Monfort-Rodríguez v. Rey-Hernández (599 F. Supp. 2d 127, 2009)

United States District Court for the District of Puerto Rico 2009-02-17

Citations

Full opinion text

OPINION AND ORDER

JOSÉ ANTONIO FUSTÉ, Chief Judge.

This matter is before the court on defendants César Rey Hernández’ and Rafael Aragunde’s (hereinafter “defendants”) Objections (Docket No. 175, November 19, 2008) to the Report and Recommendation (Docket No. 17k, October 30, 2008) of the Magistrate Judge on defendants’ motion for summary judgment and memorandum of law in support thereof (Docket No. 137, June 30, 2008, hereinafter “defendants’ motion”). Plaintiffs, Ivonne Monfort-Rod-riguez, Juanita Flores-de-Siaca, Carmen Rivera-Rivera, and María Coss-Martinez (hereinafter “plaintiffs” or plaintiffs Mon-fort, Flores, Rivera and Coss) filed a response in opposition to defendants’ objections (Docket No. 178, December 5, 2008). Having considered the arguments of defendants and plaintiffs, the report and recommendation is hereby ADOPTED and SUPPLEMENTED as follows: Defendants’ motion for summary judgment on plaintiffs’ claims of political harassment, an issue not addressed by the Magistrate Judge’s Report and Recommendation, is hereby GRANTED.

I.

Plaintiffs’ Political Harassment Claim

Defendants move for summary judgment on plaintiffs’ claim of political harassment and persecution brought under 42 U.S.C. § 1983. Having carefully reviewed the record, this court finds that the evidence does not show an issue of material fact relevant to plaintiffs’ claim of political harassment sufficient to overcome summary disposition. Accordingly, defendants’ motion for summary judgment on plaintiffs’ claim of political harassment is granted.

To prevail in a claim of political harassment, “the record must contain evidence which would allow a factfinder to conclude, by clear and convincing evidence, that the nonmoving employee’s new position is unreasonably inferior to the norm,” Colon-Santiago v. Rosario, 503 F.Supp.2d 449, 454 (D.P.R.2007); Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 39 (1st Cir.1993). Plaintiffs must show by a preponderance of the evidence that their political affiliation was a “substantial factor in causing the environment to become inferior.” Id. (citing Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 22 (1st Cir.2006)). Plaintiffs must demonstrate that “the change or alleged ‘inferiority’ was of a magnitude that would reasonably cause them to compromise their political beliefs and associations in favor of defendants’ political party.” Id. (quoting Bisbal).

To succeed on a claim for political harassment in violation of the First Amendment brought under section 1983, plaintiffs must establish a causal connection between defendant Rey’s conduct and the working conditions, assignments or other alleged “inferiority” of which plaintiffs complain. The essential elements of a section 1983 claim are that (I) “the defendants acted under color of state law” and (ii) “the defendants’ conduct worked a denial of rights secured by the Constitution or by federal law.” Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir.1997) (citing Martinez v. Colón, 54 F.3d 980, 984 (1st Cir.1995)) (emphasis supplied). To satisfy the second element, “plaintiffs must show that the defendants’ conduct was the cause in fact of the alleged deprivation.” Rodriguez, 115 F.3d at 52 (citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989)) (emphasis supplied). As such, supervisory liability under 42 U.S.C.1983, “cannot be predicated on a respondeat superior theory ... but only on the basis of [the supervisor’s] own acts or omissions.” Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir.1997) (citing Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996)).

[A] supervisor: can be held liable ... if (1) the behavior of [his] subordinates results in a constitutional violation, and (2) the [supervisor]’s action or inaction was ‘affirmativeRy] link[ed]’ to that behavior in that it could be characterized as ‘supervisory encouragement, condonation or acquiescence’ or ‘gross negligence amounting to deliberate indifference.’ Moreover, the indifference required to support supervisory liability under section 1983 must be “deliberate, reckless or callous.” Thus, the ‘affirmative link’ required between the action or inaction of a supervisor and the behavior of subordinates ‘contemplates proof that the supervisor’s conduct led inexorably to the constitutional violation.’

Id. (citations omitted). In determining supervisory liability under section 1983 for a constitutional violation, an important factor to consider is whether the official was put on some kind of notice of the alleged violations. Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988).

[0]ne cannot make a ‘deliberate’ or ‘conscious’ choice to act or not to act unless confronted with a problem that requires the taking of affirmative steps. Once an official is so notified, either actually or constructively, it is reasonable to infer that the failure to take such steps, as well as the actual taking of them constitutes a choice ‘from among various alternatives.’

Id. (citations omitted). Notably, a “constitutional violation by a subordinate is a predicate to a supervisor’s liability.” Mendez v. Toledo, 968 F.Supp. 27, 36 (D.P.R.1997) (“[I]f the subordinate did not violate plaintiffs constitutional rights, the supervisor cannot be held liable.”).

In support of and opposition to the Defendants’ motion for summary judgment on plaintiffs’ claim of political harassment, the parties primarily rely on excerpts from the deposition testimony of plaintiffs. The relevant and undisputed facts, supported by the plaintiffs’ testimony, are set forth below.

A. Plaintiff Monfort

On July 1, 1998, plaintiff Monfort was appointed to the position of Director of the Center of Investigations and Ethnographic Innovations. Defts’ Uncontested ¶ 7. Monfort was reinstated to the position of Auxiliary Superintendent IV. Defts’ Uncontested ¶ 20. In her deposition, Monfort provided testimony on her working environment following reinstatement. Specifically, Monfort states that she had to bring a chair from her home because her assigned office did not have a chair, her desk was “old and broken down,” and the acoustical tiles in the office were “full of fungus.” Defts’ Exhibit 10, at 55; Defts’ Uncontested ¶21; Plaintiffs’ Opposing ¶ 21. Monfort states that the entire building was in the same condition [fungus in the acoustical tiles], but also indicates that it was in her office “that the leaks would drip down.” Defts’ Exhibit 10, at 60. After approximately four months in her first office, and after Monfort submitted an authorization for a change in offices and reasonable accommodation under the ADA Act, Monfort states that she was transferred to another office, which had the same fungus. Plaintiffs’ Exhibit I, at 57. After four to six months in the second office, Monfort was transferred to a new district and a new office in a different building where there was a chair, no fungus, and an otherwise “acceptable” environment. Defts’ Exhibit 10, at 55-60, 63; Plaintiffs’ Opposing ¶ 21. Monfort contends that as Auxiliary Superintendent IV, she was not formally assigned any specific tasks. But, Monfort also admits that she performed the functions of her position because she had worked in the position previously and understood what she was supposed to do. Defts’ Exhibit 10, at 75. Monfort claims that she was not assigned the task of working with and making decisions on the Title I budget. Defts’ Exhibit 10, at 70; Plaintiffs’ Exhibit I, at 71, 120. Monfort states that she worked with the Title I budget as Title I Superintendent when she previously held the position of Auxiliary Superintendent IV. Id. It cannot be determined from Monfort’s deposition testimony whether the duties of Title I Superintendent are normally assumed by the person holding the position of Auxiliary Superintendent IV. Monfort describes work on the Title I budget as a “sensitive thing.” Plaintiffs’ Exhibit I, at 120. Plaintiff Monfort states that she has been a member of the New Progressive Party (N.P.P.) all her life, participated in political activities, and that many people knew her political affiliation. Plaintiffs’ Opposing ¶ 21.

