Kientz-Abreu v. Puerto Rico Ports Authority et al

Filing 26

OPINION AND ORDER: The request to dismiss the ADA and breach of contract claims against PRPA at Docket No. 13 is DENIED without prejudice. Not later than April 15, 2021, plaintiff shall show cause as to why the court should not d ismiss the Complaint for failure to exhaust administrative remedies in accordance with 29 C.F.R. Sec. 1614.504(a). The PRPA shall respond not later than 15 days after plaintiff's show-cause motion is filed. The request to dismiss t he tort claims against Ms. Cruz and Ms. Figueroa is GRANTED. Based on the reasoning for dismissal, the ruling applies to Ms. Garcia as well. Inasmuch as the claims against the individual defendants are being dismissed, Ms. Garcia's motion to dismiss at Docket No. 12 is DENIED AS MOOT.Signed by Judge Pedro A. Delgado-Hernandez on 3/31/2021.(LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
KAREN KIENTZ-ABREU,
Plaintiff,
v.

CIVIL NO. 19-2151 (PAD)

PUERTO RICO PORTS AUTORITY,
ET AL.,
Defendants.

OPINION AND ORDER
Delgado-Hernández, District Judge.
Plaintiff initiated this action against her employer Puerto Rico Ports Authority (“PRPA”)
and various PRPA employees, alleging: (1) violation of the American with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq. (“ADA”)(Docket No. 1 at ¶¶ 17-20); (2) breach of a Conciliation
Agreement under Articles 1054 and 1060 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31
§§ 1054 and 1060 (id. ¶¶ 2, 19-22); and, (3) tortious behavior involving the individual defendants
under Puerto Rico’s general tort statute, Article 1802 of the Puerto Rico Civil Code, P.R. Laws
Ann. tit. 31 § 5141(id. ¶¶ 2, 23-26). She requested reasonable accommodation and damages from
the PRPA; damages from the individual defendants; and interest, costs, and attorney’s fees from
all defendants (id. at p. 6).
Before the court are Mayra García-Irizarry’s “Motion to Dismiss Under FRCP 12(b)(1)”
(Docket No. 12) and PRPA’s, Susana Figueroa’s, and Jackeline Cruz-Cruz’s “Joint Motion to
Dismiss” (Docket No. 13), which plaintiff opposed (Docket No. 22). PRPA, Ms. Figueroa and
Ms. Cruz replied (Docket No. 23). For the reasons explained below, the motion to dismiss at
Docket No. 12 is DENIED as MOOT and the one at Docket No. 13 is GRANTED IN PART.

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Accordingly, the claims against Ms. Figueroa, Ms. Cruz and Ms. García must be and are hereby
DISMISSED.
I.

FACTUAL BACKROUND1

Plaintiff works as a Special Assistant in the Maritime Bureau of PRPA (Docket No. 1,
Facts Section at ¶ 1). She suffers from a pulmonary medical condition that according to the
Complaint, substantially limits her major life activities and places her under the protection of
ADA. Id. at ¶ 2. In 2010, she filed a Charge against PRPA with the Equal Employment
Opportunity Commission (“EEOC”) pursuant to the ADA Amendments Act of 2008 (EEOC
Charge 515-2010-00018), which resulted in a Conciliation Agreement entered into between
plaintiff and the PRPA in March 2013. Id. at ¶ 3.2 As part of the Agreement, PRPA agreed to
provide plaintiff with reasonable accommodation, consisting of PRPA’s commitment not to use
the cleaning agent “Clorox” within plaintiff’s workplace. Id. at ¶ 3.3
On June 14, 2013, plaintiff was exposed to “Clorox,” and contacted PRPA’s Human
Resources Department to inform PRPA of the situation “and inquire as to the steps taken by PRPA
in compliance with the Conciliation Agreement “(Docket No. 1, Facts Section at ¶ 4). She was

Unless otherwise indicated, the following facts are taken from the well-pleaded allegations in plaintiff’s complaint
(Docket No. 1).
1

In evaluating a motion to dismiss, courts “usually consider only the complaint, documents attached to it, and
documents expressly incorporated into it.” Foley v. Wells Fargo Bank, 772 F.3d 63, 71-72 (1st Cir. 2014). In this
case, the Conciliation Agreement is referred to in the Complaint (Docket No. 1, Factual Section at ¶ 3), and the parties
do not challenge its authenticity. On this basis, the court reviewed the Agreement (Docket No. 22.
2

3

The Clorox Company is a multinational manufacturer and marketer of consumer and professional products. It
markets bleach and cleaning products. See, www.thecloroxcompany.com/whoweare (last visited on March 22, 2021).
The Complaint does not shed any light as to whether the Conciliation Agreement was limited to the Clorox brand or
if plaintiff’s health issues are related and limited to the active ingredient of a household bleach (sodium hypochlorite)
regardless of the brand. Review of the Conciliation Agreement does not help either, as it also refers to the “Clorox”
product as “Cloro.”

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never informed of any such steps. Id. Some years later, on February 28, 2019, Ms. Cruz, a PRPA
janitor, cleaned the office bathroom facilities with “Clorox.” Id. ¶ 5.4 Ms. Cruz’ supervisor, Ms.
García, and Ms. Figueroa, PRPA’s Equal Opportunity Manager, were aware that Ms. Cruz was
going to clean the bathrooms with Clorox and “did nothing to prevent it’s usage.” Id. at ¶ 5.5
As a result, plaintiff was exposed to “Clorox,” and developed respiratory complications
(Docket No. 1, Facts Section at ¶¶ 6-7). She sought treatment with the Puerto Rico State Insurance
Fund (the “Fund”) and was not able to return to work until March 22, 2019. Id. at ¶¶ 7-8. On June
26, 2019, she filed a Charge of Discrimination with the EEOC (Charge No. 515- 2019-00404). Id.
¶ 11.6 On September 24, 2019, the EEOC provided plaintiff with a right-to-sue letter. Id. at ¶ 12.7
This action ensued.
II.

PROCEDURAL DEVELOPMENTS

On December 23, 2019, plaintiff filed the Complaint (Docket No. 1). On March 12, 2020,
Ms. García requested dismissal without prejudice of all state law claims, arguing that they
substantially predominate over the claim for injunctive relief under the ADA (Docket No. 12). On
the same day, the remaining defendants moved to dismiss, stating that: (i) the Complaint fails to
specifically allege which major life activity is affected by plaintiff’s alleged disability; (ii) plaintiff
has been reasonably accommodated given that the Clorox incident she referred to is but a single,

The Complaint erroneously refers to Ms. Cruz as “Jacqueline.” See, e.g. Docket No. 1, p. 3 at ¶ 5. Her name is
correctly spelled as Jackeline (Docket No. 13). Also, it is unclear if the issue involved only one bathroom or more
than one, as the Complaint refers to the “office bathroom facilities” (Docket No. 1 at ¶ 5) and in other instances as
“bathrooms” (id. at ¶¶ 5, 25, 26).
4

In some instances, the Complaint refers to Figueroa as “Susana” (Docket No. 1, Parties Section at ¶ 3). In others, as
“Susan” (id. at ¶ 5). Her correct name is Susana (Docket No. 13).
5

6

The content of this Charge is unclear.

7

PRPA does not question that plaintiff received a right-to-sue letter on September 24, 2019.

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isolated mistake: (iii) plaintiff has not established to have suffered an adverse employment action;
and (iv). defendants are immune from tort liability under the Puerto Rico Workers’ Accident
Compensation Act, Law 45 of April 18, 1935, as amended (“PRWACA”)(Docket No. 13).8
Furthermore, they claimed that plaintiff lacks standing to request prospective reasonable
accommodation, for there is no real and immediate threat that an isolated event of Clorox use in a
bathroom will occur again. Id. On April 17, 2020, plaintiff replied to the dismissal requests
(Docket No. 22). On April 24, 2020, PRPA, Ms. Cruz and Ms. Figueroa replied (Docket No. 23).
III.

DISCUSSION

A. Motion to Dismiss
To survive a motion to dismiss, a complaint must allege a plausible entitlement to relief.
See, Rodríguez-Vives v. Puerto Rico Firefighters Corps., 743 F.3d 278, 283 (1st Cir. 2014)
(examining standard); Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir.
2013)(same). 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).

In the motion, Ms. Figueroa and Ms. Cruz also request dismissal of plaintiff’s claims against them under ADA,
claiming that this statute does not recognize individual liability (Docket No. 13, p. 8). Still, there is no claim against
them under ADA. To the contrary, the ADA claim is only directed to the PRPA, not against the individual defendants
(Docket No. 1, p. 4 at ¶¶ 19, 20)(First Cause of Action-ADA Violation)(“The [PRPA] through its actions or omissions
has discriminated against plaintiff” and “[plaintiff request that her employer provide reasonable accommodation in
the workplace through the non-usage of toxic cleaning agents (Clorox)”). Plaintiff so recognizes (Docket No. 22, pp.
6-7)(acknowledging that her claims against the individual defendants are only under Article 1802 of the Puerto Rico
Civil Code). Thus, the request to dismiss the ADA claims against the individual defendants must be denied as
unnecessary.
8

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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 meager,
vague, or conclusory 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). This
inquiry “does not demand a high degree of factual specificity.” García-Catalán, 734 F.3d at 103.
Sufficiency may be found even if a plaintiff has not alleged every fact necessary to win at trial or
to successfully resist summary judgment. See, Rodríguez-Vives, 743 F.3d at 283(addressing
topic). Even so, the complaint must contain more than “a rote recital of the elements of a cause of
action.” Rodríguez-Reyes, 711 F.3d at 53. All reasonable inferences must be drawn in “the
pleader’s favor.” Id. at 52-53.
B. Merits
1. ADA/Conciliation Agreement/Breach of Contract9
a. Jurisdiction
As for ADA violations and breach of the Conciliation Agreement, the pleadings raise the
jurisdictional issue of whether a party may bring a civil action related to a conciliation agreement
without exhausting remedies specifically established in the EEOC to deal with those agreements.
In Santiago del Valle v. Metropol Hato Rey, LLC, 2019 WL 3955395 (D.P.R. August 21, 2019),
a sister court in this District concluded that exhaustion may not be dispensed with. The court noted
that an action to enforce a EEOC settlement agreement constitutes a civil action brought directly
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., such that federal courts

9

These claims relate to PRPA, not to the individual defendants.

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have jurisdiction over it. Id. at *3 (internal citations omitted). It pointed out that this is so
regardless of whether the enforcer of the agreement is a private party, as opposed to the EEOC, as
long as the document to be enforced arose from the EEOC’s auspices. Id. And it stated that given
that prior to filing an action in federal court, Title VII requires exhaustion of administrative
remedies, plaintiff must first allow the EEOC to address the alleged breach. Id. at *4.10
In context, the requirement does not operate in a vacuum. The EEOC adopted a specific
provision – 29 C.F.R. § 1614.504(a) – to deal with exhaustion and EEOC settlement agreements.
To this end, Section 1614.504(a) provides that:
Any settlement agreement knowingly and voluntarily agreed to by
the parties, reached at any stage of the complaint process, shall be
binding on both parties ... If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement or
decision, the complainant shall notify the EEOC Director, in
writing, of the alleged noncompliance within 30 days of when the
complainant knew or should have known of the alleged
noncompliance. The complainant may request that the terms of
settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Id. Thus, to give the EEOC the first opportunity to address any alleged breach, a complainant shall
notify the agency within 30 days of the asserted noncompliance.11 Otherwise, the district court
may not “adjudicate the employee’s claim.” Santiago del Valle, 2019 WL 3955395 at *4.

10

The same reasoning applies to ADA, as given the similarities between ADA and Title VII, courts generally interpret
these statutes consistently. See, E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1038 n.11 (10th Cir. 2011)(so
recognizing).
11

In fact, Paragraph 3 of Section II of the Conciliation Agreement provides that the EEOC shall determine whether
PRPA has complied with the terms of the Agreement (Docket No. 22-2, p. 2, ¶ 3), whereas Paragraph 6 states that the
Agreement may be specifically enforced in court and be used as evidence in a subsequent proceeding in which any of
the parties allege a breach (id., p. 3, ¶ 6). Both paragraphs come together in the exhaustion procedure described in 29
C.F.R. § 1614.504(a), as the first and second steps in a civil action arising from the Agreement.

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b. Analysis
The Complaint alleges that in 2019, plaintiff filed a Charge of Discrimination with the
EEOC (Charge Number 515-2019-00404)(Docket No. 1, p. 4, ¶ 11). But it is unclear whether she
provided notice to the EEOC of PRPA’s alleged breach of the Conciliation Agreement in that
charge so as to allow the agency to address the breach, as Section 1614.50(a) requires. The
insufficiency in the allegations on this point is problematic and may lead to dismissal. See,
Santiago del Valle, 2019 WL 3955395 at *4 (dismissing Title VII action due to plaintiff’s failure
to demonstrate exhaustion of administrative remedies as to breach of EEOC settlement agreement).
Nonetheless, the court will make available to plaintiff a period to show that she exhausted
administrative remedies as called for in the cited provision. Under these circumstances, the motion
to dismiss regarding ADA must be denied without prejudice. And because jurisdiction is a
threshold question that needs to be answered before moving the case forward, there is no need to
address at this time whether remedies are available to plaintiff under the Puerto Rico Civil Code
to deal with the alleged breach of the Conciliation Agreement.
2. Tort Claims
Plaintiff claims entitlement to recovery of damages against the individual defendants under
Article 1802 of the Puerto Rico Civil Code (Docket No. 1, ¶¶ 2, 23-26).12 These defendants argue
that those claims should be dismissed on PRWACA immunity grounds (Docket No. 13, pp. 9-12).
They contend that the immunity that PRWACA provides to employers against tort actions for work
accidents suffered by their employees precludes tort actions not only against the insured employer
but as to its employees as well (id.). Further, they state that insofar as the Complaint fails to allege

12

The tort claims are directed at the individual defendants, not at PRPA.

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that PRPA is not insured with the Fund, PRPA should be considered insured under PRWACA and,
by extension, immune from suit for work-related accidents (id.). Dismissal is appropriate.
a. General Principles
Article 1802 imposes liability upon a person for an “act or omission” that “causes damages
to another through fault or negligence.” P.R. Laws Ann. tit. 31, § 5141. To recover on a
negligence-based tort claim pursuant to Article 1802, “a plaintiff must establish: (1) a duty
requiring the defendant to conform to a certain standard of conduct, (2) breach of that duty, (3)
proof of damage, and (4) a causal connection between the damage and the tortious conduct.”
Baum-Holland v. Hilton El Con Management, LLC, 964 F.3d 77, 87 (1st Cir. 2020). As applied
to employers, the employer has a non-delegable legal duty to provide a safe workplace for its
employees. See, Rivera v. Superior Packaging, Inc., 132 D.P.R. 115, 1992 P.R. Eng. 754, 830,
P.R. Offic. Trans. (1992) at 12 (recognizing duty). It fulfills that duty through its officers, agents
and employees. Id. at 13.
In this light, when the alleged negligence of the officer, agent, or employee derives from
breach of the employer’s duty, “the injured worker cannot sue the coworker.” Rivera, 132 D.P.R.
115, 1992 P.R. Eng. 754, 830, P.R. Offic. Trans. (1992) at 13. So, any such breach is exclusively
chargeable to the employer when the employee is claimed to have caused damages while acting as
an agent or representative of the employer, discharging the responsibilities of her position. Id. An
employee, however, may be liable for a fellow worker’s injuries if the tortious act is not tied to the
performance of the sued employee’s functions. Put another way, the act in question must be a
breach of the employee’s personal obligations as a citizen, separate and apart from those stemming
from the employment relationship. Id. at 11.

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The coworker immunity applies regardless of whether the employer is insured with the
Fund. However, it also operates in that setting. With this in mind, an employee injured in a work
accident as a result of the employer’s breach of the nondelegable duty to provide a safe workplace
may sue the employer for damages. That is, unless the employer is insured with the Fund in
accordance with PRWACA. See, Rawles v. Sea-Land Services, Inc., 1997 WL 665542, *2 (D.P.R.
Sept. 26, 1997)(“Once an employer is found to be uninsured for purposes of the PRWACA, the
employer is no longer considered immune from suit and the statute allows the worker to prosecute
a civil action in tort against his employer for the damages sustained as a result of his work related
accident”).
From this perspective, PRWACA provides employers which have insured their employees
with the Fund “immunity against any civil action arising out of a work-related accident.” BenitoHernando v. Gavilanes, 849 F.Supp.136, 139 (D.P.R. 1994). In those cases, the injured worker
lacks a cause of action against his employer for damages regardless of the employer’s degree of
negligence. Vega-Mena v. United States, 990 F.2d 684, 686 (1st Cir. 1993). The injured worker
“can only resort to the … Fund.” Rivera, 132 D.P.R. 115, 1992 P.R. Eng. 754, 830, P.R. Offic.
Trans. (1992) at 13. The immunity extends to the insured employer’s officers, agents and
employees. Id. at 14. And like in cases where the employer lacks Fund insurance, those officers,
agents and employees may be sued only if their allegedly tortious behavior is a breach of their
personal obligations as a citizen, separate and apart from those stemming from the employment
relationship. Id. at 11.
b. Analysis
From the pleadings, plaintiff sued Ms. Cruz, Ms. García and Ms. Figueroa under Article
1802 because as part of Ms. Cruz’s work as a janitor in the PRPA, she decided to use Clorox as a

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cleaning agent in the bathrooms located at PRPA, and Ms. García – as Ms. Cruz’ direct supervisor
– and Ms. Figueroa – as PRPA’s Equal Opportunity Manager – allowed Ms. Cruz to do so (Docket
No. 1, ¶¶ 24-26). Whatever duty these individuals breached stems from the employer-employee
relationship. It is not one that exists outside of that relationship and PRPA’s obligation to provide
plaintiff with a safe workplace.13 That being so, the claims against the individual defendants under
Article 1802 must be dismissed. The same result is reached taking into consideration PRPA’s
status as an insured employer with the Fund.14
IV.

CONCLUSION

In view of the foregoing, the request to dismiss the ADA and breach of contract claims
against PRPA is DENIED without prejudice. Not later than April 15, 2021, plaintiff shall show
cause as to why the court should not dismiss the Complaint for failure to exhaust administrative
remedies in accordance with 29 C.F.R. § 1614.504(a). The PRPA shall respond not later than 15

13

Indeed, arguing against dismissal, plaintiff asserts that the act of cleaning a rest room or the usage of the cleaning
agent “Clorox” “is not considered a recognized hazard, contemplated on the duties of providing a safe work
environment pursuant to the law” (Docket No. 22, p. 8). From this premise, she maintains that the actions for which
damages are sought against the individual defendants “are not actions protected by the workers compensation
immunity of failing to provide a safe work environment” (id.). And she adduces that the individual defendants knew
or should have known that she suffers from a pulmonary condition “and that the employer entered into an agreement
prohibiting the usage of the cleaning agent” (id.). Given that from this line of reasoning, Clorox is not considered a
recognized hazard, its use here is not one that could be said to have breached a general duty of care such as underpins
Article 1802 of the Civil Code. The reason it is being used to advance plaintiff’s case is because as plaintiff admits,
the employer – not the individual defendants – undertook by agreement – the Conciliation Agreement – the obligation
not to use it plaintiff’s workplace. In this way, it became part of the PRPA’s duty to provide a safe workplace, in
other words, a non-delegable duty under Puerto Rico law for which only the employer can be held liable but may not
if it is insured with the Fund in accordance with WACA.
Plaintiff understands that “any prudent person would not use or allow the usage of the cleaning agent if the same
would cause damages upon a co-worker” (Docket No. 22, p. 8). But that does not resolve plaintiff’s problem. As the
First Circuit observed in evaluating a WACA immunity claim, “a worker’s assault upon a coworker may not be
compensable [under WACA] if based on animosity or conflict arising out of a purely private and personal matter
between the coworkers … But [the] cross-claim contains no allegation that some private and personal conflict between
the two [workers] motivated [the coworker’s] action” (namely, the fatal shooting of the co-employee). FernándezVargas v. Pfizer, 522 F.3d 55, 66 (1st Cir. 2008). Like in there, here, as the Complaint does not include allegations of
a private and personal conflict between plaintiff and Ms. Cruz, Ms. Figueroa, or Ms. García that resulted in the
intentional inflicting of damages.
14

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days after plaintiff’s show-cause motion is filed. The request to dismiss the tort claims against
Ms. Cruz and Ms. Figueroa is GRANTED. Based on the reasoning for dismissal, the ruling applies
to Ms. García as well. Inasmuch as the claims against the individual defendants are being
dismissed, Ms. García’s motion to dismiss at Docket No. 12 is DENIED AS MOOT.
SO ORDERED.
In San Juan, Puerto Rico, this 31st day of March, 2021.
s/Pedro A. Delgado Hernández
PEDRO A. DELGADO HERNÁNDEZ
United States District Judge