Torres v. Liceo Eugenio Maria de Hostos

Filing 17

OPINION AND ORDER denying 12 Motion to Dismiss. Signed by Judge Juan M Perez-Gimenez on 6/1/2011. (PMA)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
MELISSA TORRES,
Plaintiff,
v.

CIV. NO. 10-1540 (PG)

LICEO EUGENIO MARIA DE HOSTOS,
Defendant.

OPINION AND ORDER
Pending before the Court is defendant Liceo Eugenio Maria de Hostos’
motion to dismiss (Docket No. 12) and plaintiff Melissa Torres’ opposition
thereto (Docket No. 13). For the reasons set forth below, the Court DENIES the
defendant’s request.
I. BACKGROUND
On June 15, 2010, plaintiff Melissa Torres (“Torres” or “Plaintiff”),
filed the above-captioned claim against defendant Liceo Eugenio Maria de
Hostos (“Defendant” or “the Liceo”) seeking redress for alleged discrimination
on the basis of sex and pregnancy pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), 29 U.S.C. §§ 2000e et seq., and the Pregnancy
Discrimination Act of 1978 (“PDA”), 29 U.S.C. § 2000e-(k). Plaintiff also
invokes the supplemental jurisdiction of the court to adjudicate her claims
under various Puerto Rico state laws.
In

her

complaint,

the

Plaintiff

alleges

that

she

exhausted

all

jurisdictional prerequisites before initiating the instant judicial claim by
filing the corresponding charges of discrimination and retaliation with the
Equal

Employment

Department

of

Opportunity

Labor’s

Commission

(“EEOC”)

Anti-Discrimination

Unit

and

the

Puerto

Rico

on

March

24,

2009.

Additionally, Torres claims to have filed the instant complaint within ninety
(90) days of receiving the EEOC’s Notice of Right To Sue (“the Notice”). See
Docket No. 1 at ¶ 5. According to Plaintiff, she started working for Defendant
on

August

1,

2008

as

a

mathematics

teacher.

She

began

working

on

a

probationary basis, but obtained her permanency on November 1, 2008. Torres
claims that on January 29, 2009, she reported to the State Insurance Fund
(“SIF”) as a result of an emotional crisis caused by unfounded reprimands in

CIV. NO. 10-1540 (PG)

Page 2

the workplace. Notwithstanding, she returned to work on March 2, 2009 after
receiving a written authorization from the SIF to return to work while still
under treatment. However, the Defendant allegedly terminated her employment
after she met with the school’s owners upon her return to inform them of the
SIF’s authorization and to tell them that she was pregnant. Defendant alleged
that she was being terminated due to the students’ parents’ complaints, an
allegation that Torres denies. On the contrary, it is Plaintiff’s contention
that she was discharged because of her pregnancy and in retaliation for filing
a claim with the SIF. See Docket No. 1.
Shortly after filing an answer to the complaint (Docket No. 7), the
Defendant filed a motion to dismiss arguing that the instant claim is timebarred to the extent it was filed after the applicable 90-day period after the
receipt of the EEOC’s Notice. In her opposition, though, the Plaintiff submits
her claim was timely filed. See Docket No. 13.
II. STANDARD OF REVIEW
Motions to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6) are
subject

to

the

same

standard

of

review.

See

Negron-Gaztambide

v.

Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Firstly, when ruling on a
motion to dismiss for failure to state a claim, a district court “must accept
as true the well-pleaded factual allegations of the complaint, draw all
reasonable inferences therefrom in the plaintiff’s favor, and determine
whether the complaint, so read, limns facts sufficient to justify recovery on
any cognizable theory.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10,
15 (1st Cir.2009) (citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,
508 (1st Cir.1998)). Additionally, courts “may augment the facts in the
complaint by reference to (i) documents annexed to the complaint or fairly
incorporated into it, and (ii) matters susceptible to judicial notice.”
Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.2008) (internal citations
and quotation marks omitted).
In determining whether dismissal of a complaint is appropriate pursuant
to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that “[t]he general
rules of pleading require a short and plain statement of the claim showing
that the pleader is entitled to relief. … This short and plain statement need
only give the defendant fair notice of what the … claim is and the grounds
upon which it rests.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d
45, 48 (1st Cir.2009) (internal citations and quotation marks omitted).
Nevertheless, “even under the liberal pleading standard of Federal Rule of

CIV. NO. 10-1540 (PG)

Page 3

Civil Procedure 8, the Supreme Court has … held that to survive a motion to
dismiss,

a

complaint

must

allege

a

plausible

entitlement

to

relief.”

Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 556). That is, “[f]actual allegations must be enough to
raise a right to relief above the speculative level, … , on the assumption
that all the allegations in the complaint are true (even if doubtful in
fact)….” Twombly, 550 U.S. at 555 (internal citations and quotation marks
omitted). “Determining whether a complaint states a plausible claim for relief
will … be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.
“In resolving a motion to dismiss, a court should employ a two-pronged
approach. It should begin by identifying and disregarding statements in the
complaint that merely offer legal conclusions couched as fact or threadbare
recitals

of

the

elements

of

a

cause

of

action.”

Ocasio-Hernandez

v.

Fortuno-Burset, --- F.3d ----, 2011 WL 1228768, at *9 (1st Cir. April 1, 2011)
(citing Twombly, 550 U.S. at 555) (internal quotation marks omitted). Although
a complaint attacked by a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) “does not need detailed factual allegations, … , a
plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do … .” Twombly, 550 U.S. at 555
(internal citations and quotation marks omitted). That is, the court “need not
accept as true legal conclusions from the complaint or naked assertions devoid
of further factual enhancement.” Maldonado v. Fontanes, 568 F.3d 263, 266 (1st
Cir.2009)

(citing

Iqbal,

129

S.Ct.

at

1960).

“Non-conclusory

factual

allegations in the complaint must then be treated as true, even if seemingly
incredible.” Ocasio-Hernandez, 2011 WL 1228768 at *9 (citing Iqbal, 129 S.Ct.
at 1951).
When evaluating the plausibility of a legal claim, a court may not
“attempt to forecast a plaintiff’s likelihood of success on the merits; a
well-pleaded complaint may proceed even if … a recovery is very remote and
unlikely.” Ocasio-Hernandez, 2011 WL 1228768 at *9 (citing Twombly, 550 U.S.
at 556). Thus, “[t]he relevant inquiry focuses on the reasonableness of the

CIV. NO. 10-1540 (PG)

Page 4

inference of liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint.” Ocasio-Hernandez, 2011 WL 1228768 at *9.
III. DISCUSSION
“Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
as amended, prohibits employment discrimination on the basis of race, color,
religion, sex, or national origin.” Ricci v. DeStefano, 129 S.Ct. 2658, 2672
(2009). Pursuant to Title VII, a plaintiff is required to exhaust his/her
administrative remedies before suing in federal court, including by filing a
complaint with the Equal Opportunity Employment Commission. See Uphoff
Figueroa

v.

Alejandro,

597

F.3d

423,

431

(1st

Cir.2010)

(quoting

Frederique-Alexandre v. Dep’t of Natural & Envtl. Res., 478 F.3d 433, 440 (1st
Cir.2007); Jorge v. Rumsfeld, 404 F.3d 556, 564-65 (1st Cir.2005)). Hence, a
federal entity “may only be sued in federal court if the aggrieved employee
or applicant for employment has exhausted all available administrative
remedies.” Misra v. Smithsonian Astrophysical Observatory, 248 F.3d 37, 40
(1st Cir.2001).
“The

[EEOC]

was

assigned

the

responsibility

of

establishing

the

mechanisms and deadlines for employees and applicants to employment to
initiate the administrative process for claims based on discrimination
encompassed within Title VII.” Colon v. Mills, 646 F.Supp.2d 224, 233 (D.P.R.
2009) (citing 42 U.S.C. § 2000e-16(b)). Pursuant to authority granted under
the statute, the EEOC has issued regulations requiring a federal employee to
initiate contact with an EEOC counselor within 45 days of the alleged
discriminatory act, and then file an administrative complaint with the agency
prior to filing suit in federal court. See 29 C.F.R. § 1614.105. “Failure to
contact the counselor within the 45-day term provided by the regulations
causes plaintiff to lose the right to subsequently bring suit in court.”
Colon v. Mills, 646 F.Supp.2d at 234 (quoting Roman-Martinez v. Runyon, 100
F.3d 213, 217 (1st Cir.1996)). The aggrieved person must then file a judicial
complaint within 90 days of receipt of notice of the final action taken by the
agency. See 42 U.S.C. § 2000e-16(c).
In its motion to dismiss, the Defendant argues that Torres’ claim should
be dismissed inasmuch as the EEOC’s Notice was issued on March 4, 2010 and the
complaint was filed 103 days later on June 15, 2010, that is, well outside the
statutory 90-day term. The Defendant claims to have received the Notice on
March 9, 2010, and if presumably Plaintiff received it on that same date, the
complaint should have been filed by June 7, 2010. According to the Defendant,

CIV. NO. 10-1540 (PG)

Page 5

the complaint is thus time-barred. See Docket No. See Docket No. 12. The
Plaintiff opposed the Defendant’s request for dismissal submitting proof that
she did not receive the EEOC’s Notice until March 22, 2010, and thus, her
complain was timely filed. See Docket No. 13.
As previously stated, the aggrieved person must file a judicial complaint
within 90 days of receipt of notice of the final action taken by the EEOC. See
42 U.S.C. § 2000e-16(c). In addition, this district has previously held that
in cases in which the date of a Title VII claimant’s receipt of a right-to-sue
letter or notice of dismissal is either disputed or cannot be established,
FED.R.CIV.P. 6(d) creates a presumption that the communication was received by
the plaintiff three days after it was issued by the EEOC. See Vargas-Caban v.
Sally Beauty Supply Co., 476 F.Supp.2d 109, 113-114 (D.P.R. 2007) (citing
Sanchez Ramos v. P.R. Police Dept., 392 F.Supp.2d 167, 175 (D.P.R.2005)). See
also Hill v. Textron Auto Interiors, Inc., 160 F.Supp.2d 179, 183 (D.N.H.2001)
(“In the absence of evidence to the contrary, courts will presume that a
plaintiff received his or her right-to-sue letter three days after the EEOC
mailed it”).
However, contrary to what the Defendant purports in its request for
dismissal,

the

three-day

presumption

is

inapplicable

here

because

the

Plaintiff has been able to establish her receipt of the Notice. It stems from
the exhibits the Plaintiff submits that it was not until March 22, 2010 that
she did indeed receive the Notice, and thus, she had until June 21, 20101 to
file a judicial complaint. See Docket No. 13-2. Inasmuch as the complaint was
filed on June 15, 2010, the Court finds that Torres’ claim is not time-barred.
IV. CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss (Docket
No. 12) is hereby DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, June 1, 2011.

S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE

1
The 90th day was June 19, 2010, which was a Saturday, and thus the period continued
to run until the end of the next day that was not a Saturday, Sunday or legal holiday, in
this case June 21, 2010.