VELEZ v. ARSO RADIO CORPORATION

Full title: ANA VELEZ, Plaintiff, v. ARSO RADIO CORPORATION: LUIS SOTO, Defendants

Court: United States District Court, D. Puerto Rico

Date published: Jun 1, 2004

Civil No. 03-1759 (JAG) (D.P.R. Jun. 1, 2004)

Opinion

Civil No. 03-1759 (JAG).

June 1, 2004

REPORT AND RECOMMENDATION INTRODUCTION

CAMILLE L. VELEZ-RIVE, Magistrate Judge

Plaintiff Ana Vélez filed this action seeking damages against the above defendants Arso Radio Corporation and her supervisor while employed therein, Luis Soto ("Soto"), on claims of sexual discrimination because of her pregnancy. The first claim is filed as a suit arising under federal law against discrimination in employment pursuant to Title VII of the Civil Rights Act of 1964, as amended.¹ The second cause of action is filed as supplemental jurisdiction over pendent state claims under the Puerto Rico discrimination laws. A third cause of action is submitted as a contract violation.

1 Title 42, United States Code, Section 2000 et seq.

Co-defendant Soto filed a Motion to Dismiss plaintiff's cause of action under Title VII claiming there is no individual liability and he should not be considered an "employer" under said federal law ( Docket No. 15). Plaintiff submitted a timely opposition ( Docket No. 17) and said co-defendant thereafter submitted a reply ( Docket No. 21). The matters raised in these motions were referred to this Magistrate Judge for report and recommendation ( Docket No. 26, 27).

ANALYSIS

Co-defendant's Motion to Dismiss and Standard under 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)).

Title VII Actions and Individual Defendants.

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, numerous circuit courts of appeals have upheld dismissal of Title VII as to individual co-defendants. The Second Circuit has indicated that under Title VII individual supervisors are not subject to liability. Mandell v. County of Suffolk, 316 F.3d 368, 377 (2^nd Cir. 2003); Wrighten v. Glowski, 232 F.3d 119, 120 (2^nd Cir. 2000); Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2^nd Cir. 1995).

Similarly, the Third Circuit has granted motions to dismiss as to individual defendants and non-employers finding that Title VII, 42 U.S.C. § 2000e-2(a), prohibits unlawful employment practices by employers not by individual or other employees because individual employees are not liable under Title VII.Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3^rd Cir. 1996); Emerson v. Thiel College, 296 F.3d 184, 190 (3^rd Cir. 2002).

Likewise, in Williams v. Banning, 72 F.3d 552, 554 (7^th Cir. 1995), the Seventh Circuit found that a non-employer individual cannot be held personally liable under Title VII.

For other Circuits see Wathen v. General Elec. Co., 115 F.3d 400, 405 (6^th Cir. 1997) (holding that an individual employee/supervisor, who does not otherwise qualify as an `employer,' may not be held personally liable under Title VII.");Haynes v. Williams, 88 F.3d 898 (10^th Cir. 1996) ( holding that in the Tenth Circuit, Title VII liability is borne by employers and not individual supervisors); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10^th Cir. 1993) ("Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate."); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9^th Cir. 1998) ( citing Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587-88 (9^th Cir. 1993) ( indicating civil liability for employment discrimination does not extend to individual agents of the employer who committed the violations, even if that agent is a supervisory employee).²

2 For an additional discussion on the undecided ruling as to Tittle VII individual liability, see Scott J. Connolly, Note 421, INDIVIDUAL LIABILITY OF SUPERVISORS FOR SEXUAL HARASSMENT UNDER TITLE VII: COURTS' RELIANCE ON THE RULES OF STATUTORY CONSTRUCTION, 42 Boston College Law School 421 (2001) ( furthering that the United States Supreme Court has not considered the issue of individual liability under Title VII for workplace sexual harassment and reviewing the case law addressing the issue of individual liability of supervisors under Title VII, and concluding that Title VII imposes liability only on employers. Simply stated, supervisors cannot be sued as individuals under Title VII).

Dismissal as to Co-defendant Soto for Lack of Individual Liability under Title VII.

Above co-defendant Soto asked this Court to dismiss plaintiffs' Title VII claims against him on the basis that Title VII does not provide for individual liability. As previously mentioned, the First Circuit has yet to resolve the issue of individual liability in Title VII cases although other circuits courts have determined there is no such liability.

Nonetheless, there are numerous cases at the District Court level in Puerto Rico that have already determined that no personal liability exists under Title VII and that individual defendants are not liable under Title VII. See Vélez Sotomayor v. Progreso Cash Carry, Inc., 279 F. Supp.2d 65 (D. Puerto Rico 2003) ( noting Serapión, 119 F.3d at 982);Padilla-Cintrón v. Rosselló-González, 247 F. Supp.2d 48 (D. Puerto Rico 2003); see also Canabal v. Aramark Corp., 48 F. Supp.2d 94, 95-98 (D. Puerto Rico 1999); Acevedo-Vargas v. Colón, 2 F. Supp.2d 203, 206 (D. Puerto Rico 1998); 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 v. Legal Services Corp., 932 F. Supp. 49, 50-51 (D. Puerto Rico 1996). And see 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).

Turning to the instant case, all claims against co-defendant Soto should be dismissed because, as above discussed, Title VII does not provide for individual liability.

In addition, contrary to the averments in the opposition, co-defendant Soto should not be considered an employer within the meaning of Title VII.

Section 703(a) of Title VII states that:

[i]t shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2 (emphasis added).

Title VII's coverage has been extended to proscribe sexual harassment in the workplace. 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). Therefore, Title VII is the applicable federal cause of action addressing claims for sexual harassment in the workplace.

Because Title VII is directed at "employers," determining the meaning of this term is essential. Title VII defines employer 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-defendant is not the employing entity, and it should be determined whether he can be held liable as agent 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 Corporation of Puerto Rico, 932 F. Supp. at 50 (D. Puerto Rico 1996) (stating that "resolution of the [individual liability] question depends on how the `and any agent' language is interpreted.").

Numerous Circuit Courts of Appeals have likewise held that no personal liability can be attached to agents or supervisors under Title VII. Serapión, 119 F.3d at 982 ( declining to address the issue of individual liability); see Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7^th Cir. 1998) ( citing Williams v. Banning, 72 F.3d 552 (7^th Cir. 1995), where no individual liability under Title VII was found); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4^th Cir. 1998) ( finding no individual liability under Title VII);Wathen v. General Elec. Co., 115 F.3d 400, 405-06 (6^th Cir. 1997) ( same); Haynes v. Williams, 88 F.3d 898 (10^th Cir. 1996) ( same); Dici v. Com. of Pa., 91 F.3d 542 (3^rd Cir. 1996) ( same); Tomka v. Seiler Corp., 66 F.3d 1295 (2^nd Cir. 1995) ( same); Gary v. Long, 59 F.3d 1391 (D.C. Cir. 1995) ( same); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8^th Cir. 1995) ( same); Smith v. Lomax, 45 F.3d 402 (11^th Cir. 1995) ( same); Grant v. Lone Star Co., 21 F.3d 649 (5^th Cir. 1994) ( same); Miller v. Maxwell's International, Inc., 991 F.2d 583 (9^th Cir. 1993) ( same).

This Magistrate Judge agrees with the reasoning of previous decisions 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.).

This District has clearly ruled that no personal liability exists under Title VII and that individual defendants are not liable under Title VII. This Magistrate Judge will follow this precedent. Accordingly, it is recommended that co-defendant Soto's Motion to Dismiss as to plaintiff's claim under Title VII BE GRANTED.

Pendent State Claims as to Co-defendant Soto.

Plaintiff has also submitted in his Opposition that, even if no federal cause of action survives, the pendent state claims should remain in this federal forum against co-defendant Soto because he has failed to made any arguments, short of requesting dismissal of all claims, that the state anti-discrimination laws would not make him liable.

Pendent jurisdiction exists whenever there is a claim arising under the Constitution, the Laws of the United States, and treaties made under their authority and the relationship between that claim and the state claim can be found to constitute, but one constitutional case. The state claims must be linked to the federal claim by a "common nucleus of operative facts", and must be sufficiently substantial to confer federal court jurisdiction.United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966); Confederación Laborista De Puerto Rico v. Cervecería India, Inc., 607 F. Supp. 1077, 1081 (D. Puerto Rico 1985).³

3 See Ponce Federal Bank v. The Vessel "Lady Abby", 980 F.2d 56 (1^st Cir. 1992) (Nonfederal claim against a person not otherwise a party in a case is sufficiently related to an admiralty claim to permit assertion of pendent party jurisdiction if state law claim against additional party arises out of common nucleus of operative facts with admiralty claim and resolution of factually connected claims in single proceeding would further interests of conserving judicial resources and fairness to parties).

In Gibbs, 383 U.S. at 726, the Supreme Court ruled that a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1^st Cir. 1995).

The preferred approach is pragmatic and case-specific. Thus, in "an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims." Rodríguez v. Doral Mortage Corp, 57 F.3d 1168, 1177 (1^st Cir. 1995); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1^st Cir. 1996).

The exercise of pendent jurisdiction is discretionary, and the remaining federal claims in this litigation are very closely linked to the events and to the evidence to be presented as to the employer.⁴

4 Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1^st Cir. 1995); See also Flowers v. Fiore, 359 F.3d 24, 28 (1^st Cir. 2004).

Thus, upon an assessment of judicial economy and fairness to litigants, it is recommended that this Court exercise pendent jurisdiction as to plaintiff's claims under state law against co-defendant Soto.

CONCLUSION

It is recommended that co-defendant Soto's Motion to Dismiss BE GRANTED in regard to plaintiff's claim under Title VII ( Docket No. 15) and that pendent state claims against above co-defendant BE RETAINED as requested in plaintiff's opposition and briefly addressed by codefendant Soto in his reply ( Docket No. 17, 21).

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").