Carrero-Ojeda v. Autoridad de Energia Electrica et al

Filing 49

OPINION AND ORDER re 18 Motion to Dismiss. The Court GRANTS plaintiff's motion to dismiss. Her federal FMLA claims are DISMISSED WITH PREJUDICE. Because there is no reason why plaintiff cannot pursue her Law 115 and Law 426 claims against d efendants in local court, plaintiff's Law 115 and Law 426 claims are DISMISSED WITHOUT PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 06/27/2012. (brc) Modified on 6/27/2012 (re). (Main Document 49 replaced on 6/27/2012 to correct docket text information.) (re)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MINERVA CARRERO-OJEDA,
Plaintiff,
v.

CIVIL NO. 11-2072 (FAB)

AUTORIDAD DE ENERGIA ELECTRICA,
VICTOR
RUIZ
PEREZ,
MIGUEL
CORDERO, JOHN DOES,
Defendant.

OPINION AND ORDER1
BESOSA, District Judge
Plaintiff Minerva Carrero-Ojeda brings this action against her
former

employer,

Autoridad

de

Energia

Electrica

(Puerto

Rico

Electric Power Authority) (“PREPA”), and against Victor Ruiz-Perez
(“Ruiz”),

Miguel

Cordero

(“Cordero”),

and

unnamed

persons

(collectively, “defendants”), pursuant to the Family and Medical
Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”); the Puerto Rico
Whistle Blower Act as provided by Law 115, 29 L.P.R.A. § 194 (“Law
115”); and Law 426, 1 L.P.R.A. § 601 (“Law 426”).

Plaintiff

invokes subject-matter jurisdiction pursuant to 28 U.S.C. § 1332,
and seeks supplemental jurisdiction for her Commonwealth claims
pursuant to 28 U.S.C. § 1367.

1

Jared Killeen, a second-year student at Brooklyn Law School,
assisted in the preparation of this Opinion and Order.

Civil No. 11-2072 (FAB)

2

Pending before the Court is defendants’ motion to dismiss.
(Docket No. 18.)

For the reasons set forth below, defendants’

motion is GRANTED.
I.

Background
Plaintiff was a managerial employee of PREPA.

Until the time

of her discharge on October 31, 2010, she held the position of
administrative coordinator in the PREPA Aguadilla Technical Office,
where she reported directly to her supervisor, defendant Ruiz.
(Docket No. 1 at ¶¶ 8 & 10.)
held

inferior

positions

to

executive director of PREPA.

Both plaintiff and defendant Ruiz
defendant
Id. at ¶ 36.

Cordero,

who

acted

as

Plaintiff alleges that

from November 2007 until October 2010, defendants Ruiz and Cordero,
in concert with many other PREPA employees, undertook elaborate
means to harass, threaten, unjustly discipline, and ultimately
discharge plaintiff from her position at PREPA.

Id. at ¶ 9.

In a

complaint filed on October 31, 2011, plaintiff offers the following
account of her misfortunes.
Plaintiff alleges, essentially, that she was discharged from
PREPA in retaliation for her good moral fortitude. In August 2007,
PREPA’s

Internal

Affairs

Office

commenced

an

administrative

investigation of the Aguadilla Technical Office on grounds of
employee corruption.

Id. at ¶ 10.

Among the PREPA personnel

targeted by the investigation was defendant Ruiz. Id. Despite the

Civil No. 11-2072 (FAB)
obvious

potential

for

3
fallout,

plaintiff

cooperated

investigation by offering information and testimony.

Id.

in

the

It was

after plaintiff testified before investigators that defendants Ruiz
and Cordero allegedly “commenced a pattern of discriminatory acts
against [p]laintiff[,] affecting the terms, conditions, benefits
and privileges of her employment.”2

Id. at ¶ 11.

Plaintiff points to many examples of harassment perpetrated by
a vast web of PREPA employees.

For instance, plaintiff alleges

that, on March 14, 2008, the PREPA Labor Affairs Office refused to
grant her travel allowance for a trip from Aguadilla to San Juan.
Id. at ¶ 14.

Plaintiff denies having encountered this problem

before, and proposes that the Labor Affairs Office acted in league
with the defendants.

Id.

In response to the allowance refusal,

plaintiff “filed an administrative revision before the Court of
Appeals,” which ordered a “hearing to solve the controversy.”

Id.

Nevertheless, PREPA did not comply “with the judgment entered by
the Court of Appeals.”3

Id.

2

Plaintiff alleges that once the Internal Affairs Office
concluded its investigation and filed a recommendation for the
discharge of several PREPA employees, the harassment and threats
had become so severe that plaintiff “feared for her life.” (Docket
No. 1 at ¶ 34.)
3

Presumably plaintiff is referring to an administrative
court, though she does not specify which one in her complaint.

Civil No. 11-2072 (FAB)
On

April

3,

4

2008,

the

Internal

Affairs

Office

summoned

plaintiff to give a testimonial statement regarding the prenominate
corruption investigation.

Id. at ¶ 15.

Plaintiff alleges that on

May 14, 2008, defendant Ruiz instructed a PREPA security guard to
withhold from plaintiff a particular report that she intended to
offer the Internal Affairs Office as part of her testimony.
¶ 16.

Id. at

Plaintiff does not clarify whether or not she ever received

the report, and if she did, by what means.
In June 2008, plaintiff’s mother fell and injured herself in
her home.

Id. at ¶ 17.

The severity of the injury required

plaintiff to take leave from work and attend to her mother.
Plaintiff provided a medical certificate to PREPA and requested two
months leave under the FMLA.

Id.

During plaintiff’s leave,

defendant Ruiz, now acting in concert with Maria de Lourdes Roman
(“Roman”)

and

Jose

Garcia-Fabian

(“Garcia”),4

administrative investigation against plaintiff.

filed

an

Id. at ¶ 18.

Plaintiff alleges that defendant Ruiz’s investigation was contrary
to “the provisions of [PREPA]’s Procedure for the Use of Family and
Medical Leave . . .”, the FMLA, and Law 115.

Id.

In response to

defendant Ruiz’s investigation, plaintiff filed a complaint with

4

Plaintiff’s complaint provides no information about Roman or
Garcia, their positions at PREPA, their relationships to plaintiff,
or the possible source of their animus toward her.

Civil No. 11-2072 (FAB)

5

the Equal Employment Opportunity Commission (“EEOC”), though a
resolution was never issued.
Plaintiff also alleges that during her FMLA leave, Chief of
Human Resources Alex Carvajal (“Carvajal”), Garcia, and Abraham
Sanchez (“Sanchez”)5 interviewed and promoted three PREPA employees
to superior positions in the Aguadilla Technical Office.
¶

20.

Plaintiff

alleges

that

Carvajal,

Garcia,

and

Id. at
Sanchez

conspired to deprive plaintiff of an opportunity for promotion in
violation of the FMLA, “inasmuch [as the promotions] affected
[p]laintiff’s right to a promotion [] protected by [law].”

Id.

Plaintiff filed two complaints against Garcia and Sanchez, in
addition to submitting a grievance to the Labor Affairs Office.
Id. at ¶ 21.

Again, no resolution was issued.

Id.

On September 29, 2008, defendant Ruiz asked plaintiff to
prepare absence letters for those employees who “demonstrated more
than 6% absence in their work.”

Id. at ¶ 24.

Furthermore, in

October 2008, defendant Ruiz assigned plaintiff the task of making
photocopies

of

the

personnel

Aguadilla Technical Office.

file

of

Id. at ¶ 23.

every

employee

in

the

Plaintiff contends that

both tasks were beneath her status as a manager, and better suited
to “clerical personnel.”

5

Id. at ¶ 24. Plaintiff also alleges that

Again, plaintiff’s complaint provides
concerning Sanchez or his role at PREPA.

no

information

Civil No. 11-2072 (FAB)

6

the appointment of these tasks constituted “employment harassment,”
violating certain PREPA codes and procedures.

Id. at ¶ 23.

In

response to this perceived harassment, plaintiff filed a “UTIER
grievance”6 against defendant Ruiz, though again no resolution was
issued.

Id. at ¶ 24.

Plaintiff alleges that on May 6, 2009, defendant Ruiz, in
conspiracy with unnamed personnel in the Labor Affairs Office,
deducted “6 hours and 16 minutes from her payroll and made her use
it as vacation leave.”

Id. at ¶ 27.

The plan was allegedly

hatched while plaintiff attended an EEOC meeting concerning her
FMLA grievance against Garcia and Sanchez.

Id.

When plaintiff

returned, she filed a complaint seeking redress; later, Director of
Transmission and Distribution Jose Colon (“Colon”) ordered that
plaintiff be reimbursed for the discounted hours.

Id.

In September 2009, plaintiff submitted to the PREPA Accounting
Office her travel expenses for the month of August, totaling
$201.00.
reimbursed

Id. at ¶ 29.
plaintiff

Typically, the Accounting Office promptly
for

her

work-related

expenses;

plaintiff

alleges, however, that following the instructions of PREPA counsel
Francisco
payment.

6

Santiago (“Santiago”),

the

Accounting

Office denied

Id.

Plaintiff does little to explain the nature of a “UTIER
grievance.” (Docket No. 1 at ¶ 24.)

Civil No. 11-2072 (FAB)
By

far

the

7

fiercest

alleged

retaliatory

attack

against

plaintiff concerns PREPA’s coordinated incrimination and discharge
of plaintiff on charges that she violated the company’s Rules of
Conduct.

Plaintiff alleges that in November 2007, defendant Ruiz

initiated an administrative investigation of plaintiff pursuant to
suspicions that she had made photocopies of her personnel file
without defendant Ruiz’s consent.

Id. at ¶ 12.

On January 30,

2008, Carvajal, chief of PREPA’s Human Resources Office, filed
official charges against plaintiff, alleging that she violated
“conduct

rules

Regulation.”

18,

29

and

Id. at ¶ 13.

notes

1

and

5

of

the

Personnel

On August 28, 2008, Carvajal filed

additional charges against plaintiff pursuant to rules “17 and 27.”
Id. at ¶ 22.

The following day, PREPA set the date for a hearing

regarding the charges against plaintiff.
January

23,

2009,

a

hearing

officer

Id. at
issued

a

¶ 25.

On

resolution

recommending plaintiff’s discharge. Id. Plaintiff alleges that on
February 19, 2009, Karen Loyola (“Loyola”), apparently acting on
behalf of defendant Ruiz, “intended to force [p]laintiff to receive
[a]

copy

of

[the]

[r]esoultion

entered”

against

her,

which

plaintiff perceived as an “act of intimidation.”

Id. at ¶ 26.

June

that

29,

2009,

defendant

Cordero

ordered

a

On

second

administrative hearing be conducted before a new hearing officer.
Id. at ¶ 28.

On June 10, 2010, the new hearing officer issued a

Civil No. 11-2072 (FAB)

8

second resolution again recommending that plaintiff be discharged.
Id. at ¶ 30.
Not long afterward, plaintiff requested two leaves of absence
under the FMLA.

First, she applied for leave on August 19, 2010,

in order to attend to her ailing mother.

Id. at ¶ 32.

On

September 2, 2010, defendant Ruiz approved plaintiff’s request for
leave, which was to be charged to plaintiff’s vacation days.
at ¶ 33.

Id.

Then, on October 22, 2010, plaintiff requested three

months of FMLA leave, again in order to care for her mother, who
had fallen from her bed and injured her hip.

Id. at ¶ 35.

Plaintiff submitted a request letter and a medical certificate,
along with instructions that her payroll reflect the nature of her
absence.

Id.

Plaintiff alleges, however, that by “the middle of

October, 2010,” her attorney received a letter from PREPA, signed
by defendant Cordero, stating that plaintiff had been discharged
from her position at PREPA.7

Id. at ¶ 36.

On October 27, 2010,

plaintiff’s counsel received a second letter, signed by Angel L.
Rivera (“Rivera”),8 reiterating that plaintiff had been discharged,

7

Plaintiff does not explain why she requested three months of
leave on October 22, 2010, after learning in “mid October” that she
had been discharged from her position. Nor is it clear whether
PREPA granted this request for leave, given the fact that it had,
by all accounts, already decided to discharge plaintiff.
8

Plaintiff gives no account of Rivera’s position at PREPA.

Civil No. 11-2072 (FAB)

9

effective October 31, 2010.

Id. at ¶ 37.

Plaintiff alleges that

she was not personally notified of her discharge until July 15,
2011, when she received a letter to that effect from Johanna
Costas-Vazquez (“Costas”).
plaintiff’s

counsel

Id.

received

a

Finally, on November 4, 2010,
letter

from

Attorney

Santiago

stating that PREPA would not acknowledge plaintiff’s request for
FMLA leave filed on October 22, 2010.

Id. at ¶ 38.

On October 31, 2011, plaintiff filed a complaint against
defendants alleging (1) a violation of her rights pursuant to the
FMLA, and (2) harassment and retaliatory discrimination pursuant to
Law 115 and Law 426.

Id. at pp. 10-13.

With regard to the FMLA

claim, on which her entitlement to federal jurisdiction rests,
plaintiff alleges that in October 2010 she qualified for leave
under the FMLA, that she gave adequate notice to PREPA, but that
upon taking leave, she was “illegally discharged from her position
at [PREPA] during the period she was protected by the FMLA.”
at p. 11.

Id.

Plaintiff argues that her discharge constitutes a

violation of her rights as protected by the FMLA.
On January 18, 2012, defendants filed a motion to dismiss
pursuant

to

Federal

Rule

of

Civil

Procedure

12(b)(6)

(“Rule

12(b)(6)”), arguing that plaintiff fails to state a claim on which
relief can be granted.
plaintiff

was

(Docket No. 18.)

discharged

for

Defendants allege that

disciplinary

reasons

entirely

Civil No. 11-2072 (FAB)

10

unrelated to her FMLA leave and, moreover, that the FMLA does not
insulate an employee from adverse employment actions unrelated to
rights protected by the FMLA.

Id. at pp. 12-13.

In support of

this claim, defendants allege that on January 30, 2008, PREPA filed
a disciplinary complaint against plaintiff.
¶

13;

18-1

at

p.

2.)

The

complaint

(Docket Nos. 1 at

included

charges

of

insubordination, concealment of facts, and assertion of false
statements.
hearings,

(Docket No. 18-1 at p. 2.)

and issued

misconduct.

three

resolutions

Id. at pp. 2-4.

PREPA conducted two
concerning

plaintiff’s

On October 14, 2010, defendant

Cordero issued a decision ordering plaintiff’s discharge.
p. 4.

Id. at

Defendants submit for consideration a variety of extrinsic

evidence, including defendant Cordero’s decision, a copy of the
administrative charges filed against plaintiff on January 30, 2008,
and an administrative nunc pro tunc ruling by Hearing Officer Berta
Mainardi-Peralta.

(See Docket Nos. 18-2 and 18-3.)

Plaintiff opposed the motion to dismiss on February 10, 2012
(Docket No. 28), insisting that defendants interfered with her FMLA
rights by “implementing her discharge during the effectiveness of
[her] leave, rather than on another date . . . .”

Id. at p. 5.

On

February 19, 2012, defendants filed a response to plaintiff’s
opposition, refuting the proposition that an employee is immune

Civil No. 11-2072 (FAB)

11

from independent adverse employment action while on FMLA leave.
(Docket No. 35.)
II.

Legal Standard Pursuant to Rule 12(b)(6)
Rule 12(b)(6) allows a court to dismiss a complaint when it

fails

to

state

a

claim

Fed.R.Civ.P. 12(b)(6).

upon

which

relief

can

be

granted.

When considering a motion pursuant to 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).

“[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
action.”

that

merely

parrot

the

elements

of the

cause of

Id. at 12 (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,

1950 (2009)).

Any “[n]on-conclusory factual allegations in the

complaint [, however,] must . . . be treated as true, even if
seemingly incredible.”

Id. (citing Iqbal, 129 S.Ct. at 1951).

Where those factual allegations “‘allow[ ] the court to draw the
reasonable

inference

that

the

defendant

is

liable

for

misconduct alleged,’ the claim has facial plausibility.”
(quoting Iqbal, 129 S.Ct. at 1949).

the
Id.

Furthermore, a court may not

Civil No. 11-2072 (FAB)

12

“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

& Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) (internal citation
omitted).

Thus, the Court may consider “documents referred to in

the complaint but not annexed to it.”

Rodi v. S. New Eng. Sch. of

Civil No. 11-2072 (FAB)

13

Law, 389 F.3d 5, 12 (1st Cir. 2004).

In this case, plaintiff makes

explicit reference to extrinsic evidence supplied by defendant,
including a disciplinary complaint filed against plaintiff on
January 30, 2008, and a nunc pro tunc ruling by Hearing Officer
Mainardi recommending her discharge.

(Docket Nos. 18-2 and 18-3.)

Therefore, the Court will consider these documents in conjunction
with the complaint.
III. Discussion
A.

The FMLA Claim
Defendants request dismissal of plaintiff’s FMLA claim

because,

they

argue,

plaintiff’s

theory

discharged while on FMLA leave is flawed.
p. 15.)

that

she

cannot

be

(Docket No. 18-1 at

Plaintiff, on the other hand, contends that her discharge

was ordered in direct contravention to the entitlements set forth
by the FMLA.

(Docket No. 28 at ¶ 20.)

The Court first determines

which causes of action plaintiff brings forth.
The FMLA divides causes of action into two distinct
groups:

interference claims and retaliation claims.

Hodgens v.

Gen. Dynamics Corp., 144 F.3d 151, 159-160 (1st Cir. 1998); Kenney
v. Bethany of R.I., No. 09-cv-289-ML, 2011 U.S. Dist. LEXIS 49620,
at. *2 (D.R.I. May 9, 2011).
interfered

with

her

FMLA

Plaintiff argues that defendants

rights

by

discharging

her

from her

position at PREPA while she was on leave to attend to her ailing

Civil No. 11-2072 (FAB)
mother.

14

(Docket No. 1 at ¶ 50.)

Moreover, plaintiff reasons that

defendants’ decision to discharge her during her FMLA leave “has no
other justification than to discriminatory [sic] retaliate against
her to

deprive

her

of

her

harassment and retaliation.”

right

as

part

Id. at ¶ 51.

of

the

pattern

of

Therefore, plaintiff

appears to allege both a substantive denial of FMLA benefits as
well as discriminatory retaliation in reaction – or, perhaps,
contravention – to the exercise of those benefits. On both counts,
the Court finds plaintiff’s argument to be unavailing.
i.

FMLA Interference Claim
Plaintiff alleges that defendants interfered with

her protected rights by discharging her during her FMLA leave.
(Docket

No.

28

at

¶

16.)

It

is

well

known

establishes substantive rights for employees.

that

the

FMLA

Colburn v. Parker

Hannifin Corp., 429 F.3d 325, 330 (1st Cir. 2005).

These rights,

codified at 29 U.S.C. § 2612, guarantee eligible employees “a total
of 12 workweeks of leave during any 12-month period,” which may be
taken intermittently in order to care for a relative with a
“serious health condition.”

29 U.S.C. § 2612(a)(1)(C).

Upon

concluding a period of leave under the FMLA, an employee is
entitled to return to the same position, with equivalent pay,
benefits, and working conditions, and without loss of accrued
seniority.

Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159-160

Civil No. 11-2072 (FAB)
(1st

Cir.

essentially

1998).

15

Employee

prescriptive,

rights

pursuant

“set[ting]

to

the

substantive

FMLA

are

floors”

for

conduct by employers, and creating “entitlements” for employees.
Id. at p. 159 (quoting Diaz v. Fort Wayne Foundry Corp., 131 F.3d
711, 712-13 (7th Cir. 1991)).

