Gonzalez-Santos et al v. Torres-Maldonado et al

Filing 244

OPINION AND ORDER re 64 Motion to Dismiss; and re 203 Report and Recommendation. The Court has made an independent examination of the entire record in this case and ADOPTS IN PART AND REJECTS IN PART the magistrate judge's findings and recommendations. Defendant's motion to dismiss is GRANTED IN PART AND DENIED IN PART. Signed by Judge Francisco A. Besosa on 09/28/2011. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROSA ANGELA GONZALEZ SANTOS, et
al.,
Plaintiff,
CIVIL NO. 09-1850 (FAB)

v.
ANGEL TORRES MALDONADO, et al.,
Defendant.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is the Report and Recommendation (R&R)
(Docket No. 203), regarding defendant’s motion to dismiss the case
under Federal Rule of Civil Procedure 12(b)(6) (Docket No. 64),
which plaintiffs did not timely oppose.

Having considered the

magistrate judge’s recommendations, defendants’ objections and
opposition to plaintiff’s objections (Docket Nos. 229 & 239), and
plaintiffs’ objections (Docket Nos. 230 & 240), the Court ADOPTS IN
PART AND REJECTS IN PART the Report and Recommendation, (Docket
No. 203).
DISCUSSION
I.

Background
A.

Procedural Background
Plaintiffs Rosa Angela Gonzalez-Santos (“Gonzalez”) and

Brenda Lugo-Caraballo (“Lugo”) (collectively, “plaintiffs”) brought
a

workplace

sexual

harassment

and

retaliation

action

against

Civil No. 09-1850 (FAB)

2

defendants Instituto Medico del Norte, Inc., d/b/a Hospital Wilma
N. Vazquez (“Hospital”), Angel Torres-Maldonado (“Torres”) and his
conjugal partnership, Luis Cruz-Martinez (“Cruz”) and his conjugal
partnership,

Jose

Pabon-Quiñones

(“Pabon”)

and

his

conjugal

partnership, Eduarda Pabon, Enrique Vazquez, American International
Insurance Company (“American”) and Liberty Mutual Insurance Corp.
(“Liberty”), (collectively, “defendants”), under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the Family and Medical Leave Act (“FMLA”), as amended, 29 U.S.C.
§ 2601 et seq., and assorted Puerto Rico laws.

The operative

complaint is the fifth amended complaint, filed by plaintiffs on
March 31, 2011 (Docket No. 108), after defendants had already filed
their motion to dismiss (Docket No. 64).

Plaintiffs filed no

response to the motion to dismiss.
Pursuant
Magistrate

Judge

to

a

Bruce

referral
J.

order

McGiverin

issued

by

filed

a

the

Court,

report

and

recommendation with regard to the defendants’ motion to dismiss the
case. (See Docket Nos. 39 & 203.)

The magistrate judge recommends

that the motion be granted in part and denied in part.
No. 203.)

(Docket

Specifically, the magistrate judge recommends that the

Court should dismiss with prejudice (1) both plaintiffs’ claims
against all defendants under the First Amendment and the FMLA;
(2) both plaintiffs’ Title VII claims against the individual
defendants and their spouses and conjugal partnerships (where

Civil No. 09-1850 (FAB)

3

applicable); (3) both plaintiffs’ Article 1802 and 1803 claims; and
(4) all of Lugo’s claims under Title VII and Laws 17, 69, 100, and
115 for discrimination and for retaliation based on her second EEOC
complaint.
dismiss

The magistrate judge recommends that the Court should

without

prejudice

(1)

both

plaintiffs’

claims

under

Laws 17, 69, 100, and 115 against all defendants’ spouses and
conjugal partnerships (where applicable); (2) Gonzalez’s claims
under Laws 17, 69, and 100 against all defendants except Torres;
(3) Gonzalez’s Law 115 claims against all individual defendants
except Cruz and Torres; and (4) Lugo’s Law 115 claims against all
individual

defendants

except

Cruz

and

Torres.

Finally,

the

magistrate judge recommends that the Court deny defendants’ motion
to

dismiss

(1)

Lugo’s

VII

claims

for

“participation”

based

retaliation against the Hospital and its insurers; (2) Lugo’s
claims under Law 115 for “participation” based retaliation against
Torres, Cruz, the Hospital, and its insurers; (3) Gonzalez’s Title
VII claims against the Hospital and its insurers; (4) Gonzalez’s
claims under Laws 17, 69, and 100 against Torres, the Hospital, and
its insurers; and (5) Gonzalez’s Law 115 claims against Torres,
Cruz, the Hospital, and its insurers.

(Docket No. 203.)

B.
Plaintiffs’ Waiver of Objection to Report and
Recommendation
Plaintiffs

failed

to

oppose

defendants’

motion

for

judgment on the pleadings, instead reserving arguments on the
merits of that motion for their objection to the report and

Civil No. 09-1850 (FAB)
recommendation.

4

(See Docket No. 41.)

Even had the motion never

been referred to a magistrate judge, it is clear that “[a] party’s
failure . . . to timely oppose a motion in the district court
constitutes

forfeiture.”

Crispin-Taveras

v.

Municipality

of

Carolina, 647 F.3d 1, 7 (1st Cir. 2011) (citing Rivera-Torres v.
Ortiz-Velez, 341 F.3d 86, 102 (1st Cir. 2003)).

Furthermore, this

Court’s Local Rules expressly state that by failing to file a
timely opposition to a motion, “the opposing party shall be deemed
to have waived objection.”

Loc.Civ.R. 7(b).

Although 28 U.S.C. § 636(b)(1)(C) gives parties the right
to de novo review to specific parts of reports and recommendations
to which they properly object, those parties are “not entitled to
a de novo review of an argument never raised.”

See Borden v.

Sec’y. of Health and Human Servs., 836 F.2d 4, 6 (1st Cir. 1987);
28 U.S.C. § 636(b)(1)(C).
until

after

recommendation

a

Allowing parties to sit on their hands

magistrate
would

judge

severely

has

undermine

issued
the

a

report

utility,

and

and
the

purpose, of referring motions to magistrate judges. See id. Thus,
“parties must take before the magistrate [judge], ‘not only their
best shot but all of their shots.’”

Id. (quoting Singh v.

Superintending Sch. Comm., 593 F.Supp. 1315, 1318 (D.Me. 1984)).
Given plaintiffs’ failure to oppose the motion for judgment on the
pleadings

properly,

they

have

consequently

passed

on

any

opportunity to present substantive arguments regarding that motion.

Civil No. 09-1850 (FAB)
See

id.;

5

Crispin-Taveras,

Accordingly,

the

arguments

647

F.3d

at

7;

Loc.Civ.R.

presented

in

their

7(b).

objections

and

suggestions to the report and recommendation (Docket No. 230) and
their supplemental motion to their objections (Docket No. 240) will
not

be

considered

by

the

Court

in

this

opinion

and

order.

Defendants’ motion to strike plaintiffs’ supplemental motion to
their objections to the report and recommendation is therefore
MOOT.
C.

Factual Background
Defendants do not object to the basic factual background

presented in the report and recommendation, but rather challenge
the magistrate’s conclusion denying defendants’ motion to dismiss
on certain issues, arguing that “some of the facts alluded to in
the R&R were not sufficiently pled by the plaintiffs in their
Complaint as to make their claims facially plausible.”
No. 229 at 3.)

(Docket

Thus, the Court adopts the following facts as

established by the magistrate judge in his R&R.
Defendant Hospital is a private hospital located in Vega
Baja employing more than 25 employees during the year preceding the
filing of the complaint.

It is the current or past employer of

plaintiffs and the individual defendants.

Plaintiff Gonzalez is a

secretary at the Hospital’s Imaging Department. Plaintiff Lugo was
a medical technologist at the Hospital until her termination on
January 12, 2009. Defendant Torres directed the Imaging Department

Civil No. 09-1850 (FAB)

6

at the Hospital until his termination on or about April 18, 2008.
Garcia is the Hospital’s Human Resources (“HR”) Manager, Cruz is
the supervisor of its Radiology Department, Pabon-Quiñones is an
administrator and President of the Hospital’s Board of Directors,
Pabon

and

Vazquez

are

licensed

physicians

and

the

major

stockholders and owners of the Hospital, and American and Liberty
are the Hospital’s insurers.

(Docket No. 108, ¶¶ 3, 6-12, 15, 114,

124).
II.

Facts Relevant to Plaintiff Gonzalez
On November 16, 2006, Torres called Gonzalez to his office to

take dictation and make notes.
to dance with him.

He had music playing and asked her

When she said no, he closed and locked the

office door, but unlocked and opened it when she asked.

While they

worked, Torres gave her discomfiting looks and told her he needed
a secretary and she that could be it.

When plaintiff said her back

hurt, he offered her his chair, then started staring fixedly at
her.

He asked if she thought he was “peeping” at her; she told him

she did not like his look. Although intimidated, plaintiff did not
dare get up because Torres said she had to finish the task.

When

Torres had to leave, plaintiff Gonzalez finished the task as he had
instructed her.

Later that day, Torres again asked her to come to

his office to complete some remaining work, but plaintiff Gonzalez
was afraid and insisted on doing the work in her own office.
¶¶ 21-24.)

(Id.,

Civil No. 09-1850 (FAB)

7

The following day, Torres again called Gonzalez to his office.
He asked her if she was scared to go to his office alone, telling
her, “Since I am here by myself, you should be scared.”

He

suggested that they go out together and said nobody would find out.
Gonzalez told Torres he was crazy and that she was married, and he
told her to think about it.

When she left his office, he called

after her that he would like to kiss her.

She shouted at him that

he was crazy, ran away, and started crying.

(Id., ¶¶ 25-26.)

At work the following Saturday, Torres called Gonzalez on the
telephone and flirtatiously asked what she was planning to wear to
an upcoming employee softball game, namely whether she would wear
shorts and what kind of shirt.

Plaintiff did not answer, and

Torres asked if his words upset her.

She said she did not like it

and asked him to show her some respect.

He asked for the baseball

park’s address; she said she did not know, repeated that she was
not comfortable with his comments, and hung up.

(Id., ¶ 27.)

On December 1, 2006, Torres sent Gonzalez a document stating
that he had seen people outside their work areas during working
hours, that employees could leave their work areas only if their
work required it and with his or defendant Cruz’s authorization,
and that break periods were not an employee right.

(Id., ¶ 29.) On

December 12, 2006, Cruz began monitoring Gonzalez’s breaks and
departures

from

her

work

area

on

orders

from

Torres.

On

December 15, 2006, Torres gave Gonzalez a memo regarding a report

Civil No. 09-1850 (FAB)

8

of improper behavior by a Hospital receptionist and indicated that
he would not tolerate such an attitude.

Gonzalez checked the

report and explained that it was from a time when another secretary
was on duty.

Gonzalez called Garcia, who had been copied on the

memo, and told her they should verify their information before
handing

out

disciplinary

explanation.

memos,

but

Garcia

gave

Gonzalez

no

(Id., ¶ 30.)

On Torres’s orders, Cruz began making Gonzalez keep the door
in her work area closed so that she would not interact with nearby
coworkers, even though other workers were allowed to leave the door
open if they “covered” for Gonzalez in her office.

Torres began

scolding Gonzalez out loud for minor things and made other workers
request permission from the supervisor before they could enter
Gonzalez’s office.

When housekeeping personnel cleaned Gonzalez’s

office, they had to clean and close the door immediately, making
Gonzalez feel as though she were being quarantined.

(Id., ¶¶ 32-

33.)
On December 20, 2006, Cruz twice monitored Gonzalez’s break
periods and told Gonzalez that breaks were a privilege which she
could not take while there was work to do, although other employees
took their breaks without any such admonitions.
following

day,

Cruz

called

Torres

to

(Id., ¶ 31.)

report

The

Gonzalez’s

“problematic” behavior when she took her morning break and ordered
Gonzalez’s coworker to call and tell Cruz when Gonzalez returned

Civil No. 09-1850 (FAB)
from her breaks.

9

(Id., ¶ 34.)

When Gonzalez called Garcia in

tears to complain that Torres and Cruz were singling her out for
scolding and harassment, Garcia told Gonzalez that Cruz had to
follow Torres’s instructions.

Garcia had to end the call and said

she would call Gonzalez back, but never did.

Later that day,

Torres held an all-hands meeting where he re-emphasized the rules
about break periods, saying that breaks were a privilege and could
not be taken while there was work to do.

While saying this, he

looked sternly and directly at Gonzalez.

Torres emphasized that

employees had to treat their supervisor Cruz with respect and
threatened discipline for insubordination if they did not do so.
(Id., ¶¶ 35-36.)
On December 22, 2006, Gonzalez persuaded HR Director Eugenia
Martinez to approve her pending five-day vacation request after
explaining to Martinez that she feared Torres would deny it.
Torres became upset with Gonzalez for not going through the proper
channels.

(Id., ¶¶ 37, 67.)

When Gonzalez’s husband fell sick on

December 26, Gonzalez could not reach Cruz or Torres and had to
arrange her time off to care for him with Martinez’s secretary,
Suheil

Montalvo,

January 20, 2007.

who

told

Gonzalez

to

return

on

Saturday,

When Gonzalez arrived on that date, she learned

that Torres believed she was returning on Monday and so had
scheduled another worker, who called Torres.

Torres scolded

Gonzalez for failing to go through the right channels and told her

Civil No. 09-1850 (FAB)

10

that what she had done was an act of insubordination.

Gonzalez

explained that Montalvo had told her to return that day, and Torres
told Gonzalez to go home and come back on Monday.

Id., ¶¶ 38-41.)

When Gonzalez arrived on Monday, January 22, 2007, Torres gave
her a memo noting the return date mixup, reminding Gonzalez that
Cruz was her supervisor and was under Torres’s direction, and
stating that it was an act of insubordination to them both not to
use the proper channels.

Torres would not hear Gonzalez’s version

of what happened, so Gonzalez called Garcia to explain and complain
about Torres’s conduct.

Garcia said it was a misunderstanding due

to lack of communication, which Gonzalez blamed on Torres.

The

call ended with Garcia telling Gonzalez that Gonzalez would no
longer be scheduled for Saturdays.
A

year

later,

on

February

(Id., ¶¶ 42-43.)
8,

2008,

Torres

added

other

functions to Gonzalez’s duties without providing any training,
preparation, or salary increase.

(Id., ¶ 44.)

Four days later,

Torres sent Gonzalez a memo, addressed to her and copied to Cruz,
noting

complaints

from

doctors

and

patients

about

inaccurate

medical transcription reports. The memo said that Torres would not
tolerate such mistakes and would take disciplinary measures if they
recurred. Gonzalez denied to Cruz that the memo concerned her work
and refused to sign it, but Cruz insisted, so Gonzalez signed it
but wrote in that she disagreed with it because she did not do the
reports.

Soon after, Torres called Gonzalez to his office and

Civil No. 09-1850 (FAB)

11

insisted that Gonzalez was responsible for the reports.

Gonzalez

denied it, because report transcription was not part of her duties.
Torres loudly berated her not to shift blame and to accept fault,
until she became so upset she cried.

She returned to her office,

looked up the dictation recording at issue, and discovered that
another employee had been at fault.

She called Cruz to tell him

Torres had been yelling and blaming her, had Cruz listen to the
dictation so he realized the error, and told him to be sure before
issuing a memo to an employee because such mistaken accusations
were unfair.

(Id., ¶¶ 45-47.)

On February 14, 2008, Gonzalez was making rounds delivering
documents in a small cart when a patient asked her if his test
results were ready.

She said she was not sure and sent him to

Cruz. While in Cruz’s office, she slightly bumped Cruz’s desk with
her cart, and Cruz shouted in front of the patient that she had hit
his computer and it was “like sabotage.”

Cruz did not have the

patient’s results and sent him to the Hospital’s administration to
ask for them.

Cruz then got into an argument with Gonzalez over

what she had told the patient and got Torres involved, who verified
that the patient had picked up his results.

Gonzalez told Cruz

that everyone was blaming her for no good reason.

(Id., ¶¶ 48-50.)

The following day, Cruz, Torres, and Garcia all induced Gonzalez to
take her lunch break even though she was still finishing up some
reports.

(Id., ¶ 51.)

On February 22, Torres and Cruz discussed

Civil No. 09-1850 (FAB)
another

employee’s

job

12
performance

with

Gonzalez

in

Torres’s

office, which made Gonzalez think Torres probably did the same
thing with regard to her.

(Id., ¶ 52.)

On March 4, 2008, Gonzalez had a pituitary MRI done at the
hospital.

The female MRI technologist first told her she did not

have to remove her shirt for the MRI, but halfway through, she told
Gonzalez she had to take off her shirt, bra, and girdle on Torres’s
orders because they were affecting the study, and Gonzalez found
out Torres was the one performing the MRI.

Gonzalez became very

nervous and panicked, and when the MRI was done she asked Torres
why he was there.

He said he did it to corroborate that Gonzalez

was okay and arrogantly told her that the MRI was negative and to
get out of there and go back to work.

(Id., ¶ 53.)

Gonzalez

immediately tried in vain to contact the personnel office.
¶ 54.)

(Id.,

A few minutes later, Torres called Gonzalez to his office,

where she arrived to find Cruz as well.

Torres started discussing

workflow between Gonzalez and another employee in the reception
area to which Gonzalez had just recently been assigned.

When

Gonzalez pointed out that she had just started working in that
area, Torres said loudly and arrogantly that he was fed up with
Gonzalez’s excuses and would take disciplinary measures against her
if she did not do what he told her.

She said she always did her

work and had never received any complaints, and Torres sent her
away.

(Id., ¶¶ 55-57.)

Civil No. 09-1850 (FAB)

13

On March 12, 2008, Gonzalez asked Garcia about the status of
a pending meeting which Torres had mentioned.

Garcia asked what

meeting Gonzalez was referring to, and Gonzalez said “the one
regarding a case we have pending,” adding that she had been
requesting a meeting with Garcia for a long time but that Garcia
was never available.

She told Garcia about Torres’s harassment,

but Garcia did not hold a meeting that day despite Gonzalez’s
repeated requests for one.

(Id., ¶ 58.)

Two days later, Torres

called Gonzalez into his office to scold her for not doing her work
correctly and not showing respect and courtesy to patients and
other employees.

He loudly demanded that she sign a disciplinary

memorandum, which Gonzalez refused to do, so Torres gave the memo
to Cruz to sign and write in that Gonzalez would not sign it.
Gonzalez started crying and having an emotional crisis, and Torres
yelled at her to get out of his office.

(Id., ¶¶ 59-60.)

Dizzy, disoriented, and shaking, Gonzalez made her way to the
emergency room, where she vomited. She was examined and treated by
the doctor on duty, to whom she described the “sexual and labor
harassment” she was undergoing from Torres and Cruz.

The doctor

prescribed

a

her

medication

for

anxiety

and

certificate ordering a five-day rest period.
she

took

the

certificate

to

Cruz,

Torres,

issued

medical

(Id., ¶ 61.)
who

was

When

present,

questioned why the doctor had ordered such a long rest period, and
Gonzalez said it was for anxiety attacks due to Torres’s sexual

Civil No. 09-1850 (FAB)

14

harassment and retaliatory acts toward her, which made Cruz’s eyes
go wide.

The treating doctor later told Gonzalez that Cruz tried

to have him change his diagnosis.

(Id., ¶¶ 62-63.)

After spending that weekend depressed and anxious that she
might be fired for rejecting Torres’s sexual advances, Gonzalez
went to the State Insurance Fund (“SIF”) on March 17, 2008 to apply
for coverage for treatment for work-related injuries.

Two days

later, Torres sent a letter to the HR department alleging work
deficiencies by Gonzalez.

(Id., ¶¶ 64-65.)

When Gonzalez went to

the HR office on March 26, 2008 with the SIF forms which the
employer needed to fill out, Garcia denied any knowledge of any
past incidents of harassment that Gonzalez had told her about and
Gonzalez’s attempts to meet with her about such harassment.
¶ 66.)

(Id.,

On April 8, 2008, Gonzalez sent a memorandum to Garcia and

Martinez, copied to Pabon, in which she listed some of the most
recent harassing and retaliatory acts by Torres and requested
prompt attention to the matter.

The memo noted that Gonzalez had

filed a complaint with HR as far back as November 2006 and that she
had repeatedly complained to, and tried in vain to meet with,
Garcia.

(Id., ¶ 67.)

Gonzalez remained reported to the SIF until August 14, 2008.
On her return, she noticed Torres was no longer working at the
Hospital and learned that in her absence, he had issued four
memoranda

about

her

allegedly

deficient

work

performance

and

Civil No. 09-1850 (FAB)
disciplinary

15

violations.

That

day,

she

met

with

Cruz,

who

apologized to her, saying he had to follow Torres’s orders and knew
it had been unfair to her but that there was nothing he could do.
She said he could have reported the matter to HR, and Cruz said he
had tried but Garcia refused to meet with him.

Given Cruz’s

attitude, Gonzalez felt she was returning to the same hostile
environment she had left, except that the original harasser was no
longer there.

(Id., ¶ 68.)

On December 24, 2008, Garcia authorized personnel from the
departments of records, invoicing, laboratory, physical therapy,
HR, and others to leave early at 3:00 p.m., but Gonzalez was not
allowed to leave until 6:00 p.m.

In a meeting on December 26,

Garcia and Cruz explained that she worked with the public and might
be needed, and only office workers had been authorized to leave.
Gonzalez replied that according to her job description, she was an
office

worker

too,

and

that

other

employees

responsibilities also dealt with the public.

with

the

same

She requested a

written explanation for this discriminatory treatment, which Garcia
denied, using language Gonzalez considered disrespectful and a
continuation of the hostile environment that had originated in
November 2006 with Torres’s behavior.
On

January

8,

2009,

Gonzalez

(Id., ¶ 69.)
notified

Pabon

about

the

December 24 and 26 incidents, but still no action was taken. Garcia
and Cruz continued giving Gonzalez negative remarks and looks,

Civil No. 09-1850 (FAB)

16

which she perceived as further retaliation for having complained
about Torres’s sexually harassing behavior.

In late 2008 and on

January 11, 2009, when Pabon called the radiology department and
Gonzalez answered, Pabon would ask, “Do you still work here?”,
which Gonzalez took to be a retaliatory gesture insinuating she
should

be

fired

from

the

Hospital.

(Id.,

¶¶

70-71.)

On

January 16, 2009, Garcia wrote Gonzalez a memo asking her to submit
the reasons why she felt discriminated against, what type of
discrimination she meant, and the names of the people causing the
discrimination and those who had knowledge of it.

(Id., ¶ 72.)

On May 11, 2009, while Gonzalez was having lunch at the
Hospital cafeteria, Vazquez approached her and said she looked very
serious and quiet while eating and that he would have to bring
Torres in to make her laugh.

Gonzalez took this comment as

disrespectful since Vazquez knew about Torres’s harassment and
tolerated the resulting hostile environment.

(Id., ¶ 73.)

On August 24, 2009, Cruz met with Gonzalez and told her about
problems he had with Torres and that at Torres’s new workplace he
had a similar situation to the one he had at the Hospital.
Gonzalez asked Cruz why he, as a supervisor, had allowed Torres’s
behavior, and he said that HR was never available when he tried to
meet with them about those incidents.

He told Gonzalez that he had

told her that sooner or later Torres would be discharged from the
Hospital.

Gonzalez felt it was an additional burden to know that

Civil No. 09-1850 (FAB)

17

managerial staff knew about Torres’s harassment and did nothing.
(Id., ¶ 74.)
On October 30, 2009, Gonzalez was in a car accident and was
taken to another hospital’s ER.

She was ordered to rest until

November 5, 2009, and her husband called Cruz that evening to tell
him about the accident and that Gonzalez would not return until
November 6.

On that day, Gonzalez went to work and gave Cruz the

doctor’s certificate. He left briefly, then returned and said that
Garcia had asked that Gonzalez provide a copy of the police report
of the accident. She gave Cruz the police complaint number, but he
insisted that she had to produce the report also.

Later that day,

Cruz gave Gonzalez a memo from Garcia, addressed to all employees,
setting out the requirements for any medical certificate brought in
by an employee.

Gonzalez perceived this memo as retaliation by

Garcia for filing a sexual harassment complaint against Torres.
She told Cruz the memo was disrespectful and discriminatory, and
Cruz said, “Well, you know Mrs. Garcia’s work style.”

(Id., ¶¶ 75-

76.)
Through the beginning and middle of 2010, Cruz kept up a
constant pattern of animosity and bitterness towards Gonzalez,
including throwing papers and files on her desk instead of putting
them in the inbox tray on her desk, which she perceived as
retaliation for pursuing her sexual harassment and hostile work
environment claim.

(Id., ¶ 77.)

In late May or early June of

Civil No. 09-1850 (FAB)

18

2010, several x-ray technologists shouted at Gonzalez for sending
a patient over to them for x-rays, and when Cruz did nothing about
it, Gonzalez perceived this as retaliation for filing a claim
against the Hospital, Torres, and him. (Id., ¶¶ 78-81.)

In summer

of 2010, Martinez from HR told Gonzalez, who was pregnant, what
type of maternity uniform she should wear. When Gonzalez could not
find clothing in the required color, she asked to wear a different
color, but Martinez denied the request. Gonzalez perceived this as
retaliation since other pregnant secretaries in other Hospital
departments were allowed to choose their own maternity clothing.
(Id., ¶¶ 82-83.)
From early 2010 up through September 7, 2010, Cruz would not
allow Gonzalez to eat at work and would constantly check on her to
see if she was having breakfast in the office and scold her for
doing so, which she perceived as retaliation.

Gonzalez became ill

and dehydrated in early August 2010 from not being allowed to eat
or take breaks and had to go to the ER.

When she returned to work

on August 10, 2010 after a prescribed three-day rest period, she
was reprimanded near the end of the day by Garcia for coming in on
that day because her medical certificate said her leave was through
August 10.

Garcia told Gonzalez to get a new certificate stating

her leave was up to August 9. Gonzalez perceived it as retaliation
for HR to wait until the end of the day to tell her this instead of

Civil No. 09-1850 (FAB)

19

doing so at the beginning of the day when she delivered the medical
certificate.

(Id., ¶¶ 84-86.)

From early 2010 onward, Gonzalez had Fridays off and another
employee filled in for her.

Cruz constantly complained on Mondays

about the work allegedly performed by Gonzalez despite knowing she
was off on Fridays.

When Gonzalez pointed out that another

employee was performing the work about which he was complaining,
Cruz became quiet and did nothing, and Gonzalez perceived his
inaction as more retaliation for complaining about the hostile work
environment.

(Id., ¶ 87.)

On August 24, 2010, Gonzalez suffered

a gestational edema, which she blamed on stress and anxiety caused
by her work situation, and was ordered to take a two-week rest
period.

She

presented

this

information

complaint on September 7, 2010.
On

October

12

and

13,

in

an

amended

EEOC

(Id., ¶ 88.)
2010,

Gonzalez

was

deposed

by

defendants’ counsel despite being close to her delivery date.
Defendants’

counsel

found

that

Gonzalez

had

Torres’s

Social

Security number (“SSN”) written on a paper in a binder of documents
she brought to the deposition, which she had allowed them to view.
She explained that she had obtained the SSN while Torres was still
working at the Hospital to give to her case investigator to do a
background check on Torres.
used by her investigator.

She never divulged the SSN, nor was it
(Id., ¶¶ 88a-88d.)

Civil No. 09-1850 (FAB)

20

On November 10, 2010, Garcia terminated Gonzalez during a
short meeting with Gonzalez and the Hospital’s Security Director,
Machado.

Gonzalez, who was still pregnant, was given a discharge

letter and a check paying out her Christmas bonus and accumulated
vacation time, but not maternity leave.

Gonzalez read the letter

during the meeting; it stated she was being discharged for repeated
noncompliance

and

for

violating

confidentiality

rules

divulging and improperly using employee information.
Garcia

what

she

had

done

to

violate

the

rules,

due

to

She asked
and

Garcia

eventually stated that it was due to the issue of Torres’s SSN.
Gonzalez signed and dated the letter and told Garcia she disagreed
with the reasons Garcia gave and the allegations against her.
went back to her work area, retrieved her things, and left.
¶¶

88e-88l.)

Gonzalez

alleges

that

her

dismissal

She

(Id.,

was

in

retaliation for complaining about Torres’s sexual harassment and
that the accusations against her regarding allegedly improper use
of Torres’s SSN are pretextual and untrue.
II.

(Id., ¶¶ 88m-88o.)

Facts Relevant to Plaintiff Lugo
On or about November 2006, at an evening event for the x-ray

technologists, Torres, in Cruz’s presence, invited Lugo to go to
some restaurants at the Dorado beach.

She immediately refused.

That same month, Torres held a meeting of all Radiology Department
clerical

and

technological

personnel,

where

Torres

and

Cruz

exchanged such objects as condoms, whips, paddles, and pornographic

Civil No. 09-1850 (FAB)

21

photos, to the disgust and embarrassment of female employees. They
also photographed the people present, who were mostly female
employees, including Lugo.

(Id., ¶ 91.)

In early 2007, Torres

showed Lugo and another female employee a picture on his computer
of a naked baby with adult genitals, laughed, and asked them if
they liked the picture, embarrassing them.

(Id., ¶ 92.)

In early 2007, Torres called Lugo to tell her he had a problem
relating to Gonzalez for which he could lose his job.

He wanted to

know what Lugo would tell Martinez about Torres’s treatment of her
if Martinez asked, because he had often seen Lugo and Gonzalez
talking

together.

Torres

asked

whether

Lugo

would

harassment complaint against him as Gonzalez had done.

file

a

Lugo,

uncomfortable, replied that if asked about Gonzalez, she would tell
the truth, and that their relationship was purely work-related.
(Id.)
In early January 2007, Lugo requested permission from Torres
to attend a continuing education seminar, but Torres told her he
would not let her go because he could not go, and he laughed and
mocked her.

(Id., ¶ 93.)

Also in early 2007, when Lugo needed to

change clothes at work one day, Torres offered to let her change in
his office because the bathroom was occupied. She refused and said
she would wait, and Torres told her she looked very good.
¶ 94.)

(Id.,

Civil No. 09-1850 (FAB)

22

Ever since Gonzalez filed her sexual harassment complaint
against Torres, Torres and other Hospital personnel would make
negative comments about Gonzalez, saying she was lying.

At the

same time, Torres and Cruz began a campaign against Lugo.

When

Lugo told Cruz that Torres was treating her unfairly, Cruz told a
secretary who was listening to the conversation that whoever messed
with Torres had to mess with Cruz.

(Id., ¶ 95.)

Lugo then tried

unsuccessfully to talk to Garcia, who would never take Lugo’s calls
and was never available to meet with her.

When Garcia finally met

with Lugo, she defended Torres and Cruz and downplayed Lugo’s
complaints about them.

Meanwhile, Torres and Cruz continued to

scold and yell at Lugo whenever they could.

Cruz called Lugo a

bitch in front of Gonzalez once when Lugo called to ask him a
question, saying Lugo knew the answer and was calling just to
bother him.

Cruz and Torres began issuing Lugo and her coworker,

Aida Nater, false memos about absenteeism.

(Id., ¶ 96.)

In June 2007, Lugo asked Torres if she could take off half an
hour for lunch, and he told her she had to take a full hour as
required by HR.

Lugo said she had too much work to take a full

hour, she had the right to eat, and she would not take a lunch at
all. When she returned to her work area, Torres phoned and shouted
that

she

was

being

disrespectful;

disrespectful one, and he hung up.

she

told

(Id., ¶ 97.)

him

he

was

the

Civil No. 09-1850 (FAB)

23

In September 2007, the Hospital opened a hyperbaric chamber
department, redecorated the Nuclear Medicine reception area, and
installed telephone lines so that Nuclear Medicine personnel,
including Lugo, who worked there as a secretary, could take calls
from the hyperbaric chamber department.

These changes were made

without informing plaintiffs; Cruz said the changes were ordered by
engineer Pabon.
Medicine,

Lugo,

In addition to her other duties in Nuclear
who

was

usually

by

herself,

had

to

be

the

hyperbaric chamber department’s receptionist, although this was not
in her work functions.

(Id., ¶ 98.)

The department’s director, Dr. Chinea, became more demanding
regarding how secretaries should do their work.

He and his

daughter, Pabon’s wife, constantly supervised Lugo to make sure she
was not talking to anyone for non-business-related purposes, and
they called Cruz if she did. Lugo continued having to perform jobs
outside of her work functions and Cruz, Torres, or Garcia would be
on her back if she did not do them.

(Id., ¶ 99.)

In Nater’s

presence, Torres gave Lugo a memorandum for insubordination to a
supervisor (which constituted grounds for immediate termination),
but Lugo refused to sign it.

Lugo requested a meeting with Garcia,

who met with Lugo only after Lugo wrote a letter to Pabon, the
Hospital’s engineer and administrator.

Garcia defended Torres and

did not resolve Lugo’s problem; she backed up what Torres had said
about

taking

a

lunch

hour

and

insisted

that

Lugo

sign

the

Civil No. 09-1850 (FAB)
memorandum.

24

Lugo said it was unfair and would not sign it, but

Garcia said she would put the memo in Lugo’s personnel file
regardless.

(Id., ¶ 100.)

Lugo was out sick from October 15 through 17, 2007, and when
she returned on October 18, Torres gave her a memorandum listing
all her absences since the start of her employment, including dates
when Lugo had been at work and dates for which she had submitted
medical certificates.

Lugo protested that she could not lose her

job for absences for which she had medical certificates.

Cruz and

Torres corralled Lugo in the x-ray office, one in front of her and
one behind her, and insisted that she sign the memo.
physically threatened and afraid, so she signed it.

Lugo felt

(Id., ¶¶ 101-

02.)
On or about November 2007, the fumes from a paint job under
way in the Nuclear Medicine area were making Lugo and Nater sick,
but

Cruz

would

not

let

them

leave

the

department

without

authorization by phone from Torres, who was out of the area at the
time.

When Lugo could not stand it anymore and told Cruz by phone

that she was leaving, he came to her office and yelled furiously
for her to sit down, but then took Lugo and Nater to another area.
(Id., ¶ 103.)
Torres suspended Nater on January 28, 2008.

(Id., ¶ 104.)

The next day, Lugo asked permission from her supervisors to go to
the examining board the following day, January 30, in order to

Civil No. 09-1850 (FAB)

25

renew her professional license.

Those announced absences were

considered normal and were either treated as part of the work day
or charged to vacation time.

Torres and Garcia would not allow

Lugo either option, however, so she lost eight hours’ pay for
January 30.

Lugo learned that day that Torres had let other

Hospital personnel go renew their licenses without losing pay.
(Id., ¶ 105.)
On

February

1,

2008,

the

Nuclear

Medicine

equipment

malfunctioned, and Cruz came and stood by Lugo and told her in a
hostile and arrogant manner to try to fix the machine.
him she did not know how.

Lugo told

Cruz got upset and called a repair

company, Alfa, to inform Lugo by phone how to fix it, but an Alfa
employee who happened to be at the Hospital came by and resolved
the problem.

(Id., ¶ 106.)

Lugo came down with dengue fever on March 25, 2008, and left
work at noon.

She went to a medical office complex in Arecibo to

pick up her lab results.

While there, she stopped by Arecibo

Radiology, where she had formerly worked, to say hello to her old
coworkers. While she was there, somebody called and asked for her,
but hung up when Lugo got on the phone.

Lugo thought nothing of

the incident, but Torres later alleged falsely that Lugo was
moonlighting at Arecibo Radiology.

(Id., ¶¶ 108-09.)

After returning from her suspension, Nater was constantly
assigned to work in another area, leaving the Nuclear Medicine

Civil No. 09-1850 (FAB)

26

department without a secretary, so Lugo had to cover for her.
Torres fired Nater on Friday, March 28, 2008, while Lugo was still
out sick.

He gave Nater’s position to another employee and took

away Lugo’s keys to give to that employee.

(Id., ¶ 107.)

The same

day, March 28, a coworker, Miguel Aponte, called Lugo to tell her
Torres was saying he would fire Lugo when she got back from her
absence. Lugo got nervous, called the Hospital in tears, and spoke
with an administrator, Vilar, who tried to calm her down and
promised her an explanation when she returned to work.

Lugo ended

up going to the ER at another hospital in Arecibo, where she was
treated and prescribed antidepressants for her condition.
¶ 109.)

(Id.,

On March 30, 2008, Aponte called Lugo and told her Torres

had been saying he was going to fire Lugo for giving him a false
medical certificate
Radiology.

when

in

fact

she was

working

at

Arecibo

Lugo called HR, but no one answered, so she called

Administration and spoke with Vilar, who again tried to calm her
and said she was owed an explanation.

(Id., ¶ 110.)

Upon Lugo’s return to work, nobody would say anything to her.
Three days after Lugo’s return, Martinez asked Lugo to write out
all the incidents related to Torres, and she did so.

Days later,

Torres was terminated. Two days after that, the Hospital conducted
a training for supervisors and administrators on how to treat
employees and avoid complaints.

Lugo began to suppose that her

situation was due to her participation as a witness in Gonzalez’s

Civil No. 09-1850 (FAB)
case.

27

It made her tense, and because Vilar had not yet provided

the promised explanation, she wrote to Pabon.

(Id., ¶¶ 111-112.)

The next day, Martinez and Garcia met with Lugo in Martinez’s
office, where they questioned her about every incident in her
complaint letter about Torres.

Garcia denied that she had avoided

meeting with Lugo or that Lugo had ever notified her about problems
with Torres.
Garcia,

Martinez told Lugo that from then on, Martinez, not

would

handle

Lugo’s

complaints.

(Id.,

¶

113.)

On

April 18, 2008, Montalvo told Lugo that Garcia had told Montalvo
that Torres had been discharged because of Lugo’s complaint and HR
personnel had read pieces of Lugo’s letter to him.

(Id., ¶ 114.)

Soon after Torres’s termination, Cruz apologized to Lugo for
everything that had happened and told her that his actions against
her were all on Torres’s orders.

Cruz told her they would start

over, but by May 2008, he started treating Lugo in a hostile
fashion again, telling her she was working too much overtime and
that Garcia could not accept Lugo’s extra hours.

Garcia met with

Lugo soon after and warned that if Lugo did not lower her extra
hours, she risked losing her job because the Hospital had financial
problems and Lugo had to avoid wasting money.
explain to

Cruz

and

Garcia

that

her

overtime

Lugo tried to
was

necessary,

particularly because Lugo was by herself with numerous duties to
perform.

(Id., ¶¶ 115-16.)

Civil No. 09-1850 (FAB)

28

Around late July or early August 2008, Lugo learned that two
male Hospital employees were gossiping that Lugo was having an
affair.

Lugo told Cruz that she would not stand that type of

comment, and Cruz said he would not let any man go to Lugo’s office
if he was not there.

(Id., ¶ 117.)

In August 2008, Lugo told Cruz that her eyes were hurting and
she needed to go to the Hospital’s ER, but Cruz made her finish her
work first.

The treating doctor at the ER, Dr. Torres, diagnosed

conjunctivitis and gave her a medical certificate for five days’
leave because her condition was contagious. Dr. Torres’s secretary
told Lugo days later that Cruz and Pabon questioned why Dr. Torres
let Lugo off for so long and asked her to change her diagnosis, but
Dr. Torres refused.

When Lugo returned, the harassment increased.

Lugo’s coworker, Aurely Alvarado, was forbidden to speak to Lugo;
and both Lugo and Alvarado were forbidden to get up from their
desks without telling Cruz.

The office’s temperature was fixed

at 60 degrees, making it too cold to work.

(Id., ¶¶ 118-19.)

All

this caused Lugo more tension; she could not go to work unless she
took a relaxant or natural remedies to be calm.

(Id., ¶ 120.)

Cruz did not allow Lugo to have breakfast at work or have her
coworkers bring her breakfast, or else he would get upset.

He

isolated Lugo so nobody could talk to her, even if, for example,
janitorial staff needed to repair something in her area.

If Cruz

went to Lugo’s work area and found someone else there, he would get

Civil No. 09-1850 (FAB)

29

upset, shout at her, and slam the door when he left.

He would

monitor her when she arrived and during her coffee breaks, and
forbade her from going to the cafeteria with Alvarado or any other
employee.

(Id.)

The Hospital had agreed to pay for Lugo to attend an annual
nuclear medicine convention, but when she requested compensation
for

the

2008

agreement.

convention,

Garcia

denied

remembering

any

such

In the end, Garcia threw down a check for $100 on

Lugo’s desk, saying that was all she could give Lugo.

When Lugo

asked how she could forget the agreement when the Hospital had paid
for previous years, Garcia left angrily.

(Id., ¶ 122.)

In December 2008, Lugo was supposed to take her vacation and
had accumulated 23 days’ vacation time.

After initially refusing

to allow Lugo to take her vacation unless she got someone to cover
for her, Garcia permitted her to take ten days’ leave and return
the day before Three Kings Day.

Lugo asked Garcia as a favor to

allow her to return after Three Kings Day, and Garcia arrogantly
refused.

Lugo asked for an explanation, and Garcia told her she

had to begin work.

Lugo returned from vacation to work on

January 5, 2009, then had Three Kings Day off.

After working a

full day on January 7, 2009, Lugo had strong chest pains and
difficulty breathing and went to another hospital’s ER.
123-24.)

(Id., ¶¶

The ER referred Lugo to a cardiologist, who issued a

medical certificate for several days so she could get tests done.

Civil No. 09-1850 (FAB)
(Id., ¶ 124.)

30

Lugo’s test results were inconclusive; she was

diagnosed with hypoglycemia, which she blames on the irregular
schedule of her breaks and lunch periods at the Hospital. Lugo had
also suffered a panic attack, which she attributes to nervousness
and stress.

(Id., ¶¶ 126-27.)

On Saturday, January 10, 2009, Lugo received a return-receipt
letter from Garcia discharging her from the Hospital for the stated
reason that the Nuclear Medicine department had been closed. (Id.,
¶ 124.)

Alvarado was also discharged at the end of her work day on

January 9, 2009.

Lugo was never given any other explanation for

her discharge, and the possibility of the department’s closure had
never been mentioned to her.
until the end of March 2009.

(Id., ¶ 125.)

Lugo was unemployed

In August 2009, the Hospital gave

Lugo an offer to return to work as a Nuclear Medicine technologist,
which Lugo refused based on the negative and traumatic experiences
she had undergone in 2007, 2008, and 2009 under the supervision of
Torres and Cruz.

(Id., ¶ 128.)

Neither Lugo nor Gonzalez were

ever informed of their rights and benefits under the FMLA.

(Id.,

¶ 129.)
Plaintiffs allege that Gonzalez and Lugo both complied with
all EEOC procedures, received an EEOC letter authorizing them to
sue, and complied with the time limitations necessary to bring this
action.

(Id., ¶ 1; Docket Nos. 50-5, 64-1.)

After Gonzalez

initially filed suit on August 26, 2009 and amended the complaint

Civil No. 09-1850 (FAB)

31

in January 2010 (Docket Nos. 1, 5), the court allowed Lugo to join
as a co-plaintiff (Docket No. 22), and plaintiffs filed the second
amended

complaint,

(Docket No. 23.)

adding

Lugo’s

claims,

on

April

22,

2010.

Plaintiffs subsequently filed third, fourth, and

fifth amended complaints to add allegations pertaining to recent
factual developments and to name the defendant insurance companies;
the last amended complaint was filed on March 31, 2011.

(Docket

Nos. 50-6, 75-2, 108.)
Plaintiffs allege that defendants’ conduct has harmed their
physical and mental health, requiring medical treatment, and has
had negative effects on their family relationships.

