Rivera-Garca et al v. Sprint PCS Caribe et al

Filing 29

OPINION AND ORDER granting 11 Motion to Dismiss; granting 12 Motion to Dismiss; granting 19 Motion for Judgment on the Pleadings; denying 22 Motion to Dismiss; granting 24 Motion to Dismiss; granting in part and denying in part 25 Motion for Judgment on the Pleadings. Signed by Judge Juan M Perez-Gimenez on 7/14/2010. (PMA)

Rivera-Garcia et al v. Sprint PCS Caribe et al

Doc. 29

UNITED STATES DISTRICT COURT FOR THE D I S T R I C T OF PUERTO RICO W A N D A RIVERA-GARCIA, Plaintiff, v. S P R I N T PCS CARIBE, ET AL., Defendants. CIV. NO. 09-1813 (PG)

OPINION AND ORDER P e n d i n g before the Court are several motions to dismiss and motions for j u d g m e n t on the pleadings filed by the parties. The first is a motion to dismiss (Docket No. 11) filed by the Conjugal Partnerships composed by

d e f e n d a n t Juan Rodriguez and his wife Kydiam Castillo and defendant Evelyn D a v i l a and her husband Jose Luis Velez. Defendants Sprint PCS Caribe, Patricia E a v e s , Juan Rodriguez and Evelyn Davila have also filed two motions for j u d g m e n t on the pleadings (Docket No. 19; Docket No. 24). Finally, the p l a i n t i f f has entered a motion requesting the voluntary dismissal of the c l a i m s against co-defendant Efren Pagan and Conjugal Partnership Pagan-Eaves ( D o c k e t No. 12) and a motion for partial voluntary dismissal without prejudice ( D o c k e t No. 22). I. BACKGROUND On August 17, 2009, plaintiff Wanda Rivera-Garcia ("Rivera" or

" P l a i n t i f f " ) filed the instant claim against defendants Sprint PCS Caribe ( " S p r i n t " ) and Sprint Nextel Corporation; Patricia Eaves ("Eaves") and the Conjugal Partnership Pagan-Eaves1 ; Juan O. Rodriguez ("Rodriguez") and

C o n j u g a l Partnership Rodriguez-Castillo; Evelyn Davila ("Davila") and Conjugal P a r t n e r s h i p Velez-Davila. See Complaint, Docket No. 1. In her complaint, the P l a i n t i f f seeks redress for the alleged sexual harassment, sex discrimination, r e t a l i a t i o n , hostile work environment, unlawful employment termination, and o t h e r discriminatory practices she was subjected to during the course of her e m p l o y m e n t with Sprint. Id. Rivera alleges defendants' actions violated Title

1 Plaintiff Rivera has moved for voluntary dismissal of her claims against codefendants Efren Pagan and Conjugal Partnership Pagan-Eaves. See Docket No. 12. Her request is thus GRANTED and partial judgment dismissing the claims against the named defendants with prejudice shall be entered accordingly.

Dockets.Justia.com

CIV. NO. 09-1813 (PG)

Page 2

V I I of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e, et seq. ("Title V I I " ) ; Puerto Rico's sexual harassment statute, Law No. 17 of April 22, 1988 ( " L a w No. 17"), P.R. LAWS ANN. tit. 29, § 155a, et seq.; Puerto Rico's wrongful t e r m i n a t i o n statute, Law No. 80 of May 30, 1976 ("Law No. 80"), P.R. LAWS ANN. t i t . 29, § 185, et seq.; Puerto Rico's retaliation statute, Law No. 115 of D e c e m b e r 20, 1991 ("Law No. 115"), P.R. LAWS ANN tit. 29, § 194, et seq.; P u e r t o Rico's anti-discrimination statute, Law No. 100 of June 30, 1959 ("Law No. 100"), P.R. LAWS ANN. tit. 29, § 146, et seq.; Puerto Rico's sex

d i s c r i m i n a t i o n statute, Law No. 69 of July 6, 1985 ("Law No. 69"), P.R. LAWS A N N . tit. 29 § 1321, et seq.; and Puerto Rico's general tort statute, Article 1 8 0 2 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, § 5141 ("Article 1802"). It is uncontested that Sprint was Rivera's employer at all times

r e l e v a n t herein. See Docket No. 6 at ¶ 2.4. Co-defendant Eaves is the General M a n a g e r of Sprint in Puerto Rico; co-defendant Rodriguez is one of Sprint's t w o (2) District Managers in Puerto Rico, see Docket No. 1 at ¶ 2.12; and, c o - d e f e n d a n t Davila is Sprint's Human Resources Manager, see id. at ¶ 2.15. I n 2001, Sprint hired Plaintiff as an Assistant Manager and she was p r o m o t e d shortly thereafter to Store Manager. It is uncontested that Rivera r e c e i v e d salary increases several times, and that among other duties, the P l a i n t i f f trained Sprint's sales personnel and managers. It is also admitted t h a t Rivera and the stores she managed received several distinctions for sales p e r f o r m a n c e . See Docket No. 6 at ¶ 3.4. O n or about January of 2004, co-defendant Rodriguez became Retail Sales M a n a g e r for Sprint, as well as Rivera's direct supervisor. According to P l a i n t i f f , from the beginning, Rodriguez's attitude towards her was offensive, h o s t i l e and unprofessional. Rivera alleges that he began a pattern of sexual h a r a s s m e n t consisting of sexual advances and innuendos. And although Rivera m a d e it clear to Rodriguez that these were unwelcome and asked him to stop, h i s unlawful behavior escalated instead. See Docket No. 1 at ¶ 3.8. Rivera a l s o alleges that she received a verbal warning about her management duties f r o m Rodriguez for the first time since she began her employment at Sprint. S e e Docket No. 1 at ¶ 3.9. According to Rivera, despite informing Davila, Sprint's Human Resources M a n a g e r , of the situation, her complaints were ignored. Plaintiff contends t h a t Rodriguez berated her for calling Human Resources and ordered her to take t w o weeks of vacation time. Upon her return, she claims he transferred her to

CIV. NO. 09-1813 (PG)

Page 3

t h e Fajardo store, which is much farther away from Rivera's home, and at the t i m e , did not have the necessary permits to operate until six months after o p e n i n g . According to Rivera, the Fajardo store did not have running water or e l e c t r i c i t y , and at one point, the store was robbed at gunpoint on December 2 0 0 4 . Rivera claims that because she did not acquiesce to Rodriguez unwelcome c o n d u c t , he continued to reprimand her for the shortcomings in the Fajardo s t o r e and the employees' complaints, which Rivera contends were not her fault. During her employment at Sprint, Rodriguez allegedly continued his u n w e l c o m e sexual advances and innuendos and made several offensive comments o f sexual nature. When Rivera rebuffed Rodriguez, he continued to reprimand h e r for situations that she claims were out of her control and which Davila b a r r e d Rivera from refuting. According to Rivera, when she inquired the nature o f the complaints against her in order to address them, Rodriguez and Davila r e f u s e d to provide any information. Rivera alleges that she eventually became a f r a i d of placing another grievance against Rodriguez, because when she did, D a v i l a failed to act upon Rivera's complaints and instead informed Rodriguez. T h i s situation eventually led to Rodriguez retaliating against Rivera. R i v e r a further alleges that her stress levels were so high that she d e v e l o p e d several physical conditions that required staying at home to rest. N o t w i t h s t a n d i n g , she claims Rodriguez barred her from taking sick leave. O n or about July 2005, Rivera was transferred to the San Patricio store, a n d to the El Escorial store thereafter. However, on or about September 28, 2 0 0 7 , Rivera was transferred again to the Fajardo store. This transfer was a l l e g e d l y once again in retaliation for not accepting Rodriguez's unwelcome s e x u a l advances. According to the allegations in the complaint, on September 29, 2007, P l a i n t i f f called co-defendant Eaves to report the situation with Rodriguez. R i v e r a left a message for Eaves, who in turn, forwarded the message to R o d r i g u e z for him to deal with the situation. Thereafter, on December 4, 2007, Rivera called Davila and requested a m e e t i n g , which was set for the next day. However, once again, Davila allegedly i n f o r m e d Rodriguez of Rivera's call. After Davila cancelled their meeting, R i v e r a called Sprint's Ethic Line on December 5, 2007 and filed a formal grievance against Rodriguez for sexual harassment. Davila then set an

a p p o i n t m e n t with Plaintiff and Eaves for December 7, 2007 wherein Rivera i n f o r m e d them of the situation. After the meeting, Rivera began reporting to a different supervisor, Ana Franco. However, over a month elapsed and

CIV. NO. 09-1813 (PG)

Page 4

P l a i n t i f f allegedly did not receive any response to the grievance she had filed. R i v e r a claims she was summoned to a meeting with Eaves on January 15, 2 0 0 7 in which she was reprimanded because of certain employee complaints a g a i n s t her. However, Eaves allegedly refused to say which employees had purportedly complained against Rivera, or the nature of their alleged

c o m p l a i n t s . Rivera was then issued a final warning and warned that she would b e fired if there was one more complaint against her. On February 1, 2008, Plaintiff was assigned to the Catalinas Mall store i n Caguas, Puerto Rico and continued to be supervised by Ana Franco. However, o n February 20, 2008, Rivera received a call ordering her to report to S p r i n t ' s headquarters, where Eaves and Franco summarily fired Rivera. A c c o r d i n g to Plaintiff, a timely charge of employment discrimination on t h e basis of sex discrimination, sexual harassment and retaliation was filed w i t h Puerto Rico Department of Labor's Anti-Discrimination Unit ("ADU"), which n o t i f i e d of it to the Equal Employment Opportunity Commission ("EEOC") on June 5 , 2008. See Docket No. 1 at ¶ 14. On May 25, 2009, Rivera received her Notice o f Right to Sue from the EEOC, issued on May 20, 2009. On August 17, 2009, Plaintiff filed the instant claim and on October 16, 2 0 0 9 , defendants Sprint, Davila, Eaves and Rodriguez answered the complaint ( D o c k e t No. 6). Shortly after, on October 30, 2009, defendants Conjugal P a r t n e r s h i p Rodriguez-Castillo and Conjugal Partnership Doe-Davila filed the p e n d i n g motion to dismiss (Docket No. 11) requesting that the claims against t h e conjugal partnerships be dismissed. The Plaintiff opposed said motion, but a l s o requested that the claims against co-defendants Efren Pagan and Conjugal P a r t n e r s h i p Pagan-Eaves be voluntarily dismissed. See Docket No. 12. Then, on F e b r u a r y 9, 2010, the defendants filed a motion for judgment on the pleadings ( D o c k e t No. 19) requesting that the claims pursuant to Article 1802 be dismissed response, against the all defendants filed a inasmuch motion for as they are time-barred. In

Plaintiff

partial

voluntary

dismissal

r e q u e s t i n g that her tort-based claims pursuant to Article 1802 be dismissed w i t h o u t prejudice. See Docket No. 22. The defendants replied opposing the d i s m i s s a l without prejudice of these claims and reiterating their request for d i s m i s s a l of the claims against the conjugal partnerships. See Docket No. 24. O n April 22, 2010, the individual defendants, namely, Eaves, Rodriguez and D a v i l a , filed a motion for judgment on the pleadings requesting that the Title V I I and Law No. 80 claims against them be dismissed and that the Plaintiff be

CIV. NO. 09-1813 (PG)

Page 5

o r d e r e d to reimburse them the fees incurred in the filing of this motion. See D o c k e t No. 25. This motion remains unopposed. II. STANDARD OF REVIEW A . Motion to Dismiss " T h e general rules of pleading require a short and plain statement of t h e claim showing that the pleader is entitled to relief. ... This short and p l a i n statement need only give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Gargano v. Liberty Intern.

U n d e r w r i t e r s , Inc., 572 F.3d 45, 48 (1st Cir.2009) (internal citations and q u o t a t i o n marks omitted). M o t i o n s to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6) are subject to the same standard of review. See Negron-Gaztambide v.

H e r n a n d e z - T o r r e s , 35 F.3d 25, 27 (1st Cir.1994). When ruling on a motion to d i s m i s s for failure to state a claim, a district court "must accept as true t h e well-pleaded factual allegations of the complaint, draw all reasonable i n f e r e n c e s therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any

c o g n i z a b l e theory." Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 ( 1 s t Cir.2009) (citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 5 0 8 (1st Cir.1998)). Courts "may augment the facts in the complaint by r e f e r e n c e to (i) documents annexed to the complaint or fairly incorporated i n t o it, and (ii) matters susceptible to judicial notice." Gagliardi v. S u l l i v a n , 513 F.3d 301, 306 (1st Cir.2008) (internal citations and quotation m a r k s omitted). "Yet [the court] need not accept as true legal conclusions f r o m the complaint or naked assertions devoid of further factual enhancement." M a l d o n a d o v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009) (citing Ashcroft v. I q b a l , 129 S.Ct. 1937, 1960 (2009)). Although a complaint attacked by a motion t o dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) "does not need d e t a i l e d factual allegations, ... , a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and

c o n c l u s i o n s , and a formulaic recitation of the elements of a cause of action w i l l not do ... ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ( i n t e r n a l citations and quotation marks omitted). Moreover, "even under the liberal pleading standard of Federal Rule of C i v i l Procedure 8, the Supreme Court has ... held that to survive a motion to dismiss, a complaint must allege a plausible entitlement to relief."

R o d r i g u e z - O r t i z v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (citing

CIV. NO. 09-1813 (PG)

Page 6

T w o m b l y , 550 U.S. 544 (2007)). "A claim has facial plausibility when the p l a i n t i f f pleads factual content that allows the court to draw the reasonable i n f e r e n c e that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is, "[f]actual

a l l e g a t i o n s must be enough to raise a right to relief above the speculative l e v e l , ... , on the assumption that all the allegations in the complaint are true (even if doubtful in fact)...." Twombly, 550 U.S. at 555 (internal

c i t a t i o n s and quotation marks omitted). "Determining whether a complaint s t a t e s a plausible claim for relief will ... be a context-specific task that r e q u i r e s the reviewing court to draw on its judicial experience and common s e n s e . " Iqbal, 129 S.Ct. at 1950. B . Motion for Judgment on the Pleadings R u l e 12(c) of the Federal Rules of Civil Procedure states that, "[a]fter t h e pleadings are closed-but early enough not to delay trial-a party may move f o r judgment on the pleadings." "The standard for evaluating a motion to d i s m i s s is the same as that for a motion for judgment on the pleadings." R e m e x c e l Managerial Consultants, Inc. v. Arlequín, 583 F.3d 45, 49 n. 3 (1st C i r . 2 0 0 9 ) ; see also Marrero-Gutiérrez v. Molina, 491 F.3d 1, 5 (1st Cir.2007). Therefore, "[t]he trial court must accept all of the nonmovant's well-pleaded f a c t u a l averments as true, and draw all reasonable inferences in his favor." Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir.2005) (quoting

R i v e r a - G ó m e z v. de Castro, 843 F.2d 631, 635 (1st Cir.1988)). "[T]o survive a motion to dismiss (or a motion for judgment on the pleadings), the complaint m u s t plead facts that raise a right to relief above the speculative level, ... , s u c h that the entitlement to relief is plausible ... ." Citibank Global Markets, I n c . v. Rodriguez Santana, 573 F.3d 17, 23 (1st Cir.2009) (internal citations omitted). I I I . DISCUSSION A . Title VII and Law No. 80 Claims against Individual Defendants D e f e n d a n t s Eaves, Rodriguez and Davila request the dismissal of the T i t l e VII and Law No. 80 claims against them. See Docket No. 25. This motion s t a n d s unopposed. As properly set forth by the defendants, the First Circuit Court of A p p e a l s has held that "Title VII does not create liability against individual e m p l o y e e s . " Agusty-Reyes v. Dept. of Educ. of Puerto Rico, 601 F.3d 45, 47 n . 1 (1st Cir.2010) (citing Fantini v. Salem State Coll., 557 F.3d 22, 28-31 ( 1 s t Cir.2009)). And with regards to Plaintiff's claim of wrongful discharge

CIV. NO. 09-1813 (PG)

Page 7

p u r s u a n t to Law No. 80, this Court has previously held that "there is no i n d i v i d u a l supervisor liability under the local wrongful discharge statute, L a w No. 80." Rivera Maldonado v. Hospital Alejandro Otero Lopez, 614 F.Supp.2d 1 8 1 , 197 (D.P.R. 2009) (internal citations omitted). In addition to their request for dismissal of these claims, the

i n d i v i d u a l defendants move this Court to order Plaintiff to pay the attorney f e e s incurred in the filing of this motion. See Docket No. 25 at page 5-6. According to the appearing defendants, their attorney sent a letter to

P l a i n t i f f ' s attorney requesting that Plaintiff file a motion for voluntary d i s m i s s a l of her claims under Title VII and Law No. 80 against the individual d e f e n d a n t s inasmuch as these were without merit. Plaintiff's attorney was also a d v i s e d as to defendants' intention to file a request for attorney's fees if P l a i n t i f f refused to comply with their request. See id. The Court, under certain conditions, may impose an appropriate sanction u p o n the attorney, law firm, or party that has violated subdivision (b) of F e d e r a l Rule of Civil Procedure 11. "Rule 11(b) proscribes not only written arguments made with any improper purpose, but also advancing frivolous

a r g u m e n t s , as well as the assertion of factual allegations without evidentiary s u p p o r t or the likely prospect of such support." Rivera-Feliciano v. State I n s . Fund Corp., 652 F.Supp.2d 170, 187 (D.P.R. 2009) (quoting Citibank Global M a r k e t s , Inc. v. Rodriguez Santana, 573 F.3d 17, 32 (1st Cir.2009)). The First C i r c u i t Court of Appeals has held that Rule 11(b) is not a strict liability p r o v i s i o n and a showing of at least culpable carelessness is required before a violation of the Rule can be found. See Citibank Global Markets, Inc., 573 F . 3 d at 32 (internal citations omitted). The First Circuit has also been " c a r e f u l to make clear that the mere fact that a claim ultimately proves u n a v a i l i n g , without more, cannot support the imposition or Rule 11 sanctions." Id. Moreover, pursuant to Rule 11, "[a] motion for sanctions must be made s e p a r a t e l y from any other motion and must describe the specific conduct a l l e g e d to violate subdivision (b)." FED.R.CIV.P. 11(c)(2). Rule 11 also c o n t a i n s a "safe harbor" provision that requires movants to first serve the o p p o s i n g counsel or party with the motion for sanctions in accordance with R u l e 5, and only present such motion to the court if the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or

a p p r o p r i a t e l y corrected within 21 days after service of the motion. See id. " [ T ] h e object of the safe harbor is to allow a party to privately withdraw a

