Torrente-Leyva v. Capitol Security Police, Inc.
Filing
32
OPINION AND ORDER DENYING 10 MOTION to Dismiss/Lack of Jurisdiction as to Capitol Security Police, Inc., filed by Capitol Security Police, Inc. Settlement Conference set for 12/9/2011 01:30 PM in Courtroom 7 before Judge Jose A Fuste. Signed by Judge Jose A Fuste on 11/29/2011.(mrj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN CARLOS TORRENTE-LEYVA,
Plaintiff
v.
CIVIL NO. 10-1550 (JP)
CAPITOL SECURITY POLICE, INC.,
Defendant
OPINION AND ORDER
Before the Court is Defendant Capitol Security Police, Inc.’s
(“Capitol Security”) motion to dismiss Plaintiff’s complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction (Docket No. 10) and Plaintiff’s opposition.
(Docket No. 15.) On June 17, 2010, Plaintiff Juan Carlos TorrenteLeyva’s (“Plaintiff”) brought the instant action pro se against
Defendant Capitol Security alleging discrimination on the basis of
physical and mental disability in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. For the reasons
stated herein, the Court DENIES Defendant’s motion to dismiss.
I.
PLAINTIFF’S FACTUAL ALLEGATIONS
Plaintiff is seventy years old, and for three years was employed
as a security guard by Defendant Capitol Security. (Pl.’s Compl. ¶¶
4, 10.) According to Plaintiff, on March 25, 2008, he returned from
his vacation, and avers that he was told by Defendant that it no
CIVIL NO. 10-1550(JP)
-2-
longer needed his services. People had observed that Plaintiff would
fall asleep at times while he was working. (Id. ¶ 9.) Plaintiff
alleges
that
Capitol
Security
could
have
provided
him
with
a
reasonable accommodation, such as a position that would not give him
allergies and with a different level of activity, but it failed to
do so. (Id.)
Plaintiff alleges that he has recovered from cancer although
he still has respiratory difficulties and other health conditions
such
that
his
“present
clinical
state
is
considerated
[sic]
‘catastrophic’.” (Id. ¶ 4.) Plaintiff alleges that he suffers from
“pancitopenia” that leads to a deficiency in the transportation of
oxygen to the brain and other parts of the body. (Id.) He also
alleges that he suffers from chronic “obstructive pulmonary disease,”
“enfisema [sic] pulmonary,” and gastric system disorders, among other
ailments. (Id. ¶¶ 6, 7.) He avers that because of these ailments he
has difficulty breathing and has momentary loss of knowledge because
of the lack of oxygen to his brain. (Id. ¶¶ 8, 9.) These ailments
affect his work, his home life, and his ability to maintain a
conversation and to operate a computer. (Id.)
Plaintiff brought this suit seeking economic damages and damages
for his emotional and mental health and the suffering of his family.
CIVIL NO. 10-1550(JP)
II.
-3-
LEGAL STANDARD FOR A RULE 12(b)(1) MOTION
Federal courts are courts of limited jurisdiction. Destek Group
v.
State
of
New
Hampshire
Public
318 F.3d 32, 38 (1st Cir. 2003).
Utilities
Commission,
The party claiming there is
jurisdiction carries the burden of showing that the court has
jurisdiction.
Murphy
v.
United
States,
45
F.3d
520,
522
(1st Cir. 1995).
Motions
brought
under
Federal
Rule
of
Civil
Procedure
(“FRCP”) 12(b)(1) are subject to a similar standard as FRCP 12(b)(6)
motions.
Torres Maysonet v. Drillex, S.E., 229 F. Supp. 2d 105,
107 (D.P.R. 2002).
A court must “treat all allegations in the
complaint as true and draw all reasonable inferences therefrom in
favor of the plaintiff.”
Rumford Pharmacy, Inc. v. City of East
Providence, 970 F.2d 996, 997 (1st Cir. 1992); see also Torres
Maysonet, 229 F. Supp. 2d at 107.
This Court construes pro se pleadings liberally in favor of the
pro se party. Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 15 (1st
Cir. 1990). The Supreme Court has held that the allegations of a pro
se complaint, “however inartfully pleaded should be held to less
stringent standards than formal pleadings drafted by lawyers.” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972)).
CIVIL NO. 10-1550(JP)
-4-
III. ANALYSIS
Defendant moves to dismiss Plaintiff’s ADA claim on the ground
that
Plaintiff
failed
to
exhaust
his
administrative
remedies.
Defendant also argues that, even assuming Plaintiff exhausted his
administrative remedies, Plaintiff did not timely file his complaint
in federal court. We will examine each argument in turn.
A.
Exhaustion of Administrative Remedies
Under
Title
I
of
the
ADA,
“[n]o
covered
entity
shall
discriminate against a qualified individual with a disability because
of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and
privileges.”
42 U.S.C. § 12111(a).
discrimination
includes
the
accommodation”
for
disability
the
For purposes of the ADA,
failure
of
to
an
make
a
otherwise
“reasonable
qualified
individual, unless the accommodation “would impose an undue hardship”
on the employer. Id. § 12112(b)(5)(A).
“The ADA incorporates the procedures and enforcement mechanisms
of Title VII[.]” Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16
(1st Cir. 1997).
Pursuant to Title VII, a Plaintiff is required to
exhaust his or her administrative remedies, such as timely filing a
complaint with the Equal Employment Opportunity Commission (“EEOC”),
prior to suing in federal court. Uphoff Figueroa v. Alejandro, 597
CIVIL NO. 10-1550(JP)
-5-
F.3d 423, 431 (1st Cir. 2010); Frederique-Alexandre v. Dep’t of
Natural & Envtl. Res., 478 F.3d 433, 440 (1st Cir. 2007).
Courts
have treated this timely charge requirement as a condition precedent
to bringing suit before a federal court. See Babrocky v. Jewel Food
Co., 773 F.2d 857, 862 (7th Cir. 1985). Compliance with the timely
charge requirement before the EEOC is not, however, a jurisdictional
prerequisite to filing a Title VII suit. See Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982). Rather, it is in the nature
of a “requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling.” Id. Thus, Defendant’s
12(b)(1) motion will be treated as a motion under 12(b)(6).
As to the EEOC charge, Defendant does not dispute that Plaintiff
filed a complaint with the Puerto Rico Anti Discrimination Unit
(“ADU”) on March 19, 2009. Instead, Defendant argues that Plaintiff
only filed a complaint for a claim pursuant to the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. and not as to his ADA
claim because Plaintiff does not specifically mention the ADA.
Defendant
appended
to
its
motion
to
dismiss
Plaintiff’s
discrimination charge filed with the ADU. (Docket No. 23-1.) Although
consideration of a Rule 12(b)(6) motion to dismiss is generally
limited to the facts stated on the face of the complaint, a court may
also
consider
documents
appended
to
the
complaint,
documents
incorporated by reference, and matters of which judicial notice may
CIVIL NO. 10-1550(JP)
-6-
be taken. Maldonado-Cordero v. AT & T, 73 F. Supp. 2d 177, 185
(D.P.R. 1999); see also, Beddall v. State Street Bank and Trust Co.,
137 F.3d 12, 17 (1st Cir. 1998). Plaintiff’s EEOC charge may be
considered either as a matter referenced in the complaint or as a
public record subject to judicial notice. See Mack v. South Bay Beer
Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (holding that
a
court
may
take
judicial
notice
of
records
and
reports
of
administrative bodies without converting a motion to dismiss into one
for summary judgment), overruled on other grounds by Astoria Fed.
Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991); Dixon v.
Philadelphia Housing Authority, 43 F. Supp. 2d 543, 545 (E.D.Pa.
1999) (holding that a court may consider an EEOC charge without
converting Rule 12(b)(6) motion into motion for summary judgment);
Nickens v. New York State Dept. of Correctional Servs., 1996 WL
148479, *1 (E.D.N.Y. March 27, 1996) (holding that a court may take
judicial notice of EEOC filings); Gallo v. Board of Regents of Univ.
of Cal., 916 F. Supp. 1005, 1007 (S.D.Cal. 1995) (holding that a
court may consider EEOC charge and right-to-sue letter in deciding
a motion to dismiss either as a matter attached to the complaint or
as records subject to judicial notice). As such, the Court will
consider Plaintiff’s EEOC charge in deciding Defendant’s motion to
dismiss.
CIVIL NO. 10-1550(JP)
-7-
The First Circuit has stated that “the scope of a civil
complaint is ... limited by the charge filed with the EEOC and the
investigation which can reasonably be expected to grow out of that
charge.” Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir.
1996)(quoting Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir.
1990)(internal
quotation
marks
omitted)).
The
purpose
of
the
prerequisite of filing an administrative charge prior to filing in
federal court “is to provide the employer with prompt notice of the
claim and to create an opportunity for early conciliation.” Lattimore
v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). “That purpose
would be frustrated if the employee were permitted to allege one
thing
in
the
administrative
charge
and
later
allege
something
entirely different in a subsequent civil action.” Id.
However,
“[t]he exact wording of the charge of discrimination need not presage
with literary exactitude the judicial pleadings which may follow.”
White v. New Hampshire Dep’t of Corr., 221 F.3d 254, 263 (1st Cir.
2000) (explaining that “the critical question is whether the claims
set forth in the civil complaint come within the scope of the EEOC
investigation which can reasonably be expected to grow out of the
charge of discrimination”).
In the charge filed with the ADU pro se, Plaintiff checks the
box for discrimination on the basis of “impediment/disability” and
avers that he is a person with several physical disabilities and
CIVIL NO. 10-1550(JP)
-8-
that he is a highly qualified person in spite of those physical
disabilities. (Docket No. 23-2). He also alleges that he has not
received a “reasonable accommodation.” (Id.) Construing Plaintiff’s
pro se pleadings liberally, we conclude that these allegations
provide Defendant with sufficient notice that Plaintiff intended to
claim that Defendant discriminated against him because of his
alleged disabilities and that Defendant allegedly failed to provide
him with a reasonable accommodation.1 See Lattimore, 99 F.3d at 464.
Defendant also argues that Plaintiff failed to present any
allegations that he filed his complaint within ninety days of
receiving a notice of right to sue. After the charge is filed, a
plaintiff must bring suit within ninety days of obtaining an EEOC
right to sue letter. See 42 U.S.C § 2000e-5(f)(1). As to the notice
of right to sue letter, the record shows that the EEOC mailed
Plaintiff a notice of right to sue letter on March 25, 2010. (Docket
No. 30.) Plaintiff filed this suit on June 17, 2010 - within the 90day limitations period.
Accordingly, the Court denies Defendant’s motion to dismiss on
1
Although Plaintiff vaguely refers to claims under the FMLA and state laws
in his opposition, Plaintiff has not stated claims for alleged violations of the
FMLA or state laws in his complaint nor has he requested leave from this Court to
amend his complaint under Rule 15 of the Federal Rules of Civil Procedure. This
Court will not entertain any attempts to amend the complaint by adding
underdeveloped claims in a response to a motion to dismiss. See Rodriguez v. Doral
Mort. Corp., 57 F.3d 1168, 1171 (1st Cir. 1995) (warning that courts “must always
exhibit awareness of the defendant's inalienable right to know in advance the
nature of the cause of action being asserted against him”).
CIVIL NO. 10-1550(JP)
the
ground
that
-9-
Plaintiff
did
not
exhaust
his
administrative
remedies.
B.
Timeliness of Plaintiff’s Claim
In the alternative, Defendant argues that Plaintiff failed to
file
his
complaint
within
300
days
of
the
alleged
unlawful
employment practice. Title VII provides that the administrative
charge “shall be filed” with the EEOC “within one hundred and eighty
days after the alleged unlawful employment practice occurred,” or
within 300 days if “the person aggrieved has initially instituted
proceedings with [an authorized] State or local agency.” 42 U.S.C.
§
2000e-5(e);
see
Bonilla
v.
Muebles
J.J.
Alvarez,
Inc.,
194 F.3d 275, 278 (1st Cir. 1999)(holding that “the ADA mandates
compliance with the administrative procedures specified in Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e”).
Defendant argues that Plaintiff did not file his EEOC charge
within the 300-day limitations period because Plaintiff’s complaint
avers that he was terminated from his employment on March 25, 2008
and he filed his charge on March 19, 2009, more than 300 days from
the alleged adverse employment action. In his opposition, Plaintiff
states that the correct date of his termination is June 25, 2008.2
2
In support of this, Plaintiff provides a letter from Defendant dated June
13, 2008 (Docket No. 24-3) stating that on June 9, 2008 Plaintiff was offered
several job positions with a schedule of his choice and was requested to provide
medical certificates to support his alleged medical condition. The exact date of
his termination was not provided in the documents submitted by Plaintiff.
CIVIL NO. 10-1550(JP)
Defendant
does
not
-10respond
to
Plaintiff’s
averment.
Taking
Plaintiff’s averment as true that he was terminated on June 25,
2008,
and
viewing
the
facts
in
the
light
most
favorable
to
Plaintiff, Plaintiff has presented at least a factual question as to
whether he was terminated on June 25, 2008, and as to whether his
complaint
was
filed
within
300
days
of
the
alleged
adverse
employment action.
IV.
CONCLUSION AND SETTLEMENT CONFERENCE ORDER
For
the
reasons
stated
herein,
the
Court
hereby
DENIES
Defendant’s motion to dismiss the complaint.
Notwithstanding the above, we believe this case is an excellent
candidate
for
settlement
and,
to
that
effect,
a
Settlement
Conference shall be held on December 9, 2011, at 1:30 P.M. Parties
to appear with authority to settle.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of November, 2011.
S/JOSE ANTONIO FUSTE
JOSÉ ANTONIO FUSTÉ
UNITED STATES DISTRICT JUDGE
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