Having reviewed the record, the court finds that the undisputed facts do not support a finding that plaintiff Monfort suffered from working conditions in her position that were “unreasonably inferior to the norm,” that her political affiliation was a “substantial factor” in causing those conditions, or that any conduct by defendant Rey can be linked to those conditions. No one prevented Monfort from performing all the tasks inherent to her position as Auxiliary Supervisor, with possibly one exception. Monfort did not work with the Title I budget. But, it is questionable as to whether the duties of Title I Supervisor are customarily assumed by the Auxiliary Supervisor. Although her first and second offices contained fungus in the acoustical tiles, Monfort admits that the building suffered from the same general condition. Importantly, the facts fail to affirmatively link any act or inaction of defendant Rey to Monfort’s working environment. In addition, the facts do not support a finding that defendant Rey knew of the conditions at issue. Therefore, even if Monfort’s working conditions did rise to the level of “political harassment,” defendant Rey cannot be made accountable. See Mendez and Seekamp, supra. Accordingly, summary judgment is granted in favor of defendants on plaintiff Monfort’s claim of political harassment.

B. Plaintiff Flores

On March 1, 1996, Flores was appointed to the trust position of Executive Director II, Facilitator for the Institute of Educative Reform at San Juan Educative Region. Defts’ Uncontested ¶ 87. On January 16, 2001, Flores was reinstated to the career position of Elementary School Director III. Defts’ Uncontested ¶ 50. But, Flores states that she performs the functions that corresponded to the position of Elementary School Director III. Defts’ Exhibit II, at II. Flores admits that upon reinstatement, none of these functions were taken away from her with the exception of functions in the fiscal area. Id. Flores recognizes that fiscal functions were being taken away from all schools as part of the centralizing process pursuant to Department policy. Id. Flores states that she has always been politically active in the N.P.P. Defts’ Exhibit II, at 18. Flores does not know defendant Rey personally but met him on one occasion. Defts’ Exhibit II, at 18-19. Flores admits that she never told defendant Rey that she is N.P.P., but believes that someone must have informed him given her political activities. Id.

Flores’ political harassment claim is based in part on allegations concerning defendant Rey and the regional director, Milagros del Carmen Hernández Rosario (“Hernández”). Defts’ Exhibit II, 100-101. Flores believes that defendant Rey discriminated against her when he removed her from her position but admits that defendant Rey has not persecuted her. Defts’ Exhibit II, at 50, 100-101; Defts’ Uncontested ¶ 58. Flores states that while in the position of Elementary School Director, she received “threatening letters” from Director Hernández that were copied to Lizzette Pillich, Director of Human Resources, to place in Flores’ personnel file. Defts’ Exhibit II, at 79-81, 103-01. The letters addressed “such as for example, that she [Hernández] could not find the organization to the — school,” which Flores states was previously submitted. Defts’ Exhibit II, at 79, 81. Flores issued two response letters addressed directly to defendant Rey with copy to Her-nández. Defts’ Exhibit II, at 80, 103-01. Flores did not receive a response to either letter. Defts’ Exhibit lk, at 103. Hernán-dez is not a party to this action.

Flores claims that as soon as the Popular Democratic Party (“P.D.P.”) administration commenced in 2001, while she was in the position of Facilitator, the persons in charge of the region, Millie Aponte (“Aponte”), Heriberto Crespo (“Crespo”), and Noemi Ortiz (“Ortiz”), did not let her go out and were always asking her what she was doing. Defts’ Exhibit lk, at 99-100; Plaintiffs’ Exhibit II, at 9k; Plaintiffs’ Opposing ¶ 53. But, Flores admits that these three persons “did not let anyone go out.” Defts’ Exhibit lk, at 99-100. Flores believes that the above-named persons received directives “for political discrimination” from defendant Rey because “he held meetings with those persons” and defendant Rey did not know her. Defts’ Exhibit lk, at 13k-135. Flores states that she knows Aponte, Crespo, and Ortiz are P.D.P. because she has seen them in motorcades. Defts’ Exhibit lk, at 132. Aponte, Crespo, and Ortiz are not parties to this action.

The evidence in the record is insufficient to demonstrate that Flores’ working environments, while in the positions of Facilitator and Elementary School Director III, were “unreasonably inferior to the norm” or that political affiliation was a “substantial factor” in causing those conditions. Defendant Rey’s lack of response to Hernandez’ and Flores’ letters might provide the requisite “affirmative link” between defendant Rey and the actions of his subordinate, Hernández. But, the detailed contents of those letters is unknown and, therefore, whether the contents rise to the level of “political harassment” for which Rey may be held accountable. Accordingly, summary judgment is granted in favor of defendants on plaintiff Flores’ claim of political harassment.

C. Plaintiff Rivera-Rivera

In October 1999, plaintiff Rivera was appointed to the trust position of Director III of the Puerto Rico Statewide Systematic Initiative for Science and Mathematics (“Puerto Rico SSI”). Defts’ Uncontested ¶ 63. On January 16, 2001, Rivera was reinstated to the career position of Elementary School Teacher. Defts’ Uncontested ¶ 72. Following reinstatement, Rivera admits that she was able to perform all of her duties as an elementary school teacher. Defts’ Uncontested, ¶ 73; Defts’ Exhibit, at 83. Other than a degree of reservation on the part of the faculty, her working conditions were normal. Id. Rivera states that she is not politically active, but that she is N.P.P. Defts’ Exhibit 16, at 32-33. Rivera admits that she does not know defendant Rey, but believes that he knows her because she sent him a letter concerning her early retirement. Id. The grounds for Rivera’s allegation of harassment, persecution or conspiracy in relation to defendant Rey are limited to the fact that he removed her from her position as Director III. Defts’ Exhibit 16, at 82-83.