CIV. NO. 09-1813 (PG)

Page 8

q u e s t i o n a b l e contention without fear that the withdrawal will be viewed by the c o u r t as an admission of a Rule 11 violation." Young v. City of Providence ex r e l . Napolitano, 404 F.3d 33, 39 (1st Cir.2005). With the above-stated standards in mind, this Court finds that although d e f e n d a n t s here may have a valid claim for sanctions, they failed to follow t h e procedures specified in Rule 11. See Lancaster v. Zufle, 170 F.R.D. 7 ( S . D . N . Y . 1 9 9 6 ) (letter sent by defendant's counsel to plaintiff's counsel, which requested that plaintiff consider withdrawing lawsuit, was not

e q u i v a l e n t of compliance with Rule 11's safe harbor provision, since the plain l a n g u a g e of rule expressly requires serving of formal motion). In addition to n o t properly serving Plaintiff with the required motion, the form of their r e q u e s t is also defective. Defendants merely inserted their request for s a n c t i o n s in their motion to dismiss instead of serving Plaintiff with a s e p a r a t e motion for sanctions and then filing it twenty-one (21) days later w i t h the Court. Because defendants failed to comply with the "safe harbor" p r o v i s i o n in Rule 11, their request for sanctions is hereby DENIED. See Esso S t a n d a r d Oil Co. v. Rodriguez Perez, No. 01-2012, 2005 WL 114080 at *10 ( D . P . R . Jan. 20, 2005) (failure to comply with the safe harbor provision j u s t i f i e s denial of the motion for sanctions). Accordingly, the individual defendants' motion to dismiss (Docket

N o . 25) is hereby GRANTED IN PART AND DENIED IN PART, and thus, the claims u n d e r Title VII and Law No. 80 against the individual defendants are hereby D I S M I S S E D WITH PREJUDICE. B . Article 1802 Claim Defendants Sprint, Eaves, Rodriguez and Davila filed a motion for

j u d g m e n t on the pleadings requesting that the damages claim against them p u r s u a n t to Article 1802 be dismissed inasmuch as it is time barred. See D o c k e t No. 19. In response, the Plaintiff filed a motion for voluntary d i s m i s s a l without prejudice of this claim. See Docket No. 22. The moving d e f e n d a n t s replied requesting that the dismissal be with prejudice instead, s e e Docket No. 24, and this Court agrees. The statute of limitations for tort actions pursuant to Article 1802 is o n e year. See P.R. LAWS ANN. tit. 31, § 5298; see also Arturet Velez v. R.J. R e y n o l d s Tobacco Co., 429 F.3d 10, 12 (1st Cir.2005). The one year period b e g i n s to run once "the claimant is on notice of her claim; that is, notice o f the injury, plus notice of the person who caused it." Id. at 14. (internal q u o t a t i o n s omitted); see also Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13

CIV. NO. 09-1813 (PG)

Page 9

( 1 s t Cir. 1997). However, "the Supreme Court of Puerto Rico has ruled that the f i l i n g of an administrative complaint will not toll the running statute of l i m i t a t i o n s for tort actions nor violations of constitutional rights, provided that an administrative agency, such as the ... EEOC, does not possess

j u r i s d i c t i o n over such matters." Sanchez Ramos v. Puerto Rico Police Dept., 3 9 2 F.Supp.2d 167, 181 (D.P.R. 2005) (quoting Cintron v. E.L.A., 127 P.R. Dec. 5 8 2 , 595 (1990); Delgado Rodriguez v. Nazario, 121 P.R. Dec. 347 (1988); L e o n - N o g u e r a s v. Univ. of Puerto Rico, 964 F.Supp. 585, 588-89 (D.P.R. 1997)). S e e also Vazquez Vazquez v. Checkpoint Systems of Puerto Rico, Inc., 609 F . S u p p . 2 d 217, 222 (D.P.R. 2009). In the instant case, the last act complained of by the Plaintiff took p l a c e on the day of her allegedly illegal termination on February 20, 2008. A f t e r filing the corresponding administrative claims, she filed a complaint b e f o r e this Court on August 17, 2009. In accordance with the applicable c a s e l a w , the filing of administrative charges did not toll the one-year s t a t u t e of limitations. Since Plaintiff filed the present claim approximately a year and a half after her discharge from Sprint, at which time she clearly h a d knowledge of her injury, her tort claim under Article 1802 is untimely f i l e d . Therefore, Plaintiff's motion for voluntary dismissal without prejudice ( D o c k e t No. 22) is DENIED, and the moving defendants' motion for judgment on the pleadings and motion to dismiss (Dockets No. 19, 24) are GRANTED.

C o n s e q u e n t l y , Rivera's Article 1802 claim is DISMISSED WITH PREJUDICE. C. Claims against Conjugal Partnerships In their motion and to dismiss, co-defendants request the Conjugal of Partnerships the claims

Rodriguez-Castillo

Velez-Davila

dismissal

a g a i n s t them inasmuch as the statutes pursuant to which the complaint is filed do not allow for claims against the individual defendants' conjugal

p a r t n e r s h i p s . See Docket No. 11. The Plaintiff opposed this request arguing t h a t the Conjugal Partnerships were not brought to this action as individual defendants but only to the extent that the sued spouses' capital is

i n s u f f i c i e n t to satisfy any judgment entered; therefore, Rivera claims they a r e indispensable parties to this claim and their dismissal would be improper. S e e Docket No. 12. "The conjugal partnership is an entity entirely distinct from the

s p o u s e s constituting it." Quinones Lopez v. Manzano Pozas, 141 P.R. Dec. 139, 1 6 6 (1996) (internal citations omitted). The Puerto Rico Civil Code provides t h a t the payment of fines or of pecuniary penalties imposed on one of the

CIV. NO. 09-1813 (PG)

Page 10

s p o u s e s shall not be borne by the conjugal partnership. See P.R. LAWS ANN. t i t . 31, § 3663. "This is so because fines - economic sanctions imposed for t h e commission of public offenses - are personal in nature and should be paid b y the convicted or fined spouse and not by the conjugal partnership ... ." Q u i n o n e s Lopez, 141 P.R. Dec. at 167 (internal citations omitted). "However, in civil extracontractual liability (tort) cases, liability s h a l l be borne personally by the spouse or by the conjugal partnership, a c c o r d i n g to the facts giving rise to the same." Id. (internal citations o m i t t e d ) . For example, "[t]he conjugal partnership could be held liable for t h e individual actions of one spouse when the particular facts of the case show that said spouse's activity resulted in an economic gain for the

p a r t n e r s h i p . " Id. at 167-168 (internal citations omitted). It thus follows t h a t the conjugal partnership is not liable for the damage caused by one of i t s members in actions where the partnership reaps no gain. Notwithstanding, t h e r e ' s an exception to this rule: "in the event the defendant spouse does not h a v e enough assets to provide indemnification or assets are insufficient, suit c a n be brought against the assets of the conjugal partnership." Id. at 169. " I n these cases, the conjugal partnership's liability is subsidiary, coming i n t o play only after the private assets of the legally responsible spouse are e x h a u s t e d . " Id. at 170. The question thus is whether or not the individual defendants' actions i n this case did or did not represent a financial gain or benefit for their r e s p e c t i v e partnerships. In Rosario-Toledo v. Distribuidora Kikuet, Inc., 151 P.R. Dec. 634, 6476 4 8 (2001), the Supreme Court of Puerto Rico held that Laws No. 17, 69 and 100 p r o v i d e for the imposition of individual liability upon any agent, official, a d m i n i s t r a t o r or supervisor who is responsible for the illegal conduct in the w o r k p l a c e . The Court also found that despite the fact that the individual d e f e n d a n t ' s acts of sexual harassment took place during his employment, and h i s employment benefitted the conjugal partnership, it was clear that the i n d i v i d u a l defendant's intentional acts of harassment were not for the benefit o f the conjugal partnership. Id. at 647-648. Consequently, the Court held that a conjugal partnership does not respond for the damages caused by one of the p a r t n e r s who commits acts of sexual harassment. See id. at 648. Therein, the Supreme Court also stated that, in such a case, a conjugal p a r t n e r s h i p ' s responsibility is subsidiary to that of the responsible spouse, a n d only if it's established that the conjugal partnership has sufficient

CIV. NO. 09-1813 (PG)

Page 11

a s s e t s to pay for its own debts and obligations, and in any case, once a final j u d g m e n t is entered against the responsible spouse. See id. At the execution of judgment stage, the innocent s p o u s e has the right to be included in the motion for e x e c u t i o n of judgment, to be served with said motion, a n d to be heard in order to protect his/her rights and t h o s e of the conjugal partnership prior to a judicial d e t e r m i n a t i o n as to whether the responsible spouse has i n s u f f i c i e n t assets to pay for the judgment entered a g a i n s t him/her and the conjugal partnership possesses e n o u g h assets to cover its own debts and obligations. I d . at 648 (translation ours). Therefore, in accordance with the foregoing, this Court finds that the proper stage wherein to include the responsible party's spouse in

r e p r e s e n t a t i o n of the conjugal partnership is the execution of judgment stage o n c e , and if, the sued spouse is found responsible for the alleged wrongdoing p u r s u a n t to Puerto Rico anti-discrimination laws. 2 See also Mejias Miranda v. B B I I Acquisition Corp., 120 F.Supp.2d 157, 172 (D.P.R. 2000) (holding conjugal p a r t n e r s h i p ' s assets will not be found liable for damages caused by one of the p a r t n e r s under Puerto Rico anti-discrimination laws and thus dismissing claims a g a i n s t it). Consequently, Conjugal Partnerships Rodriguez-Castillo and Velez-Davila m o t i o n to dismiss (Docket No. 11) is GRANTED and the claims asserted against t h e m are hereby DISMISSED WITHOUT PREJUDICE. I V . CONCLUSION For the reasons stated above, the Court reaches the following

conclusions: Plaintiff's motion for voluntary dismissal of claims against

c o - d e f e n d a n t Efren Pagan and Conjugal Partnership Pagan-Eaves (Docket No. 12) i s GRANTED, and thus, these claims are DISMISSED WITH PREJUDICE; Eaves, Davila and Pagan's motion to dismiss (Docket No. 25) is hereby G R A N T E D IN PART AND DENIED IN PART, and thus, the claims under Title VII and L a w No. 80 against them are hereby DISMISSED WITH PREJUDICE; Plaintiff's motion for voluntary dismissal without prejudice (Docket N o . 22) is DENIED, and the defendants' motion for judgment on the pleadings

2 The Court notes that Plaintiff's Title VII and Law No. 80 have already been dismissed against all individual defendants, as well as the Article 1802 claim; therefore, the issue now being discussed is moot as to these claims. As a result, the only remaining claims against the individual defendants and, thus, their respective Conjugal Partnerships are the claims pursuant to Puerto Rico Laws No. 17, 69, 100 and 115.

CIV. NO. 09-1813 (PG)

Page 12

a n d motion to dismiss (Dockets No. 19, 24) are GRANTED. Consequently, Rivera's A r t i c l e 1802 claim is DISMISSED WITH PREJUDICE; C o n j u g a l Partnerships Rodriguez-Castillo and Velez-Davila motion to d i s m i s s (Docket No. 11) is GRANTED, and thus, the claims asserted by Plaintiff a g a i n s t them are hereby DISMISSED WITHOUT PREJUDICE. Remaining before the Court are the Title VII and the Puerto Rico Laws No. 17, 6 9 , 80, 100 and 115 claims against Sprint and the Puerto Rico Laws No. 17, 69, 1 0 0 and 115 claims against Eaves, Davila and Pagan. I T IS SO ORDERED. I n San Juan, Puerto Rico, July 14, 2010.

S / JUAN M. PEREZ-GIMENEZ J U A N M. PEREZ-GIMENEZ U . S . DISTRICT JUDGE