Rodriguez-Sanchez v. Sistema Universitario Ana G. Mendez et al

Filing 60

OPINION AND ORDER re 50 MOTION to dismiss the Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) as to Mizeny Rodriguez-Sanchez filed by Sistema Universitario Ana G. Mendez, Iris Berrios, Victoria De Jesus. Signed by US Magistrate Judge Camille L. Velez-Rive on 6/18/15.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MIZENY RODRIGUEZ SANCHEZ,
Plaintiff,
v.

CIVIL NO. 13-1778 (CVR)

SISTEMA UNIVERSITARIO ANA G.
MENDEZ, et als.,
Defendants.
OPINION AND ORDER
INTRODUCTION
On October 15, 2013, Plaintiff Mizeny Rodríguez Sánchez (“Rodríguez” or “Plaintiff”)
filed the present case against Defendants Sistema Universitario Ana G. Méndez,
(“SUAGM”), Iris Berríos, Victoria de Jesús and unknown insurance companies (collectively,
“Defendants”). Plaintiff alleged causes of action against her former employer under the
Pregnancy Discrimination Act, as contained in Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000 et seq.; the Civil Rights Act of 1991, 42 U.S.C. 1981a, and several
state laws. She also alleged damages flowing from Defendants’ illegal actions in
discriminating against her on the basis of sex and pregnancy and for retaliation. (Docket
No. 1).
Before the Court now is Defendants’ Motion to Dismiss (Docket No. 50), Plaintiff’s
opposition thereto, (Docket No. 55), and Defendants’ reply to Plaintiff’s opposition (Docket
No. 58). For the following reasons, the Court GRANTS Defendants’ Motion to Dismiss,
and DISMISSES this case, WITHOUT PREJUDICE.

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STANDARD
Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A “short and plain” statement needs only enough detail to provide a defendant with “ ‘fair
notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007); see also Erickson v. Pardus, 551 U.S.
89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement....’ Specific facts are not necessary.”). Yet, in
order to “show” an entitlement to relief a complaint must contain enough factual material
“to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” See, Twombly, 550 U.S. at
555, 127 S.Ct. 1955.
When addressing a motion to dismiss under Rule 12, the court must “accept as true
all well-pleaded facts in the complaint and draw all reasonable inferences in favor of the
plaintiffs.” Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d 45, 48-49 (1st Cir. 2009).
Under Twombly, 550 U.S. at 555, however, a plaintiff must “provide the grounds of his
entitlement [with] more than labels and conclusions.” See also, Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). Thus, a plaintiff is now required to present
allegations that “nudge [his] claims across the line from conceivable to plausible” in order
to comply with the requirements of Rule 8(a). Id. at 570; see, e.g. Ashcroft v. Iqbal, 129
S.Ct. 1937 (2009).

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Civil No. 13-1778 (CVR)
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When considering a motion to dismiss, the Court’s inquiry occurs in a two-step
process under the current context-based “plausibility” standard established by Twombly
and Iqbal. First, the Court must “accept as true all of the allegations contained in a
complaint[,]” discarding legal conclusions, conclusory statements and factually threadbare
recitals of the elements of a cause of action. Iqbal, 129 S.Ct. at 1940. Yet, the court “need
not accept as true legal conclusions from the complaint or ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009).
Under the second step of the inquiry, the Court must determine whether, based upon
all assertions that were not discarded under the first step of the inquiry, the complaint
“states a plausible claim for relief.” Iqbal, 129 S.Ct. at 1950. This second step is “contextspecific” and requires that the Court draw from its own “judicial experience and common
sense” to decide whether a plaintiff has stated a claim upon which relief may be granted or
whether dismissal under Rule 12(b)(6) is appropriate. Id.
FACTS
During February, 2011, Plaintiff began working for Defendant SUAGM as a Student
Services Officer at the Health Sciences Department of Universidad del Turabo, which is part
of SUAGM. Docket No. 1 at ¶ 21. This was a contract position, for a fixed term, with no
expectation of continuity. Docket No. 50-1. The contract was renewed on several occasions.
Id.
Plaintiff became pregnant in December 2011 and so notified Defendants. Id. at ¶ 2627. In March, 2012, Plaintiff began experiencing unusual pain and discovered she had a
mass in her placenta. Id. at ¶ 28-28. Plaintiff’s doctors told her there was a risk of a

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miscarriage and recommended rest, advice which she followed. Id. at ¶ 30-32. Plaintiff
alleges she was not paid her salary or afforded any benefits after she went on leave. Id. at
¶ 37.
After Plaintiff gave birth in August, 2012, Plaintiff avers she tried to be reinstated to
her job, but SUAGM failed to do so. Thus, on November 14, 2012, Plaintiff filed an
administrative charge of sex and pregnancy discrimination against Defendants before the
Anti Discrimination Unit and the Equal Employment Opportunity Commission (“EEOC”).
Id. at ¶ 78.
After this, Defendants offered Plaintiff a position, but with substantially reduced
duties. For instance, she would now answer the telephone and would attend students who
came to the office while they waited to be attended by someone else, while in her previous
position as Student Services Officer she would take on a series of faculty-related projects,
coordinate activities and work on events that would last throughout the entire academic
year. Id. at ¶ 85-86. Furthermore, the new position was only a three-month contract and
stated that Defendants could discharge her without cause. Id. at ¶ 87.
Plaintiff did not accept the new position which was offered to her, and contends that
Defendants’ decision to terminate her and/or to not renew her contract for her old position
was based on their motivation to discriminate against her on the basis of her pregnancy, in
violation of the federal and local anti-discrimination statutes. Plaintiff further avers that,
the position which was offered to her, constituted a demotion in retaliation against her for
exercising her right to file a charge of discrimination against Defendants.

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Defendants now come before the Court and request dismissal of this case based on
recent First Circuit jurisprudence, where the Court had the opportunity to examine the
exact same clause in question here in a case involving this very same Defendant.
At issue here is the contract that was signed between the parties, which contained
a forum selection clause. Said clause stated that any dispute between the parties would be
submitted before the Court of First Instance of the Commonwealth of Puerto Rico, San
Juan Part. Therefore, Defendants posit, dismissal of the claims without prejudice is
appropriate so Plaintiff can re-file her claims in that forum.

Regarding Plaintiff’s

retaliations claims, Defendants argue that no exhaustion was made because she did not file
them before the EEOC, and in any event, they too would be subject to the forum selection
clause and must be dismissed.
Plaintiff responds that the contracts are null because they fail to comply with Puerto
Rico law. She also claims the forum selection clause contains a condition precedent that
must be met before the selection clause may be activated and SUAGM failed to do so;
therefore, the clause is unenforceable. Regarding the retaliation claims, Plaintiff avers that
it is reasonably related to her pregnancy discrimination claim, and therefore, dismissal is
unwarranted.
LEGAL ANALYSIS
By virtue of Plaintiff’s employment with Defendant SUAGM, she signed three (3)
separate employment contracts in the case at bar. They all contained the same forum
selection clause, which reads as follows:

Mizeny Rodríguez Sánchez v. Sistema Universitario Ana G. Méndez, et al
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THIRTEENTH: Any dispute which arises between the parties
and which cannot be resolved or surmounted by constructive
negotiations conducted in good faith between the parties shall
be submitted to the jurisdiction and competence of the Court
of First Instance of the Commonwealth of Puerto Rico, San
Juan Part, for adjudication and resolution.
Docket No. 50, Exh. 1.
The Supreme Court established the litmus test for determining the validity of a
forum selection clause in the case of M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92
S.Ct. 1907 (1972). The Court must determine: (1) whether the clause is mandatory or
permissive; (2) the scope of the clause; and (3) whether there is some reason the
presumption of enforceability should not apply. Indeed, “the forum clause should control
absent a strong showing that it should be set aside,” Bremen, 407 U.S. at 15, 92 S.Ct. 1907.
As to the third requirement under Bremen, the presumption of enforceability, the Court
listed four (4) grounds for finding a forum selection clause unenforceable:
(1)

the clause was the product of “fraud or overreaching,” Id. at 15, 92 S.Ct. 1907;

(2)

“enforcement would be unreasonable and unjust,” Id.;

(3)

proceedings “in the contractual forum will be so gravely difficult and
inconvenient that [the party challenging the clause] will for all practical
purposes be deprived of his day in court,” Id. at 18, 92 S.Ct. 1907; or

(4)

“enforcement would contravene a strong public policy of the forum in which
suit is brought, whether declared by statute or by judicial decision,” Id. at 15,
92 S.Ct. 1907.

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Last year, the Court of Appeals for the First Circuit had the opportunity to examine
in Claudio de León v. Sistema Universitario Ana G. Méndez, 775 F.3d 41 (1st Cir. 2014) the
same clause, as in this case, in a case against Defendant SUAGM. There, as here, Plaintiff
Claudio de León had signed a fixed-term contract with Defendant SUAGM, which contained
the same forum selection clause as in this case. The First Circuit began its analysis with the
distinction between mandatory and permissive forum selection clauses, and stated:
Here, there is no doubt that the forum selection clause
contained within the employment contracts is mandatory. The
clause states that disputes “shall be submitted to the
jurisdiction and competence of the Court of First Instance of
the Commonwealth of Puerto Rico, San Juan Part,” and it is
axiomatic that the word “shall” has a mandatory connotation.
See, e.g., Jama v. Immigration & Customs Enforcement, 543
U.S. 335, 346, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005)
(contrasting the discretionary word “may” with the mandatory
word “shall”); Rivera, 575 F.3d at 17 n. 5 (including “shall” in a
list of “typical mandatory terms”); Black's Law Dictionary
1585 (10th ed.2014) (defining “shall” to mean “[h]as a duty to;
more broadly, is required to” and explaining that it is used to
express “the mandatory sense that drafters typically intend”).
Claudio de León, 775 F.3d at 46-47.
As applied to the case of reference, the Court’s holding turned on the second element,
the reach of the clause, where it concluded as follows:
According to Appellants, because the parties never engaged in
constructive negotiations in good faith prior to Appellants filing
suit, the mandatory forum selection clause was never triggered,
and thus Appellants were free to file wherever they wanted.
We reject this reading because such an interpretation leads to
absurd results. In normal cases, plaintiffs initiate lawsuits and
thus ordinarily have their choice of venue. See Atl. Marine, 134
S.Ct. at 581 (“Because plaintiffs are ordinarily allowed to select

Mizeny Rodríguez Sánchez v. Sistema Universitario Ana G. Méndez, et al
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whatever forum they consider most advantageous (consistent
with jurisdictional and venue limitations), we have termed their
selection the ‘plaintiff's venue privilege.’ ” (quoting Van Dusen
v. Barrack, 376 U.S. 612, 635, 84 S.Ct. 805, 11 L.Ed.2d 945
(1964))). The purpose of a forum selection clause, therefore, is,
at least in part, to protect defendants and give them a voice as
to where a dispute will be heard and resolved. See, e.g.,
Huffington v. T.C. Grp., LLC, 637 F.3d 18, 22-23 & n. 3 (1st
Cir.2011); C. Pappas Co. v. E. & J. Gallo Winery, 565 F.Supp.
1015, 1018 (D.Mass.1983). If Appellants' interpretation were
accepted, the forum selection clause would effectively be
rendered meaningless...
Therefore, the First Circuit explicitly rejected Appellant’s argument that the clause
established a condition precedent that had to be met before the case could be filed. That
is the same argument Plaintiff raises here, which the Court must also reject for the same
reasons the First Circuit did.
Plaintiff posits that the instant case is distinguishable from Claudio de León because
there, the First Circuit found that the good faith negotiations had occurred. The Court
disagrees. While the First Circuit in Claudio de León nevertheless went on to analyze why
the forum selection clause would have nevertheless applied1 if it had accepted Appellants’
reading of the clause with the condition precedent requirement, that was after they
explicitly rejected Appellant’s reading of the clause and concluded that the clause was
mandatory. The First Circuit further held that, since the clause stated that it applied to “any
dispute which arises between the parties”, that it was applicable to the issues presented in
that case, also discrimination claims. The Court likewise finds it is applicable here.

1

Because in that case they had apparently engaged in good faith talks.

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The final step in evaluating the clause involves asking “whether there is some reason
the presumption of enforceability should not apply.” Rafael Rodríguez Barril, Inc. v.
Conbraco Indus., Inc., 619 F.3d 90, 93 (1st Cir.2010). A forum selection clause is “prima
facie valid” and absent a “strong showing” by the resisting party that the clause is
“‘unreasonable’ under the circumstances,” it should not be set aside. Bremen, 407 U.S. at
10, 15, 92 S.Ct. 1907.
Plaintiff Rodríguez-Sánchez has presented no argument that the clause was obtained
through fraud or overreaching, that its enforcement is unreasonable and unjust, that the
proceedings in state court will deprive Plaintiff of her day in court, or that any public policy
counters against enforcement of the clause. Instead, she alleges that the contracts are null
because they contravene Puerto Rico law. Yet, this nullity argument does not overcome any
of the aforementioned grounds for finding the clause inapplicable. See M/S Bremen, 407
U.S. at 17, 92 S.Ct. at 32 (explaining that the party arguing that a forum selection clause is
inapplicable “bear[s] a heavy burden of proof”); In re Mercurio, 402 F.3d 62, 66 (1st
Cir.2005) (recognizing the “ ‘heavy burden of proof’ ” to overcome a forum selection clause
on inconvenience grounds (quoting Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595,
111 S.Ct. 1522, 113 L.Ed.2d 622 (1991)).
The nullity argument, which was brought before the Court for the first time in this
case in Plaintiff’s opposition to Defendants’ Motion to Dismiss, is insufficient to defeat the
strong presumption of validity that covers the forum selection clause in this case. The
nullity argument will have to be raised by Plaintiff before the proper forum, to wit, the state
court.

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Finally, regarding the retaliation claim, the Court finds that it must also be
dismissed, because it is a dispute which arose “between the parties.” It therefore falls
within the forum selection clause and must be addressed by the state court. Whether or not
it occurred as part of Plaintiff’s employment, and whether it is jurisdictionally infirm for
failure to exhaust administrative remedies, as alleged by Defendants, is also matter for the
state court to resolve.
Thus, due to an applicable and enforceable forum selection clause, Defendants’
Motion to Dismiss is GRANTED and this case is DISMISSED WITHOUT PREJUDICE.
CONCLUSION
For the aforementioned reasons, the Court GRANTS Defendants’ Motion to Dismiss
(Docket No. 50) and DISMISSES this case WITHOUT PREJUDICE to re-file in the
appropriate forum.2
Judgment will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 18th day of June, 2015.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE

2

As recognized in Claudio de León, 775 F.3d at 49, the First Circuit has the practice for dismissals due to forum
selection clauses to be dismissed without prejudice so the case may be re-filed in the appropriate forum. See, e.g.,
Huffington v. T.C. Group, LLC, 637 F.3d 18, 21 (1st Cir. 2011) (affirming the district court's dismissal of plaintiff's claims
without prejudice, Fed.R.Civ.P. 12(b)(6), concluding that the forum selection clause encompassed his claims”); Rafael
Rodríguez Barril, Inc. v. Conbraco Industries, Inc., 619 F.3d at 95 (affirming the district court's dismissal without prejudice
under Rule 12(b)(6) due to a valid forum selection clause); Odishelidze v. Aetna Life & Cas. Co., 853 F.2d 21, 23 (1st
Cir.1988) (“[The district court] also ordered the complaint dismissed ‘for failure to plead a cognizable claim under federal
jurisdiction’ and noted that the dismissal was ‘without prejudice of [plaintiff] filing another action in the proper local
forum.’ ”).