Negron-Pacheco v. Colegio de la Vega, Inc. et al

Filing 27

ORDER granting 21 Motion to Dismiss Signed by Judge Jay A Garcia-Gregory on 6/22/2011. (LL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GISELLE NEGRON PACHECO, et al.,
Plaintiff(s)

CIVIL NO. 10-1181 (JAG)

v.
COLEGIO DE LA VEGA INC., et al.,
Defendant(s)

OPINION AND ORDER
GARCIA-GREGORY, D.J.
Before the Court is Co- individual Defendants‟ Motion to
Dismiss

Plaintiff‟s

Pregnancy

complaint

Discrimination

Act

for

violations

of

1978

to

Title

(hereinafter

VII‟s

“PDA”).

(Docket No. 21). For the reasons set forth, the Court grants
Defendants‟ motion.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Negron initially applied for a job as a teacher
with Defendant Colegio de la Vega (hereinafter “Colegio”), but
was

informed

that

there

were

no

positions

available

at

the

moment. Sometime later a position became available and she was
invited to a job interview on March 3, 2009.
The interview was conducted by Laura E. Marrero, the school
director, a co-defendant in this case (hereinafter “Marrero”).
At the conclusion of the interview, Marrero told Plaintiff that

Civil No. 10-1181
she

was

among

position,

the

and

2
few

urged

persons

Plaintiff

qualified
to

take

for

the

the

job.

teaching
Plaintiff

verbally accepted. At this point, there had been no mention of
Plaintiff‟s pregnancy.
Marrero then asked Plaintiff to go to co-defendant Gladys
Tapia‟s

(hereinafter,

“Tapia”)

office

to

sign

the

employment

contract. Marrero also asked plaintiff if she had any children,
to which Plaintiff responded that she was five months pregnant.
Upon learning of this, Marrero replied that the offer was made
under the assumption that Plaintiff was not pregnant, and that
the matter of her employment had to be discussed with Tapia in
light of this new information. Plaintiff and Marrero then went
to Tapia‟s office.
Tapia, the owner of the school, told Marrero that although
she was qualified for the job, they did not expect her to be
pregnant. She was not given the job.
STANDARD OF REVIEW
Motion to Dismiss Standard of Review
In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the
Supreme Court held that to survive a motion to dismiss under
Rule 12(b)(6), a complaint must allege “a plausible entitlement
to relief.” Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92,
95-96 (1st Cir. 2007) (quoting Twombly, 550 U.S. at 599). The
Court accepts all well-pleaded factual allegations as true, and

Civil No. 10-1181
draws

all

3

reasonable

inferences

in

plaintiff‟s

favor.

See

Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.
1990). While Twombly does not require of plaintiffs a heightened
fact pleading of specifics, it does require enough facts to have
“nudged

their

claims

across

the

line

from

conceivable

to

plausible.” Twombly, 550 U.S. at 570. Accordingly, in order to
avoid dismissal, the plaintiff must provide the grounds upon
which his claim rests through factual allegations sufficient “to
raise a right to relief above the speculative level.” Id. at
555.
In Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009),
the

Supreme

Court

upheld

Twombly

and

clarified

that

two

underlying principles must guide this Court‟s assessment of the
adequacy of a plaintiff‟s pleadings when evaluating whether a
complaint can survive a Rule 12(b)(6) motion. See Iqbal, 129
S.Ct. at 1949-50.
The

First

Circuit

has

recently

relied

on

these

two

principles as outlined by the Supreme Court. See Maldonado v.
Fontanes, 568 F.3d 263, 266 (1st Cir. 2009). “First, the tenet
that

a

court

must

accept

as

true

all

of

the

allegations

contained in a complaint is inapplicable to legal conclusions.
Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). “Second,

Civil No. 10-1181
only

a

4

complaint

that

states

a

plausible

claim

for

relief

survives a motion to dismiss.” Iqbal, 129 S.Ct. at 1950 (citing
Twombly,

550

allegations

U.S.
in

at

the

556).

Thus,

complaint,

any

nonconclusory

accepted

as

true,

factual
must

be

sufficient to give the claim facial plausibility. Iqbal, 129
S.Ct. At 1950. Determining the existence of plausibility is a
“context-specific task” which “requires the court to draw on its
judicial experience and common sense.” Id. “[W]here the wellpleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged - but
it

has

not

„show[n]‟

-

„that

the

pleader

is

entitled

to

relief.‟” Id. (quoting Fed. R. Civ. P. 8(a)(2)). Furthermore,
such inferences must be at least as plausible as any “obvious
alternative explanation.” Id. at 1950-51 (citing Twombly, 550
U.S. at 567).
DISCUSSION
Co-Defendants
claims

should

be

Marrero

and

dismissed

as

Tapia
to

argue
them.

that
There

Plaintiff‟s
can

be

no

individual liability under PDA; only an “employer” can be found
liable under the statute. 42 U.S.C. § 2000(e)(b). Accordingly,
Defendants aver, this suit should be dismissed as to them.
In her response, Plaintiff counters that although PDA does
not provide for personal liability of individuals, Defendants
Marrero

and

Tapia

can

nonetheless

be

found

liable

in

their

Civil No. 10-1181

5

official capacities. Plaintiff rests her argument on Sauers v.
Salt Lake County, 1 F.3d 1122 (10th Cir. 1993), where the Tenth
Circuit

indeed

made

this

official/individual

capacity

distinction in the workplace; a distinction usually reserved for
suits against government officers.
There
against

is

no

liability,

individuals

under

personal

Title

VII.

official
Fantini

or
v.

otherwise,
Salem

State

College, 557 F.3d 22 (1st Cir. 2009). PDA imposes liability only
on “employers”, as specifically defined in the statue. Under no
theory can one accommodate an individual employee within the PDA
meaning

of

“employer”

“employer”.
as

“a

person

42

U.S.C.

engaged

in

§

2000(e)(b)(defining

an

industry

affecting

commerce who has fifteen or more employees for each working day
in each of twenty or more calendar weeks in the current or
preceding calendar year”).
It is the use of the

phrase

“and any agent of such a

person” following the definition of “employer” in PDA that leads
Plaintiff to assume that a suit under PDA may proceed against
individuals in their so called official capacity. 42 U.S.C. §
2000(e)(b). This view does find support in the Tenth Circuit‟s
opinion on the matter. Sauers v. Salt Lake County, 1 F.3d 1122
(10th Cir. 1993). We respectfully disagree, and are nonetheless
compelled to follow the First Circuit‟s interpretation of the
phrase, that it is no more than the manifestation of Congress‟s

Civil No. 10-1181

6

intent to impose respondeat superior liability upon employers,
and not a way to drag individual employees into court, in any
capacity. Fantini v. Salem State College, 557 F.3d 22, 30 (1st
Cir. 2009)(citing Birkbeck v. Marvel Lightning Corp., 30 F.3d
507, 510 (4th Cir. 1994); and Miller v. Maxwell‟s Int‟l. Inc.,
991 F.2d 583, 587 (9th Cir. 1993)).
Since there can be no individual liability of any kind
under PDA, there can be no claim against Marrero and Tapia.
Plaintiff‟s
dismissed.
these

PDA

claims

Plaintiff‟s

individual

against

Marrero

supplemental

Defendants

and

Tapia

state
also

are

law

must

claims

dismissed,

be

against
without

prejudice, pursuant to the Court‟s discretion under 42 U.S.C. §
1367(c).
CONCLUSION
For

the

reasons

stated

above,

the

Court

hereby

GRANTS

Individual Defendants‟ Motion to Dismiss. Plaintiff‟s PDA claims
against Defendants Marrero and Tapia shall be dismissed with
prejudice. Plaintiff‟s state law claims against these Defendants
shall be dismissed without prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 22st day of June, 2011.

S/Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge