Sanchez Arroyo et al v. Department of Education of the Commonwealth of Puerto Rico et al

Filing 49

OPINION & ORDER granting in part and denying in part 36 Defendants' Motion to Dismiss. The Court hereby DISMISSES all of Plaintiffs' federal claims except the claims made pursuant to Section 1983 under the First Amendment, as set forth herein. So ordered. Signed by Judge Juan M Perez-Gimenez on 2/1/2012. (JG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

WANDA SÁNCHEZ-ARROYO, ET AL.,
Plaintiffs,
v.

CIV. NO. 10-2083 (PG)

DEPARTMENT OF EDUCATION OF THE
COMMONWEALTH OF PUERTO RICO, ET
AL.,
Defendants.
OPINION AND ORDER
Plaintiffs Wanda Sánchez Arroyo (“Sánchez”), her spouse José RamosDieppa (“Ramos”), and the conjugal partnership established between them,
have brought this action against the Puerto Rico Department of Education
(“DOE”) and several individual defendants, namely: Jesus Rivera-Sánchez
(“Rivera-Sánchez”),

Odette

Piñeiro

Caballero

(“Piñero”),

Carlos

E.

Chardón (“Chardón”), Brenda Virella Crespo (“Virella”), Edward MorenoAlonso (“Moreno-Alonso”), José Morales Rivera (“Morales-Rivera”) and Elia
Colón-Berlingeri
to

as

(“Colón-Berlingeri”)(hereinafter

“Defendants”).

1

In

her

complaint,

collectively

Sánchez,

who

is

referred

a

current

employee of the DOE, asserts that Defendants discriminated against her on
the basis of her age, mental condition and gender, as well as subjected
her

to

harassment

speaking

out

and

a

publicly

hostile
against

work

environment

Defendants’

as

punishment

alleged

for

political

discrimination practices. The matter is before the Court on Defendants’
motion to dismiss. Docket No. 36. Because the Court finds it lacks
jurisdiction to entertain most of Sánchez’s claims, it dismisses all of
her

claims

except

her

First

Amendment

claim.

Defendants’

motion

to

dismiss is thus GRANTED IN PART AND DENIED IN PART.
I.
A.

Background

Procedural Background

On November 4, 2010 Sánchez filed the instant complaint, where she
alleges that Defendants illegally discriminated against her on the basis

1

All Defendants are sued in their individual and official capacities.

Civil No. 10-2083 (PG)

Page 2

of her age, mental condition and gender. Docket No. 1. She claims said
acts by Defendants constitute violations of her rights under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”),
Titles I and II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§

12111,

et

seq.;

and

42

U.S.C.

§§

12115,

et

seq.,

and

the

Age

Discrimination in Employment Act, 29 U.S.C. § 623 (“ADEA”). Sánchez also
advances claims under Section 1983 of the Civil Rights Act, 42 U.S.C. §
1983,

which

rights

under

are

predicated

the

First

on

Defendants’

Amendment,

Due

alleged

Process

violations

and

Equal

of

her

Protection

Clauses of the Fourteenth Amendment to the United States Constitution.
Lastly, she claims the events recounted in her complaint also give rise
to violations of Sections 1, 4, 6 and 7 of Article II of the Constitution
of Puerto Rico, the Public Service Personnel Laws of Puerto Rico and its
merit system regulations, Law No. 184 of August 3, 2004, as well as
articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit.
31, §§ 5141-42.
On June 24, 2011 Defendants filed the pending motion to dismiss,
seeking dismissal of Plaintiffs’ complaint for failure to state a claim,
comply

with

the

applicable

statute

of

limitations

and/or

exhaust

administrative remedies. See Docket No. 36. Plaintiffs failed to file a
timely

response

to

said

motion,

and

thus

the

Court

deemed

it

as

unopposed. Docket No. 45. Plaintiffs sought reconsideration from the
order, which the Court denied on October 5, 2011. Docket No. 48.
B.

Factual Background

The Court draws the following facts from Plaintiff’s complaint and
takes them as true for the purpose of resolving Defendants’ motion to
dismiss.
Sánchez is a 55 year old disabled woman that is a member of the New
Progressive

Party

("NPP"),2

fact

known

to

Defendants

at

all

times

relevant to this action, especially given the highly politically charged
environment that exists at the DOE.
Her
active

active

membership

participation

in

in

the

the
2004

NPP

includes,

and

2008

without

electoral

limitation,

campaign,

and

2
The New Progressive Party is the political party that favors statehood for
Puerto Rico.

Civil No. 10-2083 (PG)
attendance

to

Page 3

different

political

meetings,

parties,

seminaries,

conventions, among others and contributing in fundraising for the NPP.
Sánchez has been an employee of the DOE since August 23, 1976. At
this time she occupies the career position of “Auxiliary Superintendent
Reg. V.”
On September 2008, Sánchez was diagnosed with major depression. The
Puerto Rico State Insurance Fund (SIF) diagnosed her with a disability
for an emotional condition related to her working environment that she
was subjected to by co-defendant Morales-Rivera.3 As a direct consequence
of

the

mental

subjected

to,

and

emotional

Sánchez

has

a

state

and

limited

the

treatment

ability

to

that

perform

she

her

was

daily

activities. For said reasons she has requested reasonable accommodations
with her employer DOE who has failed to take the necessary measures to
reasonably

accommodate

said

emotional

condition.

If

a

reasonable

accommodation was afforded by DOE, Sánchez would be able to perform her
duties and functions of her position. She requested to be located in an
area where co-defendant Morales-Rivera could not continue to harass her.
On January 5th, 2009 Sánchez was named Special Aide in the Special
Education
Chardón.4

Division,
On

effective

January

7th,

2009

February
she

was

5th,

2009

appointed

by

co-defendant

Interim

Regional

Director of the Caguas School Region, effective January 8th, 2009 also by
Defendant Chardón.
On

January

30th,

2009

co-defendant

Moreno-Alonso,5

the

Administrative Sub-Secretary, sent a letter to Sánchez informing her that
she was being reinstated to her position as Auxiliary Superintendent in
the

Cidra

School

District,

leaving

without

effect

the

assignment

as

Interim Director of the Caguas Educational Region. During this time, when
Sánchez was removed from her appointment as Regional Director of the
Caguas School Region, she sent a letter to co-defendant Chardón with
regards to an alleged investigation that gave basis for her destitution

3
Morales-Rivera was the Special Assistant to former Superintendent RiveraSánchez in the DOE. In said capacity he had authority over the plaintiff. He was
appointed by co-defendant Chardón to this position. Compl. ¶ 15.
4
Defendant Chardón was a former Secretary of the DOE. In said capacity he
was the nominating authority of said Agency. Compl. ¶ 12.
5
Defendant Moreno-Alonso was the Associate Secretary in the DOE. He was
appointed by Chardón to his position. He is currently the Secretary of the DOE.
Compl. ¶ 14.

Civil No. 10-2083 (PG)
due

to

some

requested

Page 4

information

that

provided

continue

Chardón

investigation.

she

then

by

as

sent

an

anonymous

Regional
a

person.

