Miranda v. Deloitte LLP et al

Filing 44

MEMORANDUM AND ORDER re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; 30 SUR-Reply to Reply to Opposition; and 32 Supplemental Motion re: 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Defendants' motion to dismiss, Docket No. 17, is GRANTED IN PART and DENIED IN PART. The Court DISMISSES WITH PREJUDICE plaintiff Miranda's Title VII claims against defendants Castillo, Villate and Corretjer, DENIES the other defendants' motion to dismiss plaintiff Miranda's Title VII and ADEA claims for failure to exhaust administrative remedies, and DISMISSES WITH PREJUDICE plaintiff Miranda's Law 115 claim against all defendants. It also DENIES plaintiff Miranda's motion to strike, (Docket No. 30). Signed by Judge Francisco A. Besosa on 02/08/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA G. MIRANDA,
Plaintiff,
CIVIL NO. 12-1271 (FAB)

v.
DELOITTE LLP, DELOITTE TAX LLP,
DELOITTE & TOUCHE LLP, DELOITTE
SERVICES
LLP,
FRANCISCO
A.
CASTILLO-PENNE, RICARDO VILLATEPRIETO,
MICHELLE
CORRETJERCATALAN, JOHN DOE, RICHARD DOE,
ABC, DEF INSURANCE COMPANIES,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court is the motion to dismiss pursuant to Federal
Rule

of

Civil

Procedure

12(b)(6)

(“Rule

12(b)(6)”)

filed

by

defendants Deloitte LLP, Deloitte Tax LLP, Deloitte & Touche LLP,
Deloitte Services LP, Francisco A. Castillo Penne, Ricardo Villate
Prieto, and Michelle Corretjer Catalan.

(Docket No. 17.)

Having

considered the complaint, (Docket No. 1), as well as the arguments
contained in plaintiff Wanda G. Miranda (“plaintiff Miranda”)’s
oppositions, (Docket Nos. 22; 30; & 42), and defendants’ replies
(Docket Nos. 25 & 32), the Court GRANTS IN PART and DENIES IN PART
defendants’ motion to dismiss.

Civil No. 12-1271 (FAB)
I.

2

BACKGROUND
A.

Factual History
The Court takes the following facts as true, as pled in

plaintiff Miranda’s complaint:
1.

Plaintiff Miranda’s Employment Relationship
Defendants Villate, Corretjer, and Castillo

to

Plaintiff Miranda was originally hired by defendant
Deloitte & Touche LLP in 1990 as a member of the Tax Staff.
(Docket No. 1 at p. 5.)

She resigned from Deloitte & Touche LLP in

1992, but she returned eight years later, accepting the position of
Tax Manager in 2000.

Id.

Defendant Castillo was the Tax Managing

Partner of the Deloitte office in San Juan, and defendants Villate
and Corretjer were the Directors of Deloitte San Juan.
pp. 12–13.

Id. at

Defendant Castillo “was plaintiff’s supervisor” and

“feedback provider,” id. at pp. 4 & 8, and defendant Villate “was
plaintiff’s counselor and supervisor at the time of the events
described in th[e] complaint.”

Id. at p. 4.

Defendant Villate has

been plaintiff Miranda’s “counselor and primary feedback provider”
since January 24, 2000. Id. at p. 6.

Both defendants Castillo and

Villate rated plaintiff Miranda’s work performance as Tax Manager
for her yearly employment reviews.
Director

in

September

2010,

Id. at p. 8.

defendant

Appointed as Tax

Corretjer

plaintiff Miranda’s supervisor at that time.

also

became

Id. at p. 4.

The complaint alleges that since the year 2000,
defendants

Castillo

and

Villate

“had

the

authority

to

take

Civil No. 12-1271 (FAB)

3

disciplinary actions against [plaintiff] Miranda, including her
termination,” and also “had the authority to direct [her] daily
work activities.”

(Docket No. 1 at p. 13.)

Defendant Corretjer

also “had the authority to recommend disciplinary actions against
[plaintiff] Miranda” as well as the authority “to direct [her]
daily work activities,” but only since September 2010.
2.

Id.

Defendant Castillo’s Alleged Behavior
Plaintiff Miranda alleges that defendant Castillo

“enjoyed making offensive jokes of sexual content to the female
employees of Deloitte San Juan” in the tax department.
No. 1 at p. 9.)

(Docket

His jokes “were of sexual content, offensive and

disrespectful to women,” and plaintiff Miranda describes them as
being “lewd” and related to the drug Viagra.

Id.

He once told

plaintiff Miranda a joke about her touching her husband’s “wichu”–a
“vulgar word used in Puerto Rico to refer to a male’s penis,” id.
at p. 10, and after plaintiff Miranda told him that she did not
like his joke, defendant Castillo “continued making the ‘wichu’
joke in front of her to other female co-workers.”

Id.

Defendant

Castillo also “continually showed [plaintiff] Miranda uninvited
offensive jokes of sexual content that he received through his
cellular” phone, and “used to quietly approach [her] desk and stare
at her.”

Id.

When defendant Castillo stared at plaintiff Miranda

and other female employees, he did so “in sexually suggestive
manners, such as looking at their breasts.

Id. at p. 9.

Civil No. 12-1271 (FAB)

4

On October 5, 2010, when plaintiff Miranda received
a

flu

shot

at

Deloitte,

Castillo’s behavior.

she

became

distressed

by

defendant

He allegedly entered the room and asked the

male nurse to administer the flu shot to plaintiff Miranda “not in
her arm but in her buttocks.”

(Docket No. 1 at p. 11.)

To

demonstrate how he preferred plaintiff Miranda to receive her flu
shot, defendant Castillo allegedly “used offensive body language .
. . by separating his legs, bending over and reclining over the
back of the chair, lifting his buttocks and making as if he was
going to pull down his pants.”

Id.

He then remained in the room

to watch how the male nurse administered the shot to plaintiff
Miranda, and did not leave the room until the male nurse finished.
Id. Plaintiff Miranda felt humiliated and embarrassed by defendant
Castillo’s conduct, “remained in shock and intimidated” while the
male nurse administered her flu shot, and “felt so bad that she had
to leave the office” early that day.

Id.

The day after the flu shot incident, plaintiff
Miranda called Deloitte’s Integrity Help Line to report defendant
Castillo’s behavior.

(Docket No. 1 at p. 10.)

Following the Help

Line’s instructions to obtain Deloitte’s Harassment Policy from the
website, plaintiff Miranda filed, via e-mail, an incident report on
sexual harassment against defendant Castillo.

Id. at pp. 11-12.

She e-mailed the incident report to “Leslie Berry (D&T San Diego
Office) and Alisa A. Brussel (D&T New York Office),” and later that

Civil No. 12-1271 (FAB)

5

day received confirmation that her internal complaint had been
received and would remain confidential, and that she would be
contacted after the prompt examination of the complaint.

Id. at

p. 12. Plaintiff Miranda alleges, however, that she never received
any further communication regarding her incident report.

Id. at

p. 12.
The following day, on October 7, 2010, defendant
Castillo allegedly approached plaintiff Miranda “from behind and
pushed his body against her back[,] pushing her toward her computer
screen.”

(Docket No. 1 at p. 13.)

This caused plaintiff Miranda

“to be frightened and intimidated.”
plaintiff

Miranda

submitted

the

Id.

sexual

A few weeks after

harassment

complaint,

defendant Castillo “called [plaintiff] Miranda into his office
a[nd] closed the door to demand [an] explanation on why she filed
a [s]exual [h]arassment [i]ncident [r]eport against him.”
p. 14.

Id. at

He told plaintiff Miranda that she “had tainted his record

and that next time he would appreciate [if she] talk to him at
front and face-to-face before filing any future report.”
later

sent

an

e-mail

to

plaintiff

“allegedly accepting his apology.”

Miranda

Id.

thanking

Id.
her

He
for

Plaintiff Miranda states

that she “did not accept [defendant] Castillo’s apology,” but the
complaint does not allege that she replied in any form to dispute
the contents of defendant Castillo’s e-mail.

Id.

Civil No. 12-1271 (FAB)
On

6

February

15,

2011,

defendants

Castillo

and

Villate, as well as Deloitte’s South Regional Tax Partner, met with
plaintiff

Miranda

to

discuss

a

Performance

Improvement

Plan

(“PIP”), which indicates that an employee “needs to improve his or
her performance.”

(Docket No. 1 at p. 15.)

The complaint alleges

that defendant Castillo issued the PIP to plaintiff Miranda “in
retaliation for her filing of the sexual incident report against
[defendant]

Castillo.”

Id.

The

PIP

allegedly

contains

the

“concerns” of three corporate clients regarding plaintiff Miranda’s
work,

id.,

but

plaintiff

Miranda

contends

that

the

concerns

referenced work she had performed for previous tax years: 2008 and
2009.

Id. at p. 16.

Plaintiff Miranda alleges that Deloitte’s

website “establishes that an employee should be given 6 to 9 months
to comply with a PIP.”

Id.

Her complaint also states that she

“immediately worked on the plan that was handed to her” by joining
social organizations, enrolling in continuing education courses,
meeting every billing period goals and keeping defendant Villate
informed about them, receiving “excellent” feedback from clients,
giving a tax seminar to the audit partners, and complying with efiling requirements.

Id. at pp. 16–17.

In the months after plaintiff Miranda received the
PIP, defendants Villate, Corretjer, and Castillo allegedly “created
a hostile work environment for [her] that severely interfered with
[her] conditions of employment.”

(Docket No. 1 at p. 18.)

Prior

Civil No. 12-1271 (FAB)

7

to February 15, 2011, defendant Corretjer had allegedly “never sent
an e-mail to, or had any type of communication” with, plaintiff
Miranda regarding her performance, but after that date defendant
Corretjer attempted to intimidate plaintiff Miranda, reprimanded
her, and treated her “with hostility.”

Id.

Sometime between February and March 2011, defendant
Castillo told plaintiff Miranda the following “uninvited joke”:
The handyman went to a house w[h]ere a young boy was
present.
The handyman started to work and his
screwdriver fell and the young boy told him that that’s
why his father had two screwdrivers.
The handyman
continued to repair another appliance using a hammer.
The hammer fell and the boy told him that that’s why his
father had two hammers. The handyman continued repairing
different appliances throughout the day with different
tools and each time a tool fell the young boy replied
that that’s why his father had two of those tools. The
handyman went to the bathroom and the boy followed him.
The handyman grabbed his penis and told the boy, “[D]on’t
tell me your father has two of this too,” to which the
boy replied, “[N]o, he only has one but [it’s] twice as
long as yours.
(Docket No. 1 at pp. 19–20.)

During March and April of 2011,

defendant Castillo “continued to show [plaintiff] Miranda uninvited
offensive jokes of sexual content that he received through his
cellular” phone.
3.

Id. at p. 20.

Plaintiff Miranda’s Termination
On

May

25,

2011,

defendant

Castillo

“verbally

terminated [plaintiff] Miranda’s employment,” and she was escorted
out from the Deloitte San Juan office.

(Docket No. 1 at p. 20.)

