UNITED STATES OF AMERICA v. Policia De Puerto Rico

Filing 45

OPINION AND ORDER Denying 31 Motion to Intervene filed by Sofia Figueroa-Rossy as to the additional claims. Figueroa-Rossy's Motion In Compliance 39 is hereby Noted and Denied. Signed by Judge Juan M Perez-Gimenez on 6/13/2012. (JG)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA,
Plaintiff,
SOFÍA M. FIGUEROA ROSSY,

CIV. NO. 10-2157 (PG)

Intervenor Plaintiff,
v.
POLICÍA DE PUERTO RICO,
Defendant.
OPINION AND ORDER
Intervenor Plaintiff Sofía Figueroa Rossy (hereinafter “Figueroa”)
aspires to intervene in this employment discrimination action brought by
the United States Attorney General (hereinafter “the Government”) under
Title VII of the Civil Rights Act of 1964. The Government’s complaint is
predicated on a charge of retaliation filed by Figueroa before the Equal
Employment

Opportunity

Commission

(“EEOC”)

against

her

employer,

Defendant Policía de Puerto Rico (hereinafter “PRPD” or “Defendant”). See
Docket No. 3. Figueroa now seeks to intervene in this action with an
intervenor complaint that contains the same claims already advanced by
the

Government

on

her

behalf

plus

additional

claims.

The

Court

has

already allowed her to intervene with the former claims, but has ordered
the parties to express themselves as to the additional claims. See Docket
No. 33. The PRPD opposes her request to intervene as to the additional
claims, while the Government takes no stance on the matter. After careful
review of the procedural posture of this case and the pertinent law, the
Court

concludes

that

Figueroa’s

motion

to

intervene

(Docket

No.

31)

should be DENIED as to the additional claims.
I. BACKGROUND
On December 1, 2010 the United States filed the instant action
against the PRPD seeking to enforce the provisions of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Title
VII). (Docket No. 3). The Government’s complaint is based on the alleged
acts of retaliation suffered by Figueroa, a PRPD agent who was assigned

Civil No. 10-2157 (PG)

Page 2

to the Caguas Sex Crimes Division of the Criminal Investigations Corps.
Figueroa apparently complained numerous times to different PRPD officials
about the sexual harassment she claims she was subjected to, but these
officials failed to take any meaningful action aimed at remedying her
situation. Instead, the officials failed to keep Figueroa’s grievances
confidential,

involuntarily

transferred

her

away

from

her

post,

and

retaliated against her for her complaints, all in violation of several
PRPD

regulations.

The

Government

maintains

that

these

actions

also

violated Figueroa’s rights under Section 704(a) of Title VII, 42 U.S.C. §
2000e-3(a),

and

pray

this

Court

grant

Figueroa

equitable

relief

by

enjoining the PRPD from failing or refusing to: (1) provide sufficient
remedial

relief

appropriate

meant

to

address

nondiscriminatory

Figueroa’s

measures

to

damages;

(2)

overcome

the

take

other

retaliation

suffered by Figueroa; (3) award compensatory damages to Figueroa; and (4)
supplement

its

mandatory

training

for

all

supervisors

in

the

Caguas

District regarding the procedures to follow in investigating claims of
retaliation under Title VII. Defendant answered the complaint on March
10, 2011 and basically denied most of the Government’s allegations.
On December 27, 2010 Figueroa opened a separate case and filed her
own complaint against Defendant PRPD and the Commonwealth of Puerto Rico,
as well as several supervisory officers of the PRPD, whom she claims are
liable for the discriminatory acts suffered by her. (Case No. 10-2270
(DRD), Docket No. 1). There, Figueroa advanced civil rights claims under
42 U.S.C. §§ 1983, 1985 and 1988, claims under Title VII (to wit: sexual
harassment,
supplemental

hostile
law

work

claims

environment
under

and

assorted

retaliation),
Puerto

Rico

as

well

statutes.

as
The

complaint filed by the Government in this case only contains claims based
on retaliation under Title VII. On May 27, 2011 Figueroa filed a “Motion
to Consolidate” her case with the instant case. (Docket No. 24). In
support of her request, Figueroa stated that both cases “involve the same
facts

involving

sexual

harassment,

hostile

work

environment

and

retaliation.” Id. at ¶4. This Court denied the motion on June 1, 2011.
(Docket No. 25).
A couple of months later, on August 18, 2011 the parties to the
instant case filed a joint motion seeking a stay of discovery in order to
pursue

settlement

negotiations.

The

parties

stated

that

“given

the

Civil No. 10-2157 (PG)

Page 3

extensive discovery intended to be performed by the parties, at the
present time the undersigned attorneys understand that it is in the best
interest of our clients to consider settling this case at this juncture
without incurring the costs inherent in the discovery process.” (Docket
No. 27, ¶2). The Court granted a forty five (45) day stay and ordered the
parties to resume discovery on October 3, 2011. On September 26, 2011 the
parties filed another joint motion informing the Court that Defendant had
been unable reach a settlement agreement with Figueroa concerning her
related

civil

case.

They

requested

the

Court

schedule

a

settlement

conference to assist them with said endeavor. (Docket No. 29). The Court
held

the

conference

and

the

parties

informed

they

had

reached

an

agreement “in principle” but nevertheless required additional time to
discuss parts of the consent decree with PRPD officials. (Dockets No. 32
and 42, ¶4).
On October 24, 2011 Figueroa filed a motion to intervene in the
instant case under FED. R. CIV. P. 24(a) along with an appended intervenor
complaint. (Docket No. 31). The intervenor complaint is the same as the
complaint she filed in the related civil case. Although it contained
mostly the same factual averments as the Government’s complaint, the
intervenor
describing

complaint
events

also

which

contained

took

place

additional

after

the

factual

ones

averments

recounted

in

the

Government’s complaint. The Court granted the motion to intervene but
only as to the claims already presented by the Government on Figueroa’s
behalf, namely the retaliation claims under Title VII. (Docket No. 33).
The Court directed the parties to express themselves as to the additional
claims contained in the intervenor complaint.
While

the

Government

took

no

position

as

to

the

motion

to

intervene, Defendant demurred, arguing that although Figueroa had a right
to intervene under FED. R. CIV. P. 24(a) “as of right,” said intervention
should be denied as untimely. In the alternative, should the Court allow
Figueroa

to

intervene

with

the

claims

already

being

pursued

by

the

Government on her behalf, the PRPD argues the Court should deny the
intervention as to the additional claims. It contends that since these
claims

were

not

presented

in

the

original

complaint

filed

by

the

Government, Figueroa only has a “permissive” right to bring them into
this case under FED. R. CIV. P. 24(b). The PRPD further maintains that

Civil No. 10-2157 (PG)

Page 4

Figueroa’s intervention does not comply with the requirements of Rule
24(b)

as

it

is

untimely

and

would

unduly

delay

and

prejudice

adjudication of the original parties’ rights in this case.

1

the

Because the

Court has already ruled that Figueroa may intervene in this case only as
to the claims already brought by the Government on her behalf, the only
remaining issue is whether Figueroa’s additional claims should be allowed
to proceed in this case under either Rule 24(a) or (b). The Court, in its
discretion, concludes that they should not.
II. DISCUSSION
The Court will first discuss whether Figueroa’s additional claims
may proceed in this case under the standard set out in Rule 24(a) for
interventions as “of right.” Barring that, the Court will discuss whether
the claims may still be able to proceed under the rubric of Rule 24(b)
for “permissive” interventions.
A. Rule 24(a) – Interventions As “Of Right”
In her motion to intervene, Figueroa posits that she enjoys an
unconditional right to intervene in this case under Rule 24(a) with her
additional claims. Said Rule states that “on timely motion, the court
must permit anyone to intervene who: (1) is given an unconditional right
to intervene by a federal statute.” (our emphasis). Section 706 of Title
VII confers such an unconditional right as it provides that “the person
or persons aggrieved shall have the right to intervene in a civil action
brought by the Commission or the Attorney General.” See 42 U.S.C. §
2000e–5(f)(1). However, said statute does not confer an unconditional
right to assert claims in addition to those already presented by the
Government. See EEOC v. The West Co., 1986 WL 1239, at *3 (E.D.Pa. 1986);
and also Equal Employment Opportunity Commission v. Rekrem, Inc., 199
F.R.D.

526

(S.D.N.Y.

2001)(Evaluating

whether

to

allow

Title

VII

intervenor plaintiffs’ additional claims under the rubric of Rule 24(b)
for permissive interventions, and not under the standard of Rule 24(a)
for

interventions

1

as

of

right).

Therefore,

despite

Figueroa’s

plain

Defendant also argues that even if the additional claims were to be
admitted, the same should be dismissed because Figueroa failed to exhaust
administrative remedies, the claims are time barred and they also fail to comply
with the applicable pleading requirements. The Court sees no reason to address
these arguments in depth as it ultimately concludes that Figueroa’s intervention
as to the additional claims should not proceed.

Civil No. 10-2157 (PG)

Page 5

assertion to the contrary, the Court finds that Title VII does not
provide her with an “unconditional right” to intervene in this case with
claims outside those contained in the Government’s complaint.
Nevertheless, Figueroa may still be able to intervene “as of right”
with her additional claims if she satisfies the requirements of Rule
24(a)(2). To do so, Figueroa must establish: (i) the timeliness of her
request to intervene; (ii) the existence of an interest relating to the
property or transaction that forms the basis of the pending action; (iii)
a realistic threat that the disposition of the action will impede her
ability

to

protect

that

interest;

and

(iv)

the

lack

of

adequate

representation of its position by any existing party. FED. R. CIV. P.
24(a)(2); R&G Mortg. Corp. v. Fed Home Loan Mortg. Corp., 584 F.3d 1, 7
(1st Cir. 2009); Ungar v. Arafat, 634 F.3d 46, 50 (1st Cir. 2011). “The
failure to establish any one of them dooms intervention.” R&G Mortg.
Corp., 584 F.3d at 7.
At the outset, the Court must note that Figueroa has neglected to
make any showing meant to satisfy the above requirements, either via her
motion to intervene or her motion in compliance with the Court’s order.
As such, the Court is forced to agree with Defendant’s assertion that
Figueroa cannot demonstrate “the lack of adequate representation of [her]
position by any existing party.” In this case, it is obvious that she is
able to adequately represent her own interests in this action as she has
already been granted a partial leave to intervene. As such, Figueroa has
failed to establish that she is entitled to intervene with her additional
claims “as of right” under Rule 24(a).
Having so determined, the Court must now ascertain whether the
additional claims may proceed under the standard set out in Rule 24(b)
for permissive interventions.
B. Rule 24(b) – Permissive Interventions
Rule 24(b)(1) provides that on a “timely motion, the court may
permit anyone to intervene who: (A) is given a conditional right to
intervene by a federal statute; or (B) has a claim or defense that shares
with the main action a common question of law or fact.” (our emphasis).
The

Court,

in

exercising

its

discretion,

must

consider

whether

the

intervention will “unduly delay or prejudice the adjudication of the
original parties’ rights.” Rule 24(b)(3). In this case, Defendant does

Civil No. 10-2157 (PG)

Page 6

not dispute that some of Figueroa’s claims share common questions of law
and fact with those present in the Government’s complaint. Instead, the
PRPD

argues

that

Figueroa’s

request

to

intervene

is

not

timely,

as

required by both Rules 24(a) and (b), and that the circumstances of this
case as a whole militate in favor of denying intervention. Figueroa, on
her part, makes few if any arguments opposing Defendant’s contentions.
Regardless, the Court will analyze whether Figueroa’s additional claims
may proceed under Rule 24(b).
“The timeliness requirement is of first importance, and the trial
court’s determination of timeliness is case-specific and entitled to
substantial deference.” United States v. Municipio de Vega Alta, 244
F.R.D. 118 (D.P.R. 2007). The court's exercise of judicial discretion in
this regard will not be disturbed unless there is an abuse of such
discretion. NAACP v. New York, 413 U.S. 345 (1973). According to the
First Circuit, a court must weigh four factors in deciding whether an
intervention

is

timely:

(i)

the

length

of

time

that

the

putative

intervenor knew or reasonably should have known that her interests were
at risk before she moved to intervene; (ii) the prejudice to existing
parties

should

intervention

be

allowed;

(iii)

the

prejudice

to

the

putative intervenor should intervention be denied; and (iv) any special
circumstances militating either for or against intervention. R&G Mortg.
Corp., 584 F.3d at 7. The Court may be more strict in assessing the issue
of timeliness under a Rule 24(b) motion than under a Rule 24(a) motion.
Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1230 n. 2 (1st
Cir.

1992).

Moreover,

the

timeliness

inquiry

is

“inherently

fact-

sensitive and depends on the totality of the circumstances.” R&G Mortg.
Corp., 584 F.3d at 7.
i. Knowledge
The

Court

will

begin

with

the

first

factor

dealing

with

the

intervenor’s knowledge of the instant suit and the threat it may pose to
her interests. The burden on demonstrating lack of knowledge is on the
party seeking intervention. Equal Employment Opportunity Commission v.
Westinghouse Electric Corporation, 675 F.2d 164, 165 (8th Cir. 1982). In
this case, the Government filed its complaint on December 1, 2010. It
wasn’t until almost six months after, on May 27, 2011, that Figueroa
decided to request consolidation of her case with this one. By doing so,

Civil No. 10-2157 (PG)

Page 7

Figueroa admits she “unintendedly overlooked” the requirements of Section
706 of Title VII, presumably because the correct course of action would
have been to file a motion to intervene. (Docket No. 31, ¶4). Figueroa
failed to provide the Court with any explanation meant to excuse the
sixth month delay.
Shortly thereafter, the Court denied the motion to consolidate, and
Figueroa proceeded to wait almost another five months before filing her
motion to intervene in the instant case. Again, Figueroa provided no
reasons for such a long delay. In total, she waited almost eleven months
after the Government filed its complaint to seek intervention. This delay
is puzzling to the Court, particularly because Figueroa has not alleged
that she was oblivious to the complaint filed by the Government on her
behalf. In fact, the motion to dismiss filed by the defendants in the
related civil case clearly mentioned the action filed by Government in
its third paragraph. (Case No. 10-2270 (DRD), Docket No. 28). And yet
Figueroa inexplicably waited over five months after that motion was filed
to intervene in this case. As such, the Court finds that the knowledge
factor strongly weighs against allowing such a late intervention.
ii. Prejudice to existing parties
This Court finds that granting the motion to intervene as to the
additional

claims

will

prove

extremely

prejudicial

to

the

existing

parties in this case, including Figueroa. After the Court entered its
“Case Management Memorandum Order” for this case on June 3, 2011, the
parties entered into settlement negotiations. On August 18, 2011 they
jointly requested a stay of discovery in order to advance the settlement
discussions without having to incur in considerable discovery expenses.
On October 18, 2011 the Court celebrated a settlement conference with the
parties, where they acknowledged having reached a settlement agreement
“in principle,” but Defendant’s counsel requested additional time to
discuss various provisions of the consent decree with PRPD officials.
(Docket No. 42, ¶4). Therefore, it is quite evident that the parties are
very close to reaching an agreement that would dispose of this case, and
infusing additional claims at this stage would undoubtedly scrap that
agreement.
The
covering

intervenor
acts

of

complaint
sexual

contains

harassment,

extensive
hostile

factual

work

allegations

environment

and

Civil No. 10-2157 (PG)

Page 8

retaliation suffered by Figueroa since early 2006 all the way through
August 27, 2010. Said complaint spans thirty (30) pages and contains
claims under Section 1983, 1985, and 1988, as well as claims under
various Puerto Rico employment discrimination statutes. In contrast, the
complaint

submitted

by

the

Government

is

seven

(7)

pages

long

and

manifests concise factual allegations that adequately support Figueroa’s
claim of retaliation under Title VII.2 Allowing the additional claims to
proceed

would

prove

extremely

time

consuming

and

would

enmesh

the

existing parties in extensive discovery proceedings, something they have
already
allowing

said

they

the

would

additional

like

to

claims

avoid.
will

Thus,

the

Court

substantially

finds

that

complicate

the

proceedings and harm the existing parties. See EEOC v. Dan Lepore & Sons
Co., 2004 WL 240315 at *3 (E.D.Pa. 2004)(denying motion to intervene as
to an additional claim not brought by the EEOC because it would “unduly
complicate the proceedings and shift the focus [of] the litigation from
the EEOC's Title VII claims.”).
iii. Prejudice to Figueroa
Denying the motion to intervene as to the additional claims will
not harm Figueroa; on the contrary, it will expedite the relief needed to
enjoin Defendant from continuing its retaliatory campaign against her.
Moreover, Figueroa has not made any allegation expressing any belief that
the relief sought by the Government in this case is insufficient to make
her whole for the wrongs she suffered. As to her additional claims under
Title VII, namely her sexual harassment and hostile work environment
claims, it is unlikely this Court would be with jurisdiction to entertain
them, as it appears that Figueroa has not exhausted her administrative
remedies. The charges filed by Figueroa before the EEOC on November 3,
2008; August 10, 2008; September 16, 2010; and March 30, 2011 all contain
a checkmark under retaliation, but none under discrimination based on
sex.

Thus,

it

appears

that

Figueroa’s

Title

VII

claims

of

sexual

harassment and hostile work environment have not been under the scrutiny
of the EEOC; as such, allowing Figueroa to intervene with them would
probably prove futile. See Morales-Vallellanes v. Potter, 339 F.3d 9, 18

2

The Court makes no determination as to whether the claims set forth by
the Government on Figueroa’s behalf are enough to survive the recent “Motion for
Judgment on the Pleadings” filed the PRPD on June 6, 2012. See Docket No. 43.

Civil No. 10-2157 (PG)

Page 9

(1st Cir. 2003)(holding that a Title VII cause of action is limited to
those discrimination allegations in the complaint that have been under
the scrutiny of a formal EEOC complaint); and United States v. Glens
Falls Newspapers, Inc., 160 F.3d 853, 856 (2nd Cir. 2008)(agreeing with
district court's denial of motion to intervene on futility grounds).
Therefore,
allowed

to

in

view

intervene

in

of

the

this

fact

that

Figueroa

case

with

her

has

Title

already
VII

been

claim

of

retaliation, the Court sees little or no prejudice to her in disallowing
the additional claims.
iv. Special Circumstances
Other than the circumstances already recounted, at this time the
Court

is

unable

to

identify

any

special

circumstances

which

would

militate either for or against allowing the additional claims.
Therefore, it is apparent that the factors outlined above suggest
that

Figueroa’s

request

to

intervene

is

not

timeous,

and

thus

the

additional claims should not be allowed to proceed under Rule 24(b).
III. CONCLUSION
After

having

carefully

analyzed

the

parties’

arguments

in

this

case, the Court concludes that Figueroa’s motion to intervene (Docket No.
31) should be DENIED as to the additional claims. Figueroa’s pending
motion in compliance (Docket No. 39) is therefore NOTED and DENIED.
IT IS SO ORDERED
In San Juan, Puerto Rico, June 13, 2012.
s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE