Rodriguez-Reyes v. Molina-Rodriguez

United States Court of Appeals

For the First Circuit

No. 12-1647

KAREN RODRÍGUEZ-REYES ET AL.,

Plaintiffs, Appellants,

v.

CARLOS M. MOLINA-RODRÍGUEZ ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Selya and Lipez,

Circuit Judges.

Johanna M. Emmanuelli Huertas, with whom Pedro E. Ortiz

Álvarez, LLC was on brief, for appellants.

Susana I. Peñagarícano-Brown, Assistant Solicitor General,

with whom Luis R. Román-Negrón, Solicitor General, was on brief,

for appellees.

March 22, 2013

SELYA, Circuit Judge. We confront today a script that

has become all too familiar in Puerto Rico: employees of a

government agency decry as political discrimination adverse

employment actions taken in the wake of an election that produced

a regime change. The court below ruled, among other things, that

the complaint failed to state a claim for relief because it did not

assert facts sufficient to establish a prima facie case of

political discrimination.

The prima facie case is an evidentiary model, not a

pleading standard. For this reason, the interaction between the

prima facie case and the plausibility standard crafted by the

Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), has created

some confusion. We now resolve that confusion and hold that the

prima facie case is not the appropriate benchmark for determining

whether a complaint has crossed the plausibility threshold.

Accordingly, that aspect of the district court's decision must be

annulled and the case remanded for further proceedings.

I. BACKGROUND

We sketch the background, reserving salient details for

our subsequent discussion of the merits. Inasmuch as this appeal

follows the grant of a motion to dismiss, we glean the facts from

the plaintiffs' complaint. See Marek v. Rhode Island, 702 F.3d

650, 651-52 (1st Cir. 2012).

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The plaintiffs — Karen Rodríguez-Reyes, Carmen C. Rivera-

Rosado, Maria Torres-Plaza, Liz Katiria Fuentes-Rodríguez, and

Pilar Vega — are former employees of the Puerto Rico Administration

of Juvenile Institutions (AIJ). See P.R. Laws Ann. tit. 8, §§ 551-

562. The institutions that fall within the purview of the AIJ

provide rehabilitative and educational services to detained minors.

Id. § 555. Vega, a member of the Puerto Rico Independence Party,

previously served as a teacher and a school director for the AIJ;

the remaining plaintiffs, all members of the Popular Democratic

Party (PDP), were teachers employed by the AIJ.

From 2001 through 2008, the PDP held the reins of power

in Puerto Rico. The PDP lost the 2008 general election; its main

rival, the New Progressive Party (NPP), assumed office and took

control of the AIJ in January of 2009. At some point thereafter,

the new administrators began to "talk about politics" and launched

a "witch-hunt" designed to obtain information about employees'

political affiliations.

At the earliest practical opportunity, the plaintiffs

were ousted from their positions, notwithstanding solid

qualifications and positive evaluations. Specifically, Vega was

told in 2009 that her position would be eliminated and, although

she was promised a more responsible post, that promise never

materialized. Torres — who was on a career track as a teacher —

was cashiered at the end of the 2009-2010 school year. The other

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three plaintiffs were so-called "transitory" employees; none of

them was asked back to fill her teaching post and no explanations

were offered. In every instance, a person affiliated with the NPP

was hired as a replacement.

Appalled by these events, the plaintiffs sued Carlos M.

Molina-Rodríguez, Secretary of the Puerto Rico Corrections and

Rehabilitation Department (CRD) and Administrator of the AIJ (an

agency within the CRD); Sonia Ríos, an AIJ hierarch; and two

unidentified AIJ officials (sued as "John Doe" defendants), both of

whom allegedly participated in the challenged personnel decisions.1

Their complaint invoked 42 U.S.C. § 1983 and alleged discrimination

based on political affiliation in violation of the First Amendment.

They also lodged pendent claims under Puerto Rico law. See P.R.

Const. art. II, § 1; P.R. Laws Ann. tit. 31, §§ 5141, 5142.2 Both

named defendants filed motions to dismiss. The plaintiffs opposed

these motions, but the court granted them, dismissing with

prejudice all federal claims against all defendants. See

Rodríguez-Reyes v. Molina-Rodríguez, 851 F. Supp. 2d 375, 383

1

The plaintiffs sued Molina, in his official capacity, for

injunctive relief. They sued all of the defendants in their

individual capacities for money damages.

2

Two of the plaintiffs added language that the district court

interpreted as embedded claims under the Age Discrimination in

Employment Act of 1967, 29 U.S.C. § 623. The district court

dismissed these embedded claims for failure to exhaust

administrative remedies. Rodríguez-Reyes v. Molina-Rodríguez, 851

F. Supp. 2d 375, 383 (D.P.R. 2012). No attempt is made on appeal

to resurrect these age discrimination claims.

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(D.P.R. 2012). The court then declined to exercise supplemental

jurisdiction over the pendent claims and dismissed them without

prejudice. See id.; see also 28 U.S.C. § 1367(c). This timely

appeal followed.

II. ANALYSIS

We review de novo a district court's disposition of a

motion to dismiss for failure to state a claim. Santiago v. Puerto

Rico, 655 F.3d 61, 72 (1st Cir. 2011). In conducting this

appraisal, "we accept as true all well-pleaded facts alleged in the

complaint and draw all reasonable inferences therefrom in the

pleader's favor." Id. "We may augment these facts and inferences

with data points gleaned from documents incorporated by reference

into the complaint, matters of public record, and facts susceptible

to judicial notice." Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011).

We start our analysis with the shibboleth that a

complaint must contain "a short and plain statement of the claim

showing that the pleader is entitled to relief." Fed. R. Civ. P.

8(a)(2). While detailed factual allegations are not necessary to

survive a motion to dismiss for failure to state a claim, a

complaint nonetheless must contain more than a rote recital of the

elements of a cause of action. See Iqbal, 556 U.S. at 678-79; Shay

v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). Rather, it "must

contain sufficient factual matter to state a claim to relief that

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is plausible on its face." Grajales v. P.R. Ports Auth., 682 F.3d

40, 44 (1st Cir. 2012).

A plausibility inquiry is "a context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense." Iqbal, 556 U.S. at 679. "The plausibility standard

is not akin to a 'probability requirement,' but it asks for more

than a sheer possibility that a defendant has acted unlawfully."

Id. at 678 (quoting Twombly, 550 U.S. at 556).

To this end, an inquiry into plausibility necessitates a

two-step pavane. See Grajales, 682 F.3d at 45. First, the court

must sift through the averments in the complaint, separating

conclusory legal allegations (which may be disregarded) from

allegations of fact (which must be credited). See Morales-Cruz v.

Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). Second, the

court must consider whether the winnowed residue of factual

allegations gives rise to a plausible claim to relief. Id. "If

the factual allegations in the complaint are too meager, vague, or

conclusory to remove the possibility of relief from the realm of

mere conjecture, the complaint is open to dismissal." SEC v.

Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).

In this case, the district court tested the complaint in

a crucible hotter than the plausibility standard demands. It

repeatedly faulted the complaint for failing to "establish a prima

facie case of political discrimination." Rodríguez-Reyes, 851 F.

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Supp. 2d at 381-82. The plaintiffs argue that this laser-like

focus on a prima facie case is misplaced at the pleading stage;

that requirement, they say, should be reserved for summary judgment

and trial. We agree.

In Swierkiewicz v. Sorema, 534 U.S. 506 (2002), the

Supreme Court negated any need to plead a prima facie case in the

discrimination context and emphasized that the prima facie model is

an evidentiary, not a pleading, standard. Id. at 510, 512; cf.

Leatherman v. Tarrant Cnty. Narcotics Intell. & Coord. Unit, 507

U.S. 163, 168 (1993) (rejecting heightened pleading standard for

section 1983 cases). Three years later, we confirmed the

applicability of Swierkiewicz to political discrimination cases.

See Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61,

66 n.1 (1st Cir. 2004).

We recognize that these cases were decided before the

Supreme Court effected a sea change in the law of federal pleading

in Iqbal and Twombly. This gives rise to two questions. First,

does the hegemony of the Swierkiewicz/Leatherman/Educadores line of

cases continue in a post-Iqbal/Twombly world? Second, what is the

role, if any, of the prima facie case in determining plausibility

at the pleading stage?

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We answer the first question in the affirmative: the

Swierkiewicz holding remains good law.3 It is not necessary to

plead facts sufficient to establish a prima facie case at the

pleading stage. See Swierkiewicz, 534 U.S. at 512. This

conclusion is bolstered by the fact that the Twombly Court, which

first authoritatively articulated the plausibility standard, cited

Swierkiewicz with approval. See Twombly, 550 U.S. at 569-70

(discussing how the new pleading standard does not "run[] counter

to" Swierkiewicz).

Iqbal does not mention, but is wholly consistent with,

Swierkiewicz; there, the Court stressed that, notwithstanding the

neoteric plausibility standard, no "detailed factual allegations"

are required in a complaint. Iqbal, 556 U.S. at 677-78 (internal

quotation marks omitted). The prima facie standard is an

evidentiary standard, not a pleading standard, and there is no need

to set forth a detailed evidentiary proffer in a complaint.

In answering the first question, we do not write on a

pristine page. Several other courts of appeals have considered the

question and concluded, as we do, that the Swierkiewicz Court's

treatment of the prima facie case in the pleading context remains

3

Our reference is to the Swierkiewicz Court's discussion of

the disconnect between the prima facie case and the rules of

pleading. To the extent that the Swierkiewicz Court relied on

Conley v. Gibson, 355 U.S. 41 (1957), to describe the pleading

standard, that description is no longer viable. See Twombly, 550

U.S. at 562-63 (abrogating Conley).

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the beacon by which we must steer. See, e.g., Keys v. Humana,

Inc., 684 F.3d 605, 609-10 (6th Cir. 2012); Khalik v. United Air

Lines, 671 F.3d 1188, 1191-92 (10th Cir. 2012); Coleman v. Md. Ct.

of App., 626 F.3d 187, 190 (4th Cir. 2010); Arista Records LLC v.

Doe 3, 604 F.3d 110, 120-21 (2d Cir. 2010); al-Kidd v. Ashcroft,

580 F.3d 949, 974 (9th Cir. 2009), rev'd on other grounds, 131 S.

Ct. 2074 (2011).

This brings us to the second question. With respect to

this question, we do not mean to imply that the elements of the

prima facie case are irrelevant to a plausibility determination in

a discrimination suit. They are not. Those elements are part of

the background against which a plausibility determination should be

made. See, e.g., Grajales, 682 F.3d at 46; Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011). This approach is

fully consistent with Swierkiewicz's dictates, and none of our

post-Swierkiewicz cases have required the pleading of specific

facts sufficient to establish each and every element of a prima

facie case.

In a nutshell, the elements of a prima facie case may be

used as a prism to shed light upon the plausibility of the claim.

Although a plaintiff must plead enough facts to make entitlement to

relief plausible in light of the evidentiary standard that will

pertain at trial — in a discrimination case, the prima facie

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standard — she need not plead facts sufficient to establish a prima

facie case.

Having constructed this foundation, we turn to the order

of dismissal. In so doing, we limn the elements of a prima facie

political discrimination case as a backdrop against which we must

decide the plausibility of the claim.

Section 1983 is the conventional vehicle through which

relief is sought for claims of political discrimination by state

actors. For this purpose, Puerto Rico is the functional equivalent

of a state. See Grajales, 682 F.3d at 46. "There are two

essential elements of an action under section 1983: (i) that the

conduct complained of has been committed under color of state law,

and (ii) that this conduct worked a denial of rights secured by the

Constitution or laws of the United States." Martínez v. Colón, 54

F.3d 980, 984 (1st Cir. 1995) (internal quotation marks omitted).

Within this rubric, a claim of political discrimination entails

four showings: "that the protagonists are members of opposing

political parties; that the defendant knows of the plaintiff's

political affiliation; that an adverse employment action occurred;

and that political affiliation was a substantial or motivating

factor behind the adverse action." Grajales, 682 F.3d at 46.

With this architecture in place, we first examine the

district court's conclusion that the complaint failed adequately to

establish that Molina (the de facto head of the agency) was aware

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of the plaintiffs' affiliations with opposing political parties.

Rodríguez-Reyes, 851 F. Supp. 2d at 381. To be sure, the complaint

contains only a conclusory statement of Molina's knowledge. For

pleading purposes, however, knowledge may be inferable from other

allegations in the complaint. See Grajales, 682 F.3d at 47. So it

is here.

For one thing, the complaint alleges that the defendants,

including Molina, "engaged in a witch-hunt scheme to obtain

information as to the affiliation of each employee [of the AIJ] in

order to dismiss those who were not affiliated with the NPP." For

another thing, after the NPP took control of the agency, the new

leaders began to "talk about politics." The district court

believed that these assertions were immaterial because they did not

represent "discrete factual events." Rodríguez-Reyes, 851 F. Supp.

2d at 381 (internal quotation marks omitted). We think that the

district court subjected the complaint to an overly stringent

pleading standard. An assertion that a defendant was affirmatively

seeking information about employees' political affiliations is more

than a bare legal conclusion. The plaintiffs' "witch-hunt" and

"talk[ing] about politics" averments, though general, are factual

assertions that must, at the pleading stage, be given credence.

See, e.g., Ocasio-Hernández, 640 F.3d at 15 (holding similar

allegations to be factual, not conclusory).

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These statements anent the political atmosphere at the

AIJ and the frenzy to discover the political affiliations of agency

employees, when viewed in the light most flattering to the

plaintiffs' theory of the case, are adequate to ground a plausible

finding of Molina's knowledge. Indeed, it would be struthious to

assume that Molina did not acquire the information about the

plaintiffs' political leanings that he and other agency leaders

actively sought — information that seemed generally available due

to the AIJ's politically charged atmosphere.

The relevant question for a district court in assessing

plausibility is not whether the complaint makes any particular

factual allegations but, rather, whether "the complaint warrant[s]

dismissal because it failed in toto to render plaintiffs'

entitlement to relief plausible." Twombly, 550 U.S. at 569 n.14.

There need not be a one-to-one relationship between any single

allegation and a necessary element of the cause of action. What

counts is the "cumulative effect of the [complaint's] factual

allegations." Ocasio-Hernández, 640 F.3d at 14. Here, the factual

allegations, taken in their entirety, plausibly support a finding

that Molina had acquired knowledge of the plaintiffs' political

affiliations.

The district court also held that the plaintiffs had

failed plausibly to allege Ríos's antagonistic political

affiliation. Rodríguez-Reyes, 851 F. Supp. 2d at 382. The

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complaint does state, however, that the "[p]laintiffs belong to

political parties that espouse philosophies and ideas different to

those of the defendants" (including Ríos) and characterizes Ríos as

a high-ranking official in the revamped (NPP-appointed) AIJ

administration. A high degree of factual specificity is not

required at the pleading stage. See Twombly, 550 U.S. at 569 n.14.

Thus, to survive a Rule 12(b)(6) motion, it is not necessary for a

plaintiff in a political discrimination case to bring forth

evidence that the defendant is a card-carrying member of the

opposition party. On this issue, the plaintiffs' factual

allegations are adequate for pleading purposes.

Our precedents illustrate this point. In an earlier

case, we upheld for pleading purposes the sufficiency of an

allegation "that the defendants all belong to the NPP." Ocasio-

Hernández, 640 F.3d at 13 (alterations and internal quotation marks

omitted). In another case, we upheld for pleading purposes the

sufficiency of an allegation that each of the defendants "belong[s]

to a different [political] party than [the plaintiff]." Grajales,

682 F.3d at 47 (alterations in original and internal quotation

marks omitted). The allegations here are analogous and, therefore,

they plausibly allege Ríos's antagonistic political affiliation.

The last pillar on which the district court's order rests

involves what it concluded was the absence of any plausible

allegation that political affiliation was a substantial or

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motivating factor behind the adverse employment actions.

Rodríguez-Reyes, 851 F. Supp. 2d at 382. Once again, it is

important to bear in mind that the plaintiffs, for pleading

purposes, need not establish this element; the facts contained in

the complaint need only show that the claim of causation is

plausible. Direct evidence of political animus is not a sine qua

non. See Grajales, 682 F.3d at 49 (explaining that "'[s]moking

gun' proof of discrimination is rarely available, especially at the

pleading stage").

In this instance, the plaintiffs' complaint noted that

"[o]nce the new administration arrived, its officers . . . made

expressions as to the fact that there would be NPP's very upset if

[the plaintiffs'] contracts would be renewed." This allegation

forms a part of the plausible basis for a finding as to the cause

of the ensuing adverse employment actions. In an environment in

which leaders of the AIJ were voicing a need to shed

nonpolicymaking employees who did not share their particular

political persuasion, it surely is plausible that the plaintiffs'

political affiliations became a substantial or motivating factor

behind their loss of employment.

For pleading purposes, circumstantial evidence often

suffices to clarify "a protean issue such as an actor's motive or

intent." Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991).

The complaint here contains allegations that all of the plaintiffs

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were affiliated with political parties that opposed the NPP; that

none of them ever received a negative evaluation for her work at

the AIJ; that each was replaced by an NPP adherent; and that the

critical decisions were made by newly appointed officials loyal to

the NPP and in a politically charged atmosphere. The record

contains no nondiscriminatory explanation for the adverse

employment actions.

The time line is also suggestive. While the defendants

argue that there is no temporal proximity between the regime change

and the adverse employment actions — the NPP assumed control of the

AIJ in the winter of 2009 and most of the plaintiffs had contracts

to work through the 2009-2010 school year — this argument overlooks

the nature of the contracts at issue. Teachers' contracts

presumably run from school year to school year. While it seems

likely that the 2009-2010 contracts were renewed sometime after the

NPP administration took office, one could infer that this renewal

occurred early in the administration. The NPP officials may have

had insufficient time and information to head off renewing the

2009-2010 contracts, and their earliest practical opportunity to

oust most of the plaintiffs may have been for the 2010-2011 school

year.4

4

Two of the plaintiffs present unique circumstances, but

these circumstances are not material to our analysis. Fuentes

alleges that she was not called back for the 2011-2012 school year;

but her employment at the AIJ was not continuous — she worked from

2006-2008 and then from 2009-2010 — and it is plausible that the

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The fact that the new NPP administration had to bide its

time before this opportunity arose may account for the longer

interval. At a minimum, such an inference is consistent with the

plausibility analysis. See Iqbal, 556 U.S. at 679.

When all is said and done, we think that the array of

circumstances described in the complaint suffices to support an

inference of political animus. Indeed, we previously have found

similar compendia of allegations adequate to make out plausible

claims of political animus. See, e.g., Grajales, 682 F.3d at 49-

50; Ocasio-Hernández, 640 F.3d at 17-18. The case at hand is cut

from the same cloth: the combination of the politically charged

questioning of the AIJ workforce, the statements of officials

indicating an intent not to renew the contracts of persons

affiliated with other political parties, the absence of any

nondiscriminatory explanation for the adverse employment actions,

the temporal proximity of the regime change to the adverse

employment actions, and the replacement of the separated workers

with NPP adherents permits a plausible inference, at the pleading

2011-2012 school year was the earliest practical opportunity to

cashier her. Vega alleges that her position was eliminated in 2009

and that she was not called back after that date. Her termination

does not implicate the complications wrought by annual contracts

and her showing of close temporal proximity is compelling.

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stage, that political animus was a substantial or motivating factor

behind the adverse employment actions.5

There is one loose end. The complaint also attempts to

set forth claims against two unidentified "John Doe" defendants.

The district court dismissed these claims. Rodríguez-Reyes, 851 F.

Supp. 2d at 382-83.

Although the plaintiffs cast a few aspersions in this

direction, their appellate brief contains no developed

argumentation about the sufficiency of these claims. The claims

are, therefore, waived.6 See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990). Consequently, we affirm this aspect of the

judgment below.

5

Our decision in Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d

592 (1st Cir. 2011), loudly bruited by the defendants, is not to

the contrary. In that case, we found the plaintiff's allegations

vis-à-vis the governor of Puerto Rico and two of his adjutants

lacking plausibility, as the complaint did not specifically connect

these defendants with the adverse employment action: the

plaintiff's complaint relied solely on the notion that the

defendants' positions afforded them the authority to make personnel

decisions and, therefore, the defendants' putative liability rested

on mere speculation that they were actually involved in the firing

of the plaintiff. Id. at 596. The complaint in this case does not

suffer from a comparable infirmity.

6

At any rate, a plaintiff may prosecute a section 1983 claim

against an unidentified party only if she can show that "a good-

faith investigation has failed to reveal the identity of the

relevant defendant and there is a reasonable likelihood that

discovery will provide that information." Martínez-Rivera v.

Sánchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007). The plaintiffs have

not alleged facts plausibly showing compliance with these

prerequisites.

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III. CONCLUSION

We need go no further. We hold that the factual

allegations in the plaintiffs' complaint, taken as true, state

plausible section 1983 claims for political discrimination with

respect to Molina (in both his official and personal capacities)

and Ríos. We likewise hold that the pendent claims against Molina

and Ríos, which were dismissed without prejudice when the district

court declined to exercise supplemental jurisdiction, must be

reinstated. In these respects, we reverse the judgment below. We

take no view as to whether the plaintiffs' evidence, when

presented, will prove sufficient either to withstand summary

judgment or to support a favorable jury verdict.

As to all claims asserted against the unidentified

defendants, the judgment is affirmed.

Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion. Costs shall be taxed in

favor of the plaintiffs.

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