Director,

notification

on

Sánchez

pending
February

the
2009

appointing her to the Comerio School District, a school district that is
outside her residence and her career position, distant from Cidra and
Caguas.
On or around February, 2009, Sánchez started notifying the DOE of
the

illegal

harassing

use

and

of

equipment

hostile

attitude

by

defendant

against

Moreno-Rivera6

Plaintiff

and

and

other

his

of

his

subordinates. No action was taken against Moreno-Rivera demonstrating
either a concerted effort on the part of the Defendants to ignore her
valid complaints or a reckless disregard for her situation.
During this time the DOE was under the supervision of the federal
government due to irregularities in the school system; the DOE informed
that they had identified school directors that were performing Auxiliary
Superintendent functions in the DOE, and in order to maximize the DOE
resources they would relocate them in the Director positions for the
remainder of the school year. Little did they know that the DOE and the
Defendants used this as a pretext to create a trust position called
"staff

developers"

that

had

the

exact

duties

as

an

Auxiliary

Superintendent, in order to accommodate people from their same political
affiliation, NPP, and discriminate and marginalize supporters of the
Popular Democratic Party (PDP).7
Defendants
adverse

requested

employment

actions

Plaintiff
against

in

multiple

employees

of

occasions,
the

DOE

to

take

under

her

supervision that are affiliated to the PDP, the opposing Political party
of the current administration. At all times, Plaintiff has refused to
take any of the requested adverse employment actions and has publicly
reported her superiors because of their discriminatory behavior against
employees of the DOE for their political affiliation to the PDP.
On July 29th, 2009 Plaintiff participated at a meeting with co-

6

No one named “Moreno-Rivera” appears as a defendant in this case. Thus, it
is unclear to the Court whether this refers to defendants Moreno-Alonso or
Morales-Rivera.
7
The PDP is the political party that favors the current political status of
Puerto Rico.

Civil No. 10-2083 (PG)
defendants

Chardón,

Page 5

Virella-Crespo8

and

Moreno-Rivera.

Virella-Crespo

alleged that the position of Special Aide was not a trust position, that
it

was

afforded

a

salary

differential

and

not

a

salary

raise.

Notwithstanding, Sánchez explained to Defendant Virella-Crespo that in
the DOE all the Special Aide positions are of trust. During that same
meeting

Sánchez

requested

the

investigation

of

a

list

of

illegal

personnel transactions that were taking place at the DOE. All the other
Defendants present at the meeting ignored her valid complaints in a
concerted effort to discriminate and marginalize her. These actions are
one

more

effort

to

retaliate,

discriminate,

marginalize

and

harass

against Sánchez.
Sánchez has always received excellent evaluations, notwithstanding,
Defendants, including Virella-Crespo, have started a harassment campaign
against her because of her age, emotional condition, her request for
reasonable

accommodations

and

her

opposition

to

the

political

discriminatory practices of the Defendants.
Sánchez has been subject to five (5) transfers since January 2009,
she has been denied her right to receive her list of her duties and
responsibilities, with the sole intent to harass her and make her working
conditions more difficult. The multiple transfers have also affected her
ability to receive medical treatment for her disability.
On

August

5,

2009

Sánchez

was

sent

in

administrative

special

assignment (“destaque”) as School Director at Josefa Pastrana School in
Aguas Buenas. She was assigned to this school even when the school
already had a Director assigned. For said reason Sánchez did not have an
office assigned to her and she was placed in an area that lacked among
other things a telephone, records, and office equipment, all of which are
necessary to carry out her functions, and all this in an effort to make
her fail in her duties.
August 24, 2009 Sánchez made a written request that she be moved
from her administrative destaque from Josefa Pastrana School in the Aguas
Buenas District to the Luis Munoz Rivera School that was located in her
Cidra School District.
Defendants have violated the rules and regulations of the DOE by
8
Defendant Virella-Crespo is the Director of Human Resources of the DOE.
She has authority over the Plaintiff. Compl. ¶ 13.

Civil No. 10-2083 (PG)

Page 6

assigning Sánchez to a place of work that is outside her residence and/or
where her career position is located. These positions have been filled by
younger male employees, in a clear discrimination for Plaintiff's age and
gender.
Defendants
comments

have

relating

constantly

to

her

made

age,

derogatory

her

and

disability

discriminatory
and

reasonable

accommodations requests, as well as disparaging comments because of her
medical appointments and her requests for leave in the State Insurance
Fund. Discriminatory comments were also made because of the refusal to
participate in the discriminatory activities against the PDP employees.
On September 2, 2009 Defendant Chardón, then Secretary of the DOE,
sent a letter stating that Sánchez had failed to report to work on a full
time basis and threatening her with insubordination charges, all this in
an effort to harass her. Sánchez objected and rejected the letter on
September 21, 2009 stating her functions and work schedule during that
time, this letter was sent to Chardón and Virella-Crespo; also a copy to
Mr. Hilton Mercado (Director of the Legal Division) and defendant MorenoAlonso. No action was taken after this letter was sent.
Defendants have denied Sánchez her multiple requests for reasonable
accommodation and have threatened her with charges of insubordination
and/or the filing of a case for abandonment of the work area, even
threatening her with employment termination.
Defendants have imposed unreasonable terms and conditions in her
work environment in order for her to fail or to force a resignation.
From

September

2,

2009

until

September

15,

2009

Plaintiff

was

partially hospitalized at the First Hospital Panamericano due to her
emotional condition.
On September 21, 2009 Sánchez made an official complaint at the
Puerto Rico Comptroller's Office reporting irregularities in the use of
property and funds by members of the Caguas Educational Region, including
co-defendant Morales-Rivera. She denounced that equipment and time was
being used for political activities and personal business activities, as
well as of the fact that Defendant Morales-Rivera used his position to
harass and persecute his subordinates. The Comptroller's Office started
an investigation in that region, prompting even more retaliation and
harassment from the Defendants, in attempt to quiet Sánchez.

Civil No. 10-2083 (PG)

Page 7

On October 29, 2009 Sánchez requested once more intervention from
the

DOE,

this

time

from

Attorney

Hilton

Mercado,

denouncing

the

irregularities in the recruiting process in the Caguas School Region. No
action was taken by the Defendants other than continuing the pattern of
harassment and retaliation against Plaintiff.
October

30,

2009

Sánchez

sent

a

letter

to

Chardón

stating

the

negative working conditions she had been subjected to that required a
reasonable

accommodation

as

recommended

by

her

doctor

due

to

her

emotional condition that she had developed by the actions taken against
her by Defendants Chardón, Virella-Crespo, Moreno-Alonso and MoralesRivera.
Even when her performance has always been of excellence, since her
public outcry for the political discrimination taking place at the DOE,
Plaintiff has been subject to constant criticism and reprimands for her
performance, based on false and unjustified reasons.
Sánchez

has

been

reprimanded

and

prohibited

from

visiting

the

schools in order to perform her functions, all in an attempt to have her
resign her position due to the constant harassment and persecution. She
has

continued

to

stride

for

excellent

work

even

under

these

circumstances.
Sánchez was stripped of her functions by Defendant Morales-Rivera
by naming two (2) persons to one position, no duties or responsibilities
were assigned to her until the situation was supposedly solved by Human
Resources, the situation is yet to be corrected.
Co-defendant
seniority

and

Morales-Rivera

gives

Sánchez

authorized

instructions

in

a
a

lower

ranking

continuous

effort

and
to

humiliate and harass Plaintiff.
Defendant Morales-Rivera purposely does not notify Sánchez of DOE
memorandums and communications, even to the extent of intercepting the
letters and communications sent to her from other schools and teachers
and holding up meetings. Defendants have excluded her from trainings,
workshops and meetings that her subordinates participate in. All in an
attempt to make Sánchez fail in her functions, marginalize her and/or
force her resign.
Sánchez

hasn't

even

been

able

to

register

her

attendance

electronically as the other personnel and has been subject to submitting

Civil No. 10-2083 (PG)

Page 8

her attendance manually; giving room to discrepancies that can affect her
paycheck or her personnel file, this in clear violation to the valid
regulations in the DOE. A situation that is substantially inferior to the
norm in the DOE.
Sánchez

has

reported

all

the

discrimination,

harassment

and

pressure she has been subjected to from Defendants for her age, gender,
mental and emotional condition, reasonable accommodation requests and her
opposition to participate in politically discriminatory practices to the
proper venues within the DOE, to no avail. On September 2, 2010 Sánchez
requested a relocation of Morales-Rivera to Defendant Rivera-Sánchez9
that has yet to be answered.
The DOE has knowledge of all the comments, hostile environment to
which

Sánchez

something

has

about

been

it,

subjected

it

has

to

but

not

only

promoted

and

allowed

has
the

failed

to

do

discrimination,

harassment and pressure against her to continue to this day.
The
since

discriminatory

Sánchez

formally

actions

from

complained

Defendants

about

the

have

harassment

escalated
she

has

ever
been

subjected to.
She was so taken aback by the actions taking place in the DOE with
the Defendants, that she provided and interview with El Nuevo Día10 on
December 9, 2009, publicly denouncing the situation taking place with the
auxiliary superintendents that were being discriminated against because
of their political affiliation to the PDP, in an effort to appoint NPP
supporters in said positions.
February

19,

2010

Sánchez

made

another

request

for

reasonable

accommodation to co-defendant Piñeiro, Secretary of the DOE, but once
more her request was ignored.
These actions have caused her emotional and mental condition to
deteriorate, a hostile working environment, unbearable working conditions
and undue pressure.
All

these

actions

have

been

for

the

purpose

of

discriminating

against Sánchez due to her age, gender, disability, retaliation, free
speech and reasonable accommodations requests.

9
10

Rico.

Defendant Rivera-Sánchez was also a former Secretary of the DOE.
El Nuevo Día is a Spanish daily newspaper of wide circulation in Puerto

Civil No. 10-2083 (PG)

Page 9

Defendants have relentlessly maintained an atmosphere of differing
treatment towards Sánchez because of her vocal expressions against the
current administration in the hopes that she will resign or a reason can
be fabricated to terminate her from her career position.
Also, the Defendants are motivated by the public expressions made
by Sánchez to the local press with regards to the impact Law 7 and the
relocation of the Auxiliary Superintendents would have on the DOE and the
services it could provide.
Indeed, the DOE has been the subject of much coverage by the public
given the impact it has on the services to be provided to the children of
Puerto Rico.
Indeed the DOE's administration has had to acknowledge the very
item spoken about by Sánchez and the negative impact the layoffs have on
the services that DOE provides.
Because of the public statements by Sánchez, this has motivated the
defendants to subject her to discrimination, retaliation and harassment.
Her

age,

gender

and/or

Sánchez’s

public

expressions

that

has

motivated and continues to motivate all of the defendants to conspire,
order

(either

deliberately

or

negligently)

and/or

with

deliberate

indifference allowed the adverse employment acts perpetrated on her.
The

Defendants,

acting

separately

and/or

collectively,

either

willfully or negligently, have caused all of her economic and emotional
harm.
All of Defendants' actions are merely a pretext to discriminate and
retaliate against Sánchez.
The Defendants' acts of discrimination have caused Sánchez injury
as well as to her spouse and the conjugal partnership created between
them.
Sánchez’s

spouse,

co-plaintiff

Ramos-Dieppa,

has been

forced

to

witness the deterioration of the mental health of his spouse and this has
caused anxiety in him as the mounting harassment has forced him and
Sánchez to reorder their lives as to brace for the tragic day if this
Honorable Court does not intervene.
Co-defendants Rivera-Sánchez, Piñero-Caballero, Chardón, Mercado-

Civil No. 10-2083 (PG)

Page 10

Hernández,11 Virella-Crespo, and Morales-Rivera utilized their positions
under the color of law and either instructed, conspired and/or were
deliberately indifferent to the acts perpetrated on Sánchez because of
the political animus towards her and/or public statements. Their actions
are unconstitutional, tortious and as such must be responsive to the
injuries caused to the plaintiff and her spouse.
This is another clear example of the discrimination and lack of
concern of the past and present administration of the DOE to do was is
correct and what is needed to be done and that is to reinstate the
plaintiff to her position and to stop the discrimination that she has
objected to.
II.
Motions

to

dismiss

Standard of Review

brought

FED. R. CIV. P.

under

12(b)(1)

and

12(b)(6) are subject to the same standard of review. See Negrón-Gaztambide
v. Hernández-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
Médico 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.
11
Legal Adviser Hilton Mercado-Hernández has not been named as a defendant
in this case, hence the Court will ignore Plaintiffs’ mention of him.

Civil No. 10-2083 (PG)

Page 11

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 Civil Procedure 8, the Supreme Court
has ... held that to survive a motion to dismiss, a complaint must allege
‘a plausible entitlement to relief.’” Rodríguez-Ortiz v. Margo Caribe,
Inc., 490 F.3d 92, 95 (1st Cir. 2007) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 559 (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, 556 U.S. 662, 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 twopronged

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.” OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 12

(1st Cir. 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-Hernández,
640 F.3d at 9 (citing Iqbal, 129 S.Ct. at 1951).

Civil No. 10-2083 (PG)

Page 12

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-Hernández, 640 F.3d at 12-13 (citing Twombly, 550
U.S. at 556). Thus, “[t]he relevant inquiry focuses on the reasonableness
of the inference of liability that the plaintiff is asking the court to
draw from the facts alleged in the complaint.” Ocasio-Hernández, 640 F.3d
at 13.
III. Discussion
A. Title VII, Title I of the ADA, and ADEA claims
Defendants argue that Sánchez’s claims under Title VII, Title I of
the ADA, and ADEA should be dismissed because: (1) Sánchez has failed to
exhaust her administrative remedies before the filing of her complaint;
(2) such claims are time-barred; and (3) Sánchez has failed to plead
sufficient facts to establish plausible claims upon which relief can be
granted under those statutes.
i.

Failure to Exhaust Administrative Remedies
1. Title VII (gender discrimination)
The Court agrees with Defendants that Sánchez has failed to plead

exhaustion of administrative remedies for her Title VII claims. Title VII
requires exhaustion of administrative remedies as a condition precedent
to suit in federal district court. See Morales-Vallellanes v. Potter, 339
F.3d 9, 18 (1st Cir. 2003)(citing Jensen v. Frank, 912 F.2d 517, 520 (1st
Cir. 1990)). A plaintiff's unexcused failure to exhaust administrative
remedies effectively bars the courthouse door. Jorge v. Rumsfeld, 404
F.3d 556, 564 (1st Cir. 2005). Exhaustion has two key components: the
timely filing of a charge with the EEOC and the receipt of a right-to-sue
letter from the agency. Id. Sánchez has not pleaded that she complied
with

these

two

components,

or

otherwise

recited

a

valid

excuse

for

failing to do so. As such, her claims under Title VII cannot go forward
before this Court, and the same must be DISMISSED.
2. ADA Title I
Sánchez also advances claims under Title I of ADA, which she argues
entitles

her

to

relief

against

Defendants’

alleged

discriminatory

Civil No. 10-2083 (PG)

Page 13

practices and their failure to accommodate. The First Circuit has held
that

the

ADA

mandates

compliance

with

the

administrative

procedures

specified in Title VII. Bonilla v. Muebles J.J. Alvarez, 194 F.3d 275,
277 (1st Cir. 1999). Absent “special circumstances,” a plaintiff must
comply with said administrative procedures before a federal court may
entertain a suit that seeks recovery for an alleged violation of Title I
of the ADA. Id. What this boils down to is that “a claimant who seeks to
recover for an asserted violation of Title I of the ADA, like one who
seeks to recover for an asserted violation of Title VII, first must
exhaust administrative remedies by filing a charge with the EEOC, or
alternatively, with an appropriate state or local agency, within the
prescribed time limits.” Id. at 278; 42 U.S.C. §2000e-5(e).
Sánchez has failed to plead that she exhausted the administrative
remedies

available

to

her

as

redress

for

the

facts

alleged

in

her

complaint. Neither has she argued any special circumstances, such as
equitable tolling, that would exempt her from running the administrative
gauntlet. Accordingly, her claims under Title I of the ADA must be
DISMISSED as this Court lacks subject matter jurisdiction to entertain
them.
3. ADEA
Likewise,

Defendants

argue

that

Sánchez’s

asseverations

of

age

discrimination under the ADEA should also be dismissed for failure to
exhaust the administrative remedies available to her. The Court agrees.
The ADEA states in part that
No civil action may be commenced by an individual under this
section until 60 days after a charge alleging unlawful
discrimination has been filed with the Equal Employment
Opportunity Commission. Such a charge shall be filed—
(A) within 180 days after the alleged unlawful practice
occurred; or
(B) in a case to which section 633(b) of this title applies,
within 300 days after the alleged unlawful practice occurred,
or within 30 days after receipt by the individual of notice
of termination of proceedings under State law, whichever is
earlier.
29

U.S.C.

§

626(d)(1).

It

follows

that

compliance

with

this

administrative protocol is a necessary precondition to sue, and “such
compliance must occur before a federal court can entertain a suit that
seeks recovery for an alleged violation of the ADEA.” Tapia-Tapia v.

Civil No. 10-2083 (PG)

Page 14

Potter, 322 F.3d 742, 744 (1st Cir. 2003).
Sánchez

has

again

failed

to

plead

that

she

complied

with

the

necessary procedural requirements for bringing her ADEA claim. She has
also neglected to state any reason that could potentially exempt her
from such requirements. As a result, her demands under the ADEA cannot
proceed any further before this forum.
ii.

Timeliness of claims under Title VII, ADA Title I, and ADEA

Having determined that Sánchez’s claims under Title VII, Title I of
the ADA, and ADEA must be dismissed, the Court is now faced with the
task of ascertaining whether said dismissal should be with or without
prejudice. As the applicable time period for filing these claims before
the administrative forums seems to have elapsed, the Court concludes
that most of the claims should be dismissed with prejudice.
Under Title VII, Title I of the ADA, and the ADEA a plaintiff must
file an employment-discrimination charge with the EEOC within 300 days
of

the

alleged

discrimination.

Rivera-Rodríguez

v.

Frito

Lay

Snacks

Caribbean, 265 F.3d 15, 21 (1st Cir. 2001), abrogated on other grounds
by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Because
Puerto Rico is a “deferral” jurisdiction, it is the 300 day period that
applies to such claims, instead of the 180 day period mentioned in the
Title VII and ADEA statutes. See Frederique-Alexandre v. Department of
Natural and Environmental Resources, 478 F.3d 433, 437 (1st Cir. 2007).
In her complaint, Sánchez recounts sundry actions taken by the
Defendants against her, which she claims constitute the discriminatory
practices that give rise to her claims. For example, she states that she
has been subjected to five transfers since January 2009, which have been
the result of Defendants’ attempts to “harass her and make her working
conditions more difficult.” Compl. ¶ 28. On February 19, 2010, as part
of her efforts to obtain a reasonable accommodation for her condition,
Sánchez requested a relocation of co-defendant Morales-Rivera, whom she
alleges caused her disability. Compl. ¶ 50. After denial of her request,
Sánchez again attempted to request reasonable accommodation on September
2, 2010, but it was also to no avail. Compl. ¶ 46.12 This was the last
12
Sanchez seems to have pleaded these
accommodation in reverse chronological order.

two

requests

for

reasonable

Civil No. 10-2083 (PG)
discrete
such,

Page 15

discriminatory

Defendants

act

posit

alleged

that

by Sánchez

Sánchez’s

in

claims

her complaint.

stemming

from

As

these

discrete acts are time-barred, as more than 300 days have elapsed from
the date each one of them occurred.
In Morgan, the Supreme Court discussed several of the principles
that

underpin

employer’s

the

discrete

filing

of

administrative

discriminatory

acts,

charges

before

the

based

EEOC.

on

The

an

Court

elucidated the timeliness requirements of the same, stating that
discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely
filed charges. Each discrete discriminatory act starts a new
clock for filing charges alleging that act. The charge,
therefore, must be filed within the 180– or 300–day time
period after the discrete discriminatory act occurred. The
existence of past acts and the employee's prior knowledge of
their occurrence, however, does not bar employees from filing
charges about related discrete acts so long as the acts are
independently discriminatory and charges addressing those acts
are themselves timely filed. Nor does the statute bar an
employee from using the prior acts as background evidence in
support of a timely claim.
Morgan, 536 U.S. at 113. For present purposes, it follows that Sánchez
was required to file an administrative charge before the EEOC within 300
days of each of the discriminatory acts she complains of. Taking as an
example the last discrete act alleged in her complaint, which is the
denial of her reasonable accommodation request on September 2, 2010,
Sánchez had until June 29, 2011 to file a charge before the EEOC based
on that claim. As Sánchez has not hitherto presented any evidence that
she has filed any charge before said administrative forum, it follows
that all of her claims based on the discrete discriminatory acts alleged
in the complaint are foreclosed, and the same must be DISMISSED WITH
PREJUDICE.
However, the Court is aware that Sánchez seems to have made a
hostile work environment claim in her complaint. See Compl. ¶¶ 47 and
51. The Supreme Court in Morgan held that a hostile work environment
claim

“is

composed

of

a

series

of

separate

acts

that

collectively

constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at 117
(citing

42

U.S.C.

discrimination

and

§

2000e-5(e)(1)).

retaliation

under

Unlike
Title

her

claims

VII—which

of
stem

gender
from

separately actionable discrete and discriminatory acts—a hostile work

Civil No. 10-2083 (PG)
environment

claim

“cannot

said

be

Page 16

sprouts
to

occur

from
on

an

any

unlawful
particular

employment
day.”

