Villalongo-Gordillo v. Centenial de Puerto Rico et al

Filing 42

OPINION AND ORDER noting 16 Motion In Compliance and granting 16 Motion to Dismiss. As the Court finds that the Clockedile exception does not apply to Plaintiff's ADA claim because she brings her ADA claim under a different legislative act than she alleged in her administrative charge, the Court is precluded from considering Plaintiff's ADA cause of action. Accordingly, the Court hereby GRANTS Defendants' motion to dismiss 16 and DISMISSES Plaintiffs' ADA cause of action WITH PREJUDICE. IT IS SO ORDERED. Signed by Judge Daniel R. Dominguez on 2/21/2012. (JD) Modified on 2/22/2012 as to title (er).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIA
DEL
GORDILLO,

C.

VILLALONGO

Plaintiffs,
Civil No.:11-1115 (DRD)
v.
CENTENNIAL DE PUERTO RICO/AT&T
MOBILITY, INC.,
Defendants.

OPINION AND ORDER
Plaintiff Maria del C. Villalongo Gordillo brings the suit
against her employer, Centennial de Puerto Rico/AT&T Mobility,
Inc., (“Defendants”) under Title VII of the Civil Rights Act of
1964 and of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.
and 42 U.S.C. § 1981 et seq., respectively.
Plaintiff alleges sexual discrimination as well as retaliation
for filing an administrative charge with the Equal Employment
Opportunity Commission (“EEOC”) and the Anti-Discrimination Unit of
the Puerto Rico Department of Labor (“ADU”).

Plaintiff further

advances a cause of action under the Americans with Disabilities
Act

of

1990

(“ADA”),

42

U.S.C.

§

12101

et

seq.

Plaintiff

additionally adds claims arising under the laws of Puerto Rico,
which are attached to the instant matter via the exercise of the
Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
I.

FACTUAL AND PROCEDURAL HISTORY

In August of 2002, Plaintiff started working for Defendants as
an outside sales representative.

In 2007, Plaintiff was promoted

to a Business Account Executive.
allegedly

began

to

sexually

harass

Plaintiff on account of her sex.
directed derogatory

comments

Thereafter, her supervisors
and

discriminate

against

Her supervisors, inter alia,

towards

Plaintiff,

made sexually

charged comments regarding her body, and extended propositions to
have sexual relations.

Plaintiff reported the alleged conduct to

Defendant’s human resources department.
Thereafter,

Plaintiff

averred

that

her

supervisors

told

Plaintiff that her working conditions would be negatively affected
if Plaintiff did not have sexual intercourse with them.

Plaintiff

avers that her supervisors also took away major accounts that were
assigned to her and reassigned them to other male co-workers with
less experience than Plaintiff.

Plaintiff further claims that her

supervisors began to exclude Plaintiff from participating in sales
meetings as well as participating in meetings with her clients.
Plaintiff proceeded to make a second complaint with Defendants’
human resources department.

No investigation or corrective action

ensued.
On September 24, 2009, Plaintiff filed a charge with the EEOC
and the ADU alleging sexual discrimination under Title VII.

After

filing the administrative complaint, Plaintiff’s supervisors did
not assign any new clients or accounts to Plaintiff, and continued
to reassign Plaintiff’s largest accounts to other male co-workers
with less experience.
On August 26, 2010, Plaintiff amended her EEOC charge and ADU

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charge to include a retaliation claim.

Plaintiff subsequently

requested the closing of her administrative charge in order to
expedite a Right to Sue Letter.
Plaintiff alleged that her work environment was hostile, which
negatively affected her emotional and mental state, and caused her
to suffer from severe major depression. Plaintiff avers that she
requested reasonable accommodations and short term benefits, which
were denied.
On February 1, 2011, Plaintiff timely commenced the instant
suit (Docket No. 1), which, inter alia, includes a cause of action
under the ADA.

On June 10, 2011, the Court held an Initial

Scheduling Conference (Docket No. 14) where the Court directed both
parties to file briefs relating to Plaintiff’s failure to exhaust
administrative remedies related to her ADA claim in lieu of the
limited exception established in Clockedile v. New Hampshire Dept.
of Corrections, 245 F.3d 1 (1st Cir. 2001).1
On

July

27,

2011, Defendants

filed

Plaintiff’s ADA claim (Docket No. 16).
that

Plaintiff

failed

to

file

an

a

motion

to

dismiss

Therein, Defendants argue
administrative

charge

for

discrimination based on disability, and, therefore, this Court is
barred from considering Plaintiff’s ADA claim.

Defendants also

advance that the exception the First Circuit Court of Appeals
announced in Clockedile is not applicable as the exception is
limited to retaliation claims emanating from the same type of
1

The Court hereby NOTES Defendants’ motion in compliance with this Court directive (Docket No. 16).

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behavior alleged at the administrative level (Docket No. 16).
On

August

8,

2011,

Plaintiff

opposed

Defendants’

motion

(Docket No. 18). Plaintiff states that she did not become disabled
until

after

she

requested

the

closing

of

her

EEOC

charge.

Plaintiff further avers that Defendants’ denial of her reasonable
accommodation

requests

and

denial

of

payment

of

short

term

disability benefits did not also occur until after she requested
the closing of her administrative charge.

Plaintiff argues that

these actions, the denial of her reasonable accommodation requests
and short term disability benefits, were in retaliation for her
EEOC and ADU sexual harassment and sexual discrimination claim.
Therefore, Plaintiff advances that under the Clockedile exception,
Plaintiff’s failure to file an administrative charge for disability
discrimination does not preclude Plaintiff from bringing a claim
under the ADA.
Plaintiff additionally argues that the “scope of an employment
discrimination action is not strictly limited to those incidents
described in the administrative complaint.” Id. (quoting Sinia v.
Verizon New England, Inc., 76 Fed. Appx. 338, 341 (1st Cir. 2003).
Plaintiff also posits that if the Court were to construe the scope
of her complaint in district court so narrowly as to bar her ADA
claim, the Court would be binding Plaintiff to her administrative
charge, which was prepared and filed without the benefit of legal
counsel.

-4-

II.

MOTION TO DISMISS STANDARD

Federal Rule of Civil Procedure 8(a) requires plaintiffs to
provide “a short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under

Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff
must “provide the grounds of his entitlement [with] more than
labels and conclusions.” See Ocasio-Hernandez v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011) (“in order to ‘show’ an entitlement
to relief a complaint must contain enough factual material ‘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).’)(quoting Twombly, 550 U.S. at 555) (citation
omitted).

Thus, a plaintiff must, and is now required to, present

allegations

that

“nudge

[her]

claims

across

the

line

from

conceivable to plausible” in order to comply with the requirements
of Rule 8(a).

Id. at 570; see e.g. Ashcroft v. Iqbal, 129 S. Ct.

1937 (2009).
When considering a motion to dismiss, the Court’s inquiry
occurs in a two-step process under the current context-based
“plausibility” standard established by Twombly, 550 U.S. 544, and
Iqbal, 129 S. Ct. 1937.

“Context based” means that a Plaintiff

must allege sufficient facts that comply with the basic elements of
the

cause

of

action.

See

Iqbal,

129

S.

Ct.

at

1949-1950

(concluding that plaintiff’s complaint was factually insufficient
to substantiate the required elements of a Bivens claim, leaving

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the complaint with only conclusory statements).
must

“accept

as

true

all

of

the

First, the Court

allegations

contained

in

a

complaint[,]” discarding legal conclusions, conclusory statements
and factually threadbare recitals of the elements of a cause of
action.

Iqbal, 129 S. Ct. at 1940. “Yet we need not accept as true

legal conclusions from the complaint or ‘naked assertion[s]’ devoid
of ‘further factual enhancement.’” Maldonado v. Fontanes, 568 F.3d
263, 268 (1st Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949)
(quoting Twombly, 550 U.S. at 557).
Under the second step of the inquiry, the Court must determine
whether, based upon all assertions that were not discarded under
the first step of the inquiry, the complaint “states a plausible
claim for relief.” Iqbal, 129 S.Ct. at 1950.

This second step is

“context-specific” and requires that the Court draw from its own
“judicial

experience

and

common

sense”

to

decide

whether

a

plaintiff has stated a claim upon which relief may be granted, or,
conversely, whether dismissal under Rule 12(b)(6) is appropriate.
Id.
Thus,

“[i]n

order

to

survive

a

motion

to

dismiss,

[a]

plaintiff must allege sufficient facts to show that he has a
plausible entitlement to relief.” Sanchez v. Pereira-Castillo, 590
F.3d 31, 41 (1st Cir. 2009).

“[W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not ‘show[n]’
‘that the pleader is entitled to relief.’” Iqbal, 129 S.Ct. at
-6-

1950(quoting
inferences

Fed.
must

R.
be

Civ.
at

P.

least

8(a)(2)).
as

Furthermore,

plausible

as

any

such

“obvious

alternative explanation.” Id. at 1950-51 (citing Twombly, 550 U.S.
at 567).

“A plaintiff is not entitled to ‘proceed perforce’ by

virtue of allegations that merely parrot the elements of the cause
of action.”

Ocasio-Hernandez, 640 F.3d at

12, (citing Iqbal, 129

S.Ct. at 1950).
The First Circuit has cautioned against equating plausibility
with an analysis of the likely success on the merits, affirming
that the plausibility standard assumes “pleaded facts to be true
and read in a plaintiff’s favor” “even if seemingly incredible.”
Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 30 (1st
Cir. 2010) (citing Twombly, 550 U.S. at 556); Ocasio-Hernandez, 640
F.3d at 12 (citing Iqbal, 129 S.Ct. at 1950); see Twombly, 550 U.S.
at 556 (“[A] well-pleaded complaint may proceed even if it appears
that a recovery is very remote and unlikely.”)(internal quotation
marks omitted); see Ocasio-Hernandez, 640 F.3d at 12 (citing
Twombly, 550 U.S. at 556)(“[T]he court may not disregard properly
pled factual allegations, ‘even if it strikes a savvy judge that
actual proof of those facts is improbable.’”).

Instead, the First

Circuit has emphasized that “[t]he make-or-break standard . . . is
that

the

combined

allegations,

taken

as

true,

must

state

a

plausible, [but] not a merely conceivable, case for relief.”
Sepúlveda-Villarini, 628 F.3d at 29.

Parroting the elements of a

cause of action falls outside the required threshold.
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Iqbal, 129

S.Ct. at 1949.
However,

a

complaint

that

rests

on

“bald

assertions,

unsupportable conclusions, periphrastic circumlocutions, and the
like” will likely not survive a motion to dismiss.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996);

Aulson v.

see also Sánchez v. U.S.,

2012 WL 447164 at *9 (quoting Rojas-Ithier v. Sociedad Espanola de
Auxilio Mutuo y Beneficiencia de P.R., 394 F.3d 40, 44 (1st Cir.
2005)). Similarly, unadorned factual assertions as to the elements
of the cause of action are inadequate as well.
Fortuno-Burset,

631

F.3d

592

(1st

Cir.

Penalbert-Rosa v.

2011).

“Specific

information, even if not in the form of admissible evidence, would
likely be enough at [the motion to dismiss] stage; pure speculation
is not.”

Id. at 596; see Iqbal, 129 S.Ct. at 1951 (“To be clear,

we do not reject [] bald allegations on the ground that they are
unrealistic or nonsensical. . . . It is the conclusory nature of
[the] allegations, rather than their extravagantly fanciful nature,
that disentitles them to the presumption of truth.”); see Mendez
Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10, 14
(1st Cir. 2010) (The Twombly and Iqbal standards require District
Courts to “screen[] out rhetoric masquerading as litigation.”).
III.

LEGAL ANALYSIS

The ADA mandates compliance with the administrative procedures
as set out in Section 2000e-5(e)(1) of Title VII.2

2

Bonilla v.

Section 12117 of the ADA incorporates the same powers, remedies, and procedure that are set out in
sections 2000e-4, 2000e-5, 2000e-6, 2000-e8, and 2000e-9 of Title VII.

-8-

Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir. 1999).
Section 2000e-5(e)(1) states that an aggrieved employee alleging
discrimination shall file an administrative claim within “‘one
hundred and eighty days after the alleged unlawful employment
practice occurred,’ or within 300 days if ‘the person aggrieved
person has initially instituted proceedings with [an authorized]
State or local agency.’”

Bonilla, 194 F.3d at 278.

Courts have

long recognized that exhaustion of administrative remedies of an
ADA cause of action is a prerequisite to the commencement of suit
in district court.

Bonilla, 194 F.3d at 278;

Zipes v. Trans World

Airlines,

455

S.Ct.

Inc.,

U.S.

385,

102

1127,

1123

(1982)(exhaustion of administrative remedies is a prerequisite to
filing a Title VII suit in district court);

Davidson v. America

Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003);

Dao v. Auchan

Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996).
The purpose of the exhaustion of administrative remedies
requirement is “to provide the employer with prompt notice of the
claim and to create an opportunity for early conciliation.”
Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

If

an employee were to be “permitted to allege one thing in the
administrative charge and later allege something entirely different
in

a

subsequent

civil

action,”

the

primary

aim

of

requiring

exhaustion of administrative remedies, informal conciliation of
discriminatory practices, would be entirely frustrated.

Id.

One exception to this general rule is the so-called reasonably
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related retaliatory claims test.3

Claims of retaliation for filing

an EEOC charge are “preserved so long as they are reasonably
related to, or grow out of, the conduct complained of at the
administrative level–e.g., the retaliation is for filing the agency
complaint itself.”

Clockedile, 245 F.3d at 6.4

Thus, the failure

to file an EEOC charge for retaliatory activities does not preclude
district court from considering a plaintiff’s retaliation claim.
The exception is designed to minimize the danger of mouse-trapping
complainants, who often file their administrative complaint without
the benefit of legal counsel. Clockedile, 245 F.3d at 4.
The First Circuit expressly cautioned that the Clockedile
exception does not apply to a “claim based on additional acts of
discrimination or alternative theories that were never presented to
the agency.”

Clockedile, 245 F.3d at 6.

District courts applying

Clockedile have considered retaliation claims to be preserved under
the reasonably related retaliatory claims test when the retaliation
claims

are

brought

administrative charge.

under

the

same

legislative

act

as

the

See Ara v. Tedeschi Food Shops, Inc., 794

F.Supp.2d 259 (D.Mass 2011);

Montalvo-Padilla v. University of

P.R., 498 F.Supp.2d 464 (D.P.R. 2007);

Sanchez Ramos v. Puerto

Rico Police Dept., 392 F.Supp.2d 167 (D.P.R. 2005);

Acevedo

3

The parties do not argue that the scope of the investigation rule, another exception to the general rule,
applies in the instant matter. Therefore, the Court will not address this additional exception herein.
4

Other circuits have established a similar Clockedile exception. See Malarkey v. Texaco, Inc., 983 F.2d
1204, 1208-1209 (2d Cir. 1993); Scott v. University of Mississippi, 148 F.3d 493, 514 (5th Cir. 1998); W edow v.
City of Kansas City, 442 F.3d 661, 673-674 (8th Cir. 2006) .

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Martinez v. Coatings, Inc. and Co., 286 F.Supp.2d 107 (D.P.R.
2003).
In the present controversy, Plaintiff first filed a charge
with the EEOC and the ADU alleging Title VII sexual harassment.
Plaintiff then amended her charge to report subsequent retaliatory
conduct related to the previously reported sex discrimination.
Plaintiff proceeded to file a suit in district court alleging a
Title VII claim, a retaliation claim for filing her EEOC charge in
regard to sex discrimination, and an ADA claim. Plaintiff clearly
exhausted the proper administrative remedies with respect to her
Title VII and retaliation claims on the basis of sex.
two claims are not at issue.

Thus, these

Defendants only challenge the

exhaustion of administrative remedies for Plaintiff’s ADA claim.
While

Plaintiff

concedes

that

she

did

not

exhaust

the

administrative remedies for her ADA claim, Plaintiff argues that
her ADA claim is proper under Clockedile because her ADA claim is
reasonably related to, and grows out of, the conduct which gave
rise to her Title VII claim.

The Court finds that Plaintiff

interprets Clockedile too broadly and as such a reading of the
Clockedile

holding

would

greatly

frustrate

the

public

policy

underlying the exhaustion requirement.
“Congress created the EEOC and established a procedure whereby
. . . state and local [administrative] agencies, as well as the
[EEOC], would have an opportunity to settle disputes through
conference, conciliation, and persuasion before the aggrieved party
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was permitted to file a lawsuit.” Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974).

Congress intended judicial review to be

“limited to matters of which the EEOC has had notice and a chance,
if appropriate, to settle.”

Anjelino v. New York Times Co., 200

F.3d 73, 93 (3d Cir. 1999)(internal quotations and citations
ommitted).

The exhaustion of administrative remedies prerequisite

is ”an essential part of [Congress’] statutory plan.” Id.
the

prerequisite,

the

parties

would

most

likely

Without

forego

the

opportunity “to resolve their disputes by relatively informal means
far less costly and time consuming than litigation.” Moore v. City
of East Cleveland, Ohio, 431 U.S. 494, 525, 97 S.Ct. 1932, 52 L.
Ed. 2d 532 (1977); see Patterson v. McLean Credit Union, 491 U.S.
164,

180-181

(1989)(the

EEOC

is

designed

to

“assist

in

the

investigation of claims of discrimination . . . and to work towards
the resolution of these claims through conciliation rather than
litigation.”);

Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.

1996)(“The purpose of requiring exhaustion is to afford the EEOC
the

opportunity

conciliation,
court.”);

and

to

settle

persuasion,

disputes
avoiding

through

conference,

unnecessary

action

in

Redmon v. Sud-Chemie Inc. Ret. Plan for Union Emples.,

547 F.3d 531, 539-540 (6th Cir. 2008)(“Exhaustion furthers the
important public policy of encouraging private rather than judicial
resolution

of

disputes.”).

Clockedile

would

result

Plaintiff’s
in

Plaintiff

interpretation
“thwarting

[]

of
the

administrative process and peremptorily substituting litigation for
-12-

conciliation.”

McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273

(5th Cir. 2008).
Plaintiff claims that her ADA claim should be preserved under
Clockedile because the denial of reasonable accommodations and
denial of short term benefits occurred as retaliation.

However,

Plaintiff brings her retaliation claim under the ADA, an entirely
different legislative act than Title VII.

Therefore, Clockedile,

and its progeny, are inapplicable to Plaintiff’s ADA claim.

In

order for the district court to properly entertain her ADA claim,
Plaintiff was required to first exhaust the proper administrative
remedies

by

filing

a

charge

disability discrimination.

with

the

EEOC

or

ADU

alleging

Thus, Plaintiff should have filed a

second EEOC charge for her disability claim.
As

Plaintiff’s

administrative

charges

do

not

allege

discrimination based on disability, Plaintiff has not exhausted the
appropriate administrative remedies for her ADA claim.

Such an

omission to timely file a complaint with the EEOC “effectively bars
the courthouse doors.”
Cir. 2005).

Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st

Hence, Plaintiff will not be able to pursue her

purported ADA claim.
At the motion to dismiss stage, Plaintiff’s allegations that
she became disabled, and was allegedly discriminated against based
on her alleged disability after the closing of her EEOC charge, are
entitled to a presumption of truth.
10.

Although

Defendants

deny

Ocasio-Hernandez, 640 F.3d at

this

-13-

assertion

and

claim

that

Plaintiff knew she was disabled and had knowledge of the acts of
discrimination supposedly based on her disability at an earlier
point, this discrepancy will ultimately be resolved at the summary
judgment phase as “we must credit the plaintiff’s well-pled factual
allegations and draw all

reasonable inferences in the plaintiff’s

favor” at the motion to dismiss phase.
*5.5

Sánchez, 2012 WL 447164 at

Accordingly, we reserve judgment on whether she has a cause

of action based on the fact that Defendants knew of her disability
and retaliated

against

her

as

to

gender

through

her

alleged

incapacity.
IV. CONCLUSION
As the Court finds that the Clockedile exception does not
apply to Plaintiff’s ADA claim because she brings her ADA claim
under

a

different

legislative

act

than

she

alleged

in

her

administrative charge, the Court is precluded from considering
Plaintiff’s ADA cause of action.

Accordingly, the Court hereby

GRANTS Defendants’ motion to dismiss (Docket No. 16) and DISMISSES
Plaintiffs’ ADA cause of action WITH PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of February of 2012.
/s/ DANIEL R. DOMÍNGUEZ
DANIEL R. DOMÍNGUEZ
U.S. District Judge

5

Although the First Circuit was analyzing a Rule 12(b)(1) motion in Sánchez and the present inquiry is
under Rule 12(b)(6), “[t]he same standard applies to both subsections.” Roman-Oliveras v. Puerto Rico Elec. Power
Auth., 655 F.3d 43, 45 n.3 (1st Cir. 2011).

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