Vazquez-Lazo v. University of Puerto Rico et al
Filing
78
MEMORANDUM AND ORDER: Denying 60 "Motion to Reconsider." Signed by Judge Pedro A. Delgado-Hernandez on 12/27/2016.(IFN)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NIEVE DE LOS ANGELES VÁZQUEZLAZO,
Plaintiff,
CIVIL NO. 15-1891 (PAD)
v.
URAYOAN
RAMON
WALKER, et al.
EMETERIO
Defendants.
MEMORANDUM AND ORDER
Delgado-Hernández, District Judge.
On September 30, 2016, the court granted in part and denied in part defendants’ motion to
dismiss and dismissed plaintiff’s claims against the University of Puerto Rico and those brought
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and the Ninth
Amendment (Docket No. 59). Before the court is plaintiff’s “Motion to Reconsider” the dismissal
of her Title VII claims (Docket No. 60). Defendants opposed (Docket No. 70), and plaintiff replied
(Docket No. 76). For the reasons explained below, plaintiff’s motion is DENIED.
Plaintiff alleges the court erred in concluding that the Amended Complaint does not
establish a plausible retaliation claim under any of the categories protected by Title VII (Docket
No. 60 at p. 6). She argues the Amended Complaint states she suffered “adverse retaliatory
actions” after her “engagement of protected activity,” and that, as such, pleading requirements
have been complied with. Id. The court agrees plaintiff adequately pled an “adverse action.”
However, for a Title VII retaliation claim to survive a motion to dismiss, a plaintiff must allege
Vázquez-Lazo v. Walker et al.
Civil No. 15-1891 (PAD)
Memorandum and Order
Page 2
facts showing “protected conduct under Title VII.” Fantini v. Salem State College, 557 F.3d 22,
32 (1st Cir. 2009) (emphasis added).
An employee has engaged in a protected activity pursuant to Title VII if she has either: (1)
opposed any practice made an unlawful employment practice by Title VII; or (2) made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding or hearing under
Title VII. Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir.2009) (quoting Long v. Eastfield
College, 88 F.3d 300, 304 (5th Cir.1996)); Rodriguez-Vega v. Policlinica la Familia de Toa Alta,
Inc., 942 F.Supp.2d 210, 226 (D.P.R. 2013). Plaintiff alleged she was retaliated against for
expressing her desire to be considered for promotion and tenure; and for making public expressions
regarding matters of public concern (Docket No. 8 at ¶¶ 4.7, 4.9, 4.54 and 4.59; Docket No. 60 at
p. 4-5). From these allegations, the actions she opposed are not practices made unlawful by Title
VII.
Plaintiff contends that in conformity with Abril-Rivera v. Johnson, 806 F.3d 599, 608 (1st
Cir. 2015), “the employment activity or practice that [the plaintiff] opposed need not be a Title
VII violation so long as [the plaintiff] has a reasonable belief that it was, and [s]he communicated
that belief to .. [her] employer in good faith” (Docket No. 60 at p. 6). That is true enough, but does
not lead to the result plaintiff advocates for. Abril-Rivera illustrates the point. In that case, the
plaintiffs engaged in protected activity based on their belief that they were being discriminated
against due to their national origin. They claimed the “discrimination was against the Puerto Rican
facility in which they worked, which caused a disparate impact on the basis of national origin.”
Abril-Rivera, 806 F.3d at 606. And the protected activity that allegedly led to retaliation was the
filing of an EEO complaint claiming plaintiffs were “underpaid relative to their mainland
counterparts.” Id. at 609.
Vázquez-Lazo v. Walker et al.
Civil No. 15-1891 (PAD)
Memorandum and Order
Page 3
Here, the Amended Complaint makes broad, cursory references to discrimination under
Title VII. Nevertheless, it is devoid of facts that could plausibly sustain an inference that
defendants acted on the basis of plaintiff’s race, color, religion, sex, or national origin; or that
plaintiff could reasonably have believed they did.1 Plaintiff posits that as stated in paragraphs 4.57
through 4.65 of the Amended Complaint, defendants retaliated against her after she “filed and
appealed” an internal harassment complaint and filed a charge before the Civil Rights Commission
of Puerto Rico (Docket No. 76 at p. 6). Yet a review of those paragraphs does not evince reference
to Title VII except for the term “national origin discrimination” mentioned in paragraph 4.57, the
only mention of such term in the Amended Complaint. And they lack facts that might be construed
as events of national origin discrimination; or that plaintiff complained to defendants about events
that could be construed as national origin discrimination.
On this record, plaintiff failed to allege she could have had a “reasonable belief” that
defendants were discriminating against her because of her national origin.2 While plaintiff’s
conduct could plausibly raise to the level of protected activity under other provisions, it does not
1
Indeed, in paragraph No. 4.38, plaintiff alleges that she:
…complained to her superiors and others on issues like hostile, intimidating and offensive work environment,
persecution and harassment; Being deprived of her courses without notice, just cause and without providing
Plaintiff with due process; Defendants’ alteration and falsification of certified mail receipts of the U.S. Postal
Service; denial of equal protection of the law and the University’s laws and regulations by Defendants; and
being denied due process in the evaluation of her promotion and tenure as well as being denied copy of her
employment evaluations, resulting in Defendants’ defamation and harassment of Plaintiff and Defendants’
denial of a fair and impartial evaluation to Plaintiff, in violation of her Constitutional rights.
Thus, considering well-pleaded facts and drawing inferences in plaintiff’s favor, plaintiff’s opposition to defendants’ actions was
not directed at conduct proscribed by Title VII. Moreover, the opposition does not reflect a belief that defendants’ actions were
tainted with the type of discrimination that Title VII prohibits.
2
See, Clark County School District v. Breeden, 532 U.S. 268 (2001)(finding that no reasonable person could have believed that a
single incident of alleged sexual harassment violated Title VII, precluding a retaliation claim based on employee’s internal
complaints about the incident); Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir. 2009) (recognizing that plaintiff “could
not have had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law’”)(internal
citations omitted).
Vázquez-Lazo v. Walker et al.
Civil No. 15-1891 (PAD)
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so raise under Title VII.3 In consequence, her “Motion to Reconsider” is DENIED.
SO ORDERED.
In San Juan, Puerto Rico, this 27th day of December, 2016.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge
See, Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 226 (1st Cir. 2012)(affirming the district court’s dismissal of plaintiff’s
retaliation claim under Title VII, finding that plaintiff’s “factual allegations do not support a reasonable inference that she was
engaging in protected conduct when she opposed the remarks made”); Fantini, 557 F.3d at 32 (holding that plaintiff failed to show
that she engaged in a protected activity since the alleged misconduct was not an unlawful employment practice under Title VII);
Vazquez-Galarza v. Centro Medico del Turabo, Inc., 2014 WL 988788, at *3 (D.P.R. 2014)(dismissing plaintiff’s Title VII
retaliation claim after concluding that plaintiff did not plausibly plead engagement in protected conduct); Montanez v. Educational
Technical College, 660 F.Supp.2d 235, 243 (D.P.R. 2009)(“Plaintiff alleges that … [defendant] dismissed her in retaliation for the
claim she filed with the EEOC. This claim was based on both age and disability-based discrimination, neither of which are protected
classes under Title VII. Therefore, because Plaintiff is unable to meet the first requirement of her prima facie case, her claim of
retaliation under Title VII fails”).
3
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