Montalvo-Ruiz v. Municipality of Guaynabo, et al, No. 3:2010cv01293 - Document 38 (D.P.R. 2010)

Court Description: OPINION AND ORDER. GRANTED in part and DENIED in part 23 MOTION to dismiss as to Municipality of Guaynabo filed by Municipality of Guaynabo. Signed by Judge Salvador E Casellas on 10/19/2010.(LB)

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Montalvo-Ruiz v. Municipality of Guaynabo, et al Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 MARIBEL MONTALVO RIOS, Plaintiff 4 5 6 v. Civil No. 10-1293 (SEC) MUNICIPALITY OF GUAYNABO, ET AL., Defendants 7 8 OPINION and ORDER 9 10 11 Pending before this Court is Co-Defendant Municipality of Guaynabo s ( Co-Defendant or Municipality ) Motion to Dismiss (Docket # 23) and Plaintiff s opposition thereto (Docket # 29). Upon reviewing the filings, and the applicable law, Co-Defendant s motion is 12 GRANTED in part and DENIED in part. 13 Factual Background 14 On April 8, 2010, Plaintiff1 filed suit against Co-defendant, among other defendants, 15 under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§2000e et seq.), and applicable state 16 law, alleging sexual harassment and retaliation. According to the complaint, between January 17 and August 2009 Plaintiff was subjected to a pattern of unwanted sexual advances from 18 Carmelo Correa ( Correa ), also a co-defendant in this action, and at the time, Chief 19 Commissioner of the Police Department for the Municipality of Guaynabo.2 On August 21, 20 2009, Plaintiff filed an internal harassment complaint with the Human Resources Office of the 21 Municipality of Guaynabo. She alleges that after filing said complaint, the Municipality 22 retaliated against her. 23 24 1 Plaintiff was an Executive Officer for the Purchases and supplies Division of the Police Department. 25 2 26 The detailed and extensive account of the alleged harassment is included in the complaint. See Docket # 1. Dockets.Justia.com 1 CIVIL NO. 10-1293 (SEC) Page 2 2 On July 16, 2010, Co-Defendant Municipality of Guaynabo moved for dismissal, arguing 3 that Plaintiff failed to state claims for sexual harassment and retaliation. Docket # 23. Plaintiff 4 opposed (Docket # 29), Co-Defendant replied (Docket # 33), and Plaintiff sur-replied (Docket 5 # 37). 6 Standard of Review 7 F ED. R. C IV. P. 12 (b)(6) 8 Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure 9 to state a claim upon which relief can be granted. First Med. Health Plan, Inc. v. CaremarkPCS 10 Caribbean, Inc., 681 F. Supp. 2d 111, 113-114 (D.P.R. 2010) (citing Fed.R.Civ.P. 12(b)(6)). 11 , When deciding a motion to dismiss under Rule 12(b)(6), the court must decide whether the 12 complaint alleges enough facts to raise a right to relief above the speculative level. First Med. 13 Health, 681 F. Supp. 2d at 114 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). In so 14 doing, the court construes the complaint in the light most favorable to the plaintiff, accept as 15 true all well-pleaded facts and draws all reasonable inferences in the plaintiff s favor. Id. (Citing Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008)); see also Medina-Claudio v. Rodriguez- 16 Mateo, 292 F.3d 31, 34 (1st Cir. 2002); Correa Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 17 18 (1st Cir. 1990). However, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. First Med. Health, 681 F. Supp. 19 2d at 114 (citing Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009)). Specifically, 20 [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 21 statements, do not suffice. Id. Nor does a complaint suffice if it tenders naked assertion[s] 22 devoid of further factual enhancement. Iqbal, 129 S.Ct. at 1949. As such, where the 23 well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, 24 the complaint has alleged -- but it has not show[n] that the pleader is entitled to relief. First 25 Med. Health, 681 F. Supp. 2d at 114 (citing Iqbal, 129 S. Ct. at 1950 (quoting F ED.R.C IV.P. 26 8(a)(2)). 1 CIVIL NO. 10-1293 (SEC) Page 3 2 In sum, when passing on a motion to dismiss the court must follow two principles: (1) 3 legal conclusions masquerading as factual allegations are not entitled to the presumption of 4 truth; and (2) plausibility analysis is a context-specific task that requires courts to use their 5 judicial experience and common sense. Id. (citing Iqbal, 129 S. Ct. at 1950). In applying these 6 principles, courts may first separate out merely conclusory pleadings, and then focus upon the 7 remaining well-pleaded factual allegations to determine if they plausibly give rise to an 8 entitlement to relief. Id. (Citing Iqbal, 129 S. Ct. at 1950). 9 The First Circuit has held that dismissal for failure to state a claim is appropriate if the 10 complaint fails to set forth factual allegations, either direct or inferential, respecting each 11 material element necessary to sustain recovery under some actionable legal theory. Gagliardi 12 v. Sullivan, 513 F. 3d 301, 305(1st Cir. 2008). Courts may augment the facts in the complaint 13 by reference to documents annexed to the complaint or fairly incorporated into it, and matters 14 susceptible to judicial notice. Id. at 305-306. However, in judging the sufficiency of a 15 complaint, courts must differentiate between well-pleaded facts, on the one hand, and bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like, on the other 16 hand; the former must be credited, but the latter can safely be ignored. LaChapelle v. Berkshire 17 Life Ins., 142 F.3d 507, 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1 st Cir.1996)); Buck 18 v. American Airlines, Inc., 476 F. 3d 29, 33 (1st Cir. 2007); see also Rogan v. Menino, 175 F.3d 19 75, 77 (1st Cir. 1999). Thus Plaintiffs must rely in more than unsupported conclusions or 20 interpretations of law, as these will be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1 st Cir. 21 1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1 st Cir. 1988)). 22 Therefore, even under the liberal pleading standards of Federal Rule of Civil Procedure 23 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must 24 allege a plausible entitlement to relief. RodrÃguez-OrtÃz v. Margo Caribe, Inc., 490 F.3d 92 25 (1st Cir. 2007) (citing Twombly, 127 S. Ct. at 1965). Although complaints do not need detailed 26 factual allegations, the plausibility standard is not akin to a probability requirement, but it 1 CIVIL NO. 10-1293 (SEC) Page 4 2 asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 127 3 S. Ct. At 1965; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff s obligation 4 to provide the grounds of his entitle[ment] to relief requires more than labels and 5 conclusions, and a formulaic recitation of the elements of a cause of action will not do. 6 Twombly, 127 S. Ct. At 1965. That is, factual allegations must be enough to raise a right to 7 relief above the speculative level, on the assumption that all allegations in the complaint are 8 true. Parker v. Hurley, 514 F. 3d 87, 95 (1 st Cir. 2008). 9 Applicable Law and Analysis 10 Harassment claims 11 Co-Defendant alleges that dismissal of Plaintiff s sexual harassment claims is warranted 12 because she failed to act with reasonable care to take advantage of the Municipality s safeguards 13 and prevent harm that could have been avoided. On this point, Co-Defendant argues that the 14 Faragher-Ellerth defense forecloses a Title VIII claim against them insofar as an employer is 15 not liable when (1) the employer s own actions to prevent and correct harassment were reasonable and (2) the employee s actions in seeking to avoid harm were not reasonable. 16 Chaloult v. Interstate Brands Corporation, 540 F.3d 64, 66 (1st Cir. 2008) (citing Faragher v. 17 City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus. Inc. v. Ellerth, 524 U.S. 18 742, 765 (1998). 19 Plaintiff, in opposition, contends that the Faragher-Ellerth defense is not available to 20 Co-Defendant since an employer s liability for a hostile work environment claim depends on 21 the harasser s employment status relative to the victim s. See Torres-Negron v. Merck & 22 Company, 488 F.3d 34 (1st Cir. 2007). She points out that since Correa is the highest ranking 23 24 25 26 1 CIVIL NO. 10-1293 (SEC) Page 5 2 officer in the Police Department, he is considered an alter ego or proxy of the Municipality, and 3 as a result, Co-Defendant is automatically liable for his conduct.3 4 In Faragher, the U.S. Supreme Court held that [a]n employer is subject to vicarious 5 liability to a victimized employee for an actionable hostile environment created by a supervisor 6 with immediate (or successively higher) authority over the employee. Faragher, 524 U.S. at 7 2292-93. Thus an employer is liable for unlawful harassment whenever the harasser is of a 8 sufficiently high rank to fall within that class ... who may be treated as the organization s 9 proxy. Faragher, 524 U.S. at 2284. Although the employer has no affirmative defense available 10 when the supervisor s harassment culminates in a tangible employment action, such as 11 discharge, demotion, or undesirable reassignment ... when no tangible employment action is 12 taken, a defending employer may raise an affirmative defense to liability or damages, subject 13 to proof by a preponderance of the evidence. Id. at 2293. This defense comprises two 14 necessary elements: (a) that the employer exercised reasonable care to prevent and correct 15 promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer 16 or to avoid harm otherwise. Id. As such, Plaintiff s allegation that the aforementioned defense 17 is inapplicable to the case at bar fails. 18 Co-Defendant s argument that Correa was not an alter ego of the Co-Defendant because 19 he was not a high ranking officer is also unpersuasive. More so considering that in his answer 20 to the complaint, Correa admits that he was the highest ranking official in the Police Department 21 of the Municipality of Guaynabo. See Docket 21 ¶18. Accordingly, this Court finds that Correa 22 is an alter ego of the Municipality, of sufficiently high rank as defined in Faragher. Correa was, 23 24 25 26 3 In its reply, Co-Defendant contests that the highest ranking officer is the Mayor, and that Plaintiff did not plead that the Mayor has delegated certain functions to the Commissioner which could otherwise grant him high-rank authority. See Docket 33 ¶ 3. Notwithstanding, Plaintiff notes that the Municipality did not dispute Correa s high ranking status as Police Commissioner at the time of the alleged harassment incidents. See Docket 37 ¶ 2. 1 CIVIL NO. 10-1293 (SEC) Page 6 2 in fact, in a position where he was construed as the Municipality s proxy. As such, Co3 Defendant must show that it exercised reasonable care to prevent and correct any sexually 4 harassing behavior, and that Plaintiff failed to take advantage of the internal mechanisms 5 available in this type of case. 6 Plaintiff does not allege that the Municipality lacked an anti-harassment policy. Instead, 7 she argues that the Municipality s proceedings following her complaint were procedurally 8 defective. After reviewing the complaint, this Court finds that the Municipality employed 9 reasonable care to prevent sexual harassment in general, and acted promptly when Plaintiff filed 10 her claim, to wit, a hearing was held and Correa subsequently resigned. As such, the first prong 11 of the Faragher/Ellerth defense is met. Nevertheless, we also believe that Plaintiff took 12 advantage of the internal grievance procedure provided by the Municipality, albeit a year after 13 the alleged acts began. This delay does not, however, change the fact that she informed the 14 Municipality about the alleged sexual harassment, and fully took advantage of its internal 15 procedures to remedy the situation. Therefore, Co-Defendant did not satisfy the second prong of the Faragher/Ellerth defense. 16 Based on the foregoing, Co-Defendant s request for dismissal of Plaintiff s sexual 17 harassment claims is DENIED. 18 Retaliation claims 19 Co-Defendant also alleges that Plaintiff s pleadings regarding retaliation are insufficient 20 under the heightened Iqbal pleading standard, insofar as they are conclusory, speculative [and] 21 a mechanical recitation of the elements of a cause of action. Docket # 23, p. 6. 22 In her complaint, Plaintiff alleges retaliation under Title VII, 42 U.S.C. § 2000e3(a), 23 which seeks to prevent employers from retaliating against an employee for attempting to enforce 24 rights under Title VII. See DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008). Said retaliation 25 provision makes it illegal for an employer to discriminate against any of his employees ... 26 1 CIVIL NO. 10-1293 (SEC) Page 7 2 because he has made a charge, testified, assisted, or participated in any manner in an 3 investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). 4 Unless direct evidence is available, Title VII retaliation claims may be proven by using 5 6 the burden-shifting framework set forth down in McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973). In order to establish a prima facie case of retaliation, the plaintiff must show that 7 (1) she engaged in protected activity; (2) the employer was aware of that activity; (3) she 8 suffered an adverse employment action and (4) there was a causal connection between the 9 protected activity and the adverse employment action. Id.; see also Gu v. Boston Police 10 Department., 312 F.3d 6, 14 (1 st Cir. 2002). 11 The allegations set forth by Plaintiff, accepted as true, are sufficient to show that she 4 12 engaged in a protected activity (filed a sexual harassment complaint) and that the employer was 13 aware of that activity. Notwithstanding, Co-Defendant argues that the complaint is devoid of 14 15 facts showing that she suffered adverse employment actions after engaging in the protected conduct. Twombly, 127 S. Ct. at 1967. This Court agrees. The First Circuit has ruled that establishing a prima facie case of retaliation is a 16 relatively light burden. Mariani-Colon v. Dep t of Homeland Sec., 511 F.3d 216, 224 (1 st 17 Cir.2007). Notwithstanding, a plaintiff is only bound to succeed on a claim of retaliation if he 18 19 proves that the employer took a materially adverse employment action against him. Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996); Ramos-Biaggi v. Martinez, 98 F.Supp.2d 171, 178 20 (D.P.R.2000). A material change is construed such as to change the conditions of the 21 plaintiff s employment. Gu, 312 F.3d at 14. An adverse employment action is met when the 22 employer s challenged actions result in a work situation unreasonably inferior to the norm for 23 the position. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 766 (1st Cir.2010) (citing 24 Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218, 1220 (1st Cir.1989) (explaining 25 4 26 Reporting sexual harassment or initiating a charge of sexual harassment is a protected activity under Title VII. Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir.2003). 1 CIVIL NO. 10-1293 (SEC) Page 8 2 that the factfinder must canvass the specific ways in which the plaintiff s job has changed and 3 determine whether the employee has retained duties, perquisites and a working environment 4 appropriate for his or her rank and title. ). Morevoer, Title VII s anti-retaliation provision 5 6 protects an individual not from all retaliation, but from retaliation that produces an injury or harm. Burlington Northern and Santa Fe Ry. Co. v. White, 548 US. 53, 67 (2006). That is, the 7 primary objective of the antiretaliation provision under Title VII is avoiding harm to employees. 8 Crawford v. Metropolitan Govt. of Nashville, 129 S. Ct. 846 (2009). Determining whether an 9 action is materially adverse necessarily requires a case-by-case inquiry ... that must be cast in 10 objective terms. Blackie, 75 F.3d at 725-26. 11 Title VII s retaliation provision also requires a showing that a reasonable employee would 12 have found employer s challenged action materially adverse, i.e. that the challenged action could 13 well dissuade a reasonable employee from protected conduct. Burlington, 548 U.S. at 67. 14 15 Furthermore, the Supreme Court has recently broadened the scope of the antiretaliation provision, ruling that it extends beyond workplace-related or employment-related retaliatory acts and harm. Id. at 67. Said harm, however, must not be trivial. Id at. 68. 16 Termination clearly constitutes an adverse employment action. Szendrey-Ramos v. First 17 BanCorp, 512 F. Supp.2d 81 (D.P.R. 2007). Other examples of adverse employment actions 18 19 include failure to timely issue paychecks, failure to provide W-2 forms, and failure to timely pay state and federal taxes. Torres-Negron v. Merck & Company, Inc., 488 F.3d 34, 44 (1st Cir. 20 2007). The denial of an employee s request for office space could also, under certain 21 circumstances, constitute an adverse employment action. Lockridge, 597 F.3d at 472. So can, 22 for example, the assignment of extra double shifts, removal from a favorable duty, the 23 assignment of an unusually long posting where work was remote and solitary, Valentinst 24 Almeida v. Municipality of Aguadilla, 447 F.3d 85, 97 (1 Cir. 2006), and acting with great 25 hostility towards plaintiff. Montalvo-Padilla v. University of P.R., 492 F. Supp.2d 36, 42 26 1 CIVIL NO. 10-1293 (SEC) Page 9 2 (D.P.R.2007). Context is of pivotal importance, because the significance of any given act of 3 retaliation will often depend upon the particular circumstances. Burlington, Id. at 69. 4 In the complaint, Plaintiff sets forth the following alleged retaliatory acts: (1) that, as 5 6 result of her rejection of his sexual advances, Correa instructed several policemen to follow her everywhere she went, Docket # 1, ¶ 47; (2) that the Municipality had determined that it would 7 retaliate against [her] for filing the internal complaint and that the complaint would be decided 8 against her in order to clear the Municipality s name, id. at ¶ 48; (3) that the hearing was 9 conducted in violation [of] the rules and regulations, and [violated her] procedural due process 10 rights, id. at ¶ 50; (4) that she was subjected to retaliation as a result of the internal sexual 11 harassment complaint she filed, id. at ¶ 55; (5) after the hearing, some of her co-workers have 12 mocked [her], made offensive remarks, among others, id. at ¶ 56; (6) that the Mayor began to 13 pressure [her] to accept a transfer to another department, id. at ¶ 57; and (7) that she felt 14 15 retaliated against for filing a sexual harassment claim against the Commissioner, id. at ¶58. This Court first notes that Plaintiff s averments that she was retaliated against for filing a harassment complaint (Docket #1, ¶¶ 55 & 58) are formulaic recitations of her cause of action 16 that lack factual support, and thus, fail under Iqbal. Additionally, Plaintiff sets forth conclusory 17 statements regarding the Municipality s alleged intent to retaliate against her, without any facts 18 that support such position.5 Moreover, although Plaintiff alleges that the Mayor began to 19 pressure her to accept a transfer to a position that she did not qualify for, there are no factual 20 allegations as to whether said putative transfer involved a demotion, a change in salary or 21 employment benefits that would otherwise change her current employment situation for the 22 23 24 25 26 5 The fact that the examiner that presided over the hearing is an employee of the Municipality does not provide factual support to this allegation. All agencies and municipalities internal procedures are handled by their own personnel. Any allegation regarding the validity of the proceedings must be addressed by the state courts. 1 CIVIL NO. 10-1293 (SEC) Page 10 2 worse, or whether she was effectively transferred.6 As a result, this cannot be construed as an 3 adverse employment action. 4 Similarly, Plaintiff s allegations regarding her co-workers actions are insufficient. Courts 5 6 have distinguished between rudeness and ostracism, on one side of the spectrum, and pervasive harassment on the other, finding that rudeness or ostracism, by itself, is insufficient to support 7 a hostile work environment claim and that severe or pervasive harassment is actionable. Noviello 8 v. City of Boston, 398 F.3d 76, 89 (1st Cir. 2005). For purposes of a Title VII retaliation claim, 9 menacing looks, name calling, exclusion from meetings, or being shunned by co-workers does 10 not constitute an adverse employment action. Davis v. Verizon Wireless, 389 F. Supp. 2d 458 11 (W.D.N.Y. 2005). While verbal abuse might at times be sufficiently severe and chronic to 12 constitute an adverse employment action, such behavior, without more, hardly rises to the level 13 of actionable retaliation. Brennan v. City of White Plains, 67 F. Supp. 2d 362, 374 (S.D.N.Y. 14 15 1999). The very act of filing a charge against a coworker will invariably cause tension and result in a less agreeable workplace, since the target of the complaint likely will have coworker-friends 16 who come to his defense, while other coworkers will seek to steer clear of trouble by avoiding 17 both parties. Noviello, 398 F.3d at 93. However, albeit unpleasant, such behavior should not 18 19 be seen as contributing to a retaliatory hostile work environment. Id. The complaint does not show that Plaintiff here was submitted to a steady stream of abuse sufficient to amount to a 20 retaliatory hostile work environment under Title VII. Even more, Correa voluntarily resigned, 21 and there were no additional incidents on this front. Moreover, Plaintiff does not identify the 22 names and specific instances when these alleged incidents occurred, which also fails to satisfy 23 Iqbal s requirements, and makes it impossible to determine the severity and nature of the alleged 24 comments. 25 26 6 It seems that Plaintiff still works at the Police Department whereas Correa resigned as Chief. 1 CIVIL NO. 10-1293 (SEC) Page 11 2 Finally, this Court considers the persecution allegation brought forth by Plaintiff. 3 Placing an employee under constant surveillance could be evidence of retaliation. Fercello v. 4 5 6 County of Ramsey, 612 F.3d 1069, 1081 (8th Cir. 2010). Notwithstanding, Plaintiff does not provide a factual basis for her allegation, such as the times and places where she was allegedly followed by policemen. Additionally, there is no evidence to show that Correa instructed any 7 police officers to follow her. Her averments on this front are conclusory allegations based on 8 mere speculation, which are insufficient to survive dismissal under Iqbal. 9 Accordingly, Plaintiff s retaliation claims are DISMISSED with prejudice. 10 Conclusion 11 In light of the above, Co-Defendant s motion to dismiss is GRANTED in part and 12 DENIED in part. Plaintiff s retaliation claims are DISMISSED with prejudice. Partial 13 Judgment will be entered accordingly. 14 15 16 17 18 19 20 21 22 23 24 25 26 IT IS SO ORDERED. In San Juan, Puerto Rico, this 19th day of October, 2010. S/ Salvador E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge

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