Lopez-Lopez v. The Robinson School et al

MOTION to Dismiss for Failure to State a Claim

D.P.R.September 27, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO SANDRA LOPEZ LOPEZ, Plaintiff, v. THE ROBINSON SCHOOL, INC.; SAN JUAN CAPESTRANO HOSPITAL, INC.; DANIEL M. HILDEBRAND; MARIA TERESA LARRIEU; MELVIN SANTONI CRESPO, MD; ANGEL M. NARVAEZ MORELL, MD; AIG INSURANCE CO- PUERTO RICO, INC.; DEFENDANTS A, B, C INSURANCE COMPANIES; DEFENDANTS D, E, F, Defendants. CIVIL NO.: 16-2372 (CCC) MOTION TO DISMISS PURSUANT TO RULE 12(B)(6) TO THE HONORABLE COURT: COMES NOW co-defendant Daniel M. Hildebrand ("Hildebrand"), by and through his undersigned counsel, before this Honorable Court respectfully states and prays: I. Introduction Plaintiff Sandra Lopez is a teacher at Robinson School in Puerto Rico. She has brought this suit alleging discrimination and retaliation under the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. The complaint also alleges supplemental jurisdiction under 28 U.S.C. § 1367 seeking redress for violations of various Puerto Rico laws, including Act No. 44 of July 2, 1985, 1 L.P.R.A. §§ 501 et seq. ("Law 44"); Act No. 100 of June 30, 1959, 29 L.P.R.A. §§ 146 et seq. ("Law 100"); Act No. 115 of December 20, 1991, P.R. Laws Ann. tit. 29, Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 1 of 15 2 § 194a ("Law 115"); Act No. 408 of October 2, 2000; Article 1802, 31 L.P.R.A. § 5141; and Article II of Puerto Rico's Constitution, Sections 1, 8, 16, and 20. For the reasons that follow, all of the claims should be dismissed against defendant Hildebrand. II. Motion to Dismiss Standard Under Rule 12(b)(6), dismissal is proper if the plaintiff has not provided both fair notice of the nature of the claim and plausible factual allegations to support the claim. See Ashcroft v. Iqbal, 556 US 662, 678 (2009). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), the Supreme Court held that to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege “a plausible entitlement to relief.” Rodriguez–Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95–96 (1st Cir.2007) (quoting Twombly, 550 U.S. at 559). The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. While Twombly does not require heightened fact pleading, it does require enough facts to “nudge [plaintiffs'] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 556. Accordingly, in order to avoid dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Id. Conclusory allegations of law, inferences unsupported by facts, or a formulaic recitation of the elements of a cause of action will not defeat an FRCP 12(b)(6) motion. Iqbal, 556 US at 578. A "plaintiff is not entitled to proceed perforce by virtue of allegations that merely parrot the elements of the cause of action." Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). When opposing a Rule 12(b)(6) motion, “a plaintiff cannot expect a trial court to do his homework for him.” McCoy v. Massachusetts Institute of Tech., 950 F.2d 13, 22 (1st Cir.1991). Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 2 of 15 3 Plaintiffs are responsible for putting their best foot forward in an effort to present a legal theory that will support their claim. Id. at 23. Plaintiffs must set forth “factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). See, e.g., H & R Block Tax Servs., Inc. v. Rivera-Alicea, 570 F. Supp. 2d 255, 263-64 (D.P.R. 2008). III. Legal Argument A. There is No Individual Liability Under the ADA Plaintiff's first cause of action alleges a violation of the ADA for discrimination due to her perceived mental disability.1 It is axiomatic, however that there is no individual liability under the ADA. "Title I of the ADA, like Title VII of the Civil Rights Act, "'addresses the conduct of employers only and does not impose liability on co-workers.'" Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 50-52 (1st Cir. P.R. 2011)(quoting Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st Cir. 2009). See also Garcia-Hicks v. Voc. Rehab. Admin., 148 F. Supp. 3d 157, 161-162 (D.P.R. 2015)("individual capacity suits are not permitted pursuant to the ADEA"). Accordingly, the ADA claim against co-defendant Hildebrand in his individual capacity should be dismissed with prejudice. B. There is No Individual Liability Under the ADEA Plaintiff's second cause of action alleges a violation of the ADEA for discrimination due to her age.2 This cause of action also fails due to lack of individual liability. Although the First 1 It is not entirely clear whether or not the complaint alleges a claim against defendant Hildebrand under the ADA, but the instant argument is made in the event plaintiff was including Hildebrand in this first cause of action. 2 It is not entirely clear whether or not the complaint alleges a claim against defendant Hildebrand under the ADEA, but the instant argument is made in the event plaintiff was including Hildebrand in this second cause of action. Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 3 of 15 4 Circuit has not yet directly addressed this issue, this District Court has repeatedly held that the ADEA does not contemplate individual liability. See, e.g., Luhring-Arizmendi v. Signature Flight Support, 2015 U.S. Dist. LEXIS 134049, 5-7 (D.P.R. Sept. 29, 2015); Albite v. Polytechnic Univ. of P.R., Inc., 5 F. Supp. 3d 191, 197 (D.P.R. 2014); Reyes-Feliciano v. Marshalls, 159 F. Supp. 3d 297 (D.P.R. 2016). The Luhring court explained its holding as follows: While the First Circuit has not addressed this issue directly, it is "virtually impossible to imagine that the Court of Appeals would read the ADEA to contemplate individual liability." Gascard v. Franklin Pierce Univ., No. 14-CV-220-JL, 2015 U.S. Dist. LEXIS 29800, 2015 WL 1097485, at *7 (D.N.H. Mar. 11, 2015)(citing Correa—Ruiz v. Fortuno, 573 F.3d 1, 8 (1st Cir. 2009) (accepting as uncontested that "there is no individual liability under the ADEA")). This is because the First Circuit has already held that there is no such liability under either the Americans with Disabilities Act (ADA) or under Title VII of the Civil Rights Act, which share significant similarity with the ADEA in terms of text and structure. See Roman—Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st Cir. 2011) (ADA); Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st Cir. 2009) (Title VII). Further, the vast majority of circuits who have considered the issue have held that there is no individual liability under this statute. Gascard, 2015 U.S. Dist. LEXIS 29800, 2015 WL 1097485 at *7 (collecting cases). 2015 U.S. Dist. LEXIS 134049, 5-7. Accordingly, the ADEA claim against co-defendant Hildebrand in his individual capacity should be dismissed with prejudice. C. There is No Individual Liability Under Law 44 or Law 115 Plaintiff's fourth cause of action alleges violations of Puerto Rico Act Nos. 44, 100 and 115. Since there is no individual liability under Act 44 or Act 115, these claims also fail. Addressing Law 44 first, this District Court has "consistently held that there is no individual liability under Law 44." Cardona Roman v. Univ. of P.R., 799 F. Supp. 2d 120, 131 (D.P.R. 2011). "The ADA and Law 44 are almost identical, and as the ADA does not provide for Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 4 of 15 5 individual liability, neither should Law 44." Id. at 132. Turning now to Law 115, it protects employees that collaborate in investigations or offer testimony before an administrative, judicial or legislative forum, from adverse actions by their employers." Salgado- Candelario v. Ericsson Caribbean, Inc., 614 F. Supp. 2d 151, 177 (D.P.R. 2008). Although Puerto Rico's Supreme Court has not considered the question of whether there is individual liability under Law 115, nevertheless, relying on findings by the Puerto Rico Court of Appeals, this District Court has repeatedly determined that no individual liability exists under Law 115. See, e.g., Chain v. P.R. Fed. Affairs Admin. (PRFAA), 2016 U.S. Dist. LEXIS 45575, 14-17 (D.P.R. Mar. 31, 2016); Lugo- Matos v. Commonwealth of Puerto Rico Police Dep't, 2016 U.S. Dist. LEXIS 23787, 17-20 (D.P.R. Feb. 24, 2016); Hernandez-Mendez v. Rivera, No. CIV. 15-1147 GAG, 2015 U.S. Dist. LEXIS 134987, 2015 WL 5770087, at *13 (D.P.R. Sept. 30, 2015); Otero-Merced v. Preferred Health Inc., 680 F.Supp.2d 388, 393 (D.P.R. 2010) (citing Vargas Santiago v. Lilliam Alvarez Moore, No. DPE-2004-0541, 2006 PR App. LEXIS 3010, 2006 WL 3694659, at *5 (P.R. Cir. Nov. 29, 2006). Most recently, this District Court made a thorough analysis of the precedent in this district as well as the precedent of the Puerto Rico Court of Appeals, as well as the statutory history, and concluded that the statute does not carry individual liability. Bonilla-Ramirez v. MVM, Inc., 2016 U.S. Dist. LEXIS 68519, 16-20 (D.P.R. May 23, 2016). In relevant part, the Court held: The court has carefully reviewed the text of Law No. 115, statutory history, the decisions on the matter, and [defendant's] arguments in support of his motion (which remain de facto unopposed), and is persuaded the statute does not carry individual liability. Law No. 115 derives from Law No. 65 of July 3, 1986. See, Sánchez-Barreto, 2003 PR App. LEXIS 2754, 2003 WL 23336311 at * 3 (so noting); Report of Committee of Labor and Veterans Affairs of House of Representatives on Senate Bill 987 ("Informe de la Comisión de Trabajo y Asuntos del Veterano de la Cámara de Representantes sobre Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 5 of 15 6 el P. del S. 987")(later enacted as Law No. 115) (October 25, 1991) (pointing out that bill sought to expand the protections set in Law No. 65). Law No. 65 amended Article 2 of Law No. 80 to specify that an employee's assistance to, or expressions about the employer's business in an administrative, judicial or legislative investigation would not be considered just cause, and to provide for reinstatement and back pay in those cases. See, Law No. 65 of July 3, 1986; Guía Revisada para la Interpretación y Aplicación de la Ley Núm. 80 de 30 de mayo de 1976, as amended (2014), prepared by the Department of Labor and Human Resources of Puerto Rico at p. 12 (summarizing Law No. 65). As stated earlier, Law No. 80 does not recognize individual liability. Law No. 115 expanded the core protection of Law No. 65 into an action for retaliation (1) prohibiting discharges, threats, or discrimination against affected employees with respect to terms, conditions, compensation, benefits or privileges of employment; (2) authorizing recovery of double emotional and "real" damages, lost pay and benefits; and (3) setting an evidentiary framework to govern claims under the statute. In addition, it amended Article 2 of Law No. 80 to qualify the definition of just cause related to the employee's expressions before administrative, judicial or legislative bodies, such that to be protected, those expressions cannot be defamatory or contain privileged information. Nevertheless, it defined the term "employer" as a person with one or more employees, including the employer's agents. See, Law No. 115 of December 20, 1991. Finally, Law No. 115 was amended by Law No. 169 of September 29, 2014, to include as protected employee expressions not only those given in connection with administrative, judicial or legislative investigations, but those provided or attempted to be provided as part of internal company investigations. As relevant here, the term "employer" was redefined, to mean any natural or juridical person who employs persons through compensation and its agents and supervisors. Id. The term, however, was not amended to adopt Law No. 100's definition. From the 2014 amendments, the employer is the entity that links employees to the workplace through compensation. Supervisors and agents do not compensate employees. In that sense, reference to supervisors and agents seems more geared toward ensuring coverage than to create individual liability. For that reason, the court does not read Law No. 115 as a source of individual liability. Liability attaches to the employing entity itself, which in turn must respond for the acts or omissions of its agents and supervisors under the statute. Consequently, the Law No. 115 claim against [defendant] must be dismissed. 2016 U.S. Dist. LEXIS 68519, 16-20. Accordingly, the claims under Law 44 and Law 115 against co-defendant Hildebrand should be dismissed. D. Plaintiff's Law 100 Claim Fails to Allege an Adverse Employment Action Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 6 of 15 7 Plaintiff's fourth cause of action alleges a violation of Puerto Rico Act No. 100. Law 100 seeks to prevent discrimination in the workplace by reason of age, race, color, religion, gender, social or national origin or social condition. See P.R. Laws Ann. tit. 29 § 146 et seq. (2000). It states in relevant part: "Any employer who discharges, lays off or discriminates against an employee regarding his/her salary, wage, pay or remuneration, terms, rank, conditions or privileges of his/her job, or who fails or refuses to hire or rehire a person, or who limits or classifies his/her employees in any way which tends to deprive a person of employment opportunities, or that affects his/her status as employee because of his/her age, as defined below, race, color, sex, social or national origin, social condition, political affiliation or political or religious ideology of the employee or applicant for employment, or for being a victim or perceived as a victim of domestic violence, sexual aggression or stalking...Shall incur in civil liability." Law 100 is essentially the local equivalent of the ADEA, providing a private cause of action in favor of any person who is discharged or otherwise adversely affected in employment by reason of age discrimination. The elements of a prima facie case of age discrimination under Law 100 include 1) that plaintiff was in a protected class; 2) that an adverse action occurred; 3) which was taken without just cause; and 4) and was made for discriminatory reasons based on age. See, e.g., Varela Teron v. Banco Santander de Puerto Rico, 257 F.Supp.2d 454, 463 (D.P.R. 2003); Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 16 (1st Cir. 2001)) ("'Under Law 100, a plaintiff establishes a prima facie case of age discrimination by (1) demonstrating that [she] was . . . discharged, and (2) alleging that the decision was discriminatory.'"); Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 62 (1st Cir. 2005) (sanctioning jury instructions which required plaintiff "to prove that she was in a protected class, that she was fired and that the termination was unjustified."). In the instant action, Lopez's Law 100 claim cannot succeed. She has failed to state a facially plausible claim of age discrimination because she did not suffer an adverse employment Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 7 of 15 8 action. A plaintiff suffers from an adverse employment action if he or she is subjected to "[a]n adverse action [that] . . . carries tangible consequences. At bottom, it involves . . . a material change in terms and conditions of employment . . . ." Echevarria v. AstraZeneca, LP, 133 F. Supp. 3d 372, 394 (D.P.R. 2015). "While termination of employment obviously is an adverse employment action," Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011), an increase in workload does not necessarily constitute an adverse employment action for purposes of the ADA. See, e.g., Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 23-25 (1st Cir. 2002) (the fact that plaintiff was required to do more work under extreme supervision did not rise to level of an adverse employment action). In the instant action, Lopez has not alleged any discrete acts of discrimination that would constitute a materially adverse employment action, such as a discharge, failure to promote, denial of transfer, reduction in salary, demotion, or refusal to hire. "Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action. ... Typically, the employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service." Blackie v. Maine, 75 F.3d 716, 725-726 (1st Cir. 1996)(citations omitted). Here, plaintiff Lopez is still working at Robinson School in the same position with the same salary. She has made no allegations or claims of a hostile work environment, nor of a constructive discharge. See Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 12-13 (1st Cir. P.R. 2007)("constructive discharge is shown where 'the working conditions imposed by the Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 8 of 15 9 employer had become so onerous, abusive, or unpleasant that a reasonable person in the employee's position would have felt compelled to resign.'")(quoting Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000)). Lopez' alleges that she received a Teacher Improvement Plan (TIP) and was "disciplined", but these actions were allegedly in retaliation for her filing a complaint with the EEOC and ADU, not due to age discrimination. (Complaint, paras. 99 to 103). The only allegation that she makes related to age discrimination is that she was "assigned a heavier work load than her younger counterparts,[and] she was required to manually turn in the grades while younger teachers with less seniority were not required." (Complaint at para. 105). These alleged facts can not rise to the level of a materially adverse employment action. See Arroyo-Ruiz v. Triple-S Mgmt. Group, 2016 U.S. Dist. LEXIS 124391, 29-30 (D.P.R. 2016)("plaintiff's bare allegation of an increased workload is not sufficient to establish an 'adverse employment action'"). Plaintiff Lopez has failed to allege acts that would constitute a materially adverse employment action, and thus she has not pled a plausible entitlement to relief under Law 100. Accordingly, her Law 100 claim should be dismissed. E. The Puerto Rico Constitution Claims Should Be Dismissed for Failure to State a Claim. Plaintiff Lopez' third cause of action is brought pursuant to Article II, Sections 1, 8 and 16 of the Puerto Rico Constitution. The complaint (page 20) cursorily states that the defendants have violated plaintiff's rights by "violating the dignity, privacy, health at the work place and discriminating against her on the basis of perceived disability and social condition." Plaintiff has failed to meet even the most basic pleading requirements for any claims under the Puerto Rico Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 9 of 15 10 Constitution. A plaintiff may not simply throw a statutory reference into a complaint hoping to later flesh out its claim with facts in support. Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 88 (1st Cir. P.R. 2008)(" [I]t appears on the face of the Complaint that the Law 80 claim fails to meet the most basic of pleading requirements, as it consists of nothing more than a solitary statutory reference, with nothing to support it."). See also Pérez-Maspons v. Stewart Title P.R., 2016 U.S. Dist. LEXIS 126804, 5-50 (D.P.R. Sept. 16, 2016)(dismissing plaintiff's claims under Article II of the Puerto Rico Constitution for failure to meet basic pleading requirements). "[A] simple request for relief without stating any grounds therefor is inadequate." Pujol v. Shearson/Am. Express, Inc., 829 F.2d 1201, 1207 (1st Cir. 1987). Article II, Section 1 of the Constitution of the Commonwealth of Puerto Rico states the following: "The dignity of the human being is inviolable. All men are equal before the law. No discrimination shall be made on account of race, color, sex, birth, social origin or condition, or political or religious ideas. Both the laws and the system of public education shall embody these principles of essential human equality." Puerto Rico Const. Art. II, § 1. These constitutional axioms are now embodied in Law 100 of Puerto Rico of June 30, 1959, 29 P.R. Laws Ann. § 146 et seq. Hernandez Loring v. Universidad Metropolitana, 186 F. Supp. 2d 81, 85 (D.P.R. 2002). Plaintiff's Law 100 claim, addressed ante, is her fourth cause of action and is based on age discrimination. For this third cause of action under Section 1, Lopez' complaint only alleges "perceived disability and social condition," not age discrimination. However, a "perceived disability" is not included within the ambit of Section 1. Nor do the facts alleged by plaintiff in her complaint support a cause of action for discrimination based on "social condition." If by social condition, plaintiff is referencing her allegedly perceived mental disability, Section 1 is Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 10 of 15 11 not the proper vehicle. Law 44 is the proper local statute for pursuing a claim of discrimination due to a perceived mental disability, but as discussed ante, there is no individual liability under Law 44. Accordingly, the Section 1 claim should be dismissed. Article 2, Section 8 of the Puerto Rico Constitution states the following: "Every person has the right to the protection of law against abusive attacks on his honor, reputation and private or family life." Puerto Rico Const. Art. II, § 8. Article II, section 8 has been interpreted by the courts of Puerto Rico as protecting the right to privacy within the home and within intimate family and personal relationships. Garcia Santiago v. Acosta, 104 D.P.R. 321 (1975); Figueroa v. E.L.A., 107 D.P.R. 250 (1978). See also Lopez-Pacheco v. United States, 627 F. Supp. 1224, 1227-1229 (D.P.R. 1986)("[P]laintiff cannot substantiate a claim for invasion of privacy under the Puerto Rico Constitution. Clearly, the public information gathered on plaintiff [by the FBI's surveillance activity] is not protected by Article II, sections 1 or 8.") The Puerto Rico Supreme Court's application of the constitutional right to privacy has been similar to the common law tort of invasion of privacy. The application of the right to particular factual situations is left to the "prudent discretion" of the trial courts. Colon, 112 D.P.R. at 579. "A person does not violate the right to privacy as long as the conduct of the investigation is not 'ostensible and daring,' or unreasonably intrusive." Dopp v. Fairfax Consultants, Ltd., 771 F. Supp. 494, 497 (D.P.R. 1990). Article II, Section 8 has also been held to protect a person from excessive publicity of false or intimate personal information. Quiñones v. E.L.A., 90 D.P.R. 791 (1964). See, e.g., Colon v. Romero Barcelo, 112 D.P.R. 573, 579 (1982)(publication of photograph of a murder victim, which was "shocking, offensive and unauthorized" as an advertisement for crime prevention violated plaintiffs' rights to privacy, since there were other less intrusive means Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 11 of 15 12 available to spread the message of crime prevention); Escobar v. Roca, 926 F. Supp. 30, 34-35 (D.P.R. 1996)(publication of photographs of plaintiff's home, as well as reporter's phone call to plaintiff, did not violate plaintiff's right to privacy under Section 8). The factual allegations of plaintiff Lopez' complaint simply do not support a plausible entitlement to relief for invasion of privacy or for excessive publicity of personal information under Section 8. There are no facts alleged regarding publication or surveillance or any other scenario to support such a claim, and accordingly, the Section 8 claim should be dismissed. And finally, Article II, Section 16 of the Puerto Rico Constitution reads: "The right of every employee to choose his occupation freely and to resign there from is recognized, as is his right to equal pay for equal work, to a reasonable minimum salary, to protection against risks to his health or person in his work or employment, and to an ordinary workday which shall not exceed eight hours. An employee may work in excess of this daily limit only if he is paid extra compensation as provided by law, at a rate never less than one and one-half times the regular rate at which he is employed." Puerto Rico Const. Art. II, § 16. Plaintiff Lopez does not allege that her pay is unequal, or her salary unreasonable, or that there are any health risks in her workplace, or that her workday is excessive. Rather, her allegations pertain to age and disability discrimination, including one allegation that she teaches more classes than younger teachers. But even this allegation does not imply that her workload is excessive, only that it is greater than that of younger teachers. The factual allegations of plaintiff Lopez' complaint are simply not relevant or pertinent to the grounds for a cause of action under Section 16, thus Lopez has failed to state a facially plausible claim for relief and accordingly, the Section 16 claim should be dismissed. F. The Article 1802 Claim is Barred Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 12 of 15 13 Plaintiff's fifth cause of action alleges damages under Article 1802, 31 L.P.R.A. § 5141.3 Plaintiff cannot bring a cause of action under Article 1802 for the same discriminatory conduct alleged in her other state law claims, as well as the ADA and ADEA claims. Article 1802 is Puerto Rico's general torts statute. Maldonado-Gonzalez v. Puerto Rico Police, 927 F. Supp. 2d 1, 13 (D.P.R. 2013). In Puerto Rico, "the provisions of the Civil Code are supplementary to special legislation." Barreto v. ITT World Directories, Inc., 62 F.Supp. 2d 387, 393 (D.P.R. 1999). In Santini Rivera v. Serv. Air, Inc., 137 P.R. Dec. 1, 1994 P.R.-Eng. 909,527, 1994 Juris P.R. 121 (1994), the Supreme Court of Puerto Rico addressed the interplay between causes of action under special employment statutes and Article 1802. Following the rationale set forth therein, this District Court has uniformly held that "'claimants are barred from bringing an Article 1802 action to the extent that specific labor laws cover the same conduct alleged in the tort claim.'" Chain, 2016 U.S. Dist. LEXIS 45575, 16-17 citing Lugo-Matos, 2016 U.S. Dist. LEXIS 23787, 2016 WL 742912, at *6 (citing Rosario v. Valdes, 2008 U.S. Dist. LEXIS 13113, 2008 WL 509204, at *2 (D.P.R. Feb. 21, 2008) ("[T]o the extent that a specific labor law covers the conduct for which a plaintiff seeks damages, he is barred from using that same conduct to also bring a claim under Article 1802. An additional claim under Article 1802 may only be brought by the employee-plaintiff if it is based on tortious or negligent conduct distinct from that covered by the specific labor law(s) invoked.")). See also Arroyo-Ruiz v. Triple-S Mgmt. Group, 2016 U.S. Dist. LEXIS 124391, 39-40 (D.P.R. Mar. 31, 2016)(plaintiff "fails to allege any negligent or intentional conduct on the part of [defendant] separate from that covered by specific employment laws. He alleges that he was harassed and discriminated against 3 The complaint refers to this claim as its fourth cause of action (p. 21), but since it is actually the second 'fourth cause of action', we will refer to it as the fifth cause of action. Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 13 of 15 14 on the basis of disability and that he was subject to an adverse employment action when he complained to the human resources department. All of this alleged conduct is covered by plaintiff's ADA and Law 80 claims."); Medina v. Adecco, 561 F. Supp. 2d 162, 175 (D.P.R. 2008); Falcon-Cuevas v. Puerto Rico Ports Auth., 2014 U.S. Dist. LEXIS 121476, 2014 WL 4260678, at *16 (D.P.R. Aug. 28, 2014) ("A review of the complaint does not reveal allegations of any tortious conduct distinct from that which is related to plaintiff's discrimination claims."). In the instant case, Plaintiff makes it clear that the same alleged discriminatory conduct she is relying on to support her specific labor law claims is the factual basis to support her Article 1802 claim. The fifth cause of action in her Complaint merely states that she "realleges each and every preceding allegation as if fully set forth herein and incorporate them by reference hereto." Since Plaintiff's complaint alleged no independent conduct by defendant that would permit her to bring a successful Article 1802 claim, her Article 1802 claims against defendant Hildebrand should be dismissed with prejudice. G. There is No Cause of Action Under Law 408 Also included in the fifth cause of action, is plaintiff's claim for a violation of Law 408, Puerto Rico's Mental Health law of 2000. Co-Defendants Robinson School and María Larrieu filed a "Motion to Dismiss as to Claims Under Law 44, Law 115, and Law 408." (Dkt. 30). In order to avoid repetition, Defendant Hildebrand fully adopts and incorporates herein the argument by co-defendants for dismissal of the Law 408 claim. IV. CONCLUSION Plaintiff Lopez has failed to state a plausible claim for relief for any of her federal or state causes of action against defendant Hildebrand, and accordingly, this action should be dismissed. Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 14 of 15 15 WHEREFORE co-defendant Hildebrand respectfully requests that this Honorable Court grant this Motion to Dismiss, and dismiss all claims against him with prejudice. Respectfully submitted. I HEREBY CERTIFY: That on this date, I electronically filed the foregoing document with the Clerk using the CM/ECF system, which will send notice to the attorneys of record. In San Juan, Puerto Rico, this 27th day of September, 2016. s/ Joan Schlump Joan Schlump USDC #207409 Email: jpeters@guillemardlaw.com NACHMAN & GUILLEMARD, P.S.C. P.O. Box 9949 San Juan, Puerto Rico 00908 Tel. 787-724-1212 Fax 787-725-1339 Case 3:16-cv-02372-CCC Document 34 Filed 09/27/16 Page 15 of 15