Solano-Moreta v. First Transit of PR, Inc.

Filing 29

OPINION and ORDER denying 7 Motion to Dismiss for Lack of Jurisdiction. Signed by US Magistrate Judge Bruce J. McGiverin on July 2, 2013. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HÉCTOR SOLANO-MORETA,
Plaintiff,
v.

Civil No. 12-1989 (BJM)

FIRST TRANSIT OF PR, INC.,
Defendant.
OPINION AND ORDER
Héctor Solano-Moreta (“Solano”) sued First Transit of PR, Inc. (“First Transit”),
alleging employment retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., the same “under its local counterpart,” and wrongful discharge
under 29 L.P.R.A. § 185a et seq. (“Law No. 80”). Docket No. 1 (“Compl.”). First
Transit moved to dismiss for lack of subject-matter jurisdiction and for failure to state a
claim upon which relief can be granted. Docket No. 7. Solano opposed (Docket No. 13),
First Transit replied (Docket No. 18), and Solano sur-replied (Docket No. 19). This case
is before me on consent of the parties. Docket No. 28. For the reasons that follow, the
motion to dismiss is DENIED.
MOTION TO DISMISS STANDARD
To survive a motion to dismiss at the pleading stage, “an adequate complaint must
provide fair notice to the defendants and state a facially plausible legal claim.” OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). In evaluating a motion to
dismiss, the court first sorts out and discards any “‘legal conclusions couched as fact’ or
‘threadbare recitals of the elements of a cause of action.’” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)) (alteration marks omitted). The remaining “[n]on-conclusory
factual allegations” are fully credited, “even if seemingly incredible.”

Id.

Taken

together, they must “state a plausible, not a merely conceivable, case for relief.” Id. At

Solano-Moreta v. First Transit of PR, Inc., Civil No. 12-1989 (BJM)

2

the same time, courts must not “forecast a plaintiff’s likelihood of success on the merits.”
Id.
If a court considers materials outside the pleadings, it must give notice to the
parties and convert the motion to dismiss into a motion for summary judgment. Fed. R.
Civ. P. 12(d). But where allegations “are expressly linked to—and admittedly dependent
upon—a document (the authenticity of which is not challenged), that document
effectively merges into the pleadings,” and may be considered without triggering
conversion. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998).
Moreover, if the court disregards the supplied materials, notice and conversion is not
required. Garita Hotel Ltd. P’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18 (1st Cir.
1992).
Here, both parties offered EEOC documents in support of their respective
positions. However, the allegations of the complaint dispose of the arguments presented,
and there is therefore no need to consider the additional documents.
BACKGROUND
First Transit hired Solano on September 18, 2001 as a bus driver. Compl., ¶ 5.1.
On February 4, 2011, Solano filed a national-origin discrimination claim against First
Transit with the Equal Employment Opportunities Commission (“EEOC”). Id., ¶ 5.2. A
week later, First Transit suspended Solano without pay. Id., ¶ 5.3. On February 18, 2011,
after one week of suspension, First Transit fired Solano. Id., ¶ 5.4. On June 22, 2011,
Solano filed an employment retaliation claim against First Transit with the EEOC. Id., ¶
3.1. The EEOC issued Solano a right-to-sue notice on the retaliation claim on September
5, 2012. Id., ¶ 3.2. Solano filed this suit pro se on December 5, 2012.1

1

Solano has since retained counsel. See Docket No. 12.

Solano-Moreta v. First Transit of PR, Inc., Civil No. 12-1989 (BJM)

3

DISCUSSION
First Transit argues that Solano’s claims should be dismissed because (1) Solano’s
discrimination claim is time barred, (2) Solano’s citation to Puerto Rico law is
ambiguous, and (3) the Solano has failed to state a claim for national-origin
discrimination. Docket No. 7 at 7-9. I address each contention in turn.
I.

Timeliness of the Suit
First Transit argues that the suit is time barred because Solano filed the national-

origin discrimination claim with the EEOC on February 4, 2011, received the
corresponding right-to-sue notice on January 18, 2012 and filed the suit after the
allowable time for that claim. Docket No. 7 at 7-8. A plaintiff allegedly subjected to an
unlawful employment practice must file an administrative claim within a specific period
of time—180 days for claims brought directly to the EEOC, and 300 days for claims
brought to a qualifying local anti-discrimination agency. See 42 U.S.C. § 2000e-5(e);
Clockedile v. N.H. Dep’t of Corrections, 245 F.3d 1, 3 (1st Cir. 2001).

When the

administrative process ends and a right-to-sue letter issues, plaintiffs then have ninety
days to file suit. 42 U.S.C. § 2000e-5(f)(1); Loubriel v. Fondo del Seguro del Estado, 694
F.3d 139, 142 (1st Cir. 2012).
Here, First Transit’s argument assumes that Solano is suing for national-origin
discrimination based on his February 4, 2011 EEOC discrimination claim. See Docket
No. 7 at 7-9. But the complaint in this case plainly states that Solano is suing for
“retaliation for having filed a complaint of discrimination.” Compl., ¶ 1.1. In other
words, Solano seeks to recover for First Transit’s alleged retaliation for the February 4,
2011 claim, and not for that claim itself. See id., ¶¶ 1.2, 3.1, 5.5, 6.6, 6.10. Because First
Transit did not contend that the June 22, 2011 retaliation claim was untimely, or that this
suit was untimely with respect to the September 5, 2012 right-to-sue letter, it is not
entitled to dismissal on timeliness grounds.

Solano-Moreta v. First Transit of PR, Inc., Civil No. 12-1989 (BJM)

II.

4

Ambiguity of the Second Cause of Action
First Transit next argues that Solano’s complaint is too ambiguous in identifying

his second cause of action. Docket No. 7 at 8. Specifically, First Transit states that since
Solano’s second cause of action does not cite a specific statute for the “local counterpart
of Title VII,” it is unclear which claims Solano intends to raise under Puerto Rico law.
Id. The purpose of the complaint is to give the defendant fair notice of what the claim is
and the grounds upon which it rests. Ocasio-Hernández, 640 F.3d at 12 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). But pro se complaints must be
construed liberally, such that if the plaintiff “present[s] sufficient facts, the court may
intuit the correct cause of action, even if it was imperfectly pled.” Ahmed v. Rosenblatt,
118 F.3d 886, 890 (1st Cir. 1997).
Here, Solano’s pro se complaint incorrectly referred to the “local counterpart to
Title VII” at one point, and to 29 L.P.R.A. § 155 et seq. at another, as the applicable law
for the second cause of action. Compl., ¶¶ 1.2, 2.4. But Solano presented sufficient facts
to plead an employment discrimination claim for sharing testimony under 29 L.P.R.A. §§
194 et seq. Section 194a(a) states that “[n]o employer may discharge […] an employee
[…] should the employee offer […] testimony, expression or information before […]
administrative or judicial forum in Puerto Rico, when such expressions are not of a
defamatory character nor constitute disclosure of privileged information established by
law.” Section 194a(b) states that the aggrieved party may request “compensation for
unearned salaries, benefits and attorney's fees for the real damages suffered, for mental
anguish, and reinstatement in his/her job.” The section also provides for double damages.
29 L.P.R.A. §§ 194a(b).
Solano’s complaint alleges that First Transit discharged him in retaliation for
filing an employment discrimination claim against them with the EEOC. Compl., ¶ 5.5.
He also alleges mental anguish and requests just compensation for it. Compl., ¶¶ 6.116.12. He demands to be reinstated to his job, lost earnings, future pay, and reasonable

Solano-Moreta v. First Transit of PR, Inc., Civil No. 12-1989 (BJM)

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attorney’s fees and costs. Id., ¶¶ 6.13-6.15. Solano also requests the doubling of the
requested award. Id. at 7.

Liberally construed, the facts alleged in Solano’s pro se

complaint provide sufficient facts for the court to intuit the correct cause of action under
194 et seq., even if it cited the incorrect statute. First Transit is therefore not entitled to
dismiss this claim.
III.

Failure to State a Claim for National-Origin Discrimination
First Transit argues that any national-original discrimination claims should be

dismissed for failure to state a claim upon which relief may be granted. Docket No. 7 at
9. As outlined above, and as admitted by First Transit, Solano’s suit is not seeking to
recover for any national-origin discrimination.

Docket No 13 at 4, ¶ 12.

Solano

presented two retaliation claims and a wrongful discharge claim, and did not include a
separate national-origin discrimination claim. Id. First Transit concedes this point.
Docket No. 18, at 3. First Transit does not allege that Solano failed to plead sufficient
facts to establish a retaliation claim, and is therefore not entitled to dismissal on this
ground.
CONCLUSION
For the foregoing reasons, the First Transit’s motion to dismiss is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 2nd day of July, 2013.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge