Montalvo v. Correa-Ruiz et al

Filing 38

OPINION AND ORDER. GRANTED in part and DENIED in part 23 MOTION to dismiss as to Municipality of Guaynabo filed by Municipality of Guaynabo. Signed by Judge Salvador E Casellas on 10/19/2010.(LB)

Montalvo-Ruiz v. Municipality of Guaynabo, et al

Doc. 38

1 2 3 4 5 6 7 8 9 10 11 12

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO M A R I B E L MONTALVO RIOS, Plaintiff v. M U N I C IP A L I T Y OF GUAYNABO, ET A L ., Defendants C iv il No. 10-1293 (SEC)

OPINION and ORDER Pending before this Court is Co-Defendant Municipality of Guaynabo's ("Co-Defendant" o r "Municipality") Motion to Dismiss (Docket # 23) and Plaintiff's opposition thereto (Docket # 29). Upon reviewing the filings, and the applicable law, Co-Defendant's motion is G R A N T E D in part and DENIED in part.

13 Factual Background 14 15 16 17 18 19 20 21 22 23 24 25 26 The detailed and extensive account of the alleged harassment is included in the complaint. See Docket # 1.
2

On April 8, 2010, Plaintiff1 filed suit against Co-defendant, among other defendants, u n d e r Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§2000e et seq.), and applicable state la w , alleging sexual harassment and retaliation. According to the complaint, between January a n d August 2009 Plaintiff was subjected to a pattern of unwanted sexual advances from C a rm e lo Correa ("Correa"), also a co-defendant in this action, and at the time, Chief C o m m iss io n e r of the Police Department for the Municipality of Guaynabo.2 On August 21, 2 0 0 9 , Plaintiff filed an internal harassment complaint with the Human Resources Office of the M u n ic ip a lity of Guaynabo. She alleges that after filing said complaint, the Municipality re ta lia te d against her.

Plaintiff was an Executive Officer for the Purchases and supplies Division of the Police Department.

1

Dockets.Justia.com

1 2

CIVIL NO. 10-1293 (SEC)

Page 2

O n July 16, 2010, Co-Defendant Municipality of Guaynabo moved for dismissal, arguing 3 th a t Plaintiff failed to state claims for sexual harassment and retaliation. Docket # 23. Plaintiff 4 o p p o s e d (Docket # 29), Co-Defendant replied (Docket # 33), and Plaintiff sur-replied (Docket 5 6 7 8 9 10 11 12 13 14 15 16 M a te o , 292 F.3d 31, 34 (1st Cir. 2002); Correa Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 17 18 19 20 21 22 23 24 25 26 (1st Cir. 1990). However, "the tenet that a court must accept as true all of the allegations c o n ta in e d in a complaint is inapplicable to legal conclusions." First Med. Health, 681 F. Supp. 2 d at 114 (citing Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009)). Specifically, " [ t]h re a d b a re recitals of the elements of a cause of action, supported by mere conclusory s ta te m e n ts , do not suffice." Id. Nor does a complaint suffice if it tenders "naked assertion[s]" d e v o id of "further factual enhancement." Iqbal, 129 S.Ct. at 1949. As such, "where the w e ll-p le a d e d facts do not permit the court to infer more than the mere possibility of misconduct, th e complaint has alleged -- but it has not `show[n]'­`that the pleader is entitled to relief.'" First M e d . Health, 681 F. Supp. 2d at 114 (citing Iqbal, 129 S. Ct. at 1950 (quoting FED.R.CIV.P. 8 (a)(2 )). # 37). S ta n d a r d of Review F ED. R. CIV. P. 12 (b)(6) Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to state a claim upon which relief can be granted. First Med. Health Plan, Inc. v. CaremarkPCS C a rib b e a n , Inc., 681 F. Supp. 2d 111, 113-114 (D.P.R. 2010) (citing Fed.R.Civ.P. 12(b)(6)). , When deciding a motion to dismiss under Rule 12(b)(6), the court must decide whether the c o m p la in t alleges enough facts to "raise a right to relief above the speculative level." First Med. H e a lth , 681 F. Supp. 2d at 114 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). In so d o in g , the court construes the complaint in the light most favorable to the plaintiff, accept as tru e all well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Id. (Citing P a r k e r v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008)); see also Medina-Claudio v. Rodriguez-

