Rodriguez v. Henry Schein, Inc et al
Filing
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OPINION AND ORDER granting 14 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 8/8/11. (AH)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
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AIDA RODRIGUEZ,
Plaintiff,
v.
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Civil No. 11-1129 (GAG)
HENRY SCHEIN, INC.,
Defendant.
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OPINION AND ORDER
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Plaintiff Aida Rodriguez (“Plaintiff”) filed a complaint against Henry Schein, Inc.
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(“Defendant”) alleging age, gender, and disability discrimination, retaliation and wrongful
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termination. The action is brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title
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VII”), 42 U.S.C. §§ 2000e et seq.; the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.;
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and the Age Discrimination in Employment Act, 42 U.S.C. §§ 621 et seq. Plaintiff also brings
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supplemental state law claims alleging violations of Puerto Rico Law 80 of May 30, 1976, P.R. Laws
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Ann. tit. 29, §§ 185a et seq.; Puerto Rico Law 100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146
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et seq.; Puerto Rico Law 44 of July 2, 1985, P.R. Laws Ann. tit. 1, §§ 501 et seq.; Puerto Rico Law
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69 of July 6, 1985, P.R. Laws Ann. tit. 29, §§ 1321 et seq.; and Articles 1802 and 1803 of the Civil
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Code of Puerto Rico, P.R. Laws Ann. tit. 31, §§ 5141, 5142.
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Presently before the court is Defendant’s motion to dismiss Plaintiff’s retaliation claim
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(Docket No. 14). Defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) on
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grounds of failure to exhaust administrative remedies. Plaintiff opposed the motion (Docket No.
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25). After reviewing these submissions and the pertinent law, the court GRANTS Defendant’s
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motion to dismiss at Docket No. 14.
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I.
Legal Standard
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“The general rules of pleading require a short and plain statement of the claim showing that
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the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st
Civil No. 11-1129 (GAG)
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Cir. 2009) (citations omitted) (internal quotation marks omitted). “This short and plain statement
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need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
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rests.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to
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state a claim upon which relief can be granted. See FED . R. CIV . P. 12(b)(6). To survive a Rule
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12(b)(6) motion, a complaint must contain sufficient factual matter "to state a claim to relief that is
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plausible on its face." Twombly, 550 U.S. at 570. The court must decide whether the complaint
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alleges enough facts to "raise a right to relief above the speculative level." Id. at 555. In so doing,
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the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's
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favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, "the tenet that a court must
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accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."
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Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements
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of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly,
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550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the
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mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]' -‘that the pleader
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is entitled to relief.'" Iqbal, 129 S. Ct. at 1950 (quoting FED . R. CIV . P. 8(a)(2)).
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II.
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Plaintiff was employed by Defendant from February 1998 until she resigned on January 29,
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2010. (See Docket Nos. 1 ¶¶ 4, 42; 9 ¶¶ 4, 42.) Plaintiff filed a charge of discrimination with the
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Anti-Discrimination Unit of the Commonwealth of Puerto Rico Department of Labor (“ADU”) on
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March 23, 2010, checking ‘sex’ and ‘age’ under cause of discrimination. (See Docket No. 32-1 at
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1.) On May 18, 2010, Plaintiff amended her charge of discrimination to include disability as a cause
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of discrimination. (See Docket No. 32-2.) The Equal Employment Opportunity Commission
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(“EEOC”) issued a right to sue letter on November 5, 2010. (See Docket Nos. 14-5; 1 ¶ 43; 9 ¶ 43.)
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Plaintiff filed the instant complaint against Defendant on February 3, 2011 (Docket No. 1)
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alleging age, gender, and disability discrimination, retaliation and wrongful termination. On April
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25, 2011, Defendant filed a motion to dismiss Plaintiff’s Title VII retaliation claims for failure to
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exhaust administrative remedies (Docket No. 14). Plaintiff responded with a motion in opposition
Factual and Procedural Background
Civil No. 11-1129 (GAG)
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(Docket No. 25).
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III.
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In its motion to dismiss, Defendant contends that Plaintiff’s Title VII retaliation claim should
Discussion
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be dismissed because it was not previously filed with the appropriate administrative agency.