The above undisputed facts are insufficient to support a claim of political harassment against defendant Rey. There is no evidence to show that any aspect of Rivera’s working environment following her reinstatement was “substantially inferior to the norm.” Accordingly, summary judgment is granted on plaintiff Rivera’s claim of political harassment.

D. Plaintiff Coss

On January 11, 2000, plaintiff Coss was appointed to the trust position of Director of the Physical Education Program (Position Executive III). Defts’ Uncontested ¶ 82. In January 2001, Coss was reinstated to the position of Teacher of Physical Education. Defts’ Uncontested ¶ 93-9k- Coss states that she was appointed to work at a school with children at an elementary level when before she was working at the intermediate and high-school level. Plaintiffs’ Exhibit, at 77; Defts’ Exhibit, at 79. Upon reinstatement to her position, Coss did not have a classroom. Deft s’ Exhibit 18, at 82, 87. But, neither did the other physical education teacher. Id. Both physical education teachers were allowed to use the library facilities as a classroom on a temporary basis. Id. Aside from the lack of a classroom, Coss admits that she was able to work as a physical education teacher without any further problems with the administration and was permitted to perform all her functions. Defts’ Exhibit 18, at 88, 91. Coss does not know defendant Rey; she has never spoken with him. Defts’ Exhibit 18, at 32. Coss believes that her coworkers in the Department of Education and the personnel know of her political affiliation with the N.P.P. Defts’ Exhibit 18, at kl~k%- Coss states that she is politically active and has served as a polling station official and walk-a-thon participant. Id.

The undisputed facts are insufficient to support plaintiff Coss’ claim of political harassment against defendant Rey. There is no evidence to show that any aspect of Coss’ working environment following reinstatement was “substantially inferior to the norm.” Accordingly, summary judgment is granted in favor of defendants on plaintiff Coss’ claim of political harassment.

II.

Plaintiffs Request for Reinstatement

This court has considered argument on plaintiffs’ request for reinstatement and will address the issue at trial.

III.

Matters to be Considered at Trial

Having considered and disposed of plaintiffs’ due process and political harassment claims on summary disposition, the remaining claims and defenses to be considered at trial include:

(i) Plaintiffs’ claim of political discrimination;

(ii) whether political affiliation is an appropriate requirement for the effective performance of the positions held by plaintiffs prior to January 15, 2001;

(iii) whether defendants are entitled to qualified immunity;

(iv) whether defendants were justified in removing plaintiffs from their positions and reinstalling them in career positions as part of a legitimate reorganization of the Department of Education.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

CAMILLE L. VELEZ-RIVE, United States Magistrate Judge.

INTRODUCTION

Plaintiffs Ivonne Monfort Rodriguez, Juanita Flores de Siaca, Carmen Rivera Rivera and María Coss Martinez (hereinafter “plaintiffs or plaintiff Monfort-Rodri-guez, Flores-De Siaca, Rivera-Rivera and/or Coss-Martinez,” respectively) filed this civil rights complaint against defendants César Rey Hernández, in his personal capacity, and Dr. Rafael Aragunde, in his official capacity, as Secretary of the Department of Education of the Commonwealth of Puerto Rico (hereinafter “defendants or defendant Rey and/or Aragunde”, respectively). (Docket No. 1). Plaintiffs were public employees formerly holding trust positions at the Department of Education, who were removed from their trust positions and reassigned to their previous career/permanent posts upon the change in the government administration as a result of the general elections held in Puerto Rico in the year 2000.

On June 30, 2008, defendants Rey and Aragunde filed a Motion for Summary Judgment on several grounds, to wit: plaintiffs had not established a prima facie case of political discrimination; they were entitled to be protected by the changeover defense; plaintiffs’ trust positions required political affiliation as an appropriate criteria; and codefendant Rey should be entitled to qualified immunity. (Docket No. 187).

On September 9, 2008, plaintiffs filed their opposition, after several extensions of time were granted by the Court. (Docket No. 154). On September 10, 2008, these motions were referred to this Magistrate Judge for report and recommendation. (Docket Nos. 158, 161). Thereafter, on October 1, 2008, the corresponding translations of documents into the English language were filed. (Docket Nos. 168, 169). Plaintiffs and defendants were thereafter allowed to file reply and sur-reply. (Docket Nos. 167,171).

BACKGROUND

On March 7, 2001, the instant civil rights complaint on grounds of political discrimination in public employment was initially filed. Title 42, United States Code, Section 1983. It included causes of action under state laws for violation of the Personnel Law of the Commonwealth of Puerto Rico and for damages under Article 1802. 31 L.P.R.A. § 5141. Plaintiffs claim they were removed from their trust positions at the Department of Education and reinstated to their previously held career positions in violation of their constitutional rights and without due process.

The initial motion for summary judgment filed on October 4, 2002 for lack of prima facie case of political discrimination and other defenses was granted by the Court and the case was then dismissed. On direct appeal, the Court of Appeals for the First Circuit vacated the opinion and order and remanded the case for further proceedings on October 17, 2007. (No. 06-1624). The Court of Appeals determined, although the record was then considered meager, that plaintiffs had met their burden to generate a genuine issue of material facts on the elements of their claim: The appeal decision noted that, in the absence of job descriptions necessary to evaluate these positions upon which political affiliation would be an appropriate criterion, such particular argument had not been pursued on appeal. It was also indicated that, although a changeover defense may ultimately prevail in the case, the record on appeal still revealed adequate circumstantial basis to conclude that defendants were aware of plaintiffs’ political allegiance to the opposing political party of the defendants and these plaintiffs were replaced by loyalist of the incumbent party after the general elections. Furthermore, it was also indicated the record lacked evidence of a considered appraisal of jobs and responsibilities that could substantiate a changeover defense.

It was also noted that, at the time the changes in plaintiffs’ positions were made, defendants acknowledged they knew neither what plaintiffs’ duties were nor how well they had performed their jobs. The Appeals Court stated it took no view on the propriety of summary judgment on a more fully developed record.

Defendants have recently filed another motion for summary'disposition submitting plaintiffs had no property right to their trust positions, for which no due process claims are appropriate. Thus, defendants would be entitled to judgment as a matter of law on said issue of due process. Defendants now raise political affiliation is an appropriate criteria for the trust positions previously held by plaintiffs and these plaintiffs have not made out a claim for political discrimination based on actions less than dismissal. Co-defendant Rey submits he should be entitled to qualified immunity since no reasonable government official in his position, as then Secretary of Education, would have believed that returning plaintiffs from their trust positions to their career positions would be a violation of their constitutional rights.

MOTION FOR 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.” See Vega-Rodríguez 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 there still exists “a trial worthy issue as to some material fact.” See Cortés-Irizarry v. Corporación 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-Rodríguez, 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.” See Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997).

When a motion for summary judgment remains unopposed, the district court may grant summary judgment, if appropriate. Still, a district court may not automatically grant a motion for summary judgment simply because the opposing party has failed to comply with a local rule requiring a response within a certain number of days. See NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7-8 (1st Cir.2002); see also Cosme-Rosado v. Serrano-Rodríguez, 360 F.3d 42, 43 (1st Cir.2004) (finding that failure to comply with then Local Rule 311.12 admits the veracity of the movant’s version of material facts).

MATERIAL FACTS IN CONTROVERSY

A. PARTIES’ UNCONTESTED/CONTESTED ISSUES:

1. As of January 2001, all four plaintiffs held trust positions of Executive III at the Department of Education: plaintiff Ivonne Monfort Rodriguez as Director of Center of Investigations and Ethnographic Innovations; plaintiff Flores de Siaca as Facilitator of the Educational Reform Institute for the Education Region of San Juan; plaintiff Carmen Rivera Rivera as Director of the Puerto Rico Statewide Systemic Initiative (“PR-SSI”); and plaintiff Coss Martinez as Director of the Physical Education Program. Defts’ Uncontested ¶2.

Plaintiffs submit as clarification to above defendants’ uncontested statement that co-plaintiff Juanita Flores had been named Executive III, and then Executive II, a trust position, on February 28, 1996. Plaintiffs’ Uncontested ¶ 1; Plaintiffs’ Exhibit II, Flores’ depo., pp. 12, 18, 19, 20; Plaintiffs’ Exhibit XIV.

2. The Organic Law of the Department of Education defines confidential and career employees:

The Department shall have confidential and career employees. The confidential employees shall be those who are substantially involved with the establishment and implementation of the public policy of the Department or who advise or render services directly to the Secretary. All other employees shall be career employees. Personnel recruitment shall be governed by the regulations established for that purpose.

The Department and the schools shall administer their own personnel systems without being subject to §§ 1301 et seq. of this title, known as the “Puerto Rico Public Service Personnel Act”. Furthermore, the Department shall adopt regulations regarding those areas that essentially concern the merit principle and other areas involving the administration of personnel contained in the laws relative to public service matters. The Secretary shall allow the participation of the teaching and non-teaching personnel in the process of outlining their personnel systems.

The determinations on those matters pertinent to the personnel under the merit principle shall be subject to review by the Board of Appeals of the Educational System, created by virtue of §§ 274 et seq. of Title 18.

The following items are essential to the merit principle:

(a) Job classification.

(b) Personnel recruitment and selection.

(c) Promotions, transfers and demotions.

(d) Training programs.

(e) Employee retention.

3 L.P.R.A. § 145q., Exhibit 6B, p. 11; and Ex. 1, Section 3, definition of trust employee. Defts’ Uncontested ¶ 2.

Plaintiffs’ contention in opposition is the document speaks for itself and defendants’ interpretation of the law is objected. Plaintiffs’ Uncontested ¶ 2.

3. On or about January 12, 2001, César Rey Hernández, Secretary of Department of Education, sent each plaintiff a letter notifying them that effective January 16, 2001, they would cease to occupy the trust positions held and they would be reinstated to a career position pursuant to applicable laws and regulations. Defts’ Uncontested ¶ 3; Ex. 2 A-D.

Plaintiffs’ contention is the document speaks for itself and object to handwritten mark on the document. Plaintiffs’ Uncontested ¶ 3.

4. Plaintiffs were reinstated to career positions. Deft’s Uncontested ¶ b; Exhibit 2 A-D.

Plaintiffs object to above since nowhere in the document does the term “career” appears, as well as objects the handwritten marks on the document.

As to co-plaintiffs Juanita Siaca and Carmen Rivera, the salaries indicated for the new positions are not in accordance with the January 12, 2001 communication informing they had ceased in their trust appointments. Plaintiffs’ Uncontested ¶ J.

5. Prior to the filing of this complaint, Rey had never met nor known any of the named plaintiffs. Defts’ Uncontested ¶ 5; Ex. 3, César Rey Hernández’ sworn statement, dated October b, 2002.

Plaintiffs object to co-defendant Rey’s sworn statement as self serving.

Prior to the filing of the complaint, when Rey began as Secretary of Education, he asked for an inventory of the trust positions. To that effect, he commissioned Lizzete Pillich, Secretary of Human Resources, to make such a list. Plaintiffs’ Uncontested ¶ 5; Plaintiffs’ Exhibit IX, César Rey’s depo., p. 20, lines lb-22; p. 21, lines 6-17; Plaintiffs’ Exhibit X, Liz-zete Pillich’s depo., p. 3, lines 12-16.

In the case of plaintiff Carmen Rivera, when Rey was about to start as Secretary, Carmen Rivera wrote a letter telling him that: she was a trust employee; she had remained in her position of trust and would like to remain there since she was taking an early retirement; and she would be in the position for only six months until the date of retirement. Plaintiffs’ Exhibit III, Carmen Rivera’s depo., p. 83, lines 9-25; p. 3b, lines 1-21. In consequence, Rey’s statement under oath that, prior to the filing of the complaint he had not known any of the named plaintiffs, is considered not true. In this respect, on January 12, 2008 he even addressed a communication to each plaintiff informing them the ceasing of their trust appointments. See Defendants’ Exhibit 2.

6. Prior to the filing of this complaint, Rey had no knowledge of plaintiffs’ political affiliation. Defts’ Uncontested ¶ 6; Exhibit 3.

Plaintiffs object to co-defendant Rey’s sworn statement as self serving. As already stated in Plaintiffs’ Uncontested ¶ 5 above, prior to the filing of the complaint, when Rey began as Secretary of Education, he asked for an inventory of the trust positions and to that effect, he commissioned Lizzete Pillich, Secretary of Human Resources, to make such a list. All those persons included in the list of trust positions were named by the past administration, the N.P.P. Plaintiffs’ Exhibit X, Lizzete Pillich’s deposition, p. 36, lines 15-25; p. 37, line 1.

According to plaintiff Monfort, knew her political affiliation for reason that in the Department of Education many people know her and know her political affiliation, and for reason that as soon as he arrived at the Department, co-defendant Rey issued a communication to remove her from her position. Plaintiffs’ Exhibit I, p. 4-9, lines 2-21. Everybody in the Department knew of Monfort’s political affiliations. Plaintiffs’ Exhibit VIII, p. 49, lines 2-10. Plaintiff Monfort was substituted in her position as Director of the Center on January 8, 2001 by a person named Lydia Gonzalez, who is a P.D.P. sympathizer. Plaintiffs’ Exhibit I, p. 82, lines 1-21; Plaintiffs’ Exhibit VIII, p. 48, lines 10-16.

Defendant Rey knows plaintiff Flores is N.P.P. because she worked in the San Juan Educational Region visiting 196 schools where she is known. In those schools, there are N.P.P. sympathizers who have seen her in N.P.P. activities and also in the schools there are P.D.P. sympathizers who must have told him so. Plaintiffs’ Exhibit II, p. 49, lines 12-21. As soon as the P.D.P. administration commenced in the year 2001, Heriberto Cres-po, Millie Aponte and Noemi Ortiz took charge of the San Juan Educational Region and did not permit plaintiff Flores to visit schools as facilitator. They were always asking her what she was doing. These persons are P.D.P. sympathizers and they know plaintiff Siaca is a N.P.P. member. They also received orders from Lizzette Pillich, Director of Human Resources. Plaintiffs’ Exhibit II, p. 52, lines 6-25; p. 58, lines 8-25; p. 59, lines 1-3; p. 94, lines 18-24; p. 95, lines 7-18. Plaintiff Flores was substituted as facilitator by Claribel Rivera Casanova, a P.D.P. affiliate. Plaintiffs’ Exhibit II, p. 117, lines 3-7.

Mrs. Maria Moran, Technician of the Science Course at the Department, and now Director of the Science program, and a fellow worker Teresa Vega, tried to help Maria Rivera to remain in her trust position, but they were told that all trust employees who were N.P.P. were going to be removed. Plaintiffs’ Uncontested ¶ 6; Plaintiffs’ Exhibit III, p. 39, lines 3-25.

Plaintiff Rivera always identified herself in the Department as a N.P.P. sympathizer. Plaintiffs’ Exhibit III, p. 41, lines 19-25. Rivera does not know of any removed trust employee who was not a N.P.P. follower. Everyone who occupied a trust position was blacklisted because the N.P.P. followers were going to be removed. Plaintiffs’ Exhibit III, p. 91, lines 1-4, 22-25. Rivera was substituted in her position by Jorge Vázquez, who was a P.D.P. sympathizer. Plaintiffs’ Exhibit VII, p. 24, lines 1-14.

Everybody at the Department of Education, the personnel who works at the Academic Services, knew plaintiff Coss’ political affiliation. Plaintiffs’ Exhibit TV, p. 41, lines 8-18. Plaintiff Coss is affiliated to the N.P.P.; she is politically active; who has been an electoral college official, and who participates in all political activities, walks, meetings. Plaintiffs’ Exhibit IV, p. 4^, lines 7-20. On January 8, 2001, when Rey started at the Department of Education, he solicited from an employee by the name Cheryl Núñez to look in Coss’ file for her social security number. Plaintiffs’ Exhibit IV, p. jU, lines 8-17. When Rey arrived at the Department, Teresa Vega, Cheryl Nú-ñez, P.D.P. sympathizers and other persons identified with the P.D.P., determined who were the persons who belonged to the N.P.P. Plaintiffs’ Exhibit IV, p. 56, lines 7-14. The person who substituted Coss as Director, Mr. Jorge Colón, is a sympathizer of the P.D.P. Plaintiffs’ Exhibit IV, p. 61, lines 2-11 In consequence, it can not be stated categorically, nor without a doubt, that defendant Rey, prior to the filing of the complaint, had no knowledge of plaintiffs’ political affiliation. Plaintiffs’ Uncontested ¶ 6.

AS TO PLAINTIFF MONFORT:

7. Plaintiff Monfort was appointed to the trust position of Director of Center of Investigations and Ethnographic Innovations on July 1, 1998, position # R00062, earning a monthly salary of $2,784.00. Defts’ Uncontested ¶ 7; Ex. I; Ex. 2A.

8. The position was defined as Executive III and was number 8 of a total of 14 on the Retributive Structure for Employees in the Trust Service. Deft’s Uncontested ¶ 8; Ex. 5.

9. Law Number 18 of June 16, 1993 created the Center of Investigations and Ethnographic Innovations. Defts’ Uncontested ¶ 9; Ex. 7, p. 1.

Plaintiffs accept above defendants’ uncontested ¶¶ 7-9.

10. The Organic Law of the Department of Education of 1999 was the culmination of the Integral Reform of the System of Public Education in Puerto Rico which had been promoted by the Government of Puerto Rico since 1993, based on an electoral mandate. Defts’ Uncontested ¶ 10; Ex. 6A.

Plaintiffs’ objection to above is the document speaks for itself and object to defendants’ interpretation. Plaintiffs’ Uncontested ¶ 10.

11.The 1999 Organic Law of the Department of Education provides the following as to the Center of Investigations and Ethnographic Innovations:

The Secretary shall establish an Educational Research and Innovations Center to pursue the following goals:

(a) Research and collect information on the problems facing the field of education in Puerto Rico.

(b) Conduct experiments with new ways in which to organize the teaching and exercise the learning processes.

(c) Draft and [try out] new currículums for the courses offered.

(d) Design programs to take advantage of the talent, capability and experience of the teachers and students in activities that complement those that are developed in the classroom.

(e) Gather pedagogical research materials and innovations produced in and outside of Puerto Rico.

(f) Evaluate research projects proposed by the teachers of the public education system and defray the corresponding cost of those approved by the Secretary.

(g) Establish a network of collaborative schools to participate in the research and experimental projects of the Center.

(h) Promote the creation of consortiums with universities to conduct research projects.

(i) Submit annual reports to the Governor of Puerto Rico and the Legislature on the achievements and operations of the Center. July 15, 1999, No. 149, § 5.08. 3 L.P.R.A. § 145k (2005).

Defts’ Uncontested ¶ 11; Ex. 6B.

Plaintiffs deny above. Defendants’ Exhibit 6B refers to “Educational Research and Innovations Center”. However, the trust position occupied by plaintiff Monfort was in the “Center of Investigations and Ethnographic Investigations”. Plaintiffs’ Uncontested ¶ 11.

12. The law further provides that “[t]he Center shall be directed by a Director appointed by the Secretary and be attached to the Office of the latter.” July 15, 1999, No. 149, § 5.09. 3 L.P.R.A. § 145Z. Defts’ Uncontested ¶ 12; Ex. 6B.

Plaintiffs deny on same grounds above ¶ 11. Plaintiffs’ Uncontested ¶ 12.

13. The 1999 Organic law provides the following, among others, related to the academic duties and obligations of the Secretary of the Department of Education: “The Secretary, as academic director of the Puerto Rico Public Education System, shall:

(n) Organize incentive programs to enhance the professional advancement of the teachers and the teaching support personnel.” 3 L.P.R.A. § 145t. Ex. 6B.

Defts’ Uncontested ¶ IS.

Plaintiffs’ objection is the document speaks for itself and object to defendants’ interpretation. Plaintiffs’ Uncontested ¶ 12.

14. The inherent duties of the position, (Director of the Center for Educational Research and Innovation) as described in the Certification of Duties of Position Executive III, the official job description for the position, consisted of the following:

a.Planning, organizing and supervising assigned work related to the Center for Educational Research and Innovative Program;

b. Determining the needs for technical or professional training for the personnel assigned under her supervision;

c. Developing norms and procedures, outlining work programs, and interpreting statutes and regulations applicable to the matters for which she was responsible;

d. Coordinating interagency efforts in matters so requiring;

e. Creating a work plan based on the program’s needs in keeping with the vision, goals, and objectives of the Department of Education;

f. Identifying problems that affected the evaluation and measurement process and presenting pertinent recommendations to solving them;

g. Developing in coordination with evaluation supervisors, regional directors, and school superintendents, tests and other evaluation and measurement instruments needed in the educational regions to ensure that the outline objectives were achieved;

h. Observing and advising on faithful compliance with the goals and objectives of the Department of Education and the Education Research and Innovation Program;

i. Preparing reports concerning her program as requesting by the Office of the Deputy Secretary for Teaching;

j. Representing the Office of the Deputy Secretary for Teaching at activities assigned to her;

k. Collaborating and participating in the implementation of the public policy of the public education system.

Defts’ Uncontested ¶ Ip, Ex. 8, Certification of Duties of Position Executive III (Director of the Center for Educational Research and Innovation), signed by Evelyn Vicente, Director, Classification and Compensation Division on June 4, 2002.

Plaintiffs deny above defendants’ uncontested statement. Said unsworn statement is not a formal or official job description. It is considered a self serving inaccurate, hearsay, certification prepared on June 4, 2002, not in the normal course of business, but for a specific purpose of defending Rey in relation to the filing of the complaint on March 7, 2001. Said certification refers to the “Center for Educational Research and Innovations”, while the trust position occupied by plaintiff Monfort was in the “Center of Investigations and Ethnographic Investigations”. In addition, it misleadingly indicates that plaintiff Monfort occupied her trust position from August 1, 2000 to January 15, 2001, when preceding Statement of fact # 7 presented by the same defendants states clearly that plaintiff Monfort was appointed to her trust position on July 1, 1998. In addition, according to plaintiff Monfort, who started to work with the Department of Education in the 1980’s, was named Director of the Center of Investigations and Ethnographic Innovations of the Department of Education, a trust position, on July 1, 1998. Plaintiffs’ Exhibit I, Plaintiff Yvonne Monfort’s depo., p. 18, lines 17-23; Exhibit XII.

In relation to the functions indicated in said certification, the same are objected, especially the last one, where, it is indicated that plaintiff Monfort “collaborated and participated in the implementation of the public policy of the public education system.” Said self serving personal opinion of Ms. Evelyn Vicente, alleged director of Classification and Compensation Division, is not made in the regular course of business but to be used for a specific purpose in relation to the complaint filed in the present case. Said self serving personal opinion of Ms. Evelyn Vicente, goes against the sworn evidence in the present case, including the following:

According to plaintiff Monfort, the functions of the Director of the Center were included in a list and were already stipulated; these functions included preparing workshops for the professional development of teachers, do research for the system, and all the administrative functions of an office. Plaintiffs’ Exhibit I, p. 25, lines h-18.

The investigations carried out by the Center were related with the academic areas; the academic progress of the students; the workshops were of professional development; to develop the teachers, so to make investigations in the classroom. Plaintiffs’ Exhibit I, p. 28, lines 2-6; p. 29, lines H-18.

Plaintiff Monfort, as Director of the Center, did not have discretion in relation to the contents of the workshops. All the work the Center was going to do had to be submitted to the Sub-Secretary of Education, who decided the contents of the workshops and assigned the investigations to be made. The Sub-Secretary corrected the work and gave directions of what the Center was going to do. The Center not plaintiff Monfort took all decisions related to everything, same as to the contents of the workshop or dates of the same. Plaintiffs’ Exhibit I, p. 28, lines 20-25; p. 29, line 1; p. 37, lines 7-25.

At the start of the work of the Center, the Sub-Secretary gave the Center a work draft that was to serve as a guide for all posterior drafts related to the workshops. Plaintiffs’ Exhibit I, p. 10, lines 11-25. Said original work draft was modified by the Sub-Secretary, where the decisions were taken, according to the existing needs. Plaintiffs’ Exhibit I, p. p2, lines 5-7.

All investigations carried out by the Center were directly assigned by the Sub-Secretary. Plaintiffs’ Exhibit I, p. 12, lines 20-23.

According to Lizzette Pillich, Auxiliary Secretary of Human Resources under Rey, in plaintiffs’ cases, the necessity of political affiliation to the P.D.P. to occupy trust positions was not determinative; plaintiffs’ position of trust did not have any powers, only functions. Plaintiffs’ Exhibit X, p. 52, lines 6-10; p. 67, lines lb-25; p. 68, lines 1-5. Lizzette Pillich could not say if plaintiffs in their trust positions formulated public policy, nor did she know if plaintiffs in their trust positions held confidential information. Plaintiffs’ Exhibit X, p. 70, lines 2-8; p. 71, lines 2b-25; p. 72, lines 1-8.

According to Hilda Cortés Figueroa, Director of the Faculty Personnel Division, Human Resources, political affiliation was not necessary for plaintiffs to occupy their trust positions. Plaintiffs’ Exhibit XI, p. 20, lines 2b-25; p. 21, lines 1-3.

As a result, in the present case there exists an essential and substantial controversy of facts related to the actual functions that plaintiffs performed.

15.The Center was one of the offices that was attached to the Office of the Secretary of the Department of Education. See Ex. 9 (Transition Committee, 1.1.1.1 Secretary of Education, Organizational Structure, Directive level)(“In addition, there are offices attached [to the Office of the Secretary] with assessing functions that put forward the decisional processes and define the implementation of the public policy, these are:.... Center of Investigations and Ethnographic Innovations”). Defts’ Uncontested ¶ 15.

Plaintiffs deny above defendants’ uncontested as inadmissible. It is not known who prepared the document submitted by defendants or for what purpose. Said document is not signed and it lacks the logo of the Department of Education. In addition, the content of the document is not final since it clearly states in the lower part of the document it is a “Draft for discussion only”. Plaintiffs’ Uncontested ¶ 15.

16. While Monfort was the Director, the Center undertook approximately 1-2 projects a year that lasted approximately 8-10 months each and prepared approximately 25 teachers per year. The projects were to prepare teachers to conduct research in the classroom and were grounded on the theory of behaviorism following the passage of the Community Schools Act of 1993. The material was the same each year and was repeated for new groups of teachers. Defts’ Uncontested ¶ 16; Ex. 10, p. 29-81; bP bb-

Since the deposition speaks for itself, defendants’ personal interpretation is objected. Plaintiffs’ Uncontested ¶ 16.

17. Monfort reported to the Undersecretary for Teaching, Luz Ivette Cruz. Defts’ Uncontested ¶ 17; Exhibit 10 at 28-29.

Plaintiffs deny above. The two pages of the deposition referred to by defendants do not indicate that plaintiff Monfort “reported to the Undersecretary of Teaching, Luz Ivette Cruz”. Said two pages, without mentioning any name, indicate that the research program was not of discretional nature but assigned through the Undersecretary of Teaching. Plaintiffs’ Uncontested ¶ 17.

18. As Director, Monfort supervised 5 employees of the Department of Education — three secretaries, a researcher and another person who collaborated at the Center. Defts’ Uncontested ¶ 18; Exhibit 10 at 25.

Plaintiffs accept above ¶ 18.

19. Monfort stated that she did not have complete discretion in the creation of the workshops because she depended on the approval of the Undersecretary. She did admit that she was in charge, with approval, of selecting the workshop’s subject. Defts’ Uncontested ¶ 19’ Ex. 10, p. 37, lines 2-2k.

Plaintiffs deny above defendants’ uncontested fact. Plaintiff Monfort clearly states in said deposition, page 37, cited by defendant, that in the Center they “had to submit all the work that we would do to the Undersecretary of Teaching” and they were the ones who decided which subject matter would be utilized; the Center would be given the directives as to what they were going to do; the Center did not take any decision in relation to anything, not even in relation to the content of the workshops. Plaintiffs’ Uncontested ¶ 19.

20. Plaintiff Monfort was reinstated to the career position of Auxiliary Superintendent IV, position number # F00096, earning a monthly salary of $2,212.00. Defts’ Uncontested ¶ 20; Ex. 10 at 58; Ex. 2e and Ex. A

Plaintiffs object the part where it states that plaintiff Monfort was reinstated to a career position. In the documents, there is no mention to the term “career”. (Plaintiffs’ Exhibit 10 at 58 was not included in the documents notified by defendants). In addition, it must be noted, according to the documents, that plaintiff Monfort would be on probation in the position assigned. Plaintiffs’ Uncontested 1120.

21. To support her harassment and persecution claim, Monfort further claims that she was sent to an office with a broken down desk, a chair that she had to take home with her and which contained fungus, like the rest of the building. Defts’ Uncontested p. 21; Ex. 10 at 5Í-55.

Plaintiffs object the part “like the rest of the building.” Nowhere on the pages of the deposition referred to by defendants, at pp. 54-55, does it state “like the rest of the building, plaintiffs assigned office contained fungus.” It is on page 60 of the deposition where plaintiff Monfort indicates that the acoustical tiles of the whole building were full of funguses, but it was in the office assigned to her, that the leaks would drip down. The rest of this statement is accepted with the qualification that, according to the deposition referred to, plaintiff Monfort did not have a chair to sit down and that she was changed of office approximately four months later, after she had to go twice to the hospital and to the State Insurance Fund because of the fungus, and after she had filed a complaint under ADA for reasonable accommodation. Defendants’ Exhibit 10, pp. 5f-56.

In relation to the harassment and persecution claim, plaintiff Monfort has been a member of the N.P.P. all her life. Plaintiffs’ Exhibit I, p. k8, lines 12-19. Plaintiff Monfort believes Rey knew her political affiliation for reason that in the Department of Education many people know her and know her political affiliation, and because as soon as he arrived at the Department, he issued a communication to remove her from her position. Plaintiffs’ Exhibit I, p. lf.9, line 2-21.

Plaintiff Monfort was on sick leave and reported to the State Insurance Fund approximately on December 20, 2000. Defendant Rey started at the Department of Education on January 8, 2001; on that same date a memorandum was issued naming a transitory coordinator for Mon-fort’s position. On January 12, 2001, Rey issued a letter removing Monfort as Director of the Center effective January 15, 2001, which letter she had to pick up at the Department on January 18, 2001, due to all the calls placed for her to pick it up although she was on sick leave. Plaintiffs’ Exhibit I, p. 50, lines 8-25; p. 51, lines 1- 22; p. 53, lines 12-25; p. 54, Unes 1-14; Plaintiffs’ Exhibit XIII.

When plaintiff Monfort was taken out of her position as Director of the Center, she was sent to an office which did not have a chair to sit down. She had to bring a chair from her home; the desk assigned to her was old and broken; the office was full of fungus on the ceiling. She asked to be transferred from said office, but it was not until about four months later, and after she had to go to the hospital two times because of the conditions of the office and after she had solicited a reasonable accommodation under ADA, that she was finally transferred to another office, which was in the same condition as the prior office, with the fungus on the ceilings. Plaintiffs’ Exhibit I, p. 54, lines 21-25; p. 55, lines 1-25; p. 56, lines 23-24; p■ 57, lines 1-25. As a result of absorbing the fungus from the ceiling, plaintiff Monfort acquired a condition called rhinopharingitis. Plaintiffs’ Exhibit I, p. 62, lines 14-24■ She still has to go every month to an allergist who administers her all Tuesdays three vaccines; the condition cannot be cured, only controlled. Id., p. 110, lines 6-22.

After being removed from her position as Director of the Center, Monfort returned to the position of Auxiliary Superintendent IV, but without the functions related to the federal program Title I she had before becoming Director of the Center. Id., p. 71, lines 1-19.

Plaintiff Monfort was substituted in her position as Director of the Center on January 8, 2001 by a person named Lydia González, who is a P.D.P. sympathizer. Id., p. 82, lines 1-21; Plaintiffs’ Exhibit VIII, p. 48, lines 10-16. Plaintiff Monfort had all the preparation to remain as Director of the Center and the person who substituted her is less prepared. Plaintiffs’ Exhibit I, p. 92, lines 13-22. Plaintiff Monfort complied with all the requisites for the position of Director of the Center and was performing a good job, and aside from the political situation, there was no reason for her removal. Id., p. 118, lines 5-8.

Plaintiff Monfort participated in political activities, in all activities in which participation was needed; walks, meetings; she also gave training and orientation on the electoral process to members of the N.P.P.; she is the person in charge of all training in Precinct II of San Juan. Id., p. 119, lines 19-25; p. 122, lines 8-21; p. 123, lines 5-13.

As Director of the Center, Monfort received a salary of $2,784. 00, and when removed from said position, she started to earn a salary of $2,212.00 as Auxiliary Superintendent IV. Id., p. 120, lines 2-11; Plaintiffs’ Exhibit XIII.

In relation to her profession, the dismissal from her trust position affected Monfort. After leaving the Department, she was interviewed by a private university for a position, but removal from the trust position affected her opportunities of getting employed with this private university, thus not being able to obtain the employment. Plaintiffs’ Exhibit I, pp. 94, 95, 97.

As a direct result of her removal from her trust position, Monfort developed a major depressive disorder, needing psychiatric treatment. Plaintiffs’ Uncontested ¶ 21; Plaintiffs’ Exhibit XX.

22. Monfort complained about the conditions of the office to which she was assigned, but recognizes that she was moved from the first office, that the whole building suffered from the conditions about which she complained, and that after approximately four months she was moved to a new district and the conditions at the new area were improved. Defts’ Uncon tested, ¶22; Exhibit 10 at pp. 54-6, 59, 60, 63, 64.

Plaintiffs admit above with the same clarification as ¶21. She was sent to an old school and the improvement in conditions consisted in that she now had chair to sit down and that there were no fungus in the environment. Plaintiffs’ Uncontested ¶22.

23.Monfort complained that she was not assigned additional tasks in her career position after reassignment, such as work on the budget, but admits that she performed the tasks of the position and that the discretionary tasks that she was not assigned, such as the work on the budget, were sensitive areas. Furthermore, once she switched districts, Monfort admits that she was granted fuller independence to perform her functions. Defts’ Uncontested ¶ 23; Exhibit 10 at pp. 64, 65, 70, 75, 80, 120.

Plaintiffs object since the pages of the deposition referred to by defendants clearly reveal that plaintiff Monfort was not assigned any tasks; that she knew her tasks and the duties of her position and she exercised them; that of the tasks inherent to her position as Deputy Superintendent she did not perform and/or was not assigned the tasks related to the Title I budget. The tasks related to the Title I budget were not additional tasks nor discretionary tasks, but inherent to her position, part of her duties, regardless if it was a sensitive area. Furthermore, it was when she was changed to a new district with a new supervisor, six or seven months later, (remembering, according to the prior discussion of statement of fact #21, that plaintiff Monfort did not have a chair to sit down and that she was changed of office after she had to go twice to the hospital and the State Insurance Fund for reason of the fungus, and after she filed a complaint under ADA for reasonable accommodation) that she had full autonomy to work with the program, with the supervision of the Superintendent of Schools. Plaintiffs’ Uncontested ¶ 23.

24. Rey was not personally involved in the decision to assign Monfort to any particular physical location nor the tasks assigned. Defts’ Uncontested ¶ 24.

Plaintiffs object and deny above since defendants’ statement is not sustained nor justified in any way. Defendant Rey is the one, through his communication of January 12, 2001 (Defendants’ Exhibit 2-A), who transferred plaintiff Monfort to her position as Auxiliary Superintendent in San Juan II. Plaintiffs’ Uncontested ¶ 24.

25. No one new was brought in to replace Monfort. Defts’ Uncontested ¶25; Ex. 11 at 28.

Plaintiffs deny above since it is clear by the referred page of the deposition and by page 27, that Lydia González became the director of the office in charge of the same, supervising all the employees. As already stated in reference to Statement of Fact # 6, Monfort was substituted in her position as Director of the Center on January 8, 2001 by a person named Lydia González, who is a P.D.P. sympathizer. Plaintiffs’ Uncontested ¶ 25; Plaintiffs’ Exhibit I, p. 82, lines 1-21; Plaintiffs’ Exhibit VIII, p. 48, lines 10-16

26. Lydia González had been an employee of the Department of Education before, and had been on assignment to the Institute of Culture {Ex. 10 at 26), who later became the director of the office. Defts’ Uncontested ¶ 26; Ex. 10 at 84.-86; Ex. 11 at 27.

Plaintiffs accept above -with the qualification Ms. Lydia González substituted plaintiff Monfort in her position as Director of the Center on January 8, 2001. Plaintiffs’ Uncontested ¶ 26; Plaintiffs’ Exhibit I, p. 82, lines 1-21; Plaintiffs’ Exhibit VII, p. 48, lines 10-16.

27. There was a reduction of one person in the Ethnographical Research Center from a total of 4 to 3. Defts’ Uncontested ¶ 27; Ex. 11 at 26-27-88.

Plaintiffs object to above. There was no reduction of personnel. Lydia González, according to the deposition cited by defendant, who was at the office, although she was assigned to do some work at the Institute of Culture, occupied the position of Director I and was a P.D.P. sympathizer. She substituted plaintiff Monfort. Plaintiffs’ Uncontested ¶ 27.

28. Once Lydia González took up a position, however, the functioning of the Office of Ethnographical Research changed. Deft’s Uncontested ¶ 28; Exhibit 11 at 84.

29. The name of the unit changed to Research in Action; and the director of the office makes all the decisions, is involved in details, takes the initiative in offering workshops, in selecting dates, following her own criteria. Defts’ Uncontested ¶ 29; Exhibit 11 at 84, 85.

30. Monfort admits that she does not know defendant Rey. Defts’ Uncontested ¶ 30; Ex. 10 at 48.

Plaintiffs accept above ¶¶ 28-30, with the clarification at ¶ 30 that she does not know Rey personally.

31. Monfort assumed that the Secretary of the Department of Education knew her political affiliation, but does not know if the Secretary of Education indeed knows her political affiliation. Defts’ Uncontested ¶ 81; Exhibit 10 at 49.

Plaintiffs object above. According to the referred page of the deposition, plaintiff believes Rey knows her political affiliation because in the Department many people know her and her political affiliation and for reason that Rey, as soon as he arrived at the Department of Education, removed plaintiff from her trust position. Plaintiffs’ Uncontested ¶ 31.

32. Monfort claims that several people at the Department of Education have knowledge of her political affiliation. Defts’ Uncontested ¶ 32; Exhibit 10 at 50.