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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO JUAN J. VALENTN MERLO Plaintiffs CIVIL RIGHTS VS. (Trial by jury requested) PUERTO RICO PUBLIC BROADCASTING CORPORATION; ISRAEL RAY CRUZ, in his personal capacity; PEDRO RA JOVET, in his personal capacity and in his official capacity as President of the Puerto Rico Public Bradcasting Corporation; INSURANCE COMPANY ABC, JOHN ROE AND JANE DOE, in their individual and official capacities COMPLAINT TO THE HONORABLE COURT: COMES NOW plaintiff, through the undersigned legal representation, and very respectfully ALLEGES and REQUESTS as follows: I. 1. JURISDICTION AND VENUE CIVIL CASE NO.

This Honorable Court has subject matter jurisdiction over the instant case

pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343(3) and 42 U.S.C. 1983, as plaintiff seeks damages and injunctive relief for violations to his rights under the First and Fourteenth Amendments of the United States Constitution. Supplemental jurisdiction is invoked pursuant to 28 U.S.C. 1367 over Puerto Rico law claims that stem from the same facts alleged in the complaint. Pursuant to 28 U.S.C. 1931(b), venue lies in this judicial District, because all relevant facts took place in this jurisdiction and all defendants reside herein. II. THE PARTIES

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2.

Plaintiff Juan J. Valentn Merlo (hereinafter referred to as Vlentn) worked as

Marketing Director for defendant Puerto Rico Public Broadcasting Co. (hereinafter referred to as WIPR), pursuant to a career appointment, until August 16, 2011. Through letter dated August 16, 2011 but served personally upon plaintiff on August 17, 2011, defendants notified Valentn as to the final determination to dismiss him from employment. Prior to that, he had worked for 26 years at WIPR, ascending upon its ranks because of his superior performance and work ethics. During his years of public service, Valentn had never been the object of any disciplinary proceeding, until defendants came into power and engaged in a pattern of political discrimination that ended in dismissal. 3. Defendant WIPR is a public corporation created under and regulated by Law

Number 216 of September 12, 1996, as amended (27 P.R. Laws Ann. 501, et seq). WIPR, although wholly owned by the Commonwealth of Puerto Rico, enjoys administrative independence from said government and consequently may be independently sued1. WIPR policy is made by its Board of Directors and by its President. It has been held by the First Circuit that, although WIPR does not generate its own funds, its enabling act does not unequivocally indicate that the Commonwealth structured WIPR to share its sovereignty, and there is no indication that the Commonwealth has bound itself to pay WIPR's debts. Thus, WIPR is not shielded by immunity under the Eleventh Amendment to the U.S. Constitution. 4. Defendant Israel Ray Cruz (hereinafter Cruz) presided over WIPR from

March 12, 2009 to December 31, 2011. The President is the corporations nominating authority and his decisions constitute WIPR policy sufficient to impose liability for the corporation. Defendant Cruz is an active member of the NPP, to the point that it was believed by some that his appointment as President when he did not have a proper academic background for the
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27 P.R. Laws Ann. 504(4)

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position was a reward for political favors to NPP Governor Luis Fortuo during the 2008 political campaign. 5. Defendant Pedro Ra Jovet (Ra) came to occupy the position of Executive

Vice President of WIPR after the 2009 change in governmental administration. During his tenure as Executive Vice President, he was plaintiff Valentns direct supervisor. In December 2011, Ra was appointed by the NPP Fortuo administration to substitute Cruz, and has occupied the WIPRs presidency since January 1, 2012 to the present. The President is the corporations nominating authority and his decisions constitute WIPR policy sufficient to impose liability for the corporation. Defendant Ra is an active member of the NPP. 6. Defendant Insurance Company ABC has a policy in favor of the WIPR which

covers claim contingencies such as that posed by the instant case. 7. Defendants John Roe and Jane Doe are persons belonging to the NPP

governmental administration who had authority to act and intervene in personnel decisions regarding the plaintiff, and that exercised said authority in a manner specifically directed to punish plaintiff for the exercise of his First Amendment rights. III. FACTS 8. WIPR is a public corporation and, as such, a public employer. WIPR employees

are considered public employees and the personnel transactions undertaken by said corporation are performed under color of state law. 9. Plaintiff Valentn is a known and very active member of the Popular Democratic

