Colon-Gonzalez v. Commonwealth of Puerto Rico et al
Filing
53
OPINION AND ORDER granting in part and denying in part 32 Motion to Dismiss for Failure to State a Claim pursuant to Fed. R. Civ. P. 12(b)(6). Accordingly, the parties are hereby ordered to submit on or before February 16, 2021, three (3) available dates to schedule a Settlement Conference between the months of February and March 2021. See attached Opinion and Order for further details. Signed by Judge Daniel R. Dominguez on 2/5/2021.(EA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN IVAN COLÓN-GONZÁLEZ;
Plaintiff,
v.
CIVIL NO. 17-1162 (DRD)
COMMONWEALTH OF PUERTO RICO, et al.;
Defendants.
OPINION AND ORDER
On February 3, 2017, Plaintiff Juan Ivan Colón-González (hereinafter, “Plaintiff” or
“Colón”) filed a Complaint, under various federal and local laws, against various Defendants
(hereinafter, “Defendants”), including the Commonwealth of Puerto Rico, the Comisión Estatal
de Elecciones, in English, “Puerto Rico State Commission on Elections” (hereinafter, “CEE” for its
Spanish acronym), and Liza M. Garcia-Velez (hereinafter, “García”), both in her personal capacity
and in her official capacity. See Docket No. 1. Plaintiff claims that he was discriminated against
based on sex and age, and that for this reason he was unjustly terminated from his position on
June 30, 2015. See Id. He further claims the reason provided for his termination was fabricated
and illegal because he worked as a career employee, not as an employee in a position of trust.
See Id. at 2.
On August 2, 2017, the Court stayed the instant case under Title III of the Puerto Rico
Oversight Management, and Economic Stability Act (hereinafter, “PROMESA”), 48 U.S.C. §§ 21012241. See Docket Nos. 19-20. The case was reopened on July 19, 2019,
. . . solely to the limited extent necessary (i) to allow the Prepetition Action to
proceed to final judgment, and (ii) for the enforcement of any judgment ordering
reinstatement of the plaintiff to his former position; provided, however, that the
Title III Stay shall continue to apply in all other respects to the Prepetition Action,
including, but not limited to, the execution and enforcement of any judgment for
money damages, backpay and provisional remedies against the Commonwealth
or any other Title III debtor See Docket No. 25-1; 28.
On August 8, 2019, Defendants filed a Motion to Dismiss, arguing, inter alia, that
Defendant Garcia is not individually liable and that the Defendants, in general, are not liable. See
Docket No. 32. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART
Defendants’ Motion to Dismiss at Docket No. 32.
I.
FACTUAL AND PROCEDURAL HISTORY
Taking the allegations set forth in the Complaint as true, the facts are as follows:
On July 2, 2003, Plaintiff was hired as Administrator for the Comisión Estatal de Elecciones
Child Care Center [hereinafter, “CEE Child Care Center”], a career position1 that had educational
and experiential requirements. See Docket No. 1 at ¶¶ 17, 20 & 24. During his twelve (12) years
of service, Plaintiff never received warnings or was admonished by the other Presidents of the
CEE Child Care Center. See Id. at ¶¶ 34-37. To the contrary, “all prior presidents were extremely
satisfied by [his] work as Administrator [of the CEE Child Care Center].” See Id. at ¶ 37. According
to Plaintiff, in January of 2015, Defendant García was designated to “bec[ome] Acting President
1
“Under Puerto Rico law, career employees have a property interest in their continued employment. See Figueroa–
Serrano, 221 F.3d at 6; Kauffman, 841 F.2d at 1173. However, ‘public employees hired for career positions in violation
of the Puerto Rico Personnel Act, or agency regulations promulgated thereunder, may not claim property rights to
continued expectations of employment because their career appointments are null and void ab initio.’” GonzalezDe-Blasini v. Family Dep't, 377 F.3d 81, 86 (1st Cir. 2004) (citing Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 (1st
Cir. 1988); see also De Feliciano v. De Jesús, 873 F.2d 447, 452–55 (1st Cir.1989).
2
of the CEE” and shortly thereafter began exhibiting a “pattern of negative behavior towards the
Plaintiff.” See Id. at ¶¶ 38-39.
Plaintiff alleges that Defendant García “began to cut communications with Plaintiff”,
“never addressed the Plaintiff directly”, isolated Plaintiff from administrative decisions”, and
disrespected Colón on various occasions. See Id. at ¶¶ 40-44. Plaintiff further claims that
Defendant García stripped him of some of his functions as Administrator and intentionally
sabotaged Plaintiff so that he would come across as a deficient employee and be negatively
affected in his job. See Id. at ¶¶ 45-46. Pursuant to the allegations, Plaintiff was ultimately
terminated from his position on June 30, 2015, for lack of trust even though he was occupying a
career position. See Id. at ¶ 47. Shortly thereafter, Defendant García appointed a younger, female
employee to substitute Plaintiff without holding a job announcement or interviewing any
candidates, as was done when Plaintiff was first appointed in 2003. See Id. at ¶ 48.
On February 3, 2017, Plaintiff filed a Complaint, claiming that Defendants were liable
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) [hereinafter, “Title VII”] and
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 [hereinafter, “ADEA”], as well
as various state laws for the reasons stated above. See Docket No. 1. On August 2, 2017, due to
the claims for monetary relief, the Court issued an order staying the instant case under Title III of
PROMESA, 48 U.S.C. §§ 2101-2241. See Docket Nos. 19 & 20. Later, on July 19, 2019, the Court
reopened the case solely to determine whether Plaintiff has the right to be reinstated to his
position as Administrator of the CEE Child Care Center. See Docket No. 28.
On August 8, 2019, Defendants filed a Motion to Dismiss. See Docket No. 32. Defendants
did not challenge the facts set forth in the Complaint, but rather, limited themselves to
3
challenging their liability under the federal and state law statutes invoked by Plaintiff and
claiming that the state law claims are time-barred. See Id. Among other claims, Defendants aver
that Defendant Garcia is not individually liable under Title VII or the ADEA because the general
rule of the First Circuit prohibiting individual liability of employees applies. See Id. at 6-7.
Defendants also claim that the state-law claims are time-barred. See Id. at 7-10. Defendants
further contend that sovereign immunity under the Eleventh Amendment of the United States
Constitution applies warranting a dismissal as to the CEE. See Id. at 11-15.
On September 27, 2019, Plaintiff filed his Opposition to Defendants’ Motion to Dismiss,
arguing that Defendant Garcia is indeed liable under Title VII and the ADEA. He supports this
argument by citing caselaw precedent from sister Circuits. See Docket No. 44 at 7-10. Plaintiff
also avers that Defendants are all liable under state law claims. See Docket no. 44.
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff must “provide the grounds of his
entitlement [with] more than labels and conclusions.” See Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011) (“in order to ‘show’ an entitlement of relief above the speculative
level on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).’) (quoting Twombly, 550 U.S. at 555) (citation omitted). Thus, a plaintiff must, and is
currently required to, present allegations that “nudge [his] claims across the line from
conceivable to plausible” in order to comply with the requirements of Rule 8(a). Id. at 570; see
e.g. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
4
When considering a motion to dismiss, the Court’s inquiry occurs in a two-step process
under the current context-based “plausibility” standard established by Twombly, 550 U.S. 544,
and Iqbal, 556 U.S. 662. “Context based” means that a plaintiff must allege sufficient facts that
comply with the basic elements of the cause of action. See Iqbal, 556 U.S. at 677-679 (concluding
that plaintiff’s complaint was factually insufficient to substantiate the required elements of a
Bivens claim, leaving the complaint with only conclusory statements). First, the Court must
“accept as true all of the allegations contained in a complaint[,]” discarding legal conclusions,
conclusory statements and factually threadbare recitals of the elements of a cause of action.
Iqbal, 556 U.S. at 678. “Yet we need not accept as true legal conclusions from the complaint or
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Maldonado v. Fontanes, 568 F.3d
263, 268 (1st Cir. 2009) (quoting Iqbal, 556 U.S. 678) (quoting Twombly, 550 U.S. at 557).
Under the second step of the inquiry, the Court must determine whether, based upon all
assertions that were not discarded under the first step of the inquiry, the complaint “states a
plausible claim for relief.” Iqbal, 556 U.S. 679. This second step is “context-specific” and requires
that the Court draw from its own “judicial experience and common sense” to decide whether a
plaintiff has stated a claim upon which relief may be granted, or, conversely, whether dismissal
under Rule 12(b)(6) is appropriate. Id.
Thus “[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient facts to
show that he has a plausible entitlement to relief.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 41
(1st Cir. 2009). “[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 has not ‘show[n]’ ‘that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Furthermore,
5
such inferences must be at least as plausible as any “obvious alternative explanation.” Id. at 67980 (citing Twombly 550 U.S. at 567). “A plaintiff is not entitled to ‘proceed perforce’ by virtue of
allegations that merely parrot the elements of the cause of action.” Ocasio-Hernandez, 640 F.3d
at 12, (citing Iqbal, 556 U.S. at 679); Sanchez v. Pereira-Castillo, 590 F.3d 31, 45 (1st Cir. 2009).