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Defendant argues that Plaintiff’s administrative charge before the ADU cannot raise such a claim,
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nor can such a claim be within the “scope of the investigation,” because the ADU has no subject-
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matter jurisdiction over Title VII retaliation claims. Defendant maintains that, in order to exhaust
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administrative remedies, Plaintiff needed to file her Title VII retaliation claim with the EEOC. In
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her opposition, Plaintiff asserts that if a charge of retaliation was filed with the ADU, or if such a
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claim was discovered in the ADU’s investigation, it should have been referred by the ADU to the
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EEOC. Plaintiff also argues that Defendant’s motion to dismiss requires the court to consider the
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ADU file and, thus, should be considered a motion for summary judgment.
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A.
Motion to Dismiss v. Summary Judgment
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“Ordinarily, a court may not consider any documents that are outside of the complaint, or not
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expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alt.
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Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (citing Watterson
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v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). However, there is “a narrow exception ‘for documents the
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authenticity of which are not disputed by the parties; for official public records; for documents
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central to the plaintiffs’ claim; or for documents sufficiently referred to in the complaint.’” Alt.
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Energy, Inc., 267 F.3d at 33 (quoting Watterson, 987 F.2d at 3). A plaintiff’s administrative charge
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filed with the EEOC or the ADU “may be considered either as a matter referenced in the complaint
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or as a public record subject to judicial notice.” Maldonado-Cordero v. A T & T, 73 F. Supp. 2d
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177, 185 (D.P.R. 1999) (citing Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
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1986)). Therefore, the court will consider Plaintiff’s administrative charge without converting the
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motion to dismiss into a motion for summary judgment. See Barber v. Verizon New England, Inc.,
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2005 WL 3479834 at *1 n.1 (D.R.I. Dec. 20, 2005) (“While a court deciding a Rule 12(b)(6) motion
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is normally constrained to consider only the plaintiff’s complaint, a court may nonetheless take into
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Civil No. 11-1129 (GAG)
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account a document whose contents are linked to the complaint . . . such as a charge of
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discrimination filed with the [EEOC], without converting the motion into a summary judgment
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request.”) (citing Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)).
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B.
Failure to Exhaust Administrative Remedies
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Appropriate Administrative Agency
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“Before an employee may sue in federal court on a Title VII claim, he [or she] must first
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exhaust administrative remedies.” Franceschi v. U.S. Dep’t of Veteran Affairs, 514 F.3d 81, 85 (1st
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Cir. 2008) (citing Love v. Pullman Co., 404 U.S. 522, 523 (1972)). “The Title VII administrative
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process begins with the filing of an administrative charge before the EEOC.” Franceschi, 514 F.3d
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at 85 (citations omitted). “In ‘deferral states,’ or states with a certified Fair Employment Practice
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Agency (‘FEPA’), this process begins when a claimant files a charge of discrimination with either
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the state FEPA, in this case the ADU, or with the EEOC.” Perez Cordero v. Wal-Mart PR, Inc., 235
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F. Supp. 2d 95, 100 (D.P.R. 2002) (citations omitted).
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The ADU is considered a FEPA agency, except for “all charges alleging violations of [Title
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VII’s anti-retaliation provision,]” in which case “it shall be deemed a Notice Agency.” 29 C.F.R.
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§ 1604.74. Because the ADU is not a “deferral” agency with respect to a Title VII retaliation claim,
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“the EEOC has jurisdiction to investigate and resolve the claim, but the [ADU] does not.” Silva,
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849 F. Supp. at 831; see Velez v. Marriott PR Mgmt., Inc., 590 F. Supp. 2d 235, 262 (D.P.R. 2008)
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(“The Puerto Rico Anti-Discrimination Unit of the Department of Labor has no jurisdiction over
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Title VII retaliation claims.”). Nevertheless, in their Worksharing Agreement, “the EEOC and the
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FEPA each designate the other as its agent for the purpose of receiving and drafting charges,
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including those that are not [within the jurisdiction of] the agency that initially receives the charges.”
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Lopez-Machin v. Indupro, 668 F. Supp. 2d 320, 325 (D.P.R. 2009). “[T]he Worksharing Agreement
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also establishes that Title VII charges filed with the Commonwealth are considered dual-filed, and
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‘vice versa.’” Id. (citations omitted). Accordingly, Plaintiff’s filing of an administrative charge with
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the ADU (Docket No. 32-1) satisfies her requirement to file with the EEOC. In addition, the court
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notes that Plaintiff’s amended charge is clearly marked as a dual filing with the ADU and the EEOC,
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identifying each with different charge numbers. (See Docket No. 32-2.)
Civil No. 11-1129 (GAG)
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Proper Notice of Claim
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The purpose of filing an administrative charge as a prerequisite to commencing a civil action
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is to provide defendants “with prompt notice of the claim and to create an opportunity for early
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conciliation.” Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). “The scope of the civil
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complaint is accordingly limited by the charge filed with the EEOC and the investigation which can
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reasonably be expected to grow out of that charge.” Thornton v. United Parcel Serv., Inc., 587 F.3d
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27, 32 (1st Cir. 2009) (quoting Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990)) (internal
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quotation marks omitted). “[T]he scope of a civil action is not determined by the specific language
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of the charge filed with the agency, but rather, may encompass acts of discrimination which the
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[agency] investigation could reasonably be expected to uncover.” Thornton, 587 F.3d at 32-33
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(quoting Davis v. Lucent Techs., Inc., 251 F.3d 227, 233 (1st Cir. 2001)) (internal quotation marks
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omitted). According to this “scope of the investigation” rule, “the exact wording of the charge of
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discrimination need not presage with literary exactitude the judicial pleadings which may follow.”
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Davis, 251 F.3d at 233 (citations omitted) (internal quotation marks omitted). A claim may survive
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dismissal if the facts in the charge should have alerted the agency of an alternative basis of
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discrimination, which should have been investigated, “regardless of whether it was actually
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investigated.” Id. “[T]he critical question is whether the claims set forth in the civil complaint come
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within the ‘scope of the EEOC investigation which can reasonably be expected to grow out of the
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charge of discrimination.’” Fantini v. Salem State Coll., 557 F.3d 22, 27 (1st Cir. 2009) (citations
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omitted).
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“A claim of retaliation for filing an administrative charge with the EEOC is one of the
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narrow exceptions to the normal rule of exhaustion of administrative remedies.” Franceschi, 514
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F.3d at 86. In Clockedile v. New Hampshire Dep’t of Corrections, the First Circuit held that
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“retaliation claims are preserved so long as the retaliation is reasonably related to and grows out of
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the discrimination complained of to the agency –e.g., the retaliation is for filing the agency
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complaint itself.” 245 F.3d 1, 6 (1st Cir. 2001). The fact that a retaliation claim may be preserved
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even though a plaintiff failed to exhaust the administrative requirement indicates “the First Circuit’s
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concern with retaliatory conduct . . . which arises after, if not as a result of, an employee’s invocation
Civil No. 11-1129 (GAG)
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of the EEOC process.” Munoz Rivera v. Walgreens Co., 428 F. Supp. 2d 11, 22 (D.P.R. 2006)
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(quoting Kenney v. MML Investors Servs., 266 F. Supp. 2d 239, 245-46 (D. Mass. 2003)) (internal
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quotation marks omitted).
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“The rule does not, however, provide a plaintiff with an unlimited license to extend his [or
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her] claim endlessly beyond the bounds and parameters encompassed by the administrative charge.”
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Thornton, 587 F.3d at 32. “Where the retaliatory act is claimed to have occurred prior to the filing
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of a charge, as is the case here, and the plaintiff fails to allege a retaliation claim in the subsequent
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charge, the retaliatory act will not reasonably relate to the charge.” Velazquez Rivera v. Danzig, 81
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F. Supp. 2d 316, 327 (D.P.R. 2000) (citing Seymore v. Shawver & Sons, Inc., 111 F.3d 794 (10th
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Cir. 1997), aff’d in part, 234 F.3d 790 (1st Cir. 2000); see Johnson v. Cleveland City Sch. Dist., 344
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Fed. Appx. 104, 110 (6th Cir. 2009) (“As a rule, we have found that retaliation does not reasonably
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grow out of a substantive claim of discrimination if the retaliation occurred before the EEOC charge
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was filed.”); Ndondji v. InterPark, Inc., 768 F. Supp. 2d 263, 279 (D.D.C. 2011) (holding that
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discrimination and retaliation claims are considered distinct types of claims that must be raised
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independently if the retaliation occurred prior to the filing of the administrative charge); Crooks v.
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Wal-Mart Stores of Texas, LLC, 2009 WL 2422330 at *2 (N.D. Tex. Aug. 05, 2009) (finding that
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although administrative remedies need not be exhausted prior to filing a retaliation claim growing
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out of a previously filed EEOC charge, “exhaustion is required where the alleged retaliatory acts
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occurred before filing the charge.”); Houston v. Army Fleet Servs., LLC, 509 F. Supp. 2d 1033,
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1044 (M.D. Ala. 2007) (holding that if the alleged retaliatory action occurs before the initial EEOC
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charge is filed, “a plaintiff must exhaust his administrative remedies as to that claim by including
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factual information in the charge that discloses the factual basis for the retaliation claim.”); Wilson
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v. Palmer House Hilton, 2005 WL 1041319 at *16 (N.D. Ill. Apr. 29, 2005) (finding that a retaliation
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claim is outside the scope of the charge when the facts supporting the claim occurred before the
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EEOC charge was filed).
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In the present case, Plaintiff ’s retaliation claim is not a result of filing a charge of
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discrimination with the ADU. The basis for Plaintiff’s retaliation claim is that Defendant allegedly
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retaliated against her after she complained to her supervisor of discriminatory conduct. According
Civil No. 11-1129 (GAG)
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to the complaint, these events occurred in November and December 2009. (See Docket No. 1 ¶¶ 39-
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40, 57.) Plaintiff stopped working for Defendant in January 2010. She filed her administrative
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charge in March 2010 alleging sex and age discrimination. (See Docket No. 32-1.) A sworn
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statement describing the related facts was filed with it. (See id.) The charge was later amended to
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include disability discrimination. (See Docket No. 32-2.) Because the alleged retaliatory conduct
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occurred prior to the date on which Plaintiff filed her charge, she was required to include facts about
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the retaliation claim in the charge if she wished to later litigate such a claim. To hold differently
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would basically exempt all retaliation claims from Title VII’s exhaustion of administrative remedies
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requirement.
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After a careful reading of the administrative charge, the court cannot find any allegation or
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factual averment that supports Plaintiff’s retaliation claim. According to the complaint, Defendant
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was retaliated against “once she complained to Mr. Ryan about his and Mr. Pares’s conduct by
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continuing the discriminatory actions and intensifying the hostile work environment against her.”
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(See Docket No. 1 ¶ 57.) Particularly, Plaintiff alleges the cancellation of her daughter’s health
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insurance coverage and the imposition of “unrealistic and materially impossible goals to achieve.”
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(See id.)
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Plaintiff’s charge discusses her belief that she was discriminated against and harassed by
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Defendant, but gives no indication whatsoever that Defendant engaged in retaliatory behavior.1
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Furthermore, there is no mention of Plaintiff confronting Mr. Ryan about any discrimination on his
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part or on the part of Mr. Pares. The court understands that a retaliation claim, based on events prior
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to the EEOC charge, cannot reasonably be within the scope of an investigation when the
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administrative charge does not mention what protected act elicited the retaliation.
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The court finds that Plaintiff’s administrative charge does not provide Defendant with prompt
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Plaintiff’s administrative charge states that Mr. Gilmartin Pares engaged in “a pattern of
abuse and disrepute” towards Plaintiff “with the support from Mr. Ryan and Henry Schein.” (See
Docket No. 32-1 ¶¶ 15-16.) The charge mentions the cancellation of her daughter’s health insurance
coverage as an example of Defendant’s discriminatory practices and the imposition of “work
conditions that [she] was not going to be able to comply with” as a reason for her constructive
discharge. (See Docket No. 32-1 ¶ ¶ 18-19.)
Civil No. 11-1129 (GAG)
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notice of her Title VII retaliation claim. Plaintiff failed to include any factual allegation of
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retaliation in her administrative charge, therefore, denying the EEOC the opportunity to investigate
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and conciliate this claim. Accordingly, the court GRANTS Defendant’s motion to dismiss
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Plaintiff’s Title VII retaliation claim and DISMISSES the same.
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IV.
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For the reasons set forth above, the court GRANTS Defendant’s motion to dismiss at Docket
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Conclusion
No. 14.
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SO ORDERED.
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In San Juan, Puerto Rico this 8th day of August, 2011.
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S/Gustavo A. Gelpí
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GUSTAVO A. GELPÍ
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United States District Judge
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