refusal to partake in the[ ] illegal actions” requested by Marrero and García. O'Connell's Law 426 claim was pled in Count Five of the amended complaint, which stated that “Defendants took an adverse employment action against Plaintiff because of her ‘whistleblowing’ actions.”

In due course, Defendants moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion in part, dismissing O'Connell's First Amendment retaliation claim as well as her Law 426 claim. In so holding, the court rejected O'Connell's contention that the complaint sufficiently pled retaliation based on the different actions Marrero and García took upon her refusal to follow personnel-related orders that she considered illegal and politically motivated. The court reasoned that O'Connell's “speech” was made in response to Marrero's orders “pursuant to her professional activities and, therefore, d [id] not fall under the First Amendment's protections.” In connection with O'Connell's Law 426 claim, the court agreed with Defendants that the complaint failed to allege “the misuse of public property or public funds” required for a valid whistleblowing claim under that law.

Once discovery concluded, Defendants moved for summary judgment in connection with O'Connell's First Amendment freedom of association claim and the remaining state law claims. As relevant here, they argued that O'Connell's Human Resources positions at ARPE and AEP were “trust” and “policy-making” positions exempted from the protection of the First Amendment. In opposition, O'Connell stated that the responsibilities of her positions resembled those of a technocrat and not a policymaker given that Law 7 had “stripped” her job of any discretion and “severely curtailed” her supervisory duties. In a thorough, well-reasoned opinion, the district court sided with Defendants, and this appeal timely ensued.

II. Discussion

A. Challenges to the Pleading Stage Dismissals

We review the district court's ruling on a motion to dismiss de novo, accepting all well-pled facts in the complaint as true, and drawing all reasonable inferences in favor of the plaintiff. Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir.2011); Gargano v. Liberty Int'l Underwriters, Inc.,...