The First Circuit has cautioned against equating plausibility with an analysis of the likely
success on the merits, affirming that the plausibility standard assumes “pleaded facts to be true
and read in a plaintiff’s favor” even if seemingly incredible. Sepúlveda-Villarini v. Dep’t of Educ.
of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550 U.S. at 556); Ocasio-Hernandez, 640
F.3d at 12 (citing Twombly, 550 U.S. at 556) (“[T]he court may not disregard properly pled factual
allegations, ‘even if it strikes a savvy judge that actual proof of those facts is improbable.’”).
Instead, the First Circuit has emphasized that “[t]he make-or-break standard . . . is that the
combined allegations, taken a true, must state a plausible, [but] not a merely conceivable, case
for relief.” Sepúlveda-Villarini, 628 F.3d at 29. Additionally, a district court may not weigh
evidence in deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Massachusetts
Delivery Ass’n v. Coakley, 671 F.3d 33, 39 n. 6 (1st Cir. 2012) (emphasizing that a primary
difference between a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) is that, under Rule
12(b)(1), a court may weigh the evidence and make factual determinations).
However, a complaint that rests on “bald assertions, unsupportable conclusions,
periphrastic circumlocutions, and the like” will likely not survive a motion to dismiss. Aulson v.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Similarly, unadorned factual assertions as to the elements
of the cause of action are inadequate as well. Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592 (1st
Cir. 2011). “Specific information, even if not in the form of admissible evidence, would likely be
6
enough at [the motion to dismiss] stage; pure speculation is not.” Id. at 596; see Iqbal, 556 U.S.
at 681 (“To be clear, we do not reject [] bald allegations on the ground that they are unrealistic
or nonsensical. . .. it is the conclusory nature of [the] allegations, rather than their extravagantly
fanciful nature, that disentitles them to the presumption of truth.”); see Mendez Internet Mgmt.
Servs. V. Banco Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010)(holding that Twombly and Iqbal
standards require District Courts to “screen[] out rhetoric masquerading as litigation.”).
The First Circuit outlined two considerations for district courts to note when analyzing a
motion to dismiss. García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir. 2013). First, a
complaint modeled on Form 11 of the Appendix of the Federal Rules of Civil Procedure which
contains sufficient facts to make the claim plausible is ordinarily enough to surpass the standard
prescribed under Twombly-Iqbal. Id. at 104. Second, district courts should accord “some latitude
in cases where “[a] material part of the information needed is likely to be within the defendant’s
control.” Id. (more latitude is appropriate in cases where “it cannot reasonably be expected that
the [plaintiff], without the benefit of discovery, would have any information about” the event
that gave rise to the alleged injury.) (Internal citations and quotations omitted).
III.
ANALYSIS
A. Defendant Garcia’s Individual Liability under Title VII and the ADEA
Title VII of the Civil Rights Act provides in its pertinent part that “[i]t shall be unlawful
employment practice for an employer – . . . to discharge any individual, or otherwise to
discriminate any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). To that effect, the First Circuit has determined that “there is no individual
7
employee liability under Title VII.” Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009); see
Uphoff Figueroa v. Alejandro, 597 F.3d 423, 431 (1st Cir. 2010)(holding that because plaintiffs may
not bring Title VII suits against individual employees, a dismissal against all individual defendants
is proper.) Further, “[a]s held by [] sister circuits [the First Circuit] find[s] that ‘[t]he statutory
scheme [of Title VII] itself indicates that Congress did not intend to impose individual liability on
employees.’” Id. (quoting Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993)).
As discussed by the Seventh Circuit and validated by the First Circuit, “[u]ntil 1991, a
successful plaintiff could recover only back pay and equitable relief such as reinstatement. Those
types of remedies typically are only obtainable from an employing entity, not from a mere
individual. That arrangement suggests that Congress did not contemplate individual liability
when it originally passed the relevant statutes.” U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd., 55
F.3d 1276, 1281 (7th Cir. 1995); see Fantini, 557 F.3d at 31.
As mentioned above, Defendants claim that Codefendant Garcia is not individually liable
under Title VII or the ADEA, as interpreted by First Circuit precedent. Plaintiff, on the other hand,
claims that Codefendant Garcia is individually liable because she falls under the definition of
“employer”. See Docket No. 44 at 7-10. Plaintiff attempts to support this argument by citing cases
from other Circuit Courts which interpret the FMLA [Family and Medical Leave Act] definition of
the term “employer”. See Id. Plaintiff further avers that because there is a split in the Circuit
Courts as to the interpretation that should be provided to such term, the Court should rule in
favor of attributing individual liability to Codefendant Garcia. See Id. The Court finds that this
argument falls short. The Court briefly explains.
8
Under both Title VII and the ADEA, the term “employer” is defined in a similar fashion.
See 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b). Furthermore, the First Circuit has adopted the
holdings of Sister Circuits and stated that “[t]he Title VII definition of employer must be read in
the same fashion as the ADEA definition of employer.” Fantini, 557 F.2d at 29 (citing Lissau v.
Southern Food Service, Inc., 159 F.3d 177, 180 (4th Cir. 1998)). First Circuit precedent also holds
that employees such as coworkers cannot be held individually liable under Title VII claims.2 Id. at
31 (citing Powell v Yellow Book U.S.A., Inc., 445 F.3d 1074, 1079 (8th Cir. 2006)) (internal citations
omitted).3 However, the First Circuit has recognized that
[A] narrow exception to the general rule of individual liability [applies to]
corporate officers with a significant ownership interest who had operational
control of significant aspects of the corporation’s day to day functions, including
compensation of employees, and who personally made decisions to continue
operations despite financial adversity during the period of nonpayment.
Lopez-Rosario v. Programa Seasonal Head Start/ Early Head Start de la Diocesis de Mayagüez,
245 F.Supp.3d 360, 370-71 (D.P.R. 2017) (citing Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33-34 (1st
Cir. 2007)) (citation omitted); See also Miranda v. Deloitte LLP, 922 F.Supp.2d 210 (D.P.R. 2013).
Nonetheless, it has also held that such an exception does not apply to employees such as
“ordinary supervisors”, explaining that “‘not every corporate employee who exercised
supervisory control should be held personally liable.’” Lopez-Rosario, 245 F.Supp.3d at 371 (citing
Chao, 493 F.3d at 34). See also Gomez Gonzalez v. Guidant Corp., 364 F.Supp.2d 112, 116 (D.P.R.
2005) (“Title VII’s statutory structure suggests that Congress did not intend to impose individual
2
“Although the First Circuit Court of Appeals has not squarely addressed the issue of individual liability under the
ADEA, Courts within the circuit have recently held that personal liability under the ADEA does not exist.” Miranda v.
Deloitte LLP, 979 F.Supp.2d 191, 192-93 (D.P.R. 2013).
3
See also Roman-Oliveras v. Puerto Rico Elec. Power Authority, 655 F3d 43, 51 (1st Cir. 2011) (“‘[I]f Congress decided
to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil
liability to run against individual employees.’”) (citing Fantini, 557 F.3d at 30) (citations omitted).
9
liability over supervisors or agents of employers.”) (citations omitted); Canabal v. Aramark Corp.,
48 F.Supp.2d 94, 97 (D.P.R. 1999) (“Had Congress intended to hold individuals liable, it would
have addressed the actions and conditions that would subject them to liability.”).
In reviewing the facts of the case at bar and the law cited herein, the Court is forced to
conclude that the general rule of lack of individual liability is the law applicable to Defendant
Garcia. From the well-pleaded facts of the case, the Court understands that Defendant Garcia, as
President of the CEE, holds duties and functions parallel those held by “an ordinary supervisor”,
Lopez-Rosario, 245 F.Supp.3d at 371, and cannot, therefore, be individually liable under Title VII
or the ADEA. But, more importantly, pursuant to a long-standing precedent, Ms. García as an
employee of the CEE is not subject to individual liability. Rather, it is the CEE, the entity that could
be subject to liability, if applicable.
B. Defendants’ Eleventh Amendment Immunity Claim
Defendants also allege that the claims brought against them under supplemental
jurisdiction and the ADEA are barred by Eleventh Amendment immunity because the claims are
for monetary damages. See Docket No. 32 at 15. Plaintiff, however, contends that Defendant
Garcia is liable in her official capacity because the relief he seeks is not limited to monetary
damages. See Docket No. 44 at 9. Rather, Plaintiff alleges he also seeks injunctive relief. See Id.
The Eleventh Amendment of the Constitution of the United States provides the following:
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.
10
Puerto Rico has long been considered a state for Eleventh Amendment purposes. See
Irizarry–Mora v. Univ. of Puerto Rico, 647 F.3d 9 (1st Cir. 2011); Metcalf & Eddy, Inc. v. P.R.
Aqueduct & Sewer Auth., 991 F.2d 935 (1st Cir. 1993). “The Eleventh Amendment bars the
recovery of damages in a federal court against the Commonwealth of Puerto Rico, and, by the
same token, it bars the recovery of damages in official capacity suits brought against Puerto Rico
officials where recovery will come from the public fisc.” Culebras Enterprises Corp. v. Rivera Rios,
813 F.2d 506, 516 (1st Cir. 1987) (citing Ramirez v. P.R. Fire Service, 715 F.2d 694, 697 (1st Cir.
1983) and Kentucky v. Graham, 473 U.S. 159 (1985)) (emphasis in the original); Maysonet–Robles
v. Cabrero, 323 F.3d 43 (1st Cir. 2003).
To determine whether an entity is an arm of the state, and therefore entitled to immunity,
a two-step analysis is required: “[t]he first step of the analysis concerns how the state has
structured the entity.”; and if structural indicators point to different directions “. . . the
vulnerability of the state's purse [which] is the most salient factor in the Eleventh Amendment
determination.” Fresenius Med. Care Cardiovascular Res., Inc. v. Puerto Rico & Caribbean
Cardiovascular Ctr. Corp., 322 F.3d 56, 65 (1st Cir. 2003).
In Fresenius, an action was brought directly against a corporation for the collection of
moneys and/or damages. The First Circuit held that “[w]here it is clear that the state treasury is
not at risk, then the control exercised by the state over the entity does not entitle the entity to
Eleventh Amendment immunity.” Id. “The control asserted by the state is an important guide to
the initial inquiry. But where the evidence is that the state did not structure the entity to put the
state treasury at risk of paying the judgment, then the fact that the state appoints the majority
11
of the governing board of the agency does not itself lead to the conclusion that the entity is an
arm of the state.” Id. at 68.
This Court has previously discussed whether the CEE benefits from immunity in Torres
Torres v. Comisión Estatal de Elecciones de Puerto Rico, 700 F.Supp. 613 (D.P.R. 1988). In assessing
the applicability of Eleventh Amendment immunity, the court determined that:
The Elections Commission was created by the Puerto Rico legislature. 16
L.P.R.A. § 3004. It was created for the purpose of ‘planning organizing, structuring,
directing and supervising the electoral body and all electoral procedures that
govern any election to be held in Puerto Rico. . . .” 16 L.P.R.A. § 3013. The
legislature provides the funding to the Elections Commission after reviewing the
Elections Commission’s Operating Expense Budget for each fiscal year submitted
by the Governor. 16 L.P.R.A. § 3005. The Elections Commission has the power to
sue. 16 L.P.R.A. § 3013. The statute is silent as to whether the Elections
Commission can be sued.
Id. at page 619. The Court, therefore, determined that “[t]he Elections Commission is immune
from the damage claim, since any damage award would have to be paid out form the
Commonwealth treasury.” Id (citing Gay Student Services v. Texas A & M Univ., 612 F.2d 160 (5th
Cir. 1980); see also New Progressive Party (Partido Nuevo Progresista) v. Hernandez Colon, 779
F.Supp. 646, 652 (D.P.R. 1991) (“Because [the State Elections Commission and the
Commonwealth of Puerto Rico] are immune from suit under the Eleventh Amendment, they are
not amenable to suit in federal court.”).
This notwithstanding, the Court has also determined that, although Eleventh Amendment
immunity bars states and arms of the state from being sued for monetary damages, the same
cannot be said when the relief sought is injunctive relief. Hernandez Colon, 779 F.Supp. at 652
(“The plaintiffs in this case are seeking an injunction, not monetary damages. Regardless of any
congressional abrogation or state waiver of immunity, federal courts have the power to enjoin
12
state officials to conform their conduct to the requirements of federal law.”) (citing Ramirez v.
Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir. 1983); Ex parte Young, 209 U.S. 123, 155-56
(1908)).