Party (PDP). Under the Sila Caldern PDP administration that ended in 2004, Valentn was president of the WIPR PDP employees association. Under the Acevedo Vil PDP administration that ended in 2008, Valentn occupied the very sensitive and policy implementation position of

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Vice President of Marketing and External Resources. 10. All of the defendants specifically knew at all times relevant that plaintiff was a

PDP supporter. Comments to the effect that plaintiff belonged to the PDP were routinely and openly made by a legal advisor and by others at the agency, with defendants knowledge and acquiescence. Also, the mother of defendant Ra, reporter Carmen Jovet, knew about plaintiffs political affiliation and commented on it. 11. During 2008, plaintiff gave testimony in a damages and breach of contract case

against the WIPR brought by producer Angel Junito Torrealba. Although plaintiff Valentn was a witness for the WIPR, it was perceived by those concerned that his testimony favored Torrealba in a key matter. The Torrealba case against WIPR is still pending. 12. After the government administration change brought by the 2008 general

elections, defendant Cruz was appointed by new Governor Fortuo as President of WIPR. During the 2008 political campaign, when Cruz worked for Notiuno, he had been an adamant and vocal supporter of Fortuos candidacy, to the point that some belief that his appointment as WIPRs president came as a political reward for his media advocacy. 13. Around the same time, defendant Ra was appointed as WIPRs Vice President,

and thus became plaintiff Valentns direct supervisor. 14. By letter dated July 21, 2011 and signed by defendant Cruz, plaintiff was notified

of the intention to dismiss him based on certain charges related therein. Among other matters, the letter made reference to plaintiff Valentns testimony in the Torrealba case. As per the letter, Valentn was summarily suspended from employment. 15. The letter was conceptualized and masterminded by defendants Cruz and Ra,

with the sole intention of bringing what were obviously bogus charges based on unsustainable

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conclusions and propositions that, at the very most, only challenged plaintiffs exercise of discretion while he held the Vice President of Marketing and External Resources position. The letter also makes reference to alleged violations to the Puerto Rico Code of Ethics, which are also totally devoid of substance and merit and clearly go beyond WIPRs disciplinary authority.2 In suspending Valentn summarily and seeking his termination from employment, defendants were acting for the purpose of punishing Valentn both for his adherence to a political party different from that of the defendants and for the testimony rendered in the Torrealba case. 16. It should be noted that the letter of intent to dismiss does not comply with

minimal due process requirements, as it blatantly fails to adequately relate the alleged charges and supposed violations and provides no reasonable notice of the evidence in support. 17. After a sham informal proceeding wherein practically all of the protections

afforded by the due process clause were violated, defendants dismissed plaintiff, through letter dated August 16, 2011 and delivered August 17, 2011 by hand. 18. Plaintiff challenged the termination decision through appropiate channels and,

eventually, WIPRs Board of Appeals found twice in his favor. In its decision, which is now on judicial review filed by WIPR, the Board finds that the letter of intent to dismiss tendered to plaintiff Valentn is a nullity, that serious due process violations occurerd in his destitution process and that, in the ultimate instance, WIPR lacked jurisdiction to entertain most of the subjective and non supported accusations made against Valentn. The Board also ordered immediate restitution with back pay, but defendants have thus far ignored said order, and thus plaintiff Valentn has not yet returned to work at WIPR.

This is so because, as is well established, only the Puerto Rico Ethics Commission has jurisdiction to deal with allegations that the provisions of the Code of Ethics have been violated.

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19.

After having dismissed plaintiff Valentn from employment and to further punish

him both for his political beliefs and upon the perception that he had testified in favor of producer Torrealba in his case against WIPR that is still ongoing, defendants filed a complaint for collection of monies in state court, in which they named both Torrealba and plaintiff as defendants.3 Based on bogus and unsustainable charges, the complaint alleges that plaintiff acted in concert with Torrealba to defraud WIPR. Although plaintiff Valentn has filed for dismissal on said case, no ruling has yet been made. 20. As a direct result of the termination from his career position at WIPR, plaintiff

has endured substantial financial hardships, such as inability to meet financial obligations, a substantial deterioration in his lifestyle and the difficulty of having to fend off without a regular income. Plaintiff has also been further affected by the loss of important fringe benefits such as health care and the prospect of retirement with a government pension. He has also consumed his personal and retirement savings in making ends meet. 21. Likewise, plaintiff has suffered substantial emotional damages including, without

limitation, feelings of anger, loss, frustration, sorrow, depression and anxiety. Plaintiff lives in a constant state of worry about how he will be able to make ends meet financially and endures feelings of profound sorrow upon his realization that he was stripped of his means of subsistence in a discriminatory and illegal fashion, after close to three decades of excellent public service at WIPR. He also has suffered from anxiety and feelings of uncertainty related to the filing against him of a frivolous collection of monies claim by the defendants and their allegation that he supposedly has to pay over one hundred thousand dollars in compensation to WIPR.

Corporacin de Puerto Rico para la Difusin Pblica v. Art Digisuite Film y otros, Civil Nm. KCD 20112239

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22.

Also, plaintiff has had to incur in substantial legal fees both to pursue his appeal

before WIPRs Board of Appeals and to defend himself against the bogus collection of monies claim filed against him and producer Torrealba by the defendants. These fees can be conservatively estimated in no less than $10,000. 23. The economic, emotional and physical damages endured by plaintiff as a result of

defendants illegal actions is estimated in an amount of no less than $2,000,000.00. 24. In devising and implementing a plan to, under subterfuge, dismiss and punish

plaintiff because of his adherence to the PDP and the perception that he provided judicial testimony against WIPR, defendants have acted maliciously and in gross and reckless disregard of plaintiffs federally-protected rights. The actions engaged in by defendants are sufficient to shock the conscience of reasonably minded individuals. 25. Defendants should be ordered to pay punitive damages to plaintiff in an amount

of no less than $1,000,000.00 in order to punish said partiess reckless behavior and make an example so that others will be deterred from incurring in the same conduct. 26. Additionally, plaintiff is entitled to restitution and back pay for the wages and

benefits lost as a result of his illegal termination. FIRST CAUSE OF ACTION (42 USCA SEC. 1983/ FIRST AMENDMENT/ POLITICAL DISCRIMINATION) 27. The foregoing evidences that the Defendants, under the color of law of their

respective positions, have willfully and/or with deliberate indifference violated the plaintiff's rights under the First Amendment to the Constitution of the United States (freedom of speech and association). The adverse employment action taken against the plaintiff stems from discriminatory political animus, and was geared to punish him because of his allegiance to a different political party to that now in power. Pursuant thereto, plaintiff is entitled to relief under

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42 USCA sec. 1983 and its interpretative jurisprudence, in the form of an injunction returning him to the position he formerly held, with full back pay and benefits, and the award of damages in a sum of no less than $3,000,000 ($2,000,000 damages, $1,000, punitive). SECOND CAUSE OF ACTION (POLITICAL DISCRIMINATION UNDER P.R. LAW) 28. As described in the factual recitation of the instant action, defendants, moved by a

discriminatory animus, engaged in a scheme to dismiss and punish plaintiff because of his political beliefs. In so doing, defendants breached their duties under Puerto Rico Law 100 of June 30, 1959, as amended, 29 P.R. Laws Ann. 146 and are therefore liable to plaintiff for an amount equal to double of the damages sustained as a result of their discriminatory practices. THIRD CAUSE OF ACTION (PUERTO RICO CONSTITUTION) 29. The same violations described in the first and second causes of action constitute

blatant breaches of plaintiffs rights to substantive due process and to equal protection of the law under Section 7 of Article II of the Puerto Rico Constitution. 30. Insofar defendants are moved by a discriminatory animus based on partisan

politics, their actions are also violative of Sections 1, 4 and 6 of Article II of the Puerto Rico Constitution. 31. Additionally, career employment in the Puerto Rico public service is afforded a

great deal of constitutional and statutory protection and, once an employee develops such a relationship with the Commonwealth that it becomes a bond that may not be severed unless the employee fails to hold up his/her end of the bargain and breaches its disciplinary duties or until a lack of funds and/or work engenders an intricate layoff plan scheme. Hence, the right to career employment is of such stature that it falls within the protection afforded by the contract clause of

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Section 7, Article II of the Puerto Rico Constitution, a right which has been breached by defendants herein. FIFTH CAUSE OF ACTION: DUE PROCESS OF THE UNITED STATES CONSTITUTION 32. Besides the obvious reality that the adverse personnel actions taken against

plaintiff Valentn stem from illicit political and retaliatory motives, said actions also constitute blatant violations of his due process rights. 33. As a tenured career employee, plaintiff could not be validly dismissed unless

charges were properly brought and proven against him. In this case, the letter of intent to dismiss and to suspend did not comply with minimal due process requirements and delved into supposed and inexistent ethical conflicts as to which defendants had no disciplinary jurisdiction. It should be noted that the letter and the ensuing informal dismissal process have been held to be a nullity by WIPRs Board of Appeals, which specifically found them to be violative of plaintiffs due process. 34. All of these actions have caused irreparable and continuing harm to plaintiff

emotionally, economically and in his civil rights. Such damages are estimated in an amount of no less than $3,000,000. In addition, the Plaintiff prays for preliminary and permanent injunctive relief reinstating him to his career employment with full back pay and benefits, and the award of damages in a sum of no less than $3,000,000 ($2,000,000 damages, $1,000, punitive). SIXTH CAUSE OF ACTION (42 USCA SEC. 1983/ FIRST AMENDMENT/ RETALIATION) 35. The foregoing evidences that the Defendants, under the color of law of their

respective positions, have willfully and/or with deliberate indifference violated the plaintiff's rights under the First Amendment to the Constitution of the United States (freedom of speech

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and association). Besides stemming from political animus, the adverse employment action taken against the plaintiff also stems from retaliatory animus, and was geared to punish him because of his testimony in the state court Torrealba case. Pursuant thereto, plaintiff is entitled to relief under 42 USCA sec. 1983 and its interpretative jurisprudence, in the form of an injunction returning him to the position he formerly held, with full back pay and benefits, and the award of damages in a sum of no less than $3,000,000 ($2,000,000 damages, $1,000, punitive). SEVENTH CAUSE OF ACTION (PUERTO RICO RETALIATION LAW) 36. Besides stemming from political animus, the adverse employment action taken

against the plaintiff also stems from retaliatory animus, and was geared to punish him because of his testimony in the state court Torrealba case. Pursuant to the Puerto Rico Retaliation statute, Law 115 of 1992, plaintiff is entitled to an injunction returning him to the position he formerly held, with full back pay and benefits, and the award of damages. As per Law 115, any monetary award given to plaintiff under its dispositions must be doubled. EIGHTH CAUSE OF ACTION (PUERTO RICO TORT LAW) 37. All defendants are liable, pursuant to Article 1802 of the Puerto Rico Civil Code,

31 P.R. Laws Ann. 5141, to plaintiff for the intentional discriminatory actions described in the pleadings, as well as for their negligence in following and adhering to applicable regulations and procedures and in assessing the corresponding factual and legal landscape before undertaking the challenged adverse employment and post employment actions. 38. WIPR is vicariously liable under Article 1803 of the Puerto Rico Civil Code, 31

P.R. Laws Ann. 5142, for the aforementioned tortuous actions of its employees who are defendants in the instant action. ATTORNEYS FEES

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39.

Plaintiff has a right to recover attorneys fees from the defendants, pursuant to 42

U.S.C. 1988 and local statute. JURY TRIAL 40. triable. WHEREFORE it is respectfully requested from this Honorable Court that the relief requested in the instant action be hereby GRANTED, and, in consequence, that relief under 42 USCA sec. 1983 and the applicable Puerto Rico law statutes as cited herein be given, in the form of an injunction returning plaintiffs to the employment position he formerly held at WIPR, with full back pay and benefits, the award of damages in a sum of no less than $3,000,000 ($2,000,000 damages, $1,000, punitive), and attorneys fees and costs pursuant to 42 USCA sec. 1988. In Guaynabo, Puerto Rico this 15th day of August, 2012. NOTICE OF ELECTRONIC FILING WE HEREBY CERTIFY: That on this date, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which well send notification of such filing to all attorneys of record. RESPECTFULLY SUBMITTED. In Guaynabo, Puerto Rico, this 15th day of August 2012. LANDRN & VERA, LLP Attorneys at Law Centro Internacional de Mercadeo 100 Carr. 165, Torre I, Suite 203 Guaynabo, Puerto Rico 00968 Tel.: (787) 774-5959 Fax: (787) 774-8181 Plaintiff invokes his Seventh Amendment right to a jury trial on all causes so

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s/ Eileen Landrn Guardiola EILEEN LANDRN GUARDIOLA USDC-PR-203006 elandron@landronvera.com s/ Eduardo Vera Ramrez EDUARDO VERA RAMREZ USDC-PR-209713 evera@landronvera.com s/ Luis Rodrguez Muoz Luis Rodrguez Muoz USDC-PR-214511 lrodriguez@landronvera.com

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