Ocasio-Hernandez v. Fortuno-Burset

United States Court of Appeals
For the First Circuit
No. 09-2207
CARMEN M. OCASIO-HERNÁNDEZ, et al.,
Plaintiffs, Appellants,
v.
LUIS FORTUÑO-BURSET, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Lipez, and Thompson, Circuit Judges.
Carlos A. Del Valle Cruz, with whom Landrón & Vera, Eileen
Landrón Guardiola and Eduardo Vera Ramírez were on brief, for
appellants.
Michael C. McCall, with whom Aldarondo & López Bras and
Eliezer Aldarondo-Ortiz were on brief, for appellees.
April 1, 2011
LIPEZ, Circuit Judge. This case involves a claim of
political discrimination stemming from the 2008 gubernatorial
election in Puerto Rico. Fourteen maintenance and domestic
workers, all members of Puerto Rico's Popular Democratic Party
("PDP"), brought suit in federal district court alleging that they
were unconstitutionally terminated from their public employment at
the governor's mansion, La Fortaleza, shortly after the election of
Governor Luis Fortuño-Burset ("Fortuño"), President of Puerto
Rico's New Progressive Party ("NPP"). The complaint named four
principal defendants, in both their individual and official
capacities, as well as their spouses and conjugal partnerships:
Governor Fortuño, the nominating authority at La Fortaleza; First
Lady Luce Vela ("Vela"), the chairperson of a committee for the
maintenance, restoration, and preservation of La Fortaleza; Chief
of Staff Juan Carlos Blanco ("Blanco"); and Administrator Velmarie
Berlingeri Marín ("Berlingeri").1 The district court, applying the
federal notice pleading standard articulated by the Supreme Court
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), dismissed the workers'
complaint for failing to state a plausible claim for relief.
After a careful review of the record and the teachings of
Twombly and Iqbal, we conclude that the district court applied the
1
The record contains two different spellings of Berlingeri's
name. We adopt the spelling used in the defendants' brief.
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notice pleading standard incorrectly. The allegations in the
complaint do state a plausible claim of political discrimination in
violation of the First Amendment to the United States Constitution.
We vacate the dismissal of that claim.
I.
A. The Complaint
Because this appeal follows the allowance of a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we
recite the facts of the plaintiffs' claim as alleged in the
complaint. See SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010)
(en banc).
Fortuño was elected Governor of the Commonwealth of
Puerto Rico on November 4, 2008, and he assumed that office on
January 2, 2009. As Governor, he is the nominating authority at La
Fortaleza; he approves or disapproves of all personnel decisions
relating to employment at the mansion. In early January 2009,
Governor Fortuño named defendant Berlingeri Administrator at La
Fortaleza, and he signed an executive order authorizing her to
terminate employees there on his behalf. He also named defendant
Blanco Chief of Staff. As the First Lady of Puerto Rico, defendant
Vela chairs the Conservation and Maintenance of La Fortaleza
Committee and is responsible for overseeing the mansion; she has
publicly acknowledged her personal involvement in overseeing
repairs and refurbishing work at La Fortaleza.
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Shortly after Governor Fortuño took office, logos,
emblems, and flyers supporting the NPP and Governor Fortuño were
prominently displayed at La Fortaleza. Employees at the mansion
openly discussed their political affiliations, as some NPP-
affiliated employees were promoted to high-level trust positions
while rumors spread of a list of PDP-affiliated employees who would
be terminated and replaced with NPP-affiliated workers. Employees
were questioned on multiple occasions, including by Governor
Fortuño himself, about the circumstances of their hire at La
Fortaleza, which the plaintiffs contend was merely an attempt to
ascertain or verify each employee's political affiliation. Indeed,
the new administration brought in confidential clerical personnel
who interrogated employees for that very purpose.
Governor Fortuño's campaign jingle, "It's time to
change," proved to be a recurring theme for employees at La
Fortaleza following the change in administration. One of
Berlingeri's trusted aides used the jingle as the ringtone on his
cellular telephone (which also prominently displayed the NPP logo).
He would also loudly sing the jingle in front of the maintenance
employees he commanded and would state on occasion that things had
indeed changed. Similarly, First Lady Vela informed employees that
"changes had come," and she would make disparaging and derogatory
comments about the prior PDP administration to employees as they
executed their duties. She was also overheard stating her intent
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to "clean up the kitchen," an apparent reference to an impending
change in kitchen staff.
The plaintiffs in this case performed maintenance work or
housekeeping tasks at La Fortaleza, such as laundry, ironing,
sewing, and cleaning. Some of the plaintiffs had held their
positions at the mansion for nearly twenty years. On either
February 27 or March 11 of 2009, each of the plaintiffs received a
termination letter signed by Berlingeri. They were fired without
notice, without cause, and without having their job performance
evaluated by the incoming administration. None of the plaintiffs
had been known members of the NPP. Within days, their positions at
La Fortaleza were filled by NPP-affiliated workers.
In answering press questions about the layoffs at La
Fortaleza, Blanco stated falsely that the employees who were
terminated had been privy to confidential, sensitive information.
In actuality, none of the plaintiffs had held policy-making
positions, performed functions similar to those performed by
policy-making employees, or had access to confidential information
related to policy. Blanco further informed the press, "We are
making employment evaluations every month," an assertion belied by
the lack of evaluation preceding the plaintiffs' terminations.
The defendants made other public statements indicating
that political affiliation may have been a consideration in the
administration's employment decisions, including those at La
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Fortaleza. In addressing the press on the topic of government
layoffs generally, Governor Fortuño flatly stated that "none of
them voted for him," in reference to the employees who might be
terminated. When specifically responding to criticism by a group
of terminated employees who were protesting at La Fortaleza, Blanco
made disparaging comments about the prior PDP administration and
acknowledged that the fired employees were part of that
administration. Berlingeri similarly made disparaging remarks
about the prior administration when addressing criticism by a group
of terminated employees.
B. Procedural Background
The plaintiffs brought suit in federal district court
pursuant to 42 U.S.C. § 1983, supplemented by claims brought under
the laws and Constitution of Puerto Rico. They alleged three
constitutional violations in the termination of their employment:
political discrimination in violation of the First Amendment,
deprivation of a property interest without due process of law, and
the denial of equal protection.
At an initial case conference in April 2009, the district
court informed the plaintiffs that their complaint satisfied the
federal notice pleading standard, and it advised the defendants not
to file a Rule 12(b)(6) motion to dismiss the complaint. In May
2009, however, the district court scheduled an emergency hearing
motu proprio to hear arguments on whether the recently issued Iqbal
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decision required the complaint to be dismissed due to insufficient
factual allegations. At that hearing, the defendants officially
moved to dismiss the complaint. The court denied the defendants'
motion without prejudice and granted the plaintiffs thirty days to
amend their complaint to comply with Iqbal. The plaintiffs timely
filed an amended complaint, and the defendants again moved to
dismiss. After a hearing, the district court dismissed the amended
complaint for failure to state a claim.2
C. The District Court Opinion
The district court began its opinion and order in this
case by dismissing all claims against three of the four defendants
-- Governor Fortuño, First Lady Vela, and Blanco. According to the
court, the factual allegations in the complaint failed to show with
the required specificity that those three defendants had caused the
plaintiffs' terminations. The court described the plaintiffs' case
against those defendants as resting on "an implicit assumption that
the defendants' [sic] participated in the decision" because of
their positions of authority. It noted that "no additional factual
allegations, such as interactions between the defendants and
particular plaintiffs, . . . tie Fortuño, Vela, and Blanco to the
deprivation of the plaintiffs' constitutional rights."
2
The plaintiffs do not challenge the dismissal of their
§ 1983 claims based on the Due Process Clause and Equal Protection
Clause of the Fourteenth Amendment.
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The district court did find, however, that the plaintiffs
had "minimally satisfied" their burden of pleading Berlingeri's
participation in the terminations, "since the plaintiffs allege
that she signed the letter which officially separated the
plaintiffs from their employment at La Fortaleza." It nevertheless
concluded that the plaintiffs' political discrimination claim
failed because the complaint lacked sufficient factual allegations
to show that Berlingeri had knowledge of the plaintiffs' political
affiliation or that political affiliation played a role in the
termination decision: "The fact that Berlingeri may have made
disparaging remarks about the previous administration does not lead
to the conclusion that she thought or knew that plaintiffs were PDP
members or supporters." It found that "the same can be said" with
respect to the plaintiffs' allegations that Berlingeri's trusted
aide was a staunch NPP supporter, wore the party's logo, and sang
Governor Fortuño's campaign jingle. The court also discounted the
complaint's allegation that Berlingeri, the other defendants, and
newly hired clerical staff had inquired into the circumstances of
the plaintiffs' hire at La Fortaleza. It noted that the complaint
"contains no specific account of these conversations," and thus
described it as "a generic allegation, made without reference to
specific facts that might make it 'plausible on its face.'" The
court further explained that had such inquiries taken place, that
fact would "not lead to the conclusion that [the defendants] did so
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in order to ascertain [the plaintiffs'] political affiliation, or
that they in fact gained that information."
The court likewise discounted the plaintiffs' allegation
that they were replaced in their positions by NPP-affiliated
workers, describing it as "a conclusory statement." It pointed out
that the "plaintiffs do not identify who replaced any or all of the
plaintiffs, nor the date of these replacements" and that the
complaint merely asserts "that this occurred as to all of the
plaintiffs." Further, the court found that the defendants' failure
to justify the terminations or to conduct performance evaluations
was not "relevant" to the claim, as "plaintiffs were not entitled
to any explanation." Lastly, the court explained that "mere
temporal proximity" between a change in administration and an
employee's dismissal is "insufficient to establish discriminatory
animus."
II.
We review the dismissal of a complaint under Rule
12(b)(6) de novo. E.g., Tasker v. DHL Retirement Sav. Plan, 621
F.3d 34, 38 (1st Cir. 2010). The sole inquiry under Rule 12(b)(6)
is whether, construing the well-pleaded facts of the complaint in
the light most favorable to the plaintiffs, the complaint states a
claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6).
The Supreme Court has twice recently clarified the
requirements of an adequately stated federal claim. Given the
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nature of the district court's errors in this case, and the
frequent invocation of these cases by litigants and the district
courts, we think it useful to set forth in some detail an account
of those two decisions.
A. Bell Atlantic Corp. v. Twombly
In Twombly, the Supreme Court affirmed the district
court's dismissal of an antitrust class-action suit brought under
Section 1 of the Sherman Act, 15 U.S.C. § 1. 550 U.S. at 548. The
plaintiffs claimed that a group of regional telephone service
providers had conspired to restrain trade by restricting the growth
of upstart competitors while refraining from competing with one
another. Id. at 550. The complaint both directly alleged that the
defendant service providers "'have entered into a contract,
combination or conspiracy to prevent competitive entry in their
respective . . . markets'" and also alleged conduct from which,
according to the plaintiffs, a conspiracy could be inferred, such
as an "'absence of any meaningful competition between [the
defendants] in one another's markets'" and a "'parallel course of
conduct that each engaged in to prevent competition from [upstart
competitors].'" Id. at 551. The Court of Appeals for the Second
Circuit reversed the district court's order dismissing the case,
asserting that "to rule that allegations of parallel anti-
competitive conduct fail to support a plausible conspiracy claim,
a court would have to conclude that there is no set of facts that
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would permit a plaintiff to demonstrate that the particular
parallelism asserted was the product of collusion rather than
coincidence." Id. at 553 (internal quotation marks omitted).
The Supreme Court reversed the Second Circuit and
reinstated the district court's order of dismissal. The Court
explained that the propriety of dismissal under Rule 12(b)(6) turns
on the complaint's compliance with Rule 8(a)(2), which mandates
that every complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief," Fed. R. Civ.
P. 8(a)(2). Id. at 555. It further explained that a "short and
plain" statement does not need detailed factual allegations. Id.
at 555. That aspect of the Rule merely requires sufficient detail
in the complaint to give a defendant fair notice of the claim and
the grounds upon which it rests. Id. (citing Conley v. Gibson, 355
U.S. 41, 47 (1957)).
However, the Twombly Court reasoned, Rule 8(a)(2) also
requires "that the plain statement possess enough heft to show that
the pleader is entitled to relief." Id. at 557 (emphasis added)
(internal quotation marks omitted). It stated that a complaint
only "shows" an entitlement to relief if its factual allegations
are "enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are
true (even if doubtful in fact)." See id. at 555 (citation
omitted). According to the Court, Rule 8(a)(2) must require more
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than mere "labels and conclusions" or "a formulaic recitation of
the elements of a cause of action." Id. However, the Twombly
Court was also careful to explain that "[h]ere, . . . we do not
require heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face."
Id. at 570.
Applying the Rule 8 pleading standard to the facts of the
case before it, the Twombly Court disregarded the complaint's
allegations that the defendants had "entered into a contract,
combination or conspiracy" and had "agreed not to compete with one
another." According to the Court, "on fair reading these are
merely legal conclusions resting on the prior allegations" of
parallel conduct and non-competition: "the complaint leaves no
doubt that plaintiffs rest their § 1 claim on descriptions of
parallel conduct and not on any independent allegation of actual
agreement among the [defendants]."3 Id. at 564.
Taking as true the remaining allegations that the
defendants had "engaged in parallel conduct" and had failed to
3
The Court noted that if the plaintiffs had intended these
statements to serve as factual allegations that an agreement
occurred, it is doubtful that they would have provided the
defendants with the notice required by Rule 8(a)(2): "Apart from
identifying a seven-year span in which the § 1 violations were
supposed to have occurred," "the complaint here furnishes no clue
as to which of the four [defendants] (much less which of their
employees) supposedly agreed, or when and where the illicit
agreement took place. . . . [A] defendant seeking to respond to
plaintiffs' conclusory allegations in the § 1 context would have
little idea where to begin." Twombly, 550 U.S. at 564 n.10.
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"meaningfully pursue" "attractive business opportunit[ies]," the
Twombly Court concluded they were insufficient to "invest[] either
the action or inaction alleged with a plausible suggestion of
conspiracy." Id. at 564-66. It explained that, under the Sherman
Act, "[e]ven conscious parallelism, a common reaction of firms in
a concentrated market that recognize their shared economic
interests . . . is not in itself unlawful," and that "proof of a
§ 1 conspiracy must include evidence tending to exclude the
possibility of independent action." Id. at 553-54 (internal
quotation marks omitted) (alterations omitted). The Court reasoned
that, though the alleged conduct was "consistent with conspiracy,"
it was "just as much in line with a wide swath of rational and
competitive business strategy." Id. at 554.
Indeed, the Court emphasized that the alleged conduct
held almost no probative value in showing the existence of a
conspiracy:
[T]here is no reason to infer that the companies had
agreed among themselves to do what was only natural
anyway; so natural, in fact, that if alleging parallel
decisions to resist competition were enough to imply an
antitrust conspiracy, pleading a § 1 violation against
almost any group of competing business would be a sure
thing.
Id. at 566. Finding an "obvious alternative explanation" for the
alleged behavior of the defendants, the Twombly Court concluded
that the "plaintiffs here have not nudged their claims across the
line from conceivable to plausible." Id. at 567, 570.
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In describing facial plausibility as the governing
standard of Rule 8(a)(2), Twombly officially put to rest the well-
known "no set of facts" language used in one of the Court's
earliest opinions interpreting the Federal Rules, Conley v. Gibson,
355 U.S. at 45-46. 550 U.S. at 561. Although the Twombly Court
acknowledged that Conley's language had been sensible in the
context of the case, it was at best "an incomplete, negative gloss
on an accepted pleading standard." Id. at 563. That language had
been erroneously employed by the Second Circuit to reverse the
district court's order of dismissal, and the Twombly Court
expressed its concern that the "no set of facts" formulation can
too easily "be read in isolation as saying that any statement
revealing the theory of the claim will suffice unless its factual
impossibility may be shown from the face of the pleadings." Id. at
561. It elaborated:
On such a focused and literal reading . . . a wholly
conclusory statement of claim would survive a motion to
dismiss whenever the pleadings left open the possibility
that a plaintiff might later establish some set of
undisclosed facts to support recovery. . . . It seems
fair to say that this approach to pleading would dispense
with any showing of a reasonably founded hope that a
plaintiff would be able to make a case; Mr. Micawber's
optimism would be enough.
Id. at 561-62 (alteration omitted) (citation omitted) (internal
quotation marks omitted). The Court thus announced that, "after
puzzling the profession for 50 years, this famous observation has
earned its retirement." Id. at 563.
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Importantly, even while retiring one famous precedent,
the Twombly Court explicitly affirmed another. It emphasized that
requiring a plaintiff to show a plausible entitlement to relief was
not the same as imposing a "heightened pleading requirement," and
was therefore not inconsistent with the Supreme Court's previous
declaration in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002),
that a court may not insist on the allegation of "specific facts"
that would be necessary to prove the claim at trial. See Twombly,
550 U.S. at 570. To do so is incompatible with the notice pleading
structure of the Federal Rules. Id. The Court reiterated: "Here,
our concern is not that the allegations in the complaint were
insufficiently 'particularized'; rather, the complaint warranted
dismissal because it failed in toto to render plaintiffs'
entitlement to relief plausible." Id. at 569 n.14 (alteration
omitted) (internal citation omitted).
B. Ashcroft v. Iqbal
Iqbal involved a § 1983 claim brought by a detainee who
had been held in a Brooklyn detention center in the wake of the
September 11, 2001, terrorist attacks. 129 S. Ct. at 1943. The
complaint alleged that the conditions of the plaintiff's detention
resulted from unconstitutional racial, ethnic, and religious
discrimination in designating him a person of "high interest." Id.
at 1943-44. Among the defendants named in the suit were Attorney
General John Ashcroft and Director of the Federal Bureau of
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Investigation ("FBI") Robert Mueller. Id. at 1942. After the
Second Circuit affirmed the district court's denial of their motion
to dismiss, these two defendants petitioned for certiorari. Id.
To provide guidance to lower courts on how best to apply
the plausibility requirement of Rule 8(a)(2), the Iqbal Court
endorsed a two-pronged approach that it saw as implicit in the
Twombly decision. Id. at 1950. Under this approach, a court
resolving a Rule 12(b)(6) motion to dismiss should begin by
separating a complaint's factual allegations from its legal
conclusions. See id. at 1949-50. Unlike factual allegations,
legal conclusions contained within a complaint are not entitled to
a presumption of truth. Id. The Iqbal Court pointed to the
allegation that the Twombly defendants had "entered into a
contract, combination, or conspiracy," which had been disregarded
by the Twombly Court, as an example of a conclusory statement that,
though presented as an assertion of fact, simply describes the
legal conclusion that the plaintiffs sought to infer from the other
conduct alleged in the complaint. See id. at 1950. The Court
explained that, if this conclusory allegation were afforded a
presumption of truth, the Twombly plaintiffs "would have stated a
claim for relief and been entitled to proceed perforce." Id.
The second prong of the approach endorsed by the Iqbal
Court requires a reviewing court to accept the remaining factual
allegations in the complaint as true and to evaluate whether, taken
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as a whole, they state a facially plausible legal claim. See id.
According to the Court, "[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 1949. Echoing Twombly's conclusion
that the allegation of parallel conduct was "just as much in line"
with innocent conduct as with conspiracy, 550 U.S. at 554, the
Iqbal Court reiterated that a complaint may not stand simply on the
"sheer possibility" that a defendant acted unlawfully or on facts
that are merely consistent with a defendant's liability. See 129
S. Ct. at 1949. It cautioned, however, that evaluating the
plausibility of a legal claim is a "context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense." Id. at 1950.
Applying this two-pronged approach, the Iqbal Court
identified and disregarded an allegation in the plaintiff's
complaint that these two defendants, high-ranking government
officials, "knew of, condoned, and willfully and maliciously agreed
to subject [the plaintiff] to harsh conditions of confinement as a
matter of policy, solely on account of his religion, race, and/or
national origin." Id. at 1951 (alteration omitted) (internal
quotation marks omitted). The Court emphasized that this
conclusory allegation simply mirrored the legal standard against
which the complaint is to be tested, noting that "Rule 8 does not
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empower [the plaintiff] to plead the bare elements of his cause of
action, affix the label 'general allegation,' and expect his
complaint to survive a motion to dismiss." Id. at 1954.
Turning to the remaining factual allegations, the Court
reasoned that the plaintiff's claim was implausible. Although the
complaint included a factual allegation that the FBI "arrested and
detained thousands of Arab Muslim men . . . as part of its
investigation of the events of September 11," the Court found that
an inference of discriminatory intent was unreasonable in light of
the "more likely explanations." Id. at 1951 (alteration in
original) (internal quotation marks omitted). Recounting the
circumstances of the September 11 attacks, the Court explained why
"[i]t should come as no surprise that a legitimate policy directing
law enforcement to arrest and detain individuals because of their
suspected link to the attacks would produce a disparate, incidental
impact on Arab Muslims, even though the purpose of the policy was
to target neither Arabs nor Muslims." Id. It also pointed out
that the plaintiff's only factual allegation specific to the two
petitioning defendants accused them of "adopting a policy approving
of restrictive conditions of confinement for post-September-11
detainees." Id. at 1952 (internal quotation marks omitted). The
Court explained that nothing in this allegation shows the
defendants' discriminatory intent: "[A]s we have noted, [the
defendants] cannot be held liable unless they themselves acted on
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account of a constitutionally protected characteristic. Yet [the
plaintiff's] complaint does not contain any factual allegation
sufficient to plausibly suggest [the defendant's] discriminatory
state of mind." Id.
C. The Current State of Federal Notice Pleading
We distill the following principles from Twombly and
Iqbal.
Dismissal of a complaint pursuant to Rule 12(b)(6) is
inappropriate if the complaint satisfies Rule 8(a)(2)'s requirement
of "a short and plain statement of the claim showing that the
pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2). See
Iqbal, 129 S. Ct. at 1949; Twombly 550 U.S. at 555. A "short and
plain" statement needs only enough detail to provide a defendant
with "'fair notice of what the . . . claim is and the grounds upon
which it rests.'" Twombly, 550 U.S. at 555 (citing Conley, 355
U.S. at 47); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007)
("Federal Rule of Civil Procedure 8(a)(2) requires only 'a short
and plain statement . . . .' Specific facts are not necessary.").
However, in order to "show" an entitlement to relief a complaint
must contain enough factual material "to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)."
See Twombly, 550 U.S. at 555 (citation omitted); see also Iqbal,
129 S. Ct. at 1950. "Where a complaint pleads facts that are
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'merely consistent with' a defendant's liability, it 'stops short
of the line between possibility and plausibility of entitlement to
relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at
557). In short, an adequate complaint must provide fair notice to
the defendants and state a facially plausible legal claim.
In resolving a motion to dismiss, a court should employ
a two-pronged approach. It should begin by identifying and
disregarding statements in the complaint that merely offer "'legal
conclusion[s] couched as . . . fact[]'" or "[t]hreadbare recitals
of the elements of a cause of action." Id. at 1949-50 (quoting
Twombly, 550 U.S. at 555). A plaintiff is not entitled to "proceed
perforce" by virtue of allegations that merely parrot the elements
of the cause of action. See id. at 1950; cf. Sanchez v. Pereira-
Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (disregarding as
conclusory, under Iqbal's first prong, a factual allegation that
merely "[p]arrot[ed] our standard for supervisory liability in the
context of Section 1983" in alleging that defendants had "failed to
[supervise] with deliberate indifference and/or reckless disregard
of Plaintiff's federally protected rights"). Non-conclusory
factual allegations in the complaint must then be treated as true,
even if seemingly incredible. Iqbal, 129 S. Ct. at 1951 ("To be
clear, we do not reject these bald allegations on the ground that
they are unrealistic or nonsensical. . . . It is the conclusory
nature of respondent's allegations, rather than their extravagantly
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fanciful nature, that disentitles them to the presumption of
truth."). But cf. Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592,
595 (1st Cir. 2011) ("[S]ome allegations, while not stating
ultimate legal conclusions, are nevertheless so threadbare or
speculative that they fail to cross the line between the conclusory
and the factual.") (internal quotation marks omitted). If that
factual content, so taken, "allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged,"
the claim has facial plausibility. Iqbal, 129 S. Ct. at 1949.
"The make-or-break standard . . . is that the combined allegations,
taken as true, must state a plausible, not a merely conceivable,
case for relief." Sepúlveda-Villarini v. Dep't of Educ. of P.R.,
628 F.3d 25, 29 (1st Cir. 2010) (Souter, J.).
Although evaluating the plausibility of a legal claim
"requires the reviewing court to draw on its judicial experience
and common sense," Iqbal, 129 S. Ct. at 1950, the court may not
disregard properly pled factual allegations, "even if it strikes a
savvy judge that actual proof of those facts is improbable."
Twombly, 550 U.S. at 556; see also Neitzke v. Williams, 490 U.S.
319, 327 (1989) ("Rule 12(b)(6) does not countenance . . .
dismissals based on a judge's disbelief of a complaint's factual
allegations."). Nor may a court attempt to forecast a plaintiff's
likelihood of success on the merits; "a well-pleaded complaint may
proceed even if . . . a recovery is very remote and unlikely."
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Twombly, 550 U.S. at 556 (internal quotation marks omitted); see
also id. at 563 n.8 ("[W]hen a complaint adequately states a claim,
it may not be dismissed based on a district court's assessment that
the plaintiff will fail to find evidentiary support for his
allegations or prove his claim to the satisfaction of the
factfinder."). The relevant inquiry focuses on the reasonableness
of the inference of liability that the plaintiff is asking the
court to draw from the facts alleged in the complaint.
With these principles in mind, we turn to the claim at
issue.
III.
Government officials are forbidden by the First Amendment
from taking adverse action against public employees on the basis of
political affiliation, unless political loyalty is an appropriate
requirement of the employment. See Rutan v. Republican Party of
Ill., 497 U.S. 62, 75-76 (1990); Welch v. Ciampa, 542 F.3d 927,
938-39 (1st Cir. 2008). An actionable claim of political
discrimination consists of four elements: "(1) that the plaintiff
and defendant have opposing political affiliations, (2) that the
defendant is aware of the plaintiff's affiliation, (3) that an
adverse employment action occurred, and (4) that political
affiliation was a substantial or motivating factor for the adverse
employment action." Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239
(1st Cir. 2010). There is no question about the adequacy of the
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plaintiffs' complaint in this case with respect to two of these
elements. The complaint contains straightforward factual
allegations describing the parties' opposing political
affiliations, including that the "[d]efendants all belong to the
NPP," that "[e]ach and all plaintiffs are members of the Popular
Democratic Party . . . or are believed to be a member of the PDP,"
and that each plaintiff "was not a known member of the New
Progressive Party." On review of a motion to dismiss, we must
accept these allegations as true. Additionally, the defendants do
not contest that the plaintiffs have adequately alleged that the
termination of the plaintiffs' employment at La Fortaleza
constitutes an adverse employment action.
At issue, then, is the correctness of the district
court's conclusion that the plaintiffs' complaint fails to show
that the defendants had knowledge of the plaintiffs' political
affiliation and that the plaintiffs' political affiliation
motivated the defendants' participation in the plaintiffs'
terminations.
A. The Defendants' Knowledge
The district court assessed only Berlingeri's knowledge
of the plaintiffs' political affiliation because it dismissed all
claims against Governor Fortuño, First Lady Vela, and Blanco on the
ground that the allegations were insufficient to show their
participation in the plaintiffs' terminations. In effect, the
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court performed a causation analysis at the outset of its opinion
that obviated the need for an element-by-element assessment of the
plaintiffs' claims with respect to three of the four defendants.
As we explain below, we disagree with the court's conclusion on
causation. Hence, we must assess whether the plaintiffs'
allegations show that all four defendants had knowledge of the
plaintiffs' political affiliation.
The district court concluded that the plaintiffs'
complaint inadequately alleged Berlingeri's knowledge. In reaching
that conclusion, it disregarded as "conclusory" an allegation that
the plaintiffs were replaced by NPP-affiliated workers because the
plaintiffs "do not identify who replaced any or all of the
plaintiffs, nor the date of these replacements." It also
disregarded as "generic, blanket statements" numerous allegations
that the defendants and their subordinates had questioned the
plaintiffs about the circumstances of their hires in order to
discern their political affiliations. The court explained that the
complaint "contains no specific account of these conversations."
The court then added that, even if the defendants had questioned
the plaintiffs about the circumstances of their employment, such
questioning "does not lead to the conclusion that [the defendants]
did so in order to ascertain [the plaintiffs'] political
affiliation, or that they in fact gained that information." It
reasoned similarly with respect to allegations about disparaging
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remarks made by Berlingeri: "The fact Berlingeri may have made
disparaging remarks about the previous administration does not lead
to the conclusion that she thought or knew that plaintiffs were PDP
members or supporters" and that "[t]he same can be said" of the
plaintiffs' allegations regarding the overtly politicized conduct
of Berlingeri's aide.
The district court erred by not affording the plaintiffs'
allegations the presumption of truth to which they were entitled.
First, as we explained above, the Supreme Court's concerns about
conclusory allegations expressed in Twombly and Iqbal focused on
allegations of ultimate legal conclusions and on unadorned
recitations of a cause-of-action's elements couched as factual
assertions. Allegations of discrete factual events such as the
defendants questioning the plaintiffs and replacing the plaintiffs
with new employees are not "conclusory" in the relevant sense.
Second, factual allegations in a complaint do not need to contain
the level of specificity sought by the district court. See, e.g.,
Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 167-69 (1993); cf. Iqbal, 127 S. Ct. at 1951
(accepting allegations that the FBI "arrested and detained
thousands of Arab Muslim men" pursuant to a policy that was
"approved by [the defendants] in discussions in the weeks after
September 11, 2001") (internal quotation marks omitted); Twombly,
550 U.S. at 550-51, 564-65 (accepting allegations that defendants
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"engaged in parallel conduct" and failed to "meaningfully . . .
pursue attractive business opportunities") (alterations omitted)
(internal quotation marks omitted); see also id. at 565 n.10
("Here, our concern is not that the allegations in the complaint
were insufficiently 'particularized'; rather, the complaint
warranted dismissal because it failed in toto to render plaintiffs'
entitlement to relief plausible.") (alteration omitted) (citation
omitted). The plaintiffs' allegations were sufficiently detailed
to provide the defendants "fair notice of what the . . . claim is
and the grounds upon which it rests." Id. at 555 (internal
quotation marks omitted). Those allegations should not have been
disregarded.
Additionally, the district court erred when it failed to
evaluate the cumulative effect of the factual allegations. The
question confronting a court on a motion to dismiss is whether all
the facts alleged, when viewed in the light most favorable to the
plaintiffs, render the plaintiff's entitlement to relief plausible.
See id. at 569 n.14; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009) (explaining that "the complaint should be read
as a whole, not parsed piece by piece to determine whether each
allegation, in isolation, is plausible"). No single allegation
need "lead to the conclusion" -- in the district court's words --
of some necessary element, provided that, in sum, the allegations
of the complaint make the claim as a whole at least plausible. See
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Sepúlveda-Villarini, 628 F.3d at 29 ("The make-or-break standard
. . . is that the combined allegations, taken as true, must state
a plausible, not a merely conceivable, case for relief.") (emphasis
added). Indeed, the Supreme Court has suggested that allegations
that would individually lack the heft to make a claim plausible may
suffice to state a claim in the context of the complaint's other
factual allegations. See Twombly, 550 U.S. at 557 ("An allegation
of parallel conduct . . . gets the complaint close to stating a
claim, but without some further factual enhancement it stops short
of the line between possibility and plausibility.").
We also reject the district court's "lead to the
conclusion" formulation to the extent it implies a stronger logical
connection than that demanded by plausibility. As we have said
previously, "[a] plausible but inconclusive inference from pleaded
facts will survive a motion to dismiss." Sepúlveda-Villarini, 628
F.3d at 30.
Taking all well-pleaded factual allegations as true, the
plaintiffs in this case have pleaded adequate factual material to
support a reasonable inference that the four defendants had
knowledge of their political beliefs. The complaint states that
the defendants asked several plaintiffs about "the circumstances
pertaining to how and when they got to work at Fortaleza"; that an
aide to Berlingeri similarly "asked each of them as to how and when
they began work at the Governor's Mansion," taking notes on their
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responses; and that confidential clerical personnel brought in by
the new administration "insisted on interrogating them in order to
ascertain their respective political affiliations." This last
allegation, in particular, contains a clear assertion that the
clerical staff inquired directly into the plaintiffs' political
affiliations, rather than obliquely into circumstances that might
imply such affiliations. Cf. Montfort-Rodríguez v. Rey-Hernández,
504 F.3d 221, 226 (1st Cir. 2007) (finding sufficient evidence of
a defendant's knowledge where he had asked a subordinate to
generate a list of trust employees and where subordinate thereby
acquired knowledge of the political affiliation of employees). The
plaintiffs' complaint thus plainly shows that the defendants were
actively seeking the knowledge in question from the plaintiffs.
The plaintiffs' complaint also shows that the information
was potentially accessible to the defendants from sources other
than the plaintiffs. The complaint states that employees at La
Fortaleza knew, and commonly discussed, the political affiliations
of their co-workers. Cf. Peguero-Moronta v. Santiago, 464 F.3d 29,
48 (1st Cir. 2006) (finding sufficient evidence of defendants'
knowledge where "evidence portrays a relatively small workplace
where everyone knew who everyone else was and political
affiliations were common office knowledge"). In the same
paragraph, the complaint states that certain NPP-affiliated
employees who possessed this information were promoted to "high
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level trust positions" by the defendants following the change of
administration and were consulted by the defendants in making
employment decisions. These allegations are also consistent with
the plaintiffs' allegation of rumors that had spread among
employees at La Fortaleza suggesting the defendants were
maintaining a list of "employees considered as PDP's [sic] . . .
who would be terminated and substituted with NPP'ers [sic]."
In short, in light of the pleadings as a whole, these
allegations plausibly show the defendants' awareness of the
plaintiffs' political affiliation at the time that they were
terminated.
B. Causation
A plausible discrimination claim requires more than an
awareness of the plaintiffs' political affiliations. It requires
a reasonable inference that the plaintiffs' political affiliation
was a substantial or motivating factor in the defendants' conduct.
See Peñalbert-Rosa, 631 F.3d at 594. Moreover, each defendant's
role in the termination decision must be sufficiently alleged to
make him or her a plausible defendant. After all, "we must
determine whether, as to each defendant, a plaintiff's pleadings
are sufficient to state a claim on which relief can be granted."
Sanchez, 590 F.3d at 48; see also Peñalbert-Rosa, 631 F.3d at 594
("[S]ave under special conditions, an adequate complaint must
include not only a plausible claim but also a plausible
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defendant.").
1. The Defendants' Participation in the Termination
Decision.
Public officials may be held liable under § 1983 for a
constitutional violation only if a plaintiff can establish that his
or her constitutional injury "resulted from the direct acts or
omissions of the official, or from indirect conduct that amounts to
condonation or tacit authorization." Rodríguez-García v. Miranda-
Marín, 610 F.3d 756, 768 (1st Cir. 2010). This standard can be
satisfied by conduct "'setting in motion a series of acts by others
which the actor knows or reasonably should know would cause others
to inflict the constitutional injury.'" Sanchez, 590 F.3d at 50
(quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st
Cir. 1989)). Because precise knowledge of the chain of events
leading to the constitutional violation may often be unavailable to
a plaintiff at this early stage of the litigation, we take to heart
the Supreme Court's call to "draw on our 'judicial experience and
common sense' as we make a contextual judgment about the
sufficiency of the pleadings." See id. (quoting Iqbal, 129 S. Ct.
at 1950).
The district court concluded that the allegations of
participation by Governor Fortuño, First Lady Vela, and Blanco were
inadequate because they relied entirely on "the positions these
defendants hold within the governor's mansion," and "no additional
factual allegations, such as interactions between the defendants
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and particular plaintiffs, . . . tie Fortuño, Vela, and Blanco to
the deprivation of the plaintiffs' constitutional rights." That
conclusion was erroneous. Although § 1983 liability cannot rest
solely on a defendant's position of authority, see Ayala-Rodriguez
v. Rullán, 511 F.3d 232, 236 (1st Cir. 2007), the plaintiffs'
complaint does include other well-pleaded factual allegations that
detail each of these three defendants' level of personal
involvement in and familiarity with the plaintiffs' terminations.
According to the complaint, Governor Fortuño is the
nominating authority at La Fortaleza. He approves or disapproves
of all personnel decisions at the mansion. As early as January
2009, Governor Fortuño signed an Executive Order authorizing
Berlingeri to issue termination notices at La Fortaleza. The
plaintiffs have alleged that Governor Fortuño personally
participated in questioning them about how and when they began to
work at La Fortaleza in order to learn their political affiliation.
When responding to press questions about the potential termination
of government employees, Governor Fortuño allegedly stated that
those who would be terminated "did not vote for him."
According to the complaint, First Lady Vela serves as the
chair of a committee charged with the maintenance, restoration, and
preservation of La Fortaleza. In that role, she allegedly oversees
maintenance and domestic workers. Indeed, the complaint states
that she publicly took personal responsibility for overseeing
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certain renovations and improvements in her time at La Fortaleza,
demonstrating her active participation in that role.
Vela allegedly interacted with the plaintiffs while they
executed their duties, making disparaging remarks to them about the
prior PDP administration and informing them that "changes had
come." She is also alleged to have been overheard stating her
intention to "clean up the kitchen," a remark reasonably
understood as reflecting an intent to replace certain staff
members. The district court improperly disregarded this comment as
"an ambiguous remark that does not necessarily refer to the
dismissals at issue in this case." On a motion to dismiss, we are
obligated to view the facts of the complaint in the light most
favorable to the plaintiffs, and to resolve any ambiguities in
their favor. Given these requirements, the "necessarily refer"
standard of the district court is particularly inappropriate for
evaluating the sufficiency of the allegations in a complaint.
Finally, Blanco is alleged to be the Chief of Staff at La
Fortaleza, a title which itself indicates his role in personnel
management. According to the complaint, Blanco was also
responsible for answering press questions about the specific
terminations at La Fortaleza. In responding to the press, Blanco
allegedly lied about the reason for the plaintiffs' termination,
claiming that the plaintiffs were privy to confidential information
and that performance evaluations were being regularly conducted.
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The allegations in the complaint show, however, that Blanco
understood the true reason for the terminations at La Fortaleza,
which he revealed by making disparaging remarks about the prior PDP
administration to a group of former employees who were protesting
at the mansion. The complaint also states that Blanco openly
acknowledged to the press that some of the terminated employees
would be replaced.
As we have often emphasized, one rarely finds "smoking
gun" evidence in a political discrimination case. Lamboy-Ortiz,
630 F.3d at 240. Circumstantial evidence must, at times, suffice.
Moreover, the requirement of plausibility on a motion to dismiss
under Rule 12(b)(6) "simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of the
illegal [conduct]." Twombly, 550 U.S. at 556. The allegations
above plausibly show that each defendant possessed knowledge of and
shared some responsibility for the termination of employees at La
Fortaleza.4
2. Political Affiliation as a Motivating Factor in the
Termination of the Plaintiffs' Employment.
Turning to the question of discriminatory motive, we must
again conclude that the district court erred. The allegations of
the plaintiffs' complaint support the reasonable inference that the
4
As previously noted, the district court concluded that
Berlingeri's participation was adequately pled because the
plaintiffs alleged that she signed their termination letters. The
defendants do not dispute that conclusion.
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defendants' decision to terminate the plaintiffs' employment was
substantially motivated by political affiliation.
We have previously explained that a politically charged
employment atmosphere "occasioned by the major political shift from
the NPP to the PDP . . . coupled with the fact that plaintiffs and
defendants are of competing political persuasions[] may be
probative of discriminatory animus." Acevedo-Diaz v. Aponte, 1
F.3d 62, 69 (1st Cir. 1993). Here, the plaintiffs have alleged
just such a case. Following the election of Governor Fortuño,
"logos and flyers allusive to the NPP and Governor Fortuño were in
full display and clear to employees at the Governor's Mansion."
The political affiliation of employees was "commonly shared and
discussed" while rumors spread concerning a list of PDP-affiliated
workers who were to be terminated. The plaintiffs alleged that the
defendants contributed to the politically charged atmosphere by
repeatedly inquiring into the political affiliation of employees
and by making disparaging comments to employees about the prior PDP
administration, including Vela's expressed intent to "clean up the
kitchen" and assertions by Vela and Berlingeri's aide that "things
had indeed changed" at La Fortaleza. Cf. Lamboy-Ortiz, 630 F.3d at
239 (holding that it was reasonable for a plaintiff to bring a
political discrimination suit against a PDP-affiliated mayor who
had made "vitriolic, anti-NPP commentary," had stated an intent to
"make [a] cleanup" of certain NPP-affiliated employees, and who was
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rumored to have maintained a "list" of NPP-affiliated employees he
intended to oust).
The allegations of the complaint go well beyond this
atmospheric evidence, however. The plaintiffs alleged that they
were fired less than ten weeks after Governor Fortuño assumed
office. Although the district court is correct that temporal
proximity between the change in political administration and the
turnover of staff is not itself sufficient to satisfy a plaintiff's
burden of proof on the causation element of a political
discrimination claim, it unquestionably contributes at the motion
to dismiss stage to the reasonable inference that the employment
decision was politically motivated. See, e.g., Peguero-Moronta,
464 F.3d at 53. In contrast to their treatment, the plaintiffs
alleged that NPP-affiliated employees were promoted to high-level
trust positions following the change in administration. Similarly,
the plaintiffs alleged that their positions at La Fortaleza were
filled almost immediately by NPP-affiliated workers. We have
previously described such comparative evidence as "helpful" in
demonstrating that a particular plaintiff was targeted for his or
her political views. See Mercado-Berrios v. Cancel-Alegría, 611
F.3d 18, 24 (1st Cir. 2010).
Lastly, plaintiffs again point to the public statements
made by the defendants as an acknowledgment of the political
motivation behind the administration's employment decisions.
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Blanco's alleged misstatements to the press about the reasons for
the terminations at La Fortaleza and about conducting regular
performance evaluations bolster the plaintiffs' contention that the
terminations had a discriminatory basis.5 See Acevedo-Diaz, 1 F.3d
at 68 ("[T]o the extent the reasons given by the employer at the
time of the dismissal are later proven false or frivolous, the
weight of the evidence of discriminatory animus may be enhanced.").
Similarly, viewed in the light most favorable to the plaintiffs,
Blanco's and Berlingeri's alleged disparaging remarks about the
prior PDP-affiliated administration to terminated employees, and
Governor Fortuño's press statements that "none of them voted for
him" when questioned about potential employee firings, serve to
confirm the plaintiffs' core allegation: the defendants' political
biases played a substantial role in the employment decisions at La
Fortaleza.
IV.
The cumulative weight of the plaintiffs' factual
allegations easily nudges their claim of political discrimination
"across the line from conceivable to plausible" as to each
defendant. Iqbal, 129 S. Ct. at 1951. Read as a whole, the
5
The district court concluded that, because of the nature of
their positions, the plaintiffs "were not entitled to any
explanation" for their termination and that the lack of performance
evaluations was not "relevant" to the claim. We disagree. The
lack of any plausible alternative justification for the plaintiffs'
terminations makes the inference of political discrimination from
the facts alleged more reasonable.
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plaintiffs' complaint unquestionably describes a plausible
discriminatory sequence that is all too familiar in this circuit.
See, e.g., Peñalbert-Rosa, 631 F.3d 592 (suit against newly elected
governor brought by receptionist at public building within La
Fortaleza); Vazquez Rios v. Hernandez Colon, 819 F.2d 319 (1st Cir.
1987) (suit against newly elected governor and administrator for
political discrimination against domestic workers at La Fortaleza);
see generally Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 126
(1st Cir. 2004) ("With each change in administration . . . the
federal district courts in Puerto Rico are flooded with hundreds of
political discrimination cases, many of which are appealed.").
Under the Federal Rules, no more is required to "unlock
the doors of discovery" for these plaintiffs. See Iqbal, 129 S.
Ct. at 1950. Although discovery may reveal facts that belie the
plaintiffs' claim, that possibility does not negate its
plausibility. See Sepúlveda-Villarini, 628 F.3d at 30. "[I]t is
simply a reminder that plausibility of allegations may not be
matched by adequacy of evidence." Id.
We therefore vacate the portion of the district court's
order dismissing the plaintiffs' political discrimination claim and
supplemental Commonwealth law claims, and the case is hereby
remanded. Costs are awarded to the appellants.
So ordered.
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