In the instant case, Plaintiff is barred from seeking monetary damages due to the CEE and
the Commonwealth of Puerto Rico being protected by Eleventh Amendment immunity. However,
it is no less true that Plaintiff also seeks injunctive relief against the CEE and Defendant Garcia in
her official capacity, a prospective form of relief not barred by the Eleventh Amendment. See
Torres Torres, 700 F.Supp. at 619 (“Nevertheless, the eleventh amendment does not bar suits
involving injunctive relief which do not affect the state coffers.”) (citing Edelman v. Jordan, 415
U.S. 651 (1974)). Because “a suit against a state official in his official capacity for prospective
relief is not precluded by the eleventh amendment”, it follows that Defendant Garcia in her
official capacity is not protected by the Eleventh Amendment immunity. Torres Torres, 700
F.Supp. at 619-20 (citing Ex parte Young, 209 U.S. 123 (1908)). “Therefore, this Court can decide
plaintiff’s claim for equitable relief against both defendants [CEE and its President in its official
capacity].” Torres Torres, 700 F.Supp. at 620.
C. Supplemental claims under Puerto Rico Law
Federal jurisdiction exists when a well-pleaded complaint necessarily “requires the
resolution of a substantial question of federal law.” Franchise Tax Bd. v. Construction Laborers
Vacation Trust for Southern California, 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); City
of Chicago v. Int’l Coll. Of Surgeons, 522 U.S. 156, 164, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). In
essence, Federal Courts by their very nature are courts of limited jurisdiction. See Exxon Mobil
Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (citing
13
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994)). The presumption is that a federal court lacks jurisdiction. Kokkonen, 544 U.S. at 377, 114
S.Ct. 1673. Consequently, the burden is on the plaintiff who claims jurisdiction to affirmatively
allege and prove jurisdiction. Id. To bring a civil action within the court’s subject matter
jurisdiction, a plaintiff must allege that his action involves either a federal question or diversity
jurisdiction. See 28 U.S.C. §§ 1331 & 1332.
In this case, it is clear that there is no diversity between the parties. Nonetheless, since
Plaintiff brought claims to this forum pursuant to the Eleventh Amendment, Title VII and the
ADEA, the Court’s jurisdiction would be based on federal question jurisdiction. Once federal
jurisdiction is determined, the Court may exercise supplemental or pendant jurisdiction on a
state law claim, i.e. Act 100, Act 69, Puerto Rico Constitution and damages by Arts. 1802 and
1803 of the Puerto Rico Civil Code (see P.R. Laws Ann. Tit. 31 §§ 5141-5142), provided that it is
part of the same case or controversy of the federal question before this Court. See 28 U.S.C.
§ 1367(a) (allowing a court to exercise supplemental jurisdiction over state law claims that are
“so related to the claims in the action within the original jurisdiction that they form part of the
same case or controversy”; see also United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966).
In the case at bar, all federal claims but the Eleventh Amendment injunctive relief are
being properly dismissed well before the commencement of trial. See Rodríguez v. Doral
Mortgage Corp., 57 F.3d 1168, 1175 (1st Cir. 1995). Therefore, the Court will exercise its discretion
and apply supplemental jurisdiction over state law claims asserted over, to wit, Section 1 of
Article II of the Constitution of the Commonwealth of Puerto Rico; P.R. Law 100 of June, 30, 1959,
14
P.R. Laws Ann. Tit. 29 § 146 et seq.; Puerto Rico Law No. 69 of July 6, 1985, P.R. Laws Ann. Tit. 29
§. 1321 et seq.; Puerto Rico Law 80 of May 30, 1976, P.R. Laws Ann. Tit. 29 § 185 et seq.; and
damages pursuant to Articles 1802 and 1803 of Puerto Rico Civil Code, P.R. Laws Ann. 31 §§ 51415142. Accordingly, the Court hereby discusses the legitimacy of all state claim in seriatim.
D. Applicability of Act. No. 100 and the Puerto Rico Unjust Dismissal Act to Government
Employees
Defendants argue that the Puerto Rico Unjust Dismissal Act, P.R. Laws Ann. tit. 29, § 185a
[hereinafter, “Act. No. 80”] and the Discrimination in Employment Act, P.R. Laws Ann. tit. 29, §
146 [hereinafter, “Act No. 100”] are inapplicable to government employees. See Docket No. 32
at 10-11. Plaintiff, however, limits himself to generally stating that Defendants are liable under
the state law claims brought under supplemental jurisdiction. See Docket no. 44 at 10-12. The
court agrees with Defendant. Act No. 80 defines the term employer in the following manner:
[A]ny natural or juridical person that employs or allows any employee to
work for compensation. This term does not include the Government of Puerto Rico
and each one of the three branches thereof, its departments, agencies,
instrumentalities, public corporations, and municipal governments as well as
municipal instrumentalities or corporations. It does not include the Government
of the United States of America either.
P.R. Laws Ann. tit. 29, § 185n(g). (Emphasis added). The very wording bars the Commonwealth
of Puerto Rico or any of its instrumentalities from being sued under this statute. As a result, the
Commonwealth and the CEE, being an arm of the state, cannot be sued under Act No. 80. On a
similar note, Act No. 100 defines employer as:
[A]ny natural or juridical person employing laborers, workers or
employees, and the chief, official, manager, officer, managing partner,
administrator, superintendent, foreman, overseer, agent or representative of
such natural or juridical person. It shall include all such agencies or
instrumentalities of the Government of Puerto Rico as may be operating as private
businesses or enterprises.
15
P.R. Laws Ann. tit. 29, § 151. The Supreme Court of Puerto Rico has stated that “[t]he legislative
history of Act No. 100 shows that its main objective was to protect employees in the private
sector from all types of discrimination although, via exception, the protection covered all
employees of government agencies or instrumentalities that operate as private businesses or
companies.” Rodriguez Cruz v. Padilla Ayala, 125 D.P.R. 486, 508 (1990), 1990 WL 657488 (Official
English Translation) (Emphasis in the original). “[T]he Legislature expressly excluded from said
statute all the public employees of public agencies or instrumentalities that are not run as private
businesses or enterprises. 129 D.P.R. 557, 570 (1991), 1991 WL 735863 (Official English
Translation) (Emphasis in the original). As such, it follows that “because the individual codefendants are not officials, agents, or representatives of an ‘employer’ under Act 100, they also
cannot be held responsible as employers under that statute.” Montalvo-Padilla v. University of
P.R., 492 F.Supp.2d 36, 46. Therefore, the Court concludes that Defendants do not fall within the
scope of liability of Act No. 80 nor Act No. 100.
E.
Statute of Limitations regarding Supplemental State Law Claims
For tort actions, the statute of limitations is substantive law and Puerto Rico law controls.
See Erie v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822 (1938); Guaranty Trust Co. v. York, 326
U.S. 99, 65 S.Ct. 1464 (1945); Daigle v. Maine Medical Center, 14 F.3d 684, 689 (1st Cir. 1994).
Puerto Rico’s Civil Code provides that personal injury actions carry a one-year (1) statute of
limitations from the moment the aggrieved person has knowledge of the injury. 31 P.R. LAWS §
5298; Rodriguez v. Suzuki Motor Corp., 570 F.3d 402, 406 (1st Cir.2009) (“the statute of limitations
starts to run once the injured party knows both that he has suffered a harm and who is
responsible for it.”).
16
Similarly, Puerto Rico caselaw holds that actions brought under Act No. 100 and Article II,
Sec. 1 of the Constitution of the Commonwealth of Puerto Rico, P.R. Const. Art. II, § 1, also have
a one-year statute of limitations. See Olmo v. Young & Rubicam of .P.R., Inc., 110 P.R. Dec. 740,
746; 10 P.R. Offic. Trans. 965, 973 (1981) and cases cited therein. Likewise, the Supreme Court
of Puerto Rico has also stated the statute of limitations for a claim brought under the
Discrimination in Employment for Reasons of Sex Act, P.R. Laws Ann. tit. 29, § 1321, [hereinafter,
“Act No. 69”] is analogous to that of Act No. 100 (e.g. one year). See Suarez Ruiz v. Figueroa Colon,
145 P.R. Dec. 142, 150 (1998).
However, such one-year term is subject to tolling. The Supreme Court of Puerto Rico has
stated that “[t]he tolling act represents the unequivocal manifestation of intent to put an end to
the inactivity that takes place before the period of deliberation runs out.” Galib Frangie v. El
Vocero de P.R., 1995 WL 905884 (P.R.), 12 P.R. Offic. Trans. 971. Article 1873 of the Civil Code
provides three ways by which the statute of limitations may be tolled. Tokyo Marine and Fire Ins.
Co. v. Perez & CIA de Puerto Rico, Inc., 142 F.3d 1, 4 (1st Cir. 1998). This may be accomplished (1)
“by the institution of an action before the courts [;]” (2) “by extrajudicial claim of the creditor[;]
and” (3) “by any act of acknowledgment of the debt by the debtor.” Id. (quoting Civil Code of
Puerto Rico, 31 P.R. Laws § 5303) (internal quotation omitted).
On another note, the filing of a complaint against nonexistent or fictitious parties, when
an indispensable party whose identity and name are known exists, does not interrupt the statute
of limitations and its subsequent amendment to include said party after the expiration of the
period to file the action does not relate back to the time of the filing of the original petition, as
17
set forth in Fuentes v. Tribunal de Distrito de P.R., 73 P.R.R. 893, 916 1952 PR Sup. LEXIS 260 (P.R.
1952) as follows:
If the original complaint is legally sufficient and a defendant is joined under a
fictitious name inasmuch as, his identity but not his specific name is known, the
complaint may be subsequently amended to insert the real name of the persons
when it is known. But said rule must not be applied when the amendment as to
that defendant is made after the expiration of the limitation period in a case in
which the original complaint is legally insufficient because it was filed against the
nonexistent defendants without including an indispensable party as defendant, or
where it is merely a case of ignorance as to the name of the party to the suit,
although knowing his identity, or where as in the instant case, plaintiff originally
knew the name and identity of a person who should have been included as
defendant because she was an indispensable party.
See also Laboy, 598 F.Supp.2d at 195 (holding that because defendant-canine officers in a first
lawsuit, which was timely filed, were not identical to defendants in a second lawsuit, which was
untimely, as the officers were never identified in the first suit pursuant to Rule 15.4 of Title 32,
the filing of the prior complaint did not toll the statute of limitations as to any defendants in the
second lawsuit, pursuant to this section.)
In the instant case, Plaintiff was terminated from his employment on June 30, 2015. See
Docket No. 1. It was from this moment that he alleges he started suffering damages. He
subsequently filed a Notice of Charge of Discrimination before the U.S. Equal Employment
Opportunity Commission (hereinafter, “EEOC”) solely against the CEE. Taking into account the
aforementioned statute of limitations, Plaintiff had one year, that is, until June 30, 2016 4, to file
the Complaint against Ms. García in her individual capacity before his actions became time
barred. Plaintiff, however, did not file the Complaint against Ms. García until February 3, 2017,
4
The Court has no information related to the proceedings before the EEOC other than the Notice of Charge of
Discrimination filed by the CEE. Should its result require an additional dispositive motion, the Court will authorize its
filing.
18
that is, seven (7) months after the one-year (1) deadline. For this reason, the Court is forced to
conclude that, even if the Defendants were liable under these laws, Plaintiff’s claims against Ms.
García in her individual capacity under the Constitution of the Commonwealth of Puerto Rico,
Act No. 100, Act No. 69, and Article 1802 of the Puerto Rico Civil Code are time-barred.
IV.
CONCLUSION
Taking the complaint in the light most favorable to the Plaintiff, the Court GRANTS IN
PART and DENIES IN PART Defendants’ Motion to Dismiss. See Docket No. 32. Dismissal of the
claims related to Defendant Garcia’s individual liability claim and Defendants’ liability under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), the Age Discrimination in Employment
Act, 29 U.S.C. §§ 621-634 are hereby GRANTED and DISMISSED WITH PREJUDICE. Eleventh
Amendment immunity defense regarding monetary damages as to CEE is hereby GRANTED and
DISMISSED WITH PREJUDICE. Whereas, injunctive relief against the CEE and its President in its
official capacity, a prospective form of relief not barred by the Eleventh Amendment, thus, is
hereby DENIED.
As to the state law claims under Section 1 of Article II of the Constitution of the
Commonwealth of Puerto Rico; P.R. Law 100 of June, 30, 1959, P.R. Laws Ann. Tit. 29 § 146 et
seq.; Puerto Rico Law No. 69 of July 6, 1985, P.R. Laws Ann. Tit. 29 §. 1321 et seq.; Puerto Rico
Law 80 of May 30, 1976, P.R. Laws Ann. Tit. 29 § 185 et seq.; and damages pursuant to Articles
1802 and 1803 of Puerto Rico Civil Code, P.R. Laws Ann. 31 §§ 5141-5142 are hereby DISMISSED
WITH PREJUDICE pursuant to the arguments set forth in the instant Opinion and Order.
As to the remaining cause of action, to wit, injunctive relief as to the Defendants’ alleged
unlawful and discriminatory employment termination of the Plaintiff, the Court deems in the
19
parties’ best interest to schedule a Settlement Conference prior to moving forward in order to
ascertain whether an agreement between the parties is feasible at this juncture. Accordingly, the
parties are hereby ordered to submit on or before February 16, 2021, three (3) available dates to
schedule the conference between the months of February and March 2021.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of February, 2021.
S/ Daniel R. Domínguez
Daniel R. Domínguez
United States District Judge
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