Novoa v. Burset
| Decision Date | 13 August 2012 |
| Docket Number | CIVIL NO.: 09-1355 (JAG) |
| Parties | DIANA Y. MARTÍ NOVOA Plaintiff, v. LUIS FORTUÑO BURSET, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
On September 15, 2009, plaintiff Diana Martí Novoa ("plaintiff" or "Martí") filed an amended complaint pursuant to 42 U.S.C. § 1983, alleging that she was terminated from her employment with the Metropolitan Bus Authority ("MBA") due to political discrimination and without a pre-termination hearing in violation of her rights under the First Amendment to the United States Constitution and under the Due Process and Equal Protection clauses of the Fourteenth Amendment. Dkt. No. 106. She also brings various claims under the laws and Constitution of Puerto Rico. The complaint names as defendants the following persons or entities: MBA; Santos Delgado Marrero, the former president of the MBA ("Delgado"); Gladys Fuentes Cruz, the MBA director of human resources ("Fuentes"); the Municipality of San Juan (the "Municipality"); Jorge Santini Padilla, the Mayor of San Juan; Miriam Hellman, the Director of Human Resources of the Municipality ("Hellman"); Luis Fortuño Burset, the Governor of Puerto Rico, and various members of his administration; the union that represents MBA employees; the Hermandad de Empleados de Oficina y Ramas Anexas (the "union"); andits president, Cristino López Hance ("López"). Dkt No. 106. 1 All defendants, with the exception of the MBA, the Municipality, and the union, are sued in their official and personal capacities.
Subsequently, all defendants filed respective motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Dkt. Nos. 107, 118, 120, 127. The court granted the motions filed by Governor Fortuño and the members of his administration, as well as the one filed by López and the union, dismissing all claims against those parties, and granted in part and denied in part the motions filed by the remaining defendants. Dkt. No. 190. The motions filed by the MBA, Delgado, and Fuentes, were granted with respect to the equal protection claim and denied as to the due process claim and the political discrimination claim. Id. Said defendants now move for summary judgment.
Pending adjudication are two motions for summary judgment, one filed by the MBA, Fuentes, and Delgado's successor, Mike O'Neill, in their official capacities, Dkt. Nos. 208 and 209, and one filed by Delgado and Fuentes in their personal capacities, Dkt. No. 218. Plaintiff has filed responses in opposition to both motions, Dkt. Nos. 288, 289, 292, and 293, and the official capacity defendants have filed a reply, Dkt. No. 301.2
The record contains evidence of the following facts, which are undisputed except where stated:
Plaintiff began her career as an employee of the Municipality of San Juan in the 1990s, where she held a career position. Dkt. Nos. 209, ¶ 1; 292 ¶, 1; 218, ¶ 1; 288 ¶ 1.3 On January 16, 2001, she was appointed to a trust position at the Governor's Office ("La Fortaleza"). Dkt. Nos. 209, ¶ 1; 292, ¶ 1; 218, ¶ 2; 288, ¶ 2. On August 11, 2008, plaintiff was transferred to the MBA and appointed to another trust position there, as a Special Assistant to the MBA president. Dkt. No. 209, ¶ 3; 292, ¶ 3; 218, ¶ 4; 288, ¶ 4. In November of 2008, general elections were held in Puerto Rico and the New Progressive Party ("NPP") won control of the Commonwealth's government. Plaintiff is a member of the opposing political party, the Popular Democratic Party ("PDP"), Dkt. No. 218, ¶ 8; 288, ¶ 8; Pl.'s ¶ 161, which had been in power in Puerto Rico since 2001. In December of 2008, plaintiff requested to be reinstated to a career position. Dkt. No. 209, ¶ 5; 292, ¶ 5; 218, ¶ 5; 288, ¶ 5; Pl.'s ¶ 5. At that point, José Santiago ("Santiago"), a Human Resources Specialist at the MBA who is also a PDP member, reviewed plaintiff's personnel file to determine the career position for which she qualified. Dkt. Nos. 209, ¶¶ 18-19, 27; 292, ¶ 18-19, 27; 218 ¶¶ 22-25; 288, ¶¶ 22-35. He evaluated her experience and educational background and concluded that she was qualified for the position of purchasing agent. Dkt. Nos. 209, ¶ 20; 292, ¶ 20; 218, ¶ 24; 288, ¶ 24. Carlos Cortés Díaz ("Cortés"), who was then the president of the MBA, approved plaintiff's request and notified her that effective December 16, 2008, she would be reinstated to a career position as a purchasing agent in the MBA. Pl.'s ¶¶ 6-7, Dkt. Nos. 209 ¶ 4, 292 ¶ 4, 218 ¶ 5, 288 ¶ 5. Cortés, who is also a PDP member, informed plaintiff that the purchasing agent position was a unionized position. Dkt. Nos. 218 ¶ 9, 288 ¶ 9. On December 17, 2008, however, plaintiff was temporarily reassigned back to a trust position, in the Office of Management and Budget, to work on a special work assignment for the office of the outgoing Governor, Aníbal Acevedo Vilá, and at former Governor Acevedo's request. Dkt. Nos. 209, ¶ 5; 292, ¶ 5; 218, ¶ 10; 288, ¶ 10. On January 23, 2009, plaintiff's temporary assignment concluded and she was sent back to her career position at the MBA. Dkt. Nos. 209, ¶ 6; 292, Pl.'s ¶ 13.
On February 2, 2009, López, the union president, sent a letter to Delgado, the president of the MBA at that time, stating that plaintiff had not complied with Article V of the collective bargaining agreement ("CBA") between the MBA and the union, and that the union was thus requesting that plaintiff be terminated. Dkt. Nos. 208-7; 287-38, p. 70; 209, ¶ 34; 21, ¶ 32. Article V creates a "closed shop" for MBA employees within certain designated employee classifications. Dkt. No. 208-1, p. 5.4 It states the following with respect to employees in those classifications:
Within a term of ten (10) days, counted starting from the date on which the employee receives an appointment corresponding to the Appropriate Unit, he or she has a condition to continue employment, maintaining status as a bona fide member and being current in the payment of dues, as provided for in Article XVII. It being provided that upon the conclusion of the aforementioned ten-day term the employee will automatically be terminated if he or she does not comply with this Article's provisions.
Dkt. No. 208-1, p. 5. On February 5, 2009, López also filed a complaint with the union's Grievances and Complaints Committee, stating that plaintiff's appointment to the purchasingagent position had violated Articles V and VI of the CBA. Dkt. No. 287-38, pp. 39-40; 232-2;P Pl.'s 88.5 Plaintiff did not receive a copy or any notice of this grievance. Pl.'s ¶ 90. The standard practice following the submission of such a grievance is that the committee summons the individual with a letter for a given date.6 Dkt. No. 287-38, p. 70, ll. 10-20; Pl.'s 91. López did not receive a response to his complaint about plaintiff from the committee. Pl.'s ¶ 92.
When Delgado received the letter from López, he met with a human resources employee named Judy Morales, with Fuentes, and with the MBA's general counsel to discuss what course of action to take with respect to the requested termination. Dkt. No. 287-23, pp. 34, 37, 52-53. They concluded that the CBA mandated plaintiff's termination, but Fuentes suggested trying to have plaintiff reinstated at the Municipality of San Juan, where she had worked until 2001. Dkt. No. 287-23, pp. 53-54. Fuentes then spoke with a human resources employee at the Municipality who agreed to reinstate plaintiff. Pl.'s ¶ 141. Delgado told Fuentes to go ahead with the process of reinstating plaintiff at the Municipality. Dkt. No. 287-23, pp. 54-55.
On February 26, 2009, Delgado drafted a letter to plaintiff stating that she would be terminated on March 2, 2009 because of her failure to join the union and pay dues as per Article V of the CBA. Dkt. Nos. 287-15; 287-23, p. 58, ll. 10-13; Pl.'s 139. The letter also instructed plaintiff to reinstate herself at the Municipality. Dkt. Nos. 287-15; 287-23, p. 58, ll. 10-13. Also on said date, Delgado replied to López's letter informing him that the MBA had proceeded to terminate plaintiff from her purchasing agent position. Dkt. Nos. 287-38, p. 71; 287-41.
Plaintiff received Delgado's letter on February 27, 2009. Dkt. Nos. 209, ¶ 32; 292, ¶ 32; 218, ¶ 31; 288, ¶ 31. That same day, plaintiff met with Delgado, Fuentes, and Morales inDelgado's office to discuss the termination letter. Pl.'s ¶ 28. Plaintiff explained that she did not know it was her responsibility to take action to join the union and pay dues. Dkt. No. 287-17. She said that no one from human resources or the union had advised her how to proceed and that López, the union president, would not receive her. Dkt. No. 287-17. Delgado responded that the union had requested plaintiff's termination and that he had to abide by that request. Dkt. No. 287-17.
Subsequently, plaintiff went to the Municipality, but was informed that she could not be reinstated there. Pl.'s ¶ 40. She met with Miriam Herdman, the Municipality's Human Resources Director, who told her that once an employee is transferred out of the Municipality, any reinstatement to which that employee might be entitled must occur at the place where the employee is currently working. Dkt. No. 287-25, p. 32, ll. 21-25, p. 33, ll. 1-2. Subsequently, Herdman wrote a letter to Delgado stating that his request to have plaintiff reinstated at the Municipality could not be granted. Pl.'s ¶ 43; Dkt. No. 287-28. She cited a section of the Puerto Rico Autonomous Municipalities law which provides that a trust employee who was formerly a career employee has a right to reinstatement to a career position upon separation from the trust position, and that such reinstatement "shall preferably take place in the same body where [the employee] served prior to leaving the confidential service." 21 L.P.R.A. § 4559.
On March 3, 2009, and again on March 9, 2009, plaintiff wrote to Delgado detailing the reasons that she...
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