Dorsey v. Kelly et al

Filing 14

OPINION AND ORDER: Granting 10 "Motion to Dismiss." The case is dismissed. Judgment shall be entered accordingly. Signed by Judge Pedro A. Delgado-Hernandez on 11/27/2017.(LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JOHNNIE JAY WESLEY DORSEY, JR.
Plaintiff,
v.

CIVIL NO. 17-1542 (PAD)

JOHN F. KELLY, et al.
Defendants.

OPINION AND ORDER
Delgado-Hernández, District Judge.
Plaintiff complains of discrimination on account of his race, national origin and age in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Puerto Rico
law (Docket No. 1). 1 Before the court is defendants’ “Motion to Dismiss” (Docket No. 10), which
plaintiff opposed (Docket No. 11). For the reasons explained below, the motion is GRANTED
and the case DISMISSED.
I.

BACKGROUND

Plaintiff was employed with U.S. Customs and Border Protection (“CBP”), a federal
agency under the control of the Department of Homeland Security (Docket No. 1 at ¶¶ 7, 20). On
August 23, 2016, he initiated contact with an Equal Employment Opportunity (“EEO”) counselor
alleging that the CBP did not select him for several positions because of his race, color, national
origin and age (Docket No. 1, Exhibit 1). On September 16, 2016, he filed a formal EEO
complaint. Id. On February 28, 2017, the EEO office dismissed the complaint for failure to

1

To wit, Puerto Rico Law 100 of June 30, 1959, P.R. Laws Ann. tit. 29 § 146 et seq., and Article 1802 of the Puerto Rico Civil
Code, P.R. Laws Ann. tit. 31 § 5141.

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Civil No. 17-1542 (PAD)
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comply with the applicable 45-day regulatory time limit for contacting an EEO counselor. Id. On
January 2, 2017, plaintiff retired from his employment (Docket No. 1 at ¶¶ 5-10 ). On April 25,
2017, he initiated the present action, suing the CBP, the Department of Homeland Security, the
Department’s Secretary, the President, and Department of Justice and the United States Attorney’s
Office (Docket No. 1). 2 On August 15, 2017, defendants moved to dismiss under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure (Docket No. 10).
II.

STANDARD OF REVIEW

In considering a Rule 12(b)(1) motion, courts must credit plaintiff’s well-pled factual
allegations and draw all reasonable inferences in the plaintiff’s favor. Merlonghi v. United States,
620 F.3d 50, 54 (1st Cir. 2010). If it appears to the court at any time that subject matter jurisdiction
is lacking, it must dismiss the action. McCulloch v. Vélez, 364 F.3d 1, 5 (1st Cir. 2004). To
survive a motion under Rule 12(b)(6), a complaint must allege a plausible entitlement to relief.
Rodríguez-Vives v. Puerto Rico Firefighters Corps., 743 F.3d 278, 283 (1st Cir. 2014); RodríguezReyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013).
A determination of plausibility involves a context-specific task that requires courts to
examine the complaint as a whole, separating factual allegations (which must be accepted as true)
from conclusory legal allegations (which need not be credited). García-Catalán v. United States,
734 F.3d 100, 103 (1st Cir. 2013); Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.
2012). Should the factual content holistically permit the court to reasonably infer that the
defendant is liable for the misconduct alleged, dismissal is not appropriate. Sepúlveda-Villarini v.
Dept. of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010). If the factual allegations are too conclusory

2

The proper party defendant is the head of the agency. See, Linares-Rosado v. Torres-Medina, 2012 WL 5199615, *2, *4 (D.P.R.
Oct. 22, 2012)(so ruling in connection with Title VII and the Age Discrimination in Employment Act - “ADEA”).

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Civil No. 17-1542 (PAD)
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to remove the possibility of relief from the realm of mere conjecture, the complaint is open to
dismissal. S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010); Rodríguez-Reyes, 711 F.3d at
53.
III.

DISCUSSION

First, the Title VII action is untimely. 3 Title VII requires federal employees to exhaust
administrative remedies before initiating a complaint of discrimination in federal court. See,
McKinnon v. Kwong Wah Rest., 83 F.3d 498, 504 (1st Cir. 1996)(discussing requirement); Pagán
v. United States, 2016 WL 3910260, *3-4 (D.P.R. July 14, 2016)(same). Employees must contact
an EEOC counselor within 45 days of the matter alleged to be discriminatory or the effective date
of the personnel action in question. See, Velázquez-Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir.
2000)(so noting).
Failure to file a timely charge is not an absolute jurisdictional prerequisite to suit that would
deprive courts of subject matter jurisdiction. See, Zipes v. Trans World Airlines, 455 U.S. 385,
393 (1982)(so holding). But it is no small matter, for it is a condition to the United States’ waiver
of sovereign immunity that must be strictly construed. See, Rodríguez v. United States, 852 F.3d
67, 79 (1st Cir. 2017)(acknowledging principle). So, with limited exceptions not present here, 4
failure to timely exhaust the administrative process bars the courthouse door. See, Franceschi, 514
F.3d at 85 (analyzing exhaustion).

3 Plaintiff invoked Title VII complaining of race, national origin and age discrimination (Docket No. 1, pp. 11-12). Title VII
prohibits discrimination in employment because of, inter alia, race and national origin. See, 42 U.S.C. § 2000e-16(a)(setting forth
prohibition). It does not prohibit age discrimination. See, Stoll v. Principi, 2005 WL 4542884, *4 (D.P.R. Aug. 2, 2005)(so
recognizing).
4

Exceptions include waiver, estoppel, equitable tolling, and post-filing retaliation arising out of the administrative charge. See,
Frederique-Alexandre, 478 F.3d 433, 440 (1st Cir. 2007)(recognizing exceptions); Franceschi v. United States VA, 514 F.3d 81,
85 (1st Cir. 2008)(same).

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A purview of the allegations in the complaint and supporting documents confirm – and
plaintiff does not dispute – the EEO’s conclusion that the most recent alleged discriminatory event
occurred on May 16, 2016. Nevertheless, plaintiff did not contact the EEO counselor until August
23, 2016, that is, 97 days later (52 days beyond the 45-day period). Moreover, he failed to explain
the delay. In consequence, the Title VII claim must be dismissed.

See, Román-Martínez v.

Runyon, 100 F.3d 213, 217 (1st Cir. 1996)(dismissing claim for failure to contact an EEO
counselor within 45-day period); Vázquez-Rivera v. Figueroa, 759 F.3d 44, 46 (1st Cir.
2014)(dismissal due to plaintiff’s failure to exhaust remedies and demonstrate entitlement to
equitable tolling).
Second, even though Title VII does not prohibit discrimination on account of age, the
ADEA does. See, 29 U.S.C. 623(a)(1), 631 (a) (codifying prohibition). It is unclear whether
plaintiff expressly referred to ADEA in his EEO complaint. But he administratively complained
of age discrimination yet (1) did not comply with the 45-day limit to contact the EEO counselor,
and (2) failed to excuse the delay, a fatal barrier to further litigation. Under the ADEA, federal
employees may choose to bypass the administrative remedies stage and sue directly in federal
district court. See, González-Pagán, 2016 WL 3910260, at *3-*4 (explaining and applying
statutory and regulatory scheme). If the employee chooses to file an administrative complaint,
however, administrative remedies must be exhausted before a suit may be filed in federal court.
Id. In that case, contact with an EEOC counselor must be initiated within 45 days as discussed
above. Id. See also, Betz v. Chertoff, 578 F.3d 929, 931-932, 937 (8th Cir. 2009)(dismissing
ADEA claim for failure to comply with 45-day term).
Third, there is no authority to press claims under Law 100 and Article 1802 of the Civil
Code, the two local statutes referred to in the Complaint. The only proper party defendant is the

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Secretary of the Department of Homeland Security. 5 That being so, the suit is against the United
States, which has not waived its sovereign immunity for suits under Puerto Rico’s laws. See,
Velázquez-Rivera, 234 F.3d at 795 (dismissing state claims on this basis). 6
Plaintiff states the Complaint includes claims under the First, Fifth and Fourteenth
Amendments to the Constitution; Section 1983 of the Civil Rights Act; the Americans with
Disabilities Act (“ADA”); the Rehabilitation Act; Sections 4 and 7 of Article II of the Constitution
of Puerto Rico; the Persons with Disabilities Act of Puerto Rico; and Articles 1802 and 1803 of
the Puerto Rico Civil Code (Docket No. 11 at 2, 15-16). Contrary to plaintiff’s view, the
Complaint is predicated on Title VII, Law 100 and Article 1802 (Docket No. 1 at 11-12). See,
“First Cause of Action” (Title VII, Law 100 and Article 1802), Id. at 11; “Second Cause of Action”
(Title VII, Law 100 and Article 1802), Id. at 11-12; “Third Cause of Action” (Title VII, Law 100
and Article 1802), Id. at 12. A plaintiff cannot add new claims to a complaint in opposition to a
motion to dismiss. See, Williams v. United States, 2017 WL 2275564, *2 (S.D. Ohio May 5,
2017), report and recommendation adopted, 2017 WL 2265591 (S.D. Ohio May 24, 2017).
At any rate, reliance on the First and Fifth Amendments does not breathe life into the
federal employment discrimination claims by carving out additional paths to relief.

See,

Vizcarrondo-González v. United States, 2017 WL 3242246, *4-*5 (D.P.R. July 28, 2017)

5

6

See note 1.

It is well settled that to expose the United States to suit, Congress must unequivocally waive sovereign immunity. See, United
States v. Michell, 445 U.S. 535, 538 (1980)(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Additionally, state
claims arising out of the same conduct covered by federal employment discrimination statues are preempted, inasmuch as those
statutes contain federal employees’ exclusive remedies for employment discrimination. See, Stoll, 2005 WL 4542884 at *5 (so
concluding in context of ADEA and Rehabilitation Act with respect to Law 100 and wrongful discharge). Puerto Rico follows a
similar approach. See, Santana-Colón v. Houghton Mifflin, 81 F.Supp.3d 129, 141 (D.P.R. 2014)(dismissing claim brought under
Puerto Rico’s general tort statute because the remedies available to the employee for violation of labor statutes are those set in the
statute prohibiting the conduct complained of, and the pleadings did not reflect tortious conduct distinct from that covered by the
specific labor laws that plaintiff invoked); Rivera v. Security National Life Insurance Co., 106 D.P.R. 517, 527 (1977)(remedial
exclusivity bars employer liability unless plaintiff demonstrates tortious conduct other than violation of labor statutes).

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(dismissing federal employee’s employment discrimination claims under First and Fifth
Amendments, given that Title VII provides both the exclusive cause of action and remedy for sex
discrimination and retaliation upon which action was based); Tapia-Tapia v. Potter, 322 F.3d 742,
745 (1st Cir. 2003)(finding plaintiff’s age discrimination allegations not justifiable when styled as
constitutional claims because the ADEA provides the exclusive federal remedy for age
discrimination in federal employment).
Further, assertion of the Fourteenth Amendment as a source of liability lacks foundation.
The Amendment applies to states, not the federal government or individual federal employees.
See, Vizcarrondo-González, 2017 WL 3242246 at *4 & n.9 (so recognizing)(citing in part San
Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 542, n.21
(1987)(Fourteenth Amendment applies to actions by a State) and Hall v. Mueller, 84 Fed.Appx.
814, 815-816 (9th Cir. 2003)(Fourteenth Amendment does not apply to federal government
actors)).
Finally, the ADA provides no remedy to federal employees. See, Field v. Napolitano, 663
F.3d 505, 510 & n.6 (1st Cir. 2011)(so noting). Instead, the Rehabilitation Act covers those
employees. Id. But it is subject to the 45-day exhaustion period. See, Hernández-Stella v.
Shinseki, 978 F.Supp.2d 105, 112 (D.P.R. 2013)(applying exhaustion requirement to
Rehabilitation Act claim); Linares-Rosado, 2012 WL 5199615 at *4-5 (same). 7 As discussed
above, plaintiff failed to comply with the requirement without excusing the noncompliance. In
like manner, the proper party defendant under the Rehabilitation Act is the Secretary of Homeland

7

The First Circuit has assumed without definitely deciding that the Rehabilitation Act requires federal employees wishing to bring
suit under the statute to first exhaust administrative remedies. See, Vázquez-Rivera v. Figueroa, 759 F.3d 44, 48 & n.2 (1st Cir.
2014)(discussing issue while pointing out that circuits have uniformly held the statute is subject to the exhaustion requirement).

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Civil No. 17-1542 (PAD)
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Security. See, Stool, 2005 WL 4542884 at *5 (concluding that Rehabilitation Act claims must be
brought against the head of the department, agency or unit as appropriate). Considering that the
suit is one against the United States, which as mentioned earlier, has not waived sovereign
immunity for suit under Puerto Rico’s laws, the local provisions cannot be invoked as a substantive
source of liability here.
IV.

CONCLUSION

In view of the foregoing, the motion to dismiss at Docket No. 10 is GRANTED and the
Complaint DISMISSED. Judgment shall be entered accordingly.
SO ORDERED.
In San Juan, Puerto Rico, this 29th day of November, 2017.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO HERNANDEZ
U.S. DISTRICT JUDGE