Gonzalez and

Lugo claim punitive damages and compensatory damages, doubled as
applicable under Puerto Rico law, totaling $2.8 million and $2.2
million, respectively.

(Docket No. 108, ¶¶ 137-39.)

Plaintiffs

also request preliminary and permanent injunctive relief against
any further violation of plaintiffs’ civil rights or continuation
of the alleged sexual harassment and hostile work environment,
declaratory relief, attorneys’ fees, and seniority and back pay for
Gonzalez.

(Id., p. 58-60.)

Plaintiffs allege the following claims, spread across four
causes of action:

(1) sex-based discrimination and retaliation

under

(2)

Title

VII;

negligence,

intentional

infliction

of

emotional distress, and vicarious liability under Articles 1802
and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141, 5142;

Civil No. 09-1850 (FAB)
(3)

violation

of

the

32
Puerto

Rico

laws

against

workplace

discrimination, harassment, and retaliation, which, while not named
by plaintiffs, include Law 100 of June 30, 1959, 29 L.P.R.A. § 146
et seq. (“Law 100”), Law 69 of July 6, 1985, 29 L.P.R.A. § 1321 et
seq. (“Law 69”), Law 17 of April 22, 1988, 29 L.P.R.A. § 155 et
seq. (“Law 17”), and Law 115 of December 20, 1991, 29 L.P.R.A.
§ 194 et seq. (“Law 115”); (4) violation of plaintiffs’ rights
under the FMLA; and (5) violation of plaintiffs’ First Amendment
rights, U.S. Const. amend. I.

(Id., ¶¶ 129-36.)

III. Legal Analysis
A.

Standard under 28 U.S.C. § 636(b)(1)
A district court may refer, inter alia, “a motion . . .

for judgment on the pleadings” to a magistrate judge for a report
and

recommendation.

See

28

Fed.R.Civ.P. 72(b); Loc. Rule 72(a).

U.S.C.

§636(b)(1)(A)-(B);

Any party adversely affected

by the report and recommendation may file written objections within
fourteen days of being served with the magistrate judge’s report.
See 28 U.S.C. §636(b)(1).

A party that files a timely objection is

entitled to a de novo determination of “those portions of the
report or specified proposed findings or recommendations to which
specific objection is made.”

Sylva v. Culebra Dive Shop, 389

F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)).
rule precludes further review.

Failure to comply with this

See Davet v. Maccorone, 973 F.2d

Civil No. 09-1850 (FAB)

33

22, 30-31 (1st Cir. 1992).

In conducting its review, the court is

free to “accept, reject, or modify, in whole or in part, the
findings

or

recommendations

made

by

the

magistrate

judge.”

28 U.S.C. §636 (a)(b)(1). Templeman v. Chris Craft Corp., 770 F.2d
245,

247

(1st

Cir.

Pharmaceuticals,

Inc.,

1985);
286

Alamo

F.Supp.2d

Rodriguez
144,

146

v.

Pfizer

(D.P.R.

2003).

Furthermore, the Court may accept those parts of the report and
recommendation to which the parties do not object.

See Hernandez-

Mejias, 428 F.Supp.2d at 6 (citing Lacedra, 334 F.Supp.2d at 125126).
B.

Federal Rule of Civil Procedure 12(c) Standard
“A motion for judgment on the pleadings is treated much

like a Rule 12(b)(6) motion to dismiss.”

Perez-Acevedo v. Rivero-

Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins,
509 F.3d 36, 43-44 (1st Cir. 2007)).

When considering a motion

under Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”), a
“‘court must view the facts contained in the pleadings in the light
most favorable to the nonmovant and draw all reasonable inferences
therefrom . . . .’”

Id. (quoting R.G. Fin. Corp. v. Vergara-Nunez,

446 F.3d 178, 182 (1st Cir. 2006)).
provide

fair

plausible

notice

legal

to

claim.”

the

“[A]n adequate complaint must

defendants

and

Ocasio-Hernandez

640 F.3d 1, 12 (1st Cir. 2011).

state
v.

a

facially

Fortuño-Burset,

Civil No. 09-1850 (FAB)

34

When faced with a motion for judgment on the pleadings,
“[a] plaintiff is not entitled to ‘proceed perforce’ by virtue of
allegations
action.”
S.Ct.

that

merely

parrot

the

elements

of the

cause of

Id. at *9 (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129

1937,

1950

(2009)).

Any

“[n]on-conclusory

factual

allegations in the complaint [, however,] must . . . be treated as
true, even if seemingly incredible.”
at 1951).

Id. (citing Iqbal, 129 S.Ct.

Where those factual allegations “‘allow[] the court to

draw the reasonable inference that the defendant is liable for the
misconduct alleged,’ the claim has facial plausibility.

Id.

(citing Iqbal, 129 S.Ct. at 1949).
C.

Defendants’ Objections
1.

Lugo’s Claims
Defendants

object

to

the

magistrate

judge’s

recommendation that this Court deny defendants’ motion to dismiss
on (1) Lugo’s Title VII claims for retaliation based on her
participation in Gonzalez’s sexual harassment investigation and
(2) Lugo’s claims under Law 115.
a.

The Court addresses each in turn.

Title VII Retaliation
In order for a plaintiff to make out a prima

facie case of retaliation under Title VII, she must prove that
“(1) she engaged in protected conduct under Title VII; (2) she
suffered an adverse employment action; and (3) the adverse action
was causally connected to the protected activity.”

Fantini v.

Civil No. 09-1850 (FAB)

35

Salem State College, 557 F.3d 22, 32 (1st Cir. 2009) (quoting
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir.
2002)).

The magistrate judge deemed that Lugo had sufficiently

satisfied these requirements.1

Defendants claim that Lugo has not

alleged that she participated in any protected activity, “as she
does not claim she participated . . . in an internal investigation,
thus, she did not ‘oppose’ discriminatory employment practices (the
opposition

clause),

nor

did

she

participated

[sic]

administrative investigation (the participation clause).”

in

an

(Docket

No. 229 at 7.)
The

magistrate

judge’s

report

and

recommendation does not provide a clear analysis of Lugo’s claim
for Title VII retaliation.

The Court, on de novo review, finds

that Lugo has sufficiently alleged that she engaged in protected
activity.

1

“An employee has engaged in activity protected by Title

The report and recommendation recites the following facts in
support of Lugo’s claim for Title VII retaliation: “Lugo alleges
that after she told Torres she would ‘tell the truth’ about his
treatment of Gonzalez, Torres and Cruz began ‘a campaign’ against
her, yelling at her constantly, giving her memos about fabricated
incidents of absenteeism, and interfering with her professional
development activities (namely, seminar attendance and license
renewal). Cruz called her a bitch and said whoever messed with
Torres had to mess with him, new duties were added to Lugo’s
position, and Garcia avoided Lugo and sided with the supervisors.
Lugo also alleges that after she submitted her complaint letter
about Torres and Torres was terminated, nobody would speak to her,
Cruz and Garcia threatened Lugo’s job for working too much
overtime, Cruz isolated Lugo from her coworkers, and Lugo was
ultimately discharged, and she suspected her treatment was all due
to her participation in Gonzalez’s investigation.” (Docket No. 203
at 23.)

Civil No. 09-1850 (FAB)

36

VII if she has either (1) ‘opposed any practice made an unlawful
employment practice’ by Title VII or (2) ‘made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing’ under Title VII.”

Id. (quoting Long v.

Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

The First

Circuit Court of Appeals has specifically noted that “[i]n addition
to protecting the filing of formal charges of discrimination,
§ 704(a)’s opposition clause protects as well informal protests of
discriminatory employment practices, including making complaints to
management . . . and expressing support of co-workers who have
filed formal charges.”

Fantini, 557 F.3d at 32 (emphasis added);

see also Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st
Cir. 2003) (finding that plaintiff engaged in protected activity
“when he complained to his supervisors about perceived racial
discrimination”).

Because Lugo alleges that she both submitted a

complaint letter about Torres’ behavior and voiced her support for
Gonzalez’s complaints about Torres, Lugo has sufficiently alleged
that she engaged in protected activity under Title VII.
Defendants also claim that Lugo’s allegations
of the adverse employment actions she suffered “lack factual
support”.
Appeals

(Docket No. 229 at 12.)

has

stated

that

“adverse

The First Circuit Court of
employment

actions

include

‘demotions, disadvantageous transfers or assignments, refusals to
promote, unwarranted negative job evaluations, and toleration of

Civil No. 09-1850 (FAB)

37

harassment by other employees.’”

Marrero, 304 F.3d at 23 (quoting

White v. New Hampshire Dept. of Corrections, 221 F.3d 254, 262 (1st
Cir. 2000)).

Lugo claims that due to her protests about Torres and

Cruz’s behavior toward Gonzalez, Torres and Cruz began a “campaign”
against her, yelling at her constantly, giving her memos about
fabricated

incidents

of

absenteeism,

interfering

with

her

professional development activities, adding duties to her position,
isolating her, threatening her, and ultimately discharging her from
employment.

(Docket No. 203 at 23.)

Accordingly, the Court finds

that Lugo’s allegations of engaging in protected conduct and having
suffered adverse employment actions are sufficient to make out a
plausible claim for relief under Title VII for retaliation for
participating in Gonzalez’s sexual harassment investigation.
magistrate

judge’s

report

and

recommendation

is

ADOPTED

The
with

respect to this claim.
b.

Law 115
Defendants

also

object

to

the

magistrate

judge’s recommendation denying defendants’ motion to dismiss Lugo’s
Law 115 claim of retaliation.

Law 115 reads, in relevant part:

(a) No employer may discharge, threaten, or discriminate
against an employee regarding the terms, conditions,
compensation, location, benefits or privileges of the
employment should the employee offer or attempt to offer,
verbally or in writing, any testimony, expression or
information before a legislative, administrative or
judicial forum in Puerto Rico, when such expressions are
not of a defamatory character nor constitute disclosure
of privileged information established by law.

Civil No. 09-1850 (FAB)
29 L.P.R.A. § 194a.
Law

115,

the

38

In order to establish a prima facie case under

employee

must

establish

“through

direct

or

circumstantial evidence” that “she (a) participated in an activity
protected by §§ 194 et seq. and (b) was subsequently discharged.”
Lupu v. Wyndham El Conquistador Resort and Golden Door Spa, 524
F.3d 312, 313 (1st Cir. 2008) (internal quotations omitted).

The

magistrate judge recommended that the Court deny defendants’ motion
to dismiss Lugo’s Law 115 claims “for the same reasons discussed
above with regard to Title VII.”

(Docket No. 203 at 34.)

Law 115,

however, imposes different requirements on the plaintiff to prove
a prima facie case than does Title VII.
facts

that

demonstrate

protected by Law 115.

that

she

Lugo has not asserted any

participated

in

an

activity

In other words, Lugo did not “offer or

attempt to offer, verbally or in writing, any testimony, expression
or information before a legislative, administrative, or judicial
forum in Puerto Rico.”

29 L.P.R.A. § 194a.

While “filing a charge

with the EEOC” constitutes a protected activity, Cabrera v. Sears,
Roebuck de Puerto Rico, Inc., No. 08-1325, 2009 WL 2461688, at *9
(D.P.R. Aug. 10, 2009), it is undisputed that Lugo filed her first
EEOC complaint on January 29, 2009, after she was terminated on
January 12, 2009.

(Docket No. 203 at 21-22.)

Lugo’s complaints to

her supervisors and to the Hospital’s engineer and administrator
(Docket No. 203 at 11-17) do not qualify as protected activities
under Law 115. Lupu, 524 F.3d at 313-314 (plaintiff’s conversation

Civil No. 09-1850 (FAB)

39

with supervisor at an internal meeting and written complaints left
on supervisor’s desk did not qualify as protected activities
because he “never offered or attempted to offer any information to
the Puerto Rico governmental authorities listed in the statute; nor
had he threatened to go to such authorities”.)

For the reasons

stated, the Court finds that Lugo has failed to state a plausible
claim for relief under Law 115.

Therefore, the magistrate judge’s

report

to

and

recommendation

as

this

claim

is

REJECTED

and

defendants’ motion to dismiss this claim is GRANTED.
2.

Gonzalez’s Claims
Defendants

object

to

the

magistrate

judge’s

recommendation that this Court deny defendants’ motion to dismiss
on (1) Gonzalez’s Title VII claims of hostile work environment;
(2) Gonzalez’s Title VII claims of quid pro quo sexual harassment;
and (3) Title VII claims of retaliation.
29.)

(Docket No. 229 at 14-

The Court addresses each of these claims in turn.
a.

Hostile Work Environment
Defendants allege that Gonzalez’s claims of sex

discrimination are time-barred and that they are not severe nor
pervasive enough to prove a claim of a hostile work environment.
Gonzalez filed an EEOC charge on August 8, 2008.
at 25.)

(Docket No. 203

This means that Gonzalez must assert at least one act of

discrimination occurring after October 13, 2007 in order to satisfy
the requirement of filing a discrimination charge within 300 days

Civil No. 09-1850 (FAB)

40

of the alleged discrimination.

See 42 U.S.C. § 2000e-5(e)(1).

Gonzalez alleged that on March 4, 2008, she had a pituitary MRI
done

at

the

hospital.

Gonzalez

thought

that

a

female

MRI

technologist was conducting the MRI; unbeknownst to Gonzalez,
however, it was Torres who was administering the MRI and had
ordered Gonzalez, halfway through the MRI, to take off her shirt,
bra and girdle.

(Docket No. 203 at 6.)

While this incident, taken

alone, may not be sufficient to state a plausible claim of hostile
work environment, the Court must look to all the circumstances
surrounding the discriminatory conduct. The Supreme Court has held
that “[t]he timely filing provision only requires that a Title VII
plaintiff file a charge within a certain number of days after the
unlawful practice happened.

It does not matter, for purposes of

the statute, that some of the component acts of the hostile work
environment fall outside the statutory time period.

Provided that

an act contributing to the claim occurs within the filing period,
the entire time period of the hostile environment may be considered
by a court for the purposes of determining liability.”

National

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
defendants

urge

the

Court

not

to

consider

the

While
alleged

discriminatory acts that took place in November of 2006, the Court
finds that it may consider the incidents from November of 2006 as
part

of

Gonzalez’s

hostile

environment

claim

because

those

Civil No. 09-1850 (FAB)

41

incidents may all be “part of one unlawful employment practice.”
Id. at 118.
In order to state a prima facie case of hostile
work environment under Title VII, a plaintiff must prove the
following:

“(1) that she (or he) is a member of a protected class;

(2) that she was subjected to unwelcome sexual harassment; (3) that
the harassment was based upon sex; (4) that the harassment was
sufficiently severe or pervasive so as to alter the conditions of
plaintiff's employment and create an abusive work environment;
(5) that sexually objectionable conduct was both objectively and
subjectively offensive, such that a reasonable person would find it
hostile or abusive and the victim in fact did perceive it to be so;
and

(6)

that

established.”

some

basis

for

employer

liability

has

been

O’Rourke v. City of Providence, 235 F.3d 713, 728

(1st Cir. 2001).

Gonzalez alleges that in late 2006, Torres asked

Gonzalez into his office, asked her to dance with him and locked
the door, gave her discomfiting looks, told her she “should be
scared” to be alone with him, asked her out and told her he wanted
to kiss her, and called her and asked what she would be wearing to
an employee softball game.

(Docket No. 203 at 2-3.)

Gonzalez

alleges that these incidents affected her ability to work: she was
treated in the ER on many occasions, had anxiety attacks and was
depressed, and ultimately reported to the State Insurance Fund
(SIF) for several months.

(Docket No. 203 at 26.)

Finally,

Civil No. 09-1850 (FAB)

42

employer liability is established because “[a]n employer is subject
to vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee.”

Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

These

allegations, in conjunction with the MRI incident of 2008, state a
plausible claim for discrimination based on gender under Title VII
to survive defendants’ motion to dismiss.

Therefore, the Court

ADOPTS the magistrate judge’s report and recommendation as to these
claims.
b.

Quid Pro Quo Harassment
Defendants

judge’s

recommendation

denying

also

challenge

defendants’

the

motion

magistrate
to

dismiss

Gonzalez’s quid pro quo sexual harassment claim against Torres.
“To make out a prima facie case of quid pro quo harassment . . .
the plaintiff must show that (1) he or she was subject to unwelcome
sexual advances by a supervisor . . . and (2) that his or her
reaction to these advances affected tangible aspects of his or her
compensation, terms, conditions, or privileges of employment or
educational training.”

Lipsett v. University of Puerto Rico, 864

F.2d 881, 898 (1st Cir. 1988). The first element is clearly met by
the facts

alleged

by

Gonzalez

as

described

in

the preceding

section.

As for the second element, “[a] tangible employment

action constitutes a significant change in employment status, such

Civil No. 09-1850 (FAB)
as

hiring,

firing,

43

failing

to

promote,

reassignment

with

significantly different responsibilities, or a decision causing a
significant

change

in

benefits.”

Ellerth,

524

U.S.

at

761.

Defendants maintain that Gonzalez “did not claim that she was
discharged, demoted or had no other choice but to resign because of
her rejections to Torres’ ‘sexual advances’ actions.”

(Docket

No. 229 at 22.) The magistrate judge, however, found that Gonzalez
suffered a tangible change in her employment conditions through
“isolation, increased job duties, and unjustified disciplinary
actions, culminating in her physical illness and sick leave while
reported to the SIF.”

(Docket No. 203 at 28.)

It is further

plausible that Gonzalez’s leave from work while she was being
treated at the SIF caused her to be “denied an economic benefit”
that was causally related to the sexual advances made by Torres and
rejected by her.

Acevedo Vargas v. Colon, 68 F.Supp.2d 80, 90

(D.P.R. 1999) (quoting Kotcher v. Rosa and Sullivan Appliance Ctr.
Inc., 957 F.2d 59, 62 (2nd Cir. 1992)).

The First Circuit Court of

Appeals has held that “[i]f the plaintiff is threatened, and if the
plaintiff is rewarded or punished, then there is quid pro quo
harassment.”

Lipsett,

864

F.2d

at

913-914

(finding

that

a

reasonable jury could infer that plaintiff was pressured for sexual
favors and retaliated against when after rejecting sexual advances
from doctor, plaintiff described how doctor refused to meet with
her and hear her side of the story before submitting complaints

Civil No. 09-1850 (FAB)
about her to a supervisor.)

44
Thus, the Court finds that Gonzalez

has plausibly alleged a claim for quid pro quo harassment under
Title VII and the Court ADOPTS the magistrate judge’s report and
recommendation as to this claim.
c.

Retaliation
Defendants allege that the magistrate judge

improperly denied defendants’ motion to dismiss Gonzalez’s claims
of retaliation. In order for a plaintiff to make out a prima facie
case of retaliation under Title VII, she must prove that “(1) she
engaged in protected conduct under Title VII; (2) she suffered an
adverse employment action; and (3) the adverse action was causally
connected to the protected activity.”

Fantini v. Salem State

College, 557 F.3d 22, 32 (1st Cir. 2009) (quoting Marrero v. Goya
of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir. 2002)).

Defendants

do not contest that Gonzalez engaged in protected activity when she
filed a complaint to the EEOC in August of 2008.2
at 29.)

(Docket No. 203

Nor do they challenge the fact that the alleged adverse

employment actions lack factual or legal support.

The First

Circuit Court of Appeals has stated that “adverse employment

2

Unlike Lugo, Gonzalez’s filing of an EEOC complaint in
August of 2008 also qualifies as a protected activity for the
purpose of stating a claim for relief under Puerto Rico Law 115.
See Cabrera v. Sears, Roebuck de Puerto Rico, Inc., No. 08-1325,
2009 WL 2461688, at *9 (D.P.R. Aug. 10, 2009) (finding that where
plaintiff filed a charge with the EEOC and was discharged by
defendant, plaintiff had established a prima facie case under Law
115).

Civil No. 09-1850 (FAB)
actions

include

assignments,

45

‘demotions,

refusals

to

disadvantageous

promote,

unwarranted

transfers

or

negative

job

evaluations, and toleration of harassment by other employees.’”
Marrero, 304 f.3d at 23 (quoting White v. New Hampshire Dept. of
Corrections, 221 F.3d 254, 262 (1st Cir. 2000)).
Defendants’ primary argument is that there is
“no temporal proximity between the alleged protected activity and
the alleged adverse [employment] action[s]” (Docket No. 229 at 26),
which

include:

receiving

negative

remarks

and

looks

by

supervisors, being kept later than other employees on Christmas Eve
2008, issuing memos about medical certificates after she took
sickness or injury leave, blaming her for others’ sub-par work,
throwing papers on her desk, and allowing her coworkers to yell at
her. (Docket No. 203 at 29.)

In support of this claim, defendants

maintain that there was an eight month gap between April 8, 2008,
the last time Gonzalez submitted a complaint against Torres before
he was fired, and December 24, 2008, when Gonzalez experienced her
first alleged adverse employment action (being kept later than
other employees on Christmas Eve).

Defendants fail to mention,

however, that Gonzalez was reporting to the SIF until August 14,
2008.

(Docket No. 203 at 7.)

Thus, the eight month gap, while

technically correct, does not take into account the fact that
Gonzalez was absent from her workplace for over four months in
between the time she engaged in protected activity and allegedly

Civil No. 09-1850 (FAB)

46

faced adverse employment actions.

Defendants are correct that the

four-month period between the time Gonzalez returned to work
(August

14,

2008)

and

experienced

her

first

alleged

adverse

employment action (December 24, 2008) may be “insufficient to
establish a causal connection based on temporal proximity” alone.
(Docket No. 229 at 27, citing Calero-Cerezo v. U.S. Dept. of
Justice, 355 F.3d 6, 25-26 (1st Cir. 2004)).

The gap in time,

however, is not so remote as to foreclose the possibility of a
causal connection between the protected activity and the alleged
adverse action.

Compare Benoit, 331 F.3d at 175 (finding that

plaintiff failed to show a causal link between the protected
activity and the adverse job action when more than one year had
passed

in

between

his

complaints

termination from employment.)

of

discrimination

and

his

At this stage of the proceedings,

the Court finds that Gonzalez has plausibly alleged a claim of
retaliation,

and

ADOPTS

the

magistrate

judge’s

report

and

recommendation with respect to this claim.
3.

Puerto Rico Law Claims
Finally,

defendants

move this

Court

to

dismiss

plaintiffs’ claims under Puerto Rico Laws 17, 69, 100 and 115.
Defendants incorporate by reference their arguments regarding Title
VII sexual harassment law to apply to local Laws 17, 69 and 100,
because “the substantive law of Puerto Rico on sexual harassment .
. . appears to be aligned . . . with Title VII law . . . .”

Civil No. 09-1850 (FAB)

47

(Docket No. 229 at 28.)

Given the fact that the Court has adopted

the magistrate judge’s report and recommendation with respect
plaintiff

Gonzalez’s

Title

VII

sexual

harassment

claims,

defendants’ motion to dismiss Gonzalez’s claims under Laws 17, 69
and 100 is DENIED and the magistrate judge’s recommendation is
ADOPTED with regard to those claims.

The Court further ADOPTS the

magistrate judge’s recommendation to DISMISS Lugo’s claims under
Laws 17, 69 and 100 because her Title VII harassment claims were
time-barred.
As to Law 115, the Court has already addressed
plaintiff Lugo’s claims under Law 115.

Defendants maintain that

“Law 115 requires the same adverse employment action showing as a
Title VII retaliation claim . . . .”

(Docket No. 229 at 28.)

The

Court has adopted the magistrate judge’s report and recommendation
with respect to Gonzalez’s claims for Title VII retaliation, and
finds that Gonzalez has similarly established a plausible claim for
relief under Law 115.3

Thus, the Court ADOPTS the magistrate

judge’s recommendation to DENY dismissal of Gonzalez’s claims under
Law 115.

3

Unlike plaintiff Lugo, who failed to assert a claim under
Law 115, plaintiff Gonzalez has established that she engaged in a
protected activity under Law 115 because she filed a complaint with
the EEOC prior to her termination.

Civil No. 09-1850 (FAB)

48

III. Conclusion
The Court has made an independent examination of the entire
record in this case and ADOPTS IN PART AND REJECTS IN PART the
magistrate judge’s findings and recommendations. Specifically, the
magistrate judge’s findings are REJECTED with regard plaintiff
Lugo’s Law 115 claims.

Contrary to the report and recommendation,

the Court DISMISSES WITH PREJUDICE Lugo’s claims under Law 115.
Accordingly, defendant’s motion to dismiss, (Docket No. 64),
is GRANTED IN PART AND DENIED IN PART.

The Court DISMISSES WITH

PREJUDICE (1) both plaintiffs’ claims against all defendants under
the First Amendment and the FMLA; (2) both plaintiffs’ Title VII
claims against the individual defendants and their spouses and
conjugal partnerships (where applicable); (3) both plaintiffs’
Article 1802 and 1803 claims; (4) all of Lugo’s claims under Title
VII and Laws 17, 69, 100 and 115 for discrimination and for
retaliation based on reporting her alleged harassment (i.e. all
claims arising out of her second EEOC charge); (5) all of Lugo’s
claims under Law 115 for retaliation based on participation-based
retaliation; (6) Gonzalez’s claims under Laws 17, 69 and 100
against the individual defendants, their spouses and conjugal
partnerships
(7)

(where

Gonzalez’s

defendants,

applicable)

claims

their

under

spouses

Law

and

except
115

against

against

conjugal

applicable) except against Torres and Cruz.

Torres;

the

and

individual

partnerships

(where

The Court DISMISSES

Civil No. 09-1850 (FAB)

49

WITHOUT PREJUDICE (1) Gonzalez’s claims under Laws 17, 69 and 100
against

Torres’s

conjugal

partnership

with

his

spouse;

and

(2) Gonzalez’s claims under Law 115 against Torres’s and Cruz’s
spouses and conjugal partnerships.

The Court DENIES defendants’

motion to dismiss (1) Lugo’s Title VII claims for participationbased

retaliation

against

the

Hospital

and

its

insurers;

(2) Gonzalez’s Title VII claims against the Hospital and its
insurers; (3) Gonzalez’s claims against Torres, the Hospital, and
its insurers under Laws 17, 69 and 100; and (4) Gonzalez’s Law 115
claims against Torres and Cruz.

Those claims remain.

IT IS SO ORDERED.
San Juan, Puerto Rico, September 28, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE