Mercado-Reyes v. City of Angels, Inc. et al

Filing 66

MEMORANDUM AND ORDER re 36 Motion to Dismiss for Lack of Jurisdiction. Vazquez Home Care, CRL's motion to dismiss the amended complaint pursuant to Rule 12(b)(1) is DENIED. Signed by Judge Francisco A. Besosa on 06/05/2017. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ARIANNA L. MERCADO-REYES,
Plaintiff,
v.

Civil No. 16-1657 (FAB)

VAZQUEZ HOME CARE, CRL; MARGA
MANAGEMENT, LLC; ABC INSURANCE
CO.; JOHN DOE CORP.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge
Before the Court is defendant Vazquez Home Care, CRL (“VHC”)’s
motion to dismiss plaintiff Arianna Mercado-Reyes (“Mercado”)’s
amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(1).

(Docket No. 36.)

Plaintiff opposed the motion, Docket

No. 61, and defendant replied, Docket No. 65.

For the reasons set

forth below, defendant’s motion is DENIED.
I.

STANDARD OF REVIEW
Rule 12(b)(1) permits a court to dismiss a complaint when the

Court’s subject-matter jurisdiction is not properly alleged.
R. Civ. P. 12(b)(1).

Fed.

The standard applied to a Rule 12(b)(1)

motion is similar to that of a Rule 12(b)(6) motion because the
Court accepts the complaint’s well-pled facts as true and views
them —and the inferences drawn from them— in the light most

Civil No. 16-1657 (FAB)
favorable to the pleader.

2
See Viqueria v. First Bank, 140 F.3d

14, 20 (1st Cir. 1998); see also Soto v. McHugh, 158 F.Supp.3d 34,
45-46 (D.P.R. 2016) (Gelpi, J.).
construe the complaint liberally.”

Thus, a “district court must
Aversa v. United States, 99

F.3d 1200, 1210 (1st Cir. 1996).
II.

FACTUAL ALLEGATIONS IN THE AMENDED COMPLAINT
The Court takes the following facts as true, as pled in

plaintiff’s amended complaint.
On September 24, 2014, Mercado began working for City of
Angels Home 1 in Bayamon, Puerto Rico.

(Docket No. 32 at p. 4.)

Her duties included assisting the elderly with their medications,
baths, food, and performing other chores.

Id.

Mercado informed

the then-director of the home that she was pregnant.

Id. at 5.

Later, Marga Management, LLC (“Marga”) began operating the home
and continued to employ Mercado.
operating the home.

Id. at 5.

After Marga, VHC began

Id.

Casiano-Torres (“Casiano”) acquired the administration of the
nursing home on September 9, 2015.

Id.

That day, he informed the

employees that pregnant employees should be assigned to easier
shifts.

Id. at 6.

Two days later, however, Casiano held a meeting

where he notified the employees of changes in the operation of the

1

Angel Casiano-Torres was the home’s first owner.
at p. 3.)

(Docket No. 32

Civil No. 16-1657 (FAB)

3

home. Id. Supervisor Linda Bermudez (“Bermudez”) assigned Mercado
“the graveyard shift” 2 and Mercado’s schedule was shortened.

Id.

at p. 6.
On September 21, 2015, Bermudez called Mercado and informed
her that Bermudez, Casiano, the president of VHC, Katty VazquezOtero (“Vazquez”), and another supervisor, Lizbeth Figueroa, held
a meeting, during which they decided that they did not want to
have pregnant women working in the home. Id. at 7-8. They informed
Mercado that she should not return to work until after her baby
was born.

Id.

III. DISCUSSION
A.

Whether VHC Constitutes as “Employer” Under Title VII
VHC first asks the Court to grant its motion to dismiss

on all claims because it should not be considered an employer
pursuant to Title VII because it had less than fifteen employees
during

the

statutory

period

before

and

after

the

discrimination took place.

(Docket No. 36-1 at p. 1.)

this

provides

contention,

Vazquez

the

Court

with

alleged

To support
a

personal

declaration under penalty of perjury alleging that it “never had
employment relation with [fifteen] or more individuals for each
working day in [twenty] or more weeks during a particular year.”

2

The graveyard shift (10:00 p.m. to 2:00 a.m.) consists of giving
patients baths and doing laundry. (Docket No. 32 at p. 7.)

Civil No. 16-1657 (FAB)

4

(Docket No. 36-2 at p. 1.)

Plaintiff argues that VHC did have

fifteen or more employees at the time of discrimination.

(Docket

No. 61.)
Generally, Title VII of the Civil Rights Act of 1964
prohibits

discrimination

against

employees

“because

of

individual’s race, color, religion, sex, or natural origin.”
U.S.C. § 2000e(b)-2.

such
42

Title VII only applies to an employer, which

the statute defines as “a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding
calendar year.”

42 U.S.C. § 2000e(b).

Title VII defines an

employee as “an individual employed by an employer.”
§ 2000e(f).

The

Supreme

Court

has

addressed

the

42 U.S.C.
circular

definition of employee in federal anti-discrimination laws in
several cases, creating a standard to determine who is considered
an employee pursuant to Title VII.

See Nationwide Mut. Ins. Co.

v. Darden, 503 U.S. 318, 321, 112 S. Ct. 1344, 1347, 117 L.Ed. 2d
581 (U.S. 1992); Walters v. Metro. Edu. Enter., Inc., 519 U.S.
202, 204, 117 S.Ct. 660, 136 L.Ed.2d (1997).
To be considered an employee, there must be an employment
relationship with that individual at that time, regardless of
whether or not that individual worked on the day in question.
Walters, 519 U.S. 202, 204, 117 S.Ct. 660, 136 L.Ed.2d (1997).

Civil No. 16-1657 (FAB)

5

The First Circuit Court of Appeals has stated that the fifteen
“employee

question

will

frequently,

but

not

necessarily,

be

addressed in two parts: application of the ‘payroll method,’
followed by application of traditional agency law principles for
defining

employer

payroll.”

and

employee,

if

the

individual

is

on

the

De Jesus v. LTT Card Serv., Inc., 474 F.3d 16, 21 (1st

Cir. 2007).

According to the documents Mercado submitted, VHC had

fifteen or more employees on its payroll and Mercado’s name was
also on the payroll.

(Docket Nos. 61-4 and 61-8.) VHC, therefore,

constitutes as employer pursuant to Title VII.
B.

Successorship
In her opposition, Docket No. 61, Mercado contends that

VHC is a successor employer, and therefore satisfies the “twenty
or more calendar weeks in the current or preceding calendar year”
employer requirement in Title VII.
disagrees.

42 U.S.C. §2000e(b).

VHC

(Docket No. 65.)
A successor employer is an employer who succeeds another

in the business ownership.

See Rodriguez v. Executive Airlines,

Inc., 180 F.Supp.3d 130, 137 (D.P.R. 2016) (Delgado-Hernandez,
J.).

The Supreme Court of Puerto Rico has defined a successor

employer pursuant the National Labor Retaliations act.
135.

Id. at

To make the determination, the court examines the following

elements:

Civil No. 16-1657 (FAB)

6

(1) Whether there is a substantial continuity of the
same business activity with the same name involving
production of the same products or rendering of the same
services; (2) Use of the same facility for the
operations; (3) Use of the same machinery and equipment;
(4) Maintenance of the same managerial and supervisory
personnel; (5) Employment of the same or substantially
the same workforce; (6) Continued operation of the
business during the transition period; and (7) The
predecessor’s
ability
to
provide
remedy
to
the
prevailing plaintiff.
Id.
Here, VHC continued to use the previous employer’s name
“City of Angels.” VHC continued the same operations of the nursing
home, used the same facility, equipment and machinery.

VHC also

maintained previous personnel and employees, including Mercado,
and even had the same patients.

Furthermore, the nursing home

continued to operate in the transition period, and the predecessor
employer would have the ability to provide Mercado with a remedy
given the same circumstances.

Accordingly, the court finds that

VHC is a successor employer.
Because VHC was a successor employer and had fifteen or
more employees, it qualifies as an employer pursuant to Title VII.
The Court, therefore, does not lack jurisdiction over the subject
matter of this suit.

Civil No. 16-1657 (FAB)
IV.

7

Conclusion
For the reasons discussed above, VHC’s motion to dismiss the

amended complaint pursuant to Rule 12(b)(1), Docket No. 36, is
DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 5, 2017.

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