Therefore, in an FMLA interference

claim, the issue is simply whether the employer provided its
employee the entitlement set forth in the FMLA.

Id.

The Court finds that defendants provided plaintiff
with all required entitlements. On at least two separate occasions
before her discharge, plaintiff requested FMLA leave, and on both
occasions her request was granted.

Plaintiff claims that it was

while on a third leave of absence that she was discharged.9
(Docket No. 1 at ¶¶ 17, 32 and 35.)

Because plaintiff was never

deprived of her right to FMLA leave itself, however, the only issue
is whether plaintiff has a claim premised on her right to return to
work after her leave was ostensibly completed.
Dist. LEXIS 49620 at *2.

9

Kenney, 2011 U.S.

The Court can find no entitlement in the

In contravention to the basic principles of logic, plaintiff
claims to have requested FMLA leave for a third time on October 21,
2010, well after being discharged from her position in “the middle
of October.” (Docket No. 1 at ¶¶ 35-36.) It should go without
saying that if plaintiff requested leave after being fired, the
status of her FMLA rights is moot. Nonetheless, because the Court
extends plaintiff every reasonable inference in her favor, we will
assume that plaintiff was in fact on leave when she was discharged
in October 2010. Medina-Claudio, 292 F.3d at 34.

Civil No. 11-2072 (FAB)

16

FMLA, however, that grants reinstatement once an employee has been
discharged for reasons unrelated to her leave. Rather, The Code of
Federal Regulations provides that “[a]n employee has no greater
right to reinstatement or to other benefits and conditions of
employment than if the employee had been continuously employed
during the FMLA leave period.”

29 C.F.R. § 825.216(a).

This means

that “[i]f an employee is laid off during the course of taking FMLA
leave and employment is terminated, the employer’s responsibility
to continue FMLA leave, maintain group health plan benefits and
restore the employee cease at the time the employee is laid off . .
. . ”

29 C.F.R. § 825.216(a)(1).
The First Circuit Court of Appeals has interpreted

the preceding statutory language to mean that “[w]here an employee
properly takes FMLA leave, the employee cannot be discharged for
exercising a right provided by the statute, but can still be
discharged for independent reasons.”

Nagle v. Acton-Boxborough

Reg’l. School Dist., 576 F.3d 1, 3 (1st Cir. 2009).
evidence

supplied

by

both

parties,

including

a

Given the

disciplinary

complaint filed against plaintiff and a nunc pro tunc ruling
recommending

her

discharge,

the

Court

accepts

defendants’

contention that plaintiff was discharged for reasons entirely
independent

of

her

FMLA

leave.

It

is

undisputed

that

on

January 30, 2008, PREPA filed a disciplinary complaint against

Civil No. 11-2072 (FAB)
plaintiff.

17

(Docket Nos. 1 at ¶ 13; 18-1 at p. 2.)

The complaint

included serious charges of insubordination, concealment of facts,
and assertion of false statements.
PREPA

conducted

two

hearings,

(Docket No. 18-1 at p. 2.)

and

issued

three

resolutions,

concerning plaintiff’s misconduct. Id. at pp. 2-4. On October 14,
2010, after prolonged consideration, defendant Cordero issued a
decision ordering plaintiff’s discharge.

Id. at p. 4.

Plaintiff

supplies the Court no reason to doubt the legitimacy of this
decision.
In sum, the FMLA contains no entitlement that grants
reinstatement once an employee has been discharged for reasons
unrelated to her leave.

Because plaintiff was discharged for

reasons entirely independent of the FMLA, she has no substantive
interference claim against defendants.
ii.

FMLA Retaliation Claim
The Court reviews plaintiff’s retaliation claim

separately, because “the failure of a substantive [interference]
claim . . . does not foreclose a retaliation claim.”
F.3d at 333.

Colburn, 429

Indeed, a plaintiff “may pursue a retaliation claim

even if there is no claim of violation of substantive rights to
leave.”

Id.