1 2

CIVIL NO. 10-1293 (SEC)

Page 3

In sum, when passing on a motion to dismiss the court must follow two principles: (1) 3 le g a l conclusions masquerading as factual allegations are not entitled to the presumption of 4 tru th ; and (2) plausibility analysis is a context-specific task that requires courts to use their 5 6 7 8 9 10 11 12 13 14 15 16 h a n d ; the former must be credited, but the latter can safely be ignored." LaChapelle v. Berkshire 17 18 19 20 21 22 23 24 25 26 L if e Ins., 142 F.3d 507, 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1 st Cir.1996)); Buck v . American Airlines, Inc., 476 F. 3d 29, 33 (1st Cir. 2007); see also Rogan v. Menino, 175 F.3d 7 5 , 77 (1st Cir. 1999). Thus Plaintiffs must rely in more than unsupported conclusions or in te rp re ta tio n s of law, as these will be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1 st Cir. 1 9 9 7 ) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1 st Cir. 1988)). T h e re f o re , "even under the liberal pleading standards of Federal Rule of Civil Procedure 8 , the Supreme Court has recently held that to survive a motion to dismiss, a complaint must a lle g e `a plausible entitlement to relief.'" Rodríguez-Ortíz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir. 2007) (citing Twombly, 127 S. Ct. at 1965). Although complaints do not need detailed f a c tu a l allegations, the "plausibility standard is not akin to a `probability requirement,'but it ju d ic ia l experience and common sense. Id. (citing Iqbal, 129 S. Ct. at 1950). In applying these p rin c ip le s , courts may first separate out merely conclusory pleadings, and then focus upon the re m a in in g well-pleaded factual allegations to determine if they plausibly give rise to an e n title m e n t to relief. Id. (Citing Iqbal, 129 S. Ct. at 1950). The First Circuit has held that "dismissal for failure to state a claim is appropriate if the c o m p la in t fails to set forth factual allegations, either direct or inferential, respecting each m a te ria l element necessary to sustain recovery under some actionable legal theory." Gagliardi v . Sullivan, 513 F. 3d 301, 305(1st Cir. 2008). Courts "may augment the facts in the complaint b y reference to documents annexed to the complaint or fairly incorporated into it, and matters s u s c e p tib le to judicial notice." Id. at 305-306. However, in judging the sufficiency of a c o m p la in t, courts must "differentiate between well-pleaded facts, on the one hand, and `bald a s se rtio n s , unsupportable conclusions, periphrastic circumlocution, and the like,' on the other

1 2

CIVIL NO. 10-1293 (SEC)

Page 4

a s k s for more than a sheer possibility that a defendant has acted unlawfully." Twombly, 127 3 S . Ct. At 1965; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff's obligation 4 to "provide the `grounds' of his `entitle[ment] to relief' requires more than labels and 5 6 7 8 9 10 11 12 13 14 15 16 C h a lo u lt v. Interstate Brands Corporation, 540 F.3d 64, 66 (1st Cir. 2008) (citing Faragher v. 17 C ity of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus. Inc. v. Ellerth, 524 U.S. 18 19 20 21 22 23 24 25 26 7 4 2 , 765 (1998). Plaintiff, in opposition, contends that the Faragher-Ellerth defense is not available to C o -D e f e n d a n t since "an employer's liability for a hostile work environment claim depends on th e harasser's employment status relative to the victim's." See Torres-Negron v. Merck & C o m p a n y, 488 F.3d 34 (1st Cir. 2007). She points out that since Correa is the highest ranking c o n c lu s io n s , and a formulaic recitation of the elements of a cause of action will not do." T w o m b ly, 127 S. Ct. At 1965. That is, "factual allegations must be enough to raise a right to re lie f above the speculative level, on the assumption that all allegations in the complaint are tru e ." Parker v. Hurley, 514 F. 3d 87, 95 (1 st Cir. 2008). A p p lic a b le Law and Analysis Harassment claims C o -D e f e n d a n t alleges that dismissal of Plaintiff's sexual harassment claims is warranted b e c a u s e she failed to act with reasonable care to take advantage of the Municipality's safeguards a n d prevent harm that could have been avoided. On this point, Co-Defendant argues that the F a r a g h e r -E lle r th defense forecloses a Title VIII claim against them insofar as an employer is n o t liable when (1) the employer's "own actions to prevent and correct harassment were re a s o n a b le " and (2) "the employee's actions in seeking to avoid harm were not reasonable."

1 2

CIVIL NO. 10-1293 (SEC)

Page 5

o f f ic e r in the Police Department, he is considered an alter ego or proxy of the Municipality, and 3 a s a result, Co-Defendant is automatically liable for his conduct.3 4 I n Faragher, the U.S. Supreme Court held that "[a]n employer is subject to vicarious 5 6 7 8 9 10 11 12 13 14 15 16 o r to avoid harm otherwise." Id. As such, Plaintiff's allegation that the aforementioned defense 17 is inapplicable to the case at bar fails. 18 19 20 21 22 23 24 25 26 In its reply, Co-Defendant contests that the highest ranking officer is the Mayor, and that Plaintiff did not plead that the Mayor has delegated certain functions to the Commissioner which could otherwise grant him "high-rank" authority. See Docket 33 ¶ 3. Notwithstanding, Plaintiff notes that the Municipality did not dispute Correa's high ranking status as Police Commissioner at the time of the alleged harassment incidents. See Docket 37 ¶ 2.
3

lia b ility to a victimized employee for an actionable hostile environment created by a supervisor w ith immediate (or successively higher) authority over the employee." Faragher, 524 U.S. at 2 2 9 2 -9 3 . Thus an employer is liable for unlawful harassment whenever the harasser is of a s u f f ic ie n tly high rank to fall "within that class ... who may be treated as the organization's p ro x y." Faragher, 524 U.S. at 2284. Although the employer has no affirmative defense available " w h e n the supervisor's harassment culminates in a tangible employment action, such as d isc h a rg e , demotion, or undesirable reassignment ... when no tangible employment action is ta k e n , a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence." Id. at 2293. This defense "comprises two n e c e s s a ry elements: (a) that the employer exercised reasonable care to prevent and correct p ro m p tly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably f a ile d to take advantage of any preventive or corrective opportunities provided by the employer

Co-Defendant's argument that Correa was not an alter ego of the Co-Defendant because h e was not a high ranking officer is also unpersuasive. More so considering that in his answer to the complaint, Correa admits that he was the highest ranking official in the Police Department o f the Municipality of Guaynabo. See Docket 21 ¶18. Accordingly, this Court finds that Correa is an alter ego of the Municipality, of sufficiently high rank as defined in Faragher. Correa was,

1 2

CIVIL NO. 10-1293 (SEC)

Page 6

in fact, in a position where he was construed as the Municipality's proxy. As such, Co3 D e f e n d a n t must show that it exercised reasonable care to prevent and correct any sexually 4 h a ra ss in g behavior, and that Plaintiff failed to take advantage of the internal mechanisms 5 6 7 8 9 10 11 12 13 14 15 16 Based on the foregoing, Co-Defendant's request for dismissal of Plaintiff's sexual 17 h a ra ss m e n t claims is DENIED. 18 19 20 21 22 Retaliation claims C o -D e f e n d a n t also alleges that Plaintiff's pleadings regarding retaliation are insufficient u n d e r the heightened Iqbal pleading standard, insofar as they are "conclusory, speculative [and] a mechanical recitation of the elements of a cause of action." Docket # 23, p. 6. In her complaint, Plaintiff alleges retaliation under Title VII, 42 U.S.C. § 2000e3(a), a v a ila b le in this type of case. Plaintiff does not allege that the Municipality lacked an anti-harassment policy. Instead, s h e argues that the Municipality's proceedings following her complaint were procedurally d e f e c tiv e . After reviewing the complaint, this Court finds that the Municipality employed re a s o n a b le care to prevent sexual harassment in general, and acted promptly when Plaintiff filed h e r claim, to wit, a hearing was held and Correa subsequently resigned. As such, the first prong o f the Faragher/Ellerth defense is met. Nevertheless, we also believe that Plaintiff took a d v a n ta g e of the internal grievance procedure provided by the Municipality, albeit a year after th e alleged acts began. This delay does not, however, change the fact that she informed the M u n i c ip a lity about the alleged sexual harassment, and fully took advantage of its internal p ro c e d u re s to remedy the situation. Therefore, Co-Defendant did not satisfy the second prong o f the Faragher/Ellerth defense.

23 w h ic h seeks to prevent employers from retaliating against an employee for attempting to enforce 24 rig h ts under Title VII. See DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008). Said retaliation 25 p ro v is io n makes it illegal "for an employer to discriminate against any of his employees ... 26

1 2

CIVIL NO. 10-1293 (SEC)

Page 7

b e c a u s e he has made a charge, testified, assisted, or participated in any manner in an 3 in v e s tig a tio n , proceeding, or hearing" under this subchapter. 42 U.S.C. § 2000e-3(a). 4 Unless direct evidence is available, Title VII retaliation claims may be proven by using 5 6 th e burden-shifting framework set forth down in McDonnell Douglas Corp. v.Green, 411 U.S. 7 9 2 (1973). In order to establish a prima facie case of retaliation, the plaintiff must show that

7 (1 ) she engaged in protected activity; (2) the employer was aware of that activity; (3) she 8 s u f f e re d an adverse employment action and (4) there was a causal connection between the 9 p r o t e c t e d activity and the adverse employment action. Id.; see also Gu v. Boston Police 10 D e p a rtm e n t., 312 F.3d 6, 14 (1 st Cir. 2002). 11 T h e allegations set forth by Plaintiff, accepted as true, are sufficient to show that she

4 12 e n g a g e d in a protected activity (filed a sexual harassment complaint) and that the employer was

13 a w a re of that activity. Notwithstanding, Co-Defendant argues that the complaint is devoid of 14 15 16 " re la tiv e ly light burden." Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224 (1 st 17 C ir.2 0 0 7 ). Notwithstanding, a plaintiff is only bound to succeed on a claim of retaliation if he 18 19 p ro v e s that "the employer took a materially adverse employment action against him." Blackie v . Maine, 75 F.3d 716, 725 (1st Cir.1996); Ramos-Biaggi v. Martinez, 98 F.Supp.2d 171, 178 f a c ts showing that she suffered adverse employment actions after engaging in the protected c o n d u c t. Twombly, 127 S. Ct. at 1967. This Court agrees. T h e First Circuit has ruled that establishing a prima facie case of retaliation is a

20 (D .P .R .2 0 0 0 ). A "material change" is construed such as to change the conditions of the 21 p la in tif f 's employment. Gu, 312 F.3d at 14. An "adverse employment action" is met when "the 22 e m p lo ye r's challenged actions result in a work situation `unreasonably inferior' to the norm for 23 th e position." Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 766 (1st Cir.2010) (citing 24 A g o s to -d e -F e lic ia n o v. Aponte-Roque, 889 F.2d 1209, 1218, 1220 (1st Cir.1989) (explaining 25 26 Reporting sexual harassment or initiating a charge of sexual harassment is a protected activity under Title VII. Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir.2003).
4

1 2

CIVIL NO. 10-1293 (SEC)

Page 8

th a t the factfinder must "canvass the specific ways in which the plaintiff's job has changed" and 3 " d e te rm in e whether the employee has retained duties, perquisites and a working environment 4 a p p ro p ria te for his or her rank and title."). Morevoer, "Title VII's anti-retaliation provision 5 6 p ro te c ts an individual not from all retaliation, but from retaliation that produces an injury or h a rm ." Burlington Northern and Santa Fe Ry. Co. v. White, 548 US. 53, 67 (2006). That is, the

7 p rim a ry objective of the antiretaliation provision under Title VII is avoiding harm to employees. 8 C ra w f o rd v. Metropolitan Govt. of Nashville, 129 S. Ct. 846 (2009). "Determining whether an 9 a c tio n is materially adverse necessarily requires a case-by-case inquiry ... that must be cast in 10 o b je c tiv e terms." Blackie, 75 F.3d at 725-26. 11 Title VII's retaliation provision also requires a showing that a reasonable employee would

12 h a v e found employer's challenged action materially adverse, i.e. that the challenged action could 13 w e l l dissuade a reasonable employee from protected conduct. Burlington, 548 U.S. at 67. 14 15 16 Termination clearly constitutes an adverse employment action. Szendrey-Ramos v. First 17 B a n C o rp , 512 F. Supp.2d 81 (D.P.R. 2007). Other examples of adverse employment actions 18 19 in c lu d e failure to timely issue paychecks, failure to provide W-2 forms, and failure to timely pay s ta te and federal taxes. Torres-Negron v. Merck & Company, Inc., 488 F.3d 34, 44 (1st Cir. F u rth e rm o re , the Supreme Court has recently broadened the scope of the antiretaliation p ro v is io n , ruling that it "extends beyond workplace-related or employment-related retaliatory a c ts and harm." Id. at 67. Said harm, however, must not be trivial. Id at. 68.

20 2 0 0 7 ). The denial of an employee's request for office space could also, under certain 21 c irc u m s ta n c e s , constitute an adverse employment action. Lockridge, 597 F.3d at 472. So can, 22 f o r example, the assignment of extra double shifts, removal from a favorable duty, the 23 a s s ig n m e n t of an "unusually long" posting where work was "remote and solitary," Valentinst 24 A lm e id a v. Municipality of Aguadilla, 447 F.3d 85, 97 (1 Cir. 2006), and "acting with great

25 h o s ti l i t y towards plaintiff." Montalvo-Padilla v. University of P.R., 492 F. Supp.2d 36, 42 26

1 2

CIVIL NO. 10-1293 (SEC)

Page 9

(D .P .R .2 0 0 7 ). Context is of pivotal importance, because "the significance of any given act of 3 re ta lia tio n will often depend upon the particular circumstances." Burlington, Id. at 69. 4 In the complaint, Plaintiff sets forth the following alleged retaliatory acts: (1) that, as 5 6 re s u lt of her rejection of his sexual advances, "Correa instructed several policemen to follow her e v e ryw h e re she went," Docket # 1, ¶ 47; (2) that "the Municipality had determined that it would

7 re ta lia te against [her] for filing the internal complaint and that the complaint would be decided 8 a g a in s t her in order to clear the Municipality's name," id. at ¶ 48; (3) that "the hearing was 9 c o n d u c te d in violation [of] the rules and regulations, and [violated her] procedural due process 10 rig h ts ," id. at ¶ 50; (4) that she was "subjected to retaliation as a result of the internal sexual 11 h a ra s s m e n t complaint she filed," id. at ¶ 55; (5) after the hearing, "some of her co-workers have 12 m o c k e d [her], made offensive remarks, among others," id. at ¶ 56; (6) that "the Mayor began to 13 p re s s u re [her] to accept a transfer to another department," id. at ¶ 57; and (7) that she "felt 14 15 16 th a t lack factual support, and thus, fail under Iqbal. Additionally, Plaintiff sets forth conclusory 17 s ta te m e n ts regarding the Municipality's alleged intent to retaliate against her, without any facts 18 19 th a t support such position.5 Moreover, although Plaintiff alleges that the Mayor began to p re s s u re her to accept a transfer to a position that she did not qualify for, there are no factual re ta lia te d against for filing a sexual harassment claim against the Commissioner," id. at ¶58. This Court first notes that Plaintiff's averments that she was retaliated against for filing a harassment complaint (Docket #1, ¶¶ 55 & 58) are formulaic recitations of her cause of action

20 a lle g a tio n s as to whether said putative transfer involved a demotion, a change in salary or 21 e m p lo ym e n t benefits that would otherwise change her current employment situation for the 22 23 24 25 26 The fact that the examiner that presided over the hearing is an employee of the Municipality does not provide factual support to this allegation. All agencies and municipalities' internal procedures are handled by their own personnel. Any allegation regarding the validity of the proceedings must be addressed by the state courts.
5

1 2

CIVIL NO. 10-1293 (SEC)

Page 10

w o rs e , or whether she was effectively transferred.6 As a result, this cannot be construed as an 3 a d v e rs e employment action. 4 S im ila rly, Plaintiff's allegations regarding her co-workers actions are insufficient. Courts 5 6 h a v e distinguished between rudeness and ostracism, on one side of the spectrum, and pervasive h a ra s s m e n t on the other, finding that rudeness or ostracism, by itself, is insufficient to support

7 a hostile work environment claim and that severe or pervasive harassment is actionable. Noviello 8 v . City of Boston, 398 F.3d 76, 89 (1st Cir. 2005). For purposes of a Title VII retaliation claim, 9 m e n a c in g looks, name calling, exclusion from meetings, or being shunned by co-workers does 10 n o t constitute an adverse employment action. Davis v. Verizon Wireless, 389 F. Supp. 2d 458 11 (W .D .N . Y . 2005). While verbal abuse might at times be sufficiently severe and chronic to 12 c o n s titu te an adverse employment action, such behavior, without more, hardly rises to the level 13 o f actionable retaliation. Brennan v. City of White Plains, 67 F. Supp. 2d 362, 374 (S.D.N.Y. 14 15 16 w h o come to his defense, while other coworkers will seek to steer clear of trouble by avoiding 17 b o th parties. Noviello, 398 F.3d at 93. However, albeit unpleasant, "such behavior should not 18 19 b e seen as contributing to a retaliatory hostile work environment." Id. The complaint does not s h o w that Plaintiff here was submitted to a "steady stream of abuse" sufficient to amount to a 1 9 9 9 ). The very act of filing a charge against a coworker will invariably cause tension and result in a less agreeable workplace, since the target of the complaint likely will have coworker-friends

20 re ta lia to ry hostile work environment under Title VII. Even more, Correa voluntarily resigned, 21 a n d there were no additional incidents on this front. Moreover, Plaintiff does not identify the 22 n a m e s and specific instances when these alleged incidents occurred, which also fails to satisfy 23 Iq b a l's requirements, and makes it impossible to determine the severity and nature of the alleged 24 c o m m e n ts . 25 26
6

It seems that Plaintiff still works at the Police Department whereas Correa resigned as Chief.

1 2

CIVIL NO. 10-1293 (SEC)

Page 11

F in a lly, this Court considers the "persecution" allegation brought forth by Plaintiff. 3 Placing an employee under constant surveillance could be evidence of retaliation. Fercello v. 4 5 6 C o u n ty of Ramsey, 612 F.3d 1069, 1081 (8th Cir. 2010). Notwithstanding, Plaintiff does not p ro v id e a factual basis for her allegation, such as the times and places where she was allegedly f o llo w e d by policemen. Additionally, there is no evidence to show that Correa instructed any

7 p o lic e officers to follow her. Her averments on this front are conclusory allegations based on 8 m e re speculation, which are insufficient to survive dismissal under Iqbal. 9 10 11 A c c o rd in g ly, Plaintiff's retaliation claims are DISMISSED with prejudice. Conclusion In light of the above, Co-Defendant's motion to dismiss is GRANTED in part and

12 D E N I E D in part. Plaintiff's retaliation claims are DISMISSED with prejudice. Partial 13 J u d g m e n t will be entered accordingly. 14 15 16 17 18 19 20 21 22 23 24 25 26 IT IS SO ORDERED. In San Juan, Puerto Rico, this 19th day of October, 2010. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U .S . Senior District Judge