Pizarro-Correa v. Puerto Rico Internal Revenue Department et al
Filing
36
OPINION AND ORDER finding as moot 12 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 19 Motion to Dismiss. Signed by Judge Francisco A. Besosa on 07/31/2017. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUZ PIZARRO-CORREA,
Plaintiff,
v.
Civil No. 16-2598 (FAB)
PUERTO RICO INTERNAL
DEPARTMENT, et al.,
REVENUE
Defendants.
OPINION AND ORDER 1
BESOSA, District Judge.
Plaintiff Luz Pizarro-Correa (“Pizarro”) brought this action
against the Puerto Rico Internal Revenue Department, also known as
Departamento de Hacienda (“Hacienda”), the Commonwealth of Puerto
Rico
(“Commonwealth”),
and
Alberto
Cardona-Crespo
(“Cardona”)
(collectively “defendants”) alleging violations of the Americans
with Disabilities Act (“ADA”), and Title VII of the Civil Rights
Act of 1964 (“Title VII”).
Pizarro also invokes the supplemental
jurisdiction of this Court to adjudicate her claims pursuant to
Puerto Rico Law 44 (“Law 44”), P.R. Laws Ann. tit. 1, §§ 501 et
seq.; Puerto Rico Law 115 (“Law 115”), P.R. Laws Ann. tit. 29, §§
194 et seq.; and Puerto Rico Law 100 (“Law 100”), P.R. Laws Ann.
1
Audrey Mulholland, a second-year student at American University Washington
College of Law, assisted in the preparation of this Opinion and Order.
Civil No. 16-2598 (FAB)
2
tit. 29, §§ 146 et seq.
Defendants move to dismiss 2 Pizarro’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
(“Rule 12(b)(6)”).
(Docket No. 19.)
For the reasons set forth
below, the Court GRANTS IN PART and DENIES IN PART defendants’
motion to dismiss.
I.
STANDARD OF REVIEW
Pursuant to Rule 12(b)(6), defendants may move to dismiss an
action for failure to state a claim upon which relief can be
granted.
See Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6)
motion, a complaint must contain sufficient factual matter “to
state a claim to relief that is plausible on its face.”
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Bell Atl.
The Court must decide
whether the complaint alleges sufficient facts to “raise a right
to relief above the speculative level.”
Id. at 555.
In doing so,
the Court is “obligated to view the facts of the complaint in the
light
most
favorable
to
the
ambiguities in their favor.”
plaintiffs,
2
case
may
be
used
as
to
resolve
any
Ocasio-Hernandez v. Fortuño-Burset,
640 F.3d 1, 17 (1st Cir. 2011).
facie
and
a
Although “the elements of a prima
prism
to
shed
light
upon
the
Defendants filed a motion to dismiss on December 28, 2016. (Docket No. 12.)
Two days later, defendants filed a motion for leave to correct nunc pro tunc
the motion to dismiss because of “various mistakes” and “grammatical
oversights.”
(Docket No. 17.)
The Court granted this motion, permitting
defendants to file a motion to dismiss nunc pro tunc on January 3, 2017. (Docket
No. 19.) The motion to dismiss nunc pro tunc is now before the Court. Id.
Accordingly, the initial motion to dismiss is moot. (Docket No. 12.)
Civil No. 16-2598 (FAB)
3
plausibility of the claim,” it is “not necessary to plead facts
sufficient to establish a prima facie case” in order to survive a
motion to dismiss.
49,
54
(1st
Cir.
discrimination
standard.
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d
case
Id.
at
2013).
is
p.
The
an
51
prima
evidentiary
(“the
prima
facie
analysis
model,
a
case
facie
not
is
in
a
pleading
not
the
appropriate benchmark for determining whether a complaint has
crossed
the
plausibility
threshold.”).
A
complaint
that
adequately states a claim may still proceed even if “recovery is
very remote and unlikely.”
Ocasio-Hernandez, 640 F.3d at 13
(internal quotation marks and citations omitted).
II.
FACTUAL BACKGROUND
The Court takes the following facts as true, as pled in the
complaint.
(Docket No. 1.)
Pizarro worked for Hacienda as a
revenue collections officer for approximately five and a half
years.
Id. at p. 1.
Pizarro “suffered from mental illness” and
was diagnosed with major severe depression and bipolar disorder.
Id.
Hacienda received notice of Pizarro’s mental health condition
on or about September 4, 2013, when she submitted medical notes
from her psychologist to her supervisor. 3
3
Id. at p. 2.
Pizarro
Pizarro states only that she provided her employer with “medically certified
excuses from work.”
(Docket No. 1 at p. 2.)
Pizarro does not specify the
conduct or tasks that the medical notes purportedly excused.
Civil No. 16-2598 (FAB)
4
claims one of her supervisors, Carmen Mercado, was fully aware of
her medical conditions.
Id.
Pizarro avers that in 2015 defendant Cardona, a male coworker
at the Arecibo office, made sexually explicit and derogatory
comments to Pizarro.
Id. at p. 5.
Cardona’s unwelcomed comments
included telling Pizarro to dance on a stripper pole. 4 Id. Pizarro
informed her supervisor, Sylvia Serrano, of Cardona’s remarks, but
Hacienda took no action.
Cardona
of
complaint
Pizarro’s
so
that
Id.
Instead, Serrano allegedly notified
intention
Cardona
complaint against Pizarro.
to
could
Id.
file
a
sexual
pre-emptively
harassment
file
Id.
investigated
transferred
Bayamon office.
Id.
claim,
own
Subsequently, Cardona filed a
sexual harassment complaint against Pizarro.
Cardona’s
his
Pizarro
was
While Hacienda
to
the
Meanwhile, Pizarro’s sexual harassment
complaint against Cardona was not investigated.
Id.
Pizarro alleges that her transfer to the Bayamon office
exacerbated
consequently,
she
requested a return to the Arecibo office as an accommodation.
Id.
at p. 6.
her
mental
health
condition;
During Pizarro’s time at the Bayamon office, Hacienda
allegedly shared her mental health condition with another coworker who looked for an opportunity to discredit her and remove
4 The complaint states that Cardona told Pizarro to “enviar al tubo a bailar,”
which the complaint translates into English as telling her to go “strip-pole
dancing.” (Docket No. 1 at p. 5.)
Civil No. 16-2598 (FAB)
5
her from the workplace.
Id.
Pizarro was suspended without pay
when a co-worker informed Hacienda that she was afraid to share
the breakroom with Pizarro during meals.
Id.
While at the Bayamon
office, Pizarro applied for long-term disability benefits through
MetLife insurance because she needed “periodic medical evaluations
and rehabilitation” for her illness.
notified
Hacienda
November 11, 2015.
that
Hacienda
her
Id. at p. 7.
application
was
MetLife
accepted
on
Id.
completed
the
sexual
harassment
investigation
regarding Cardona’s accusations against Pizarro on October 8,
2016.
Id.
The report “exonerated the plaintiff of the alleged
harassment” charge.
Id. at p. 6.
Pizarro, however, was not
notified of this outcome until after her employment was terminated.
On December 22, 2015, Pizarro received notification of her
dismissal from Hacienda, effective retroactively on October 11,
2015. 5
Id.
Hacienda premised its decision to terminate Pizarro’s
employment on the acceptance of her application for long-term
disability benefits.
Id. at p. 12.
On December 30, 2015, plaintiff filed a second claim with the
Equal
5
Employment
Opportunity
Commission
(“EEOC”)
alleging
The Court is relying upon the termination date provided in the factual
allegations section of the complaint. The first page of the complaint, however,
states that Pizarro’s termination date was March 7, 2016. (Docket No. 1 at
p. 1.)
Civil No. 16-2598 (FAB)
6
disability discrimination by Hacienda. 6 Id. at p. 3.
On March 30,
2016, Pizarro filed a third and final claim with the EEOC alleging
sex discrimination, disability discrimination, and retaliation by
Hacienda. 7
Id.
The EEOC closed all of Pizarro’s claims in June
2016, and issued three right-to-sue letters.
(Docket No. 1-3.)
Pizarro filed her complaint on September 7, 2016.
(Docket No. 1.)
III. DISCUSSION
A.
Individual Liability Pursuant to the ADA, Title VII, and
Puerto Rico Law
Defendants contend that Cardona cannot be sued in his
individual capacity pursuant to the ADA.
(Docket No. 19 at p. 8.)
Pizarro counters that the only claims brought against Cardona are
for gender discrimination and for the creation of a hostile working
environment. 8 (Docket No. 20 at p. 1.)
Well-established precedent
establishes that there is no individual liability pursuant to the
ADA or Title VII.
Courts within this district and sister circuits
have concluded that the language of the ADA “does not provide for
6
Pizarro filed her first EEOC claim on March 24, 2015, claiming
discrimination and retaliation by Hacienda. (Docket No. 1 at p. 3.)
sexual
7
The EEOC determined that “based upon its investigation, the EEOC is unable to
conclude that the information obtained established violations of the statutes.”
(Docket No. 1-3.) Furthermore, the EEOC stipulated that its determination “does
not certify that the respondent is in compliance with the statutes.” Id.
8
The complaint merely alleges that Cardona sexually harassed Pizarro and created
a hostile work environment. (Docket No. 1 at p. 4.) Because Pizarro does not
enumerate the precise statutory claims brought against Cardona, in an abundance
of caution, the Court will consider individual liability pursuant to all claims.
Civil No. 16-2598 (FAB)
7
individual liability, but only for employer liability.”
Cardona-
Roman v. Univ. of P.R., 799 F. Supp. 2d 120, 128 (D.P.R. 2011)
(Dominguez, J.); see also Spiegel v. Schulmann, 604 F.3d 72 (2d
Cir. 2010); Wathen v. Gen. Elec. Co., 115 F.3d 400 (6th Cir. 1997);
Mason v. Stallings, 82 F.3d 1007 (11th Cir. 1996).
The First
Circuit Court of Appeals has held that there is “no individual
employee liability under Title VII” because individuals are not
encompassed within the stautory definition of employer.
Fantini
v. Salem State College, 557 F.3d 22, 30 (1st Cir. 2009).
Decisions regarding the scope of liability pursuant to
the Puerto Rico state law claims mirror federal case law.
Law 44
was modeled after the ADA, “and as the ADA does not provide for
individual liability, neither should Law 44.”
F.
Supp.
omitted).
likewise
2d
at
131
(D.P.R.
2011)
Cardona-Roman, 799
(Dominguez,
J.)
(citation
Law 115, which prohibits retaliation in the workplace,
contains
no
provision
imposing
individual
liability.
Torres v. House of Representatives of the Commonwealth of P.R.,
858 F. Supp. 2d 172, 193 (D.P.R. 2012) (Gelpi, J.) (“With regards
to
personal
supervisor
liability
under
Puerto
Rico’s
statute
prohibiting retaliation in the workplace, Law 115, the Puerto Rico
Court of Appeals found that it stems from the text of the act that
the sanctions imposed therein are only against the employer, and
Civil No. 16-2598 (FAB)
thus,
the
statute
8
contains
no
provision
imposing
personal
liability.”)
Law 100 by contrast, allows individuals to be sued in
their personal capacity only if they are “employees of a covered
entity within [its] scope.”
Ortiz-Rodriguez v. Consorcio Del
Noroeste, Case No. 14-1529, 2016 WL 1255694, at *13 (D.P.R. Mar.
29, 2016) (Gelpi, J.), appeal dismissed (Aug. 5, 2016).
Law 100
was enacted to expand protection from discrimination to employees
in the private sector.
Huertas-Gonzalez v. Univ. of P.R., 520 F.
Supp. 2d 304, 314 (D.P.R. 2007) (Dominguez, J.).
100
does
not
apply
to
employees
of
the
Accordingly, Law
Commonwealth
or
its
instrumentalities that do not function as businesses or private
entities.
See Hernandez-Payero v. Puerto Rico, 493 F. Supp. 2d
215, 233 (D.P.R. 2007) (Besosa, J.) (concluding that “since the
Puerto Rico Police Department is an arm of the state and does not
function
as
a
business
or
private
entity,
Law
100
is
not
applicable.”); Alberti v. Univ. of P.R., 818 F. Supp. 2d 452, 481
(D.P.R. 2011), aff’d sub nom, Alberti v. Carlo-Izquierdo, 548 F.
App’x 625 (1st Cir. 2013) (holding that Law 100 does not apply to
“the
arms
of
the
state
and/or
individual
defendants
working
therein”). Hacienda, as the tax collection agency for Puerto Rico,
is an instrumentality of the Commonwealth that falls beyond the
purview of Law 100.
Because Cardona is employed by an entity that
Civil No. 16-2598 (FAB)
9
is not covered pursuant to Law 100, he cannot be held individually
liable.
subject
Because none of the asserted causes of actions could
Cardona
to
individual
liability,
all
claims
against
Cardona are DISMISSED.
B.
Eleventh Amendment Immunity: ADA and Puerto Rico State
Law Claims
Defendants next contend that the Eleventh Amendment bars
all ADA and Puerto Rico state law claims in federal court against
the Commonwealth and Hacienda.
(Docket No. 19 at pp. 14-18.)
The
Eleventh Amendment “prevents private individuals from bringing
suit against non-consenting states.” 9
Garcia-Hicks v. Vocational
Rehab. Admin., 25 F. Supp. 3d 204, 209 (D.P.R. 2014) (Besosa, J.)
(citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001)).
The immunity established by the Eleventh Amendment
also serves to “protect the arms or alter egos of the state.”
Garcia-Hicks, 25 F. Supp. 3d at 210 (citing Ainsworth Aristocratic
Int’l Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d 1034, 1036 (1st
Cir. 1987)).
The Commonwealth is considered a state for the
purpose of Eleventh Amendment immunity.
Metcalf & Eddy, Inc. v.
P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939 n.3 (1st Cir. 1993).
Hacienda, an instrumentality of the Commonwealth, qualifies as an
9
The Eleventh Amendment states that: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
Civil No. 16-2598 (FAB)
arm of the state.
10
See Vaqueria Tres Monjitas, Inc. v. Irizarry,
587 F.3d 464, 477 (1st Cir. 2009) (“An administrative arm of the
state is treated as the state itself for the purpose of the
Eleventh Amendment, and it thus shares the same immunity.”); Fin.
of Am. Reverse LLC v. Almodovar-Figueroa, Civil No. 16-3017, 2017
WL 2656108, at *3 (D.P.R. June 30, 2017) (Delgado-Colon, J.)
(stating
Hacienda
is
an
instrumentality
of
the
Puerto
Rico
government).
There
are
numerous
grant of sovereign immunity.
exceptions
to
the
constitutional
For instance, the Eleventh Amendment
does not bar suit in federal court when:
(1) the state consents
to suit; (2) the state waives its immunity by statute; (3) Congress
abrogates
state
immunity;
or
(4)
warrant a state being subject to suit.
F.2d at 938 (citations omitted).
constitutional
imperatives
Metcalf & Eddy, Inc., 991
The Supreme Court has provided
an additional route to relief in federal court pursuant to the Ex
Parte Young doctrine, which precludes states from invoking the
Eleventh Amendment as a defense “where prospective injunctive
relief, not involving damages or property transfer, is sought
against named state officials for a violation of federal law.”
Neo Gen Screening, Inc. v. New England Newborn Screening Program,
187 F.3d 24, 28 (1st Cir. 1999) (citing Idaho v. Coeur d’Alene
Civil No. 16-2598 (FAB)
11
Tribe of Idaho, 521 U.S. 261, 276-77 (1997) (emphasis added)); see
also Ex Parte Young, 209 U.S. 123 (1908).
Pizarro claims that defendants discriminated against her
by failing to accommodate her disability reasonably in violation
of the ADA.
(Docket No. 1 at p. 11.)
Although Pizarro fails to
specify the sections of the ADA from which her claims arise,
employment discrimination is prohibited by Title I.
§§
12111-12117.
sovereign
While
immunity
Congress
fully
when
enacting
the
See 42 U.S.C.
intended
ADA,
the
to
abrogate
Supreme
Court
concluded in Garrett that “Title I of the ADA was not a valid
congressional abrogation” and that Eleventh Amendment immunity
still applied.
Garcia-Hicks, 25 F. Supp. 3d at 210 (citing
Garrett, 531 U.S. at 374)).
Consequently, Pizarro’s Title I claim
pursuant to the ADA is barred against the Commonwealth and Hacienda
by the Eleventh Amendment.
In
response
to
defendants’
motion
to
dismiss
for
Eleventh Amendment sovereign immunity, Pizarro waived her claim
for monetary compensation pursuant to the ADA, making clear that
she requests only injunctive relief.
(Docket No. 20 at p. 10.)
An action seeking injunctive relief pursuant to the ADA can be
sustained only as to named state officials.
Melendez-Gonzalez v.
Oficina de Administracion de los Tribunales, 218 F. Supp. 2d 227,
231 (D.P.R. 2002) (Laffitte J.) (“Any claims for injunctive relief
Civil No. 16-2598 (FAB)
12
may only be brought against the named individual defendants in
their official capacity.”).
Because Pizarro has not named any
state official purportedly responsible for violations of the ADA,
all ADA claims are DISMISSED.
With regard to the causes of action stemming from Puerto
Rico law, the Commonwealth has not waived sovereign immunity.
Pagan v. Puerto Rico, 991 F. Supp. 2d 343, 347 (D.P.R. 2014)
(Casellas, J.).
The First Circuit Court of Appeals has held that
the Commonwealth “has not waived its Eleventh Amendment sovereign
immunity under Law 44 because there is no specific language in the
statute indicating that Puerto Rico intended to make itself subject
to
[.
.
.]
federal
discrimination.”
court
for
disability-based
employment
Torres v. Junta de Gobierno de Servicios de
Emergencia, 91 F. Supp. 3d 243, 255 (D.P.R. 2015) (Gelpi, J.)
(citing Acevedo Lopez v. Police Dep’t of P.R., 247 F.3d 26, 29
(1st Cir. 2001)). Furthermore, various judges within this district
have held on numerous occasions that sovereign immunity shields
the Commonwealth and its instrumentalities from Law 100 and Law
115 claims in federal court.
See Lugo-Matos v. P.R. Police Dep’t,
Civil No. 14-1839, 2016 WL 742912, at *6 (D.P.R. Feb. 24, 2016)
(Garcia-Gregory, J.); Vizcarrondo v. Bd. of Trs. of Univ. of P.R.,
139 F. Supp. 2d 198, 208 (D.P.R. 2001) (Dominguez, J.); Dogson v.
Univ. of P.R., 26 F. Supp. 2d 341, 343 (D.P.R. 1998) (Dominguez,
Civil No. 16-2598 (FAB)
13
J.) (holding that a Law 100 discrimination claim based on sex is
barred by the Eleventh Amendment).
In sum, the Eleventh Amendment bars claims pursuant to
Law
44,
Law
100,
and
Law
115
in
federal
court
Commonwealth and Hacienda, as an instrumentality.
against
the
Accordingly,
Pizarro’s claims stemming from Puerto Rico law are DISMISSED.
C.
Title VII Claims
Pizarro’s
discrimination,
remaining
hostile
work
violation of Title VII. 10
claims
are
environment,
for
and
gender
retaliation
in
Defendants contend that Pizarro has
failed to allege sufficient facts plausibly to sustain any of these
claims.
1.
Gender Discrimination
Pizarro
claims
that
defendants
against her on the basis of her gender.
In support of this claim,
she offers a number of factual allegations:
ignored
her
sexual
harassment
claims
discriminated
(1) her employers
against
Cardona
while
selectively choosing to investigate Cardona’s claims against her;
(2) Hacienda withheld the results of the investigation, which
absolved
10
her
of
wrongdoing,
until
after
terminating
her
These claims survive the Eleventh Amendment barrier because Congress
abrogated sovereign immunity pursuant to Title VII by expressly authorizing
actions for damages against a state. See Lipsett v. Univ. of P.R., 864 F.2d
881, 885 (1st Cir. 1988).
Civil No. 16-2598 (FAB)
14
employment; and (3) Cardona remained at the Arecibo office while
Pizarro was transferred to the Bayamon office.
pp. 11-12.)
(Docket No. 1 at
These allegations, Pizarro argues, assert a gender
discrimination claim predicated on the disparate treatment of
Pizarro and Cardona, her male co-worker.
In relevant part, Title VII prohibits an employer
from “discriminat[ing] against any individual with respect to his
compensation,
terms,
conditions,
or
privileges
because of such individual’s . . . sex.”
of
employment,
42 U.S.C. § 2000e-2(a).
Where direct evidence of gender discrimination is lacking, claims
are subject to the burden shifting analysis articulated by the
Supreme Court in McDonnell Douglas.
Lockridge v. Univ. of Me.
Sys., 597 F.3d 464, 470 (1st Cir. 2010); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973).
analysis,
the
establishing
plaintiff
a
prima
shoulders
facie
case
the
of
According to this
initial
gender
burden
of
discrimination.
Lockridge, 597 F.3d at 470.
The elements of a prima facie gender discrimination
claim depend on the nature of the asserted claim.
A claim founded
upon disparate treatment requires the plaintiff to allege that:
“(1) she is a member of a protected class, (2) she possessed the
necessary qualifications and adequately performed her job, (3) she
suffered an adverse employment action, and (4) similarly situated
Civil No. 16-2598 (FAB)
15
members outside her protected class were treated more favorably.”
Adkins v. Atria Senior Living, Inc., 113 F. Supp. 3d 399, 412 (D.
Me. 2015) (citing McDonnell Douglas Corp., 411 U.S. at 793).
Plaintiff need only demonstrate “a small showing that is not
onerous and is easily made.”
Che v. Mass. Bay Transp. Auth., 342
F.3d 31, 38 (1st Cir. 2003) (internal quotation marks and citations
omitted).
Having
reviewed
the
complaint,
the
Court
is
satisfied that Pizarro has adequately alleged a prima facie gender
discrimination
claim
pursuant
to
Title
VII.
First,
it
is
undisputed that being a woman, Pizarro is a member of a protected
class
under
Title
VII
which
explicitly
guards
discrimination in the workplace on the basis of sex.
2000e-2.
Second,
Pizarro’s
five-and-a-half-year
against
42 U.S.C. §
tenure
at
Hacienda suggests she possessed the necessary qualifications for
her former job. Third, (1) her involuntary transfer to the Bayamon
office and (2) her termination constitute an adverse employment
action.
See Hernandez-Torres v. Intercont’l Trading, Inc., 158
F.3d 43, 47 (1st Cir. 1998) (stating that adverse employment
actions
include
assignments,
“demotions,
refusals
to
disadvantageous
promote,
unwarranted
transfers
or
negative
job
evaluations, and toleration of harassment by other employees”).
Civil No. 16-2598 (FAB)
16
Finally, Pizarro has alleged facts that, if proven,
suggest that she was treated differently than Cardona, a male
coworker.
For example, Pizarro’s sexual harassment claim against
Cardona was not investigated while Cardona’s claim against Pizarro
was investigated.
Furthermore, Pizarro had to transfer offices
pending the investigation of Cardona’s allegations against her,
yet Cardona was never made to transfer offices.
(Docket No. 1 at
p. 12.)
At this juncture, the question before the Court is
not whether Pizarro will ultimately prevail on her Title VII gender
discrimination claim.
Rather, at issue is whether Pizarro has
alleged sufficient facts to raise her right to relief above the
speculative
Accordingly,
level.
the
The
Court
Court
DENIES
is
satisfied
defendants’
that
motion
she
to
has.
dismiss
Pizarro’s gender discrimination claim against Hacienda and the
Commonwealth.
2.
Hostile Work Environment Claim
Title
VII
prohibits
sex-based
discriminatory
employment practices that create a hostile work environment, often
referred to as sexual harassment.
See Lockridge, 597 F.3d at 473
(internal quotation marks and citations omitted).
To establish a
claim of a hostile work environment, a plaintiff must demonstrate
that:
(1) he or she is a member of a protected class; (2) he or
Civil No. 16-2598 (FAB)
she
was
subject
to
17
unwelcome
harassment;
(3)
the
harassment
occurred as a result of class membership; (4) the harassment was
so severe and pervasive it altered the conditions of employment
and created an abusive work environment; (5) the conduct complained
of was objective and subjectively offensive, such that a reasonable
person would find it hostile or abusive and the victim perceived
it to be so; and (6) a basis for employer liability exists. CerezoMartin v. Agroman, 213 F. Supp. 3d 318, 326 (D.P.R. 2016) (Besosa,
J.) (citing Torres-Negron v. Merck & Co., Inc., 488 F.3d 34, 39
(1st Cir. 2007)).
When a hostile work environment claim is premised
on sexual harassment, courts should avoid distinguishing sexually
oriented conduct from instances of unequal treatment and instead
consider the aggregate of all claims.
See O’Rourke v. City of
Providence, 235 F.3d 713, 730 (1st Cir. 2001).
In assessing the
severity and impact of the harassment, courts consider the totality
of
the
circumstances,
“including
the
frequency
of
the
discriminatory conduct, its severity, whether it is physically
threatening
or
utterance,
and
humiliating,
whether
it
employee’s work performance.”
whether
it
unreasonably
is
a
mere
interferes
offensive
with
an
Davila v. Potter, 550 F. Supp. 2d
234, 240 (D.P.R. 2007) (Besosa, J.) (citing Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998)).
Civil No. 16-2598 (FAB)
18
To defeat a motion to dismiss pursuant to Rule
12(b)(6), Pizarro is not required to plead every element of a prima
facie
case,
harassment.
nor
must
she
identify
every
incident
of
sexual
Polo-Echevarria v. Centro Medico del Turabo, Inc.,
949 F. Supp. 2d 332, 339 (D.P.R. 2013) (Besosa, J.) (citations
omitted). She must, however, plead sufficient facts to make relief
under a hostile work environment claim plausible.
Id.
Pizarro
claims defendant Cardona’s sexually explicit remarks, his false
accusation of sexual harassment against her, Hacienda’s failure to
investigate
her
sexual
harassment
claim,
and
her
involuntary
transfer to the Bayamon office all contributed to the creation of
a hostile work environment.
additionally
claims
that
(Docket No. 1 at pp. 5-6.)
defendants
created
a
Pizarro
hostile
work
environment when they shared private information regarding her
mental health with other coworkers.
Id. at p. 12.
Defendants contend that the allegations contained
in the complaint are not severe or pervasive.
Defendants claim
Pizarro’s allegations are more akin to work “discomfort” and result
from “the genuine but innocuous differences in the ways men and
women routinely interact with members of the same sex and of the
opposite sex.”
Id. at p. 13.
The Court disagrees with this
assessment. While a “mere offensive utterance” does not generally
rise to the level of creating a hostile work environment, Pizarro’s
Civil No. 16-2598 (FAB)
19
allegations extend beyond a single comment.
in
the
complaint
include
multiple
Pizarro’s allegations
instances
of
degrading
commentary from Cardona, failure of her supervisors to investigate
her claims of sexual harassment, and the consequent involuntary
transfer to a new office.
When considered in the aggregate, these
allegations suffice to make a plausible hostile work environment
claim.
See O’Rourke, 235 F.3d at 730 (holding that “incidents of
nonsexual conduct - such as work sabotage, exclusion, denial of
support, and humiliation – can in context contribute to a hostile
work environment”).
Accordingly, the Court DENIES defendants’
motion to dismiss the hostile work environment claim pursuant to
Title VII.
3.
Retaliation
Pizarro’s remaining claims involve retaliation in
violation of Title VII. 11 Title VII prohibits employers from taking
retaliatory action against an employee who opposes any practice or
act made unlawful by it.
See 42 U.S.C. § 2000e-3.
A plaintiff
can establish a claim for retaliation pursuant to Title VII by
showing that (1) he or she engaged in a protected activity; (2) he
or she suffered an adverse employment action; and (3) there was a
11
In this case, any retaliation claim pursuant to the ADA is also barred by
Eleventh Amendment sovereign immunity because it is premised on employment
discrimination arising under Title I. See Diaz v. Dep’t of Educ., 823 F. Supp.
2d 68, 74 (D.P.R. 2011) (Garcia-Gregory, J.).
Civil No. 16-2598 (FAB)
causal
connection
activity.
20
between
the
adverse
action
and
protected
See Salgado-Candelario v. Ericsson Caribbean, Inc., 614
F. Supp. 2d 151, 178 (D.P.R. 2008) (Delgado-Colon, J.) (citing
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir.
2004)).
protest
Protected activity encompasses any action “taken to
or
oppose
statutorily
Fantini, 557 F.3d at 32.
prohibited
discrimination.”
When a plaintiff argues retaliation
through indirect evidence, the McDonnell Douglas burden-shifting
framework is again applied.
Davila, 550 F. Supp. 2d at 241.
The
plaintiff must first establish a prima facie claim before the
burden shifts
to
the
employer
to
provide
a
discriminatory reason for the adverse action.
legitimate,
Id.
non-
The burden
then shifts back to the plaintiff to provide evidence that “the
offered reason is pretext cloaking the employer’s retaliatory
animus.”
Vazquez-Robles v. CommoLoco, Inc., 186 F. Supp. 3d 138,
155 (D.P.R. 2016) (Besosa, J.).
There is no question that Pizarro has adequately
alleged that
she
engaged
in
protected
activity
by
filing
an
internal sexual harassment complaint and three EEOC claims in March
2015, December 2015, and March 2016.
See Mariana-Colon v. Dep’t.
of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 223 (1st Cir.
2007) (determining that contacting human resources and the EEOC
regarding
alleged
discrimination
was
“undoubtedly”
protected
Civil No. 16-2598 (FAB)
activity).
21
Pizarro states that shortly after filing her first
EEOC claim on March 24, 2015, she was subject to adverse employment
action
in
the
form
of
her
employer’s
failure
reasonably
to
accommodate her disability, suspension from work, and eventual
termination from employment.
(Docket No. 1. at p. 12.)
Pizarro
further claims that defendants’ legitimate and non-retaliatory
reason for
her
termination
–
that
she
was
granted
long-term
disability benefits from MetLife – is a pretext for unlawful
retaliation. 12
Id.
While Pizarro has satisfied the first two
requirements in establishing a retaliation claim, she has failed
to allege a causal connection between the two sufficiently.
The
only
argument
Pizarro
submits
linking
the
protected activity and adverse employment action is through a
temporal nexus, claiming the adverse actions occurred “shortly
after”
her
initial
EEOC
filing.
(Docket
No.
1
at
p.
12.)
Establishing causation through temporal proximity requires that
the events occurred in a very close timeframe.
Echevarria v.
AstraZeneca, LP, 133 F. Supp. 3d 372, 401 (D.P.R. 2015) (DelgadoHernandez, J.).
Courts have held adverse employment actions
occurring only three months after the protected activity to be
12
Pizarro at one point in the complaint also asserts that she was terminated
as a result of exercising her right to apply for long-term disability benefits.
(Docket No. 1 at p. 9.) Pizarro cites no authority, however, establishing that
an application for long-term disability benefits is considered a protected
activity when evaluating a claim of retaliation.
Civil No. 16-2598 (FAB)
22
insufficient to establish a retaliatory motive.
See Colburn v.
Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir.
2005).
Here, an analysis of the alleged temporal nexus
connecting the protected activity to alleged adverse employment
action is not feasible.
Pizarro fails to articulate when all of
the protected activities and adverse employment actions occurred.
It is unclear to the Court when Pizarro filed her internal sexual
harassment complaint, when Hacienda denied her request to be
transferred back to the Bayamon office, and when she was suspended.
An
adverse
activity.
employment
action
cannot
precede
the
protected
The only dates Pizarro provides to the Court are for
the EEOC filings and termination.
The earliest date in which
Pizarro alleges she engaged in protected activity is March 24,
2015, the date of the first EEOC complaint.
Her termination of
employment occurred approximately nine months following the EEOC
complaint.
and
adverse
connection.
The nine-month delay between the protected activity
action
is
insufficient
to
establish
a
causal
More information, including the date in which Pizarro
filed the internal complaint with Hacienda, is required to evaluate
more fully the causal connection between the protected activity
and adverse action.
Accordingly, the Court GRANTS defendants
Civil No. 16-2598 (FAB)
23
12(b)(6) motion regarding to plaintiff’s retaliation claim.
This
claim is DISMISSED without prejudice.
IV.
CONCLUSION
For the reasons set forth above, the Court DENIES defendants’
12(b)(6) motion with respect to plaintiff’s Title VII gender
discrimination and hostile work environment claims.
The Court
GRANTS defendants’ motion to dismiss all claims against Cardona,
and GRANTS defendants’ motion to dismiss all ADA and Puerto Rico
state law claims.
Those claims are DISMISSED WITH PREJUDICE.
The
Court also GRANTS defendants’ 12(b)(6) motion with respect to
plaintiff’s Title VII retaliation claim.
This claim is DISMISSED
WITHOUT PREJUDICE.
Pursuant to Judge Swain’s order in Case No. 17-03283-LTS
(docket number 617), plaintiff’s Title VII gender discrimination
and hostile work environment claims are stayed without prejudice
to an application for further relief from stay.
IT IS SO ORDERED.
San Juan, Puerto Rico, July 31, 2017.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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