Id.

practice

that

at

Said

115.

practice can be said to “occur over a series of days, or perhaps years
and, in direct contrast to discrete acts, a single act of harassment may
not be actionable on its own.” Id.
The Court notes that Sánchez is still employed by the Department of
Education of Puerto Rico, and as a consequence, she may still face
subsequent events that, coupled with the ones already averred in her
complaint,
complains

may
of.

further
Thus,

propagate

nothing

in

the

this

hostile
opinion

work
and

environment

order

is

meant

she
to

preclude Sánchez from being able to recover from her supposed hostile
work environment, as long as she files an administrative charge within
300 days of any of those subsequent events that is still part of the
hostile work environment chronicled in her complaint. See id., at 117
(“Subsequent events, however, may still be part of the one hostile work
environment claim and a charge may be filed at a later date and still
encompass the whole.”)
Accordingly, the Court will only DISMISS Sánchez’s hostile work
environment claims under Title VII, Title I of the ADA, and ADEA WITHOUT
PREJUDICE.
iii. Insufficiency of the pleadings
Next, Defendants request the Court examine Sánchez’s pleadings to
determine whether they suffice to establish plausible claims under Title
VII, Title I of the ADA, and ADEA. The Court, mindful that it lacks
subject matter jurisdiction to delve into the merits of these claims,
declines to do so. Moreover, the Court has already dismissed most of
these claims with prejudice, with the exception of Sánchez’s hostile
work environment claims, which in any case were left unaddressed by
Defendants’ motion to dismiss.
The Court will now saunter over to the next issue: whether Sánchez
has made a valid claim under Title II of the ADA.
B. Title II of the ADA
In her complaint, Sánchez claims that Defendants’ discriminatory
actions against her based on her disability also violated Title II of

Civil No. 10-2083 (PG)

Page 17

the ADA. Defendants reply that Title I of the ADA is the exclusive
remedy for discrimination claims based on disability in the employment
context. Based on this Court’s precedent, the Court agrees.
Title II of the ADA states in part that “no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132.
The First Circuit has recognized that the law on whether Title II
of the ADA applies to claims of employment discrimination is unclear.
Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st Cir. 2006). However,
this Court has repeatedly held that such claims are within the exclusive
province of Title I of the ADA. See Medina-Medina v. Puerto Rico, 769
F.Supp.2d 77, 80 (D.P.R. 2011)(employment discrimination claims may only
be brought under Title I); Rodríguez-Velázquez v. Autoridad Metropolitana
de

Autobuses,

502

F.Supp.2d

200,

206

(D.P.R.

2007)(considering

plaintiff’s complaint only in the context of Title I after concluding
that “the claims under ADA are based exclusively on defendants’ alleged
failure to grant plaintiff a reasonable accommodation in his work under
Title I”); Méndez Vázquez v. Tribunal General de Justicia, 477 F.Supp.2d
406, 412 (D.P.R. 2007)(dismissing employment discrimination claim under
Title

II

because

such

claims

can

only

be

brought

under

Title

I);

Meléndez-González v. Oficina de Administración de los Tribunales, 218
F.Supp.2d 227, 229 (D.P.R. 2002) (Title II does not cover claims of
disability discrimination in the employment context); and Skidmore v.
American

Airlines,

discrimination

198

claims,

F.Supp.2d
such

as

131,

the

134

ones

(D.P.R.

brought

by

2002)(“employment
Plaintiffs,

are

covered by Title I”).
Other

courts

have

held

likewise.

For

example,

in

Zimmerman

v.

Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir. 1999), reh’g en banc
denied, 183 F.3d 1161, and cert. denied, 531 U.S. 1189 (2001), the court
reasoned that Title II’s provision that no qualified individual shall,
by reason of disability, be excluded from the services, programs, or
activities of a public entity applied only to the "outputs" of a public
agency, not to "inputs" such as employment. The court clarified that the
adjoining clause—that no qualified individual with a disability shall,

Civil No. 10-2083 (PG)

Page 18

by reason of such disability, be subjected to discrimination by any such
entity—related back to the same "services, programs, or activities" of a
public entity covered by the first clause. Thus, the court concluded
that

employment

by

a

public

entity

is

not

a

"service,

program,

or

activity" of a public entity within the meaning of Title II of the ADA.
See also Currie v. Group Ins. Com’n, 147 F.Supp.2d 30, 34 (D.Mass.
2001);

Motzkin

v.

Trustees

of

Boston

University,

938

F.Supp.

983

(D.Mass. 1996); Patterson v. Illinois Dept of Corrections, 35 F.Supp.2d
1103 (C.D.Ill. 1999); and Decker v. University of Houston, 970 F. Supp.
575, (S.D. Tex. 1997), aff'd without published op, 159 F.3d 1355 (all
holding

that

Title

I

is

the

exclusive

remedy

for

employment

discrimination claims).
Based

on

these

reasons,

the

Court

concludes

that

Sánchez’s

invocation of Title II of the ADA is inapposite to the facts alleged in
her complaint. Similarly, as Sánchez’s claims under the Rehabilitation
Act of 1973 are analogous to her claims under Title II of the ADA, they
are also deemed immaterial to the facts of this case. See Theriault v.
Flynn, 162 F.3d 46, 48 n.3 (1st Cir. 1998).
Therefore,

her

claims

under

both

Title

II

of

the

ADA

and

the

Rehabilitation Act must be DISMISSED WITH PREJUDICE.
C. Section 1983 Claims
In her complaint Sánchez also asserts a claim under Section 1983,
which provides a private cause of action against any person who, acting
under the color of state law, deprives any citizen of his or her rights,
privileges or immunities secured by the U.S. Constitution. 42 U.S.C.
sec. 1983. Sánchez’s Section 1983 claim is predicated on Defendants’
alleged

violations

of

the

First

Amendment,

as

well

as

the

Equal

Protection and Due Process clauses of the Fourteenth Amendment. Before
delving

into

Defendants’

the

argument

constitutional
that

Sánchez’s

claims,
spouse,

the
José

Court

will

address

Ramos-Dieppa,

lacks

standing to sue in this case under Section 1983.
i.

Ramos and the Conjugal Partnership’s Standing to Sue

Defendants’ posit that Sánchez’s Spouse, José Ramos-Dieppa, and the
conjugal partnership established between them, lack standing to sue for

Civil No. 10-2083 (PG)
the

alleged

Page 19

violation

of

Sánchez’s

constitutional

rights.

They

are

correct.
Article III of the United States Constitution limits standing in
federal courts to persons who have suffered an injury in fact; recovery
is not ordinarily permitted for the injury of another. Allen v. Wright,
468 U.S. 737, 751 (1984). A claim under Section 1983 must allege an
injury

to

connected

a
to

cognizable
the

interest,

challenged

and

that

injury

conduct”

such

that

must
the

be

“causally

injury

may

be

addressed by the litigation in question. Pagán v. Calderón, 448 F.3d 16,
27 (1st Cir. 2006). This Court has held “that actions under § 1983 are
personal in the sense that the plaintiff must have himself suffered the
alleged deprivation of constitutional or federal rights.” González-Droz
v. González-Colón, 717 F.Supp.2d 196, 205-06 (D.P.R. 2010). As a result,
“family members do not have an independent claim under § 1983 unless the
constitutionally

defective

conduct

or

omission

was

directed

at

the

family relationship.” Id.
In light of the above, it is evident that Ramos and the Conjugal
Partnership cannot bring a valid Section 1983 claim against Defendants,
as they have not suffered a deprivation of their own constitutional
rights. Hence, Ramos and the conjugal partnership’s claims under Section
1983 are DISMISSED WITH PREJUDICE.
ii.

Timeliness of Section 1983 Claims

Defendants

also

claim

that

Plaintiff’s

Section

1983

claims

are

time-barred. In Puerto Rico, Section 1983 claims are subject to a oneyear

statute

of

limitations.

Ayala-Sepúlveda

v.

Municipality

of

San

Germán, --- F.3d ----, 2012 WL 130084, *4 (1st Cir. Jan. 18, 2012).
Generally, a Section 1983 claim accrues when the plaintiff knows, or has
reason

to

know

of

the

injury

on

which

the

action

is

based,

and

a

plaintiff is deemed to know or have reason to know at the time of the
act itself and not at the point that the harmful consequences are felt.
Morán Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir. 2008).
Defendants point out that Sánchez’s last transfer was on August 24,
2009 and that she only came to file her complaint a year and three
months later on November 4, 2010. Thus, Defendants argue that Sánchez’s
Section 1983 claims arising from all of her transfers are time barred.

Civil No. 10-2083 (PG)

Page 20

However, the Court again notes that Sánchez has advanced an ongoing
hostile work environment claim in her complaint. Reading the facts in
the

light

most

favorable

to

her,

the

Court

takes

as

true

her

asseverations of a hostile work environment, and thus the “continuing
violation doctrine” discussed in Morgan would seem to apply. Under this
doctrine, a plaintiff may incorporate allegations that would otherwise
be

time-barred

if

they

“are

part

of

the

same

unlawful

employment

practice and at least one act falls within the time period.” Morgan, 536
U.S. at 122. Although her allegations of harassment are thin, Sánchez
alleges that after her interview with El Nuevo Día on December 9, 2009,
she

has

been

subject

to

constant

criticism

and

reprimands

for

her

performance, based on false and unjustified reasons. Sánchez also claims
that

she

was

denied

several

reasonable

accommodation

requests

on

February 19, 2010 and September 2, 2010, which would also come within a
year of the date she filed her complaint.
Accordingly, the Court declines to dismiss Sánchez’s Section 1983
claims

on

timeliness

grounds.

Defendants’

motion

to

dismiss

on

this

point is therefore DENIED.
iii. Constitutional Violations
In order to succeed in a Section 1983 claim, Plaintiff must plead
and prove three elements: (1) that the Defendants acted under color of
state law; (2) that she was deprived of federally protected rights,
privileges, or immunities; and (3) that Defendants' alleged conduct was
causally connected to the plaintiff's deprivation. Gutiérrez-Rodríguez
v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989). The causation element
requires

that

the

plaintiff

establish

(1)

that

the

actions

of

the

defendant deprived the plaintiff of a protected right, and (2) “that the
defendant's conduct was intentional, grossly negligent, or amounted to a
reckless

or

callous

indifference

to

the

plaintiff's

constitutional

rights.” Concepción v. Municipality of Gurabo, 558 F.Supp.2d 149, 162
(D.P.R. 2007). Moreover, a plaintiff must link each particular defendant
to the alleged violation of federal rights. González-Piña v. Rodríguez,
407 F.3d 425, 432 (1st Cir. 2005). A plaintiff may do so by indicating
any “personal action or inaction [by the defendants] within the scope of
[their] responsibilities that would make [them] personally answerable in

Civil No. 10-2083 (PG)

Page 21

damages under Section 1983.” Pinto v. Nettleship, 737 F.2d 130, 133 (1st
Cir. 1984).
There seems to be no dispute that the actions of Defendants were
carried out under the color of state law. Defendants’ argument, rather,
is that Sánchez’s complaint fails to link any specific defendant with a
deprivation of a particular constitutional right, privilege or immunity
enjoyed by her, thereby failing to establish the causation element. Upon
reading her complaint, the Court finds that several of the defendants
named by Sánchez have indeed not been linked with any constitutional
violation.

Sánchez’s

allegations

against

defendants

Jesus

Rivera-

Sánchez, Odette Piñeiro-Caballero and Elia Colón-Berlingeri are scant
and insufficient to fasten them with liability for creating a hostile
work environment. In the case of Colón-Berlingeri, the allegations are
non-existent, as her name does not appear anywhere in the complaint
except for its caption and the section describing the parties. As to
Piñeiro and Rivera-Sánchez, Plaintiff only claims that on one occasion
they each ignored her requests for reasonable accommodation. This, by
itself, is clearly insufficient to support a hostile work environment
claim against these defendants.
Although

Sánchez

pleads

that

both

Piñeiro

and

Rivera

Sánchez

“either instructed, conspired and/or [were] deliberately indifferent to
the

acts

perpetrated

on

the

plaintiff,”

said

allegation

is

plainly

conclusory and thus falls short of establishing a conspiracy. Compl. ¶¶
61-62. Therefore, the Court will DISMISS WITHOUT PREJUDICE the Section
1983

claims

against

defendants

Rivera-Sánchez,

Piñeiro

and

Colón

Berlingeri. The Court will now proceed to analyze the remaining issue:
whether Sánchez has adequately averred deprivations of any of her rights
under the First Amendment, Equal Protection and Due Process clauses.
1. First Amendment
Sánchez advances a First Amendment claim arguing that Defendants’
continued harassment was a form of punishment for speaking out against
the

application

of

Law

7

and

the

alleged

political

discrimination

practices in the DOE against PDP sympathizers. She contends that said
action violated her free speech rights, particularly in the wake of her
interview

with

local

daily

El

Nuevo

Día,

where

she

denounced

the

Civil No. 10-2083 (PG)

Page 22

supposed discriminatory practices at the DOE. Defendants also request
this claim be dismissed under the argument that Sánchez’s statements are
not protected speech under the First Amendment and, in the alternative,
that there was a lack of causation between the speech and the adverse
employment actions suffered by her. The Court will decline Defendants’
request.
“A government employee retains the First Amendment right to speak
out,

as

a

citizen,

on

matters

of

public

concern,

so

long

as

the

employee's speech does not unduly impede the government's interest, as
an

employer,

in

the

efficient

performance

of

the

public

service

it

delivers through its employees.” O'Connor v. Steeves, 994 F.2d 905, 912
(1st Cir. 1993). The First Circuit has crafted a three-part test to
determine whether a public employee has an actionable claim under the
First Amendment. First, a court must ask whether the employee spoke as a
citizen on a matter of public concern. Curran v. Cousins, 509 F.3d 36,
45 (1st Cir. 2007). If the first question is affirmatively answered, a
Court must then conduct a second step in its inquiry:
whether the relevant government entity had an adequate
justification for treating the employee differently from any
other member of the general public. This consideration
reflects the importance of the relationship between the
speaker's expressions and employment. A government entity has
broader discretion to restrict speech when it acts in its role
as employer, but the restrictions it imposes must be directed
at speech that has some potential to affect the entity's
operations.
Curran, 509 F.3d at 45 (citing Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). Lastly, the Court must ask whether the plaintiff can show that
the protected expression was a substantial or motivating factor in the
adverse employment decision. Id.
As reflected on her complaint, Sánchez alleges that Defendants at
the DOE employed a scheme where they created a trust position called
“staff developers” to replace existing “Auxiliary Superintendents” with
loyal

PNP

supporters,

in

an

effort

aimed

at

discriminating

and

marginalizing PDP supporters. Compl. ¶ 24. Sánchez maintains that these
personnel

transactions

were

illegal,

and

on

December

9,

2009

she

provided an interview with El Nuevo Día where she publicly denounced the
discriminatory

scheme.

Compl.

¶

49.

Sánchez

had

also

expressed

her

Civil No. 10-2083 (PG)

Page 23

concerns internally through proper channels within the DOE, to no avail.
Compl.

¶

46.

In

addition,

on

September

21,

2009

she

also

made

an

official complaint to the Puerto Rico Comptroller where she reported
“irregularities in the use of property and funds by members of the
Caguas Educational Region, including Defendant Morales-Rivera.” Compl. ¶
37. Sánchez also “denounced that equipment and time was being used for
political activities and personal business activities, as well as of the
fact

that

Defendant

Morales-Rivera

used

his

position

to

harass

and

persecute his subordinates.” Id.
Proceeding to apply the test, the Court must determine whether in
making the above statements Sánchez spoke as a citizen and whether her
speech was on a matter of public concern. The Supreme Court has stated
that when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes. Garcetti, 547 U.S. at 421-22. This is not the case here.
Although in her complaint Sánchez recounts statements she made to her
supervisors
statements

at

the

DOE

referenced

regarding

above

her

engender

own

working

enough

conditions,

matters

the

unrelated

to

Sánchez’s official duties that they can be said to have been made by
Sánchez in her capacity as a citizen. Plaintiff made her statements to
the Office of the Comptroller of Puerto Rico, a public agency tasked
with supervising government entities such as the DOE in their handling
of public monies. She also made expressions to El Nuevo Día, a Spanish
language daily of wide circulation in Puerto Rico. There can be no doubt
that Sánchez intended her comments to be widely disseminated, as she
thought they addressed the ongoing troubling practices at the DOE.
The Court also finds that Sánchez’s statements to the Puerto Rico
Comptroller and to El Nuevo Día were on a matter of public concern. The
topic

of

a

public

official

basing

personnel

actions,

as

to

non-

policymaking employees, on political affiliation rather than merit is a
topic of public concern. Curran v. Cousins, 509 F.3d 36, 46 (1st Cir.
2007);

see

also

O'Connor,

994

F.2d

at

915

(1st

Cir.

1993)

(“[A]llegations of improper purchases clearly constituted a matter of
legitimate public concern.”); Propst v. Bitzer, 39 F.3d 148, 152 (7th
Cir.

1994)

(holding

that

allegations

of

misuse

of

university

funds

touched upon matters of public concern); Conaway v. Smith, 853 F.2d 789,

Civil No. 10-2083 (PG)

Page 24

797 (10th Cir. 1988) (“Speech that seeks to expose improper operations
of the government or questions the integrity of governmental officials
clearly

concerns

vital

public

interests.”).

Thus,

there

can

be

no

question that comments aimed at revealing misuse of public funds and
property,

as

well

as

personnel

actions

based

on

political

considerations, are of legitimate inherent concern to the electorate.
Curran, 509 F.3d at 46.
The Second part of the test now directs the Court to determine
whether, when balanced against each other, the First Amendment interests
of the Plaintiff and the public outweigh the government’s interest in
functioning properly. Defendants, however, have neglected to address how
the DOE’s need to function properly outweighs Sánchez’s First Amendment
interests. In their motion to dismiss, Defendants only maintain that
they are allowed to freely reassign Plaintiff for a reasonable term
under the Puerto Rico Public Service Act. 3 L.P.R.A. § 1462c. They
don’t, however, address Sánchez’s other claims of harassment and how
these acts were necessary for the proper functioning of the DOE. Thus,
the Court will settle this point in favor of Sánchez and assumes that
her

First

Amendment

rights

outbalance

the

DOE’s

need

to

function

efficiently.
Lastly, Sánchez must plead sufficient facts to establish that her
protected speech was a substantial or motivating factor in the adverse
employment

actions

suffered

by

her.

In

her

complaint,

Sánchez

has

recounted a broad swath of actions which she claims constitute a hostile
work environment. Some of these actions occurred before she made her
grievances
which

to

makes

relationship

the
it

Puerto

Rico

difficult

between

her

Comptroller,

for

the

speech

and some

Court

and

to

the

occurred

ascertain

alleged

a

after,
causal

hostile

work

environment. Nevertheless, Sánchez has alleged that after her comments
to the Comptroller, “[t]he Comptroller's Office started an investigation
in that region, prompting even more retaliation and harassment from the
defendants, in attempt to quiet Plaintiff.” Compl. ¶ 37. Sánchez has
also

alleged

that

““[e]ven

when

her

performance

has

always

been

of

excellence, since her public outcry for the political discrimination
taking

place

criticism,

at

the

reprimands

DOE,
for

Plaintiff
her

has

performance

been
for

subject
false

and

to

constant

unjustified

Civil No. 10-2083 (PG)

Page 25

reasons. Compl. ¶ 40. Taking these averments as true, it seems evident
that Sánchez’s maintains that the harassment she was subjected to was
motivated in part by her protected speech. The Court feels it would be
improper to hold otherwise at this stage of the proceedings, without the
benefit of further discovery in this case.
Accordingly, as Sánchez has pleaded a prima facie case under the
First Amendment, the Court will DENY Defendants’ motion to dismiss on
this point.
2. Equal Protection
Plaintiff
Protection

alleges

Clause

of

that

the

Defendants

Fourteenth

are

liable

Amendment

to

under
the

the

United

Equal
States

Constitution, for their alleged acts of discrimination based on her age
and gender. However, regarding Sánchez’s claim of age discrimination,
the

First

Circuit

has

held

that

it

is

the

ADEA

which

provides

the

exclusive federal remedy for age discrimination in employment. TapiaTapia, 322 F.3d at 745. Thus, Sánchez is not able to advance a valid
claim under Section 1983 based on age discrimination, and the Court is
left

with

her

Section

1983,

equal

protection

claim

based

on

gender

discrimination. Defendants argue that said claim must be dismissed as
Sánchez has not alleged any facts reflecting that other individuals at
the DOE, similarly situated to her, were treated differently than how
she was treated.
In order to establish an equal protection claim, Plaintiff needs to
allege facts indicating that, compared with others similarly situated,
she was selectively treated “based on impermissible considerations such
as

race,

religion,

intent

to

inhibit

or

punish

the

exercise

of

constitutional rights, or malicious or bad faith intent to injure a
person.” Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995). In
other words, a plaintiff that claims an equal protection violation must
first “identify and relate specific instances where persons situated
similarly in all relevant aspects were treated differently, instances
which have the capacity to demonstrate that [plaintiffs] were ‘singled
...

out

for

unlawful

oppression.’”

Id.

(citing

Dartmouth

Review

v.

Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)). Discrimination on
the

basis

of

sex

violates

the

equal

protection

clause

if

the

Civil No. 10-2083 (PG)

Page 26

discrimination fails to “serve important government objectives” and is
not “substantially related to achievement of those objectives.” Lipsett,
864 F.2d at 896 (quoting Davis v. Passman, 442 U.S. 228, 234-35 (1979)).
The only allegation in the complaint that attempts to evince some
type

of

disparate

treatment

simply

states

that

“[d]efendants

have

violated the rules and regulations of the DOE by assigning Plaintiff to
a place of work that is outside her residence and/or where her career
position is located. These positions have been filled by younger male
employees, in a clear discrimination for Plaintiff's age and gender.”
See Compl. ¶ 31. This, by itself, is insufficient to advance a valid
disparate treatment claim under the Equal Protection Clause. Plaintiff’s
threadbare statement does not relate how those younger male employees
were similar to her “in all relevant aspects” and lacks specificity as
to which positions were filled by which employees and whether these
employees were comparably qualified to Plaintiff. The Court notes that
“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.” Iqbal, 129 S.Ct. at
1949. This is not a “probability requirement,” but it does require “more
than a sheer possibility that a defendant acted unlawfully.” Id. Here,
Sánchez

has

only

presented

a

sheer

possibility

that

Defendants’

discriminatory animus towards her was based on the suspect category of
gender. As such, her pleadings are unable to sustain a valid claim of
gender discrimination under the equal protection clause, and said claim
must be DISMISSED WITHOUT PREJUDICE.
3. Due Process
On the introductory paragraphs of her complaint Sánchez asserts a
violation of her rights under the Due Process Clause of the Fourteenth
Amendment. Said clause protects persons against deprivation of life,
liberty or property without due process of law. U.S. Const. Amend. XIV.
The due process guarantee contains both a substantive and procedural
component. Harron v. Town of Franklin, 660 F.3d 531, 535 (1st Cir.
2011). Reading the remainder of the complaint, it is unclear under which
component

Sánchez

is

bringing

her

due

process

claim.

She

does

not

mention any of them by name, and thus the Court can only reasonably

Civil No. 10-2083 (PG)

Page 27

extract from the complaint a procedural due process claim stemming from
Defendants allegedly depriving Sánchez of her job functions. Defendants
argue said claim must be dismissed as Sánchez’s interest in her job
functions is not a protected property interest under the Due Process
Clause. The Court agrees.
“The

requirements

deprivation

of

of

interests

procedural

due

encompassed

by

process
the

apply

Fourteenth

only

to

the

Amendment's

protections of liberty and property.” Bd. of Regents v. Roth, 408 U.S.
564, 569 (1972). Sánchez alleges that Defendants have harassed her to
the point where she is unable to perform her functions; that she has
been stripped of her functions by Morales-Rivera by “naming two persons
to one position;” and that “no duties or responsibilities were assigned
to her until the situation was supposedly solved by Human Resources.”
See Compl. ¶¶ 41, 42. The question before the Court then is whether
Sánchez

has

a

protected

property

interest

in

her

job

duties

and

responsibilities. Said question is answered by looking to state law.
Figueroa-Serrano

v.

Ramos-Alverio,

221

F.3d

1,

6

(1st

Cir.

2000).

Unfortunately for Sánchez, under Puerto Rico law one’s interest in the
functions of their job does not constitute a protected property interest
for purposes of a due process analysis. See Educación Superior de la
Universidad de P.R. v. Rosselló González, 137 P.R. Dec. 83, 110, 1994
J.T.S. 125 (1994) see also Rosado de Vélez v. Zayas, 328 F. Supp. 2d
202, 212 (D.P.R. 2004); (indicating that "under Puerto Rico law, public
employees have a property interest in their continued employment, not in
the functions they perform."); accord Ruiz-Casillas v. Camacho-Morales,
415 F.3d 127, 134 (1st Cir. 2005). As a result, Sánchez’s due process
claim stemming from the privation of her job duties must fail and be
DISMISSED WITH PREJUDICE by this Court.
D. Qualified Immunity
Defendants next argue that they are entitled to qualified immunity
on the grounds that Plaintiff has failed to establish a violation of law
by Defendants, and that in any case, Plaintiff failed to casually link
any

Defendant

with

any

violation

of

a

right,

immunity

or

privilege

enjoyed by Plaintiff.
“Long-standing

principles

of

constitutional

litigation

entitle

Civil No. 10-2083 (PG)

Page 28

public officials to qualified immunity from personal liability arising
out of actions taken in the exercise of discretionary functions.” Glik
v. Cunniffe, 655 F.3d 78, 81 (1st Cir. 2011). The qualified immunity
inquiry is a two-part test. A court must decide (1) whether the facts
alleged

or

shown

by

the

plaintiff

make

out

a

violation

of

a

constitutional right; and (2) if so, whether the right was ‘clearly
established’

at

the

time

of

the

defendant's

alleged

violation.

Air

Sunshine, Inc. v. Carl, 663 F.3d 27, 32-33 (1st Cir. 2011)(citations
omitted); see also Pearson v. Callahan, 555 U.S. 223 (2009).
As discussed above, Sánchez was able to plead sufficient facts to
establish a prima facie violation of the First Amendment. Thus, the
Court must now decide whether said First Amendment right was “clearly
established” at the time Defendants’ allegedly violated it. Given the
Court’s previous discussion on Sánchez’s First Amendment claims, there
is no question that the same have been considered actionable violations
of the First Amendment for quite some time. Most of the cases cited by
the Court have been on the books long before the events that gave rise
to

Sánchez’s

complaint.

Consequently,

Sánchez’s

right

to

speak

out

against the practices of Defendants was clearly established at the time
of her hostile work environment, and therefore Defendants’ motion to
dismiss due to qualified immunity must be DENIED.
E. Sovereign Immunity
Finally, Defendants request the Court dismiss all claims for money
damages against the DOE, on the grounds that as an instrumentality of
the Commonwealth, it enjoys protection by the Eleventh Amendment.
The
actions

Eleventh
against

Amendment

bars

non-consenting

federal

states,

courts

including

from

the

entertaining

Commonwealth

of

Puerto Rico. Seminole Tribe v. Florida, 517 U.S. 44 (1996); Ezratty v.
Commonwealth of P.R., 648 F.2d 770, 776 n. 7 (1st Cir.1981). The scope
of

protection

afforded

to

the

Commonwealth

is

broad.

The

Eleventh

Amendment extends not only to state agencies acting as alter egos of the
state but also to state employees exercising their official duties. “[A]
suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official's
office.

As

such,

it

is

no

different

from

a

suit

against

the

State

Civil No. 10-2083 (PG)

Page 29

itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)
(citation omitted). In Edelman v. Jordan, 415 U.S. 651, 677 (1978), the
Supreme Court held that “a federal court's remedial power, consistent
with

the

Eleventh

injunctive
requires

relief,

the

Amendment,
and

payment

may

of

is
not

funds

necessarily
include

from

the

a

limited

to

retroactive

state

prospective
award

treasury.”

which

(citations

omitted).
Therefore, Plaintiff cannot recover a retroactive monetary award
against the DOE; she is only entitled to prospective injunctive relief
against such agency. The Court will thus DISMISS WITH PREJUDICE her
claims for money damages against the DOE and the individual defendants
in their official capacity.
F. Supplemental Law Claims
As Sánchez’s First Amendment claim has survived Defendants’ motion
to dismiss, the Court will retain jurisdiction over the Puerto Rico law
claims.
IV.

Conclusion

For the aforementioned reasons, the Court hereby DISMISSES WITH
PREJUDICE the following claims against Defendants: (1) Sanchez’s claims
under Title VII, Titles I and II of the ADA and the ADEA; (2) her claim
under the Due Process Clause of the Fourteenth Amendment; and (3) her
claims for money damages against the DOE and the individual defendants
in their official capacities.
The

following

claims

against

Defendants

are

DISMISSED

WITHOUT

PREJUDICE: (1) Plaintiff’s hostile work environment claim under Title
VII, Title I of the ADA, and the ADEA; (2) her Section 1983 claim under
the

Equal

Protection

Clause;

and

(3)

her

claims

against

defendants

Rivera-Sánchez, Piñeiro and Colón-Berlingeri.
IT IS SO ORDERED.
In San Juan, Puerto Rico, February 1, 2012.

s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE