Delgado-Ugarte v. Bank of America Corporation et al

Filing 26

MEMORANDUM AND ORDER re 10 Partial Motion to Dismiss: GRANTED. Plaintiff Delgado-Ugarte's claims pursuant to Puerto Rico Law 115 and Articles 1802 and 1803 of the Puerto Rico Civil Code are DISMISSED WITH PREJUDICE. There being no just reason for delay, partial judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 06/01/2016. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE JAVIER DELGADO-UGARTE,
Plaintiff,
Civil No. 15-2332 (FAB)

v.
BANK OF AMERICA CORPORATION;
MERRILL LYNCH, PIERCE, FENNER
& SMITH, INC.; INSURANCE
COMPANY A, B & C; JOHN DOE,
Defendants.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is a partial motion to dismiss filed by Bank
of America Corporation and Merrill Lynch, Pierce, Fenner & Smith,
Inc. (collectively, “defendants”).

(Docket No. 10.)

Defendants

move to dismiss plaintiff Jose Javier Delgado-Ugarte (“DelgadoUgarte”)’s claims of (1) retaliation pursuant to Puerto Rico Law
115

of

1991

(“Law

115”)

and

(2)

negligent

and

intentional

infliction of emotional distress pursuant to Articles 1802 and 1803
of the Puerto Rico Civil Code (“Articles 1802 and 1803”).

Id.

Delgado-Ugarte opposed the motion, (Docket No. 14), defendants
replied, (Docket No. 17), and Delgado-Ugarte filed a surreply,
(Docket No. 20).

For the reasons that follow, defendants’ partial

motion to dismiss is GRANTED.

1

Nathanael R. Krevor, a second-year student at The George
Washington University Law School, assisted in the preparation of
this Memorandum and Order.

Civil No. 15-2332 (FAB)
I.

2

RULE 12(b)(6) MOTION TO DISMISS STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a Court to
dismiss a complaint when the pleading fails to state a claim upon
which relief can be granted.

Fed. R. Civ. P. 12(b)(6).

Resolving

a motion to dismiss requires a two-step approach. First, the Court
“isolate[s] and ignore[s] statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-action
elements.”

Schatz v. Republican State Leadership Comm., 669 F.3d

50, 55 (1st Cir. 2012). Second, the Court “take[s] the complaint’s
well-pled (i.e., non-conclusory, non-speculative) facts as true,
drawing all reasonable inferences in the pleader’s favor, and
see[s] if they plausibly narrate a claim for relief.”

Id.

“The relevant question for a district court in assessing
plausibility is not whether the complaint makes any particular
factual allegations but, rather, whether ‘the complaint warrant[s]
dismissal

because

entitlement

to

it

failed

relief

in

toto

to

plausible.’”

render

plaintiffs’

Rodriguez-Reyes

v.

Molina-Rodriguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007)).
II.

FACTUAL ALLEGATIONS

Plaintiff Delgado-Ugarte worked for defendants for over seven
years, starting in June 2007.
2014,

Delgado-Ugarte

(defendants’

benefits

(Docket No. 1 at p. 2.)

discussed
coordinator)

with
the

defendants
need

for

In November
and

family

Aetna
leave

Civil No. 15-2332 (FAB)

3

pursuant to the Family and Medical Leave Act of 1993 (“FMLA”) due
to the expected birth of his daughter.

Id. at p. 6.

Delgado-

Ugarte submitted his family leave request on December 4, 2014, and
Aetna confirmed receipt of Delgado-Ugarte’s request on December 5,
2014. Id. at pp. 6-7.

On December 15, 2014, defendants terminated

Delgado-Ugarte’s employment.
On

September

30,

Id. at p. 7.

2015,

Delgado-Ugarte

brought

this

suit

alleging interference of rights pursuant to the FMLA, retaliation
for exercising rights pursuant to the FMLA and Law 115, wrongful
discharge pursuant to Puerto Rico Law 80 (“Law 80”), and negligent
and

intentional

infliction

Articles 1802 and 1803.

of

distress

pursuant

to

(Docket No. 1.)
III.

A.

emotional

DISCUSSION

Law 115
Law 115 provides that “[n]o employer may discharge, threaten,

or

discriminate

against

an

employee

regarding

the

terms,

conditions, compensation, location, benefits or privileges of the
employment should the employee offer or attempt to offer, verbally
or in writing, any testimony, expression or information before a
legislative, administrative or judicial forum in Puerto Rico.”
P.R. Laws Ann. tit. 29, § 194a(a).

Defendants move to dismiss

Delgado-Ugarte’s Law 115 claim on the ground that he did not engage
in protected activity pursuant to Law 115.
3-5.)

(Docket No. 10-1 at pp.

Civil No. 15-2332 (FAB)
Delgado-Ugarte

does

4
not

allege

that

he

communicated

or

attempted to communicate with a legislative, administrative, or
judicial forum as required by Law 115.

To request family leave,

Delgado-Ugarte communicated with his employer and his employer’s
benefits coordinator, which are both private entities. (Docket No.
1 at p. 6.)

These communications are not protected by Law 115.

See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 45
(1st Cir. 2010) (performing internal request for documents without
offering or attempting to offer documents to governmental authority
is not protected activity pursuant to Law 115); Lupu v. Wyndham El
Conquistador Resort & Golden Door Spa, 524 F.3d 312, 313-14 (1st
Cir.

2008)

regulations

(reporting
to

company

possible
management

violations
is

not

of

governmental

protected

activity

pursuant to Law 115).
To support his Law 115 claim, Delgado-Ugarte cites Feliciano
Martes v. Sheraton Old San Juan, 182 P.R. Dec. 368, 409-10 (2011),
in which the Puerto Rico Supreme Court held that requesting NonOccupational Temporary Disability Insurance (commonly referred to
by its Spanish-language acronym, “SINOT”) benefits pursuant to
Puerto Rico Law 139 of 1968 (“Law 139”)2 is protected activity
pursuant to Law 115.

The Puerto Rico Supreme Court described the

process for requesting SINOT benefits as “quasi-administrative”

2

The purpose of Law 139 is to pay “compensation to workmen for the
loss of wages as a result of disability due to illness or accident
not connected with employment.” P.R. Laws Ann. tit. 11, § 201.

Civil No. 15-2332 (FAB)

5

because (1) even though employers may administer their own SINOT
benefit plans, the Puerto Rico Department of Labor and Human
Resources

must approve

those

plans,

and

(2)

the

Puerto

Rico

Department of Labor and Human Resources hears all motions for
reconsideration of denied requests for SINOT benefits.

Feliciano

Martes, 182 P.R. Dec. at 409; see P.R. Laws Ann. tit. 11, §§ 204205. The Puerto Rico Supreme Court also mentioned the similarities
between SINOT and the State Insurance Fund (“SIF”), a governmentadministered

insurance

fund

providing

workers’

compensation

benefits, noting that a previous case held that requesting SIF
benefits is protected activity pursuant to Law 115.

See Feliciano

Martes, 182 P.R. Dec. at 409 (citing Irizarry v. Johnson & Johnson
Consumer Prods. Co. (P.R.), 150 P.R. Dec. 155 (2000)).
In contrast, the FMLA does not establish an insurance fund
administered by the government or by a private entity, nor does the
FMLA mandate the payment of lost wages due to a qualifying need for
leave.

See 29 U.S.C. § 2612(c)-(d) (allowing an employer to

provide unpaid leave or to require an employee to use accrued paid
leave).
FMLA

Unlike a request for SIF or SINOT benefits, a request for

leave

is

2612(e)(1).

directed

to

the

employer

alone.

See

id.

§

Furthermore, the government does not approve FMLA

leave policies on an employer-by-employer basis.

Finally, unlike

Law 139, which establishes a process for the Puerto Rico Department
of

Labor

and

Human

Resources

to

reconsider

denials

of SINOT

Civil No. 15-2332 (FAB)

6

benefits, P.R. Laws Ann. tit. 11, § 204(a)-(b), the FMLA has no
similar reconsideration process and directs employees to initiate
a civil action or file a complaint with the United States Secretary
of Labor for interference with rights, 29 U.S.C. § 2617.

For these

reasons, requesting FMLA leave is not analogous to requesting SINOT
benefits. Therefore, the Court concludes that a request for family
leave made to a private employer pursuant to the FMLA is not
protected activity pursuant to Law 115.

See also Santana-Colon v.

Houghton Mifflin Harcout Publ’g Co., 81 F. Supp. 3d 129, 136
(D.P.R. 2014) (Delgado-Hernandez, J.) (holding that requesting FMLA
leave is not protected activity pursuant to Law 115).
Because plaintiff Delgado-Ugarte does not allege that he
communicated

or

attempted

to

communicate

with

a

legislative,

administrative, or judicial forum, the Court GRANTS defendants’
motion to dismiss Delgado-Ugarte’s Law 115 claim.
B.

Articles 1802 and 1803
Article

1802

is

Puerto

Rico’s

general

tort

statute

and

provides that a person who “causes damage to another through fault
or negligence shall be obliged to repair the damage so done.”
Laws Ann. tit. 31, § 5141.

P.R.

Article 1803 extends liability to

employers for damages caused by their employees.

Id. § 5142.

Defendants move to dismiss Delgado-Ugarte’s Articles 1802 and 1803
claims on the ground that because Delgado-Ugarte filed claims
pursuant to specific state and federal laws addressing wrongful

Civil No. 15-2332 (FAB)

7

discharge and retaliation, he cannot bring Article 1802 or 1803
claims based on the same allegations.

(Docket No. 10-1 at pp. 7-

9.)
When a plaintiff brings claims covered by a specific labor or
employment law, the Puerto Rico Supreme Court and courts in this
District bar plaintiffs from bringing claims pursuant to Articles
1802 and 1803 based on the same alleged conduct.

See Franceschi-

Vazquez v. CVS Pharmacy, Civ. No. 14-1694 (FAB), 2016 WL 1698292,
at *8 (D.P.R. April 27, 2016) (Besosa, J.) (citing cases); Pagan
Colon v. Walgreens of San Patricio, Inc., 190 P.R. Dec. 251, 260
(2014).
Delgado-Ugarte fails to allege any negligent or intentional
conduct on the part of his employer separate from that covered by
specific employment laws.

Delgado-Ugarte alleges that defendants

prevented him from exercising his right to FMLA leave, terminated
him for requesting FMLA leave, and terminated his employment
without just cause.

(Docket No. 1.)

All of defendants’ alleged

conduct is covered by Delgado-Ugarte’s FMLA and Law 80 claims.
Accordingly,

the

Court

GRANTS

defendants’

motion

to

dismiss

Delgado-Ugarte’s Articles 1802 and 1803 claims.
IV.

CONCLUSION

For the reasons discussed above, the Court GRANTS defendants’
partial motion to dismiss, (Docket No. 10).

Plaintiff Delgado-

Ugarte’s claims pursuant to Puerto Rico Law 115 and Articles 1802

Civil No. 15-2332 (FAB)
and

1803

of

the

Puerto

8
Rico

Civil

Code

are

DISMISSED

WITH

PREJUDICE.
Partial judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 1, 2016.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE