De-Jesus-Sanchez v. C.P.G. Ashford Avenue, L.P.S.E. et al
Filing
35
OPINION AND ORDER - DENYING 26 Motion for Summary Judgment. Counsel for plaintiff is sanctioned the expenses/attorney's fees incurred in relation to this motion. Defendants' motion for costs/attorney's fees due by 4/20/2011. Signed by Judge Carmen C. Cerezo on 4/15/2011. (mmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RAMON DE JESUS
Plaintiff
vs
CIVIL 09-1665CCC
C.P.G. ASHFORD AVENUE, L.P., S.E.;
RADISSON AMBASSADOR PLAZA
HOTEL & CASINO
Defendants
OPINION AND ORDER
Following the entry of a Partial Judgment,1 the remaining claims in this action, alleging
retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §2000e-5, and unlawful discharge
under Puerto Rico Law 80, are now before us on defendants’ Motion for Summary Judgment
(docket entry 26). It is defendants C.P.G. Ashford Avenue, L.P., S.E. and Radisson
Ambassador Plaza Hotel and Casino’s (jointly referred to as CPG) contention that plaintiff
has failed to state a cause of action for retaliation under Title VII. Plaintiff Ramón de Jesús
opposed the motion (docket entry 32).
De Jesús contends that he was the victim of defendants’ retaliation for his having filed
a previous lawsuit, in 2003,based on disability discrimination under Section 107(a) of the
Americans with Disabilities Act (ADA) against them (¶ 1 at page 1). Nonetheless, he filed
this complaint under Title VII, which addresses discrimination based on race, color, sex,
1
Additional claims under the Age Discrimination in Employment Act (ADEA),
29 U.S.C. §621, et seq., and Puerto Rico Law 100, 129 L.P.R.A. §146, et seq., were
voluntarily dismissed with prejudice. See, docket entry 24.
CIVIL 09-1665CCC
2
national origin, or religion, and which does not provide a cause of action for disability
retaliation.
In his memorandum in support (docket entry 31), de-Jesús argues, at page 8:
After examining Defendants arguments and the “Pro Se”
complaint filed by Plaintiff on July 14, 2009 in the above instant
case, it is obvious that Plaintiff erroneously cited the
anti-retaliation statute Title VII when he stated his claim as
“retaliation pursuant to the provisions of Title VII of the Civil
Rights Act of 1964, codified as 42 U.S.C. § 2000c-(5)(f)(1)
(“Title VII”), when properly pleaded, it should have been
asserted under the provisions of the Americans with Disabilities
Act (“ADA”).
(Emphasis in the original.) Plaintiff also states that “as a pro se plaintiff, [he] is entitled to
have his complaint ‘liberally construed’” and that the Court should be even more flexible and
liberal because a pro se complaint is held “to less stringent standards than formal pleadings
drafted by lawyers.” Plaintiff’s opposition, page 9 (citations omitted).
De-Jesús, however, is not a pro se plaintiff. Although he filed his complaint pro se
on July 14, 2009, attorney Manual Durán-Rodríguez entered an appearance on his behalf
on December 30, 2009 (docket entry 8), and represented him through August 6, 2010
(docket entry 18), after which his current attorney, Carlos González-Contreras, entered his
appearance on September 1, 2010 (docket entry 19). Additionally, his first attorney in this
action, Durán-Rodríguez, is the same attorney who represented de-Jesús for almost five (5)
years in the 2003 lawsuit, and who successfully negotiated a settlement of that case in April,
2008, only four (4) months before plaintiff filed the first administrative charge supporting this
action. Therefore, de-Jesús’ first attorney was very familiar with his employment situation
CIVIL 09-1665CCC
3
and the factual allegations engendering this action. Either of his attorneys should have
discovered the error and moved to amend the pro-se complaint. Nonetheless, neither
Durán-Rodríguez nor González-Contreras did so. Nor was the error admitted by plaintiff
fifteen (15) months later at the October 15, 2010 pretrial conference when defendants
insisted that plaintiff had not pled a retaliation claim under Title VII. Instead, plaintiff argued
against the defendants’ position, for which reason the Court allowed the late filing of this
summary judgment motion, stating :
Defendants are granted until October 29, 2010 to file a Motion
for Summary Judgment based on the contention that plaintiff did
not engage in protected activity, for purposes of a Title VII
retaliation claim, because he did not oppose a practice made
unlawful by Title VII nor did he participate in an investigation or
proceeding under Title VII when he filed his 2003 complaint nor
at any time thereafter.
Plaintiff shall file his opposition by November 12, 2010.
The Court has now allowed this late filing of a dispositive
motion, although the late filing was previously denied, since
adjudication of this matter is essential before proceeding on to
trial.
Pretrial Conference Minutes (docket entry 23) (our emphasis).
This situation resulted in vacating the December 7,2010 trial setting. It was not until
he filed the opposition that plaintiff finally admitted that he had erred by invoking Title VII.
He correctly contends that, this notwithstanding, his factual allegations support a retaliation
claim under ADA and that he had previously filed administrative claims against defendants
for such conduct.
Defendants’ acknowledge in their statement of uncontested material facts (docket
entry 27), at ¶¶ 8-10, that plaintiff’s administrative claims were made pursuant to the ADA.
CIVIL 09-1665CCC
4
Therefore, notwithstanding plaintiff’s failure to timely correct the error, defendants have
known, since notification of the administrative charges, the actual cause of action against
them based on retaliation under the ADA. They have not been prejudiced by this error.
Accordingly, the defendants’ Motion for Summary Judgment (docket entry 26) is
DENIED.
However, the negligence of plaintiff’s attorney in not requesting leave of Court to
correct this error, even after its discussion at the Pretrial Conference, has resulted in an
unnecessary delay of the proceedings and in the expense to defendants incurred in the
preparation and filing of this motion for summary judgment. Therefore, Carlos GonzálezContreras, attorney for plaintiff, is hereby sanctioned the expenses and attorney’s fees
incurred by the defendants related to this motion. Defendants shall file, no later than
April 20, 2011, a motion for costs and attorney’s fees with supporting documentation.
SO ORDERED.
At San Juan, Puerto Rico, on April 15, 2011.
S/CARMEN CONSUELO CEREZO
United States District Judge
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