Nieves v. Microsoft Caribbean, Inc.

Full title: IVAN SAMUEL VELEZ NIEVES, et al., Plaintiffs, v. MICROSOFT CARIBBEAN…

Court: United States District Court, D. Puerto Rico

Date published: Mar 15, 2006

Civil Nos. 05-1067 (PG), 05-1098 (CCC) (D.P.R. Mar. 15, 2006)

Opinion

Civil Nos. 05-1067 (PG), 05-1098 (CCC).

March 15, 2006

REPORT AND RECOMMENDATION INTRODUCTION

CAMILLE VELEZ-RIVE, Magistrate Judge

Plaintiffs Iván Samuel Vélez Nieves, his spouse and their conjugal partnership (hereinafter plaintiff Vélez Nieves), filed this action seeking back pay, double compensatory damages and punitive damages against the above employer and against individual co-defendants pursuant to Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, 42 U.S.C. § 1201 et seq. ("ADA"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). In addition to a general claims for damages under Art. 1802 of the Puerto Rico Civil Code, 32 L.P.R.A. § 5141, claims were also filed under pendent state law; Law 100 of June 30, 1959, 29 P.R.L.A. § 146 et seq., Law 80 of May 30, 1976, 29 L.P.R.A. § 185 et seq., and Law 44 of July 2, 1985, 1 P.R.L.A § 501 et seq., ( Docket No. 1).

On May 27, 2005, co-defendants Brenda Pérez (hereinafter "Pérez) and Ambrosa Ramsahai (hereinafter "Ramsahai") filed a Motion to Dismiss indicating the complaint was time-barred since plaintiff Vélez Nieves failed to exhaust administrative remedies as to said co-defendants ( Docket No. 17).¹ On June 16, 2005, an Opposition to these co-defendants' motion requesting dismissal was filed ( Docket No. 22). Likewise, co-defendant Kathia Quiroz (hereinafter "Quiroz") filed on September 23, 2005, a Motion to Dismiss on grounds there is no individual liability under Title VII, ADEA and ADA and thus, no federal cause of action.² This co-defendant also submits no individual liability is warranted under the state law claims ( Docket No. 41). Plaintiffs filed an opposition sometime thereafter ( Docket No. 48).

1 These co-defendants made reference to documents that were not attached to their motion to dismiss.

2 Co-defendants Pérez and Ramsahai also raised there is no individual liability as to them since they were not plaintiff Vélez Nieves' employer.

The above pleadings were referred by the Court to this Magistrate Judge for report and recommendation. ( Docket No. 49, 51).³

3 The Court ruled the parties had thirty (30) days to file as of November 17, 2005, an informative motion indicating consent to have the case assigned to a United States Magistrate Judge ( Docket No. 50). The parties informed they did not consent to proceed before a Magistrate Judge, for which the following report and recommendation on the pending Motions to Dismiss follows ( Docket No. 54).

DISMISSAL STANDARD ( Rule 12(b)(6))

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may, in response to an initial pleading, file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Still, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957); see Miranda v. Ponce Fed. Bank, 948 F.2d 41 (1^st Cir. 1991).

The Court must accept as true "all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiff's favor." Aulson v. Blanchard, 83 F.3d 1, 3 (1^st Cir. 1996). A complaint must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory."Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 28 n. 2 (1^st Cir. 1996) ( quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1^st Cir. 1988)). The Court, need not accept a complaint's "`bald assertions' or legal conclusions" when assessing a motion to dismiss. Abbott, III v. United States, 144 F.3d 1, 2 (1^st Cir. 1998) ( citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1^st Cir. 1996)).

LEGAL DISCUSSION

A. Exhaustion of Administrative Proceedings.

There are several requirements that a plaintiff must meet, pursuant to Title VII, prior to filing suit in federal court. See 42 U.S.C. § 2000e-5. A plaintiff must file a timely Equal Employment Opportunity Commission ("EEOC") charge against the discriminatory party and receive notice of a right to sue. Id. In addition, a plaintiff generally may not maintain a suit against a defendant in federal court if that defendant was not named in the administrative proceedings and offered an opportunity for conciliation or voluntary compliance. 42 U.S.C. § 2000e-5(f) ("civil action may be brought against the respondent named in the charge"). McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 504 (1^st Cir. 1996).

The complaint in this case indicates that plaintiff filed a claim on January 20, 2004 with the Puerto Rico Anti-Discrimination Unit of the Labor and Human Resources Department (corresponding state agency which has been delegated the tasks of the EEOC) after being terminated from his employment with his employer, Microsoft Caribbean, Inc. On November 1, 2004, plaintiff Vélez Nieves received a right to sue letter. Co-defendants Pérez and Ramsahai claim the discrimination charge filed by plaintiff Vélez Nieves did not include or even mention them. Having failed to submit an administrative claim as to said co-defendants, they aver the civil claim filed on January 21, 2005 would be time-barred having been filed one day after the one-year statute of limitation expired, January 20, 2004, the date plaintiff was notified of the adverse employment action.

These co-defendants request the same principle should apply to claims under pendent state law and Article 1802, since plaintiff had one year to file claims against defendants.

However, the motion to dismiss on these grounds attempts to submit information and documents outside the pleadings to try to establish that the complaint is time-barred. Still, these documents were not included and the Court is in no position to ascertain whether these co-defendants were made part of the administrative complaint or not. Thus, the issues raised by co-defendants on timeliness grounds will be more appropriately considered under summary judgment standards, which is not proper at this stage.

Nevertheless, even at this early onset, plaintiff Vélez Nieves contests his dismissal was notified by letter of January 20, 2004, which may have been mailed but not received by him on the same date since he was not working and was undergoing treatment with the State Insurance Fund. As such, plaintiff states the complaint would be timely since it was filed within the one-year limitation period when he acquired knowledge of the adverse employment action and of co-defendants' acts.

Therefore, within the four (4) corners of the complaint and plaintiff's opposition, there is a factual dispute as to when the dismissal letter was received and when plaintiff acquired knowledge he had been subject of an adverse employment action that would start the limitation period.

Since such a factual dispute cannot be resolved by way of a motion to dismiss, at this juncture, it is recommended that co-defendants Pérez' and Ramsahai's request for dismissal for failure to exhaust administrative complaints under Title VII and as to timeliness of the general claims for damages under Art. 1802 of the Puerto Rico Civil Code, regarding defamation and interference with plaintiff Vélez Nieves' subsequent employment, be DENIED without prejudice, and that summary judgment on this issue be requested within the appropriate parameters.

B. Individual Liability.

1. Title VII claims.

Above co-defendants ask this Court to dismiss plaintiffs' Title VII claims against them on the basis that Title VII does not provide for individual liability. The First Circuit has yet to resolve the issue of individual liability in Title VII cases although other circuit courts have determined there is no such liability which falls solely on the employer.⁴

4 See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2^nd Cir. 2003); Emerson v. Thiel College, 296 F.3d 184, 190 (3^rd Cir. 2002); Williams v. Banning, 72 F.3d 552, 554 (7^th Cir. 1995); Wathen v. General Elec. Co., 115 F.3d 400, 405 (6^th Cir. 1997); Haynes v. Williams, 88 F.3d 898 (10^th Cir. 1996); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9^th Cir. 1998).

The term "employer" is essential because Title VII is directed at "employers" and it defines employers as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day and any agent of such person". 42 U.S.C. § 2000-e. Therefore, because of "individual capacity"above co-defendants are not the employing entity, and it should be determined whether they can be held liable as agents of the employing entity. Rivera Rodríguez v. Police Dept. of Puerto Rico, 968 F.Supp. 783, 785 (D. Puerto Rico 1997); Anonymous v. Legal Services Corp. of Puerto Rico, 932 F.Supp. 49, 50 (D. Puerto Rico 1996) (stating that "resolution of the [individual liability] question depends on how the `and any agent' language is interpreted.").

The Court of Appeals for the First Circuit has no final disposition as to individual liability under Title VII, but see Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 951-52 (1^st Cir. 1995) ( leaving the question open) and Serapión v. Martínez, 119 F.3d 982, 992 (1^st Cir. 1997). Nonetheless, there was a limited pronouncement on this issue, which seems to outline the path that may follow in Vélez v. Awning Windows, Inc., 375 F.3d 35, 43 n. 5 (1^st Cir. 2004). It is therein indicated that the law does not provide for supervisory liability under Title VII but that the state statute still imposes liability on supervisors for acts of sexual harassment. See Mejías Miranda v. BBII Acquis'n Corp., 120 F.Supp.2d 157 (D. Puerto Rico 2000) (no personal liability can attach to agents and supervisors under Title VII or the ADEA); Acevedo Vargas v. Colón, 2 F.Supp.2d 203, 205 (D. Puerto Rico 1998) (referring to the EEOC guidelines which establish the criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment for purposes of Section 703 of Title VII).

On a similar vain, numerous cases in the District of Puerto Rico have already determined that no personal liability exists under Title VII and that individual defendants are not liable under Title VII. See Rivera Sánchez v. Autoridad de Energía Eléctrica, 360 F.Supp.2d 302, 317 (D. Puerto Rico 2005);Gómez González v. Guidant Corp., 364 F.Supp.2d 112 (D. Puerto Rico 2005); Vargas v. Fuller Brush Co. of Puerto Rico, 336 F.Supp.2d 134, 138 (D. Puerto Rico 2004); Vélez-Sotomayor v. Progreso Cash Carry, Inc., 279 F.Supp.2d 65 (D. Puerto Rico 2003); Serapión, 119 F.3d at 982; Padilla Cintrón v. Rosselló González, 247 F.Supp.2d 48 (D. Puerto Rico 2003);Nieves v. Puerto Rico, 2003 WL 22316560 (D. Puerto Rico 2003);López Hernández v. Municipality of San Juan, 206 F.Supp.2d 243 (D. Puerto Rico 2002); Olivo González v. Teachers' Retirement Board, 208 F.Supp.2d 163 (D. Puerto Rico 2002);Castro Ortiz v. Fajardo, 133 F.Supp.2d 143 (D. Puerto Rico 2001); Canabal v. Aramark Corp., 48 F.Supp.2d 94, 95-98 (D. Puerto Rico 1999); Acevedo Vargas, 2 F.Supp.2d at 206; Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 92-93 (D. Puerto Rico 1997); Hernández v. Wangen, 938 F.Supp. 1052 (D. Puerto Rico 1996); Anonymous, 932 F.Supp. at 50-51.

Plaintiff Vélez Nieves filed a general opposition to co-defendant Quiroz' request for dismissal, arguing individual liability should attach as to co-defendant being an agent of the employer. This will be discussed in the next section under the alter ego doctrine.

However, this Magistrate Judge agrees with numerous judicial reasoning within this District Court insofar that Title VII's statutory structure suggests that Congress did not intend to impose individual liability over supervisors or agents of employers. Had Congress intended to hold individuals liable, it would have addressed the actions and conditions that would subject them to liability. Canabal, 48 F.Supp.2d at 96. Tasks mandated to employers under Title VII are applicable to the corporate entities and not to individual supervisors. See Hernández v. Wangen, 938 F.Supp. at 60 ( noting that tasks such as maintaining records that shed light on potential unlawful employment practices and posting notices about the provisions of Title VII in conspicuous places on the work premises are undoubtedly tasks associated with corporate entities, not individuals).

Accordingly, it is recommended that co-defendants Pérez, Ramsahai and Quiroz' petition for dismissal of plaintiff's cause of action under Title VII, for lack of individual liability, be GRANTED.

2. Alter Ego Doctrine.

Plaintiff's claims under Title VII as to these co-defendants should be dismissed since, contrary to averments in the opposition, co-defendants are not considered employers within the meaning of Title VII and, as above discussed, nor they could be considered agents of the employing entity from the four (4) corners of the complaint. As such, plaintiffs' have not established a cause of action upon which relief may be granted.

The alter ego doctrine falls within a more nuanced set of rules in a suit against a supervisor who is so closely connected to a corporate employer as to be considered its alter ego. See Harrison v. Netcentric Corp., 433 Mass. 465, 744 N.E.2d 622, 632-633 (2001) ( observing, in dictum, that courts frown upon a "tortuous interference claim against an individual decision maker who is indistinguishable from the corporation itself"); Schinkel v. Maxi-Holding, Inc., 30 Mass.App.Ct. 41, 565 N.E.2d 1219, 1225 (1991) ("conceivably, one in the position of chief executive officer . . . might be so closely identified with the corporation itself, and with its policies, that he should not be treated as a third person in relation to corporate contracts, susceptible to charges of tortuous interference when he causes the corporation to breach its contractual obligations."). Zimmerman v. Direct Federal Credit Union, 262 F.3d 70, 76 (1^st Cir. 2001).

This Magistrate Judge takes notice that plaintiffs have presented a generalized "alter-ego" exception in their opposition to dismissal as to a ruling against individual liability under

Title VII.⁵ This approach is insufficient to defeat a well-pleaded request for dismissal as asserted by co-defendants as to the federal claim under Title VII.

5 The allegations in the complaint refer to co-defendants Quiroz, Ramsahai and Pérez, as individuals liable as agents of the employer, for having supervisory authority and for having conspired illegally and intentionally to terminate plaintiff Vélez Nieves. Complaint ¶ 15. Co-defendant Pérez is identified as being the Human Resource Manager. Id. ¶ 55. The claimed supervisory positions of co-defendants Ramsahai and Quiroz cannot be ascertained from the pleadings. Id. ¶ 42.

3. ADEA and ADA claims.

The individual co-defendants request dismissal of the claims filed against them under ADEA and ADA for lack of individual liability.

ADEA makes it "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). Under the ADEA, an employer is liable if age was the motivating factor in the employer's decision. "That is, the plaintiff's age must have `actually played a role in [the employer's decision making] process and had a determinative influence on the outcome'."Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701 (1993)). See Sotorrio v. El Hipopotamo, Inc., 2005 WL 2178797 (D. Puerto Rico 2005).

In turn, Title I of the ADA generally prohibits discrimination in employment against qualified persons with disabilities. 42 U.S.C. § 12112(a). In addition to forbidding disparate treatment of those with disabilities, the ADA makes it unlawful for an employer to fail to provide reasonable accommodations for the known physical or mental limitations of otherwise qualified individuals with disabilities, unless the accommodations would impose an undue hardship on the operation of the business. Id. § 12112(b)(5)(A); see also García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n. 9 (1^st Cir. 2000); Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1166 (1^st Cir. 2002).

This Court has ruled the ADEA does not provide for the imposition of individual liability. Correa-Ruiz v. Calderón-Serra (D. Puerto Rico 2005) (holding there is no individual liability under the ADEA, and only the employer is liable for the acts of its agents); Rivera Sánchez v. Autoridad de Energía Eléctrica, 360 F.Supp.2d 302, 317 (D. Puerto Rico 2005); Díaz v. Antilles Conversion Export, Inc., 62 F.Supp.2d 463, 465 (D. Puerto Rico 1999); Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D. Puerto Rico 1999); Rodríguez v. Puerto Rico Marine Management, Inc., 975 F.Supp. 115, 120 (D. Puerto Rico 1997); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D. Puerto Rico 1996); Flamand v. American International Group, 876 F.Supp. 356, 361-64 (D. Puerto Rico 1994).

Similarly, this Court has ruled that individual liability does not attach under ADA claims. Segarra Santiago v. Hernández, 2006 WL 572338, 4 (D. Puerto Rico 2006) (given that the ADA's similar statutory language to both the Age Discrimination Employment Act and Title VII, Courts have held that no personal liability attaches under the ADA); Vicenty Martell v. Estado Libre Asociado de Puerto Rico, 48 F.Supp.2d 81, 88 (D. Puerto Rico 1999) (supervisors are not subject to individual liability under the ADA, thus, plaintiff may only assert his claim of discriminatory discharge under the ADA against the Commonwealth and the Department of Education); Anonymous, 932 F.Supp. at 50-51 51. See also Hernández v. Smith Kline Beecham Pharmaceutical, 2005 WL 2878081, at 7 (D. Puerto Rico 2005); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D. Puerto Rico 1998); Rivera Rodríguez v. Police Dep't of P.R., 968 F.Supp. 783, 785-786 (D. Puerto Rico 1997); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D. Puerto Rico 1997).⁶

6 As to liability under A DA, a line of cases has held lack of individual capacity liability under Title II of the ADA. See García v. S.U.N.Y. Health Scis. Ctr. Of Brooklyn, 280 F.3d 98, 107 (2nd Cir. 2001). For violations of the ADA, plaintiff may sue only a "public entity" for such violations, not government officials in their individual capacities. See Vinson v. Thomas, 288 F.3d 1145, 1155-56 (9^th Cir. 2002); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8, 1011-12 (8^th Cir. 1999) (en banc).

Consequently, it is recommended that co-defendants Pérez, Ramsahai and Quiroz' petition for dismissal of plaintiff's cause of action under ADA and ADEA, for lack of individual liability, be GRANTED.

4. State law claims.

a. Law 100.

Initially, when discussing Law 17, one that is closely analogous to Law 100 raised by herein plaintiff, authorities suggested that Law 17 would not support a cause of action against individual defendants. See Maldonado-Cordero v. ATT, 73 F.Supp.2d 177, 184 (D. Puerto Rico 1999) (holding that there is no individual liability under Law 100); Canabal., 48 F.Supp.2d at 98-99 (deciding that neither Law 17 nor Law 100 allow individual liability); Santiago v. Lloyd, 33 F.Supp.2d 99, 104-05 (D. Puerto Rico 1998) (holding that although the Puerto Rico courts have not addressed the issue, Law 17 and Law 100 do not support a cause of action against individual defendants); García-Pantoja v. General Instruments, Inc., 1996 WL 790102 (D. Puerto Rico 1996) (finding that neither Law 17 nor Law 100 provide for individual liability).

However, this trend was specifically set aside when the Supreme Court of Puerto Rico, in analyzing Law 100 determined individual liability to be present. In Rosario Toledo v. Distribuidora Kikuet, Inc., 151 D.P.R. 634, 2000 WL 943550 (2000), the Highest Court held that, different from the most popular interpretation of Title VII, Puerto Rico's law against discrimination in the workplace, Law 100, does provide for the imposition of supervisor liability on the president of a corporation when he is the supervisor of the plaintiff, and is personally responsible for causing the plaintiff's injury for acts of sexual harassment. The Court's holding, in fact, was later extended, via reconsideration, to include not only the actual employer, or the owner and the president of the corporation, but also any other person responsible for the illegal conduct, without any distinction. Pacheco Bonilla v. Tooling Stamping, Inc., 281 F.Supp.2d 336 (D. Puerto Rico 2003) (under Law 100 liability extends not only to the actual employer, or the owner and the president of the corporation, but also to any other person responsible for the illegal conduct, without any distinction). See also Rosado Sostre v. Turabo Testing, Inc., 364 F.Supp.2d 144 (D. Puerto Rico 2005) (while First Circuit has not yet decided issue of individual liability under Title VII, individual employers or supervisors may be held personally liable under Puerto Rico's "Law 100," Title VII's local counterpart, for their discriminatory actions); Miró Martínez v. Blanco Vélez Store, Inc., 393 F.Supp.2d 108, 114 (D. Puerto Rico 2005) (when the defendant is the direct cause of sexual harassment conduct, Puerto Rico's law against discrimination in the workplace, Law 100, may provide for imposition of liability on individual employers or supervisors);Vargas v. Fuller, 336 F.Supp.2d at 134 (individual defendants who are supervisors and whose own actions of sexual harassment violate a plaintiff's rights are indeed liable under Law 100, as well as Laws 69 and 17).

In Díaz-Rivera v. El Día, Inc., 2005 WL 2333645 (D. Puerto Rico 2005), this District applied the Kikuet rationale in a case of a claim under Law 100 for discriminatory acts which do not amount to sexual harassment. Plaintiff in Díaz-Rivera, made claims for age discrimination and retaliation under the ADEA and defendants filed a motion to dismiss contending they were not individually liable under the ADEA, Law 100 and Law 115 because they were not employers within the meaning of those laws.

Considering defendants' position as to lack of individual liability under Law 100, the Court mentioned that the cases cited in support of dismissal of the Law 100 claims were all decided before the Supreme Court of Puerto Rico made its definitive ruling on the issue of personal liability in Kikuet, in which the Court stated that "[a]n agent, official, administrator or supervisor of a company is civilly liable in his personal capacity, for the purposes of Laws 17, 69 and 100, in addition to the real employer, for the acts of sexual harassment against the worker or employee of the employer." Díaz-Rivera, 2005 WL 2333645.

The Court stated that "[l]abor laws are of a remedial character, with an eminently social and curative purpose. They are instruments for protecting the working class for sexual harassment and discriminatory acts of the employer in the workplace. Their liberal interpretation, in favor of those whom they intend to protect, is imperative." Díaz-Rivera, 2005 WL 2333645; Kikuet, at 641. The Court went further to state that the fact that Kikuet referred specifically to sexual harassment is understandable because that was the subject of the suit and two of the applicable laws invoked, Law 69 and Law 17, address gender issues. However, the Court clarified the statements in the opinion of Kikuet include "discriminatory acts" and "employment discrimination," as emphasized in the quotes above. Thus, to interpret the ruling of Kikuet narrowly would relegate these phrases to surplusage. Díaz-Rivera, 2005 WL 2333645. Accordingly, the Court denied defendant's motion to dismiss finding individual liability under state Law 100. Id.

Under these rationale and the above cited case law, it is recommended that co-defendants' Pérez, Ramsahai and Quiroz' petition for dismissal of plaintiff's cause of action under state Law 100, for lack of individual liability, be DENIED.

b. Law 80.

Insofar as plaintiff's claims against co-defendants under Puerto Rico's Law 80 of May 30, 1976, 29 L.P.R.A. § 185a (unjust dismissal), dismissal is warranted given that Law 80 provides for an employee who is discharged without good cause entitlement to receive severance payment from his/her employer. 29 L.P.R.A. § 185a. See Vargas v. Fuller, 336 F.Supp.2d at 1340; see also Miró Martínez, 393 F.Supp.2d at 110. Although there is no explicit definition for "employer" under Law 80 for severance pay, the Court has reasoned that the only remedies available under Law 80 are the salary the employee may have earned, the salary corresponding to one (1) month as indemnity, and an additional indemnity equal to one (1) week for each year in employment. Therefore, because the remedy is based on wages, and because it does not make sense that a supervisor should pay wages to an employee, it has been found that supervisors are not "employers" under 29 L.P.R.A. § 185a. Accordingly, this Court has ruled that the individual defendants were not "employers" under Law 80. See Pacheco Bonilla, 281 F.Supp.2d at 339 (same);Mandavilli v. Maldonado, 38 F.Supp.2d 180, 205 (D. Puerto Rico 1999) (same).

Thus, since there is no individual liability against co-defendants Pérez, Ramsahai and Quiroz' under Puerto Rico Law 80, it is recommended that defendants' request for dismissal of the Law 80 claims be GRANTED.

c. Law 44.

State Law 44 is Puerto Rico's counterpart to the ADA, which prohibits discrimination in the workplace against the physically or mentally disabled. Act No. 44 of July 2, 1984 ("Act No. 44"), 1 P.R. Laws Ann. §§ 501-511. Arce v. ARAMARK Corp., 239 F.Supp.2d 153, 169 (D. Puerto Rico 2003).

The case law on state Law 44 in our District is limited and we have only found one case dealing with Law 44 and individual liability, to wit, Berríos v. Bristol Myers Squibb Puerto Rico, Inc, 51 F.Supp.2d 61 (D. Puerto Rico 1999).

In Berríos, the Court found that Law 44 does not only apply to employers, but its scope appears to be somewhat broader. Section 5 of Law 44, addressing discrimination in the workplace, states that "[p]rivate or public institutions shall not practice, put into effect or use discriminatory employment procedures, methods, or practices against persons with physical or mental disabilities just for the sake of said handicap." P.R. Laws Ann. tit. 1 § 505. The proscribed behavior is addressed to "public and private institutions," for which reason, defining such term is essential. Berríos, 51 F.Supp.2d at 61.

Law 44 defines "public and private institutions" as "any association, society, federation, institute, entity or natural or juridical person that carries out, offers or renders any service, program, or activity regardless of whether or not it receives any financial contribution or funds from the Government of Puerto Rico." P.R. Laws Ann. tit. 1 § 501(c) (translation ours). Because this definition includes natural persons providing services, co-defendant in Berríos was one that could plausibly fall within the scope of public or private institution. P.R. Laws Ann. tit. 31 § 82. See Berríos, 51 F.Supp.2d at 66; see also Feliciano Rolón v. Ortho Biologics LLC, 404 F.Supp.2d 409, 410 (D. Puerto Rico 2005).

The Court in Berríos averred that, even if the individual co-defendant was required to follow Law 44, it does not necessarily follow that he/she is subject to liability under such statute. Berríos, 51 F.Supp. 2d at 64 (citing Santiago, 33 F.Supp.2d at 99); Figueroa, 939 F.Supp. at 106.

As indicated in Berríos, although the case law relating to remedies under Law 44 is limited, section 13 of Law 44 provides guidance stating that the remedies created by Law 100, the Puerto Rico counterpart to Title VII, are applicable to Law 44. In view of this incorporation of remedies, the Court in Berríos referred to Law 100 and its relevant case law as it relates to damages and remedies.

The Court in Berríos then made reference to the remedies section of Law 100 which states that "any employer who . . . discriminates against an employee regarding his salary, wage, pay or remuneration, terms, rank, conditions, or privileges of his work, . . . or who limits . . . his employees in any manner which tends to deprive a person of employment opportunities, or to affect his status as employee, on the basis of age, . . . race, color, sex, or national origin, or social position . . . shall incur civil liability. . . ." P.R. Laws Ann. tit. 29, § 146. Then, the Court referred to the decisions of this District (prior toKikuet) which held that Law 100 does not provide for the imposition of damages on supervisors or agents of employers. SeeSantiago, 33 F.Supp.2d at 104-05; Figueroa, 939 F.Supp. at 106. Therefore, because the concept of liability and remedies in Law 44 parallels that of Law 100, the Court found in Berríos that the individual defendant was not be liable under Law 44.

We decline to apply the line of reasoning of the Court inBerríos to this case because the Berríos case is prior to the decision of the Supreme Court of Puerto Rico in Kikuet, establishing that there is individual liability under Law 100. Thus, under the new rationale of Kikuet and the case law of this District interpreting and applying the holding of Kikuet, the parallelism made by the Court in Berríos between Law 100 and Law 44, to rule that there is no liability by supervisors under Law 44, is no longer practicable.

Nonetheless, we reach the same conclusion the Court reached inBerríos, that there is no individual liability under Law 44, but under a different parallelism.

The Puerto Rico legislature, by amending Law 44 in late 1991, sought to accommodate local law with the ADA, its federal counterpart. See 1991 P.R. Laws 105; Ríos Jaimán v. Cidra Manufacturing Operations of P.R., Inc., 98 J.T.S. 73.

Law 44 bans discrimination against the disabled by any public or private institution that receives funds from the Commonwealth of Puerto Rico. Specifically, Law 44 provides that said institutions may not take any action to "discriminate against persons with some type of physical or mental disability." 1 P.R. Laws Ann. § 504. Thus, the elements of proof for a claim under Law 44 are essentially the same as for a claim under the ADA. See e.g., Román-Martínez v. Delta Maint. Serv., Inc., 229 F.Supp.2d 79, 85 (D. Puerto Rico 2002); Zayas v. Commonwealth of Puerto Rico, 378 F.Supp.2d 13, 23-24 (D. Puerto Rico 2005).

As discussed above, there is ample case law in this District which establishes that no personal liability attaches under the ADA. Segarra Santiago, 2006 WL 572338; Vicenty Martell, 48 F.Supp.2d at 88; Anonymous, 932 F.Supp. at 51; Figueroa v. Fajardo, 1 F.Supp.2d at 120; Rivera Rodríguez, 968 F.Supp. at 785-786; Moreno, 963 F.Supp. at 76.

Thus, we similarly conclude that, being Law 44 the counterpart to the ADA, no personal liability should attach under state Law 44. Accordingly, it is recommended that co-defendants Pérez, Ramsahai and Quiroz' request to dismiss plaintiff's claims under Law 44 for lack of individual liability be GRANTED.

CONCLUSION

In view of the foregoing, it is recommended that co-defendants Pérez, Ramsahai and Quiroz' Motions to Dismiss be GRANTED IN PART AND DENIED IN PART. Accordingly, it is recommended that dismissal be GRANTED of Title VII, ADEA, ADA, state Law 80 and state Law 44 claims, as to co-defendants Pérez, Ramsahai and Quiroz, for lack of individual liability. It is further recommended that the dismissal requested as to State Law 100 be DENIED. Finally, it is recommended that co-defendants Pérez and Ramsahai's request for dismissal for failure to exhaust administrative complaints under Title VII and as to timeliness of the general claims for damages under Art. 1802 of the Puerto Rico Civil Code, regarding defamation and interference with plaintiff Vélez Nieves' subsequent employment, be DENIED without prejudice.

IT IS SO RECOMMENDED.

The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1^st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1^st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1^st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").