Jimenez-Jimenez v. International Hospitality Group, Inc.

Filing 77

ORDER granting in part and denying in part 37 Motion for Judgment on the Pleadings. Signed by US Magistrate Judge Silvia Carreno-Coll on 9/29/2016. (VCC)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

MIGUEL JIMENEZ-JIMENEZ,
Plaintiff,
v.

CIV. NO.: 15-1461 (SCC)

INTERNATIONAL HOSPITALITY
GROUP, INC.,
Defendant.

ORDER
Plaintiff filed suit on April 24, 2015, alleging that his
employer, International Hospitality Group, Inc./Casino del Sol
(“Casino del Sol”), failed to provide him with reasonable
accommodation and retaliated against him after he filed a
charge of discrimination, all in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12117, Law No. 115 of
December 20, 1991 and Puerto Rico’s Law No. 44 of July 2,
1985. Docket No. 1. After plaintiff amended the complaint
twice to include new allegations, Casino del Sol moved to

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dismiss. Docket No. 37. Plaintiff opposed the request. Docket
No. 38.
I. Background
The plaintiff, Miguel Jimenez-Jimenez, worked as a casino
croupier/dealer in Casino del Sol. He allegedly suffers from an
allergic condition that makes him extremely sensitive to the
smell of perfumes and chemicals. When exposed to those
odors, he experiences shortness of breath, head and chest pain,
nausea, lack of orientation and concentration, and even
fainting. Docket No. 1.
Plaintiff sued his employer on the basis of discrimination
due to disability under the ADA and state law. He also claimed
that Casino del Sol retaliated against him for engaging in
protected activities. Docket No. 1. Plaintiff amended the
complaint on June 18, 2015. Docket No. 9. On July 10, 2015,
defendant moved for judgment on the pleadings. Docket No.
14. While the request was pending, plaintiff sought leave to
amend the complaint a second time to include causes of action
for retaliation and constructive discharge. Docket No. 19. The
court granted leave and deemed the original motion for
judgment on the pleadings moot without prejudice. Docket
No. 34. Shortly after answering the Second Amended

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Complaint (“SAC”), defendant renewed his petition for
judgment on the pleadings. Docket No. 37.
II. Standard
The standard for reviewing motions for judgment on the
pleadings “is essentially the same” as that for a motion to
dismiss under Fed. R .Civ. P. 12(b)(6), except that “[a] Rule
12(c) motion, unlike a Rule 12(b)(6) motion, implicates the
pleadings as a whole.” Aponte–Torres v. Univ. of P.R., 445 F.3d
50, 54–55 (1st Cir.2006). The facts are viewed in the light most
favorable to the nonmovant and the court must draw all
reasonable inferences to the nonmovant’s favor. R.G. Financial
Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).
Judgment on the pleadings is appropriate “only if the
uncontested and properly considered facts conclusively
establish the movant's entitlement to a favorable judgment.”
Zipperer v. Raytheon Co., 493 F.3d 50, 53 (1st Cir.2007)(quoting
Aponte–Torres, 445 F.3d at 54); Feliciano v. Rhode Island, 160 F.3d
780, 788 (1st Cir.1998)(judgment on the pleadings “may not be
entered unless it appears beyond a doubt that the nonmoving
party can prove no set of facts in support of her claim which
would entitle her to relief” ).

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III. Analysis
Plaintiff’s SAC includes three causes of action. The first
cause of action alleges discrimination due to disability under
the ADA and Law No. 44 in the form of failure to provide
reasonable accommodation. Docket No. 35. The second and
third causes of action assert retaliation.
Defendant requests dismissal of the discrimination and
retaliation claims for failure to exhaust administrative
remedies.1 Defendant also moves for judgment on the
pleadings on the grounds that plaintiff’s first and second
causes of action for disability discrimination and retaliation fail
to state a plausible cause for relief.
A. Failure to exhaust
The statutory prerequisites for filing a complaint claiming
ADA violations require the timely filing of charge before the
Employment Opportunity Commission (“EEOC”). 42 U.S.C. §
12101-12213 (1990); Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d
275, 277 (1st Cir. 1999). Not doing so amounts to a failure to
exhaust administrative remedies. Valle-Arce v. Puerto Rico Ports
Authority, 632 F.Supp. 2d 138, 140 (D.P.R. 2009)(quoting Jorge

1.

Defendant does not request dismissal of the cause of action for failure
to accommodate.

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v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005)).
Defendant avers that plaintiff included new causes of action
in the SAC that were not within the scope of the EEOC charge.
Though, generally, a civil complaint is limited by the charge
filed with the EEOC, there are some instances where the courts
have allowed additional causes of action not included in the
charge. See Lattimore v. Polaroid Corp, 99 F.3d 456, 464 (1st Cir.
1996)(finding that a civil complaint may also include “the
investigation which can reasonably be expected to grow out of
that [EEOC] charge.”); Clockdile v. New Hampshire Dept. of
Corrections, 245 F.3d 1, 6 (1st Cir. 2001)(holding that retaliation
claims not originally contemplated are preserved “so long as
the retaliation is reasonably related to and grows out of the
discrimination complained of to the agency—e.g., the retaliation is for filing the agency complaint itself.”).
Plaintiff’s EEOC charge only avers that he was denied
reasonable accommodation to avoid certain scents that caused
him a severe physical reaction. Docket No. 37-2. Therefore, his
claims of retaliation would only be preserved if they
are“reasonably related to and grow out of the discrimination
complained of” to the EEOC. The court finds that they do.
As recited in the SAC, plaintiff was allegedly retaliated

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against due to his requests for reasonable accommodation and
for having filed a charge of discrimination before the Puerto
Rico Department of Labor’s Anti-Discrimination Unit and the
EEOC. Such allegations are intertwined with the claims made
at the administrative level and, thus, are not unexhausted.
B. Failure to state a plausible claim under the ADA
Defendant further argues that even if the court finds that
plaintiff exhausted administrative remedies, his disability and
retaliation claims do not survive scrutiny because he failed to
state a plausible claim for relief.2 According to defendant, the
incidents that plaintiff recites in the SAC are either stray
comments that do not amount to discriminatory animus, or
legal conclusions.
In order to establish a claim under the ADA, in the absence
of direct evidence of discrimination, a plaintiff must rely on
circumstantial evidence and establish a prima facie case
through the burden-shifting method developed in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir.1999).
Under McDonnell Douglas, the plaintiff carries the initial
burden of establishing a prima facie case of discrimination.
2.

Defendant does not challenge the failure to accommodate claims.

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McDonnell Douglas, 411 U.S. at 802. Once the plaintiff has done
so, an inference of discrimination is raised. The burden then
must shift to the employer, “to articulate some legitimate,
nondiscriminatory reason” for its actions. Id. at 802-03. If the
defendant meets the burden of rebuttal, the plaintiff must then
show that the defendant's articulated reason was pretextual,
and that the prohibited classification actually motivated the
decision. Texas Dept. Of Community Affairs v. Burdine, 450 U.S.
248, 256 (1981).
After reviewing the allegations of the SAC, the court finds
that plaintiff has sufficiently plead that he suffered
discrimination. The SAC specifically avers that plaintiff was
subjected to discriminatory comments made by managers of
Casino del Sol . Docket No. 35 at ¶¶ 16 and 17. For example, on
one occasion a manager allegedly commented that plaintiff
“couldn’t be with a woman” on account of his extreme reaction
to certain smells. Furthermore, plaintiff described several
incidents in which he was mocked by supervisors for his
condition. Docket No. 35 at ¶¶ 18(e) and (g). Viewing the
complaint in the light most favorable to plaintiff, and taking as
true all the factual pleadings, it is palpable that plaintiff has
effectively alleged that he was subjected to discrimination

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based on his alleged condition.
However, even a most liberal reading of the SAC does not
support a claim of retaliation. To prevail on a retaliation claim
under the ADA, an individual “must show that he was
engaged in protected conduct, that he was discharged, and that
there was a causal connection between the discharge and the
conduct.” Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st
Cir. 1997).3
Though plaintiff says that he was constructively discharged
in retaliation for requesting reasonable accommodation, he did
not put forth any concrete allegations in the SAC to support his
contention. All that plaintiff avers is that his manager (or
managers)4 told him in several occasions to “go home” at times
when he was feeling ill because of strong odors. Docket No. 35
at ¶ 18(a) and (h). Asking an employee to take sick leave if he
complains about his health is not, in and of itself, a retaliatory

3.

The ADA prohibits discrimination against an individual “because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this chapter.” 42 U.S.C. § 12203(a).

4.

It is not clear whether the allegations refer to the same person since
plaintiff did not include the specific names in the SAC.

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act. In fact, sick leave could be considered a reasonable
accommodation for ADA purposes. Criado v. IBM Corp., 145
F.3d 437, 443 (1st Cir. 1998)(“A leave of absence and leave
extensions are reasonable accommodations in some circumstances”); Garcia-Ayala v. Lederle, 212 F. 3d 638, 648-50 (1st Cir.
2000).
Moreover, plaintiff resigned from his job on May 14, 2015.
Though he states that he was constructively discharged, he has
not proffered any allegations to support his claims that he was
forced to leave Casino del Sol to escape the intolerable working
situation. Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st
Cir. 2002)(quoting Landgraf v. USI Film Prods., 968 F.2d 427, 430
(5th Cir.1992))(“To prove constructive discharge, the plaintiff
must demonstrate a greater severity or pervasiveness of
harassment than the minimum required to prove a hostile
working environment.”).
The matter of causation is equally unpled. Plaintiff has not
adequately alleged a link between his requests for a reasonable
accommodation and his resignation. Therefore, the Court finds
that the SAC does not contain a sufficient factual basis to state
a plausible claim for relief stemming from retaliation.

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IV. Conclusion
Based on the foregoing, the court GRANTS in part, and
DENIES in part defendant’s motion for judgment on the
pleadings. The claims of retaliation are dismissed without
prejudice, but the claims of discrimination survive judgment
on the pleadings.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of September, 2016.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE