Full opinion text
OPINION AND ORDER DOMINGUEZ, District Judge. Plaintiffs filed suit against co-defendants pursuant to 42 U.S.C. § 1983, alleging violations to their constitutional rights as guaranteed in both the Federal Constitution and the Constitution of the Commonwealth of Puerto Rico. Further, plaintiffs claim damages pursuant to Articles 1802 and 1803 of the Civil Code of Puerto Rico. 31 P.R. Laws Ann § 5141 and 5142. In essence, plaintiffs sustain they were object of an adverse employment action due to their political beliefs. Pending before the Court is defendants’ Motion for Summary Judgment (Docket No. 64). Defendants claim plaintiffs failed to establish a prima facie discrimination case, they had a valid reason for the adverse employment action toward all plaintiffs, and they are entitled to qualified immunity. Plaintiffs duly opposed defendants’ request (Docket No. 75). After referring this matter to Magistrate Judge Gustavo Gelpi (Docket No. 72), a Report and Recommendation was issued (Docket No. 81), recommending this Court to grant in part and to deny in part defendants’ request for brevis disposition. I. The Magistrate’s Report and Recommendation The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Fed. R.CrvP. 72(b); Rule 72(4), Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Of course, an adversely affected party may contest the Magistrate’s Report and Recommendation by filing it’s objections with ten (10) days after being served a copy thereof. See Local Rule 72(d); Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent, part provides that: Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. “Failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir., 1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir., 1994)(holding that objections are required when challenging findings actually set out in magistrate’s recommendation, as well as magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir., 1993)(stating that “[ojbjection to a magistrate’s report preserves only those objections specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir., 1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir., 1987)(holding that appellant was entitled to a de novo review, “however, he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir., 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir., 1980). Since both parties duly objected to the Magistrate’s Report and Recommendation, the Court hereby reviews, de novo, defendants’ request for summary disposition. II. Summary Judgment Standard Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is “no genuine issue as to any material facts,” and that he is “entitled to judgment as a matter of law.” Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir., 1997). After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists “a trial worthy issue as to some material fact.” Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir., 1997). A fact is deemed “material” if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a “genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party’s favor.” Id. At all times during the consideration of a motion for summary judgment, the Court must examine the entire record “in the light most flattering to the non-movant and indulge all reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir., 1994). There is “no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood....” Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir., 1987). In fact, “[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir., 1997). Finally, when considering this motion, unsettled issues of motive and intent as to the conduct of any party — as may arise in actions under § 1983 — will normally preclude the Court from granting summary judgment. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir., 1996) (reversing summary judgment and emphasizing that “determinations of motive and intent ... are questions better suited for the jury”) (internal quotation marks omitted) (citation omitted); see also Tew v. Chase Manhattan Bank, N.A., 728 F.Supp. 1551, 1555 (S.D.Fla.1990) (“Certain issues such as fraud, intent, and knowledge lend themselves to trial, rather than summary judgment. These matters can often only be proved by reliance upon circumstantial evidence except in the rare case where there is uncontroverted proof of a ‘smoking gun.’ ”). However, “even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences [or] unsupported speculation.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir., 1996). III. After a careful analysis of defendants’ request for summary disposition and plaintiffs’ opposition thereto, Magistrate Judge Gustavo A. Gelpi recommended the Court to grant in part and deny in part defendants’ request. Defendants object to the Magistrate’s Judge Report and Recommendation “as it lacks any specific findings of fact.” Opposition to Magistrate Judge’s Report and Recommendation (Docket No. 83, p. 1). Accordingly, defendants sustain the Magistrate Judge’s report failed to achieve its purpose. Defendants further aver the Magistrate Judge disregarded the adequate standard in order to create genuine issues of material fact. Defendants aver plaintiffs failed to proffer sufficient evidence in order to create a material issue that would preclude the issuance of summary disposition. Id. at p. 1-2. Plaintiffs, on the other hand, object to the Magistrate Judge’s determination as to his recommendation of issuance of brevis disposition as to plaintiffs Carlos Cruz Baez, Felix Casiano and Maria del Carmen Vargas. Plaintiffs’ Partial Objection to the Honorable Magistrate-Judge Gustavo Gelpi’s Report and Recommendation Regarding Defendant’s Motion for Summary Judgment (Docket No. 82, p. 1). Provided that both, plaintiffs and defendants, objected to the Magistrate Judge’s Report and Recommendation (Docket Nos. 82 and 83), the Court shall make a de novo determination of the matters discussed in the alluded Report and Recommendation. A. General Factual Background In Plaintiffs complaint filed pursuant to § 1983, plaintiffs assert they were removed or demoted in their jobs due to their political affiliation, in violation of their First Amendment rights. Plaintiffs sustain that they are all active members of the New Progressive Party (hereinafter “NPP”), the political party that governed the Municipality of San Germán until the 2000 elections when former NPP Mayor Isaac Llantin was defeated by the opposing party’s, the Popular Democratic Party (hereinafter “PDP”) candidate, Mayor Isidro Negron Irizarry. Plaintiffs, formerly employed by the Municipality of San Ger-mán, aver they were victims of political discrimination under the First Amendment which ultimately resulted in the loss of their employment or their positions. Co-defendant, Municipality of San Ger-mán, is a local government entity within the Commonwealth of Puerto Rico. On November 7, 2000, a general election was held in Puerto Rico. The incumbent mayor of the Municipality of San Germán, Isaac Llantin, candidate for the NPP, was replaced by co-defendant Isidro Negron Iri-zarry, the candidate for the PDP. On January 9, 2001, co-defendant Isidro Negron Irizarry took office as the new Mayor of San Germán. Co-defendant Negron Irizarry appointed co-defendant Ramón Segarra, as Director of Human Resources for the Municipality of San Ger-mán. Segarra, a PPD follower, has never been actively involved in politics and has never been involved in political campaigns. Co-defendant José Nazario, former Director of Recycling for the Municipality of San Germán, is affiliated to the NPP. B. Law 52’s Employees (EODF) Plaintiffs, Carlos Cruz Báez, Jesselle Justiano Rosario, Elliot Colón Johnson, Marla Colón Johnson, Julia Madera Tira-do, Juan Jusino Amely, Nélida Báez Pérez, Santos Ayala Melero, Sylvia Flores Morales, Santos Olivera Rivera, Nery Casiano Rosado, Felipe Velez Valle, and José Luis Berrocales were employed pursuant to the Employment Opportunities Development Fund (“EODF”). 29 P.R. Laws Ann. § 711(c) (hereinafter ‘Law 52’). Law 52 of August 9, 1991 established an Employment Opportunities Development Fund to be used in order to promote working opportunities. 29 P.R. Laws Ann. § 711(b). The moneys of the fund are to be used for the creation of employment and opportunities program in the public and private sector. 29 P.R. Laws Ann. § 711(c). Law 52 is a “vehicle through which the Commonwealth subsidized] locally managed programs to ameliorate unemployment”. Gómez v. Rivera Rodríguez 344 F.3d 103, 107 (1st Cir., 2003). In the instant case, the grant funding the Law 52 (EODF) contracts of the previously mentioned plaintiffs expired on December 31, 2000. Said employees were informed by letter dated December 7, 2000 and issued by the then Human Resources Director María C. Cerra, their EODF or Law 52 contracts and thus their appointments were to expire on December 31, 2000. On December 11, 2000, Mayor-elect Isidro Negron Irizarry signed a proposal for an EODF grant to fund eighty (80) positions, the same number of positions funded under the prior grant. The positions funded by the previous grant included: Aide to the Mayor (2); Supervisor (4); Administrator (3); Coordinator of Services (2); Worker(a)-(5); Worker (b)-(40); Office Clerk (8); Watchman (2); Recreational Leader (6); Chaffeur (5) and Worker (c)-(3). However, on February 1, 2001, the Department of Labor approved an EODF grant for the Municipality of San Germán providing funding for only sixty five (65) positions. Among them were the following: Worker (33); Housekeeper (20); Nurse (3); Mechanic (3); Recreational Leader (4) and; Chauffeur (2). Of the eighty (80) EODF (Law 52) workers, whose appointments ended on December 31, 2000, only fifteen (15) were re-appointed to positions under the February 1, 2001 EODF (Law 52) grant. In the instant case, thirteen (13) of the plaintiffs were former EODF (Law 52) workers who were not re-appointed to positions funded by the EODF (Law 52) grant effective February 1, 2001. Defendants sustain said thirteen (13) plaintiffs are not able to establish a prima facie case of discrimination, some of them failed to request to be re-hired, or could not establish co-defendants knew their political affiliations. Further, defendants aver there is evidence that NPP followers were appointed to EODF positions, hence, no political discriminatory animus may be inferred, and plaintiffs failed to offer any independent evidence of discriminatory animus. Defendants also submit independent legitimate reasons (Mt Healthy defenses) as to some of these plaintiffs that justify the Municipality’s decision not to rehire certain plaintiffs including, lack of funding, certain plaintiffs failure to perform his/her obligations in a responsible way and some plaintiffs’ ineligibility to be re-employed as municipal employees. The Magistrate Judge Gustavo A. Gelpi concluded in his R & R that each of the Law 52 employees (13 of the plaintiffs) proffered sufficient evidence to establish a prima facie case of political discrimination. The Magistrate Judge concluded each of these plaintiffs established their involvement in political activities in support of the NPP, each of them suffered an adverse employment action and alleged being replaced with a supporter of the new administration party. The Magistrate Judge then independently addressed each of the alleged legitimate justifications provided by the defendants. Defendants objected to the Magistrate Judge’s determination. Defendants sustain plaintiffs failed to proffer evidence to survive the Motion for Summary Judgment. Further, defendants aver the Magistrate Judge completely disregarded the amount of former transitory employees appointed under the past administration who were re-appointed to the new positions created under the Law 52, February 1, 2001. Accordingly, defendants claim said evidence precludes an inference of political discrimination. Furthermore, defendants contend plaintiffs failed to produce any evidence that would lead to the conclusion defendants actions were motivated by plaintiffs’ political affiliation. Finally, defendants argue plaintiffs failed to proffer any evidence, besides the recitation of their names of their alleged replacements to establish they were replaced by members of the PDP, hence failing to establish a prima facie case of discrimination. Since the Magistrate Judge’s Report and Recommendation was duly objected, the Court reviews de novo defendant’s request for brevis disposition. Lewry v. Town of Standish, 984 F.2d at 27. After a careful review of defendants’ motion and plaintiffs opposition thereto, the Court found the following information as to each Law 52 plaintiff. C. Factual Background for Each Plaintiff a. Plaintiff Carlos Cruz Báez is an NPP affiliate who had been actively involved in NPP activities, including being part of the political team of former Mayor Llantin at the NPP 2000 elections. Cruz Baez was a municipal employee pursuant to a Law 52 contract. His contract was reiteratedly renewed until his last contract expired on December 31, 2000. Plaintiff sustains employees at the Municipality knew his political affiliation. Notwithstanding, defendants assert Mayor and Negron had no knowledge of his political affiliation. Cruz Baez sustains Mayor Negron appointed several PDP followers to do Law 52 work. Cruz Baez was once separated from a state government position as a Juvenile Custody Officer for being convicted of aggravated assault. b. Plaintiff Jesselle Justiniano Rosario worked as an electoral college functionary for the NPP in thel996 and 2000 elections. Plaintiff sustains employees in the Municipality knew her political affiliation. However, defendants assert Mayor Neg-ron had no knowledge as to her political affiliation. Her Law 52 (or EODF) contract with the Municipality of San Germán was reiteratedly renewed until her contract expired on December 31, 2000. Her last appointment, that lasted from July 1, 2000 to December 31, 2000, was as an Office Clerk. She was assigned to the Department of Education. Upon the expiration of her last contract, she was not appointed to any position funded by the subsequent grant. Justiniano Rosario claims that, although she requested to be reappointed, Mayor Negron appointed PDP followers to Law 52 contracts. c. Plaintiff Elliot Colón Johnson was a Municipal employee pursuant to a Law 52 whose contract was always renewed until his last contract expired on December 31, 2000. Colón Johnson worked as an electoral college functionary for the NPP in the 1999 primaries and the 2000 elections. He is an active member of the NPP. He also sustains that although he requested to be reappointed, the Municipality appointed several PDP followers to Law 52 positions. Plaintiff claims employees in the Municipality knew his political affiliation. However, defendants assert that Mayor Negron had no knowledge of his political affiliation. During his employment as a Law 52 worker, plaintiff Colón Johnson received a written reprimand from his supervisor for disorderly conduct that resulted in damage to Municipal property. d. Plaintiff Marla Colón Johnson’s last EODF contract lasted from July 1, 2000 to December 31, 2000. She was a worker at the Property Registry. She was actively involved in several NPP activities, and was part of the advance team of former Mayor Llantin. She further appeared in a television commercial with Mayor Llantin and former PNP President, Carlos Pesquera. However, defendants assert that Mayor Negrón had no knowledge as to her political affiliation. In 2000, she applied for a position of office clerk, but was not appointed. Colón Johnson’s Law 52 contract was constantly renewed until her last appointment expired on December 31, 2000. She also sustains that, although she requested to be called back to work as an Law 52 employee, Mayor Negrón hired PDP supporters. e. Plaintiff Julia Madera Tirado is an NPP activists who participated in several NPP activities. Although she asserts employees in the Municipality knew her political affiliation, defendants sustain Mayor Negrón had no knowledge of her political affiliation. Madera Tirado’s Law 52 contract was always renewed until her last contract expired on December 31, 2000. Although she requested to be to be called back for woi*k, she sustains Mayor Negrón employed PDP supporters to occupy Law 52 vacancies. Her last employment as a Law 52 employee was as an office clerk at the Public Library. On September 17, 1999, she received a written reprimand for physically assaulting a supervisor in her department. f. Plaintiff Juan Jusino Amely is an NPP affiliate who worked as an electoral college functionary for the NPP in the 2000 elections. He participated in several political activities. Although he asserts employees in the Municipality knew his political affiliation, Mayor Negrón denies having knowledge as to the same. He also sustains that, although he notified his availability to work, Mayor Negrón hired PDP affiliates. g. Plaintiff Nélida Baez Pérez is an active NPP supporter who participated in several NPP activities. She also sustains municipality employees knew about her political affiliation. However, defendants assert Mayor Negrón had no knowledge of her political affiliation. She contends that, although she requested to be called back for work, Mayor Negrón appointed PDP followers to Law 52 positions. Baez Pér-ez’s last EODF appointment was as an office clerk at the State Department of Family. h. Plaintiff Santos Ayala Melero is an NPP activist who, ever since he had the right to vote, had voluntarily worked on every election for the NPP. He had also participated in several political activities. Plaintiff Ayala Melero sustains employees in the Municipality knew his political affiliation. However, defendants assert Mayor Negrón had no knowledge of his PNP political affiliation. His contract as a Law 52 employee was repeatedly renewed until his last appointment expired on December 31, 2000. Plaintiff Ayala Melero asserts he took all the necessary steps to notify the people at the Municipality he was willing to continue working under Law 52 employment, but the Mayor was never available. i. Plaintiff Sylvia Flores Morales is an NPP activist who had an EODF position as an office clerk assigned to work at a school. Plaintiff sustains employees at the Municipality knew of her political affiliation. Besides participating in several political activities, her house is visibly identified with NPP propaganda. However, defendant Mayor Negron asserts no knowledge of her political affiliation. Flores Morales’ contract as a Law 52 employee was constantly renewed until her last contract expired on December 31, 2000. However, even though she requested to be called back for employment, she avers Mayor Negron hired PDP followers to fill her Law 52 position. j. Plaintiff Santos Olivera Rivera is also an NPP activist who has participated in several NPP political activities. He worked as an electoral college functionary for the NPP during the 2000 elections and his house is identified with NPP propaganda. Although plaintiff sustains employees in the Municipality knew of his political affiliation, defendant Mayor Negron asserts no knowledge of his political affiliation. Olivera Rivera’s Law 52 contract in the past always had been renewed until his last appointment as a Mayor’s Aide expired on December 31, 2000. Although he requested to be called back for work, he sustains that PDP followers were appointed to his Law 52 position. He claims he was substituted in his position by Puchin Matos who is affiliated to the PDP. k. Plaintiff, Nery Casiano Rosado is an NPP follower who participated in several political activities and whose house and ear are identified with NPP propaganda. Plaintiff claims people in the Municipality knew his political affiliation. However, defendant Mayor Negron asserts no knowledge as to his political affiliation. Casiano Rosado’s Law 52 contracts were always renewed until his last appointment, as a laborer at the Public Library. His last contract expired on December 31, 2000. Although Casiano Rosado notified his availability to work as a Law 52 employee, he sustains Mayor Negron hired PDP followers to his Law 52 position. l. Plaintiff Felipe Vélez Valle has always been an NPP follower who has participated in several political activities. Plaintiff sustains people in the Municipality knew his political affiliation. However, defendants Mayor Negron asserts no knowledge as to the same. His Law 52 contract was constantly renewed until his last appointment expired on December 31, 2000. Plaintiff requested to be called back for work, however, he avers Mayor Neg-ron hired PDP followers to perform his Law 52 position. m.Plaintiff José Luis Berrocales Baez was actively involved in several NPP political activities. He further even worked as an electoral college functionary for the NPP. Plaintiff sustains people in the Municipality knew his political affiliation. Plaintiffs Law 52 contracts were constantly renewed until his last appointment expired on December 31, 2000. Although Berrocales Baez notified his availability to work as a Law 52 employee, Mayor Negron hired PDP followers to Law 52 positions. He claims Jaime Ro-mán Montalvo, Betty Santana, Pablo Ivan Salas, Brenda Arlequín, Ana Medina, Anthony Santiago, Pedro Flores Vázquez, Nelson Cruz, Mario Cintrón, Maria Santana, José Santiago and Grace Cuevas are PDP followers who were appointed to perform duties equal or similar to those duties he formerly performed. Berrocales Baez admitted that by October 16, 2000 he owed $2,364.00 in child support. III. Analysis Plaintiffs, who were employed pursuant to Law 52, sustain defendants’ failure to renew their contracts was the result of political discrimination in violation of their First Amendment rights. Defendants, on the other hand, contend these thirteen (13) plaintiffs had no right to be re-appointed, they failed to establish a prima facie case of discrimination, nine (9) out of the thirteen (13) plaintiffs could not be re-hired due to lack of funding, two (2) out of the thirteen (13) were not re-hired due to their conduct during their employment and four (4) out of the thirteen (13) Law 52 employees were not eligible to be municipal' employees. a. Right to Re-appointment It has been established that Law 52 employees do not enjoy a due process property interest in their employment beyond the duration of their contract, Gómez v. Rivera Rodríguez, 344 F.3d 103, 111 (1st Cir.2003), however, plaintiffs still have a cause of action if they were not re-employed or recalled due to their political affiliation. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). As noted in Magistrate Judge Gelpi’s Report and Recommendation, ■ political patronage “restrains core activities that are essential to the protections provided by the First Amendment of the United States Constitution, such as the freedom of belief and the freedom of association.” (Docket No. 81, p. 8) citing Padilla-García v, Rodríguez, 212 F.3d 69, 74 (1st Cir., 2000); Garcia-Sánchez v. Roman-Abreu, 270 F.Supp.2d 255 (D.P.R.2003); Berrios-Cintrón v. Cordero, 976 F.Supp 110, 113 (D.P.R.1997). Such constitutional protection was also extended to transitory- employees so long as employees were not in a policy making position. Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d 125, 127-128 (1st Cir., 1987); Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49, 56 (1st Cir., 1990)(cit-ing Branti v. Finkel, 445 U.S. at 517, 100 S.Ct. 1287). The protection includes Law 52 employees who may not be terminated nor rehired not due to political animus although said employees do not enjoy a property interest. Gómez v. Rivera Rod-ríguez, 344 F.3d 103, 110-111 (1st Cir. 2003). Accordingly, plaintiffs covered under Law 52 may still establish a case of discrimination if they establish that defendants’ adverse employment action responded to discriminatory reasons. Gómez v. Rivera Rodríguez, Id. n. 5. b. Failure to Establish a Prima Fa-cie case of Discrimination Defendants aver plaintiffs failed to establish a prima facie case as required in cases of political discrimination. The Magistrate Judge, however, concluded to the contrary. In their objection to the Magistrate Judge’s Report and Recommendation, defendants sustain that, in concluding that plaintiffs established a prima facie case, the Magistrate Judge disregarded the absence of a politically charged atmosphere and the fact that more than forty (40) former employees were appointed to positions created in 2001. Further, defendants claim plaintiffs have provided no evidence beyond the mere recitation of the names of their alleged replacements. Defendants also allege there is no evidence any of those alleged replacements were indeed employed in the Municipality in early 2001, or as to their political affiliation. To prevail in a § 1983 claim, plaintiffs have to demonstrate defendants deprived them of their federal constitutional rights, privileges or immunities, while acting under color of state law. Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32(1st Cir., 1996). In order to establish a prima facie case of political discrimination pursuant to § 1983, plaintiffs have to establish they engaged in a constitutionally protected conduct and this conduct was the motivating factor in the adverse action. Id. See also González-De-Blasini v. Family Department, 377 F.3d 81, 85 (1st Cir., 2004); Mt. Healthy City Sch. Dist. Bd. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Further, plaintiffs must demonstrate a causal relation between defendant’s conduct and plaintiffs’ political beliefs. LaRou v. Ridlon, 98 F.3d 659, 663(1st Cir., 1996). That is, “[t]he plaintiff must point ‘to evidence on the record which, if credited, would permit a rational finder to conclude that the challenged personnel action occurred and stemmed from a politically based discriminatory animus.” González-De-Blasini v. Family Department 377 F.3d at 85 quoting LaRou v. Ridlon, 98 F.3d at 661 quoting Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir., 1994). Although circumstantial evidence may be sufficient to support a finding of political discrimination, plaintiffs must make a fact specific showing that a causal connection exists between the adverse treatment and their political affiliation. Avilés-Martínez v. Monroig, 963 F.2d 2,5 (1st Cir.,1992). Emphasis added. In sum, a plaintiff who claims he or she was a victim of political discrimination “may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus. It is the plaintiff who bears the initial burden of showing that political discrimination was the motivating factor in the adverse decision.” See. Avilés-Martinez v. Monroig, 963 F.2d at 5; Mt. Healthy City School District Board v. Doyle, 429 U.S. at 287, 97 S.Ct. 568. Only after plaintiffs have established their prima facie case, the burden shifts to defendants who must establish that they would have taken the same action regardless of plaintiffs’ political beliefs. Id. See also, Sánchez López v. Fuentes Pujols, 375 F.3d at 131. The Supreme Court has established a tripartite burden shifting test in cases of political discrimination. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. at 287, 97 S.Ct. 568. The first part requires the plaintiff to establish a prima facie case of political discrimination by submitting direct or circumstantial evidence that supports his claim that political affiliation was the primary factor in his employer’s adverse decision in terminating his employment.. Once this evidence is submitted to the Court, the burden shifts to the defendant , to show, by preponderance of the evidence, the decision to terminate employment wojild have been made regardless, of the employee’s political affiliation. If the reason proffered by the defendant is credible and nondiscriminatory, the plaintiff is then provided a chance to make a showing that political affiliation “was more, likely than not a motivating factor.” Padilla-García v. Rodríguez, 212 F.3d at 74. Emphasis added. However, the plaintiffs may still prevail if it is found they would not have received the same treatment ‘but for’ their political affiliation. Acosta-Sepúlveda v. Hernández-Purcell, 889 F.2d 9, 13 (1st Cir., 1989). After considering defendants’ request for summary disposition, plaintiffs’ opposition, the pleadings, depositions and answers to interrogatories on file, together with the affidavits and bearing in mind that at all times during the consideration of a motion for summary judgment, the entire record must be examined “in the light most flattering to the non-movant and indulging] all reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d at 581, the Court finds that all, but one, of the thirteen (13) Law 52 plaintiffs in the ease at bar, satisfied the first part of the Mt. Healthy tripartite test, Twelve (12) of the Law 52 plaintiffs established they were employed by the Municipality, they were active political partisans associated with the NPP and they suffered an adverse employment action (they were not re-hired). Further, there is evidence on the record to permit an inference that in the Municipality there was a highly politically charged atmosphere at the beginning of 2001. “The highly charged political atmosphere occasioned by the major political shift from the NPP to the PDP [... ] coupled with the fact that plaintiffs and defendants are of competing parties may be probative of discriminatory animus.” Acevedo-Diaz v. Aponte, 1 F.3d 62, 69 (1st Cir., 1993). Further, the level of political activism exhibited by plaintiffs may be a factor in the determination of discriminatory animus. Id. See Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 706 (1st Cir.,1993) (recognizing evidence that plaintiff was “known” party member); Ferrer v. Zayas, 914 F.2d 309, 312 (1st Cir.1990) (acknowledging that plaintiffs’ political affiliation was not only “well known” but, in some instances, notorious); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 264 (1st Cir., 1987)(noting plaintiffs “long, active, and visible membership” in the opposition party). Furthermore, said plaintiffs stated their political affiliation to the opposing party was well known throughout the Municipality. Although this fact is contested by the defendants as to most plaintiffs, this would be yet another reason to deny the remedy sought since considering a motion summary judgment “admits no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails.” Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d at 684 citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d at 936. Additionally, plaintiffs, through depositions and their answers to interrogatories established they were replaced by employees sympathetic to Mayor Negron’s party. Although defendants allege plaintiffs provided no evidence beyond the mere recitation of the names of their alleged replacements, pursuant to Mount Healthy City Sch. Dish Bd. of Educ. v. Doyle, plaintiffs were in no obligation to establish they were substituted by a PDP follower in order to establish their prima facie case, that would only support their allegation of political discrimination. Notwithstanding they provided evidence that, taken in the light most flattering to the non-movant and drawing all reasonable inferences in their favor Maldonado-Denis v. Castillo-Rodriguez 23 F.3d at 581, would support this fact. For the reasons previously stated, the Court agrees with the Magistrate Judge Gelpi’s conclusion these plaintiffs established a prima facie case for political discrimination. But only as to twelve (12) of the thirteen (13) plaintiffs. These plaintiffs are: Carlos Cruz Báez, Jesselle Justiano Rosario, Elliot Colón Johnson, Marla Colón Johnson, Julia Madera Tira-do, Juan Jusino Amely, Nélida Báez Pérez, Sylvia Flores Morales, Santos Olivera Rivera, Nery Casiano Rosado, Felipe Vélez Valle, and José Luis Berrocales. The Court, however, finds that plaintiff Santos Ayala Melero failed to establish his prima facie case of political discrimination since he failed to establish that he suffered an adverse employment action against him. Santos Ayala Melero, by his own account admitted that, although he tried, he never informed the defendants as to his interest of being re-hired. The expiration of the contract, in itself, is not the adverse employment action that could be attributed to the defendants. It is defendants’ failure to re-hire these plaintiffs what constitutes the adverse employment action that could be attributed to discriminatory reasons. Since said plaintiff failed to even inform defendants as to his desire to be re-hired, this plaintiff may not assert he suffered an adverse employment action. Neither can he assert defendants failure to re-hire him responded to political discrimination. Accordingly, he failed to establish a prima facie case of discrimination and defendants’ request as to summary disposition as to this plaintiff must be GRANTED. Accordingly, Santos Ayala Melero’s claims against defendants are hereby DISMISSED. As to the other twelve (12) plaintiffs who have establish a prima facie case, the burden shifts to the defendants to proffer evidence of a valid, nondiscriminatory reason for the adverse employment actions against plaintiffs. It is, hence, defendants burden to show to the Court, by preponderance of the evidence, legitimate, credible and nondiscriminatory reasons the decision would have been made regardless of the employee’s political affiliation. c. Lack of Funding Defendants sustain that of the thirteen (13) Law 52 plaintiffs, nine (9) last occupied positions that, after their contracts expired, were no longer eligible for funding. Defendants claim (1) Juan Jusino Amely’s position as Security Guard, (2) Nélida Báez Pérez’s position as Office Clerk for the Department of Family, (3) Sylvia Flores Morales’s position as Teacher’s Assistant for the Department of Education, (4) Santos Olivera Rivera’s position as Mayor’s Aid, (5) Jesselle Justi-niano Rosario’s position as Office Clerk of the Department of Education, (6) Julia Madera Tirado’s position as Office Clerk for the Public Library, (7) Nery Casiano Rosado’s position as Clerk for the Public Library, (8) Marla Colón Johnson’s position as Clerk of the Department of Justice and (9) Carlos Cruz Baez’s position as Office Worker of the Department of Family, occupied positions which were not granted priority under the subsequent EODF grant. The Magistrate Judge concluded, however, that although it was clear there was significantly less funding provided by the subsequent Law 52 (EODF) grant than the funds provided by the previous grant, there were still positions available these employees could have obtained, even when their particular previous positions were eliminated. The Magistrate Judge found defendants failed to establish the lack of funding was a legitimate non discriminatory reason that would justify the adverse employment action against said plaintiffs nor that the defendants would have acted in the same manner regardless of plaintiffs’ political affiliation. Accordingly, the Magistrate Judge recommended the denial of the summary judgment as to these plaintiffs. Law 52 was enacted with the purpose to create jobs in order to reduce unemployment. Statement of Motives, Law 52, August 9, 1991, P.R. Laws at 213. This Act created an Employment Opportunities Development Fund to be utilized solely “for the creation of employment opportunities program in the public and private sector ... to maintain existing jobs, extend their duration and modify their compensation as a remedial transitional measure in situations that could bring about the possible loss of jobs.” 29 P.R. Laws Ann. § 711c (c). Emphasis Added. In the instant case, it would seem just cause to deny continued employment due to lack of funding. And lack of funding could provide a motivating factor in terminating plaintiffs’ employment. However, once the new funding was obtained, the question regarding the motivation behind the failure to recall or rehire said employees remains. Furthermore, the Court finds that to allow said action would be against the spirit of the Act that specifically provides said fund may also be used “to maintain existing jobs, extend their duration.” Id. Emphasis Added. Though the law does not require these measures to be taken, once the subsequent fund was approved, the Municipality had the means to extend employment. Accordingly, the Court agrees with the Magistrate Judge’s conclusion as to defendants’ failure to proffer a legitimate non discriminatory reason (lack of funding) for the adverse employment action against the Law 52 plaintiffs. Therefore, this Court must still examine whether defendants’ action responded to unconstitutional reasons. It is an uncontested fact the subsequent grant provided funding for sixty-five (65) positions rather than the eighty (80) positions provided by the previous grant. Further, it is also uncontested certain positions, occupied by some of the thirteen (13) plaintiffs, such as aide to the Mayor, office clerk and watchman were eliminated. However, it is evidenced by the different positions some of the plaintiffs have occupied during their tenure at the Municipality that, as it was concluded by the Magistrate Judge, some of the positions covered by the second grant (e.g.“worker”) were flexible enough to provide employment to previous Law 52 employees. Considering the object of Law 52 is, inter alia, “to maintain existing jobs [and] extend their duration” 29 P.R. Laws Ann. § 711c (c), the Court agrees with the Magistrate Judge’s conclusion defendants’ lack of funding justification is not, in the instant ease, a legitimate non discriminatory reason that justifies defendants’ adverse employment action as to these plaintiffs. Hence, even though the records show reduced funding, the question as to whether defendants’ actions responded to discriminatory reasons remains unanswered specially when PDP members were retained during said period of time. It is evident that the judging of this matter involves an issue of motive and intent which are normally precluded at brevis disposition stage. Domínguez-Cruz v. Suttle Caribe, Inc. 202 F.3d 424. 433 (1st Cir.2000). It is widely known that unsettled issues of motive and intent as to the conduct of any party preclude the Court from granting summary judgment. Mulero-Rodriguez v. Ponte, Inc., 98 F.3d at 677. Further, said questions are “better suited for the jury.” Id. See Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Accordingly, the Court hereby ADOPTS the Magistrate Judge’s recommendation and DENIES summary disposition as to Juan Jusino Amely, Nélida Báez Pérez, Sylvia Flores Morales, Santos Olivera Rivera, Jesselle Justiniano Rosario, and Marla Co-lón Johnson’s d. Written Reprimands Defendants sustain that two (2) of the Law 52 employees, Elliot Colón Johnson and Julia Madera Tirado received written reprimands from department supervisors for bad conduct. Defendants contend Julia Madera Tirado was reprimanded for physically assaulting a supervisor in her department and Elliot Colón Johnson was reprimanded for disorderly conduct resulting in the destruction of Municipal property. Further, defendants aver that plaintiff Elliot Colón Johnson admitted that by November 2000, he considered leaving the Municipality due to problems with employees. Plaintiffs claim that, even if defendants showed a valid reason for the personnel action in question, plaintiffs may still prevail if they demonstrate the adverse employment action responded to unconstitutional reasons. The Magistrate Judge concluded defendants’ proffered legitimate reasons were “less than persuasive and unconvincing.” Magistrate Judge’s Report and Recommendation (Docket No. 81) p. 13. Further, the Magistrate Judge found defendants failed to direct the Court as to any policy which classifies as ineligible for public positions an individual who receives a reprimand. Accordingly, the Magistrate Judge determined that receiving a reprimand was not a legitimate reason for defendants’ failure to renew an individual’s Law 52 contract and, thus, recommended defendants’ request for summary judgment as to these two (2) plaintiffs be ultimately denied. Defendants claim the Magistrate Judge failed to understand defendants’ argument as to the written reprimands received by some of the Law 52 plaintiffs. Defendants aver they never argued said reprimands would automatically make the employee ineligible but that said reprimands are proof defendants had other reasons, aside from plaintiffs’ political affiliations, to disregard these plaintiffs as candidates when they were evaluating applicants for the positions. It is uncontested that on September 17, 1999, plaintiff Julia Madera Tirado, received a written reprimand for physically assaulting a supervisor in her department. It is also uncontested Elliot Colón Johnson, during his tenure at the Municipality, received a written reprimand from his supervisor for disorderly conduct that results in damage to Municipal property. However, it is settled law that in a political discrimination action pursuant to § 1983 the plaintiff may still prevail regardless of the fact defendants may have proffered a legitimate non discriminatory reason for the adverse employment action in question if it is found they would not have received the same treatment ‘but for’ their political affiliation. Acosta-Sepúlveda v. Hernández-Purcell, 889 F.2d at 13. Notwithstanding, plaintiffs have failed to proffer evidence to establish they would not have received the same treatment ‘but for’ their political affiliation, failing to comply with their burden of proof as to the third part of the Mt Healthy tripartite burden shifting test. Accordingly, the Court REJECTS the Magistrate Judge’s conclusion and GRANTS defendants’ request of summary disposition as to Elliot Colón Johnson and Julia Madera Tirado. Hence, Elliot Colón Johnson’s and Julia Madera Tirado’s claims are hereby DISMISSED. e. Ineligibility to be a Municipal employee Defendants contend that plaintiffs Carlos Cruz Baez, Nery Casiano Rosado and José Luis Berrocales Baez were ineligible to be Municipal employees. Defendants aver these plaintiffs were hired illegally according to 21 P.R. Law Ann. § 4557. Defendants affirm each of these three (3) individuals fail to comply with conditions required to be a municipal employee. First, defendants maintain that plaintiff Carlos Cruz Baez was once separated from a state government position as a Juvenile Custody Officer for committing aggravated assault, for which he was convicted. Accordingly, defendants sustain Cruz Baez is not eligible for employment at the Municipality due to his criminal record. 21 P.R. Laws Ann § 4557(a)(5). The Magistrate Judge agreed and recommended the granting of the summary judgment as to Carlos Cruz Baez since he was convicted of aggravated assault and plaintiffs failed to demonstrate the adverse employment action was more likely than not based on said plaintiffs political beliefs. Plaintiffs objected said determination claiming that, in determining plaintiffs failed to rebut defendants defense by .showing the same decision would have not been taken had not been for plaintiffs political affiliation, the Magistrate acted as a trier of facts weighing contradictory evidence to that effect. Plaintiffs aver that, in order to determine plaintiff failed to proffer evidence to rebut defendants’ defense and demonstrate that in spite of the valid reason he would not have been rehired had not been for his political affiliation, the Magistrate Judge had to assess the credibility of plaintiff, which is the duty of the trier of fact and not appropriate at this stage of the proceedings. The Court disagrees. Plaintiffs are correct in their assertion that weighing of the evidence is inappropriate when considering a motion for summary disposition. Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d at 936. However, defendants have, provided a valid justification for their adverse employment action against plaintiff Carlos Cruz Baez. Defendants were precluded, by law, from re-hiring said plaintiff 21 P.R. Laws Ann § 4557(a)(5). Accordingly, they have provided the Court with evidence to support their contention that, regardless of plaintiffs Cruz Baez political affiliation, they would have made the same determination. Plaintiffs conviction is more than sufficient grounds for defendants’ action. Accordingly,, the Court finds defendants have complied with their burden establishing a legitimate nondiscriminatory reason to justify their adverse action, and further showing the same decision would have been made irrespective of plaintiffs political affiliation. Mt. Healthy City Sch. Dist. Bd. v. Doyle, 429 U.S. at 287, 97 S.Ct. 568. Kauffman v. Puerto Rico Telephone, 841 F.2d 1169 (1st Cir.1988). Consequently, the Court hereby ADOPTS the Magistrate Judge’s recommendation granting -the summary judgement as to plaintiff Cruz. Therefore, Cruz Baez’s claims are hereby DISMISSED. Second, defendants sustain plaintiff José Luis Berrocales Baez has been identified by the Administration of Child Support as “dead beat dad” for failure to make child support payments. Defendants claim said conduct constitutes dishonorable conduct proscribing their employment pursuant to 21 Laws Ann. § 4557(a)(3). The Magistrate Judge concluded failure to pay child support is not contemplated under “dishonorable conduct” described in the Act. Accordingly, defendant’s justification did not constitute a le-' gitimate non discriminatory reason for their adverse employment action against said plaintiff and their request for summary judgment had to be denied. Since defendants failed to raise an objection as to this conclusion, absent plain error, See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996)(en banc)(extending the deferential “plain error” standard of review to the unobjected to legal conclusions of the magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982)(en banc)(appeal from district court’s acceptance of unob-jected findings of magistrate judge reviewed for “plain error”), this Court hereby ADOPTS the Magistrate Judge’s recommendation and DENIES defendants’ request for summary disposition as to plaintiff José Luis Berrocales Baez. Finally, as to plaintiff Nery Casi-ano Rosado, defendants aver that the then director of Human Resources, María Cer-ra, received several complaints as to his alcohol breath during work hours. Defendants contend ' that plaintiffs constant state of inebriation is a condition that bars him from entering the public service. 29 Laws Ann. § 4557(a)(6). Accordingly, he was ineligible to work at the Municipality. The Magistrate Judge concluded defendants failed to proffer enough evidence to place the Court in a position to make a judgment as to whether this plaintiff could be disqualified pursuant to Section 4557(a)(6) of the Act. Accordingly, he recommended the denial of defendants’ request for brevis disposition as to this plaintiff. Defendants’ objected to the Magistrate Judge’s recommendation claiming the Magistrate Judge failed to consider evidence regarding Nery Casiano’s attendance record which independently demonstrated plaintiff failed to comply with his work schedule during 2000. Defendants further sustain this evidence, together with the complaints regarding his state of inebriation and his failure to excuse his absences, is clear evidence he failed to comply with his work because he was an alcoholic. The Court agrees with the Magistrate Judge’s conclusion defendants failed to proffer enough evidence (the court may not weight evidence at summary judgment procedures) to permit this Court to conclude that, in fact, Nery Casiano is an alcoholic precluded from being employed at the Municipality pursuant to 21 L.P.R.A. § 4557(a)(6), which prohibits employment to those “addicted to the habitual use of controlled substances or alcoholic beverages”. As to defendants’ objection the Magistrate Judge failed to consider evidence as to his attendance record and failure to excuse his absences, the Court finds the evidence purported by defendants only provides as to the dates he worked for the Municipality and the salary earned. There is no evidence that the absences were not legitimate and/or authorized by law or regulation. The Court finds said evidence does not support defendants’ allegation as to Nery Casiano’s absences or his failure to comply with his work scheduled during 2000. Accordingly, this Court hereby ADOPTS Magistrate Judge’s recommendation. Hence, defendants’ motion for summary judgment as to Neri Casiano is DENIED. 3. Qualified Immunity as to Law 52 Employees The Magistrate Judye concluded the qualiñed immunity doctrine did not shield from liability co-defendants’ Segar-ra and Negron Irizarry. The Magistrate Judge found all plaintiffs alleged facts that, if proven true, would amount to a violation of their rights. Specifically, a violation of plaintiffs’ First Amendment rights which, the Magistrate Judge concluded, is a violation of an established right. Further, the Magistrate Judge ruled that, since as to these employees there were “factual disputes regarding possible political discrimination and the motivations on the part of the defendants, the Court [was] in no position to grant defendants’ motion for qualified immunity at this time.” Magistrate Judge’s Report and Recommendation (Docket No. 81, p. 19). Defendants duly objected to the Magistrate Judge’s conclusion claiming the May- or did not have a clear established directive that he had to reappoint all of the former Law 52 transitory employees of the Municipality. Defendants further aver a reasonable officer could have not known, at that time, that he could not re-appoint the plaintiffs based on their political beliefs. Plaintiffs agree with defendants that a reasonable person could have believe that he was in no obligation to re-hire the previous Law 52 employees because they had no right to reappointment. However, plaintiffs sustain that what defendants could not have reasonábly believed is that they could fail to hire said employees due to their political affiliation. Plaintiffs aver that it is clearly established that “public employment actions based upon the political affiliation of an employee impinges, as a general rule, upon that persons constitutional rights.” Plaintiffs Memorandum of Law in Support of their Opposition to Defendants Motion for Summary Judgment (Docket No. 74, at 21) Citations omitted. Said protection comprises Law 52 plaintiffs in the instant case. The Court agrees and explains. Qualified immunity shields public officials performing discretionary functions from civil damages, so long as their conduct does not violate clearly established statutory or constitutional rights of which an objectively prudent person would be aware. Harlow v. Fitzgerald 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Ringuette v. City of Fall River, 146 F.3d 1, 5 (1st Cir., 1998). Essentially, “[qualified immunity seeks to ensure that defendants ‘reasonably can anticipate when them conduct may give rise to liability,’ by attaching liability only if ‘[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1997) (citations omitted); Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A qualified immunity defense requires a two-part analysis: “The first inquiry is whether the constitutional right asserted by plaintiffs was clearly established at the time of the alleged violation. The second inquiry, once the Court determines that the right was clearly established, is ‘whether a reasonable officer in the same situation would ‘have understood that the challenged conduct violated that established right.’ Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (citations omitted). Under the first prong, an official can only be liable for damages if the unlawfulness of his conduct is apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. 3034. “The second prong demands objective reasonableness from the employer:' the actions must be such that ‘a reasonable [employer] could have believed [his actions] to be lawful, in light of clearly established law and the information the [acting employer] possessed.’ ” Aponte Matos v. Toledo Davila, 135 F.3d at 186 quoting Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. 3034. Only when these two questions are affirmatively answered “should the court address ‘the particular conduct in question” Kelley v. LaForce 288 F.3d 1, 6 (1st Cir., 2002) quoting Abréu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir., 2001).Only then, the Court should determine “whether an objectively reasonable official would have believe that his conduct was lawful ‘in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct.’ ” Kelley v. La-Force 288 F.3d at 6 quoting McBride v, Taylor, 924 F.2d 386, 389 (1st Cir., 1991). There is no question about the general existence of a First Amendment right. However, in assessing the applicability of the qualified immunity the real inquiry is whether these Law 52 plaintiffs had a clearly established protection against political discrimination that precluded defendants from failing to recall and to rehire them solely on basis of their political affiliation. Law 52 employees are considered transitory employees who have no property interest as to their position. However, this fact “does not defeat a First Amendment claim.” Gómez v. Rivera Rodríguez, 344 F.3d at 111 fn. 5 quoting Nieves-Villanueva v. Soto-Rivera, 133 F.3d at 98; Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d at 127-28 (holding that transitory employees are entitled to protection under the Elrod/Branti line of cases.). The El-rod-Branti doctrine has been expanded to include transfers, recalls and hiring decisions. Rutan v, Republican Party of Illinois 497 U.S. 62, 75, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990). Either if the Law 52 plaintiffs’ situation is considered a failure to recall or failure to re-hire situation, it was clearly established, at the time of defendants’ action, that political affiliation could not be the motivation for defendants’ adverse employment action against plaintiffs (lack of rehiring). Cheveras Pacheco v. Rivera González, 809 F.2d at 127-129; Nieves-Villanueva v. Soto-Rivera 133 F.3d at 98 reiterated at Gómez v. Rivera Rodríguez, 344 F.3d at 111 n. 5 (the law is clear since 1987 making the allegation of qualified immunity highly questionable.) Accordingly, plaintiffs have successfully established that they had a first amendment right that protected them from defendants’ failure to recall them or re-hire them on account to their political affiliation. Further, an objectively reasonable official should have known, based in the clearly established law at said time, the conduct of defendant was unlawful. Further, the Court finds there is a genuine issue as to defendants’ motivation for their adverse action against the Law 52 plaintiffs, precluding this Court from the issuance of summary judgment. Therefore, the Magistrate Judge’s recommendation is hereby ADOPTED. Consequently, defendants’ request for summary disposition based on the application of the qualified immunity doctrine is hereby DENIED. C. Temporary Employees (Positions funded by federal funds not related to the EODF grant) In the instant case, two plaintiffs Carmen Bonilla and Pedro Irizarry Bonilla were temporary employees whose contracts were funded by federal monies not related to the Law 52 (EODF) grant. Defendants sustain these two plaintiffs failed to establish a prima facie case of discrimination. Further, defendants aver, as a legitimate reason for the adverse employment action against these plaintiffs, the Office of Federal Programs, from Januaiy to June 2001, did not have sufficient funds to continue operations or to maintain the employees of the Office. Specifically, as to plaintiff Pedro Irizar-ry Bonilla, defendants claim his contract, for services beginning on January 1, 2001 until June 2001, was executed during the electoral ban. Accordingly, the contract was null ab initio. Further, defendants aver plaintiff Irizarry Bonilla was irresponsible in his duties and mishandled the Federal Programs’ material donations. As to Carmen Bonilla, defendants contend she could not have been considered for the appointment under the EODF grant, that after February 1, 2001 funded the housekeepers position since she was not unemployed at the moment. Accordingly, defendants sustain she was not eligible to benefit from the EODF fund. 1. Factual Background a. Plaintiff Carmen Bonilla is an member of the NPP who actively participated in several political activities. Employees at the Municipality were aware of her political affiliation. Carmen Bonilla’s contract was funded pursuant to a federal program that expired