UNITED STATES OF AMERICA v. Policia De Puerto Rico

Filing 74

ORDER denying 43 Motion for Judgment on the Pleadings; denying 60 Motion to Dismiss. Signed by Judge Juan M Perez-Gimenez on 12/18/2012. (VCC)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
CIV. NO. 10-2157(PG)
v.
POLICIA DE PUERTO RICO,
Defendants.

OPINION AND ORDER
Pending before the Court are Defendants’ the Commonwealth of Puerto Rico
and its agency, the Puerto Rico Police Department (“PRPD”), “Motion for
Judgment on the Pleadings” (Docket No. 43) and

“Emergency Motion to Dismiss

Pursuant to a Waiver Agreement Signed by Figueroa” (Docket No. 60).
I. BACKGROUND
This is an action brought on behalf of the United States 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”). In this Complaint, the Plaintiff seeks redress
for the alleged sexual harassment, sex discrimination, retaliation, hostile
work environment, unlawful employment termination, and other discriminatory
practices that Agent Investigator Sofía Figueroa Rossy (“Figueroa”), a female
sworn officer in PRPD’s Sex Crimes Division, suffered during the course of her
employment with the PRPD. See, Docket No. 1.
Ms. Figueroa began her employment with the PRPD on or about September 10,
1993. See, Docket No. 39, Exhibit 1.
On November 3, 2008, Ms. Figueroa filed a charge of discrimination with
the

Equal

Opportunity

Commission

(“EEOC”),

Charge

No.

515-2009-00063,

alleging, among other things, that the PRPD retaliated against her when she
engaged in activity protected under Title VII. See, Docket No. 39, Exhibit 1.
Specifically, Ms. Figueroa claims that she made a sexual harassment claim
against her supervisor, Sgt. Simara Torres (“Torres”) to Capt. Gustavo Collazo
(“Collazo”). According to Figueroa, rather than investigating the sexual

CIV. NO. 10-2157(PG)

Page 2

harassment complaint against Torres, Collazo transferred her to another
division. See, Docket No. 39, Exhibit 1.
On August 21, 2009, the EEOC issued its determination finding reasonable
cause to believe that a violation of Title VII had occurred. After failing to
achieve a voluntary resolution of the charge through conciliation, the EEOC
referred the charge to the United States Department of Justice. See, Docket
No. 1.
Consequently, the United States filed the instant Complaint on November
30, 2010. See, Docket No. 1.
On October 24, 2011, Ms. Figueroa filed an Intervenor Complaint. See,
Docket No. 31. This Court granted Figueroa’s request as to her Title VII
claims. See, Docket No. 33.
While the present action was pending, Ms. Figueroa decided to participate
in the Incentives, Retirement and Re-Training Program instituted pursuant to
Public Law No. 70 of July 2, 2012. The Program gave public employees the
chance to retire in advance of their scheduled retirement. See, Docket No. 67,
Exhibit 1.
As part of the orientation for participants of the program, on June 3,
2012, Ms. Figueroa received and signed a document titled Election Form. See,
Docket No. 67, Exhibit 1.
Meanwhile, on June 6, 2012, Defendants filed a Motion for Judgment on the
Pleadings (Docket No. 43). In their Motion, Defendants posit that the United
States has failed to state a claim upon which relief should be granted because
Plaintiff’s claim is time-barred. Plaintiff timely opposed Defendant’s Motion
(Docket No. 54).
Then, on August 24, 2012, Defendants filed an “Emergency Motion to
Dismiss Pursuant to a Waiver Agreement Signed by Figueroa” (Docket No. 60).
Plaintiff opposed the Motion shortly thereafter (Docket No. 71).
On October 15, 2012, the parties attended a Status Conference where they
each discussed the merits of the pending motions and their respective
positions.
II. STANDARD OF REVIEW
A. Motion for Judgment on the Pleadings

CIV. NO. 10-2157(PG)

Page 3

Rule 12© of the Federal Rules of Civil Procedure states that, “[a]fter
the pleadings are closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” “The standard for evaluating a motion to
dismiss is the same as that for a motion for judgment on the pleadings.”
Remexcel Managerial Consultants, Inc. v. Arlequín, 583 F.3d 45, 49 n. 3 (1st
Cir.2009); see also Marrero-Gutiérrez v. Molina, 491 F.3d 1, 5 (1st Cir.2007).
Therefore, “[t]he trial court must accept all of the nonmovant’s well-pleaded
factual averments as true, and draw all reasonable inferences in his favor.”
Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir.2005) (quoting
Rivera-Gómez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988)). “[T]o survive
a motion to dismiss (or a motion for judgment on the pleadings), the complaint
must plead facts that raise a right to relief above the speculative level, … ,
such that the entitlement to relief is plausible … .” Citibank Global Markets,
Inc. v. Rodriguez Santana, 573 F.3d 17, 23 (1st Cir.2009) (internal citations
omitted).

B. Motion to Dismiss
“The general rules of pleading require a short and plain statement of the
claim showing that the pleader is entitled to relief. … This short and plain
statement need only give the defendant fair notice of what the … claim is and
the grounds upon which it rests.” Gargano v. Liberty Intern. Underwriters,
Inc., 572 F.3d 45, 48 (1st Cir.2009) (internal citations and quotation marks
omitted).
Motions to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6) are
subject

to

the

same

standard

of

review.

See

Negron-Gaztambide

v.

Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). When ruling on a motion to
dismiss for failure to state a claim, a district court “must accept as true
the well-pleaded factual allegations of the complaint, draw all reasonable
inferences therefrom in the plaintiff’s favor, and determine whether the
complaint, so read, limns facts sufficient to justify recovery on any
cognizable theory.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15
(1st Cir.2009) (citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,
508 (1st Cir.1998)). 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.

CIV. NO. 10-2157(PG)

Page 4

Sullivan, 513 F.3d 301, 306 (1st Cir.2008) (internal citations and quotation
marks omitted). “Yet [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 Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1960 (2009)). 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 … .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and quotation marks omitted).
Moreover, the Supreme Court has held that “to survive a motion to
dismiss,

a

complaint

must

allege

a

plausible

entitlement

to

relief.”

Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (citing
Twombly, 550 U.S. 544 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 129
S.Ct. at 1949 (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.
III. DISCUSSION
A. Whether the Action is Time-Barred
In their Motion for Judgment on the Pleadings (Docket No. 43), Defendants
argue that the Complaint fails to state a claim upon which relief should be
granted because the Title VII claim is time-barred. Defendants point to 42
U.S.C. §2000e-5(e)(1) which states that, before filing suit in federal court,
a plaintiff must file a charge with the EEOC within 180 days after the alleged
unlawful employment practice took place. However, according to the referenced
provision “if the person aggrieved has initially instituted proceedings with

CIV. NO. 10-2157(PG)

Page 5

a State or local agency with authority to grant or seek relief from such
practice,” then the claimant has 300 days from the alleged discriminatory
conduct to initiate his claim. See, 42 U.S.C. §2000e-5(e)(1).
Defendants assert that the 300-day statute of limitation does not apply
to the case at hand because the PRPD is not an agency or instrumentality of
the Government of Puerto Rico that operates as a private business or
enterprise. Hence, they conclude, the EEOC filing deadline for a retaliation
claim against the PRPD is 180 days.
Accordingly, since Plaintiff filed her claim on November 3, 2008, that
is, 271 days after the alleged transfer took place, Defendants assert that the
claim is time-barred under the applicable 180-day statute of limitations.
For its part, Plaintiff refutes that the action is time-barred. It argues
that, for a couple of months after Ms. Figueroa filed her sexual harassment
complaint, the PRPD engaged in additional retaliatory acts such as failing to
keep confidential MS. Figueroa’s sexual harassment claim and forcing her to
work in close proximity to her alleged harasser. According to Plaintiff, these
additional acts are reasonably related to and grew out of Ms. Figueroa’s EEOC
charge and thus form an actionable pattern of retaliation by the PRPD. See,
pg. 7 of Docket No. 54.
In any case, it adds, even if the Court finds that the retaliation claim
in Ms. Figueroa’s EEOC charge is untimely, the doctrine of equitable tolling
applies in this case. Citing to Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147 (1984)1, Plaintiff asserts that two of the four instances in which
equitable tolling may be appropriate in a Title VII suit are present in this
case. See, pg. 11 of Docket No. 54.
Firstly, Plaintiff argues that the “general confusion about the proper
charge-filing period for Title VII claims in Puerto Rico” was the main reason
behind Ms. Figueroa receiving an “inadequate notice of the statute of
limitations.” Moreover, Plaintiff claims, the fact that the EEOC “never told

1
Pursuant to the ruling in Baldwin Cnty.,equitable tolling in a Title VII suit may be
applied in the following cases: “(1) the plaintiff received inadequate notice of the statute
of limitations; (2) a motion for appointment of counsel is pending and equity would justify
tolling the statutory period until the motion is acted upon; (3) the court [has] led the
plaintiff to believe that she has done everything required of her; (4) affirmative
misconduct on the part of a defendant lulled the plaintiff into inaction.” 466 U.S. at 151.

CIV. NO. 10-2157(PG)

her

(Figueroa)

that

Page 6

her

charge

was

untimely”

caused

Ms.

Figueroa

to

detrimentally rely on erroneous information to proceed with her claim.
Secondly, Defendants contend that the primary reason for Ms. Figueroa’s
delay in initiating an administrative claim before the EEOC was the PRPD’s
conduct following her sexual harassment complaint. Particularly, that the PRPD
engaged

in

subsequent

retaliatory

acts

such

as

failing

to

conduct

an

investigation as required by PRPD’s Regulations; involuntarily transferring
Ms. Figueroa into another unit; disclosing confidential details of Ms.
Figueroa’s sexual harassment complaint, among others. According to Defendants,
such actions constitute an “affirmative misconduct” that “lulled the plaintiff
into inaction.” It wasn’t after Ms. Figueroa realized that “PRPD’s lengthy and
ineffective internal procedures would not provide the necessary relief she was
seeking” that she filed her claim before the EEOC. See, Docket No. 43.
Ms. Figueroa’s charge of discrimination before the EEOC was based on the
PRPD’s alleged retaliation against her when she engaged in activity protected
under Title VII. See, Docket No. 1, paragraph 5. Ms. Figueroa points to the
theory of continuing violations, which applies when a plaintiff alleges
repetitive instances of discrimination perpetuated over time. Title VII
recognizes that certain violations are continuing in nature. “In these
instances, discriminatees can file charges at any time up to 180 days after
the violation ceases.” United Airlines, Inc. v. Evans, 431 U.S. 553,562
(1977).
Accepting all of Plaintiff’s well-pleaded factual averments as true and
drawing all reasonable inferences in her favor-- as required when examining
Motions for Judgment on the Pleadings-- this Court finds that the PRPD’s
actions form a pattern of continuing violations. Here, Ms. Figueroa’s claims
are based on a continuing violation manifested in a number of incidents that
are asserted to have occurred within the 180-day statutory period.
As such, Ms. Figueroa’s action is not time-barred and Defendants’ Motion
for Judgment on the Pleadings is DENIED.
B. Request for Dismissal pursuant to Waiver Agreement
Plaintiffs further posit that, on May 24, 2012, Figueroa knowingly and
voluntarily entered into an early retirement program created by virtue of Law
No. 70 of July 2, 2010 (“Law No. 70"). One of the documents that Figueroa

CIV. NO. 10-2157(PG)

Page 7

signed, titled “Employee Election,” contains a waiver “of all claims actual
or potential, based on: (1) employment relationship and/or termination of the
same, under any applicable law and/or (ii) actions, if any, that could be
considered as a consequence of the implementation of Law No. 70.”
Furthermore, the waiver states: “This waiver will have the effect of a
total settlement of any claim or right, actual or potential, known or unknown,
that the employee has, could have or had, related to the employment and/or the
termination of employment. The effect of this release and waiver of rights
will be of res judicata.” Consistent with the terms of the Program, Ms.
Figueroa started to receive a monthly retirement compensation of $1,271.25,
effective June 1, 2012.
It is Defendants’ position that Ms. Figueroa “waived her rights to sue
under Title VII knowingly, voluntarily and intelligently” and that such waiver
extends to the United States, thus preventing it from pursuing the instant
claim on behalf of Ms. Figueroa. See, Docket No. 60.
Plaintiff replies that Title VII vests the United States, through the
Department of Justice, with the authority to file and prosecute the suit
against the PRPD to enforce the statute. Furthermore, it states, the United
States is not bound by private agreements, such as the alleged waiver signed
by Ms. Figueroa.
According to Plaintiff, there is a controversy as to whether the waiver
was knowing and voluntary. In fact, Plaintiff claims that even if the
Commonwealth can prove that it was, that does not affect the United States’
rights to get full discovery on its claims.
After examining the parties’ arguments, the Court agrees with Plaintiff’s
proposition. In EEOC v. Waffle House, Inc. 534 U.S. 279 (2002), the Supreme
Court expressed that when the EEOC files suit in employment discrimination
cases against state and local governments, it is “the master of its own case.”
See, Waffle House, 534 U.S. at 291. The case law cited by Plaintiff, Waffle
House and its progeny, discernibly holds that the EEOC, and by extension, the
Department of Justice, is a separate party and has distinct interests aside
from the individual.
Hence, the United States has independent authority to bring the present
suit and its recovery would only be limited if Ms. Figueroa failed to mitigate
her damages or if she accepted a monetary settlement. As the Waffle House

CIV. NO. 10-2157(PG)

Page 8

court expressed: “To the extent that the EEOC is seeking victim-specific
relief in court for a particular employee, it is able to obtain no more relief
for that employee than the employee could recover for himself by bringing his
own lawsuit” so as to “preclude double recovery.” See, Waffle House, 534 U.S
at 305.
Moreover, the United States is not bound by the alleged waiver signed by
Ms. Figueroa because it is not a party to the agreement. See, Waffle House,
534 U.S at 294, (“[A] contract cannot bind a nonparty.”) In Waffle House, the
Supreme Court held that the EEOC was not bound by an employer-employee
arbitration agreement. Therefore, unlike Defendants’ assertion, the United
States is not bound by the waiver signed by Ms. Figueroa.
In light of these determinations, Defendants’ request for dismissal is
DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, December 18, 2012.

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