Loubriel v. Fondo del Seguro del Estado, No. 3:2009cv01994 - Document 45 (D.P.R. 2011)

Court Description: OPINION AND ORDER granting re 32 MOTION for Summary Judgment filed by Fondo del Seguro del Estado The Clerk is directed to enter judgment dismissing the complaint. Signed by Chief Mag. Judge Justo Arenas on 3/24/2011.(nydi)

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Loubriel v. Fondo del Seguro del Estado 1 Doc. 45 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 ADVILDA LOUBRIEL, 5 6 Plaintiff, 7 v. 8 FONDO DEL SEGURO DEL ESTADO, 9 CIVIL 09-1994 (JA) Defendant 10 11 OPINION AND ORDER 12 13 14 This matter is before the court on motion for summary judgment filed by defendant on January 14, 2011. (Docket No. 32.) The plaintiff filed her response 15 16 in opposition to the defendant s motion for summary judgment on February 15, 17 2011. (Docket No. 44.) For the reasons set forth below, the defendant s motion 18 for summary judgment is GRANTED. 19 I. Factual Background 20 21 The plaintiff, a general practitioner, has worked for the defendant since 22 1995. (Docket No. 43-1, at 1, ¶ 3.) She suffers from a degenerative arthritis 23 condition that requires her to undergo treatment and has a detrimental effect on 24 her day-to-day faculties. (Docket No. 43-1, at 1, ¶ 4.) This disease has also had 25 26 27 a negative impact on the plaintiff s health and has resulted in many occasions of missed work in recent years. 28 Dockets.Justia.com 1 CIVIL 09-1994 (JA) 2 2 3 The plaintiff requested an extended leave of absence of 45 days in February 4 5 2008. (Docket No. 35, at 1-2, ¶ 2.) The defendant denied this request, citing the 6 continued need for the plaintiff s services. 7 plaintiff then sought shelter under her union s protection and appealed the 8 (Docket No. 1, at 3, ¶ 12.) The defendant s decision. (Docket No. 35, at 2, ¶ 4.) The defendant sustained the 9 10 denial. (Docket No. 35, at 2, ¶ 4.) 11 The plaintiff filed a claim with the Puerto Rico Department of Labor and 12 Human Resources on February 11, 2009, requesting the right to sue the 13 defendant. The Department referred the case to the Equal Employment 14 15 Opportunity Commission ( EEOC ) on March 6, 2009. (Docket No. 38-5.) The 16 EEOC issued a Notice of Right to Sue on May 8, 2009. (Docket No. 35-10.) The 17 plaintiff alleges in the complaint that she received said notification on September 18 10, 20081. (Docket No. 1, at 2, ¶ 3.) 19 20 The plaintiff filed the instant action on September 29, 2009. (Docket No. 21 1.) She submits that in denying her requests for a reasonable accommodation 22 under the American Disabilities Act, 42 U.S.C. § 12101 et seq., the defendant is 23 in violation of that statute. (Docket No. 1, at 4-5, ¶¶ 16-20.) Moreover, the 24 plaintiff accuses the defendant of retaliation in relation to her attempting to assert 25 26 27 28 her rights. 1 (Docket No. 1, at 5, ¶¶ 25-26.) Finally, the plaintiff invokes this The complaint contains a definite mistake or two in the last sentence of paragraph 3. 1 CIVIL 09-1994 (JA) 3 2 3 court s supplemental jurisdiction to bring claims under state law regarding 4 5 discrimination against disabled persons, P.R. Laws Ann. tit. 1, § 501 et seq. and 6 the general state tort statute, Article 1802, P.R. Laws Ann. tit. 31, § 5141. 7 (Docket No. 1, at 5, ¶¶ 21-22; Docket No. 5, at 5, ¶¶ 23-24.) The defendant filed 8 its answer to the complaint on January 15, 2010. (Docket No. 13.) 9 The defendant filed the present motion for summary judgment on 10 11 January 14, 2011. (Docket No. 32.) The defendant alleges that the plaintiff s 12 federal claims should be dismissed because she failed to promptly file her claims 13 after receiving the EEOC s right-to-sue letter. (Docket No. 33, at 4-5.) Moreover, 14 15 the defendant submits that even if I find that the plaintiff timely filed her 16 complaint, she cannot provide a prima facie showing of retaliation under Title VII. 17 (Docket No. 33, at 5-6.) Finally, defendant urges the court to decline exercising 18 jurisdiction as to state claims if the federal claims are dismissed. (Docket No. 33, 19 20 at 6.) 21 The plaintiff filed her response on February 15, 2011. (Docket No. 44.) She 22 retorts that the deadline did not lapse, and even if it did, her allegations amount 23 to a continuous violation, that would continue to the present day, and would 24 thus avoid the 90-day filing requirement. (Docket No. 44, at 6-8.) Finally, even 25 26 27 28 if this issue were to be resolved in the defendant s favor, the plaintiff argues that 1 CIVIL 09-1994 (JA) 4 2 3 the doctrine of laches or estoppel should preclude the defendant from requesting 4 5 summary judgment. (Docket No. 44, at 8-14.) II. Summary Judgment Standard 6 7 8 Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue 9 10 as to any material fact and that the movant is entitled to judgment as a matter 11 of law. Fed. R. Civ. P. 56(a)2; Meléndez v. Autogermana, Inc., 622 F.3d 46, 49 12 (1st Cir. 2010). The intention of summary judgment is to pierce the pleadings 13 and to assess the proof in order to see whether there is a genuine need for trial. 14 15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 16 (quoting Fed. R. Civ. P. 56(e)). Once the moving party has properly supported 17 [its] motion for summary judgment, the burden shifts to the nonmoving party, 18 with respect to each issue on which [it] has the burden of proof, to demonstrate 19 20 that a trier of fact reasonably could find in [its] favor. Santiago-Ramos v. 21 Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting 22 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)); Cruz-Claudio v. García 23 Trucking Serv., Inc., 639 F. Supp. 2d 198, 203 (D.P.R. 2009.) 24 25 2 26 27 28 Rule 56 was amended, effective December 1, 2010. The standard for granting summary judgment now appears in subsection (a), but remains substantively the same. Del Toro Pacheco v. Pereira, --- F.3d ----, 2011 WL 347131, at *3 n.6 (1st Cir. Jan. 31, 2011) (citing Fed. R. Civ. P. 56 advisory committee s note). 1 CIVIL 09-1994 (JA) 5 2 3 [T]he mere existence of some alleged factual dispute between the parties 4 5 will not defeat an otherwise properly supported motion for summary judgment; 6 the requirement is that there be no genuine issue of material fact. Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Carrol v. Xerox Corp., 8 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils Band Employee Benefit 9 10 Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996)) 11 ( [N]either conclusory allegations [nor] improbable inferences are sufficient to 12 defeat summary judgment. ) 13 14 15 16 17 18 An issue is genuine if the evidence of record permits a rationale factfinder to resolve it in favor of either party. See Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). A fact is material if its existence or nonexistence has the potential to change the outcome of the suit. See Martínez v. Colón, 54 F.3d 980, 984 (1st Cir. 1995). Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5-6 (1st Cir. 2010). 19 20 The nonmoving party must produce specific facts showing that there is a 21 genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 22 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)); see also López-Carrasquillo v. 23 Rubianes, 230 F.3d 409, 413 (1st Cir. 2000); Amira-Jabbar v. Travel Servs., Inc., 24 726 F. Supp. 2d 77, 84 (D.P.R. 2010). 25 26 27 28 Puerto Rico Local Rule 56 1 CIVIL 09-1994 (JA) 6 2 3 In the District of Puerto Rico, Local Rule 56(b), previously Local Rule 4 5 311(12), imposes additional requirements on the party filing for summary 6 judgment as well as the party opposing the motion. 7 judgment has to be accompanied by a separate, short, and concise statement of 8 A motion for summary material facts, set forth in numbered paragraphs, as to which the moving party 9 10 contends there is no genuine issue of material fact to be tried. Each fact asserted 11 in the statement shall be supported by a record citation as required by subsection 12 (e) of this rule. Local Rules of the United States District Court for the District of 13 Puerto Rico, Local Rule 56(b) (2009). When filing a motion in opposition the 14 15 opposing party must include a separate, short, and concise statement admitting, 16 denying or qualifying each fact set out by the moving party. Local Rules 56(a); 17 see Morales v. A.C. Orssleff s EFTF, 246 F.3d 32, 33 (1st Cir. 2001); Ruiz Rivera 18 v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000); Domínguez v. Eli Lilly & Co., 958 F. 19 20 21 Supp. 721, 727 (D.P.R. 1997); see also Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir. 2001). 22 These facts must be supported by specific reference to the record, thereby 23 pointing out to the court any genuine issues of material fact and eliminating the 24 problem of the court having to ferret through the Record. Domínguez v. Eli Lilly 25 26 & Co., 958 F. Supp. at 727; see Carmona Ríos v. Aramark Corp., 139 F. Supp. 2d 27 210, 214-15 (D.P.R. 2001) (quoting Stepanischen v. Merch. Despatch Transp. 28 1 CIVIL 09-1994 (JA) 7 2 3 Corp., 722 F.2d 922, 930-31 (1st Cir. 1983)); Velázquez Casillas v. Forest Lab., 4 5 Inc., 90 F. Supp. 2d 161, 163 (D.P.R. 2000). Any statement of fact provided by 6 any party which is not supported by citation to the record may be disregarded by 7 the court, and any supported statement which is not properly presented by the 8 other party shall be deemed admitted. See Local Rule 56(e). Failure to comply 9 10 with this rule may result, where appropriate, in judgment in favor of the opposing 11 party. Morales v. A.C. Orssleff s EFTF, 246 F.3d at 33; Stepanischen v. Merch. 12 Despatch Transp. Corp., 722 F.2d at 932. 13 III. Analysis 14 15 The defendant claims that the plaintiff should have her federal claims 16 dismissed as she failed to properly and timely file her claims after receiving the 17 EEOC s right-to-sue notice. Specifically, the record indicates that the EEOC issued 18 a Notice of Right to Sue on May 8, 2009. (Docket No. 35-10.) The notice states 19 20 that the plaintiff must file a claim in federal court within 90 days on her Title VII 21 and ADA claims. 22 plaintiff filed her complaint on September 29, 2009, some 144 days later. The 23 defendant thus concludes that [the plaintiff s] claims . . . are time barred[.] 24 (Docket No. 35-10.) The record further indicates that the (Docket No. 33, at 4.) 25 26 Title VII of the Civil Rights Act of 1964 requires plaintiffs, before beginning 27 a federal lawsuit, to file a timely charge of discrimination with the Equal 28 1 CIVIL 09-1994 (JA) 8 2 3 Employment Opportunity Commission (EEOC). Lewis v. City of Chi., Ill., 130 S. 4 5 Ct. 2191, 2195 (2010) (citing 42 U.S.C. § 2000e-5(e)(1)). 6 U.S.C. § 2000e-5(e)(1)3 , a . . . plaintiff is required to file an administrative 7 charge with the EEOC within either 180 or 300 days after the alleged unlawful 8 employment practice occurred. Under Title VII, 42 Frederique-Alexandre v. Dep t of Natural & 9 10 Envtl. Res., 478 F.3d 433, 437 (1st Cir. 2007). The filing of an administrative 11 charge affords the EEOC an opportunity to promote the settlement of a dispute 12 before the parties resort to litigation. See Patterson v. McLean Credit Union, 491 13 U.S. 164, 180-81 (1989); Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31 14 15 (1st Cir. 2009.) A Title VII plaintiff must file suit within 90 days upon actual 16 receipt of the right-to-sue notice by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 17 see also Chico-Vélez v. Roche Prod., Inc., 139 F.3d 56, 58 (1st Cir. 1998); 18 Vargas-Cabán v. Sally Beauty Supply Co., 476 F. Supp. 2d 109, 113 (D.P.R. 19 20 2007). A plaintiff must exhaust his administrative remedies, including EEOC 21 procedures, before proceeding under Title VII in federal court. Frederique- 22 Alexandre v. Dep t of Natural & Envtl. Res., 478 F.3d at 440 (citing Lebrón-Ríos 23 v. U.S. Marshal Serv., 341 F.3d 7, 13 (1st Cir. 2003)). 24 25 26 27 28 3 Puerto Rico is considered a deferral jurisdiction, and thus an administrative charge must be filed within 300 days. See Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st Cir. 2003); Ayala-González v. ToledoDávila, 623 F. Supp. 2d 181, 186 n.3 (D.P.R. 2009). 1 CIVIL 09-1994 (JA) 9 2 3 As stated, the defendant takes issue with the plaintiff s five-month delay in 4 5 filing suit in this court. The plaintiff appears4 to allege that she did not receive her 6 notice of right to sue until September 10, 2008, presumed as 2009, (Docket No. 7 43, at 5, ¶ 9), which reduces the period between receiving her notice and filing 8 this action to 19 days. Thus, there is a disagreement between the parties as to 9 10 the plaintiff s actual or constructive date of receipt of the right-to-sue notice. 11 Federal Rule 6(e) provides that [w]henever a party must act within a prescribed 12 period after service is made [by mail], 3 days are added after the prescribed 13 period would otherwise expire. Vargas-Cabán v. Sally Beauty Supply Co., 476 14 15 F. Supp. 2d at 113. And in such cases, in which the date of receipt is either 16 disputed or cannot be established, Rule 6 creates a presumption that the 17 communication was received by plaintiff three days after it was issued by the 18 EEOC. Id. at 114 (quoting Sánchez-Ramos v. P.R. Police Dep t, 392 F. Supp. 2d 19 20 167, 175 (D.P.R. 2005) (quoting Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 21 147, 148 (1984)). This makes sense, as the EEOC sends its decisions by first 22 class mail. 29 C.F.R. § 1614.405(a) ( The [EEOC s] decision shall reflect the date 23 of its issuance, inform the complainant of his or her civil action rights, and be 24 transmitted to the complainant and the agency by first class mail. ). The record 25 26 27 28 4 The plaintiff alleges in the complaint that she did not receive the right-tosue notice until September 10, 2008[,] which contradicts the EEOC letter before the court. (Docket No. 1, at 2, ¶ 3.) 1 CIVIL 09-1994 (JA) 10 2 3 indicates that the EEOC mailed the right-to-sue notice on May 9, 2009, and thus 4 5 I presume that the plaintiff received her right-to-sue notice on May 12, 2009. The 6 time between then and plaintiff s filing of her complaint would be reduced to 141 7 days under this rule. This is still considerably beyond the scope of the time-frame 8 permitted by Congress. The rule is firm. See Baldwin Cnty. Welcome Ctr. v. 9 10 Brown, 466 U.S. at 152 ( Procedural requirements established by Congress for 11 gaining access to the federal courts are not to be disregarded by courts out of a 12 vague sympathy for particular litigants. ). 13 The plaintiff attempts to avoid this procedural bar by claiming that the 14 15 defendant s behavior amounts to a continuous violation. Plaintiff allegedly 16 continues to endure the same disparate treatment and discriminatory conduct, 17 and therefore her discrimination claims include[] all of the Defendant s 18 discriminatory and retaliatory conduct, as a continuous violation of Title VII. 19 20 (Docket No. 44, at 7.) 21 There are two doctrines or theories for Title VII employment discrimination 22 cases, one for claims arising from discrete discriminatory acts and another for 23 hostile environment claims whose very nature involves repeated conduct. 24 Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Our circuit court 25 26 recognizes two types of continuing violations: serial violations and systemic 27 violations. 28 Thornton v. United Parcel Serv., Inc., 587 F.3d at 33. A party 1 CIVIL 09-1994 (JA) 11 2 3 alleging employment discrimination may, in appropriate circumstances, file suit 4 5 based on events that fall outside the applicable statutes of limitation. Id. at 116- 6 17; Ocean Spray Cranberries, Inc. v. Mass. Comm n Against Discrimination, 441 7 Mass. 632, 808 N.E.2d 257, 266-67 (2004). Under the continuing violation 8 doctrine, a plaintiff may obtain recovery for discriminatory acts that otherwise 9 10 would be time-barred so long as a related act fell within the limitations periods. 11 Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009). The continuing 12 violation doctrine is inapplicable to discrete acts of alleged discrimination that 13 occur on a particular day, but only to discriminatory conduct that takes place 14 15 over a series of days or perhaps years. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 16 at 130 (quoting Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115); (quoting 17 Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003) (finding that 18 Morgan, in substantially limiting the continuous violation doctrine, makes clear 19 20 that claims based on discrete acts are only timely where such acts occurred within 21 the limitations period . . . . )); see Díaz-Ortiz v. Díaz-Rivera, 611 F. Supp. 2d 22 134, 142 (D.P.R. 2009). The Supreme Court listed some examples of discrete 23 acts: termination, failure to promote, denial of transfer, or refusal to hire . . . . 24 Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114; see also O Conner v. 25 26 City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (finding that the following list 27 can be extracted from Nat l R.R. Passenger Corp. v. Morgan: termination, failure 28 1 CIVIL 09-1994 (JA) 12 2 3 to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful 4 5 discipline, denial of training, wrongful accusation ). 6 The classic example of a continuing violation [case] is a hostile work 7 environment, which is composed of a series of separate acts that collectively 8 constitute one unlawful employment practice. Tobin v. Liberty Mut. Ins. Co., 9 10 553 F.3d at 130 (quoting Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. at 117 11 (quoting 42 U.S.C. § 2000e-5(e)(1)). For this reason, hostile work environment 12 claims cannot be said to occur on any particular day, because the actionable 13 wrong is the environment, not the individual acts that, taken together, create the 14 15 16 17 18 environment. Tobin v. Liberty Mut. Ins. Co., 553 F.3d at 130 (quoting Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115-16) The plaintiff attempts to convince the court that her supervisor s conduct qualifies as continuous violation. She lists that her supervisor, inter alia, 19 20 ordered that plaintiff undergo a psychiatric evaluation, refus[ed] to allow [her] 21 to attend seminars and trainings, [and] submitt[ed] her to various . . . verbal and 22 written disciplinary measures . . . . (Docket No. 43-1, at 1-2, ¶ 5.) 23 plaintiff enumerates, if taken as true, are discrete acts of actionable wrongs 24 But what performed on multiple occasions. As to serial violations, discrete discriminatory 25 26 acts are not actionable if time barred, even when they are related to acts alleged 27 in timely filed charges. Each discrete discriminatory act starts a new clock for 28 1 CIVIL 09-1994 (JA) 13 2 3 filing charges alleging that act. Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 4 5 at 113, quoted in Rodríguez-Torres v. Gov t Dev. Bank of P.R., 704 F. Supp. 2d 6 81, 95 (D.P.R. 2010); see Thornton v. United Parcel Serv., Inc., 587 F.3d at 33; 7 see also Bazemore v. Friday, 478 U.S. 385, 395 (1986) ( Each week s paycheck 8 that delivers less to a black than to a similarly situated white is a wrong actionable 9 10 under Title VII . . . . ). The proffered instances of discrimination are all distinct 11 and 12 accommodation, or flowing from the same violation, yield separate actionable 13 separate from one another. Successive requests for the same claims. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d at 131 (citing, e.g., Cherosky 14 15 v. Henderson, 330 F.3d at 1247-48). For a continuing violation to occur, the 16 acts before and after the limitations period [must be] similar in nature, frequency, 17 and severity that they must be considered to be part and parcel of the hostile 18 work environment that constituted the unlawful employment practice that gave 19 20 rise to [the] action. Rowe v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir. 2004) 21 (citing Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. at 107). Finally, when an 22 employee alleges serial violations , i.e., a series of actionable wrongs, a timely 23 EEOC charge must be filed with respect to each discrete alleged violation. 24 Thornton v. United Parcel Serv., Inc., 587 F.3d at 33 (citing Ledbetter v. Goodyear 25 26 Tire & Rubber Co., 550 U.S. 618, 639 (2007)). Plaintiff s EEOC claim of May 20, 27 2008 alleges discrimination because of the denial of her request for anticipated 28 1 CIVIL 09-1994 (JA) 14 2 3 license at her job. Even giving a liberal interpretation to the letter attached to her 4 5 claim, and notwithstanding the claim s alleging continuing action, the evidence of 6 a serial violation is too ethereal to be considered under the focal lens of a 7 continuing violation. Because plaintiff has not presented evidence which would 8 satisfy this standard, I do not find that plaintiff was subjected to a continuing 9 10 11 12 13 violation of her right to be free from a hostile work environment. Laches and Estoppel The plaintiff also argues that even if she failed to timely file her claims, the doctrines of laches and estoppel should bar summary judgment. Because [the] 14 15 16 17 18 Defendant failed to pursue [its] claim of untimeliness diligently . . . [the] Plaintiff would be prejudiced if made to defend against it. (Docket No. 44, at 8.) If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3); see McCulloch v. 19 20 Vélez, 364 F.3d 1, 5 (1st Cir. 2004) (citing In re Recticel Foam Corp., 859 F.2d 21 1000, 1002 (1st Cir.1988) ( It is black-letter law that a federal court has an 22 obligation to inquire ... into its own subject matter jurisdiction. ) Since the 90-day 23 filing restriction is jurisdictional, I can hardly disregard it lightly. See, e.g., Nat l 24 R.R. Passenger Corp. v. Morgan, 536 U.S. at 109 (quoting Mohasco Corp. v. 25 26 Silver, 447 U.S. 807, 825 (1980) (finding that Congress, [b]y choosing what are 27 obviously quite short deadlines . . . clearly intended to encourage the prompt 28 1 CIVIL 09-1994 (JA) 15 2 3 processing of all charges of employment discrimination. )). While plaintiff may 4 5 find a degree of skullduggery in the timely (but not early) defense of limitations, 6 the defendant can hardly be accused of having unclean hands in the timing of the 7 announcement of a defense. Plaintiff s laches argument is wholly undeveloped. 8 Thus, the plaintiff s defense of laches is denied. 9 10 The plaintiff also submits that estoppel precludes summary judgment. She 11 attempts to persuade the court that the doctrine is applicable in the instant case, 12 since the defendant allegedly had knowledge of this procedural deficiency at the 13 outside. (Docket No. 44, at 14.) The plaintiff thus concludes that the defendant 14 15 should be estopped from bringing the argument that the claim is time barred. 16 The Supreme Court has held that EEOC discrimination suits are subject to 17 waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 18 U.S. 385, 393 (1982). This Circuit has taken a narrow view of equitable 19 20 exceptions to Title VII exhaustion requirements. Frederique-Alexandre v. Dep t 21 of Natural & Envtl. Res., 478 F.3d at 440 (quoting Mack v. Great Atl. & Pac. Tea 22 Co., 871 F.2d 179, 185 (1st Cir. 1989)). The First Circuit has held that these 23 equitable exceptions should be used sparingly, reserved for exceptional cases, 24 . . . and permitted only where the employer has actively misled [an] employee. 25 26 27 28 Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 46 (1st Cir. 1 CIVIL 09-1994 (JA) 16 2 3 2005) (quoting Chico-Vélez v. Roche Prods., Inc., 139 F.3d at 58-59; (quoting 4 5 Thomas v. Eastman Kocak Co., 183 F.3d 38, 53 (1st Cir. 1999)). 6 The plaintiff has not alleged any circumstances that would give rise to an 7 equitable exception. The only alleged malfeasance on the part of the defendant 8 is that it was dilatory in bringing the present motion. This argument is also 9 10 undeveloped. Nor is the argument sufficient that plaintiff and the court may 11 equally judge the defendant s conduct. ( The court is in equal terms as Plaintiff 12 to determine why Defendant decided to observe this conduct, so Plaintiff will not 13 elaborate why. ) (Docket No. 44, at 14.) In the absence of a recognized 14 15 equitable consideration, the limitation period cannot be extended by even one 16 day. Jones v. City of Somerville, 735 F.2d 5, 8 (1st Cir. 1984) (citing Rice v. 17 New England Coll., 676 F.2d 9, 11 (1st Cir. 1982)). Plaintiff s estoppel argument 18 also lacks merit. 19 20 Supplemental Claims 21 The plaintiff invokes the court s supplemental jurisdiction to assert claims 22 under Puerto Rico s anti-discrimination statute, P.R. Laws Ann. tit. 1, § 501 et 23 seq., and Articles 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 24 5141. It is well-settled that [u]nder 28 U.S.C. § 1367, [a] district court may 25 26 decline to exercise supplemental jurisdiction if the district court has dismissed all 27 claims under which it has original jurisdiction. González-de-Blasini v. Family 28 1 CIVIL 09-1994 (JA) 17 2 3 Dep t, 377 F.3d 81, 89 (1st Cir. 2004) (quoting 28 U.S.C. § 1367(c)[3]) and 4 5 (citing Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 104 (1st Cir. 6 2004)). Certainly, if the federal claims are dismissed before trial . . . the state 7 claims should be dismissed as well. United Mine Workers of Am. v. Gibbs., 383 8 U.S. 715, 726 (1966). Therefore, having dismissed the federal claims before trial, 9 10 11 12 13 the court will not retain jurisdiction over plaintiff s supplemental state law claims. IV. Conclusion For the reasons stated above, the defendant s motion for summary judgment on the plaintiff s Title VII claims is GRANTED. The plaintiff has failed to 14 15 provide evidence that she timely filed her claims. Nor has the plaintiff provided 16 any additional evidence that she was subject to a hostile work environment such 17 that she may properly invoke the continuing violation doctrine. 18 Finally, the plaintiff has not provided sufficient evidence to illustrate why the doctrine of 19 20 laches or estoppel are applicable in this case. Because the plaintiff s federal 21 claims are properly dismissed, this court will not retain supplemental jurisdiction. 22 Therefore, the defendant s motion for summary judgment is GRANTED. 23 The Clerk is directed to enter judgment dismissing the complaint. 24 In San Juan, Puerto Rico, this 24th day of March, 2011. 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge

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