Plaintiff Miranda was 42 years old on the date she was terminated,

Civil No. 12-1271 (FAB)

8

and she claims to be the only female manager older than 40 years
old in the Deloitte Tax San Juan office at the time she was
terminated.

Id. at p. 21.

After her termination, plaintiff

Miranda’s clients were assigned to two male individuals, who are
both younger than she is.

Id. at pp. 21–22.

The two male

individuals were both subsequently promoted to Tax Manager, which
had been plaintiff Miranda’s position.
B.

Id. at p. 22.

Procedural Background
On April 20, 2012, plaintiff Miranda filed a complaint

alleging,

inter

alia,

sexual

discrimination,

harassment,

and

retaliation pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e; age discrimination pursuant to
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621;
and retaliation pursuant to Law No. 115 of December 20, 1991, P.R.
Laws Ann. tit. 29, § 194 (“Law 115”).

(Docket No. 1.)

Defendants’

motion seeks dismissal of plaintiff Miranda’s Title VII, ADEA, and
Law 115 claims:

(1) Defendants Castillo, Villate, and Corretjer

move to dismiss plaintiff’s Title VII and ADEA claims against them
by alleging that those statutes do not provide an avenue for
individual liability; (2) defendants Castillo, Villate, Corretjer,
Deloitte, Deloitte & Touche, and Deloitte Services move to dismiss
her Title VII and ADEA claims by contending that plaintiff Miranda
failed to exhaust the proper administrative remedies to bring those
claims; and (3) all moving defendants seek dismissal of plaintiff

Civil No. 12-1271 (FAB)
Miranda’s

Law

115

claim

9
because

she

did

“protected conduct” pursuant to that statute.

not

engage

in

any

(Docket No. 17 at

p. 2.)
Plaintiff Miranda opposed defendants’ motion to dismiss
on August 31, 2012.

(Docket No. 22.)

First, she claims that

defendants Castillo, Villate and Corretjer may be individually
liable under ADEA and cites District of Puerto Rico and First
Circuit Court of Appeals precedent to argue that her ADEA claims
against them should not be dismissed.

Second, plaintiff Miranda

contends that she did indeed follow the proper administrative
procedures against all named defendants.

In the alternative, she

cites to First Circuit Court of Appeals case law and submits a copy
of the Narrative of Events, filed as part of her administrative
charge before the EEOC, to invoke the “substantial identity”
exception to the general rule that a party who is not named in an
EEOC administrative charge is not subject to suit under Title VII
or the ADEA.

Third, plaintiff Miranda defends her Law 115 claim by

arguing that filing the internal complaint at Deloitte “can be
considered an attempt to give testimony or information to an
administration

or

judicial

activity” under the statute.

forum”

sufficient

for

“protected

Id. at p. 9.

Defendants replied to plaintiff Miranda’s opposition on
September 24, 2012.

(Docket No. 25.)

They claim that despite

plaintiff Miranda’s contention, there is no individual liability

Civil No. 12-1271 (FAB)

10

under ADEA, and they distinguish the District of Puerto Rico and
First

Circuit

Court

Miranda’s brief.1

of

Appeals

case

law

cited

in

plaintiff

Defendants also argue that plaintiff Miranda

failed to exhaust administrative remedies because “[c]ourts have
explained that merely referring to an individual by name in the
narrative portion of an EEOC charge is insufficient to exhaust
administrative remedies.”2

(Docket No. 25 at p. 6.)

In support of

1

Plaintiff Miranda subsequently filed a motion to strike
defendants’
reply
memorandum,
contending
that
defendants’
discussion of Rivera-Tirado v. Autoridad de Energia Electrica, 663
F. Supp. 2d 36 (D.P.R. 2009) and Chao v. Hotel Oasis, Inc., 493
F.3d 26 (1st Cir. 2007) violates Local Rule 7(c)’s provision that
a reply memorandum “shall be strictly confined to replying to new
matters raised in the objection or opposing memorandum.” (Docket
No. 30 at p. 2.) The Court finds plaintiff Miranda’s argument to
be meritless. Although defendants briefly cite to Rivera-Tirado in
their original motion to dismiss, (Docket No. 17 at p. 4), it is
plaintiff Miranda’s opposition that first discusses the case and
introduces additional precedent cited by the Rivera-Tirado court to
support the contention that individual liability may be found under
ADEA.
Defendants are entitled to reply to plaintiff Miranda’s
arguments regarding that case law, and by engaging in an analysis
of the exceptions recognized under Rivera-Tirado and Chao,
defendants’ reply memorandum fits squarely within the scope and
intention of Rule 7(c). Accordingly, the Court DENIES plaintiff
Miranda’s motion to strike, (Docket No. 30).
2

To support its proposition, defendants cite only to cases
from the Eastern District of Virginia, the Eastern District of
Tennessee, and the District of Maine. The Court is unpersuaded by
those cases and, as discussed below, instead follows First and
Third Circuit Court of Appeals precedent to find that (1) plaintiff
Miranda
appropriately
named
all
defendants
in
the
EEOC
administrative charge, and (2) even if she had not done so, she
establishes an exception to the general rule that a defendant not
named in an EEOC administrative charge may not be sued in federal
court.

Civil No. 12-1271 (FAB)

11

their argument, defendants submit two documents3 from the EEOC file
to show that many of the defendants were not referenced in the EEOC
proceeding and thus cannot be sued in federal court.

(Docket

Nos. 32-1 & 37-1.) Finally, defendants cite First Circuit Court of
Appeals precedent to dispute plaintiff Miranda’s proposition that
an

internal

complaint

pursuant to Act 115.

filing constitutes

“protected

activity”

(Docket No. 25 at p. 2 n.1.).

On January 23, 2013, plaintiff Miranda submitted an
additional motion in opposition, in which she attaches a copy of
the defendants’ answers to interrogatories and a Service and Access
Agreement by and among the various Deloitte defendants.

(Docket

No. 42.) She includes those documents to support her argument that
defendants

constitute

a

“single-employer”

or

an

“integrated-

employer” and as such the “substantial identity” exception is met
in this case.
II.

Id. at pp. 3–4.

RULE 12(b)(6) STANDARD
Rule 12(b)(6) allows the Court to dismiss a complaint when it

fails to state a claim upon which relief can be granted.

When

considering a motion under Rule 12(b)(6), a “court must view the

3

The first document is a letter dated January 12, 2012 from
plaintiff Miranda’s counsel to the EEOC in which counsel requests
a right-to-sue letter “in relation to [plaintiff Miranda’s] claims
against Deloitte Tax LLP and Francisco Castillo for age and sex
discrimination,
sexual
harassment,
retaliation
and
unjust
termination of her job.”
(Docket No. 32-1.)
Defendants also
submit a preliminary form that plaintiff Miranda filed with the
EEOC, in which she lists Deloitte Tax LLP as her only employer.
(Docket No. 37-1.)

Civil No. 11-1271 (FAB)

12

facts contained in the pleadings in the light most favorable to the
nonmovant and draw all reasonable inferences therefrom . . .” R.G.
Fin. Corp. v. Vergara–Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).
“[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, 11 (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 [sic] in the complaint[, however,] must . . . be
treated as true, even if seemingly incredible.”

Ocasio–Hernandez,

640 F.3d at 11 (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 the misconduct alleged,’
the claim has facial plausibility.”

Ocasio–Hernandez, 640 F.3d

at 11 (quoting Iqbal, 129 S.Ct. at 1949). 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.’” Ocasio–Hernandez, 640 F.3d
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

Civil No. 11-1271 (FAB)

13

asking the court to draw from the facts alleged in the complaint.”
Ocasio–Hernandez, 640 F.3d at 13.
Pursuant to Rule 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.” Alternative 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).
This is especially true where the plaintiff has “actual notice
.

.

.

and

complaint.”

has

relied

upon

these

documents

in

framing

the

Watterson v. Page, 987 F.2d 1, 4 (1st Cir. 1993).

III. DISCUSSION
A.

Title VII Claims Against Defendants Castillo, Villate,
and Corretjer
Plaintiff Miranda concedes that, “pursuant to the First

Circuit’s decision in Fantini v. Salem State College, 557 F.3d 22
(1st Cir. 2009),

co-defendants Castillo, Villate, and Corretjer

Civil No. 11-1271 (FAB)

14

may not be held personally liable under Title VII.” (Docket No. 22
at p. 3.)
is

no

The Court agrees.
individual

See Fantini, 557 F.3d at 30 (“[T]here

employee

liability

under

Title

VII.”).

Accordingly, the Court DISMISSES WITH PREJUDICE plaintiff Miranda’s
Title

VII

claims

against

defendants

Castillo,

Villate

and

Corretjer.
B.

ADEA Claims Against Defendants Castillo, Villate and
Corretjer
1.

The Parties’ Contentions
The complaint also names Castillo, Villate, and

Corretjer as defendants in their personal capacities with regard to
plaintiff Miranda’s ADEA claim.

Although the First Circuit Court

of Appeals has not squarely addressed the issue of individual
liability

under

the

ADEA,

the

courts

of

this

district

repeatedly held that that liability does not exist.

have

See, e.g.,

Rivera-Tirado, 663 F. Supp. 2d at 40-41; see also Fantini v. Salem
State College, 557 F.3d 22, 28-32 (1st Cir. 2009) (finding no
individual liability under Title VII and noting the similarity
between relevant statutory language of Title VII and the ADEA).
Plaintiff Miranda turns to Rivera-Tirado and Chao to
argue that her case falls under a “narrow exception” that the First
Circuit Court of Appeals has carved from the general rule against
individual liability under the ADEA.

(Docket No. 22 at pp. 3–4;

see also Chao, 493 F.3d at 34 (“[The First Circuit Court of
Appeals]

narrowly

determined

that

the

FLSA

did

not

preclude

Civil No. 11-1271 (FAB)
personal

liability

for

15
corporate

officers

with

a

significant

ownership interest who had operational control of significant
aspects of the corporation’s day to day functions, including
compensation of employees, and who personally made decisions to
continue operations despite financial adversity during the period
of

nonpayment.”)

(internal

quotations

and

citations

omitted).

Defendants, in contrast, dispute that plaintiff Miranda’s complaint
contains sufficient facts to meet the requirements of that “narrow
exception”.
by

citing

(Docket No. 25 at p. 4.)
facts

pled

in

the

Plaintiff Miranda responds

complaint

about

the

employment

positions of defendants Castillo, Villate, and Corretjer, and then
comparing those facts to the corporate officers in Rivera-Tirado
and Chao.

(Docket No. 30 at pp. 2–3.)

She argues that because the

complaint alleges that defendants Castillo, Villate, and Corretjer
had the authority to recommend disciplinary actions against her,
direct her daily work activities, and control her schedule, the
complaint survives defendants’ motion to dismiss.
2.

Id. at p. 4.

Analysis
At this stage, plaintiff Miranda has pled sufficient

facts pursuant to ADEA to establish a claim under the exception for
personal
Corretjer.

liability
The

against

exception

defendants
applies

to

Castillo,

Villate

and

corporate

officers

and

managers who have “the authority to manage certain aspects of the
business’s operations on a day-to-day basis,” but the First Circuit

Civil No. 11-1271 (FAB)

16

Court of Appeals interprets the exception narrowly, concerned that
“not every corporate employee who exercise[s] supervisory control
should be held personally liable.”
quotation and citation omitted).
employee

faces

personal

Chao, 493 F.3d at 34 (internal

To determine whether a corporate

liability,

the

Court

weighs

several

factors: the individual’s degree of control over the corporation’s
day-to-day

operations,

financial

affairs,

and

compensation

practices, such as hiring and firing employees, requiring employees
to

attend

schedules.4

meetings

unpaid,

and

setting

employees’

wages

and

Id.
Plaintiff Miranda’s complaint alleges that she held

the

position

of

Tax

Manager,

and

that

defendants

Castillo,

Corretjer, and Villate were her supervisors; defendants Villate and
Corretjer were both Directors of Deloitte Tax’s San Juan Office,
and defendant Castillo was the Tax Managing Partner of Deloitte San
Juan.

She pleads that each of the three supervisors had the

authority

to

take

disciplinary

actions—including

terminations—against her, and they also had the power to direct her
daily work activities.

4

Defendant Villate, as “counselor and

The court of appeals also weighed the individual’s personal
responsibility for making decisions about the conduct of the
business that contributes to the violations of the Act, and the
individual’s ownership interest. It clarified that a supervisor
does not have to be the business’s “owner” to activate the narrow
exception; managerial control of significant aspects, like
“directing employment” practices, however, must be met. Chao, 493
F.3d at 34 n.9.

Civil No. 11-1271 (FAB)

17

primary feedback provider,” and defendant Castillo, as “secondary
feedback provider,” evaluated plaintiff Miranda’s performance and
submitted

mid-year

evaluations

Defendant

Castillo

held

performance

improvement

regarding

a

meeting

plan

for

to

her

work

issue

plaintiff

also

allegedly

demanded

more

years.

and

discuss

Miranda,

and

reported compliance with the PIP to defendant Villate.
Castillo

for

office

a
she

Defendant

presence

from

plaintiff Miranda during one week in April 2011, and ultimately he
terminated plaintiff Miranda’s employment.
Taking these factual allegations as true, as it must
at this stage, the Court finds adequate factual material to support
a reasonable inference that defendants Castillo, Villate, and
Corretjer

held

sufficient

control

over

Deloitte’s

day-to-day

operations, financial affairs, and compensation practices, such as
hiring and firing employees, requiring employees to attend meetings
unpaid,

and

setting

employees’

wages

and

schedules.

The

allegations in the complaint therefore establish a claim under the
narrow exception for ADEA personal liability.

At the motion to

dismiss stage, the Court need only find a plausible entitlement to
relief in order for plaintiff Miranda’s ADEA claim to survive
dismissal.

After drawing all reasonable inferences in plaintiff

Miranda’s favor, the Court concludes that the burden has been met.
The issue may be revisited, if warranted, at the summary judgment
stage.

Accordingly, defendants Castillo, Villate, and Corretjer’s

Civil No. 11-1271 (FAB)

18

motion to dismiss plaintiff Miranda’s ADEA claims against them is
DENIED.
C.

Exhaustion of Administrative Remedies5
1.

The Parties’ Contentions
Defendants next argue that plaintiff Miranda failed

to exhaust administrative remedies pursuant to Title VII and the
ADEA as to defendants Deloitte LLP, Deloitte & Touche LLP, Deloitte
Services LP, Castillo, Villate, and Corretjer.
They

argue

that

administrative

plaintiff

charge

Miranda

before

the

was

EEOC

(Docket No. 17.)

required
as

a

to

file

an

prerequisite

to

commencing her federal civil action for employment discrimination;
that a person or party not named in that EEOC administrative charge
is not subject to suit in federal court; that plaintiff Miranda
named only Deloitte Tax LLP in her EEOC administrative charge; and
that because defendants Deloitte LLP, Deloitte & Touche LLP,
Deloitte Services LP, Castillo, Villate, and Corretjer were not
included in plaintiff Miranda’s EEOC administrative charge, they
are not properly subject to suit in this case.

(Docket No. 17 at

pp. 4–7.) Accordingly, they request that plaintiff Miranda’s Title

5

Defendants’ argument regarding plaintiff Miranda’s alleged
failure to exhaust administrative remedies is not properly brought
pursuant to Rule 12(b)(6).
Because it is a challenge to the
Court’s jurisdiction over plaintiff Miranda’s Title VII and ADEA
claims, it should be brought pursuant to Federal Rule of Civil
Procedure 12(b)(1).

Civil No. 11-1271 (FAB)

19

VII and ADEA claims against them be dismissed for failure to
exhaust administrative remedies.

Id. at p. 7.

Plaintiff Miranda responds by arguing that she

did

include all of the co-defendants in the Narrative of Events (“the
Narrative”) submitted as part of her EEOC filing.
at pp. 4–9.)

(Docket No. 22

She also argues that “the allegations in the

complaint against Deloitte Services LLP, Deloitte & Touche LLP,
Deloitte Services LP, Castillo, Villate [and] Corretjer are well
within the scope for the EEOC investigation that could reasonably
be expected to grow out of the initial charges of discrimination.”
Id. at p. 5.
Defendants

dispute

that

merely

including

an

individual by name in the Narrative is sufficient to exhaust
administrative remedies, and that a party “should have received
notice of an administrative charge that could include them and had
the opportunity to participate in conciliation efforts before a
complainant can bring a Title VII [or an ADEA] suit against [it].”
(Docket No. 25 at p. 6.)

In a supplemental motion, the defendants

also submit “newly discovered evidence”—a copy of correspondence
plaintiff Miranda’s counsel sent to the EEOC requesting a right-tosue letter, and a form filled out by plaintiff Miranda as part of
her EEOC filing.

(Docket No. 32.)

They claim that “it would be

unfair for Deloitte LLP, Deloitte & Touche LLP, Deloitte Services
LP, Castillo, Villate and Corretjer to face a claim for which

Civil No. 11-1271 (FAB)
Plaintiff

failed

requirements.”

to

adhere

20
to

the

well-established

statutory

(Docket No. 17 at p. 7.)
In response, plaintiff Miranda argues that even if

she had failed to name all defendants in the EEOC administrative
charge, this case meets the “substantial identity” exception to the
general rule that a party who is not named in an EEOC charge is not
subject to suit under Title VII or the ADEA.

Submitting a copy of

defendants’ answers to interrogatories and a “Service and Access
Agreement,” plaintiff Miranda argues that “all the defendants in
this case are a single-employer or an integrated-employer with
respect to the plaintiff and their other positions with regard to
the defendants’ motion to dismiss.”6

6

(Docket No. 42 at pp. 3–4.)

Ordinarily, at the motion to dismiss stage, a district 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). There is,
however, “a narrow exception for documents the authenticity of
which are not disputed by the parties; for official public records;
for documents central to the plaintiff’s claim; or for documents
sufficiently referred to in the complaint.” Alt. Energy, Inc., 267
F.3d at 33 (internal quotations and citation omitted). Plaintiff
Miranda’s complaint refers to employment discrimination and
retaliation charges filed before the EEOC on June 29, 2011. (See
Docket No. 1 at pp. 2–3.) The Narrative constitutes part of that
administrative charge submitted to the EEOC. (Docket No. 22 at
p. 6.) Because the administrative charge is not disputed by the
parties, it meets one of the exceptions, and the Court may consider
it without converting the motion to dismiss into a motion for
summary judgment. See Alt. Energy, Inc., 267 F.3d at 33; Watterson
v. Page, 987 F.2d 1, 3–4 (1st Cir. 1993). The Court will not,
however, consider the interrogatories or Service and Access
Agreement at this stage.

Civil No. 11-1271 (FAB)
2.

21

Analysis
Before an employee may bring suit for a Title VII or

ADEA

claim

in

federal

court,

he

or

she

must

first

exhaust

administrative remedies by filing an administrative charge with the
EEOC.

42 U.S.C. § 2000e-5(f); 29 C.F.R. §§ 1626.6; Franceschi v.

U.S. Dep’t. of Veteran Affairs, 514 F.3d 81, 85 (1st Cir. 2008)
(citing Love v. Pullman Co., 404 U.S. 522, 523 (1972)). “[F]ailure
to exhaust th[e] administrative process bars the courthouse door.”
Velazquez-Ortiz
(internal

v.

Vilsack,

657

quotations omitted).

requirement

“initiate[s]

EEOC

F.3d
The

64,

71

(1st

Cir.

administrative

investigation”

and

2011)

exhaustion

provides

an

opportunity for early resolution of an employee’s claim. Powers v.
Grinnell Corp., 915 F.3d 34, 38–39 (1st Cir. 1990); VelazquezOrtiz, 657 F.3d at 71.

Given the equitable nature of the doctrine

of exhaustion of administrative remedies, it “must be applied in
view of the statutes applicable in each case, and of the doctrine’s
underlying purpose.”

Gonzalez v. Ritz Carlton Hotel Co. of P.R.,

241 F. Supp. 2d 142, 145 (D.P.R. 2003).
In general, a party who is not named in an EEOC
administrative charge is not subject to suit under Title VII or
ADEA.

See 42 U.S.C. § 2000e-5(f); 29 C.F.R. §§ 1626.8(b) and

1626.6; McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 504 (1st
Cir. 1996); Gonzalez v. Ritz Carlton Hotel Co. of P.R., 241 F.
Supp. 2d 142, 145 (D.P.R. 2003).

An exception exists, however,

Civil No. 11-1271 (FAB)

22

when there is a “substantial identity” between a party named in the
EEOC charges and a defendant in the civil action.
F.3d at 505.
Circuit

McKinnon, 83

The First Circuit Court of Appeals has cited a Third

case

for

the

proposition

that

“in

determining

if

a

plaintiff may proceed against parties not named before EEOC, the
court should consider whether the plaintiff could ascertain the
role of the unnamed party at the time of the EEOC filing; whether
the interests of an unnamed party are similar to interests of the
named party; the prejudice to the unnamed party; and whether the
unnamed

party

has

represented

to

the

plaintiff

that

its

relationship with the plaintiff is through the named party.”

Id.

(citing Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)).
Plaintiff Miranda disputes that defendants were not
named in the EEOC administrative charge: “[T]he events mentioned in
the

discrimination

charge

(Docket No. 30 at p. 5.)
the

EEOC

employer:

administrative

involved

all

of

The Court agrees.
charge

lists

as

the

codefendants.”

The Narrative filed in
plaintiff

Miranda’s

“Deloitte & Touche, LLP; Deloitte Tax, LLP; Deloitte

Consulting, LLP; Deloitte Services, LP; Deloitte, LLP; Deloitte
Financial

Advisory

Services,

LLP;

Deloitte

Touche

Tohmatsu;

Deloitte Global Services Limited; Deloitte Global Services Holdings
Limited; and Deloitte Touche Tohmatsu Limited.”
at p. 1.)

(Docket No. 22-2

It also explicitly names defendants Castillo, Villate,

and Corretjer:

it states that Francisco Castillo, Partner in

Civil No. 11-1271 (FAB)

23

Charge of Deloitte LLP “ended [plaintiff Miranda’s] employment as
a reprisal for having filled out a sexual harassment report against
him,” id.; that Ricardo Villate, Tax Director for Deloitte LLP, and
Michelle

Corretjer,

also

Tax

Director

for

Deloitte

Tax

LLP,

dismissed plaintiff Miranda without discussing her evaluations; and
that plaintiff Miranda “was dismissed from [her] job at Deloitte as
a reprisal for presenting the report of the sexual harassment
incident against Mr. Catillo . . . . [Mr.] Castillo and [Mr.]
Villate and Ms. Corretjer submitted [plaintiff Miranda] to a
hostile environment and acted in reprisal against [her] for the
same reason.”

Id. at p. 3.
Defendants would have this Court believe that they

are immune from suit simply because certain forms of plaintiff
Miranda’s EEOC charge did not contain all of their names, even
though the Narrative did.
argument.

The Court is unpersuaded by that

Simply because all of the defendants were not listed on

certain preliminary forms does not lead to the conclusion that the
administrative charge was entirely devoid of their names.

Indeed,

in this case plaintiff Miranda named all of the defendants in her
Narrative.

Filed

as

part

of

the administrative

charge,

the

Narrative is a written factual statement that should have alerted
the employer and all parties named in it of the pending proceedings
and investigation.

See Thornton v. United Parcel Serv., Inc., 587

F.3d 27, 32 (1st Cir. 2009); Gonzalez, 241 F. Supp. 2d at 1.

Civil No. 11-1271 (FAB)
Accordingly,

the

24

Court

finds

that

plaintiff

Miranda

properly

exhausted her administrative remedies prior to filing suit in this
federal forum.
Even

if

the

Court

were

to

accept

defendants’

argument that they were not named in the EEOC charge, the Court
also agrees with plaintiff Miranda that at this stage her complaint
pleads

sufficient

exception.

facts

to

invoke

the

“substantial

identity”

She contends that “it is impossible that the corporate

defendants did not receive notice of the EEOC proceedings since, as
alleged in the complaint, they are integrated entities or a single
employer as to [plaintiff] Miranda.”

(Docket No. 30 at p. 4.)7

In

her complaint, plaintiff Miranda states that she was originally
hired

by

Deloitte

&

Touche

LLP,

and

that

Deloitte

Tax

LLP

eventually became her employer “by virtue of a reorganization by

7

Plaintiff Miranda also argues that the claims set forth in
her complaint fall within the scope of, and can reasonably be
expected to grow from, the EEOC investigation, because they reflect
the allegations contained in the Narrative she submitted as part of
the administrative charge. (See Docket No. 22 at pp. 4–9.) That
contention stems from the First Circuit Court of Appeals’ reasoning
that “the scope of the civil complaint is limited by the charge
filed with the EEOC and the investigation which can reasonably be
expected to grow out of that charge,” Lattimore v. Polaroid Corp.,
99 F.3d 456, 464 (1st Cir. 1996)(internal quotations omitted), and
that “[t]he language used in the complaint need not ‘presage with
literary exactitude the judicial pleadings which may follow.’”
Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1st Cir. 2011)
(internal quotations and citations omitted). As discussed above,
however, the Court finds more pertinent plaintiff Miranda’s
argument that pursuant to the Glus factors, a “substantial
identity” exists between the companies and people listed in the
EEOC administrative charge and the defendants in this federal case.

Civil No. 11-1271 (FAB)

25

which [her] employment agreement with Deloitte & Touche LLP was
assigned to Deloitte Tax LLP.”

(Docket No. 1 at p. 5.)

She also

alleges that “Deloitte LLP is the holding company of Deloitte &
Touche LLP, Deloitte Tax LLP, Deloitte Services LLP, and other
entities (collectively referred to herein as Deloitte)”; that
“Deloitte & Touche LLP and Deloitte Tax LLP had the same fiscal
year”; and that Deloitte Services LLP provides the administration
and related services, such as the Human Resource Departments, of
all Deloitte LLP’s entities, including Deloitte & Touche LLP and
Deloitte Tax LLP among other entities.”

Id.

Taking plaintiff Miranda’s allegations as true and
drawing all reasonable inferences in her favor, it cannot seriously
be argued that, pursuant to Glus, the interests of the defendants
are not similar or that the defendants suffered some sort of
prejudice after plaintiff Miranda’s EEOC administrative filing.
The

Deloitte

defendants,

through

the

alleged

reorganization,

holding agreement, and sharing of administrative services, are so
closely related “that notice to one will reach the other and no
prejudice will result from naming one party but not the other.”
See Nieves v. Popular, Inc., 2013 U.S. Dist. LEXIS 13523 (D.P.R.
2013); see also Sedlacek v. Hach, 752 F.2d 333 (8th Cir. 1985)
(upholding a district court’s finding of “substantial identity”
between companies that “shared employees, management, equipment,
location, and employee benefit programs, and were both almost

Civil No. 11-1271 (FAB)

26

entirely owned by defendants”); Stevenson v. International Paper
Co., 432 F. Supp. 390, 395, 397-98 (W.D. La. 1977) (finding the
“substantial identity” exception when parties are “engaged in close
legal relationship”); EEOC v. Upjohn Corp., 445 F. Supp. 635, 638
(N.D. Ga. 1977) (noting the “substantial identity” exception when
corporate parties are so closely related in their activities and
management as to constitute an integrated enterprise).

Similarly,

substantial identity exists between plaintiff Miranda’s Deloitte
employer

and

defendants

Castillo,

Villate,

and

Corretjer.

Defendant Castillo, as the Tax Managing Partner of Deloitte San
Juan,

and

defendants

Villate

and

Corretjer,

as

Directors

of

Deloitte San Juan, reported to and acted on behalf of Deloitte Tax
LLP in its employment relationship with plaintiff Miranda.

See

Greenwood v. Ross, 778 F.2d 448, 451 (8th Cir. 1985). Moreover, as
discussed above, the Court finds adequate factual material to
support a reasonable inference that defendants Castillo, Villate,
and Corretjer held sufficient control over Deloitte’s day-to-day
operations, financial affairs, and compensation practices, such as
hiring and firing employees, requiring employees to attend meetings
unpaid, and setting employees’ wages and schedules.
all

defendants

administrative
identity”

were
charge,

exception

named

in

therefore,

sufficient

to

plaintiff
they

meet

allow

Even if not

Miranda’s
the

“substantial

plaintiff

complaint to proceed against them in federal court.

EEOC

Miranda’s

Accordingly,

Civil No. 11-1271 (FAB)

27

the Court DENIES defendants’ motion to dismiss plaintiff Miranda’s
Title VII and ADEA claims for failure to exhaust administrative
remedies.
D.

“Protected Conduct” Pursuant to Law 115
Defendants finally contend that plaintiff Miranda failed

to establish a Law 115 claim8 plausibly because the complaint does
not state “that plaintiff engaged in a protected activity by
offering or attempting to offer any testimony, expression or
information before a legislative, administrative or judicial forum
in Puerto Rico, as specifically required by [Law] 115 . . . .”
(Docket No. 17 at p. 8.) Plaintiff Miranda responds only that “she
expected not to be retaliated against for filing the internal
complaint[, which] can be considered an attempt to give testimony
or information to an administrative or judicial forum. However, we
could not find a case on point.”

(Docket No. 22 at p. 9.)

In order to establish a prima facie case under Law 115,
a

plaintiff-employee

must

establish

that

he

or

she

“(a)

participated in an activity protected by §§ 194 et seq. and (b) was
subsequently discharged.”

Lupu v. Wyndham El Conquistador Resort

and Golden Door Spa, 524 F.3d 312, 313 (1st Cir. 2008) (internal
quotations omitted); Uphoff Figueroa v. Alejandro, 597 F.3d 423
8

Law 115, Puerto Rico’s Whistle Blower Act, provides in
pertinent part, “No employer may . . . discriminate against an
employee . . . should the employee offer . . . any testimony,
expression or information before . . . [an] administrative . . .
forum in Puerto Rico.” P.R. Laws Ann. tit 29, § 194a.

Civil No. 11-1271 (FAB)
(1st Cir. 2010).

28

The Court finds that plaintiff Miranda has not

asserted any fact that demonstrates that she participated in an
activity protected by Law 115, because she did not “offer or
attempt to offer, verbally or in writing, any testimony, expression
or information before a legislative, administrative, or judicial
forum in Puerto Rico.”

See P.R. Laws Ann. tit 29, § 194a.

While

filing a charge with the EEOC constitutes a protected activity,
plaintiff

Miranda’s

defendants’

alleged

administrative
retaliatory

act

charge
of

was

filed

dismissing

after

her,

and

therefore could not constitute the necessary protected conduct
under Law 115.

See Santos v. Maldonado, 814 F. Supp. 2d 73, 91

(D.P.R. 2011).

Plaintiff Miranda’s e-mail communication of an

incident report to Leslie Berry of the “D&T San Diego Office” and
Alisa A. Brussel of the “D&T New York Office” does not qualify as
protected activity pursuant to Law 115.

See Lupu, 524 F.3d

at 313-314 (holding that plaintiff’s conversation with a supervisor
at

an

internal

meeting

and

written

complaints

left

on

the

supervisor’s desk did not qualify as protected activities because
he “never offered or attempted to offer any information to the
Puerto Rico governmental authorities listed in the statute; nor had
he threatened to go to such authorities”); see also Rivera-Garcia,
841 F. Supp. 2d 538 (D.P.R. 2012) (finding that plaintiff’s filing
of a formal sexual harassment complaint against a supervisor
through

the

employer’s

ethics

helpline

did

not

constitute

Civil No. 12-1271 (FAB)

29

“protected activity” pursuant to Law 115); Santos, 814 F. Supp. 2d
at

91

(“[C]omplaints

to

[plaintiff’s]

supervisors

and

to

[plaintiff’s employer’s] engineer and administrator do not qualify
as protected activities under Law 115.”).

Because plaintiff

Miranda did not participate in protected conduct prior to her
dismissal, the Court finds that she has failed to state a plausible
claim for relief under Law 115.
WITH

PREJUDICE

plaintiff

Accordingly, the Court DISMISSES

Miranda’s

Law

115

claim

against

defendants.
IV.

CONCLUSION
Defendants’ motion to dismiss, Docket No. 17, is GRANTED IN

PART and DENIED IN PART.

The Court DISMISSES WITH PREJUDICE

plaintiff Miranda’s Title VII claims against defendants Castillo,
Villate and Corretjer, DENIES the other defendants’ motion to
dismiss plaintiff Miranda’s Title VII and ADEA claims for failure
to exhaust administrative remedies, and DISMISSES WITH PREJUDICE
plaintiff Miranda’s Law 115 claim against all defendants.

It also

DENIES plaintiff Miranda’s motion to strike, (Docket No. 30).
IT IS SO ORDERED.
San Juan, Puerto Rico, February 8, 2013.
s/ FRANCISCO A. BESOSA
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE