Ramos-Santos v. Hernandez-Rodriguez et al
Filing
146
OPINION AND ORDER re 23 Motion to Dismiss; re 24 Motion to Dismiss; re 36 Motion Requesting Order; and re 117 Report and Recommendation. The Court ADOPTS the magistrate judge's findings and recommendations as the opinion of this Court. Accordingly, defendant Hernandez's motion to dismiss is GRANTED. Defendants Rodriguez, Commonwealth and PRFD's motion to dismiss is GRANTED IN PART AND DENIED IN PART. The motion to dismiss is DENIED as to plaintiff's claims against defendants Commonwealth and PRFD under Title VII, and plaintiff's claims against defendant Rodriguez under Law 115 and Law 426. Finally, defendant Rodriguez's motion for qualified immunity is deemed MOOT. Signed by Judge Francisco A. Besosa on 06/08/2012. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NELIDA RAMOS-SANTOS,
Plaintiff,
v.
CIVIL NO. 11-1105 (FAB)
JEREMIAS
HERNANDEZ-NOGUERAS,
CARMEN G. RODRIGUEZ-DIAZ, CUERPO
DE BOMBEROS DE PUERTO RICO,
COMMONWEALTH OF PUERTO RICO,
JOHN DOE, RICHARD DOE, PETER
ROE, NANCY DOE, CARL ROE,
Defendants.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is the Report and Recommendation (“R&R”),
(Docket No. 117), regarding two motions to dismiss:
one filed by
defendants Carmen G. Rodriguez-Diaz (“Rodriguez”), the Cuerpo de
Bomberos de Puerto Rico (Puerto Rico Fire Department) (“PRFD”), and
the Commonwealth of Puerto Rico (“the Commonwealth”), (Docket
No.
23);
the
other,
filed
(“Hernandez”) (Docket No. 24).
by
Jeremias
Hernandez-Nogueras
Also before the Court is defendant
Rodriguez’s unopposed motion alleging qualified immunity (Docket
No. 36). Having considered the magistrate judge’s recommendations,
as well as plaintiff’s objections to the R&R and defendants’
1
Jared Killeen, a second-year student at Brooklyn Law School,
assisted in the preparation of this Opinion and Order.
Civil No. 11-1105 (FAB)
2
opposition to plaintiff’s objections, (Docket Nos. 135 & 144), the
Court ADOPTS the findings and recommendations of the magistrate
judge.
I.
Background
A.
Factual Background
The Court declines to rehash all of the facts that are
contained in the magistrate judge’s R&R.
Instead, the Court
provides a brief overview of the facts, and will supply more
details as needed.
At the motion to dismiss stage under Federal
Rule of Civil Procedure 12(b)(6) (Rule “12(b)(6)”), a court must
accept the “well-pleaded facts as they appear in the complaint,
extending [the] plaintiff every reasonable inference in his [or
her] favor.”
Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 34
(1st Cir. 2002).
Therefore, the Court relies on the statement of
facts as it appears in plaintiff’s second amended complaint.
(Docket No. 67.)
Nelida Ramos-Santos (“plaintiff”) is a career employee
with the Commonwealth and has worked for the PRFD since 1988.
at ¶ 20.
Id.
After a series of promotions, plaintiff was appointed
Head of Administration of the PRFD by defendant Rodriguez in March,
2010.
Id. at ¶¶ 20-27.
Defendant Rodriguez herself had recently
been selected as Chief of the PRFD.
thereafter,
defendant
Hernandez
was
Id. at ¶ 27.
appointed
Shortly
Transportation
Civil No. 11-1105 (FAB)
3
Director of the PRFD and assigned to the same office building as
plaintiff.
Id. at ¶ 29.
Upon being introduced to plaintiff sometime in July,
2010, defendant Hernandez began what plaintiff describes as “a
constant pattern of flirtatious remarks, constant invitations to go
out to lunch, constant phone calls to her office, winks, and very
frequent visits to plaintiff’s office seeking help in matters that
he himself could easily resolve.”
Id. at ¶ 29.
The magistrate
judge notes that plaintiff’s complaint fails to describe in any
detail the alleged flirtations and remarks attributed to defendant
Hernandez.
(Docket No. 117 at p. 3.)
In mid-July, 2010, both plaintiff and defendant Hernandez
attended a League of United Latin American Citizens (“LULAC”)
convention in New Mexico.
July
13,
2010,
before
(Docket No. 67 at ¶¶ 31, 33.)
leaving
for
the
convention,
On
plaintiff
received a phone call from Manolo Fontan (“Fontan”), a service
manager from Guaraguao Truck Sales, a supplier for the PRFD.
at ¶ 31.
Id.
Fontan told plaintiff that defendant Hernandez had asked
him to provide $5,000.00 to cover the cost of the PRFD employees’
tickets to New Mexico for the LULAC convention.
Id.
Fontan said
that he had only enough money to buy one round-trip ticket, and
that he had mailed a check to PRFD headquarters.
Id.
When
plaintiff later received the check, she quickly informed defendant
Civil No. 11-1105 (FAB)
4
Rodriguez of its “illegality.”
Id. at ¶ 32.
Defendant Rodriguez
said to plaintiff, “pay [for] the plane ticket and I will take care
of returning the money later.”
Id.
Upon arriving in New Mexico for the convention, a number
of PRFD employees, including plaintiff and defendant Hernandez,
stayed at the same hotel.
Id. at ¶ 33.
On July 16, 2010,
plaintiff and defendant Hernandez were part of a group of PRFD
employees gathered around the hotel pool. Id. Defendant Hernandez
made an unkind remark to plaintiff about a PRFD captain named Luis
Otto, whom he referred to as “that Popular,” a comment which
plaintiff characterizes as showing “a patent discrimination for
political reasons.”
hotel room.
Id.
Uncomfortable, plaintiff retired to her
Id. at ¶ 34.
An hour later, defendant Hernandez
called plaintiff in her room, inquiring whether she was upset with
him.
Id. at ¶ 35.
Plaintiff responded by telling defendant
Hernandez to refrain from calling her.
Id.
At around midnight
that same evening, defendant Hernandez called plaintiff again; he
told her that he was lonely and asked if she would like to come up
to his room.
Id. at ¶¶ 35-36.
He also told plaintiff, in an
excited manner, that “what he had for her was big and fat,
referring to his penis, that she would like it, that he was crazy
about giving her a kiss and that one of these days he would steal
one from her.”
Id. at ¶ 36.
Civil No. 11-1105 (FAB)
During
the
5
LULAC
convention,
defendant
Hernandez
commented among members of the group that he was plaintiff’s
“bodyguard” and had to stay close by her because he was “assigned
to this mission.”
Id. at ¶ 37.
Plaintiff told defendant Hernandez
to refrain from making such comments, reminding Hernandez that she
was married.
Id. at ¶ 38.
Nonetheless, defendant Hernandez
persisted in asking plaintiff about her marital status despite
plaintiff’s refusal to engage in conversation.
Id.
On August 16, 2010, defendant Hernandez and PRFD General
Counsel Efren Gonzales prepared a complaint against plaintiff
alleging sexual harassment.2
Id. at ¶ 39.
The next day, defendant
Hernandez told plaintiff that she seemed different ever since he
had refused her repeated requests to go to her room at the LULAC
2
It is unclear whether defendant Hernandez’s complaint was an
internal remonstration within the PRFD, an Equal Employment
Opportunity Commission (“EEOC”) complaint, or another type of
administrative grievance.
(Docket No. 117 at p. 5.)
Indeed,
plaintiff’s statement of facts does little to clarify this matter,
leaving to speculation not only the nature of the complaint, but
any reasonable explanation as to why defendant Hernandez might make
such an accusation.
One possible answer is that Hernandez was
merely responding in retaliation to complaints filed previously by
plaintiff.
Yet plaintiff’s intimation that she had already
submitted her own complaints by August 23, 2010 (Docket No. 67 at
¶ 41) directly contradicts statements made elsewhere that she did
not file an administrative complaint until September 14, 2010, or
an EEOC complaint until September 30, 2010. (Docket No. 117 at
p. 5.)
Thus, the Court cannot assume that plaintiff filed any
complaints before defendant Hernandez submitted his grievance on
August 16, 2010.
Civil No. 11-1105 (FAB)
convention.
Id.
6
At the same time, defendant Hernandez also began
complaining to defendant Rodriguez about plaintiff’s incompetence
and failure to perform her duties.
Id. at ¶ 41.
On September 14, 2010, plaintiff filed an administrative
complaint against defendant Hernandez alleging sexual harassment
and acts of retaliation.
Id. at ¶ 42.
Defendant Rodriguez told
plaintiff “that she was being demoted to a lower rank position” on
September 29, 2010.3
Id. at ¶ 43.
On the same day, plaintiff was
excluded from a meeting she usually attended. Id. Plaintiff filed
a complaint with the EEOC on September 30, 2010.
Id. at ¶ 44.
Between October 1 and December 27, 2010, “defendants
gradually
. .
functions.”
.
demoted
[plaintiff]
Id. at ¶ 45.
and
withdrew
[her]
work
Plaintiff was moved to a different
office with a damaged chair and without a working air conditioner;
she was denied Internet access and admission to her assigned
parking spot;
maintain
the
facilities
herself, mopping a filthy and unhygienic floor.
Id.
Moreover,
3
and
she
was
forced
to
Plaintiff does not provide the title of this lower rank
position and does not describe in any detail a change in her
administrative duties. In her opposition to defendants’ motions to
dismiss, however, plaintiff does include several documents
demonstrating a diminution in rank, including paystubs and a letter
from defendant Rodriguez notifying her of the alleged demotion.
(See Docket No. 31.) Nonetheless, the magistrate judge correctly
denies consideration of these materials because they were submitted
to the court in Spanish without certified English translations
pursuant to Local Rule 5(g.) (See Docket No. 117 at p. 34.)
Civil No. 11-1105 (FAB)
7
whenever plaintiff encountered defendant Hernandez in the PRFD
office building, he greeted her with “menacing and threatening
demeanors [sic].”
Id. at ¶ 46.
Despite claiming that she was
asked to leave the agency, plaintiff is still employed at the PRFD.
(Docket No. 117 at p. 6.)
B.
Procedural Background
On September 15, 2011, plaintiff filed a second amended
complaint against defendants Hernandez and Rodriguez in their
individual and official capacities, the Commonwealth, the PRFD, and
a number of unnamed defendants. (Docket No. 67.) Plaintiff brings
claims of sexual harassment and retaliation under a variety of
federal and local statutes, to wit, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 1983, the First and Fourteenth Amendments
of the U.S. Constitution, Federal and Commonwealth whistleblower
laws, and Puerto Rico Laws 17, 69, 100, 115 and 426.4
2, 50, 56, 59-61.
Id. at ¶¶ 1,
Plaintiff seeks injunctive relief, compensatory
damages, interest in back pay, punitive damages, attorneys fees and
the reimbursement of litigation costs.
4
Id. at ¶ 1.
In addition to these statutes, plaintiff also cites the
Fourth Amendment and 42 U.S.C. §§ 1985 and 1988. (Docket No. 67
at ¶ 1.) The R&R correctly notes that these statutes are either
invoked by plaintiff in error, or that they are not sufficiently
discussed by plaintiff to justify the Court’s consideration.
(Docket No. 117 at p. 34.)
Civil No. 11-1105 (FAB)
8
On April 5, 2011, defendants Rodriguez, the Commonwealth
and the PRFD filed a motion to dismiss pursuant to Rule 12(b)(6).
(Docket No. 23.)
On April 15, 2011, defendant Hernandez filed a
separate motion to dismiss.
(Docket No. 24.)
In sum, defendants
argue that all of plaintiff’s claims that are not barred by the
Eleventh Amendment ought to be dismissed for failure to state a
cause of action. In addition, on May 23, 2011, defendant Rodriguez
filed a motion seeking qualified immunity, reasoning that plaintiff
had failed to plead a plausible constitutional claim.
(Docket
No. 36.)
Plaintiff filed an opposition to defendants’ motions to
dismiss on April 25, 2011.
(Docket No. 31.)
In addition to
refuting defendants’ arguments, plaintiff includes in her response
several documents supporting her claim that she was demoted in
retaliation for her administrative complaints concerning Hernandez.
Specifically, plaintiff submits Spanish-language paystubs showing
a change in salary and rank, arguing that these establish evidence
of a property interest directly affected by the demotion.
Docket No. 31.)
(See
On May 13, 2011, defendants Rodriguez, the
Commonwealth, and the PRFD filed a reply to plaintiff’s opposition
to their motion to dismiss, arguing that plaintiff has failed to
support any of her claims with sufficient facts.
(Docket No. 35.)
Civil No. 11-1105 (FAB)
Pursuant
to
9
a
referral
order
issued
by
the
Court,
Magistrate Judge Marcos E. Lopez filed an R&R with regard to the
motions to dismiss and the motion for qualified immunity on May 1,
2012.
(Docket No. 117.)
First, Magistrate Judge Lopez recommends
that defendant Hernandez’s motion to dismiss be GRANTED.
Second,
he recommends that defendants Rodriguez, the Commonwealth, and the
PRFD’s motion to dismiss be GRANTED IN PART AND DENIED IN PART.
Finally, he recommends that defendant Rodriguez’s motion requesting
dismissal of claims against her under qualified immunity be deemed
MOOT.
Specifically, the R&R recommends that:
•
All First and Fourteenth Amendment claims, as well
as claims under Puerto Rico Laws 17, 69, 115, and
426 against defendants the Commonwealth and the
PRFD,
and
Hernandez
against
in
their
defendants
Rodriguez
and
official
capacities,
be
DISMISSED on sovereign immunity grounds;
•
All claims under Puerto Rico Law 100 against the
Commonwealth and PRFD be DISMISSED;
•
Any Title VII claims against defendants Rodriguez
and
Hernandez
individually,
to
the
extent
the
complaint asserts them at all, be DISMISSED as
there is no individual liability under Title VII;
Civil No. 11-1105 (FAB)
•
All
claims
10
against
defendants
Rodriguez
and
Hernandez in their personal capacities under the
First
Amendment,
the
Fourteenth
Amendment,
and
Puerto Rico Laws 17, 69, and 100 be DISMISSED for
failure to state a claim upon which relief can be
granted;
•
All claims under the Whistleblower Protection Act
of 1989, Pub. L. 101-12, codified at 5 U.S.C.
§ 1213 et seq., be DISMISSED for failure to state a
claim upon which relief can be granted;
•
Any claims against defendant Hernandez under Puerto
Rico Laws 115 and 426 be DISMISSED for failure to
state a claim upon which relief can be granted;
•
All
claims
against
defendants
Rodriguez
and
Hernandez under 42 U.S.C. § 1985 be DISMISSED for
failure to state a claim upon which relief can be
granted;
•
The
prospective
injunctive
relief
requested
be
DENIED because it lacks specificity as to what
action in particular plaintiff wishes the Court to
enjoin and no allegation of ongoing harm has been
made; and
Civil No. 11-1105 (FAB)
•
11
Defendant
Rodriguez’s
request
for
qualified
immunity be deemed MOOT because plaintiff failed to
show
that
her
constitutional
rights
had
been
violated.
Moreover, the magistrate judge recommends that the following claims
survive the motion to dismiss:
•
Plaintiff’s Title VII retaliation claims against
defendants Commonwealth and PRFD;
•
Plaintiff’s
Law
115
claim
against
defendant
Rodriguez in her individual capacity; and
•
Plaintiff’s
Law
426
claim
against
defendant
Rodriguez in her individual capacity.
Plaintiff filed partial objections to the R&R on May 19,
2012.
(Docket No. 135.)
Plaintiff argues that the magistrate
judge committed error by recommending dismissal of her Fourteenth
and First Amendment claims.
Id. at ¶¶ 18 & 34.
Plaintiff insists
(1) that she has demonstrated “a hostile-work environment due to
sexual harassment” pursuant to the Equal Protection Clause and
Puerto Rico law; and (2) that she has demonstrated a violation of
her First Amendment right to free speech.
On June 4, 2012, defendants Hernandez, Rodriguez, the
Commonwealth, and the PRFD filed a joint opposition to plaintiff’s
objection to the R&R.
(Docket No. 144.)
Defendants allege that
Civil No. 11-1105 (FAB)
12
plaintiff’s filing of her objection was untimely.
Id. at p. 2.
Although plaintiff did submit her objection several days after the
original deadline, the Court granted plaintiff’s motion for leave
to file the objection instanter.
II.
(See Docket Nos. 134 & 137.)
Legal Standards
A.
Standard under 28 U.S.C. § 636(b)(1)
A district court may refer a case to a magistrate judge
for a report and recommendation.
See 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b); Loc. Rule 72(b).
Any party adversely affected
by the report and recommendation may file written objections within
fourteen days of being served with the magistrate judge’s report.
See 28 U.S.C. § 636(b)(1).
A party that files a timely objection
is entitled to a de novo determination of “those portions of the
report or specified proposed findings or recommendations to which
specific objection is made.”
Sylva v. Culebra Dive Shop, 389
F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)).
rule precludes further review.
22, 30-31 (1st Cir. 1992).
Failure to comply with this
See Davet v. Maccorone, 973 F.2d
In conducting its review, the court is
free to “accept, reject, or modify, in whole or in part, the
findings
or
recommendations
made
by
the
magistrate
judge.”
28 U.S.C. § 636 (a)(b)(1).
Templeman v. Chris Craft Corp., 770
F.2d
1985);
245,
247
(1st
Cir.
Alamo
Rodriguez
v.
Pfizer
Civil No. 11-1105 (FAB)
Pharmaceuticals,
Inc.,
13
286
F.Supp.2d
144,
146
(D.P.R.
2003).
Furthermore, the Court may accept those parts of the report and
recommendation
to
which
the
parties
do
not
object.
See
Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R. 2005)
(citing
Lacedra
v.
Donald
W.
Wyatt
Detention
Facility,
334
F.Supp.2d 114, 125-126 (D.R.I. 2004)).
B.
Standard Under Rule 12(b)(6)
Rule 12(b)(6) allows a court to dismiss a complaint when
it fails to state a claim upon which relief can be granted.
Fed.R.Civ.P.
12(b)(6).
When
considering
a
motion
under
Rule 12(b)(6), a court must accept the “well-pleaded facts as they
appear in the complaint, extending [the] plaintiff every reasonable
inference in his [or her] favor.”
Medina-Claudio, 292 F.3d at 34.
“[A]n adequate complaint must provide fair notice to the defendants
and state a facially plausible legal claim.”
Ocasio–Hernandez v.
Fortuño–Burset, 640 F.3d 1, 12 (1st Cir. 2011).
When faced with a
motion to dismiss, “[a] plaintiff is not entitled to ‘proceed
perforce’ by virtue of allegations that merely parrot the elements
of the cause of action.”
S.Ct.
1937,
1950
Id. at 12 (quoting Ashcroft v. Iqbal, 129
(2009)).
Any
“[n]on-conclusory
factual
allegations in the complaint [, however,] must . . . be treated as
true, even if seemingly incredible.”
at 1951).
Id. (citing Iqbal, 129 S.Ct.
Where those factual allegations “‘allow[ ] the court to
Civil No. 11-1105 (FAB)
14
draw the reasonable inference that the defendant is liable for the
misconduct alleged,’ the claim has facial plausibility.”
(quoting Iqbal, 129 S.Ct. at 1949).
Id.
Furthermore, 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’.”
Id. at 13 (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The relevant
inquiry, therefore, “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.”
According
to
Rule
Id.
12(b)(6),
a
court
must
base
its
determination solely on the material submitted as part of the
complaint or central to it.
Fudge v. Penthouse Int’l. Ltd., 840
F.2d 1012, 1015 (1st Cir. 1988).
Generally, “a court may not
consider documents that are outside of the complaint, or not
expressly incorporated therein, unless the motion is converted into
one for summary judgment.”
Alt. Energy, Inc. v. St. Paul Fire &
Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
“When . . . a
complaint’s factual allegations are expressly linked to - and
admittedly dependent upon - a document (the authenticity of which
is not challenged), [however,] that document effectively merges
into the pleadings and the trial court can review it in deciding a
motion to dismiss under Rule 12(b)(6).”
Beddall v. State St. Bank
Civil No. 11-1105 (FAB)
15
& Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) (internal citation
omitted).
This is especially true where the plaintiff has “actual
notice . . . and has relied upon these documents in framing the
complaint.”
Watterson v. Page, 987 F.2d 1, 4 (1st Cir. 1993).
III. Discussion
A.
Plaintiff’s Objections
Plaintiff objects that the magistrate judge erred by
recommending
claims.
dismissal
of
her
Fourteenth
and
(Docket No. 135 at ¶¶ 18 & 34.)
First
Amendment
Plaintiff insists
(1) that she has demonstrated “a hostile-work environment due to
sexual harassment” pursuant to the Equal Protection Clause and
Puerto
Rico
law;
and
(2)
that
she
has
Amendment violation of her free speech.
demonstrated
a
First
By limiting her objection
to the prenominate concerns, any other objection is waived.
See
D.P.R. Loc.Civ.R. 7(b). The Court will consider both objections in
turn.
i.
Hostile Environment Claim
Plaintiff objects that the magistrate judge erred in
his recommendation to dismiss plaintiff’s hostile-environment claim
against defendant Hernandez under the Equal Protection clause, and
Puerto Rico Laws 17, 69, and 100.
(Docket No. 135 at ¶¶ 4-18.)
Specifically,
to
plaintiff
objects
the
magistrate
judge’s
determination that under the hostile-environment standard, the
Civil No. 11-1105 (FAB)
16
facts alleged by plaintiff in her complaint fail to establish that
she
was
subjected
harassment.
to
a
Id. at ¶ 5.
hostile
environment
due
to
sexual
Plaintiff argues in favor of a broader
consideration of evidence under an incomplete four-point standard
of
hostile-environment
harassment.
Id.
Plaintiff’s arguments are unpersuasive.
at
¶¶
8-11,
12.
First, by requesting that
the Court consider evidence related to the separate and distinct
retaliation
claim
against
defendant
Rodriguez,
plaintiff
impermissibly conflates that claim with the hostile-environment
claim against defendant Hernandez.
incomplete
four-point
standard
Id. at ¶¶ 8-11.
recommended
by
Second, the
plaintiff
is
incorrect because it neglects two important criteria employed by
the
First
environment.
Circuit
Court
of
Id. at ¶¶ 12.
Appeals
to
identify
a
hostile
The Court now addresses these two
significant errors in plaintiff’s argument.
a.
Conflation of Separate Claims
Plaintiff argues that “[s]he was placed in a
hostile environment as a reaction and retaliation to her having
complained of sexual harassment . . . by Hernandez.”
No. 135 at ¶ 7.) (emphasis added.)
(Docket
In support of this allegation,
plaintiff submits facts contained in paragraphs forty-two through
forty-seven of her second amended complaint detailing the alleged
demotion suffered by plaintiff in retaliation to her filing a
Civil No. 11-1105 (FAB)
17
sexual-harassment grievance.
(See Docket No. 67.)
Plaintiff
ignores the fact that sexual harassment and retaliatory harassment
are distinct causes of action, governed by separate and independent
statutes and common law standards.
See 42 U.S.C. §§ 2000e-2
& 2000e-3(a); Faragher v. City of Boca Raton, 524 U.S. 775 (1998);
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006);
Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005).
By
supporting her sexual harassment claim against defendant Hernandez
with evidence specific to her retaliation claim against defendant
Rodriguez, plaintiff impermissibly conflates two distinct causes of
action against two separate defendants.
The
First
Circuit
Court
of
Appeals
has
acknowledged that when “an individual sexually harasses a victim
and then engages in non-sexual retaliatory harassment, the sexual
and non-sexual harassment arguably may be part and parcel of the
same violation.”
Noviello, 398 F.3d at 87; see Perez-Cordero v.
Wal-mart Puerto Rico, Inc., 656 F.3d at 32 (1st Cir. 2011) (a
single-defendant case holding that where “evidence can reasonably
be
viewed
as
demonstrating
either
discriminatory
animus
or
retaliatory animus, [the court] may consider the same evidence in
assessing
the
sufficiency
of
both
the
plaintiff’s
claims”).
Nonetheless, the Noviello Court has qualified this statement,
noting that “[t]he majority of cases are not cut from this seamless
Civil No. 11-1105 (FAB)
cloth.
18
Even when retaliation is derivative of a particular act of
[sexual] harassment, it normally does not stem from the same
animus.
Most often, retaliation is a distinct and independent act
of discrimination . . . ”
Noviello, 398 F.3d at 87.
This
distinction between sexual and retaliatory harassment is especially
sharp when the plaintiff has asserted different claims against two
separate defendants.
In Noviello, for instance, an act of sexual
harassment was committed by one party, while retaliatory harassment
was “orchestrated by a cohort of different individuals.”
Id.
Because the offensive behavior of both parties did not stem from
the same animus, the court of appeals viewed the sexual and
retaliatory harassment as “separate and independent harms.”
Id.
That is the case here, where plaintiff asserts a sexual harassment
claim against defendant Hernandez and a retaliatory harassment
Civil No. 11-1105 (FAB)
19
claim against defendant Rodriguez.5
It is clear that the alleged
misdeeds of both parties are distinct, that they do not arise from
the same animus, and therefore that they must not be condensed into
a “mixed-motive” claim.
Id. at 88.
Moreover, plaintiff cannot
prop up her failing sexual harassment claim with the more robust
retaliatory harassment allegations against defendant Rodriguez.
Id. (holding that “[t]he plaintiff cannot rely on the second
[claim] to revive the first”).
For these reasons, plaintiff’s
objections are undermined by her conflation of two distinct causes
of action.
b.
Incorrect Hostile-Environment Standard
Plaintiff’s objections to the R&R reveal a
second error by adopting an incomplete standard for hostileenvironment harassment.
5
Plaintiff states that “[i]n order to
The magistrate judge notes that “[p]laintiff’s complaint
does not specify which of her many claims are asserted against
which of the four named defendants . . . ” Therefore, the R&R
interprets the complaint as asserting “all claims against all
defendants.” (Docket No. 117 at p. 7.) Even so, the Court may
safely deduce from the R&R which claim belongs with which
defendant.
The sexual harassment claim, on the one hand, is
undoubtedly asserted against defendant Hernandez, the sole
perpetrator of lascivious misconduct. (See Docket No. 67 at ¶¶ 29,
36-37.) The retaliatory harassment claim, on the other hand, is
valid only against defendant Rodriguez, and not Hernandez; the
magistrate judge correctly states that because defendant Hernandez
“had no decision-making authority over plaintiff’s employment, he
cannot be held responsible for her demotion and change in work
duties.” (Docket No. 117 at p. 25.)
Civil No. 11-1105 (FAB)
20
prevail in an abusive or hostile environment case when it is
created by a supervisor6 the plaintiff must show that (1) she is a
member of a protected group; (2) she was subjected to unwanted
conduct based on sex; (3) the conduct was objectively severe . . .;
and (4) she subjectively perceived conduct to be abusive.”
Id.
No
matter how compelling the results of this analysis may ultimately
be, they must be discarded because plaintiff fails to address all
six points typically included in the First Circuit standard.
Notably,
plaintiff’s
standard
lacks
the
requirement
that
an
declined
to
employer be aware of the alleged harassment.
While
articulate
a
multi-point
the
Supreme
standard,
Court
it
has
has
provided
a
framework according to which the standard may be developed.
basic
The
First Circuit Court of Appeals has developed a six-point standard
for
hostile-environment
jurisprudence.
harassment
based
on
Supreme
Court
See Faragher, 524 U.S. 787-89; Harris v. Forklift
Sys., Inc., 510 U.S. 17, 20-23 (1993); Meritor Sav. Bank, FSB v.
6
Plaintiff, perhaps inadvertently, refers to defendant
Hernandez as her supervisor (Docket No. 135 at ¶ 12.) Nowhere in
her complaint, however, does plaintiff claim that defendant
Hernandez occupied a supervisory role in relation to her; nor does
she allege that defendant Hernandez commanded any sort of authority
or influence over plaintiff that might qualify as supervisory in
nature. Again, plaintiff conflates her hostile-environment claim
against her co-worker, defendant Hernandez, with her retaliation
claim against her supervisor, defendant Rodriguez.
Civil No. 11-1105 (FAB)
21
Vinson, 477 U.S. 57, 65-73 (1986).
Under either the general
Supreme Court framework or the narrower First Circuit standard,
plaintiff’s hostile-environment claim fails.
According to the First Circuit standard, a
plaintiff must meet six criteria in order to succeed on a hostileenvironment claim:
(1) that she is a member of a protected class;
(2) that she was subjected to unwelcome sexual harassment; (3) that
the harassment was based upon sex; (4) that the harassment was
sufficiently severe or pervasive so as to alter the conditions of
plaintiff’s employment; (5) that sexually objectionable conduct was
both objectively and subjectively offensive; and (6) that some
basis for employer liability has been demonstrated.
See Perez-
Cordero, 656 F.3d at 27; Agusty-Reyes v. Dept. of Educ. of Puerto
Rico, 601 F.3d 45, 52 (1st Cir. 2010); O’Rourke v. City of
Providence, 235 F.3d 713, 728 (1st Cir. 2001).
The six-point
standard may be applied when a hostile environment has been created
either by a supervisor or by a non-supervisory co-worker.
Perez-Cordero,
(applying
656 F.3d
standard
Municipality
of
to
at
27;
Agusty-Reyes,
supervisor);
see
Aguadilla,
447
F.3d
85,
at
52
Valentin-Almeyda
v.
94
601
(1st
F.3d
See
Cir.
2006);
O’Rourke, 235 F.3d at 728 (applying standard to non-supervisors).
Plaintiff fails to meet at least one of the
elements of the First Circuit standard. Upon considering the facts
Civil No. 11-1105 (FAB)
22
and extending “every reasonable inference” in plaintiff’s favor,
the Court still finds that plaintiff failed to satisfy point (6) of
the First Circuit standard.7
Medina-Claudio, 292 F.3d at 34.
As
the R&R has shown, there is no basis for employer liability because
the allegations in the complaint provide no reason to believe that
defendant Rodriguez or any other supervisor knew or should have
known about Hernandez’s alleged harassment.
p. 21.)
(Docket No. 117 at
Plaintiff is precluded from claiming hostile-environment
harassment by a non-supervisory co-worker under the First Circuit
standard because she fails to show at least one element of the
test.
Even under the more generous Supreme Court
framework, plaintiff’s claim fails.
Indeed, the magistrate judge
employs a more general standard, mirroring that of the Supreme
Court, when considering plaintiff’s hostile environment claim.
Rather than use the six-point standard set forth by the First
Circuit, the magistrate judge maintains that a plaintiff may bring
a
hostile-environment
7
claim
where
“sexual
harassment
[is]
so
This is not to say that plaintiff would be able to meet the
other requirements set forth in the First Circuit standard,
especially points (2) through (5); it is only to assert that there
is no doubt the magistrate judge correctly determined that the
allegations in the complaint “do not give rise to a reasonable
inference that defendant Rodriguez or any other supervisory
personnel knew or should have known about defendant Hernandez’s
behavior prior to September 14, 2010.” (Docket No. 117 at p. 21.)
Civil No. 11-1105 (FAB)
23
‘severe and pervasive’ as to ‘alter the condition [of the victim’s]
employment and create an abusive working environment.”
524 U.S. at 786 (quoting Meritor, 477 U.S. at 67.
Faragher,
That conduct is
actionable only when it “go[es] beyond the ‘merely offensive’ and
approach[es] tangible injury (including psychological injury)[.
F]actors to be considered include frequency, severity, whether the
conduct is ‘physically threatening or humiliating,’” and whether it
“‘unreasonably interferes with an employee’s work performance.’”
Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 56 (1st
Cir. 2000) (quoting Harris, 510 U.S. at 21-23).
While there is no
“mathematically precise test” to determine when a work environment
becomes
hostile,
perspective
of
a
the
situation
reasonable
considering all circumstances.”
“should
person
in
be
judged
from
plaintiff’s
the
position,
Billings v. Town of Grafton, 515
F.3d 39, 48 (1st Cir. 2008).
Plaintiff’s complaint “consists essentially of
one severe incident–the telephone call to her hotel room during
which Hernandez said that he had something ‘big and fat’ for her
and that he wanted to steal a kiss–and an unspecified number of
non-severe incidents . . .” (Docket No. 117 at p. 17.)
Courts have
often held that a single severe incident of offensive sexual
conduct is not sufficient to create a hostile environment.
See
Clark County School Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).
Civil No. 11-1105 (FAB)
24
Moreover, because plaintiff does not provide details regarding the
frequency and severity of the lesser incidents, even after a third
bite at the apple by filing a second amended complaint, the Court
cannot gauge whether those lesser incidents might have interfered
with plaintiff’s work performance or caused her any psychological
harm.
For these reasons, the magistrate judge recommends that
plaintiff’s
hostile
work
environment
claim
against
defendant
Hernandez be dismissed.
The Court adopts this recommendation, based
both on the First Circuit six-point standard and the analysis
performed by the magistrate judge.
But the Court echoes Billings
v. Town of Grafton by noting its concern that the “highly factspecific nature of hostile environment claims tends to make it
difficult to draw meaningful contrasts between one case and another
for
purposes
of
distinguishing
between
sufficiently
and
insufficiently abusive behavior.” 515 F.3d 39, 49 (1st Cir. 2008).
“While it is easy to find more grievous episodes of harassment,”
there are also cases in which behavior “no worse” than that
described by plaintiff in her amended complaint has been held
sufficient
to
justify
the
finding
of
a
hostile
environment.
Hernandez-Loring, 233 F.3d at 56 (declining to dismiss a claim
alleging repeated requests for dates and the use of suggestive
language by a non-supervisory co-worker).
As noted, a hostile
Civil No. 11-1105 (FAB)
25
environment does not depend on one specific type of conduct;
therefore,
a
plaintiff
“need
not
be
propositioned,
touched
offensively, or harassed by sexual innuendo in order to have been
sexually harassed.”
Billings, 515 F.3d at 48 (quoting Quick v.
Donaldson Co., 90 F.3d 1372, 1379 (8th Cir. 1996)); see Harris, 510
U.S. at 23.
The Court may look to other cases as “instructive
examples of actionable sexual harassment,” but simply because the
allegations in plaintiff’s claim are of a lesser degree does not
mean they will necessarily fall short of the standard.
Billings,
515 F.3d at 49.
Rather, the existence of a hostile environment
depends in
on
part
how
the court
characterizes
allegations in relation to the plaintiff.
Id.
the
specific
In this case, the
conduct of which plaintiff complains was merely episodic, but not
so frequent as to become pervasive; with one exception, never
severe; mildly humiliating rather than physically threatening; and
never a significant impediment to plaintiff’s work performance.
See Lee-Crespo v. Schering-Plough del Caribe, Inc., 354 F.3d 34, 46
(1st Cir. 2003).
Given this characterization of defendant’s
behavior, as well as the failure of plaintiff’s claim to meet the
First Circuit standard, the Court GRANTS defendant Hernandez’s
motion to dismiss plaintiff’s Equal Protection clause, Law 17,
Law 69, and Law 100 claims against him.
Civil No. 11-1105 (FAB)
ii.
26
First Amendment Claim
Plaintiff
objects
to
the
magistrate
judge’s
determination that plaintiff’s First Amendment claim fails the test
set forth in Ramos Rivera v. Dep’t. de la Familia de Puerto Rico,
536
F.Supp.2d
115
(D.P.R.
2008).
(Docket
No.
135
at
¶
19.)
Specifically, plaintiff objects to the magistrate judge’s assertion
that plaintiff failed to establish part one of the first prong, to
wit, that by bringing defendant Hernandez’s alleged misdeeds to the
attention of defendant Rodriguez she was speaking as a public
citizen.
(Docket No. 117 at p. 27.)
Without knowing exactly what
plaintiff’s duties were as head of the agency’s administration, the
magistrate judge determines that “the most reasonable inference is
that the responsibilities of the Head of Administration included
keeping PRFD operations running efficiently and reporting any
irregularities to PRFD Chief Rodriguez.
Therefore, the most
reasonable inference is that plaintiff’s speech was uttered in the
course of her official job duties.”
(Docket No. 117 at p. 27.)
The Court agrees with the magistrate judge.
Plaintiff’s only
defense is to aver that her professional responsibilities as Head
of Administration “did not erode or erase her serious concern and
conscious efforts to identify and complain as a citizen acts of
public corruption . . .”
(Docket No. 135 at ¶ 24.)
This argument
is unavailing. Instead of thoroughly addressing the R&R, plaintiff
Civil No. 11-1105 (FAB)
develops
an
argument
27
based
almost
entirely
on
the
Pickering
“balancing test,” thereby ignoring over forty years of subsequent
First Amendment jurisprudence.
See Pickering v. Bd. of Educ., 391
U.S. 563 (1968).
The Supreme Court has held that the First Amendment
protects public employees who suffer retaliation after speaking out
on matters of public concern.
See Ranking v. McPherson, 483 U.S.
378 (1987); Connick v. Meyers, 461 U.S. 138 (1983).
Nonetheless,
the Court has qualified Pickering by holding that an employee who
speaks pursuant to her official duties is acting as an employee,
not
a
public
citizen,
and
therefore
protected under the Constitution.
U.S. 410 (2006).
that
her
speech
is
not
Garcetti v. Ceballos, 547
In order to make out a First Amendment claim, a
plaintiff must establish three elements: (1) that she was speaking
as a public citizen on a matter of public concern; (2) that the
plaintiff’s and the public’s First Amendment interests outweigh the
government’s interest in promoting efficiency in the services that
it provides; and (3) that the protected speech was a “substantial
motivating factor” in the adverse employment decision.
Ramos
Rivera, 536 F.Supp.2d at 115 (internal citations omitted).
The First Circuit Court of Appeals has developed a
two-step test to address the threshold question of whether an
employee was speaking as a public citizen or in her capacity as an
Civil No. 11-1105 (FAB)
employee.
28
Decotiis v. Wittemore, 635 F.3d 22, 31 (1st Cir. 2001).
First, the trial court must determine the plaintiff’s official
responsibilities; second, it must decide whether the speech at
issue was made pursuant to those responsibilities.
Id.
Based on
the facts submitted in plaintiff’s second amended complaint, there
is no reason to doubt that, in speaking to defendant Rodriguez
about defendant Hernandez’s dealings with Fontan, plaintiff was
acting pursuant to her official duties as Head of Administration.
Moreover, plaintiff fails to make a convincing argument against
this assertion. Because plaintiff spoke as an employee of the PRFD,
her
speech
is
not
constitutionally
protected.
Therefore,
defendants’ motion to dismiss plaintiff’s First Amendment claim is
GRANTED.
IV.
Conclusion
The Court has made an independent examination of the entire
record in this case, including plaintiff’s objections to the R&R
and defendants’ opposition to those objections, and ADOPTS the
magistrate judge’s findings and recommendations as the opinion of
this Court.
Accordingly, defendant Hernandez’s motion to dismiss
is GRANTED.
Defendants Rodriguez, Commonwealth and PRFD’s motion
to dismiss is GRANTED IN PART AND DENIED IN PART.
The motion to
dismiss is DENIED as to plaintiff’s claims against defendants
Commonwealth and PRFD under Title VII, and plaintiff’s claims
Civil No. 11-1105 (FAB)
29
against defendant Rodriguez under Law 115 and Law 426.
Finally,
defendant Rodriguez’s motion for qualified immunity is deemed MOOT.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 8, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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