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Defendant
___________________________________
INTRODUCTION
Defendant is confused.
being called out for its systemic corruption: corruption that the
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
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purchases and retaliate against anyone who dared complain of the same to
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
conclusion.
motion. The standard only requires a short and plain statement that would
make for a plausible claim. Plaintiff has exceeded that standard, carefully
policy and yet had become municipality custom and practice even before
concerning purchase orders and requisitions happened with the approval and
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
municipal policy. See Pembauer v. Cincinnati, 475 U.S. 469, 480 (1986).
Andrés García who referred her to López, see ¶¶68-84 and later filed a
107. That the complaint does not state when and how Defendant learned of
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
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alleged in the Complaint, but finding it sufficient that the Complaint stated
For the foregoing reasons, all of these allegations are sufficient to establish a
consequence, Andrés García, the deputy mayor, ordered her demotion. [The
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
Monell v. v. Department of Social Services, 436 U.S. 658, 684 (1978), where
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the Supreme Court held that a municipality could have § 1983 liability that
effected multiple employees. But the Supreme Court has also ruled in
this fits Ms. Molina’s situation to a tee. The municipality clearly did not
was precisely to send the clear message to Ms. Molina’s colleagues that
Thus, Ms. Molina did not have to allege that the Municipality of San Juan
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policymakers took official action in retaliation for her exercise of her First
Amendment rights.
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
strange and, in civilized law, monstrous were this not the rule of
interpretation.” Id.
usage with the force of law.” Id. at 691 citing Adickes v. H. Kress & Co.,
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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
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
other Section 1983 person,’ ... may be sued for constitutional deprivations
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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.
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Pembaur v. City of Cincinnati, 475 U.S. 469, 484, 106 S. Ct. 1292, 1300, 89
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
U.S. 563, 568 (1968), the court established an analytical framework for
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
142, 147 (1983), writing that “a State cannot condition public employment
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Garcetti v. Ceballos, 547 U.S. 410 (2006), did not overrule either of
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
possible. 2
2
See, generally, Bergstein, “Garcetti Distinctions Abound in the District Courts,” NEW
YORK LAW JOURNAL (December 4, 2012).
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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?
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later upheld after a suppression hearing. The attorney claimed that he was
Connick; and the Supreme Court reversed the Circuit and remanded for
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
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.
than citizen — speech." 134 S. Ct. at 2379 (concluding that fired employee's
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
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
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Id. at 2379. Here, Ms. Molina did not testify, but she did provide a sworn
employee must establish that she was speaking `as a citizen on a matter of
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
pleadings is foreclosed.
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
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
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omitted), echoing Garcetti, 547 U.S. at 425. Here, Molina exposed official
finding that such speech was not “solely” a part of the government
Ayers, 468 F.3d 528, 545 (9th Cir. 2006), cert. denied, 549 U.S. 1323
School 473 F.3d 1323, 1332-33 (10th Cir. 2007), the court found that a
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
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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.
In Dahlia, the court (en banc) found it “unlikely” that plaintiff was
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
misconduct pursuant to his job duties, here he defied, rather than followed,
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
fraud, quite apart from any duties he had as a state employee, since non-
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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
employees.
Borough of Duryea v. Guarnieri, 564 U.S. ___, 131 S.Ct. 2488 (2011), when
most likely to have informed and definitive opinions’ about a wide range of
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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.
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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
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.
RESPECTFULLY SUBMITTED.
The undersigned has filed this Certificate of Service with the Court’s ecf
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LAW OFFICES OF
JANE BECKER WHITAKER
P.O. Box 9023914
San Juan, Puerto Rico 00902-3914
Tel. 787-585-3824
Fax 787-764-3101
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