Ocasio-Hernandez v. Fortuno-Burset

United States Court of Appeals
For the First Circuit

No. 09-2207

CARMEN M. OCASIO-HERNÁNDEZ, et al.,

Plaintiffs, Appellants,

v.

LUIS FORTUÑO-BURSET, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Torruella, Lipez, and Thompson, Circuit Judges.

Carlos A. Del Valle Cruz, with whom Landrón & Vera, Eileen
Landrón Guardiola and Eduardo Vera Ramírez were on brief, for
appellants.
Michael C. McCall, with whom Aldarondo & López Bras and
Eliezer Aldarondo-Ortiz were on brief, for appellees.

April 1, 2011
 LIPEZ, Circuit Judge. This case involves a claim of

political discrimination stemming from the 2008 gubernatorial

election in Puerto Rico. Fourteen maintenance and domestic

workers, all members of Puerto Rico's Popular Democratic Party

("PDP"), brought suit in federal district court alleging that they

were unconstitutionally terminated from their public employment at

the governor's mansion, La Fortaleza, shortly after the election of

Governor Luis Fortuño-Burset ("Fortuño"), President of Puerto

Rico's New Progressive Party ("NPP"). The complaint named four

principal defendants, in both their individual and official

capacities, as well as their spouses and conjugal partnerships:

Governor Fortuño, the nominating authority at La Fortaleza; First

Lady Luce Vela ("Vela"), the chairperson of a committee for the

maintenance, restoration, and preservation of La Fortaleza; Chief

of Staff Juan Carlos Blanco ("Blanco"); and Administrator Velmarie

Berlingeri Marín ("Berlingeri").1 The district court, applying the

federal notice pleading standard articulated by the Supreme Court

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), dismissed the workers'

complaint for failing to state a plausible claim for relief.

After a careful review of the record and the teachings of

Twombly and Iqbal, we conclude that the district court applied the

1
The record contains two different spellings of Berlingeri's
name. We adopt the spelling used in the defendants' brief.

-2-
notice pleading standard incorrectly. The allegations in the

complaint do state a plausible claim of political discrimination in

violation of the First Amendment to the United States Constitution.

We vacate the dismissal of that claim.

I.

A. The Complaint

Because this appeal follows the allowance of a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we

recite the facts of the plaintiffs' claim as alleged in the

complaint. See SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010)

(en banc).

Fortuño was elected Governor of the Commonwealth of

Puerto Rico on November 4, 2008, and he assumed that office on

January 2, 2009. As Governor, he is the nominating authority at La

Fortaleza; he approves or disapproves of all personnel decisions

relating to employment at the mansion. In early January 2009,

Governor Fortuño named defendant Berlingeri Administrator at La

Fortaleza, and he signed an executive order authorizing her to

terminate employees there on his behalf. He also named defendant

Blanco Chief of Staff. As the First Lady of Puerto Rico, defendant

Vela chairs the Conservation and Maintenance of La Fortaleza

Committee and is responsible for overseeing the mansion; she has

publicly acknowledged her personal involvement in overseeing

repairs and refurbishing work at La Fortaleza.

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 Shortly after Governor Fortuño took office, logos,

emblems, and flyers supporting the NPP and Governor Fortuño were

prominently displayed at La Fortaleza. Employees at the mansion

openly discussed their political affiliations, as some NPP-

affiliated employees were promoted to high-level trust positions

while rumors spread of a list of PDP-affiliated employees who would

be terminated and replaced with NPP-affiliated workers. Employees

were questioned on multiple occasions, including by Governor

Fortuño himself, about the circumstances of their hire at La

Fortaleza, which the plaintiffs contend was merely an attempt to

ascertain or verify each employee's political affiliation. Indeed,

the new administration brought in confidential clerical personnel

who interrogated employees for that very purpose.

Governor Fortuño's campaign jingle, "It's time to

change," proved to be a recurring theme for employees at La

Fortaleza following the change in administration. One of

Berlingeri's trusted aides used the jingle as the ringtone on his

cellular telephone (which also prominently displayed the NPP logo).

He would also loudly sing the jingle in front of the maintenance

employees he commanded and would state on occasion that things had

indeed changed. Similarly, First Lady Vela informed employees that

"changes had come," and she would make disparaging and derogatory

comments about the prior PDP administration to employees as they

executed their duties. She was also overheard stating her intent

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to "clean up the kitchen," an apparent reference to an impending

change in kitchen staff.

The plaintiffs in this case performed maintenance work or

housekeeping tasks at La Fortaleza, such as laundry, ironing,

sewing, and cleaning. Some of the plaintiffs had held their

positions at the mansion for nearly twenty years. On either

February 27 or March 11 of 2009, each of the plaintiffs received a

termination letter signed by Berlingeri. They were fired without

notice, without cause, and without having their job performance

evaluated by the incoming administration. None of the plaintiffs

had been known members of the NPP. Within days, their positions at

La Fortaleza were filled by NPP-affiliated workers.

In answering press questions about the layoffs at La

Fortaleza, Blanco stated falsely that the employees who were

terminated had been privy to confidential, sensitive information.

In actuality, none of the plaintiffs had held policy-making

positions, performed functions similar to those performed by

policy-making employees, or had access to confidential information

related to policy. Blanco further informed the press, "We are

making employment evaluations every month," an assertion belied by

the lack of evaluation preceding the plaintiffs' terminations.

The defendants made other public statements indicating

that political affiliation may have been a consideration in the

administration's employment decisions, including those at La

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Fortaleza. In addressing the press on the topic of government

layoffs generally, Governor Fortuño flatly stated that "none of

them voted for him," in reference to the employees who might be

terminated. When specifically responding to criticism by a group

of terminated employees who were protesting at La Fortaleza, Blanco

made disparaging comments about the prior PDP administration and

acknowledged that the fired employees were part of that

administration. Berlingeri similarly made disparaging remarks

about the prior administration when addressing criticism by a group

of terminated employees.

B. Procedural Background

The plaintiffs brought suit in federal district court

pursuant to 42 U.S.C. § 1983, supplemented by claims brought under

the laws and Constitution of Puerto Rico. They alleged three

constitutional violations in the termination of their employment:

political discrimination in violation of the First Amendment,

deprivation of a property interest without due process of law, and

the denial of equal protection.

At an initial case conference in April 2009, the district

court informed the plaintiffs that their complaint satisfied the

federal notice pleading standard, and it advised the defendants not

to file a Rule 12(b)(6) motion to dismiss the complaint. In May

2009, however, the district court scheduled an emergency hearing

motu proprio to hear arguments on whether the recently issued Iqbal

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decision required the complaint to be dismissed due to insufficient

factual allegations. At that hearing, the defendants officially

moved to dismiss the complaint. The court denied the defendants'

motion without prejudice and granted the plaintiffs thirty days to

amend their complaint to comply with Iqbal. The plaintiffs timely

filed an amended complaint, and the defendants again moved to

dismiss. After a hearing, the district court dismissed the amended

complaint for failure to state a claim.2

C. The District Court Opinion

The district court began its opinion and order in this

case by dismissing all claims against three of the four defendants

-- Governor Fortuño, First Lady Vela, and Blanco. According to the

court, the factual allegations in the complaint failed to show with

the required specificity that those three defendants had caused the

plaintiffs' terminations. The court described the plaintiffs' case

against those defendants as resting on "an implicit assumption that

the defendants' [sic] participated in the decision" because of

their positions of authority. It noted that "no additional factual

allegations, such as interactions between the defendants and

particular plaintiffs, . . . tie Fortuño, Vela, and Blanco to the

deprivation of the plaintiffs' constitutional rights."

2
The plaintiffs do not challenge the dismissal of their
§ 1983 claims based on the Due Process Clause and Equal Protection
Clause of the Fourteenth Amendment.

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 The district court did find, however, that the plaintiffs

had "minimally satisfied" their burden of pleading Berlingeri's

participation in the terminations, "since the plaintiffs allege

that she signed the letter which officially separated the

plaintiffs from their employment at La Fortaleza." It nevertheless

concluded that the plaintiffs' political discrimination claim

failed because the complaint lacked sufficient factual allegations

to show that Berlingeri had knowledge of the plaintiffs' political

affiliation or that political affiliation played a role in the

termination decision: "The fact that Berlingeri may have made

disparaging remarks about the previous administration does not lead

to the conclusion that she thought or knew that plaintiffs were PDP

members or supporters." It found that "the same can be said" with

respect to the plaintiffs' allegations that Berlingeri's trusted

aide was a staunch NPP supporter, wore the party's logo, and sang

Governor Fortuño's campaign jingle. The court also discounted the

complaint's allegation that Berlingeri, the other defendants, and

newly hired clerical staff had inquired into the circumstances of

the plaintiffs' hire at La Fortaleza. It noted that the complaint

"contains no specific account of these conversations," and thus

described it as "a generic allegation, made without reference to

specific facts that might make it 'plausible on its face.'" The

court further explained that had such inquiries taken place, that

fact would "not lead to the conclusion that [the defendants] did so

-8-
in order to ascertain [the plaintiffs'] political affiliation, or

that they in fact gained that information."

The court likewise discounted the plaintiffs' allegation

that they were replaced in their positions by NPP-affiliated

workers, describing it as "a conclusory statement." It pointed out

that the "plaintiffs do not identify who replaced any or all of the

plaintiffs, nor the date of these replacements" and that the

complaint merely asserts "that this occurred as to all of the

plaintiffs." Further, the court found that the defendants' failure

to justify the terminations or to conduct performance evaluations

was not "relevant" to the claim, as "plaintiffs were not entitled

to any explanation." Lastly, the court explained that "mere

temporal proximity" between a change in administration and an

employee's dismissal is "insufficient to establish discriminatory

animus."

II.

We review the dismissal of a complaint under Rule

12(b)(6) de novo. E.g., Tasker v. DHL Retirement Sav. Plan, 621

F.3d 34, 38 (1st Cir. 2010). The sole inquiry under Rule 12(b)(6)

is whether, construing the well-pleaded facts of the complaint in

the light most favorable to the plaintiffs, the complaint states a

claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6).

The Supreme Court has twice recently clarified the

requirements of an adequately stated federal claim. Given the

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nature of the district court's errors in this case, and the

frequent invocation of these cases by litigants and the district

courts, we think it useful to set forth in some detail an account

of those two decisions.

A. Bell Atlantic Corp. v. Twombly

In Twombly, the Supreme Court affirmed the district

court's dismissal of an antitrust class-action suit brought under

Section 1 of the Sherman Act, 15 U.S.C. § 1. 550 U.S. at 548. The

plaintiffs claimed that a group of regional telephone service

providers had conspired to restrain trade by restricting the growth

of upstart competitors while refraining from competing with one

another. Id. at 550. The complaint both directly alleged that the

defendant service providers "'have entered into a contract,

combination or conspiracy to prevent competitive entry in their

respective . . . markets'" and also alleged conduct from which,

according to the plaintiffs, a conspiracy could be inferred, such

as an "'absence of any meaningful competition between [the

defendants] in one another's markets'" and a "'parallel course of

conduct that each engaged in to prevent competition from [upstart

competitors].'" Id. at 551. The Court of Appeals for the Second

Circuit reversed the district court's order dismissing the case,

asserting that "to rule that allegations of parallel anti-

competitive conduct fail to support a plausible conspiracy claim,

a court would have to conclude that there is no set of facts that

-10-
would permit a plaintiff to demonstrate that the particular

parallelism asserted was the product of collusion rather than

coincidence." Id. at 553 (internal quotation marks omitted).

The Supreme Court reversed the Second Circuit and

reinstated the district court's order of dismissal. The Court

explained that the propriety of dismissal under Rule 12(b)(6) turns

on the complaint's compliance with Rule 8(a)(2), which mandates

that every complaint contain "a short and plain statement of the

claim showing that the pleader is entitled to relief," Fed. R. Civ.

P. 8(a)(2). Id. at 555. It further explained that a "short and

plain" statement does not need detailed factual allegations. Id.

at 555. That aspect of the Rule merely requires sufficient detail

in the complaint to give a defendant fair notice of the claim and

the grounds upon which it rests. Id. (citing Conley v. Gibson, 355

U.S. 41, 47 (1957)).

However, the Twombly Court reasoned, Rule 8(a)(2) also

requires "that the plain statement possess enough heft to show that

the pleader is entitled to relief." Id. at 557 (emphasis added)

(internal quotation marks omitted). It stated that a complaint

only "shows" an entitlement to relief if its factual allegations

are "enough to raise a right to relief above the speculative level

on the assumption that all the allegations in the complaint are

true (even if doubtful in fact)." See id. at 555 (citation

omitted). According to the Court, Rule 8(a)(2) must require more

-11-
than mere "labels and conclusions" or "a formulaic recitation of

the elements of a cause of action." Id. However, the Twombly

Court was also careful to explain that "[h]ere, . . . we do not

require heightened fact pleading of specifics, but only enough

facts to state a claim to relief that is plausible on its face."

Id. at 570.

Applying the Rule 8 pleading standard to the facts of the

case before it, the Twombly Court disregarded the complaint's

allegations that the defendants had "entered into a contract,

combination or conspiracy" and had "agreed not to compete with one

another." According to the Court, "on fair reading these are

merely legal conclusions resting on the prior allegations" of

parallel conduct and non-competition: "the complaint leaves no

doubt that plaintiffs rest their § 1 claim on descriptions of

parallel conduct and not on any independent allegation of actual

agreement among the [defendants]."3 Id. at 564.

Taking as true the remaining allegations that the

defendants had "engaged in parallel conduct" and had failed to

3
The Court noted that if the plaintiffs had intended these
statements to serve as factual allegations that an agreement
occurred, it is doubtful that they would have provided the
defendants with the notice required by Rule 8(a)(2): "Apart from
identifying a seven-year span in which the § 1 violations were
supposed to have occurred," "the complaint here furnishes no clue
as to which of the four [defendants] (much less which of their
employees) supposedly agreed, or when and where the illicit
agreement took place. . . . [A] defendant seeking to respond to
plaintiffs' conclusory allegations in the § 1 context would have
little idea where to begin." Twombly, 550 U.S. at 564 n.10.

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"meaningfully pursue" "attractive business opportunit[ies]," the

Twombly Court concluded they were insufficient to "invest[] either

the action or inaction alleged with a plausible suggestion of

conspiracy." Id. at 564-66. It explained that, under the Sherman

Act, "[e]ven conscious parallelism, a common reaction of firms in

a concentrated market that recognize their shared economic

interests . . . is not in itself unlawful," and that "proof of a

§ 1 conspiracy must include evidence tending to exclude the

possibility of independent action." Id. at 553-54 (internal

quotation marks omitted) (alterations omitted). The Court reasoned

that, though the alleged conduct was "consistent with conspiracy,"

it was "just as much in line with a wide swath of rational and

competitive business strategy." Id. at 554.

Indeed, the Court emphasized that the alleged conduct

held almost no probative value in showing the existence of a

conspiracy:

[T]here is no reason to infer that the companies had
agreed among themselves to do what was only natural
anyway; so natural, in fact, that if alleging parallel
decisions to resist competition were enough to imply an
antitrust conspiracy, pleading a § 1 violation against
almost any group of competing business would be a sure
thing.

Id. at 566. Finding an "obvious alternative explanation" for the

alleged behavior of the defendants, the Twombly Court concluded

that the "plaintiffs here have not nudged their claims across the

line from conceivable to plausible." Id. at 567, 570.

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 In describing facial plausibility as the governing

standard of Rule 8(a)(2), Twombly officially put to rest the well-

known "no set of facts" language used in one of the Court's

earliest opinions interpreting the Federal Rules, Conley v. Gibson,

355 U.S. at 45-46. 550 U.S. at 561. Although the Twombly Court

acknowledged that Conley's language had been sensible in the

context of the case, it was at best "an incomplete, negative gloss

on an accepted pleading standard." Id. at 563. That language had

been erroneously employed by the Second Circuit to reverse the

district court's order of dismissal, and the Twombly Court

expressed its concern that the "no set of facts" formulation can

too easily "be read in isolation as saying that any statement

revealing the theory of the claim will suffice unless its factual

impossibility may be shown from the face of the pleadings." Id. at

561. It elaborated:

On such a focused and literal reading . . . a wholly
conclusory statement of claim would survive a motion to
dismiss whenever the pleadings left open the possibility
that a plaintiff might later establish some set of
undisclosed facts to support recovery. . . . It seems
fair to say that this approach to pleading would dispense
with any showing of a reasonably founded hope that a
plaintiff would be able to make a case; Mr. Micawber's
optimism would be enough.

Id. at 561-62 (alteration omitted) (citation omitted) (internal

quotation marks omitted). The Court thus announced that, "after

puzzling the profession for 50 years, this famous observation has

earned its retirement." Id. at 563.

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 Importantly, even while retiring one famous precedent,

the Twombly Court explicitly affirmed another. It emphasized that

requiring a plaintiff to show a plausible entitlement to relief was

not the same as imposing a "heightened pleading requirement," and

was therefore not inconsistent with the Supreme Court's previous

declaration in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002),

that a court may not insist on the allegation of "specific facts"

that would be necessary to prove the claim at trial. See Twombly,

550 U.S. at 570. To do so is incompatible with the notice pleading

structure of the Federal Rules. Id. The Court reiterated: "Here,

our concern is not that the allegations in the complaint were

insufficiently 'particularized'; rather, the complaint warranted

dismissal because it failed in toto to render plaintiffs'

entitlement to relief plausible." Id. at 569 n.14 (alteration

omitted) (internal citation omitted).

B. Ashcroft v. Iqbal

Iqbal involved a § 1983 claim brought by a detainee who

had been held in a Brooklyn detention center in the wake of the

September 11, 2001, terrorist attacks. 129 S. Ct. at 1943. The

complaint alleged that the conditions of the plaintiff's detention

resulted from unconstitutional racial, ethnic, and religious

discrimination in designating him a person of "high interest." Id.

at 1943-44. Among the defendants named in the suit were Attorney

General John Ashcroft and Director of the Federal Bureau of

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Investigation ("FBI") Robert Mueller. Id. at 1942. After the

Second Circuit affirmed the district court's denial of their motion

to dismiss, these two defendants petitioned for certiorari. Id.

To provide guidance to lower courts on how best to apply

the plausibility requirement of Rule 8(a)(2), the Iqbal Court

endorsed a two-pronged approach that it saw as implicit in the

Twombly decision. Id. at 1950. Under this approach, a court

resolving a Rule 12(b)(6) motion to dismiss should begin by

separating a complaint's factual allegations from its legal

conclusions. See id. at 1949-50. Unlike factual allegations,

legal conclusions contained within a complaint are not entitled to

a presumption of truth. Id. The Iqbal Court pointed to the

allegation that the Twombly defendants had "entered into a

contract, combination, or conspiracy," which had been disregarded

by the Twombly Court, as an example of a conclusory statement that,

though presented as an assertion of fact, simply describes the

legal conclusion that the plaintiffs sought to infer from the other

conduct alleged in the complaint. See id. at 1950. The Court

explained that, if this conclusory allegation were afforded a

presumption of truth, the Twombly plaintiffs "would have stated a

claim for relief and been entitled to proceed perforce." Id.

The second prong of the approach endorsed by the Iqbal

Court requires a reviewing court to accept the remaining factual

allegations in the complaint as true and to evaluate whether, taken

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as a whole, they state a facially plausible legal claim. See id.

According to the Court, "[a] claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged." Id. at 1949. Echoing Twombly's conclusion

that the allegation of parallel conduct was "just as much in line"

with innocent conduct as with conspiracy, 550 U.S. at 554, the

Iqbal Court reiterated that a complaint may not stand simply on the

"sheer possibility" that a defendant acted unlawfully or on facts

that are merely consistent with a defendant's liability. See 129

S. Ct. at 1949. It cautioned, however, that evaluating the

plausibility of a legal claim is a "context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense." Id. at 1950.

Applying this two-pronged approach, the Iqbal Court

identified and disregarded an allegation in the plaintiff's

complaint that these two defendants, high-ranking government

officials, "knew of, condoned, and willfully and maliciously agreed

to subject [the plaintiff] to harsh conditions of confinement as a

matter of policy, solely on account of his religion, race, and/or

national origin." Id. at 1951 (alteration omitted) (internal

quotation marks omitted). The Court emphasized that this

conclusory allegation simply mirrored the legal standard against

which the complaint is to be tested, noting that "Rule 8 does not

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empower [the plaintiff] to plead the bare elements of his cause of

action, affix the label 'general allegation,' and expect his

complaint to survive a motion to dismiss." Id. at 1954.

Turning to the remaining factual allegations, the Court

reasoned that the plaintiff's claim was implausible. Although the

complaint included a factual allegation that the FBI "arrested and

detained thousands of Arab Muslim men . . . as part of its

investigation of the events of September 11," the Court found that

an inference of discriminatory intent was unreasonable in light of

the "more likely explanations." Id. at 1951 (alteration in

original) (internal quotation marks omitted). Recounting the

circumstances of the September 11 attacks, the Court explained why

"[i]t should come as no surprise that a legitimate policy directing

law enforcement to arrest and detain individuals because of their

suspected link to the attacks would produce a disparate, incidental

impact on Arab Muslims, even though the purpose of the policy was

to target neither Arabs nor Muslims." Id. It also pointed out

that the plaintiff's only factual allegation specific to the two

petitioning defendants accused them of "adopting a policy approving

of restrictive conditions of confinement for post-September-11

detainees." Id. at 1952 (internal quotation marks omitted). The

Court explained that nothing in this allegation shows the

defendants' discriminatory intent: "[A]s we have noted, [the

defendants] cannot be held liable unless they themselves acted on

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account of a constitutionally protected characteristic. Yet [the

plaintiff's] complaint does not contain any factual allegation

sufficient to plausibly suggest [the defendant's] discriminatory

state of mind." Id.

C. The Current State of Federal Notice Pleading

We distill the following principles from Twombly and

Iqbal.

Dismissal of a complaint pursuant to Rule 12(b)(6) is

inappropriate if the complaint satisfies Rule 8(a)(2)'s requirement

of "a short and plain statement of the claim showing that the

pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2). See

Iqbal, 129 S. Ct. at 1949; Twombly 550 U.S. at 555. A "short and

plain" statement needs only enough detail to provide a defendant

with "'fair notice of what the . . . claim is and the grounds upon

which it rests.'" Twombly, 550 U.S. at 555 (citing Conley, 355

U.S. at 47); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007)

("Federal Rule of Civil Procedure 8(a)(2) requires only 'a short

and plain statement . . . .' Specific facts are not necessary.").

However, in order to "show" an entitlement to relief a complaint

must contain enough factual material "to raise a right to relief

above the speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful in fact)."

See Twombly, 550 U.S. at 555 (citation omitted); see also Iqbal,

129 S. Ct. at 1950. "Where a complaint pleads facts that are

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'merely consistent with' a defendant's liability, it 'stops short

of the line between possibility and plausibility of entitlement to

relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at

557). In short, an adequate complaint must provide fair notice to

the defendants and state a facially plausible legal claim.

In resolving a motion to dismiss, a court should employ

a two-pronged approach. It should begin by identifying and

disregarding statements in the complaint that merely offer "'legal

conclusion[s] couched as . . . fact[]'" or "[t]hreadbare recitals

of the elements of a cause of action." Id. at 1949-50 (quoting

Twombly, 550 U.S. at 555). A plaintiff is not entitled to "proceed

perforce" by virtue of allegations that merely parrot the elements

of the cause of action. See id. at 1950; cf. Sanchez v. Pereira-

Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (disregarding as

conclusory, under Iqbal's first prong, a factual allegation that

merely "[p]arrot[ed] our standard for supervisory liability in the

context of Section 1983" in alleging that defendants had "failed to

[supervise] with deliberate indifference and/or reckless disregard

of Plaintiff's federally protected rights"). Non-conclusory

factual allegations in the complaint must then be treated as true,

even if seemingly incredible. Iqbal, 129 S. Ct. at 1951 ("To be

clear, we do not reject these bald allegations on the ground that

they are unrealistic or nonsensical. . . . It is the conclusory

nature of respondent's allegations, rather than their extravagantly

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fanciful nature, that disentitles them to the presumption of

truth."). But cf. Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592,

595 (1st Cir. 2011) ("[S]ome allegations, while not stating

ultimate legal conclusions, are nevertheless so threadbare or

speculative that they fail to cross the line between the conclusory

and the factual.") (internal quotation marks omitted). If that

factual content, so taken, "allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged,"

the claim has facial plausibility. Iqbal, 129 S. Ct. at 1949.

"The make-or-break standard . . . is that the combined allegations,

taken as true, must state a plausible, not a merely conceivable,

case for relief." Sepúlveda-Villarini v. Dep't of Educ. of P.R.,

628 F.3d 25, 29 (1st Cir. 2010) (Souter, J.).

Although evaluating the plausibility of a legal claim

"requires the reviewing court to draw on its judicial experience

and common sense," Iqbal, 129 S. Ct. at 1950, the court may not

disregard properly pled factual allegations, "even if it strikes a

savvy judge that actual proof of those facts is improbable."

Twombly, 550 U.S. at 556; see also Neitzke v. Williams, 490 U.S.

319, 327 (1989) ("Rule 12(b)(6) does not countenance . . .

dismissals based on a judge's disbelief of a complaint's factual

allegations."). Nor may a court attempt to forecast a plaintiff's

likelihood of success on the merits; "a well-pleaded complaint may

proceed even if . . . a recovery is very remote and unlikely."

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Twombly, 550 U.S. at 556 (internal quotation marks omitted); see

also id. at 563 n.8 ("[W]hen a complaint adequately states a claim,

it may not be dismissed based on a district court's assessment that

the plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the

factfinder."). The relevant inquiry focuses on the reasonableness

of the inference of liability that the plaintiff is asking the

court to draw from the facts alleged in the complaint.

With these principles in mind, we turn to the claim at

issue.

III.

Government officials are forbidden by the First Amendment

from taking adverse action against public employees on the basis of

political affiliation, unless political loyalty is an appropriate

requirement of the employment. See Rutan v. Republican Party of

Ill., 497 U.S. 62, 75-76 (1990); Welch v. Ciampa, 542 F.3d 927,

938-39 (1st Cir. 2008). An actionable claim of political

discrimination consists of four elements: "(1) that the plaintiff

and defendant have opposing political affiliations, (2) that the

defendant is aware of the plaintiff's affiliation, (3) that an

adverse employment action occurred, and (4) that political

affiliation was a substantial or motivating factor for the adverse

employment action." Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239

(1st Cir. 2010). There is no question about the adequacy of the

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plaintiffs' complaint in this case with respect to two of these

elements. The complaint contains straightforward factual

allegations describing the parties' opposing political

affiliations, including that the "[d]efendants all belong to the

NPP," that "[e]ach and all plaintiffs are members of the Popular

Democratic Party . . . or are believed to be a member of the PDP,"

and that each plaintiff "was not a known member of the New

Progressive Party." On review of a motion to dismiss, we must

accept these allegations as true. Additionally, the defendants do

not contest that the plaintiffs have adequately alleged that the

termination of the plaintiffs' employment at La Fortaleza

constitutes an adverse employment action.

At issue, then, is the correctness of the district

court's conclusion that the plaintiffs' complaint fails to show

that the defendants had knowledge of the plaintiffs' political

affiliation and that the plaintiffs' political affiliation

motivated the defendants' participation in the plaintiffs'

terminations.

A. The Defendants' Knowledge

The district court assessed only Berlingeri's knowledge

of the plaintiffs' political affiliation because it dismissed all

claims against Governor Fortuño, First Lady Vela, and Blanco on the

ground that the allegations were insufficient to show their

participation in the plaintiffs' terminations. In effect, the

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court performed a causation analysis at the outset of its opinion

that obviated the need for an element-by-element assessment of the

plaintiffs' claims with respect to three of the four defendants.

As we explain below, we disagree with the court's conclusion on

causation. Hence, we must assess whether the plaintiffs'

allegations show that all four defendants had knowledge of the

plaintiffs' political affiliation.

The district court concluded that the plaintiffs'

complaint inadequately alleged Berlingeri's knowledge. In reaching

that conclusion, it disregarded as "conclusory" an allegation that

the plaintiffs were replaced by NPP-affiliated workers because the

plaintiffs "do not identify who replaced any or all of the

plaintiffs, nor the date of these replacements." It also

disregarded as "generic, blanket statements" numerous allegations

that the defendants and their subordinates had questioned the

plaintiffs about the circumstances of their hires in order to

discern their political affiliations. The court explained that the

complaint "contains no specific account of these conversations."

The court then added that, even if the defendants had questioned

the plaintiffs about the circumstances of their employment, such

questioning "does not lead to the conclusion that [the defendants]

did so in order to ascertain [the plaintiffs'] political

affiliation, or that they in fact gained that information." It

reasoned similarly with respect to allegations about disparaging

-24-
remarks made by Berlingeri: "The fact Berlingeri may have made

disparaging remarks about the previous administration does not lead

to the conclusion that she thought or knew that plaintiffs were PDP

members or supporters" and that "[t]he same can be said" of the

plaintiffs' allegations regarding the overtly politicized conduct

of Berlingeri's aide.

The district court erred by not affording the plaintiffs'

allegations the presumption of truth to which they were entitled.

First, as we explained above, the Supreme Court's concerns about

conclusory allegations expressed in Twombly and Iqbal focused on

allegations of ultimate legal conclusions and on unadorned

recitations of a cause-of-action's elements couched as factual

assertions. Allegations of discrete factual events such as the

defendants questioning the plaintiffs and replacing the plaintiffs

with new employees are not "conclusory" in the relevant sense.

Second, factual allegations in a complaint do not need to contain

the level of specificity sought by the district court. See, e.g.,

Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination

Unit, 507 U.S. 163, 167-69 (1993); cf. Iqbal, 127 S. Ct. at 1951

(accepting allegations that the FBI "arrested and detained

thousands of Arab Muslim men" pursuant to a policy that was

"approved by [the defendants] in discussions in the weeks after

September 11, 2001") (internal quotation marks omitted); Twombly,

550 U.S. at 550-51, 564-65 (accepting allegations that defendants

-25-
"engaged in parallel conduct" and failed to "meaningfully . . .

pursue attractive business opportunities") (alterations omitted)

(internal quotation marks omitted); see also id. at 565 n.10

("Here, our concern is not that the allegations in the complaint

were insufficiently 'particularized'; rather, the complaint

warranted dismissal because it failed in toto to render plaintiffs'

entitlement to relief plausible.") (alteration omitted) (citation

omitted). The plaintiffs' allegations were sufficiently detailed

to provide the defendants "fair notice of what the . . . claim is

and the grounds upon which it rests." Id. at 555 (internal

quotation marks omitted). Those allegations should not have been

disregarded.

Additionally, the district court erred when it failed to

evaluate the cumulative effect of the factual allegations. The

question confronting a court on a motion to dismiss is whether all

the facts alleged, when viewed in the light most favorable to the

plaintiffs, render the plaintiff's entitlement to relief plausible.

See id. at 569 n.14; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,

594 (8th Cir. 2009) (explaining that "the complaint should be read

as a whole, not parsed piece by piece to determine whether each

allegation, in isolation, is plausible"). No single allegation

need "lead to the conclusion" -- in the district court's words --

of some necessary element, provided that, in sum, the allegations

of the complaint make the claim as a whole at least plausible. See

-26-
Sepúlveda-Villarini, 628 F.3d at 29 ("The make-or-break standard

. . . is that the combined allegations, taken as true, must state

a plausible, not a merely conceivable, case for relief.") (emphasis

added). Indeed, the Supreme Court has suggested that allegations

that would individually lack the heft to make a claim plausible may

suffice to state a claim in the context of the complaint's other

factual allegations. See Twombly, 550 U.S. at 557 ("An allegation

of parallel conduct . . . gets the complaint close to stating a

claim, but without some further factual enhancement it stops short

of the line between possibility and plausibility.").

We also reject the district court's "lead to the

conclusion" formulation to the extent it implies a stronger logical

connection than that demanded by plausibility. As we have said

previously, "[a] plausible but inconclusive inference from pleaded

facts will survive a motion to dismiss." Sepúlveda-Villarini, 628

F.3d at 30.

Taking all well-pleaded factual allegations as true, the

plaintiffs in this case have pleaded adequate factual material to

support a reasonable inference that the four defendants had

knowledge of their political beliefs. The complaint states that

the defendants asked several plaintiffs about "the circumstances

pertaining to how and when they got to work at Fortaleza"; that an

aide to Berlingeri similarly "asked each of them as to how and when

they began work at the Governor's Mansion," taking notes on their

-27-
responses; and that confidential clerical personnel brought in by

the new administration "insisted on interrogating them in order to

ascertain their respective political affiliations." This last

allegation, in particular, contains a clear assertion that the

clerical staff inquired directly into the plaintiffs' political

affiliations, rather than obliquely into circumstances that might

imply such affiliations. Cf. Montfort-Rodríguez v. Rey-Hernández,

504 F.3d 221, 226 (1st Cir. 2007) (finding sufficient evidence of

a defendant's knowledge where he had asked a subordinate to

generate a list of trust employees and where subordinate thereby

acquired knowledge of the political affiliation of employees). The

plaintiffs' complaint thus plainly shows that the defendants were

actively seeking the knowledge in question from the plaintiffs.

The plaintiffs' complaint also shows that the information

was potentially accessible to the defendants from sources other

than the plaintiffs. The complaint states that employees at La

Fortaleza knew, and commonly discussed, the political affiliations

of their co-workers. Cf. Peguero-Moronta v. Santiago, 464 F.3d 29,

48 (1st Cir. 2006) (finding sufficient evidence of defendants'

knowledge where "evidence portrays a relatively small workplace

where everyone knew who everyone else was and political

affiliations were common office knowledge"). In the same

paragraph, the complaint states that certain NPP-affiliated

employees who possessed this information were promoted to "high

-28-
level trust positions" by the defendants following the change of

administration and were consulted by the defendants in making

employment decisions. These allegations are also consistent with

the plaintiffs' allegation of rumors that had spread among

employees at La Fortaleza suggesting the defendants were

maintaining a list of "employees considered as PDP's [sic] . . .

who would be terminated and substituted with NPP'ers [sic]."

In short, in light of the pleadings as a whole, these

allegations plausibly show the defendants' awareness of the

plaintiffs' political affiliation at the time that they were

terminated.

B. Causation

A plausible discrimination claim requires more than an

awareness of the plaintiffs' political affiliations. It requires

a reasonable inference that the plaintiffs' political affiliation

was a substantial or motivating factor in the defendants' conduct.

See Peñalbert-Rosa, 631 F.3d at 594. Moreover, each defendant's

role in the termination decision must be sufficiently alleged to

make him or her a plausible defendant. After all, "we must

determine whether, as to each defendant, a plaintiff's pleadings

are sufficient to state a claim on which relief can be granted."

Sanchez, 590 F.3d at 48; see also Peñalbert-Rosa, 631 F.3d at 594

("[S]ave under special conditions, an adequate complaint must

include not only a plausible claim but also a plausible

-29-
defendant.").

1. The Defendants' Participation in the Termination
Decision.

Public officials may be held liable under § 1983 for a

constitutional violation only if a plaintiff can establish that his

or her constitutional injury "resulted from the direct acts or

omissions of the official, or from indirect conduct that amounts to

condonation or tacit authorization." Rodríguez-García v. Miranda-

Marín, 610 F.3d 756, 768 (1st Cir. 2010). This standard can be

satisfied by conduct "'setting in motion a series of acts by others

which the actor knows or reasonably should know would cause others

to inflict the constitutional injury.'" Sanchez, 590 F.3d at 50

(quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st

Cir. 1989)). Because precise knowledge of the chain of events

leading to the constitutional violation may often be unavailable to

a plaintiff at this early stage of the litigation, we take to heart

the Supreme Court's call to "draw on our 'judicial experience and

common sense' as we make a contextual judgment about the

sufficiency of the pleadings." See id. (quoting Iqbal, 129 S. Ct.

at 1950).

The district court concluded that the allegations of

participation by Governor Fortuño, First Lady Vela, and Blanco were

inadequate because they relied entirely on "the positions these

defendants hold within the governor's mansion," and "no additional

factual allegations, such as interactions between the defendants

-30-
and particular plaintiffs, . . . tie Fortuño, Vela, and Blanco to

the deprivation of the plaintiffs' constitutional rights." That

conclusion was erroneous. Although § 1983 liability cannot rest

solely on a defendant's position of authority, see Ayala-Rodriguez

v. Rullán, 511 F.3d 232, 236 (1st Cir. 2007), the plaintiffs'

complaint does include other well-pleaded factual allegations that

detail each of these three defendants' level of personal

involvement in and familiarity with the plaintiffs' terminations.

According to the complaint, Governor Fortuño is the

nominating authority at La Fortaleza. He approves or disapproves

of all personnel decisions at the mansion. As early as January

2009, Governor Fortuño signed an Executive Order authorizing

Berlingeri to issue termination notices at La Fortaleza. The

plaintiffs have alleged that Governor Fortuño personally

participated in questioning them about how and when they began to

work at La Fortaleza in order to learn their political affiliation.

When responding to press questions about the potential termination

of government employees, Governor Fortuño allegedly stated that

those who would be terminated "did not vote for him."

According to the complaint, First Lady Vela serves as the

chair of a committee charged with the maintenance, restoration, and

preservation of La Fortaleza. In that role, she allegedly oversees

maintenance and domestic workers. Indeed, the complaint states

that she publicly took personal responsibility for overseeing

-31-
certain renovations and improvements in her time at La Fortaleza,

demonstrating her active participation in that role.

Vela allegedly interacted with the plaintiffs while they

executed their duties, making disparaging remarks to them about the

prior PDP administration and informing them that "changes had

come." She is also alleged to have been overheard stating her

intention to "clean up the kitchen," a remark reasonably

understood as reflecting an intent to replace certain staff

members. The district court improperly disregarded this comment as

"an ambiguous remark that does not necessarily refer to the

dismissals at issue in this case." On a motion to dismiss, we are

obligated to view the facts of the complaint in the light most

favorable to the plaintiffs, and to resolve any ambiguities in

their favor. Given these requirements, the "necessarily refer"

standard of the district court is particularly inappropriate for

evaluating the sufficiency of the allegations in a complaint.

Finally, Blanco is alleged to be the Chief of Staff at La

Fortaleza, a title which itself indicates his role in personnel

management. According to the complaint, Blanco was also

responsible for answering press questions about the specific

terminations at La Fortaleza. In responding to the press, Blanco

allegedly lied about the reason for the plaintiffs' termination,

claiming that the plaintiffs were privy to confidential information

and that performance evaluations were being regularly conducted.

-32-
The allegations in the complaint show, however, that Blanco

understood the true reason for the terminations at La Fortaleza,

which he revealed by making disparaging remarks about the prior PDP

administration to a group of former employees who were protesting

at the mansion. The complaint also states that Blanco openly

acknowledged to the press that some of the terminated employees

would be replaced.

