Montas v. 3M Puerto Rico, Inc.

Filing 27

OPINION AND ORDER GRANTING in part and DENYING in part 11 Motion to Dismiss. Signed by Judge Salvador E Casellas on 8/7/2009.(THD)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO L O U R D E S M. MONTAS Plaintiff v. C iv il No. 09-1142 M I N N E S O T A MINING & M A N U F A C T U R I N G , et al D e f e n d a n ts

O P I N IO N & ORDER P e n d in g before this Court is Co-defendants Belmiro Montaldi ("Montaldi"), his wife, and th e ir conjugal partnership's Motion to Dismiss (Docket # 11) pursuant to FED. R. CIV. P. 1 2 (b )(6 ), and Plaintiff's opposition thereto. After reviewing the filings, and the applicable law, D e f e n d a n t's motion to dismiss will be DENIED without prejudice. Factual Background Plaintiff, Lourdes M. Montas ("Montas"), a Dominican national, filed the current c o m p la in t on February 13th, 2009 alleging that, in essence, Co-defendants Minnesota Mining

17 18 19 20 21 1 0 0 " ). 22 23 24 25 26 The events giving rise to the present lawsuit started when Plaintiff was transferred to P u e rto Rico as a regular employee of 3M Puerto Rico, Inc. on January 10, 2005. Then, during th e month of February, 2006, the company promoted her to Caribbean Finance Manager. See & Manufacturing, 3M Puerto Rico, Inc., Montaldi, his wife, and the Conjugal Partnership they re p re s e n t (collectively "Defendants"), discriminated against her in violation of Title VII of the C iv il Rights Act of 1964 ("Title VII"), and Puerto Rico Law No. 100, 29 L.P.R.A. § 146 ("Law

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D o c k e t # 1 at 2. However, Plaintiff alleges that as soon as she arrived in Puerto Rico she began to experience harassment and inappropriate comments based on her national origin. N e v e rth e le s s , she continued to work with the company. On February 12, 2007, she gave birth to her fourth son. Id. at 3. She alleges that, after her maternity leave, the company's managers c re a te d a hostile work environment for her, and informed her she would lose her job. Id. at 4.

9 10 11 12 13 A n ti-D is c rim in a tio n Unit and the Equal Employment Opportunity Commission ("EEOC"). On 14 15 16 17 18 19 d ism is s e d . 20 21 22 23 24 25 26 FED. R. CIV. P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to allow the defendant fair notice of what the claim is and the
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E v e n tu a lly, on July 23, 2007, the company terminated her employment. Id. Seeking redress for what she sees as a discriminatory firing, Plaintiff filed a claim on M a y 6, 2009, before the Commonwealth of Puerto Rico's Department of Labor's

S e p te m b e r 4, 2009, the EEOC issued a first right-to-sue letter, which Plaintiff alleges never h a v in g received. A second right-to-sue letter was then issued by the agency on December 24, 2 0 0 8 . Defendants' motion to dismiss argues that Plaintiff presented her claim after the 90 day s ta tu te of limitations of limitations period had run out, and that this action should therefore be

Standard of Review To survive a Rule 12(b)(6) motion, Plaintiffs' "well-pleaded facts must possess enough h e f t to show that [they are] entitled to relief." Clark v. Boscher, 514 F. 3d 107, 112 (1st Cir. 2 0 0 8 ).1 In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all

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o f their "well-pleaded facts [and indulge] all reasonable inferences therefrom" in the plaintiff's f a v o r. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). The First Circuit has held th a t "dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual a lle g a tio n s , either direct or inferential, respecting each material element necessary to sustain re c o v e ry under some actionable legal theory." Gagliardi v. Sullivan, 513 F. 3d 301, 305(1st Cir. 2 0 0 8 ). Courts "may augment the facts in the complaint by reference to documents annexed to th e complaint or fairly incorporated into it, and matters susceptible to judicial notice." Id. at 3 0 5 -3 0 6 . However, in judging the sufficiency of a complaint, courts must "differentiate b e tw e e n well-pleaded facts, on the one hand, and `bald assertions, unsupportable conclusions, p e rip h ra s tic circumlocution, and the like,' on the other hand; the former must be credited, but th e latter can safely be ignored." LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (quoting A u ls o n v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F. 3d 2 9 , 33 (1st Cir. 2007); see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Thus P la in tif f s must rely in more than unsupported conclusions or interpretations of law, as these will b e rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil C o rp ., 851 F.2d 513, 515 (1st Cir. 1988)). Therefore, "even under the liberal pleading standards of Federal Rule of Civil Procedure 8 , the Supreme Court has recently held that to survive a motion to dismiss, a complaint must a lle g e `a plausible entitlement to relief.'" Rodríguez-Ortíz v. Margo Caribe, Inc., 490 F.3d 92 (1 st Cir. 2007) (citing Twombly, 127 S. Ct. at 1965). Although complaints do not need detailed f a c tu a l allegations, the "plausibility standard is not akin to a `probability requirement,'but it

grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).

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a s k s for more than a sheer possibility that a defendant has acted unlawfully." Twombly, 127 S . Ct. At 1965; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff's obligation to "provide the `grounds' of his `entitle[ment] to relief' requires more than labels and c o n c lu s io n s , and a formulaic recitation of the elements of a cause of action will not do." T w o m b ly, 127 S. Ct. At 1965. Namely, "factual allegations must be enough to raise a right to re lie f above the speculative level, on the assumption that all allegations in the complaint are tru e ." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008). Applicable Law and Analysis Pursuant to 42 U.S.C.A. § 2000e-5(e)(1), a Title VII plaintiff must exhaust all pertinent a d m in is tra tiv e remedies within the 300 days following the conduct complained of, and prior to f ilin g suit in federal court. Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 113, 119 (1st C ir. 2009); see also Lawton v. State Mut. Life Assur. Co. of America, 101 F. 3d 218, 221 (1 st C ir. 1996); Bonilla v. Muebles J.J. Alvarez, 194 F. 3d 275, 278 (1st Cir. 1999). Moreover, a T itle VII plaintiff, such as Montas, must then file suit within 90 days of her actual receipt of th e right-to-sue letter issued by the EEOC. See id.; 42 U.S.C.A. 2000 e-5(f)(1); Chico-Vélez v. R o c h e Products, Inc., 139 F.3d 56, 58 (1st Cir. 1998). Defendants in the present action allege th a t Plaintiff failed to comply with the second requirement, by filing her complaint on February 1 3 , 2009, more than five (5) months after the EEOC issued a first right-to-sue letter on S e p te m b e r 4, 2009. Plaintiff responds that she never received the abovementioned right-to-sue letter, charge n u m b e r 515-2008-00321, issued on September 4, 2008. See Docket # 20 at 2. However, the s itu a tio n is somewhat complicated by the fact that, after filing the EEOC charge, Plaintiff m o v e d to the Dominican Republic, although she alleges that her husband continued to pick up

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th e mail regularly at her old address in Puerto Rico. Id. Nevertheless, Defendants aver, Plaintiff a d m its , and this Court agrees that there is a presumption that the EEOC mails a right-to-sue le tte r on the day of its issuance, and that the claimant receives said letter within three days of its mailing. In opposing to Defendants' motion to dismiss, Plaintiff first alleges that she is eligible f o r equitable tolling, because she moved to the Dominican Republic during the pendency of her c la im . However, equitable tolling extending a statute of limitations is limited to exceptional c irc u m s ta n c e s . Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir.2005). Therefore it should only be applied sparsely, and in cases where circumstances beyond a plaintiff's c o n tro l have defeated her own diligent efforts to pursue the cause of action. Abraham, 553 F.3d a t 19; see also Cao v. Puerto Rico, 525 F.3d 112, 115 (1st Cir.2008). Furthermore, 29 C.F.R. § 1601.7(b) requires an individual with a complaint before the EEOC to notify any change of a d d r e s s . Failure to notify a change of address constitutes grounds for rejecting an equitable to llin g claim if the plaintiff fails to receive the EEOC correspondence as a result of her change o f address. Abraham, 553 F.3d at 20. Plaintiff's second line of defense relies on certain unpublished decisions from Second C irc u it district courts, which held that an affidavit affirming that the claimant never received a first right-to-sue letter, or that said letter was delayed in the mail, can be sufficient proof that th e EEOC did not notify the claimant the 90 day period to bring suite had started to run. See, e .g ., Greenidge v.Ben Hur Moving & Storage, Inc., 2002 U.S. Dist. LEXIS 14350 (E.D.N.Y. A u g . 6, 2002); Williams v. Manhattan East Suite Hotels, 1999 U.S. Dist. LEXIS 4825 (S .D .N .Y . Apr. 12, 1999). Plaintiff has presented a similar sworn statement averring: 1) the o n ly EEOC right-to-sue letter she received was dated December, 24, 2009; 2) that said letter

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a rriv e d at her husband's address in Puerto Rico, and 3) that on March 12, 2008, her address c h a n g e d to Punta Cana, Dominican Republic, and that her previous residence in Rivera del Rio, B a ya m o n , P.R., has been rented since then. See Docket # 20-2. Plaintiff also avers, although not th ro u g h a sworn statement, that her counsel did not receive the September 4, 2008, right-to-sue le tte r either, and that said letter only referred to her charges of retaliation. See Docket 20 at 4. Despite the foregoing, this Court concludes that Plaintiff's arguments regarding her e m ig ra tio n back to the Dominican Republic are unconvincing, and thus do not merit equitable to llin g , nor are they an excuse for not receiving the right-to-sue letter. At no point has she a v e rre d that any attempt was made to inform the EEOC of her change of address. Furthermore, th e EEOC appears to have sent a carbon copy of both the September 4, 2008, and December 24, 2 0 0 9 , right-to-sue letters to Plaintiff's counsel, Luis E. Minana.. In light of the above, there is strong reason to believe that Plaintiff, and her counsel, were s e n t the September 4, 2009, right-to-sue letter, and that the 90 day period for filing a Title VII c la im began to run on September 8, 2009. However, regardless of this Court's conclusions re g a rd in g equitable tolling, a motion under Fed. R. Civ. P. 12(b)(6) is not the proper vehicle for th e relief Defendants seek. Its resolution requires a factual inquiry into the documents and each p a rty's claims. This is especially so with respect to Plaintiff's allegations that the first right-tos u e letter referred exclusively to her retaliation charge, because the documents filed provide no g u id a n c e as to this issue. Accordingly, the motion to dismiss is DENIED without prejudice, and Defendants are g ra n te d 20 days to file a motion for summary judgment in accordance with Local Rule 56, in c lu d in g the supplemental documents referred to at Docket # 23. IT IS SO ORDERED.

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In San Juan, Puerto Rico, this 7th day of August, 2009. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge