Perez-Abreu et al v. Metropol Hato Rey LLC et al, No. 3:2018cv01865 - Document 14 (D.P.R. 2019)
Court Description: OPINION AND ORDER granting 11 Motion to Dismiss for Lack of Jurisdiction; noted 13 Motion In Compliance. For the reasons explained in the opinion and order, the case is hereby dismissed. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 05/22/2019. (NNR)
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Perez-Abreu et al v. Metropol Hato Rey LLC et al Doc. 14 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR TH E D ISTRICT OF PU ERTO RICO Fra n cis co Pe re z-Abre u , e t al., Plaintiffs, v. Civil No. 18 -1865 (PG) Me tro p o l H ato Re y, LLC, e t al., Defendants. OPINION AND ORDER On Novem ber 13, 20 18, Plaintiffs Francisco Perez-Abreu, his wife Olga Felix-Ancon a, and the conjugal partnership Perez-Felix (collectively, “Plaintiffs”) filed this em ploym ent discrim ination suit against Metropol Hato Rey, LLC, and Restaurant Metropol 3, Inc. (“Defendants”). 1 The com plaint asserts claim s under the Age Discrim ination in Em ploym ent Act, also known as “ADEA,” 29 U.S.C. § 621 et seq., and Puerto Rico law. 2 Docket No. 1. Having been served and before answering the com plaint, Defendants m ove to dism iss all claim s under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. Docket No. 11. After a review of Defendants’ m otion, the court ordered Plaintiffs to show cause as to why their claim s should not be dism issed for the reasons stated by Defendants. Docket No. 12. At that tim e, the court granted Plaintiffs leave to am end the com plaint by April 12, 20 19 to assert their claim s with m ore specificity and cure any m aterial pleading deficiencies. 1 The com plaint alleges that Restaurant Metropol 3 was the corporation that owned and operated the restaurant known as “Metropol” in Hato Rey, San J uan , Puerto Rico, until its reorganization and relocation in Decem ber of 20 13. Docket No. 1 ¶¶ 4-8. 2 Specifically, Plaintiffs assert an age discrim ination claim under Law 10 0 , P.R. Laws Ann. tit. 29, § 146 et seq., based on the sam e facts alleged in support of the ADEA claim . In addition , they assert tort claim s under Articles 180 2 and 180 3 of Puerto Rico’s Civil Code, P.R. Laws Ann. tit. 31, §§ 5141 and 5142. Docket No. 1 pp. 5-6. Dockets.Justia.com Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 2 of 9 Plaintiffs filed their m otion in com pliance with the show cause order but never am ended the com plaint. Docket No. 13. Th e M o t i o n t o D i s m i s s Mainly, Defendants argue that Plaintiff Perez failed to exhaust adm inistrative rem edies on his ADEA claim s based on the alleged discrim inatory actions taken against him in scheduling and table assignm ents, both of which supposedly provoked a loss of Perez’s incom e. Docket No. 11 at pp. 5-9. Defen dants conten d that Perez neither filed a discrim ination charge with the EEOC (or the “ADU”) 3 within 30 0 days of these alleged actions, nor obtained a right-to-sue letter from the corresponding agency prior to filing suit. Accordingly, they ask the court to dism iss the ADEA claim s on failure to exhaust grounds. Alternatively, Defendants posit that the com plaint fails to state plausible ADEA claim s, an d therefore, subject to dism issal under Rule 12(b)(6). Finally, Defendants raise several bases for dism issal of the claim s brought under Puerto Rico law, 4 which the court does not reach for the reasons explained infra. I. STAN D ARD OF REVIEW Motions to dism iss brought under Rule 12(b)(1) and 12(b)(6) are subject to the sam e standard of review. Negrón– Gaztam bide v. Hernández– Torres, 35 F.3d 25, 27 (1st Cir. 1994). “When a district court considers a Rule 12(b)(1) m otion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's 3 “EEOC” is short for “Equal Em ploym ent Opportunity Com m ission ,” and “ADU” is the English acronym for the Antidiscrim ination Un it of the Puerto Rico Departm ent of Labor. 4 Id. pp. 13-17 (arguing that ( a) Plaintiffs failed to state a plausible claim under Law 10 0 ; ( b) both ADEA and Law 10 0 , as special labor laws, “preem pt” Perez’s Articles 180 2 and 180 3 claim s; ( c) Article 180 2 derivative claim brought by Perez’s wife should be dism issed if the em ploym ent discrim ination claim s are dism issed, an d that she is not entitled to com pensatory dam ages for em otional distress based on the alleged adverse em ploym ent actions taken against Perez because of his age; and ( d ) the court should decline to exercise supplem ental jurisdiction over the state law claim s in the absence of any actionable federal claim ). Page 2 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 3 of 9 favor.” Merlonghi v. United States, 620 F.3d 50 , 54 (1st Cir. 20 10 ) (citing Hosp. Bella Vista, 254 F.3d at 363). See also De Leon v. Vornado Montehiedra Acquisition L.P., 166 F. Supp. 3d 171, 173 (D.P.R. 20 16) (quoting Aversa v. United States, 99 F.3d 120 0 , 1210 (1st Cir. 1996)) (courts m ay also consider whatever evidence has been subm itted, including depositions and exhibits). The party invoking the jurisdiction of a federal court bears the burden of proving its existence. Gordo-Gonzalez v. United States, 8 73 F.3d 32, 35 (1st Cir. 20 17) (citing Murphy v. United States, 45 F.3d 520 , 522 (1st Cir. 1995). See also United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n. 6 (1st Cir. 20 0 5) (citing Deniz v. Municipality of Guaynabo, 28 5 F.3d 142 (1st Cir. 20 0 2); Bonilla v. Muebles J .J . Alvarez, Inc., 194 F.3d 275 (1st Cir. 1999)) (noting that “[f]ailure to exhaust adm inistrative rem edies and ripeness challenges m ay be appropriate in a m otion to dism iss for lack of subject m atter jurisdiction”). 5 Federal Rule of Civil Procedure 12(b)(6) authorizes the dism issal of a com plaint that fails to state a claim upon which relief could be granted. “To avoid dism issal, a com plain t m ust provide ‘a short and plain statem ent of the claim showing that the pleader is entitled to relief.’” Garcia-Catalan v. United States, 734 F.3d 10 0 , 10 2 (1st Cir. 20 13) (quoting F ED. R. CIV. P. 8 (a)(2)). Even though detailed factual allegations are not necessary for a com plaint to survive a m otion to dism iss, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ requires m ore than labels and conclusions, and a form ulaic recitation of the elem ents of a cause of action will not do [.]” Bell Atlantic Corp. v. Twom bly, 550 U.S. 544, 555 (20 0 7). Those nonconclusory factual allegations that the court accepts as true m ust 5 This does not necessarily m ean that ADEA’s adm inistrative exhaustion requirem ent is jurisdictional. See Tapia-Tapia v. Potter, 322 F. 3d 742, 744 (1st Cir. 20 0 3) (noting that “[c]om plian ce with this adm inistrative protocol is a precondition to suit in m ost cases[,]” subject to exceptions, and “such com pliance m ust occur before a federal court m ay entertain a suit that seeks recovery for an alleged violation of the ADEA”). Page 3 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 4 of 9 be sufficient to give the claim facial plausibility. Quiros v. Munoz, 670 F. Supp. 2d 130 , 132 (D.P.R. 20 0 9). “Determ ining whether a com plaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and com m on sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (20 0 9). With this in m ind, the court turns to the facts alleged in the com plaint. II. D ISCU SSION Th e F a c t s Plaintiff Perez is over 40 -years old. From 1988 to Decem ber 21, 20 13, he worked for Defendant Metropol 3 on a full-tim e basis. On Decem ber 20 , 20 13, Defendant inform ed Plaintiff and the other em ployees that the restaurant would undergo a reorganization, relocate an d re-open its doors on Decem ber 26, 20 13, under the n am e “Metropol Hato Rey, LLC.”6 Docket No. 1 ¶¶ 6-10 . The am en ded com plaint alleges two discrete acts of age-based discrim ination. The first one occurred back in 20 10 , when Defendants reduced Plaintiff’s workweek to 35 hours. 7 As a result, Perez suffered a reduction in his fixed incom e and the wages derived from tips. Id. ¶¶ 11-12. He continued to work a 35-hour workweek until March of 20 18, when Defendants reestablished his previous 40 -hour weekly schedule. Id. ¶ 15. The second action took place after Metropol’s reorganization in Decem ber of 20 13. Perez alleges that after the restaurant relocated, he was not assigned to a specific working station. Instead, he had to serve tables on a need-be basis, 8 and fewer clients, resulting in a loss of wages and tips. Id. 6 The court will refer to both restaurants as “Defendants” without further distinction. 7 As opposed to his weekly schedule of 40 hours, for which he requests no less than $ 20 ,0 0 0 for loss of incom e and, naturally, backpay. Id. ¶¶ 18-21. 8 Before that reorganization, Perez had an assignm ent of 5 tables with a capacity for (at least) 20 custom ers. Page 4 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 5 of 9 ¶ 14. Plaintiffs contend that age-based anim us m otivated the restaurant’s 20 13 reorganization; or that as part of the process, Defendants favored younger em ployees in relation to scheduling and table assignm ents. The com plaint hurriedly m entions that other unidentified em ployees who were age 40 or older, or with m ore seniority, were also affected. Id. ¶¶ 12-14. AD E A’s Ad m i n i s t r a t i v e E x h a u s t i o n R e q u i r e m e n t s Under ADEA, a plaintiff m ust file an em ploym ent discrim in ation charge with the EEOC (or the ADU) within 30 0 days of the alleged discrim ination or practice before suing in federal court. 29 U.S.C. § 626(d). See Tapia-Tapia, 322 F. 3d at 744; Gonzalez-Berm udez v. Abbott Laboratories PR Inc., 214 F. Supp. 3d 130 , 152 n. 6 (D.P.R. 20 16). The charge m ust generally describe the acts or practices that form the bases of the adm inistrative com plaint. Labiosa-Herrera v. Puerto Rico Telephone Com pany, 153 F. Supp. 3d 541, 547 (D.P.R. 20 16) (citing J orge v. Rum sfel, 40 4 F.3d 556, 565 (1st Cir. 20 0 5); Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990 )) (discussing adm inistrative exhaustion requirem ents under ADEA, with attention to content requirem ents of the factual statem ent in the EEOC charge). The point is to put the em ployer on notice of the alleged violations and give the parties an opportunity for conciliation before resorting to federal court. Id. (citing Thornton v. United Parcel Service, Inc., 587 F.3d 27, 32 (1st Cir. 20 0 9)) (noting that the factual statem ent incorporated in the charge should even alert any alternative or collateral grounds of discrim ination that a plaintiff raises for the first tim e in court). There are som e exceptions to the requirem ents of exhausting adm inistrative rem edies. See, e.g., Tapia-Tapia, 322 F.3d at 745 n. 4 (m entioning equitable tolling exception, am ong others); Pratt v. Prem ier Salons, Inc., 67 F. Supp. 3d 520 (D.P.R. 20 14) Page 5 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 6 of 9 (recognizing an exception based on the “substantial identity” between respondents in EEOC charge an d defendants nam ed in com plaint); Calderon v. Unitex, Inc., 8 85 F. Supp. 2d 539, 542-543 (D.P.R. 20 12) (briefly explaining two exceptions known as the “scope of the investigation rule” and the “reasonably related retaliatory claim s test”– also called the “Clockedile exception” after Clockedile v. New Ham pshire Dept. of Corrections, 245 F.3d 1, 6 (1st Cir. 20 0 1)– but ultim ately dism issing plaintiff’s disability discrim in ation claim s on failure to exhaust grounds). None of them apply here. Indeed, Plaintiffs concede that Perez never filed a charge with the EEOC within the tim e lim its the ADEA establishes, and therefore, did not exhaust adm inistrative rem edies for the ADEA claim s. Docket No. 13 ¶ 6. However, they invoke the “single filing” rule or exception and urge the court to adopt it. Id. (quoting Snell v. Suffolk County, 782 F.2d 10 94, 110 0 (2d Cir. 1986)) (citing Holowecki v. Fed. Express Corp., 440 F.3d 358 (2nd Cir. 20 0 6)). This exception, which has also com e to be known as “piggybacking,” would allow Perez to vicariously exhaust his adm inistrative filing responsibilities via another plaintiff’s tim elyfiled adm in istrative com plaint. Plaintiffs specifically purport to piggyback on one out of several EEOC-ADU charges filed by Perez’s coworker, J uan Santiago-Del Valle. Mr. Del Valle sued Metropol Hato Rey, LLC for alleged age discrim ination and the case is currently before Chief J udge Gustavo A. Gelpí. See Santiago-Del Valle v. Metropol Hato Rey, LLC, Civil No. 18 -18 64 (GAG). 9 9 A careful review of the com plaint in that case, subm itted by Plaintiffs in support of their m otion in com pliance, shows that Mr. Del Valle alleges that Metropol discrim inated against him and other age-protected em ployees by reducing their weekly hours and reassignin g workin g stations in favor of younger or less senior em ployees. Mr. Del Valle not only com plained to m anagem ent, but also filed several adm inistrative charges so claim ing. Docket No. 13-1 ¶¶ 14-17, 20 & 26. All in all, the facts alleged in the com plaints dem onstrate that som e of Mr. Del Valle’s and Perez’s individual claim s arise out of sim ilar discrim inatory treatm ent in the sam e tim e fram e (e.g., between 20 10 and 20 13). Id. ¶¶ 10 -21. Page 6 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 7 of 9 The single-filing exception has been adopted by m ost circuit courts, but not the First Circuit. See Peeples v. City of Detroit, 8 91 F.3d 622, 632-633 (6th Cir. 20 18 ); Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 120 2 (9th Cir. 20 16); Sheffield v. United Parcel Serv., Inc., 40 3 F. App'x 452, 454 (11th Cir. 20 10 ); Ruehl v. Viacom , Inc., 50 0 F.3d 375, 38 5 (3d Cir. 20 0 7). See also Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 120 8, 1217 (11th Cir. 20 0 1) (recognizing that the Eleventh Circuit applies the piggybacking rule to ADEA cases and discussing at length the two requirem ents used to do so). More than two decades ago, the First Circuit acknowledged so. See Basch v. Ground Round, Inc., 139 F.3d 6, 8 (1st Cir. 1998). On that occasion, the Court did not reach the m erits of the piggybacking rule, but m erely explain ed that “‘piggybacking’ perm its plaintiffs who have failed to file adm in istrative charges, or who have filed untim ely charges, to ‘piggyback’ on the tim ely-filed charges of other plaintiffs, provided the tim ely-filed charge gives the EEOC and the em ployer adequate notice of allegations of class-wide discrim ination.” Id. at 8-9 (citing, inter alia, Grayson v. K Mart Corp., 79 F.3d 10 86, 110 1-0 2 (11th Cir. 1996); Howlett v. Holiday Inns, Inc., 49 F.3d 18 9, 194 (6th Cir. 1995)). In Greene v. City of Bos., 20 4 F. Supp. 2d 239, 242 (D. Mass. 20 0 2), the district court of Massachusetts discussed the adoption of the piggybacking rule in other circuits, as well as the different tests used to determ ine whether an adm inistrative charge suffices to allow piggybacking by non-filing plaintiffs. Yet, the district court declined the plaintiffs’ invitation to allow them to piggyback their Title VII race discrim ination claim s onto that brought by police officer who satisfied adm inistrative exhaustion requirem ent, concluding that no allegation of class discrim ination was apparent of the face of that filing, so as to give Page 7 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 8 of 9 investigating agen cy notice that the filing officer was potentially speaking for class of sim ilarly situated officers. Id. Like the district court in Greene, this court believes that any inclination to adopt the single filing exception in our circuit would require that the adm inistrative charge of the filin g plaintiff at least contain intim ations of class-wide discrim ination. There are none here. 10 Im portantly, the First Circuit requires and strictly enforces adm inistrative exhaustion requirem ents when exhaustion is m andated by statute, as is the case with the ADEA or Title VII. See, e.g., Rodriguez v. United States, 852 F.3d 67, 78 -79 (1st Cir. 20 17); Vazquez-Rivera v. Figueroa, 759 F.3d 44, 47-48 (1st Cir. 20 14); Portela-Gonzalez v. Secretary of the Navy, 10 9 F.3d 74, 77 (1st Cir. 1997). And the fact rem ains that First Circuit precedent binds this court unless and until the First Circuit holds otherwise. Unfortunately for Plaintiffs, this m eans that there is no statutory basis, Suprem e Court or First Circuit decision on this point of law (that is, piggybacking) for adopting their proposed exception to the ADEA’s 10 However, the sim ilarities between the individual claim s asserted by Perez and Mr. Del Valle could pass m uster under the less strin gent standards or tests applied by other circuits that have adopted the single filing rule. Supra, note 11. For a general discussion of all the tests, see: Tolliver v. Xerox Corp., 918 F.2d 10 52, 10 57-58 (2d Cir. 1990 )) (citin g Snell, 78 2 F.2d at 10 94; Kloos v. Carter-Day Co., 799 F.2d 397, 40 1 (8th Cir. 198 6); Naton v. Bank of California, 649 F.2d 691, 697 (9th Cir. 1981)) (explainin g three different tests applied by the Second, Eighth and Ninth Circuits, with the broadest test requirin g claim s to arise out of sim ilar circum stances and tim e fram e, a “som ewhat n arrower test” requirin g notice of class-wide discrim ination, and the narrowest test requirin g that the adm in istrative charge allege class-wide discrim ination against a class and that the claim ant purports to represent the class or other individuals sim ilarly situated). See also Sheffield v. Un ited Parcel Serv., Inc., 40 3 F. App'x 452, 454 (11th Cir. 20 10 ) (quoting Calloway v. Partners Nat. Health Plans, 986 F.2d 446, 450 (11th Cir. 1993)) (“To qualify for this exception a plaintiff m ust show that ‘(1) the relied upon charge is not invalid, and (2) the individual claim s of the filing and non-filing plaintiff arise out of sim ilar discrim inatory treatm ent in the sam e tim e fram e.’”); Lusardi v. Lechner, 855 F.2d 10 62, 10 78 (3d Cir. 1988 ) (holdin g that original com plainant’s adm inistrative charge did not have to state specifically that it was being filed on behalf of “others sim ilarly situated,” but rather, provide sufficient notice to em ployer that “it allegedly discrim inated against persons over 40 years old as a class”). Page 8 of 9 Case 3:18-cv-01865-PG Document 14 Filed 05/22/19 Page 9 of 9 exhaustion m andate. Consequently, the court grants Defendants’ m otion to dism iss the ADEA claim s. 11 P u e r t o R i c o La w Cl a i m s “As a gen eral principle, the unfavorable disposition of a plaintiff's federal claim s at the early stages of a suit...will trigger the dism issal without prejudice of any supplem ental state-law claim s.” Gonzalez– De– Blasini v. Fam ily Dept., 377 F.3d 8 1, 89 (1st Cir. 20 0 4) (quoting Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)). See also 28 U.S.C. § 1367(c)(3). Due to the dism issal of Plaintiffs’ ADEA claim s, the court finds that supplem ental jurisdiction over the Puerto Rico law claim s is no longer appropriate. Accordingly, the court dism isses without prejudice the age discrim ination and tort claim s brought under Puerto Rico Law 10 0 and Articles 180 2 and 180 3 of the Puerto Rico Civil Code. III. CON CLU SION Because Perez failed to exhaust his adm inistrative rem edies before filing this suit, the court dism isses the ADEA claim s without prejudice. At this juncture, the court declines to exercise supplem ental jurisdiction over Plaintiffs’ Puerto Rico law claim s and dism isses them without prejudpice. J udgm ent dism issing this case will be entered accordingly. IT IS SO ORD ERED . In San J uan, Puerto Rico, May 22, 20 19. S/ J UAN M. PÉREZ-GIMÉNEZ J U AN M. P EREZ-GIMEN EZ S EN IOR U .S . D IS TRICT J U D GE 11 As a final m atter, the court finds that Plaintiffs failed to address Defendants’ conten tion that the ADEA claim s are tim e-barred, notwithstanding the court’s show cause order. Page 9 of 9
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