Reyes-Gonzalez v. First Bank Puerto Rico et al
Filing
17
OPINION AND ORDER granted 4 Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 3/17/2017. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JORGE REYES-GONZALEZ
Plaintiff
vs
FIRSTBANK PUERTO RICO;
UNKNOWN COMPANIES X,Y,Z;
ANGEL COLON; JANE DOE, as well
as any other Joint Tortfeasors
Defendants
CIVIL 16-1517CCC
OPINION AND ORDER
Before the Court is defendant First Bank Puerto Rico’s (“First Bank”)
Motion to Dismiss (d.e. 4) and plaintiff Jorge Reyes-González’s Opposition
(d.e. 8).
I.
BACKGROUND
On March 22, 2016, plaintiff filed his Complaint (d.e. 1) against
defendants First Bank Puerto Rico, Angel Colon, unnamed insurance
companies, and unknown Jane Doe defendant. Plaintiff alleges jurisdiction
under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3), Titles I and V of the
Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.;
42 U.S.C. §§ 2111-12117; 12203 (“ADA”), “which incorporates by reference
section 706(f)(l) of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981 et seq., and the Age Discrimination
in Employment Act (“ADEA”) 29 U.S.C. § 621, et seq. Plaintiff also invokes the
Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 367 over claims
arising under Puerto Rico Law 44 of July 2, 1985, as amended, 1 PR Laws
Ann. § 501, et seq. ("Law 44"), Puerto Rico Law 115 of December 20, 1991,
as amended, 29 L.P.R.A. § 194, et seq. ("Law 115"), Puerto Rico Law 100 of
CIVIL 16-1517CCC
2
June 30, 1959, as amended, 29 L.P.R.A. § 146, et seq. ("Law 100"), and
Puerto Rico Law 80 of May 30, 1976, as amended, 29 L.P.R.A. § 185, et seq.
("Law 80"). (d.e. 1, pp. 3-4).
Plaintiff alleges (1) that First Bank discriminated against him by way of
harassment and “fail[ure] to accommodate” his “well-documented disability” in
violation of the ADA and Law 44; (2) that First Bank retaliated against him
“pursuant to federal law and PR Law 115 and the Occupational Safety and
Health Act and PR Law;”1 (3) that First Bank terminated him in violation of
Law 80; and (4) that First Bank discriminated against him on the basis of his
age and sex, in violation of the ADEA and Law 100, respectively.2
On May 16, 2016, defendant First Bank filed its Motion to Dismiss
(d.e. 4), arguing (1) that by failing to identify his disability, plaintiff did not plead
sufficient facts to plausibly allege that he is a “qualified individual” under the
ADA; (2) that plaintiff did not plead sufficient facts to plausibly allege adverse
employment action and causation, as are required to establish a prima facie
claim for retaliation under the ADA, ADEA, and Law 115; (3) that insofar as
plaintiff seeks relief under OSHA, no private right of action exists under that
statute; (4) that the claims against defendant Angel Colon must be dismissed
because the laws cited by plaintiff do not provide for individual liability; and
(5) that the Court should refuse to exercise supplemental jurisdiction over
plaintiff’s Puerto Rico law claims if we find that no federal claim survives.
1
Though it is far from a paragon of clarity, we read plaintiff’s “Second Cause of Action” to
allege retaliation in violation of the ADA, ADEA, OSHA, and Law 115.
2
We note that plaintiff alleges "sex discrimination" only in violation of Law 100. He cites
Title VII only insofar as its procedures and enforcement mechanisms are incorporated by the ADA.
(See d.e. 1, pp. 3-4, Jurisdictional Basis and Venue”).
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3
On June 10, 2016, plaintiff filed his Opposition (d.e. 8), raising the
following arguments: (1) plaintiff pled sufficient facts to plausibly allege that he
is a “qualified individual” under the ADA; (2) plaintiff pled sufficient facts to
plausibly allege a claim for retaliation under the ADA and Title VII; (3) plaintiff
does not seek relief under OSHA; (4) plaintiff does not seek to hold defendant
Angel Colon individually liable under any law other than Law 44; and (5) this
Court should not dismiss his federal claims, and therefore continue to exercise
supplemental jurisdiction over his Puerto Rico law claims.
II.
PLEADING STANDARD
Under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), a
defendant may move to dismiss an action for lack of federal subject-matter
jurisdiction or for failure to state a claim upon which relief can be granted.
Benítez-Navarro v. González-Aponte, 660 F. Supp. 2d 185, 188 (D.P.R. 2009).
A motion to dismiss brought under Rule 12(b)(1) is subject to the same
standard of review as a motion to dismiss under Rule 12(b)(6). Cintrón-Luna
v. Román-Bultrón, 668 F. Supp. 2d 315, 316 (D.P.R. 2009). “In Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007), the Supreme Court held that to survive a
motion to dismiss under Rule 12(b)(6), a complaint must allege ‘a plausible
entitlement to relief’.”
Martínez-Díaz v. Doe, 683 F. Supp. 2d 171,
173 (D.P.R. 2010). When ruling on a motion to dismiss the “court must accept
the complaint's well-pleaded facts as true and indulge all reasonable inferences
in the plaintiff's favor.” Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008).
Although “Twombly does not require heightened fact pleading of specifics . . .
it does require enough facts to ‘nudge [plaintiffs'] claims across the line from
conceivable to plausible’.”
Quirós v. Muñoz, 670 F. Supp. 2d 130,
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4
131 (D.P.R. 2009). “Accordingly, in order to avoid dismissal, the plaintiff must
provide the grounds upon which his claim rests through factual allegations
sufficient to ‘raise a right to relief above the speculative level’.”
Maldonado-Concepción
v.
Puerto
Rico,
683
F.
Supp.
2d
174,
175-76 (D.P.R. 2010).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court upheld
Twombly and clarified that two underlying principles must guide this Court's
assessment of the adequacy of a plaintiff's pleadings when evaluating whether
a complaint can survive a Rule 12(b)(6) motion. “First, the tenet that a court
must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.” Id. at 679. “Thus, any non-conclusory
factual allegations in the complaint, accepted as true, must be sufficient to give
the claim facial plausibility.” Id. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Id., at 678.
“Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id., at 679. “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged -but it has not ‘show[n]'- ‘that the pleader is entitled
to relief’.” Id. “Furthermore, such inferences must be at least as plausible as
any ‘obvious alternative explanation’.” Martínez-Díaz v. Doe, 683 F. Supp. 2d
at 174 (quoting Ashcroft v. Iqbal, 556 U.S. at 679-80).
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III.
5
ANALYSIS
A.
ADA Discrimination
The ADA prohibits discrimination against “a qualified individual with a
disability because of the disability of such individual in regard to . . . terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
When confronted with claims alleging ADA discrimination, we are
charged with applying the burden-shifting framework articulated by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973).
See Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 264 (1st Cir. 1999); Dichner v. Liberty Travel, 141 F.3d 24, 29-30
and n. 5 (1st Cir. 1998). At the motion to dismiss stage, a plaintiff need only
allege a plausible prima facie case of discrimination, to wit, that (1) he suffers
from a disability or handicap, as defined by the ADA; (2) he was nevertheless
able to perform the essential functions of his job, either with or without
reasonable accommodation; and (3) defendant took an adverse employment
action against him because of, in whole or in part, his protected disability.
Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005). “Adverse
employment action” often comes in the form of “not making reasonable
accommodations,” upon the employee’s request. Higgins, 194 F.3d at 264.
1.
“Disability”
The ADA defines a “disability” as “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(2)(A).
“Substantially limits,” in turn, means that the person “cannot perform a major
life function or is ‘significantly [limited in] the condition, manner or duration
under which [the] individual can perform a major life activity, as compared to
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6
the average person in the general population . . . .’” Rivera-Rodriguez v. Frito
Lay Snacks, 265 F.3d 15 (1st Cir. 2001) (quoting 29 C.F.R. § 1630.2(j)(ii)).
Normally, when considering a statutory disability, we apply the Supreme
Court’s three-step analysis articulated in Bragdon v. Abbot, 524 U.S. 624,
631 (1998). First, we consider whether plaintiff’s condition is an “impairment,”
then whether his work meets the ADA definition of a “major life activity,” and
finally whether the impairment substantially limits said major life activity.
Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 239-40 (1st Cir. 2001).
Here, plaintiff fails on the first step, as his complaint is utterly devoid of
any description of his disability. Instead, plaintiff recites that he has a “known
permanent disability” and that it is “proscribed3 [sic] by his psychiatrist in many
occasions and well documented in his personal file.” (d.e. 1, p. 2).4 Not once
does plaintiff state his diagnosis, and the “personal file,” whatever it may be,
is not attached to the complaint. Plaintiff defends this vagueness in his
Opposition, arguing, “[e]ven though we haven’t mentioned at this point the
name of the physician we can reasonably infer already, that the plaintiff is
dealing with a psychological problem since that’s a psychiatrist [sic] main
specialty.” (d.e. 8, p. 9). Remarkably, plaintiff plows on: “Subsequently, we
mentioned that the criminal incidents Plaintiff witnessed and endure [sic] in the
workplace caused him psychological problems. This instance already complies
with section (h)(2) of 29 C.F.R. § 1630, i.e. ‘mental impairment means any
psychological disorder.’” Id.
3
4
We assume plaintiff intended to use the word “prescribed.”
Other variations include: “[p]laintiff is a qualified 52-year-old man with a known documented
permanent disability as duly defined by the applicable statutes” (d.e. 1, p. 5); and “defendants
regarded plaintiff as a disable [sic] person by the phycologist [sic], limiting major life activities, and
defendants knew or should have known about it.” (d.e. 1, p. 12).
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7
We need go no further. As an element of any ADA cause of action, a
plaintiff must plead that he has a covered disability. It is clear from plaintiff’s
Complaint (d.e. 1) and his Opposition (d.e. 8) that he–or his attorney–believes
that repeating some variant of “people are aware that I’m disabled and a
physician says so” leaps with ease over the low hurdle of plausibility. It does
not. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 663.
2.
“Essential Functions”
There is no dispute as to the second prong of the prima facie analysis,
to wit, whether plaintiff was able to perform the essential functions of his job,
either with or without reasonable accommodation. Tobin, 433 F.3d at 104.
Based on the facts alleged in the Complaint (d.e. 1), plaintiff has met his
burden as to this prong.
3.
“Adverse Employment Action”
Our final inquiry would be to determine whether plaintiff has sufficiently
pleaded that First Bank took an adverse employment action against him
because of, in whole or in part, his protected disability. Tobin, supra. This
stage “requires that the plaintiff point to evidence, direct or circumstantial, of
a particularized discriminatory animus.” Higgins, F.3d at 264. Even though we
already held that plaintiff has not plausibly alleged an ADA disability, we
address the instant prong in an abundance of caution.
Plaintiff alleges that his requests for safety measures in a bank that had
suffered multiple horrific security incidents were routinely ignored. (d.e. 1,
pp. 6-7). Plaintiff also alleges that his manager made changes in his schedule
and work locations, removed his long-time client portfolios, relocated him to a
“less competitive” branch, reprimanded him for reporting the manager’s
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8
misconduct, and constructively discharged him vis-a-vis said treatment.
(d.e. 1, pp. 8-11).5
Employers are often unaware of employees’ disabilities until they are
revealed in conjunction with a request for reasonable accommodation.
Accordingly, “the ADA’s reasonable accommodation requirement usually does
not apply unless triggered by a request from the employee,” which “must be
sufficiently direct and specific” such as to “giv[e] notice that she needs a
special accommodation.” Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261
(1st Cir. 2001). “At the least, the request must explain how the accommodation
requested is linked to some disability. The employer has no duty to divine the
need for a special accommodation where the employee merely makes a
mundane request for a change at the workplace.” Id.
Even though he frequently refers to the requested security measures as
“reasonable accommodations,” nowhere in plaintiff’s Complaint does he allege
that he made First Bank aware of the ADA nature of his requests. Instead,
plaintiff frequently and specifically pleads the opposite: “Plaintiff was at all
times interested in protecting his employees and clients” (d.e. 1, p. 6); and
“First Bank . . . discriminated . . . and retaliated against him for demanding
safer working conditions as mandated by OSHA.” (d.e. 1, p. 5). Indeed, he
goes out of his way to allege that what he “only requested from his former
employer and supervisor, Mr. Angel Colon, was for them to provide safer
working conditions as mandated by OSHA, and to enforce the same
reasonable accommodations guaranteed to him and other employees.” (d.e. 1,
p. 2) (emphasis in original). Plaintiff’s conclusory allegation that "defendants
5
Though his Complaint is unclear as to whether plaintiff intended these allegations to be
considered as retaliation only, or as both retaliation and discrimination, we address them here in
an abundance of caution.
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9
regarded plaintiff as a disabled person by the psychologist, limiting major life
activities, and defendants knew or should have known about it," (d.e. 1, p. 12)
does not create a causal link between his unknown disability and the general
security measures that he requested.
The ADA’s “reasonable accommodation” requirement refers to the
special, disability-specific arrangements employers must provide to disabled
employees upon request. See 42 U.S.C. § 12112(b)(5)(A).6 Notice of the
disability-related nature of the request is integral to the causation requirement
when pleading adverse employment action. Plaintiff’s complaint fails to plead
such notice, and thus falls well below the plausibility standard set forth in
Twombly and reaffirmed in Iqbal.
Plaintiff also fails to state a plausible claim for relief for his disparate
treatment and constructive discharge allegations. Alleging (1) that he is
disabled and (2) that he was treated poorly does not amount to alleging that
the latter grew from the former. Plaintiff’s Complaint is devoid of any factual
foundation of a causal link, aside from his own averment that his mistreatment
resulted from his age, sex, and/or disability. “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S.
at 678) (citing Twombly, 550 U.S. at 557). By (1) failing to include any
reference to a specific disability, and (2) failing to plead a disability-related
adverse employment action, plaintiff’s Complaint does not contain sufficient
6
Section 102(a) of the ADA states: “No covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual in regard to . . . terms,
conditions, and privileges of employment . . . .” 42 U.S.C. § 12112(a) (2000). Discrimination
includes “not making reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A) (2000).
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10
factual allegations to create a plausible entitlement to relief under the ADA’s
discrimination provision. Accordingly, First Bank’s request that we dismiss said
claim is GRANTED.
B.
Puerto Rico Law 44
Law 44 bans discrimination against the disabled by any public or private
institution that receives funds from the Commonwealth of Puerto Rico.
Specifically, Law 44 provides that such institutions may not take any action to
“discriminate against persons with some type of physical or mental disability.”
1 P.R. Laws Ann. § 504. This statute was modeled after the ADA; it was
intended to harmonize Puerto Rico law with the federal statutory provisions of
the ADA.
See Arce v. ARAMARK Corp., 239 F. Supp. 2d 153,
169 (D.P.R. 2003). The elements of proof for a claim under Law 44 are thus
essentially the same as for a claim under the ADA. See Román Martínez v.
Delta Maint. Serv., Inc., 229 F. Supp. 2d 79, 85 (D.P.R. 2002). For the reasons
set forth in the previous section, First Bank’s request that we dismiss plaintiff’s
Puerto Rico Law 44 claims against it is GRANTED.
C.
Retaliation under the ADA, ADEA, and PR Law 115
The ADA's retaliation provision provides that “[n]o person shall
discriminate against any individual because such individual has opposed any
act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a).
Requesting a reasonable accommodation is protected conduct for purposes
of the ADA's retaliation provision, as is filing an EEOC charge. Wright v.
CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003). An ADA plaintiff may
assert a claim for retaliation even if she fails to succeed on a disability claim.
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Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997). Law 115
likewise protects employees who “provide or attempt to provide testimony or
information in an administrative, judicial, or legislative forum.” Quevedo-Gaitan
v. Sears Roebuck de Puerto Rico, Inc., 536 F. Supp. 2d 158,
171 (D.P.R. 2008).
To establish a plausible claim of retaliation, plaintiff must allege that
(1) he engaged in protected conduct, (2) he suffered an adverse employment
action, and (3) there was a causal connection between the protected conduct
and the adverse employment action. Freadman v. Metro. Prop. & Cas. Ins.
Co., 484 F.3d 91, 106 (1st Cir. 2007) (citing Wright, supra, at 478;
Calero-Cerezo v. U.S. Dept. Of Justice, 355 F.3d 6, 25 (1st Cir. 2004)).
Retaliation claims under the ADA, ADEA, and Law 115 are regularly analyzed
coterminously. See e.g. Rodriguez-Fonseca v. Baxter Healthcare Corp. of
Puerto Rico, 899 F. Supp. 2d 141, 153 (D.P.R. 2012) (noting that “the Court
assesses Plaintiff’s retaliation claims under the ADEA and the ADA under the
same standard.”); Quevedo–Gaitan, 536 F. Supp. 2d at 171 (analyzing
Law 115 coterminously with ADA retaliation claims); Torres–Oliveras v. Special
Care Pharmacy Servs., 2011 WL 2199354 at * 8 (D.P.R. Jun. 6, 2011)
(denying dismissal of Law 115 claim “under the same reasoning that was
applied to plaintiff's retaliation claim under the ADA.”).
1.
Protected Conduct
In the preceding section we held that plaintiff’s requests for security
measures, as pleaded, do not amount to a request for a reasonable
accommodation under the ADA. Accordingly, the only “protected conduct”
alleged in plaintiff’s Complaint (d.e. 1) is his EEOC charge. We have no
knowledge of the contents of that charge because it is not before the Court.
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Nevertheless, First Bank does not contest that the act of filing an EEOC charge
is protected conduct within the contemplation of the relevant retaliation
provisions.
2.
Adverse Employment Action
Plaintiff alleges that his manager made changes in his schedule and work
locations, removed his long-time client portfolios, relocated him to a “less
competitive” branch, and reprimanded him for reporting the manager’s
misconduct. (d.e. 1, pp. 8-10). He also alleges that the aforementioned acts
caused him such discomfort that he was constructively discharged. (d.e. 1,
p. 11).
3.
Causation
Plaintiff’s Complaint (d.e. 1) repeatedly alleges retaliation in reference to
his requests for security measures in compliance with OSHA. He begins with
the allegation that First Bank “retaliated against him for demanding safer
working conditions as mandated by OSHA.” (d.e. 1, p. 5). He further alleges
that his requests for a man trap and an emergency exit “marked the beginning
of the constant retaliatory actions and discriminatory acts taken by Mr. Colón
and First Bank.” (d.e. 1, p. 6). And if any doubt remains, he “felt persecuted,
undermined, suffered anxiety attacks and retaliated [sic] for demanding safer
working conditions for him and his employees which he supervised.” (d.e. 1,
p. 8).
At the very end of his facts section, plaintiff includes the cryptic
allegation that his March 31, 2015 EEOC charge “resulted in First Bank’s
retaliatory actions to increase.” (d.e. 1, pp. 10-11).
As we have already made clear, plaintiff’s requests for security measures
do not amount to “requesting an accommodation,” and therefore any
“retaliation” alleged to have resulted from them does not amount to the type of
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retaliation made unlawful by the ADA, ADEA, and Law 115. Tacking onto the
end of the Complaint the threadbare, conclusory allegation that his EEOC
charge “resulted in First Bank’s retaliatory actions to increase,” and “[t]he
retaliatory actions, failure to accommodate the plaintiff and the constant safety
hazards in the workplace were the cornerstone for Plaintiff’s decision to quit,”
without more, do not bring plaintiff’s allegations into the realm of plausibility.
Indeed, plaintiff’s presumption that relevant retaliatory actions existed prior to
his alleged EEOC charge and only “increased” thereafter belies the meaning
of the word retaliation in the context of the statutes he cites. Accordingly, First
Bank’s request that we dismiss plaintiff’s retaliation claims under the ADA,
ADEA, and Law 115 is GRANTED.
D.
The Occupational Safety and Health Act
Plaintiff’s “Second Cause of Action” clearly seeks relief under OSHA.
(d.e. 1, pp. 14-15). Nevertheless, he argues in his Opposition that such was
not his intent. (d.e. 8, p. 15). Whichever way the wind has come to blow, the
parties are now in agreement that there is no OSHA claim before the Court.
First Bank’s request that we dismiss any and all claims alleged under OSHA
is GRANTED.
E.
Co-defendant Angel Colón
Appearing defendant First Bank moves to dismiss all federal claims
against co-defendant Colon on the grounds that no individual liability attaches.
Plaintiff agrees, clarifying that his only claim against Colon is under Puerto Rico
Law 44, which provides for individual liability.
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On the one hand, we doubt that First Bank may move to dismiss
plaintiff’s claims against another party. On the other hand, we held, supra, that
plaintiff’s Complaint does not plausibly allege entitlement to relief under
Law 44. We need not address this further. Co-defendant Colon has not
appeared in this case, and plaintiff has not provided proof of service upon him
within the ninety days mandated by Fed. R. Civ. P. 4(m).
Accordingly,
plaintiff’s Law 44 claim against co-defendant Angel Colon will be DISMISSED,
WITHOUT PREJUDICE.
F.
Remaining Puerto Rico Law Claims
At this point, all that remains are plaintiff’s ADEA discrimination
claim–which First Bank did not move to have dismissed–and his state law
claims under Law 100 (age and sex discrimination), and Law 80 (wrongful
discharge). Because plaintiff’s federal ADEA discrimination claim remains
before the Court, we will continue to exercise supplemental jurisdiction over
plaintiff’s claims under Law 100 and Law 80.
G.
Opportunity to Amend the Complaint
Finally, we note that plaintiff has attempted to address the deficiencies
in his Complaint by making reference to his alleged EEOC charge7 and
attaching English -and Spanish- language exhibits to his Opposition to the
motion to dismiss (d.e. 8). The Opposition brief itself also included factual
averments as to the nature of his alleged disability and the reasonable
accommodation requested which, if incorporated in the original complaint,
7
Plaintiff’s EEOC charge is not attached to his Complaint or his Opposition, and it has not
been otherwise presented to the Court.
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15
could have possibly met the plausibility pleading standard. While plaintiff’s
arguments are inconsistent with well-established rules of local and civil
procedure, and the fate of a motion to dismiss depends strictly on the
allegations contained within the four corners of the complaint, we will permit
plaintiff to file an amended complaint, by no later than MARCH 27, 2017, in
which he will be allowed to plead the facts adduced in his opposition as support
for his now dismissed substantive claims under the ADA and Puerto Rico
Law 44 and for the retaliation claims under the ADA, ADEA, and PR Law 115.
Plaintiff is admonished, however, that said amended complaint must separate
ALL of his causes of action, including those claims that have not been
dismissed, and state under each separate cause of action the factual
allegations pertaining to it which shall support the same in full compliance with
the Twombly and Iqbal plausibility standards. The allegations number 12
through 43 are a loose narrative of events which shall not be included again in
the Amended Complaint for there is no way of knowing to which of the different
causes of action they pertain. Additionally, these specific allegations and
plaintiff’s general form of pleading violate the clear directive of Fed. R. Civ.
P. 8(d)(1) that “[e]ach allegation must be simple, concise, and direct.” Failure
to timely and strictly comply with this Order will result in the immediate entry of
a partial judgment dismissing his substantive claims under the ADA and Puerto
Rico Law 44 and his retaliation claims under the ADA, ADEA, and PR Law 115
for the reasons stated in this Order.
IV.
CONCLUSION
For the aforementioned reasons, defendant First Bank’s Motion to
Dismiss (d.e. 4) is GRANTED. Accordingly, if plaintiff Jorge Reyes-González
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16
fails to amend his complaint by the deadline established above and in strict
compliance with the instructions provided, partial judgment will then be entered
DISMISSING WITH PREJUDICE his claims against First Bank under
(1) Titles I and V of the Americans with Disabilities Act, as amended, 42 U.S.C.
§ 12101 et seq.; 42 U.S.C. § 12111-12117; 12203; (2) the Age Discrimination
in Employment Act, 29 U.S.C. § 621, et seq. (for retaliation); (3) Puerto Rico
Law 44 of July 2, 1985, as amended, 1 PR Laws Ann. § 501, et seq.; and
(4) Puerto Rico Law 115 of December 20, 1991, as amended, 29 L.P.R.A.
§ 194, et seq., as well as DISMISSING WITHOUT PREJUDICE (5) his claim
against co-defendant Angel Colón under Puerto Rico Law 44 of July 2, 1985,
as amended, 1 PR Laws Ann. § 501, et seq.
SO ORDERED.
At San Juan, Puerto Rico, on March 17, 2017.
S/CARMEN CONSUELO CEREZO
United States District Judge
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