In some cases, a successful retaliation claim might

lead to independent damages.

Id. at 334.

Civil No. 11-2072 (FAB)

18

“[E]mployers cannot use the taking of FMLA leave as
a negative factor in employment actions, such as hiring, promotions
or

disciplinary

actions.”

Hodgens, 144 F.3d at 160.
employee

on

FMLA

leave

29

C.F.R.

§

825.220(c);

see also

While an employer may terminate an
for

lawful

and

independent

reasons,

“retaliation claims impose liability on employers that act against
employees specifically because those employees invoked their FMLA
rights.”
2006).

Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (7th Cir.

Plaintiff asserts a sort of hybrid FMLA retaliation claim.

Instead of claiming that she was discharged for exercising her FMLA
rights, she argues that she was discharged in retaliation for
testifying against defendant Ruiz.

Moreover, she attributes her

misfortune to an intricate conspiracy perpetrated not only by her
supervisors, defendants Ruiz and Cordero, but many other PREPA
employees, the PREPA legal counsel, and the Human Resources, Labor
Affairs and Accounting offices.

Plaintiff’s failure to state a

proper cause of action within the scope of FMLA jurisprudence gives
the Court ample reason to deny her claim.

Dep’t. of Recreation &

Sports of Puerto Rico v. World Boxing Ass’n., 942 F.2d 84, 89 (1st
Cir. 1991) (“there is no duty on the part of the trial court . . .
to create a claim which [plaintiff] has not spelled out in his
pleading”) (quoting Clark v. Nat’l. Travelers Life Ins. Co., 518
F.2d 1167, 1169 (6th Cir. 1975)).

Nonetheless, the Court extends

Civil No. 11-2072 (FAB)
the

plaintiff

every

19

reasonable

inference

in

her

favor,

and

entertains her claim despite its peculiar scope and high level of
abstraction.

Medina-Claudio, 292 F.3d at 34.
To

establish

a

prima

facie

claim

of

FMLA

retaliation, an employee must show that (1) she availed herself of
a protected right under the FMLA; (2) she was adversely affected by
an employment action; and (3) there was a causal connection between
the protected conduct and the adverse employment action.

Orta-

Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105,
113-14 (1st Cir. 2006). The Court considers the facts of this case
in relation to the standard set forth in Orta-Castro.

Even if the

Court assumes, pursuant to the first two prongs, that plaintiff
availed herself of FMLA leave in June 2008, August 2010, and
October 2010, and that she was discharged by PREPA sometime after
October 15, 2010, plaintiff still fails to demonstrate a causal
connection between her FMLA leave and her discharge pursuant to the
third prong of the test.

Simply put, plaintiff offers no evidence

that PREPA took into account her FMLA leave when recommending her
discharge.

To the contrary, it is obvious that Hearing Officer

Mainardi, in the nunc pro tunc resolution, considered only those
charges brought against plaintiff in the disciplinary complaint.
(Docket No. 18-3.) Plaintiff’s allegations of conspiracy do little
to overwhelm defendants’ sensible assertion that plaintiff was

Civil No. 11-2072 (FAB)

20

fired for disciplinary issues completely independent of her FMLA
leave.

For these reasons, the Court GRANTS defendants’ motion to

dismiss plaintiff’s FMLA claim.
B.

Law 115 and Law 426 Claims
Because the Court dismisses plaintiff’s FMLA claim, there

is no federal claim on which to anchor supplemental jurisdiction
for her attendant state claims.

28 U.S.C. § 1367.

Therefore, the

Court GRANTS defendants’ motion to dismiss plaintiff’s Law 115 and
Law 426 claims.
IV.

Conclusion
For the reasons expressed, the Court GRANTS defendant’s motion

to dismiss.

(Docket No. 18.)

Plaintiff’s federal FMLA claims are

DISMISSED WITH PREJUDICE. Because there is no reason why plaintiff
cannot pursue her Law 115 and Law 426 claims against defendants in
local court, plaintiff’s Law 115 and Law 426 claims are DISMISSED
WITHOUT PREJUDICE.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 27, 2012.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE