Brauchitsch–monedero v. P.R. Electric Power Auth.

786 F.Supp.2d 470

Nelson BRAUCHITSCH–MONEDERO, Plaintiff,

v.PUERTO RICO ELECTRIC POWER AUTHORITY; Engineer Jorge Rodríguez–Ruiz, Executive Director; Engineer Jaime Plaza; Engineer Raúl McClin; John Doe; Richard Roe; X, Y, Z, Defendants.

Civil No. 08–1336(DRD).

United States District Court, D. Puerto Rico.

March 16, 2011.

Nelson Brauchitsch–Monedero, San Juan, PR, pro se.Luis F. Colon–Conde, C. Conde & Mirandes, Miguel A. Pagan–Rivera, Pagan & Pagan, Orlando Duran–Medero, Orlando Duran Medero Law Office, Christian E. Pagan–Cordoliani, Puerto Rico Department of Justice, San Juan, PR, for Defendants.

OMNIBUS OPINION AND ORDER

DANIEL R. DOMINGUEZ, District Judge.

I. PROCEDURAL HISTORY

Plaintiff Nelson Brauchitsch–Monedero (“Plaintiff”) is a current employee of Autoridad de Energía Eléctrica (“PREPA”). Plaintiff brings this suit against PREPA and Jaime Plaza–Velázquez (“Plaza”), the former Head of PREPA's Division of Environmental Protection and Quality Assurance; Raúl McClin–Cruz (“McClin”), Manager of PREPA's Department of Quality Assurance; and Jorge Rodríguez–Ruiz (“Rodríguez”), PREPA's former Executive Director (Plaza, McClin and Rodríguez, collectively, the “Individual Defendants;” PREPA, Plaza, McClin and Rodríguez, collectively, the “Defendants”). Plaintiff claims that he was subjected to adverse employment actions due to his age, national origin and political ideology. Under Section 1983 of the Civil Rights Act, Plaintiff alleges that his First, Fifth and Fourteenth Amendment rights were violated. Plaintiff also brings suit under Title VII of the Civil Right Act of 1964, the Age Discrimination in the Employment Act (“ADEA”) and under various state statutes.

On March 31, 2009, the Court denied PREPA's Motion to Dismiss ( Docket No. 46), which was joined by the Individual Defendants (Docket No. 42). The Court found that it could only consider claims included in the administrative charge filed by Plaintiff with the Equal Employment Opportunity Commission (the “EEOC”) on October 19, 2007. The Court then set a status conference to investigate the contents of Plaintiff's EEOC charge. The Court further found that the continuing violation doctrine was not applicable to the instant case; and that without the assistance of this doctrine, all claims of discrimination under Title VII and the ADEA filed prior to 300 days to the filing of the EEOC complaint are time barred. See Tobin v. Liberty Mutual Insurance Company, 553 F.3d 121, 130 (1st Cir.2009). Hence, all of Plaintiff's federal labor claims filed prior to December 24, 2006 are barred as the EEOC complaint was filed on October 19, 2007. Landrau–Romero v. Banco Popular, 212 F.3d 607 (1st Cir.2000).

On August 9, 2010, PREPA and Individual Defendants in their official capacities filed a Motion Requesting Summary Judgment (Docket No. 94), a memorandum in support of that motion (Docket No. 95), and a statement of uncontested material facts (Docket No. 96). Defendants claim that Plaintiff failed to allege any actionable claims for discrimination on the basis of age or nationality, establish any discriminatory and retaliatory actions, establish a prima facie Section 1983 claim, or establish a hostile work environment claim. On the following day, Individual Defendants in their personal capacities filed a Motion for Summary Judgment and Memorandum of Law in Support Thereof (Docket No. 100) along with a Statement of Uncontested Material Facts (Docket No. 101) reiterating arguments from the August 9, 2010 filings.

On October 19, 2010, Plaintiff opposed Individual Defendants' motion for summary judgment (Docket No. 107 and 112) and opposed Individual Defendants supporting memorandum of law (Docket No. 108), asserting that Plaintiff has indeed suffered political discrimination, age discrimination, retaliation and violations of his constitutional rights. Specifically, Plaintiff claims that he was not promoted, had his salary reduced, and was denied salary increases. Plaintiff additionally avers that other employees, who were less experienced than him, were elevated to positions he requested simply because those employees were younger than Plaintiff and members of an opposing political party. Plaintiff claims that those employees support the Popular Democratic Party (“PDP”) while he supports the New Progressive Party (“NPP”). Plaintiff also persists in arguing that the continuing violations doctrine applies even though the Court clearly ruled to the contrary. ( See Docket No. 46, denying PREPA's Motion to Dismiss.) Plaintiff never requested reconsideration of this order.

On October 26, 2010, Defendants replied (Docket No. 119 and 120) to Plaintiff's opposition motion. Individual Defendants state that Plaintiff failed to comply with the Federal Rules of Civil Procedure by only making conclusory allegations without providing sufficient supporting evidence. Individual Defendants assert that Plaintiff has failed to provide evidence that Individual Defendants knew of Plaintiff's political affiliations and failed to support a causal connection between an adverse employment action and his political affiliations. Finally, Individual Defendants advocate that, under Puerto Rico law, public employees have a property interest in their continued employment, but not in their job duties or functions. As Plaintiff was not terminated from his employment, Individual Defendants claim that Plaintiff has not been deprived of a cognizable property interest under the Due Process Clause. Furthermore, Individual Defendants declare that, should the Court find that a cognizable property interest exists, the alleged adverse action took place in 2005 and is thus time barred.

On October 28, 2010, Plaintiff moved to strike (Docket No. 123) PREPA's and Individual Defendants' reply memorandum (Docket No. 119) for failing to reply to new matters raised by Plaintiff in Plaintiff's objection. Defendants did not oppose this request.¹

On November 1, 2010, Plaintiff filed a sur-reply to Individual Defendant's reply (Docket No. 125). Therein, Plaintiff argues that he was divested of most of his former duties and deprived of the majority of his supervisory work.

On December 29, 2010, the Court referred the pending motions for summary judgment to Chief Magistrate Judge Justo Arenas for entry of his Report and Recommendation (Docket No. 140).

On January 21, 2011, Magistrate Judge Arenas filed his Report and Recommendation, 2011 WL 1097760 (Docket No. 145). Therein, he recommended the District Court to grant the motions for summary judgment. The Magistrate Judge found that Plaintiff failed to state a claim upon which relief may be granted under Section 1983. Magistrate Judge Arenas also concluded that Plaintiff failed to even plead sufficient facts to establish supervisory liability, subordinate liability or demonstrate how any Defendant's actions are linked to a constitutional violation.

Regarding Plaintiff's AEDA claims and Section 1983 claims, the Magistrate Judge found that the continuing violations doctrine is not applicable ² and that Plaintiff has not alleged a single discriminatory act that took place within the relevant time period (after December 24, 2006 for discriminatory actions regarding age, national origin or retaliation and after March 28, 2007 for discriminatory and retaliatory actions under Title VII).

The Magistrate Judge also found that Plaintiff's First Amendment rights, which protect certain public employees, such as Plaintiff, from adverse employment actions based on their political affiliation, had not been violated. “To establish a prima facie case for political discrimination, a plaintiff must show ‘that (1) the plaintiff and the defendant belong to opposing political affiliations; (2) the defendant has knowledge of the plaintiff's affiliation; (3) a challenged employment action occurred; and (4) political affiliation was a substantial or motivating factor behind the challenged employment action.’ ” Ramos–Borges v. Puerto Rico, P.R. Health Dep't, 740 F.Supp.2d 262 (D.P.R.2010) (quoting Cintrón–Arbolay v. Cordero–López, 716 F.Supp.2d 163, 166 (D.P.R.2010)).

Chief Magistrate Judge Arenas determined that none of these four prongs were met. The Magistrate found that Plaintiff had not shown that he was a member of any political party and that Plaintiff had not put forth sufficient evidence to establish that Individual Defendants were affiliated with NPP or had opposing political beliefs to Plaintiff. Furthermore, the Magistrate Judge concluded that there is no evidence on the record, other than Plaintiff's bald allegations, that the positions he applied for were filled with younger employees who are PDP members. Though Plaintiff avers that he was constructively demoted, the Magistrate Judge determined that Plaintiff did not suffer an adverse employment action as Plaintiff's salary, benefits and working hours were not reduced. Lastly, Magistrate Judge Arenas found that even if an adverse employment action occurred, there is no evidence on the record that Plaintiff's political beliefs were the motivating factor behind that adverse action.

The Due Process Clause of the Fifth Amendment applies only to the actions of the federal government and not to those of state government. Accordingly, the Magistrate Judge resolved that Plaintiff's Fifth Amendment Due Process Clause claim should be dismissed because Plaintiff did not allege that any Defendant was a federal actor.

Chief Magistrate Judge Arenas also noted that the Due Process Clause of the Fourteenth Amendment protects government employees who possess property interests in continued public employment and under Puerto Rico law, a tenured public employee has a property interest in his continued employment. See Rodriguez–Ramos v. Hernandez–Gregorat, 660 F.Supp.2d 220, 228 (D.P.R.2009); see also Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1173 (1st Cir.1988). However, the Magistrate concluded that Plaintiff cannot establish...