Opinion
Civil No. 00-1546 (HL)
November 15, 2000
OPINION AND ORDER
Before the Court are two motions for dismissal. Plaintiff Manuel Maceira Barbosa ("Maceira") brings this action against Baxter Healthcare Corporation, other related corporations, and individual members of Baxter's management in Puerto Rico. He claims violations of the Age Discrimination in Employment Act of 1967 ("ADEA"); the Older Workers Benefit Protections Act ("OWBPA"); Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act ("ADA"); the Employee Retirement Income Security Act ("ERISA"); the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); and Puerto Rico laws on wrongful discharge and employment discrimination One of the motions currently before the Court is by Maceira for voluntarily dismissal as to Baxter Healthcare Corporation of Puerto Rico, Baxter International, and the Administrative Committee of Baxter International. The Court grants this motion. The remaining corporate defendant is Baxter Healthcare Corporation.
29 U.S.C.A. §§ 621- 634 (West 1999 Supp. 2000).
29 U.S.C. 626(t) (West 1999).
42 U.S.C.A. § 2000e-2 (West 1994).
42 U.S.C.A. §§ 12101- 12213 (West 1995 Supp. 2000).
29 U.S.C.A. § 1140 (West 1999).
COBRA's provisions appear in ERISA, the Public Health Service Act and the Internal Revenue Code. The provisions relevant to the present controversy are 29 U.S.C.A. § 1132 (West 1999) § 1166 (West 1999).
P.R. Laws Ann. tit. 1, §§ 501-511 (Supp. 1997); tit. 29, §§ 146 185a-1851 (1985).
The second motion to dismiss was filed by Mario Lucena, Jorge Zayas, Rafael Beauchamp, and Jose Laureano. These defendants were all members of Baxter's management in Puerto Rico. They argue that there is no individual liability under federal employment discrimination laws. In his opposition to the motion to dismiss, Maceira consents to the dismissal of the ERISA and COBRA claims against these individuals. There remain, then, the claims under Title VII, the ADA, and the ADEA. Although the First Circuit has not yet ruled on the individual liability question, see Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 56 n. 6 (1st Cir. 2000) (Taking no view on whether there is individual liability under the ADEA); Serapion v. Martinez, 119 F.3d 982, 992-93 (1st Cir. 1997) (Avoiding the issue with regard to Title VII), a majority of the circuits, as well as courts in this district, have held that there is no individual liability for claims under Title VII, see Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180-81 (4th Cir. 1998); Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1111 (8th Cir. 1998); Wathen v. General Elec., 115 F.3d 400, 403-06 (6th Cir. 1997); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3rd Cir. 1996); Haynes v. Williams, 88 F.3d 898, 900-01 (10th Cir. 1996); Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2nd Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995); Smith v. Lomax, 45 F.3d 402, 403-04 n. 4 (11th Cir. 1995); Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir. 1994); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993); Mejias Miranda v. BBII Acquisition Corp., ___ F. Supp.2d ___, 2000 WL 1683332, at 12 (D.P.R. Oct. 16, 2000); Matos Ortiz v. Commonwealth of Puerto Rico, 103 F. Supp.2d 59, 60 (D.P.R. 2000); Maldonado-Cordero v. AT T, 73 F. Supp.2d 177, 183-84 (D.P.R. 1999); Canabal v. Aramark Corp., 48 F. Supp.2d 94, 96-98 (D.P.R. 1999); Acevedo Vargas v. Colon, 2 F. Supp.2d 203, 206-07 (D.P.R. 1998); Pineda v. Almacenes Pitusa, Inc., 982 F. Supp. 88, 91-93 (D.P.R. 1997); Contreras Bordallo v. Banco Bilbao Vizcaya de Puerto Rico, 952 F. Supp. 72, 73-74 (D.P.R. 1997); Hernandez v. Wangen, 938 F. Supp. 1052, 1063-65 (D.P.R. 1996). Courts have reached similar conclusions with regard to claims under the ADA, see Butler v. City of Prairie Village, Kan., 172 F.3d 736, 744 (10th Cir. 1999); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); E.E.O.C. V. AIC Security Investigations, Ltd, 55 F.3d 1276, 1279-82 (7th Cir. 1995); Julia v. Janssen, Inc., 92 F. Supp.2d 25, 28-29 (D.P.R. 2000); Vicenty Martell v. Estado Libre Asociado, 48 F. Supp.2d 81, 87-88 (D.P.R. 1999); Sifre v. Dep't of Health, 38 F. Supp.2d 91, 105-06 (D.P.R. 1999); Figueroa v. Fajardo, 1 F. Supp.2d 117, 120 (D.P.R. 1998); Anonymous v. Legal Serv. Corp., 932 F. Supp. 49, 50-51 (D.P.R. 1996), and as to claims under the ADEA, see Stults v. Conoco, Inc., 76 F.3rd 651, 655 (5th Cir. 1996); Smith, 45 F.3rd at 403-04 n. 4; Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir. 1994); Miller, 991 F.2d at 587-88; Diaz v. Antilles Conversion Export Inc., 62 F. Supp.2d 463, 465 (D.P.R. 1999); Vicenty Martell, 48 F. Supp.2d at 88-89; Rodriguez v. Puerto Rico Marine Management, Inc., 975 F. Supp. 115, 120 (D.P.R. 1997); Moreno v. John Crane, Inc., 963 F. Supp. 72, 76-77 (D.P.R. 1997); Figueroa v Mateco, Inc., 939 F. Supp. 106, 107 (D.P.R. 1996); Flamand v. American Int'l Group, Inc., 876 F. Supp. 356, 361-64 (D.P.R. 1994). In the face of this precedent, the Court grants the motion and dismisses with prejudice the federal claims against the individual defendants. The Court also dismisses without prejudice the Puerto Rico law claims against these individuals. See Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 192 (1st Cir. 1999).
Because the OWBPA is part of the ADEA, the Court will, for purposes of the motion to dismiss, treat Plaintiffs claims under the OWBPA and the ADEA as one claim.
Plaintiff has named another supervisor, Rafael Pichardo, as an individual defendant. Pichardo has not yet been served and has not yet made an appearance in this case. For the same reasons that the Court grants the individual defendants' motion to dismiss, the Court sua sponte dismisses with prejudice the federal claims against Pichardo. His Puerto Rico law claims against Pichardo shall he dismissed without prejudice.
The Court is mindful of the First Circuit's recent warnings about sua sponte dismissals, see Lopez-Carrasquillo v. Rubianes, ___ F.3d ___, 2000 WL 1539090, at 2 (1st Cir. Oct. 23, 2000); Clorox Company Puerto Rico v. Proctor Gamble, 228 F.3d 24, 30-31 (1st Cir. 2000). The First Circuit has stated, however, that there are limited exceptions to this rule and that sua sponte dismissals may be warranted for frivolous claims or claims where an amendment could not cure the defective pleading. See Clorox, 228 F.3d at 30-31. Based on the overwhelming weight of the above-cited case law on individual liability, the Court finds that the present case is one where sua sponte dismissal is warranted. As another supervisor, Pichardo would be protected from individual liability under federal employment discrimination laws just as the other individual defendants are protected.
The Court makes this ruling to spare Plaintiff the time and expense of serving a defendant against whom, according to the case law, he may not bring a federal claim for employment discrimination. In light of the First Circuit's cautioning against sua sponte dismissals, the Court does grant Plaintiff until December 15, 2000, to file a brief explaining why his claim against Pichardo should not be dismissed for the same reasons that the Court dismissed his claims against the other individuals. If Plaintiff is able to distinguish his claims against Pichardo from those against the other individuals, the Court will vacate the judgment dismissing the claims against him.
WHEREFORE, the Court grants Maceira's motion to voluntarily dismiss without prejudice (docket no. 23) the claims against Baxter Healthcare Corporation of Puerto Rico, Baxter International, and the Administrative Committee of Baxter International. The Court also grants the individual defendants' motion to dismiss (docket no. 14) and dismisses with prejudice the federal law claims against all individual defendants (including Rafael Pichardo) and dismisses without prejudice the Puerto Rico law claims against these individual defendants. Partial judgment shall be entered accordingly.
IT IS SO ORDERED.