As we have often emphasized, one rarely finds "smoking

gun" evidence in a political discrimination case. Lamboy-Ortiz,

630 F.3d at 240. Circumstantial evidence must, at times, suffice.

Moreover, the requirement of plausibility on a motion to dismiss

under Rule 12(b)(6) "simply calls for enough fact to raise a

reasonable expectation that discovery will reveal evidence of the

illegal [conduct]." Twombly, 550 U.S. at 556. The allegations

above plausibly show that each defendant possessed knowledge of and

shared some responsibility for the termination of employees at La

Fortaleza.4

2. Political Affiliation as a Motivating Factor in the
Termination of the Plaintiffs' Employment.

Turning to the question of discriminatory motive, we must

again conclude that the district court erred. The allegations of

the plaintiffs' complaint support the reasonable inference that the

4
As previously noted, the district court concluded that
Berlingeri's participation was adequately pled because the
plaintiffs alleged that she signed their termination letters. The
defendants do not dispute that conclusion.

-33-
defendants' decision to terminate the plaintiffs' employment was

substantially motivated by political affiliation.

We have previously explained that a politically charged

employment atmosphere "occasioned by the major political shift from

the NPP to the PDP . . . coupled with the fact that plaintiffs and

defendants are of competing political persuasions[] may be

probative of discriminatory animus." Acevedo-Diaz v. Aponte, 1

F.3d 62, 69 (1st Cir. 1993). Here, the plaintiffs have alleged

just such a case. Following the election of Governor Fortuño,

"logos and flyers allusive to the NPP and Governor Fortuño were in

full display and clear to employees at the Governor's Mansion."

The political affiliation of employees was "commonly shared and

discussed" while rumors spread concerning a list of PDP-affiliated

workers who were to be terminated. The plaintiffs alleged that the

defendants contributed to the politically charged atmosphere by

repeatedly inquiring into the political affiliation of employees

and by making disparaging comments to employees about the prior PDP

administration, including Vela's expressed intent to "clean up the

kitchen" and assertions by Vela and Berlingeri's aide that "things

had indeed changed" at La Fortaleza. Cf. Lamboy-Ortiz, 630 F.3d at

239 (holding that it was reasonable for a plaintiff to bring a

political discrimination suit against a PDP-affiliated mayor who

had made "vitriolic, anti-NPP commentary," had stated an intent to

"make [a] cleanup" of certain NPP-affiliated employees, and who was

-34-
rumored to have maintained a "list" of NPP-affiliated employees he

intended to oust).

The allegations of the complaint go well beyond this

atmospheric evidence, however. The plaintiffs alleged that they

were fired less than ten weeks after Governor Fortuño assumed

office. Although the district court is correct that temporal

proximity between the change in political administration and the

turnover of staff is not itself sufficient to satisfy a plaintiff's

burden of proof on the causation element of a political

discrimination claim, it unquestionably contributes at the motion

to dismiss stage to the reasonable inference that the employment

decision was politically motivated. See, e.g., Peguero-Moronta,

464 F.3d at 53. In contrast to their treatment, the plaintiffs

alleged that NPP-affiliated employees were promoted to high-level

trust positions following the change in administration. Similarly,

the plaintiffs alleged that their positions at La Fortaleza were

filled almost immediately by NPP-affiliated workers. We have

previously described such comparative evidence as "helpful" in

demonstrating that a particular plaintiff was targeted for his or

her political views. See Mercado-Berrios v. Cancel-Alegría, 611

F.3d 18, 24 (1st Cir. 2010).

Lastly, plaintiffs again point to the public statements

made by the defendants as an acknowledgment of the political

motivation behind the administration's employment decisions.

-35-
Blanco's alleged misstatements to the press about the reasons for

the terminations at La Fortaleza and about conducting regular

performance evaluations bolster the plaintiffs' contention that the

terminations had a discriminatory basis.5 See Acevedo-Diaz, 1 F.3d

at 68 ("[T]o the extent the reasons given by the employer at the

time of the dismissal are later proven false or frivolous, the

weight of the evidence of discriminatory animus may be enhanced.").

Similarly, viewed in the light most favorable to the plaintiffs,

Blanco's and Berlingeri's alleged disparaging remarks about the

prior PDP-affiliated administration to terminated employees, and

Governor Fortuño's press statements that "none of them voted for

him" when questioned about potential employee firings, serve to

confirm the plaintiffs' core allegation: the defendants' political

biases played a substantial role in the employment decisions at La

Fortaleza.

IV.

The cumulative weight of the plaintiffs' factual

allegations easily nudges their claim of political discrimination

"across the line from conceivable to plausible" as to each

defendant. Iqbal, 129 S. Ct. at 1951. Read as a whole, the

5
The district court concluded that, because of the nature of
their positions, the plaintiffs "were not entitled to any
explanation" for their termination and that the lack of performance
evaluations was not "relevant" to the claim. We disagree. The
lack of any plausible alternative justification for the plaintiffs'
terminations makes the inference of political discrimination from
the facts alleged more reasonable.

-36-
plaintiffs' complaint unquestionably describes a plausible

discriminatory sequence that is all too familiar in this circuit.

See, e.g., Peñalbert-Rosa, 631 F.3d 592 (suit against newly elected

governor brought by receptionist at public building within La

Fortaleza); Vazquez Rios v. Hernandez Colon, 819 F.2d 319 (1st Cir.

1987) (suit against newly elected governor and administrator for

political discrimination against domestic workers at La Fortaleza);

see generally Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 126

(1st Cir. 2004) ("With each change in administration . . . the

federal district courts in Puerto Rico are flooded with hundreds of

political discrimination cases, many of which are appealed.").

Under the Federal Rules, no more is required to "unlock

the doors of discovery" for these plaintiffs. See Iqbal, 129 S.

Ct. at 1950. Although discovery may reveal facts that belie the

plaintiffs' claim, that possibility does not negate its

plausibility. See Sepúlveda-Villarini, 628 F.3d at 30. "[I]t is

simply a reminder that plausibility of allegations may not be

matched by adequacy of evidence." Id.

We therefore vacate the portion of the district court's

order dismissing the plaintiffs' political discrimination claim and

supplemental Commonwealth law claims, and the case is hereby

remanded. Costs are awarded to the appellants.

So ordered.

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