Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

YADIRA MOLINA CIV. NUM. 18-1079(JAG)

Plaintiff, Re: First Amendment

Retaliation
v.

MUNICIPIO DE SAN JUAN,

Defendant
___________________________________

OPPOSITION TO MOTION TO DISMISS

TO THE HONORABLE COURT:

COMES NOW Plaintiff Yadira Molina, through her undersigned

attorney, and respectfully ALLEGES and PRAYS as follows:

INTRODUCTION

Defendant is confused.

Defendant does not understand the allegations.

Or maybe, just maybe, defendant understands all too well that it is

being called out for its systemic corruption: corruption that the

municipality’s decisionmakers embrace so that their preferred suppliers are

awarded purchase orders for overpriced goods. Ms. Molina cannot prove

criminal behavior; she leaves that with the relevant authorities. But Ms.

Molina states a claim that it is the Municipality of San Juan’s policy to try to
1
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 2 of 17

silence whistleblowers through retaliation when they report misconduct.

II. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS TO SUPPORT

ITS SECTION 1983 CLAIM AGAINST THE MUNICIPALITY

In support of its Motion to Dismiss under Rule 12(b)(6), Defendant

argues that the Complaint’s single allegation concerning municipal liability

is where it states in a conclusory fashion that the Municipality of San Juan

had a policy, pattern, and practice to engage in corrupt allocation of

purchases and retaliate against anyone who dared complain of the same to

persons of authority within the municipality or externally, as in the case of

the Office of the Comptroller. This is false. The conclusion that it is the

policy of the Municipality of San Juan to retaliate against those who exercise

their First Amendment rights is supported by the facts leading up to that

conclusion.

Defendant has misconstrued the legal standard for a Rule 12(b)(6)

motion. The standard only requires a short and plain statement that would

make for a plausible claim. Plaintiff has exceeded that standard, carefully

stating every instance of Defendant’s retaliation against her for exercising

her First Amendment rights.

Paragraphs ¶¶14-19 and 29 of the Complaint state the official policy

of the Municipality of San Juan concerning purchase orders and requisitions

for construction projects. Thereafter, the allegations turn to what actually

2
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 3 of 17

happened in this process, which , was contrary to the purported official

policy and yet had become municipality custom and practice even before

Plaintiff started working for the municipality. See ¶ 20 of the Complaint.

Furthermore, the Complaint states that the municipality practices

concerning purchase orders and requisitions happened with the approval and

under the guise of municipal decisionmakers, specifically Magdiel Pérez

González, the Municipal Secretary, and other supervisors. See ¶¶ 20, 27, 41,

45, 47, 48, 59. The Complaint even states that on least on one occasion

Mayor Cruz pre-approved the preferred supplier, and there is a

communication evidencing the same. See ¶64 of the Complaint. The

mayor’s participation or approval of this scheme is sufficient to establish

municipal policy. See Pembauer v. Cincinnati, 475 U.S. 469, 480 (1986).

Plaintiff, pursuant to her rights as a private citizen to exercise her First

Amended Right to free speech, communicated all of these irregularities to

Andrés García who referred her to López, see ¶¶68-84 and later filed a

complaint to the Comptroller’s Office concerning these irregularities ¶¶105-

107. That the complaint does not state when and how Defendant learned of

Ms. Molina’s contact with the Comptroller’s office is inconsequential under

a rule 12(b)(6) motion. See, Decotiis v. Whittemore, 635 F.3d 22, 36, (1st

Cir. 2011) (noting the exact time, place, and manner of the speech was not

3
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 4 of 17

alleged in the Complaint, but finding it sufficient that the Complaint stated

that Decotiis spoke to her clients' parents).

After engaging in protected activity under the First Amendment, the

Complaint alleges that plaintiff was subjected to harassment and changes in

Plaintiff’s employment conditions, her demotion, and ultimate resignation

For the foregoing reasons, all of these allegations are sufficient to establish a

plausible cause of action under Section 1983 against the Municipality.

II. MUNICIPAL POLICY CAN BE ESTABLISHED THROUGH

THE ACTIONS OF A POLICYMAKER

“[I]it is plain that municipal liability may be imposed for a single

decision by municipal policymakers under appropriate circumstances.”

Pembauer v. Cincinnati, 475 U.S. at 480. Here, Ms. Molina provided a

detailed description of the bid rigging engaged in by the municipality’s

preferred suppliers to José Orlando López, an advisor to Mayor Cruz. As a

consequence, Andrés García, the deputy mayor, ordered her demotion. [The

municipality describes the employment action as a promotion, but it has to

accept the well pleaded facts of the complaint. González v. Velez, 864 F.3d

45, 50(1st Cir. 2017)] Moreover, Ms. Molina’s salary remained the same and

her responsibilities were reduced after she reported the wrongdoing.

The municipality understandably seeks to analogize to the situation in

Monell v. v. Department of Social Services, 436 U.S. 658, 684 (1978), where
4
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 5 of 17

the Supreme Court held that a municipality could have § 1983 liability that

effected multiple employees. But the Supreme Court has also ruled in

Pembaur that the municipality’s interpretation of Monell is too limited: “[A]

government frequently chooses a course of action tailored to a particular

situation and not intended to control decisions in later situations. If the

decision to adopt that particular course of action is properly made by that

government's authorized decisionmakers, it surely represents an act of

official government ‘policy’ as that term is commonly understood.” Again,

this fits Ms. Molina’s situation to a tee. The municipality clearly did not

expect a deluge of complaints as to the illegality that Ms. Molina reported.

In fact, the purpose of the demotion and subsequent campaign of harassment

was precisely to send the clear message to Ms. Molina’s colleagues that

reporting illegal activity would have negative consequences.

As Justice Brennan reasoned in Pembauer, “More importantly, where

action is directed by those who establish governmental policy, the

municipality is equally responsible whether that action is to be taken only

once or to be taken repeatedly. To deny compensation to the victim would

therefore be contrary to the fundamental purpose of §1983.” Id. at 481.

Thus, Ms. Molina did not have to allege that the Municipality of San Juan

had a written policy of retaliation against whistleblowers. It is sufficient that

5
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 6 of 17

policymakers took official action in retaliation for her exercise of her First

Amendment rights.

In addition to the subsequent gloss on Monell in Pembauer,

explaining that an individual decision of an individual policymaker is

sufficient to state a claim under 42 U.S.C. § 1983, in Monell 436 U.S. at

684, Justice Brennan cites the legislative history of 42 U.S.C. § 1983 to the

effect that the “act is remedial, and in aid of the preservation of human

liberty and human rights….. such statutes are liberally and beneficiently

construed.” In fact, Representative Shellabarger continued, “It would be

strange and, in civilized law, monstrous were this not the rule of

interpretation.” Id.

Moreover, “Congress included customs and usage [in §1983] because

of the persistent and widespread discriminatory practices of state officials….

Although not authorized by written law, such practices of state officials

could well be so permanent and well settled as to constitute a custom or

usage with the force of law.” Id. at 691 citing Adickes v. H. Kress & Co.,

398 U.S. 144, 166-67 (1970).

Here, the mistreatment followed Ms. Molina from department to

department throughout the municipality. The threats of physical harm began

as soon as Ms. Molina reported the corruption to Orlando López. Deputy

6
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 7 of 17

Mayor Andrés García ordered Ms. Molina’s demotion. 1 See ¶¶68-84. Ada

Burgos kicked Ms. Molina out of the office she occupied after the

municipality kicked her out of her office in the Purchasing Department,

making specific reference to Ms. Molina’s complaint to the Comptroller.

All of these people were decisionmakers at the municipality and they were

implementing the policy of making Ms. Molina’s life so miserable that she

would quit. Thus, Ms. Molina has alleged a Monell violation, and the

Motion to Dismiss should be denied.

Furthermore, as stated in Pembaur: “Section 1983also refers to

deprivations under color of a state “custom or usage,” and the Court

in Monell noted accordingly that “local governments, like every

other Section 1983 person,’ ... may be sued for constitutional deprivations

visited pursuant to governmental ‘custom’ even though such a custom has

not received formal approval through the body's official decisionmaking

channels.”436 U.S. at 690-91 Therefore, a ”Section 1983 plaintiff thus may

be able to recover from a municipality without adducing evidence of an

affirmative decision by policymakers if able to prove that the challenged

action was pursuant to a state “custom or usage.” Id.

1
Defendant does not get to change the demotion into a promotion with the wave of wand.
Ms. Molina did not seek the change, which, not coincidently, took her out of the
Purchasing Department. The municipality did not raise Ms. Molina’s salary, and it
reduced the number of people she supervised.
7
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 8 of 17

Pembaur v. City of Cincinnati, 475 U.S. 469, 484, 106 S. Ct. 1292, 1300, 89

L. Ed. 2d 452 (1986)

Finally, this Court’s jurisdiction does not rest on the federal question

set forth herein alone. As the Complaint states, Ms. Molina resides in

Florida, and she resided in Florida at the time she filed the Complaint. Thus,

even if the Court were to find the lack of a federal question, the Court has

jurisdiction to hear Ms. Molina’s Law 115 claim of retaliation for having

reported illegal conduct to a public agency. 28 U.S.C. § 1332.

III. THE MUNICPALITY VIOLATED MS. MOLINA’S FIRST

AMENDMENT RIGHTS BY RETALIATING AGAINST HER
FOR COMPLAINING AS A PRIVATE CITIZEN

The Supreme Court has addressed public employees’ First

Amendment rights in a series of cases: Pickering, Connick, Garcetti, and

Lane. In Pickering v. Board of Ed. of Township High School District, 391

U.S. 563, 568 (1968), the court established an analytical framework for

ruling: “The problem in any case is to arrive at a balance between the

interests of the [employee], as a citizen, in commenting upon matters of

public concern and the interest of the State, as an employer, in promoting the

efficiency of the public services….” The Court reaffirmed that the First

Amendment protects public employees in Connick v. Myers, 361 U.S. 138,

142, 147 (1983), writing that “a State cannot condition public employment

8
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 9 of 17

on a basis that infringes the employee’s constitutionally protected interest in

freedom of expression,” to assure that “citizens are not deprived of

fundamental rights by virtue of working for the government.”

Garcetti v. Ceballos, 547 U.S. 410 (2006), did not overrule either of

these cases. Instead, it found that the Pickering balance protected in

Connick does not apply to a government employee’s speech made pursuant

to official duties. Defendants’ attempt to lift Garcetti out of its factual and

historical contexts and give it an unduly broad reading is at odds with the

law in this circuit. The difficulty applying Garcetti to various factual

situations has spawned an effort by government employers to use the

decision expansively to leave as much employee speech unprotected as

possible. 2

The Supreme Court has limited the reach of Garcetti, in Lane v.

3
Franks, 573 U.S. – (2014). In Garcetti, a deputy district attorney wrote a

2
See, generally, Bergstein, “Garcetti Distinctions Abound in the District Courts,” NEW
YORK LAW JOURNAL (December 4, 2012).
3
During oral argument, the following exchange occurred with government employer’s counsel
(at 41-2):

JUSTICE ALITO: [L]et me make sure I understand what you’re saying. Two
employees know that there is someone who has a… no show job where they
work. One of them writes a letter to the editor and says: John Doe has a no show
job. One of them testifies pursuant to a subpoena in a criminal trial: John Doe
has a no show job. Is it your view that Pickering does not apply in either of those
situations or it applies in the latter but not in the former?

9
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 10 of 17

memorandum questioning the factual accuracy of a search warrant that was

later upheld after a suppression hearing. The attorney claimed that he was

subjected to various retaliatory actions because he wrote the memorandum.

The district court granted summary judgment, finding the memorandum to

be unprotected speech. The Ninth Circuit reversed, based on Pickering and

Connick; and the Supreme Court reversed the Circuit and remanded for

further proceedings, noting the “difficult” inquiry required, due to the

“enormous variety of factual situations” in which arguably protected speech

can arise in government employment. Garcetti, 547 U.S. at 418.

Under Garcetti, it is “not dispositive” if the speech occurs in the

workplace or publicly, if it concerns the subject of the employment or not, or

if the employee benefits or not. The “controlling factor” is whether the

expression was made “pursuant to” the employee’s official duties. Id. at

420-1.

Lane, in turn, limits the scope of Garcetti by holding that "the mere

fact that a citizen's speech concerns information acquired by virtue of his

public employment does not transform that speech into employee — rather

COUNSEL: Pickering does not apply. The Pickering balancing does not apply in
either of those situations.

JUSTICE ALITO: Neither one.

CHIEF JUSTICE ROBERTS: Really?

10
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 11 of 17

than citizen — speech." 134 S. Ct. at 2379 (concluding that fired employee's

subpoenaed sworn testimony during corruption trials regarding information

he learned through his employment was citizen speech on matter of public

concern). Instead, as the Lane Court explained, "[t]he critical question under

Garcetti is whether the speech at issue is itself ordinarily within the scope of

an employee's duties, not whether it merely concerns those duties." Id. The

Court noted that "Garcetti said nothing about speech that simply relates to

public employment or concerns information learned in the course of public

employment." Id. The Supreme Court thus reversed the Eleventh Circuit and

found that "[t]ruthful testimony under oath by a public employee outside the

scope of his ordinary job duties is speech as a citizen for First Amendment

purposes. That is so even when the testimony relates to his public

employment or concerns information learned during that employment." Id.

at 2378. The Court explained that:

Sworn testimony in judicial proceedings is a quintessential example of

speech as a citizen ... When the person testifying is a public employee,

he may bear separate obligations to his employer.... But any such

obligations as an employee are distinct and independent from the

obligation, as a citizen, to speak the truth. That independent obligation

renders sworn testimony speech as a citizen and sets it apart from

11
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 12 of 17

speech made purely in the capacity of an employee.

Id. at 2379. Here, Ms. Molina did not testify, but she did provide a sworn

statement to the Office of the Comptroller, which defendant knew.

For speech to be afforded constitutional protection, "a public

employee must establish that she was speaking `as a citizen on a matter of

public concern.'" Rosaura Bldg. Corp. v. Municipality of Mayaguez, 778

F.3d 55, 66-67 (1st Cir. 2015)(citing Díaz-Bigio v. Santini, 652 F.3d 45, 51

(1st Cir.2011) and Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). In the

instant case there is more than “room for serious debate” about Molina’s

duties as the Director of the Purchasing Department. On this “record,”

summary judgment would not be appropriate, and certainly dismissal on the

pleadings is foreclosed.

Nothing in Garcetti gives defendants such unfettered discretion as

employers. Nor has the First Circuit not read Garcetti as broadly as

defendants urge.

In Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011), involving

pressure on a police officer to withdraw his accurate report, the court

interpreted Garcetti to require two inquiries: (1) whether the speech was of

public concern; and (2) whether the employee spoke “as a citizen” or “solely

as an employee.”[Emphasis added.] As to the first question: “Exposure of

12
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 13 of 17

official misconduct” is “of great consequence to the public.” Id. (citations

omitted), echoing Garcetti, 547 U.S. at 425. Here, Molina exposed official

misconduct costing the municipality excess payments to suppliers

As to the second inquiry, the Jackler court found that government

speech resembling a complaint a private citizen could file supported a

finding that such speech was not “solely” a part of the government

employee’s job duties. An example is a complaint to “an independent state

agency” that could be made by “any citizen in a democratic society

regardless of his status as a public employee.” Id. at 240, quoting Freitag v.

Ayers, 468 F.3d 528, 545 (9th Cir. 2006), cert. denied, 549 U.S. 1323

(2007). See also, Rosenblatt v. City of New York, 2007 WL 2197835

(S.D.N.Y, July 31, 2007) (New York City caseworker’s complaint to

Inspector General basis for First Amendment retaliation claim).

Similar to the holding in Jackler, in Casey v. West Las Vegas Ind.

School 473 F.3d 1323, 1332-33 (10th Cir. 2007), the court found that a

government employee acted outside official capacity when reporting

misconduct to the state attorney general, writing: “[She] was not seeking to

fulfill her responsibility of advising the Board when she went to the

Attorney General's office. Just the opposite: she had lost faith that the Board

would listen to her advice so she took her grievance elsewhere.” Accord

13
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 14 of 17

Dahlia v. Rodriguez 735 F.3d 1060, 1069 (9th Cir. 2013), Handy-Clay v.

City of Memphis, 695 F.3d 531, 540-41 (6th Cir. 2012); Decotiis v.

Whittemore, 635 F.3d 22, 32 (1st Cir. 2011).

In Dahlia, the court (en banc) found it “unlikely” that plaintiff was

speaking “pursuant to his duties” when communicating “outside of his chain

of command”; but the First Amendment can protect speech, whether the

employee follows the chain of command or not. 735 F.3d at 1069. “Even

assuming arguendo that Dahlia might normally be required to disclose

misconduct pursuant to his job duties, here he defied, rather than followed,

his supervisors' orders. As part of a ‘practical’ inquiry, a trier of fact must

consider what Dahlia was actually told to do.” Id. A concurring judge

observed, at 1082: “It makes no sense to… (1) forbid Dahlia from reporting

police abuse; and then (2) claim that the forbidden reporting was part of his

official duties, and thus, not subject to First Amendment protection against

retaliation.”

Just as the police departments in New York City and Burbank could

not punish Jackler and Dahlia for adhering to truthful reports or for making

new ones, the municipality cannot retaliate against Molina for her truthful

complaints. Indeed, Molina’s oath as an attorney required him to report the

fraud, quite apart from any duties he had as a state employee, since non-

14
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 15 of 17

government attorneys have the same right and obligation. 4 Similarly,

reporting unethical conduct to the Comptroller’s office is not unique to

government employees; civilians do so every day.

Defendants’ construction of Garcetti swallows the First Amendment

protections that survive from Pickering and Connick by converting

Garcetti’s exception from speech made “pursuant to job duties” to speech

about information learned during the job, regardless of job duties.

Defendants’ rule would allow them to silence most employees by ordering

them not to speak; and to punish the whistleblowers (who speak anyway) by

arguing they had a duty to speak and therefore had no protection when they

did. There is no authority for this wholesale attempt to gag public

employees.

The Supreme Court returned to Connick, Pickering, and Garcetti in

Borough of Duryea v. Guarnieri, 564 U.S. ___, 131 S.Ct. 2488 (2011), when

it considered public employees’ First Amendment right to petition the

government. It wrote: “Public employees are ‘the members of a community

most likely to have informed and definitive opinions’ about a wide range of

matters related, directly or indirectly, to their employment.” Id. at 2500,

4
See Matter of Robinson, 151 A.D. 589, 600-1 (1st Dept. 1912), aff’d, 209 N.Y. 354 (Ct.
App. 1913), the head of a railroad’s legal department was disbarred for tolerating a
system that paid off witnesses.
15
 Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 16 of 17

quoting Pickering, 391 U.S. at 572. See also, Sousa v. Roque, 578 F.3d 164,

170-75 (2d Cir. 2009) (applying Connick and “Pickering balance” after

Garcetti). The Supreme Court remanded Duryea for application of the facts

to the legal standard “in the context of the case.” 131 S.Ct. at 2501.

Here, whether one applies free speech or right to petition, Molina was

plainly raising matters of “public concern” when she exposed the waste and

overcharging that the municipality endorsed and endorses. Defendant does

not seriously suggest otherwise.

Any doubt as to the application of Pickering, Connick, Garcetti, and

Duryea to Molina’s circumstances at the municipality should be resolved by

denying the motion to dismiss and allowing the case to proceed to discovery.

Cf. Monell. The disputed facts, at this juncture, are presumed to be true.

WHEREFORE, in view of the foregoing, plaintiff respectfully

requests that this Court deny the Motion to Dismiss.

RESPECTFULLY SUBMITTED.

The undersigned has filed this Certificate of Service with the Court’s ecf

system, which system will notify all counsel of record.

In San Juan, Puerto Rico this 14th day of May 2018.

16
Case 3:18-cv-01079-JAG Document 18 Filed 05/14/18 Page 17 of 17

LAW OFFICES OF
JANE BECKER WHITAKER
P.O. Box 9023914
San Juan, Puerto Rico 00902-3914
Tel. 787-585-3824
Fax 787-764-3101

/s/ JANE BECKER WHITAKER

JANE BECKER WHITAKER
USDCPR Bar Number 205110

17