Henao-Henao v. Linde Gas Puerto Rico et al

Filing 29

OPINION AND ORDER granting in part and denying in part 15 Motion to Dismiss; granting in part and denying in part 22 Motion to Dismiss. The plaintiff's constitutional claims against Schroder are DISMISSED WITH PREJUDICE. Signed by Judge Juan M. Perez-Gimenez on 09/11/2014. (TW)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

DAVID A. HENAO-HENAO.
Plaintiff,
v.

Civil Case. NO. 13-1428 (PG)

LINDE GAS PUERTO RICO INC., ET AL.
Defendants.

OMNIBUS OPINION AND ORDER
David Henao-Henao sued his employer, Linde Gas Puerto Rico Inc.,
alleging that the company discriminated against him based on his national
origin and age when it discharged him as part of a company-wide reduction
in force.

Linde Gas moves to dismiss.

We grant in part and deny in

part.
I.

BACKGROUND

In 2008, Henao was offered a position as a management engineer for
Linde Gas in the United States.

Linde Gas had recently acquired Henao’s

long-term employer, CryoGas S.A.

Henao accepted the offer but upon

arriving in the United States was informed that Linde Gas had eliminated
his new position.

Linde Gas invited Henao to apply for other positions

within the company, and he eventually secured employment in Linde Gas’
office in Corpus Christie, Texas.

From this point forward, according to

his complaint, Henao bounced from position to position until finally
settling in as a cylinder operations manager at Linde Gas’ plant in
Cataño, Puerto Rico.
Upon arriving in Puerto Rico in January of 2011, however, Henao was
once again informed that a company-wide restructuring would impact his
new position.

Before long, senior managers at Linde Gas’ Cataño plant

expressed “discriminatory” remarks about Henao’s Colombian nationality
and his age.

Henao claims that other Linde Gas employees were incited to

join in this harassment.
On

September

11,

2011,

Henao

was

termination, effective November 18, 2011.

hand-delivered

a

letter

of

Despite having several more

weeks of employment, Henao claims that, after he received his letter of

Civil No. 13-1428 (PG)

Page 2

termination, security guards impeded his access to the plant because they
had been instructed to prevent his entrance.

Around this time, a Linde

Gas human resources officer informed Henao that, despite the explicit
details articulated in his termination letter, his severance package
would

be

altered

in

accordance

with

local

Commonwealth

law

—

an

alteration that, according to Henao, significantly reduced his overall
benefits.
Henao

eventually

filed

a

claim

with

the

seeking treatment for work-related depression.

State

Insurance

Fund,

After an evaluation, the

Insurance Fund ordered Henao be granted leave for depression and workrelated anxiety.
On June 3, 2013, Henao filed this suit against Linde Gas alleging
national origin and age discrimination under federal and Commonwealth
law.

(Docket No. 1.)

Linde Gas and Robert Schroeder, director of Linde

Gas Puerto Rico, moved to dismiss.

(Docket No. 15.)

On November 22,

2013, the co-defendants’ filed a separate motion to dismiss.

(Docket No.

22.)
II.
To

survive

a

Rule

STANDARD OF REVIEW

12(b)(6)

motion

to

dismiss,

a

plaintiff’s

complaint must contain “‘ a short and plain statement of the claim.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (quoting Conley v. Gibson,
355

U.S.

41,

47

(1957));

see

also

FED.R.CIV.P.

8(a)(2).

While

a

complaint need not contain detailed factual allegations, Rodriguez-Vives
v. Puerto Rico Firefighters Corps of Puerto Rico, 743 F.3d 278, 283 (1st
Cir.2014), a plaintiff must provide “more than labels and conclusions” or
“a formulaic recitation of the elements of a cause of action.”
550 U.S. at 555 (internal quotation marks omitted).

Twombly,

In assessing a

claim’s plausibility, we must construe the complaint in the plaintiff’s
favor,

accept

all

non-conclusory

allegations

reasonable inferences in favor of the plaintiff.

as

true,

and

draw

any

Ashcroft v. Iqbal, 556

U.S. 662, 678 (citing Twombly, 550 U.S. at 570); accord Maloy v. Ballori–
Lage, 744 F.3d 250, 252 (1st Cir.2014).

When reviewing a motion to

dismiss, we “must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by

Civil No. 13-1428 (PG)
reference,

and

Page 3

matters

of

which

a

court

may

take

judicial

notice.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Finally,

determining

the

plausibility

of

a

claim

for

relief

is

a

“context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Iqbal, 556 U.S. at 679.

III. DISCUSSION
1. Defendants First Motion to Dismiss
A. Title VII Claim
The defendants assert that Henao filed his charge with the EEOC on
December 2, 2011 — barring his complaint.
Title

VII

prohibits

employers

We cannot agree.
from

discriminating

against

individuals because of an individual’s race, color, religion, sex, or
national origin.

Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 186

(1st Cir. 2011).

Under Title VII, judicial recourse is not a remedy of

first

resort.

Cir.2003).

An

Morales–Vallellanes
employee

must

v.

timely

Potter,
exhaust

339

F.3d

9,

18

administrative

before bringing a Title VII claim in federal court.

(1st

remedies

Franceschi v. U.S.

Dept. of Veterans Affairs, 514 F.3d 81, 85 (1st Cir.2008).

Title VII

requires a person seeking remedy from employment discrimination to file a
charge with the EEOC within 180 or 300 days after the “alleged unlawful
employment practice occurred.”

Johnson v. University of Puerto Rico, 714

F.3d 48, 53 (1st Cir.2013) (citation omitted).

Puerto Rico is generally

a “deferral” jurisdiction; therefore, the administrative charge must be
filed within 300 days of the alleged unlawful conduct.

Velazquez-Perez

v. Developers Diversified Realty Corp., 753 F.3d 265, 276 (1st Cir.
2014).
Three-hundred days before November 3, 2011 takes us as far back as
January 7, 2011.
captioned

The acts that gave way to the filing of the above-

complaint

allegedly

commenced

after

transferred to Puerto Rico on January 23, 2011.

the

plaintiff

(Docket No. 1.)

was

Because

Henao filed his EEOC charge on November 3, 2011 for acts that began
taking place on January 23 of the same year, his claims fall within the
300 day-period set forth in section 2000e-5(e)(1).

As a result, the

plaintiff’s Title VII claim will not be dismissed on these grounds.

Civil No. 13-1428 (PG)

Page 4

In his complaint, Henao sets forth a hostile work environment claim
against the defendants.

(Docket No. 1 at ¶ 94.)

Some of the acts he

alleged contributed to the hostile work environment claim occurred within
the filing period, such as the August 2011 incident wherein the plaintiff
was allegedly insulted and falsely accused of inventing estimates, since
“surely Plaintiff was accustomed to falsifying numbers because that is
how they do it in Colombia and in South America.”
47.)

(Docket No. 1. at ¶

Therefore, we will not dismiss the plaintiff’s claim on these

grounds.

In light of the foregoing, we hereby DENY the co-defendants’

request as to Henao’s Title VII claim.
B. Age Discrimination in Employment Act (ADEA) Claim
The co-defendants argue that Henao failed to timely exhaust his
administrative remedies before filing his ADEA claim.
5.)

(Docket No. 15 at

We disagree.
Exhaustion of administrative remedies is required under the ADEA

prior to filing suit in federal court.

No civil suit can be filed before

60 days after a charge alleging unlawful discrimination has been filed
with the EEOC.

See 29 U.S.C. § 626(d); see also Federal Exp. Corp. v.

Holowecki,552 U.S. 389, 395 (2008).
Henao included a discrimination charge based on age in the charge
he filed with the EEOC.
found

that

Henao

(Docket No. 19-1.)

satisfied

the

Because we have already

administrative

exhaustion

requirement

before filing this action, we will refrain from addressing that argument
anew.

Accordingly, we DENY the co-defendant’s request as to Henao’s ADEA

claim.
C. Claims against co-defendant Schroder
The co-defendants argue there is no personal liability under Title
VII

or

the

ADEA,

necessitating

dismissal

of

Henao’s

claims

against

Schroder in his individual capacity.
We have previously found that neither ADEA nor Title VII provide
for individual liability.

See Rodriguez-Torres v. Government Development

Bank of Puerto Rico, 708 F.Supp.2d 195, at 202 (D.P.R. 2010).
But Henao asserts that he did not bring a Title VII or ADEA claim
against co-defendant Schroder in his personal capacity, (Docket No. 19 at
6), but instead argues that the claims against Schroder are brought
pursuant

to

Article

II,

§§

1

and

16

of

the

Constitution

of

the

Civil No. 13-1428 (PG)

Page 5

Commonwealth of Puerto Rico, and Puerto Rico Law No. 100.
Whether Puerto Rico’s labor laws provide for personal liability was
addressed by the Commonwealth Supreme Court in Rosario v. Distribuidora
Kikuet, Inc., 151 P.R. Dec. 634 (2000).

We subsequently adopted the

Commonwealth Supreme Court’s interpretation.

See Hernandez v. Raytheon

Service Company Puerto Rico, 2006 WL1737167 (D.P.R. 2006).

In Raytheon,

we held that, under Commonwealth law, a supervisor can be held civilly
liable in his personal capacity for harassment.
Distribuidora Kikuet, 155 P.R. Dec. at 647).

Id. at 2 (quoting

Although Distribuidora

Kikuet dealt specifically with a sexual harassment claim, the holding of
the case has been interpreted by federal courts “to include supervisory
liability under Law 100 in the broader sense.”

Hernandez at 2 (citing

Diaz-Rivera v. El Dia, Inc., 2005 WL2333645(D.P.R.); see also Acevedo
Martinez v. Coatings, Inc. and Co., 251 F.Supp.2d 1058 (D.P.R. 2003);
Rodriguez

v.

Econo

Supermarkets,

204

F.Supp.2d

289

(D.P.R.

2002)).

Because Commonwealth law provides for personal liability, we DENY the codefendants’ request as to Henao’s claim pursuant to Law 100.
Next,

Henao

also

sets

forth

a

claim

against

Schroder

in

his

personal capacity pursuant to Article II, §§ 1 and 16 of the Constitution
of the Commonwealth of Puerto Rico.
State action may be attributed to a private actor if: (1) there is
a

financial

or

regulatory

nexus

between

the

private

actor

and

the

government, which compelled the private actor to act as it did; (2) the
private actor assumes a traditionally public function; or (3) a symbiotic
relationship exists between the private actor and the government.

See

Brown v. Newberger, 291 F.3d 89, 93 (1st Cir. 2002).
Here, Henao’s complaint fails to demonstrate how Schroder meets any
of the three elements of state action.

Indeed, Henao’s complaint lacks

the indispensable element of state action, absent which he has no viable
claim

that

defendants.
(1st

Cir.

his

state

constitutional

rights

were

violated

by

the

See, e.g., Mead v. Independence Ass'n, 684 F.3d 226, 231
2012).

Therefore,

Henao’s

Schroder are DISMISSED WITH PREJUDICE.
2. Defendant’s Second Motion to Dismiss
A. Time-barred argument

constitutional

claims

against

Civil No. 13-1428 (PG)

Page 6

In their second motion to dismiss, the co-defendants renew their
arguments that Henao’s claims are time-barred.
and

denied

these

arguments.

We have already discussed

Consequently,

we

will

refrain

from

addressing these arguments anew.
B. Henao’s complaint lacks allegations against Linde Gas North America
LLC
The co-defendants also assert that Henao has failed to state any
claim against Linde Gas North America, LLC, and that Henao was never
employed by Linde Gas North America, LLC.
complaint be dismissed.

As a result, they request the

(Docket No. 22 at 7.)

We disagree.

A review of the plaintiff’s complaint clearly indicates that Henao
alleges that “the first indications of hostility and harassment were
encountered

when

Dan

Reed,

General

Manager

of

Operations

at

Corpus

Christi and Shane Force started questioning Plaintiff’s experience and
English-language knowledge.”

(Docket No. 1. at ¶ 10.)

Moreover, the

complaint sets forth additional acts involving another Linde Gas North
America employee, Donna Sanders, Human Resources Manager at Linde Gas
North America.

(Docket No. 1. at ¶ 59, 60 and 61.)

Accordingly, we hold

that the defendants’ arguments with regards to Linde Gas North America
are meritless, and hereby DENY their request.
C. Defendants’ argument that Linde Gas USA, LLC, is not a legal entity
Finally,
against

Linde

the

co-defendants

Gas

USA,

LLC,

request

because

allegations against said defendant.”

the

that

we

dismiss

plaintiff

all

failed

claims

“to

(Docket No. 22 at 8.)

Moreover,

the co-defendants assert that Linde Gas USA is not a legal entity.
id.

state
See

To that extent, they include an unsworn statement under penalty of

perjury declaring that Linde Gas USA is not a legal entity that is owned,
controlled or affiliated with Linde Gas North America.
3.)

(Docket No. 22-

Henao asserts that, pursuant to FED.R.CIV.P. 17, Title VII and the

ADEA, the fact that a limited liability company is not a registered
entity is no bar for it to be sued.

(Docket No. 24.)

We agree.

Similar to corporations, limited liability companies are recognized
as independent legal entities apart from officers and members, with the
power

to

enter

contracts,

to

buy,

own

property, incur debts, and sue or be sued.

and

sell

real

and

personal

As such, the argument that

Linde Gase USA is not a legal entity, and therefore cannot be sued,

Civil No. 13-1428 (PG)

Page 7

fails.
IV. CONCLUSION
Accordingly, the co-defendants’ motion to dismiss (Docket No. 15)
is GRANTED IN PART AND DENIED IN PART.

The plaintiff’s constitutional

claims against Schroder are DISMISSED WITH PREJUDICE.

All other claims

brought by the plaintiff may proceed.
SO ORDERED.
In San Juan, Puerto Rico, September 11th, 2014.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE