Melendez v. Caldero-Lopez

MOTION to Dismiss for Failure to State a Claim

D.P.R.September 13, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MICHAEL MELENDEZ Plaintiff, v. JOSE CALDERO LOPEZ, Superintendent of The Puerto Rico Police Department & THE PUERTO RICO POLICE DEPARTMENT, et als. Defendants. CIVIL NO. 16-1292 (FAB) MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) TO THE HONORABLE COURT: COME NOW, defendant, Superintendent of The Puerto Rico Police Department Jose Caldero Lopez in his personal capacity, without submitting to this Court’s jurisdiction and waiving any affirmative defense, through the undersigned attorney who appears for the sole purpose of this motion, and respectfully ALLEGE and PRAY as follows: I. INTRODUCTION Plaintiff filed the instant case against the Puerto Rico Police Department 1 and, Jose L. Caldero Lopez in his personal capacity, Superintendent of The Puerto Rico Police Department, under the Age Discrimination in Employment Act (hereinafter, ADEA) 29 U.S.C. §630, et seq. (See Second Amended Complaint, Docket No. 17.) Moreover, plaintiff invokes supplemental jurisdiction of this Court to adjudicate claims arising out of the Commonwealth of Puerto Rico Laws, 29 L.P.R.A. §§1323 and 1333, 29 1 Upon information and belief The PRPD has not been served with process and it appears from the docket that no summons has been issued to serve with process the PRPD. Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 1 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) L.P.R.A. §1340, and 29 L.P.R.A. §1341. (See Second Amended Complaint, Docket No. 17, p.3 ¶8, p.7 ¶24). In sum, plaintiff alleged that “defendants” discriminated against Mr. Melendez by violating the laws that prohibit age and sex discrimination in the workplace, as well as the Constitution and Laws of the United States of America and the Commonwealth of Puerto Rico. (See Second Amended Complaint, Docket No. 17, p.9 ¶30). Appearing defendant, hereby contend that the instant complaint fails to state a cognizable claim upon which relief can be granted against appearing defendant and for the reasons that will be explained herein, this Honorable Court ought to DISMISS WITH PREJUDICE the same. II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) allows a defendant to assert the defense of failure to state a claim upon which relief can be granted, before pleading, if a responsive pleading is allowed. Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Brown v. Hot, Sexy and Safer Products, Inc., 68 F.3d 252, 530 (1 st Cir. 1995). The Court accepts all well pleaded-factual allegations as true, and indulges all reasonable inferences in Plaintiff’s favor. Nisselson v. Lernout, 469 F.3d 143, 150 (1 st Cir. 2006). The Court need not credit, however, “bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like” when evaluating the Complaint’s allegations. See Aulson v. Blanchard, 83 F3d 1, 3 (1 st Cir. 1996). 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 Technology, 950 F2d 13, 22 (1 st Cir. 1991). Plaintiffs are responsible for putting their Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 2 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 3 best foot forward in an effort to present a legal theory that will support their claim. Id., at 23. Plaintiff must set forth “factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under actionable theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1 st Cir 1988). A complaint is properly dismissed for failure to state a claim “only if the facts lend themselves to no viable theories of recovery.” Luc v. Wyndham Management Corp., 496 F3d 85, 88 (1 st Cir. 2007). The Supreme Court recently clarified the law with respect to a plaintiff’s pleading requirement in order to survive a Rule 12(b)(6) motion. To survive a motion to dismiss for failure to state a claim, a complaint must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id., at 1964-65. The Supreme Court further explained that the “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true”. Id. at 1965. Subsequently, the Supreme Court reiterated that “[s]pecific facts are not necessary; the statements need only ‘give the defendants fair notice of what the ... claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Twombly, 127 S.Ct. at 1964). In so doing, the court accepts as true all well-pleaded Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 3 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 4 facts and draws all reasonable inferences in the plaintiff’s favor. Parker v. Hurley, 514 F.3d 87, 90 (1 st Cir. 2008). Under Twombly, the factual allegations which are assumed to be true must do more than create speculation or suspicion of a legally cognizable cause of action; they must demonstrate the plausibility of entitlement to relief. Twombly, 550 U.S. at 555, 557. Accord, Sanchéz v. Pereira- Castillo, 590 F.3d 31, 41 (1 st Cir. 2009); and MVM Inc. v. Rodríguez, 568 F. Supp. 2d 158, 167 (D.P.R. 2008). The Supreme Court further observed in Twombly that Federal Rule of Civil Procedure 8(a)(2) does require a “showing” that a plaintiff is entitled to relief and that this substantive threshold is not achieved by “blanket assertion[s].” 550 U.S. at 556, n. 3. However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -but it has not ‘show[n]’- ‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). To make this determination, the court employs a two-pronged approach. Ocasio- Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1 st Cir. 2011). The court first screens the complaint for statements that “merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action.” Id. (citations, internal quotation marks and Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 4 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 5 alterations omitted). A claim consisting of little more than “allegations that merely parrot the elements of the cause of action” may be dismissed. Id. The second part of the test requires the court to credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then to determine if the claim is plausible. Id. The plausibility requirement “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of illegal conduct. Twombly, 550 U.S. at 556. The “make-or-break standard” is that those allegations and inferences, taken as true, “must state a plausible, not a merely conceivable, case for relief.” Sepúlveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1 st Cir. 2010); see Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” (citations and footnote omitted)). Evaluating the plausibility of a claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950. In doing so, the court may not disregard properly pleaded factual allegations or “attempt to forecast a plaintiff's likelihood of success on the merits.” Ocasio-Hernández, 640 F.3d at 13. “The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Id. III. APPLICABLE LAW AND ANALYSIS The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 5 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 6 terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). Defendant submits that the Amended Complaint should be DISMISS WITH PREJUDICE for failure to state a claim upon which relief can be granted on the following grounds. A. PLAINTIFF FAILS TO STATE A COGNIZABLE CLAIM UNDER A.D.E.A.: In order to prevail in a lawsuit under the ADEA, the plaintiff's age must actually have played a role in the employer's decision-making process and have had a determinative or motivating influence on the outcome. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Hoffman v. Applicators Sales & Serv., Inc., 439 F.3d 9, 17 (1st Cir.2006). To establish a prima facie case of age discrimination, an ADEA claimant must adduce evidence that: (1) he was at least forty years of age; (2) his job performance met the employer's legitimate expectations; (3) the employer subjected him to an adverse employment action (e.g., an actual or constructive discharge); and (4) the employer did not treat age neutrally. Hoffman, 439 F.3d at 17 (citing González v. El Día, Inc., 304 F.3d 63, 68 (1st Cir.2002)).In the context of a motion to dismiss, a plaintiff alleging an ADEA claim is not required to establish a full prima facie case. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Twombly, 550 U.S. at 569-70. However, an ADEA plaintiff still must state facts sufficient to “state his claim and the grounds showing entitlement to relief” and to “nudge[ ] their claims across the line from conceivable to plausible.” Twombly, Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 6 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 7 550 U .S. at 570. Rodriguez-Lizardi v. Radio Shack Corp., No. CIV.A 09-1724, 2010 WL 2838613, at *3 (D.P.R. July 19, 2010) The Act also provides several exceptions to this broad prohibition. For example, an employer may rely on age where it “is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” § 623(f)(1). The Act also permits an employer to engage in conduct otherwise prohibited by § 623(a)(1) if the employer's action “is based on reasonable factors other than age,” § 623(f)(1), or if the employer “discharge[s] or otherwise discipline[s] an individual for good cause,” § 623(f)(3). Kimel v. Florida Bd. of Regents, 528 U.S. 62, 67, 120 S. Ct. 631, 637, 145 L. Ed. 2d 522 (2000) Specifically, the ADEA at 29 U.S. Code § 623(f)(1) states the following: (f)Lawful practices; age an occupational qualification; other reasonable factors; laws of foreign workplace; seniority system; employee benefit plans; discharge or discipline for good cause. It shall not be unlawful for an employer, employment agency, or labor organization- (1)to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located; (Emphasis ours) In the instant case, Plaintiff alleges that around September 2013, he learns that the PRPD was purchasing three new Bell /429/Multi Engine Helicopters and that 6 pilots were assigned for Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 7 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 8 training, excluding the plaintiff. (See Second Amended Complaint, Docket No. 17, p.3-4 ¶12) Also, plaintiff claims that when he was inquiring why he was not assigned as a pilot for the new helicopters, a co-worker not describe as a direct supervisor, named Kuilan-Melendez, told him that he had to retire because plaintiff was fifty-seven (57) years old. (See Second Amended Complaint, Docket No. 17, p.4 ¶15) Furthermore, in the second amended complaint, Plaintiff narrates of an incident that occurred in October 9, 2005, were Plaintiff decided that it was a good idea to flyover a Funeral Home in the town of Salinas. (See Second Amended Complaint, Docket No. 17, p.5 ¶17) Obviously, as a consequence of Plaintiff’s reckless behavior, administrative charges were filed and on January 23, 2014, he was summarily suspended. (See Second Amended Complaint, Docket No. 17, p.5-6 ¶18) 2 Even taking as true these allegations, no age discrimination can be inferred. In the case at bar, Plaintiff has failed to plead that the alleged adverse employment action was attributable to age discrimination. A reasonable jury could infer that the PRPD’s decision in the assignment of the pilots for the new helicopters was based on rational factors other than age, such as the administrative complaint against plaintiff. After, the administrative complaint had ended the PRPD had legitimate reasons, other than age, for not sending Plaintiff for further training on the new helicopters. Even if Plaintiff took participated in training in the year 2012 as alleged on footnote#1, it does not correlates that the PRPD abandon the concerns that it had in regards to the administrative complaint. Clearly, Plaintiff’s job performance did not meet the 2 Plaintiff alleges that he was on active duty from May 2006 through January 2012 and his administrative complaint had to be stayed during that period. Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 8 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 9 PRPD's legitimate expectations because of Plaintiff’s administrative complaint for his careless actions flying over a funeral home. Plaintiff’s own allegations demonstrate that age did not play a role in the PRPD's decision-making process and could not have been the determinative or motivating factor. A violation of ADEA occurs when the plaintiff's age is a determinative or motivating factor in the employer's decision-making process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Labiosa-Herrera v. Puerto Rico Tel. Co., No. CV 11-1651 (FAB), 2016 WL 56373, at *7 (D.P.R. Jan. 5, 2016) Therefore, Plaintiff’s allegations, if taken as true, under the ADEA cannot prevail because § 623(f)(1) allows the PRPD to engage in conduct otherwise prohibited by § 623(a)(1) if the employer's action are based on reasonable factors other than age. Thus, taking into consideration that at the time of the alleged adverse employment action an administrative charge against Plaintiff had occurred, there are no grounds showing entitlement to relief that nudges plaintiff’s claims across the line from conceivable to plausible. Accordingly, Plaintiff’s complaint must be DISMISS WITH PREJUDICE against all defendants for failing to state a cognizable claim under A.D.E.A. B. PLAINTIFF FAILS TO STATE A RETAILATION CLAIM UNDER A.D.E.A.: The ADEA also prohibits retaliation: an employer may not discriminate against an employee who has “opposed any practice made unlawful by this section” or who has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C.A. § 623(d). In order to establish a prima facie case of retaliation, an ADEA plaintiff must show that: (1) he engaged in ADEA-protected conduct, (2) he was Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 9 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 10 thereafter subjected to an adverse employment action, and (3) a causal connection existed between the protected conduct and the adverse action. Ramírez-Rodríguez v. Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 84 (1st Cir.2005) (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir.1991)). As before, if the plaintiff establishes a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for its action. Id. Once the employer shoulders that burden, the plaintiff must show that the employer's proffered reason is “a pretext masking retaliation for the employee's opposition to a practice cast into doubt by the ADEA”. Id. In order for the plaintiff to ultimately succeed, it is unnecessary for an actual ADEA violation to have occurred; it is enough for plaintiff to have a good-faith belief that such a violation indeed took place. Id. Alabarces v. Sabre Holdings Corp., No. CIV. 04-2041(SEC), 2006 WL 2818976, at *5 (D.P.R. Sept. 29, 2006) In the instant amended complaint, Plaintiff alleges that he suffered retaliation upon the filing of the claim (charge) before the EEOC. (See Second Amended Complaint, Docket No. 17, p.7, ¶25). Indeed, the second amended complaint states that Plaintiff filed two claims (charges) before the EEOC on retaliation grounds. However, Plaintiff has failed to plead an adequate claim of retaliation on both claims before the EEOC. Interesting enough, Plaintiff does not specify the exact date when these retaliations charges were filed at the EEOC, it is possible that Plaintiff did not comply with the time requirements under ADEA. 3 Nevertheless, it can be deduced that the first retaliation claim was 3 In order to bring an ADEA claim in federal court, a plaintiff must first timely file a charge alleging unlawful discrimination with the EEOC and then wait sixty days before filing a claim in federal court, 29 U.S.C. § 626(d). If a Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 10 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 11 filed between December 3, 2013, and March 11 th , 2015. Allegedly the first EEOC based on age discrimination claim was filed on December 3, 2013. Plaintiff states that before the Appeal’s Board of the Commonwealth of Puerto Rico (CIPA) hearing had taken place, which was held on March 11 th , 2015, and after an informal hearing, he had filed another claim before the EEOC based upon retaliation for having dismissed him after, having filed before the EEOC his original claim for age discrimination. (See Second Amended Complaint, Docket No. 17, p.6, ¶19 and footnote #4) 1. Plaintiff’s First Claim of Retaliation Plaintiff failed to specify the nature of the dismissal at p.6, footnote #4, the only dismissal mentioned in the second amended complaint is the administrative charge. In the four corners of the second amended complaint there is no discussion that Plaintiff was dismissed because of filing an age discrimination charge at the EEOC. On footnote#4 Plaintiff alleges that on January 23, 2014, is when the PRPD’s action of retaliation took place without describing the nature of the action and more than a year after plaintiff had filed the original claim before the EEOC based on age discrimination. (See Second Amended Complaint, Docket No. 17, p.5 and 6, footnote #2 and footnote #4) Therefore, this Honorable Court cannot infer that the alleged dismissal (retaliation) was due to the filing of an age discrimination charge at the EEOC. Additionally, the PRPD and Plaintiff reach a settlement agreement in regards to the charge filed with the EEOC under section 626(d) is subsequently “dismissed or the proceedings of the Commission are otherwise terminated by the Commission,” the EEOC is required to notify the complainant. Id. § 626(e) (emphasis added). A civil suit may then be brought against the respondent named in the charge within ninety days of the receipt of such notice. Bush v. Quebecor Printing (USA) Corp., 130 F. Supp. 2d 301, 303 (D. Mass. 2001) Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 11 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 12 administrative charge on March 11 th , 2015, consisting in that Lt. Meléndez would be punished to a total of 150 days without assignment and salary. (See Second Amended Complaint, Docket No. 17, p.6, ¶19). Thus, even assuming for the sake of argument that the administrative charge was related to age discrimination, Plaintiff’s first claim of retaliation became precluded when the settlement agreement was reached between Plaintiff and the PRPD. Consequently, Plaintiff first claim of retaliation must be dismissed. 2. Plaintiff’s Second Claim of Retaliation The second retaliation claim before the EEOC was filed because upon reinstatement Plaintiff was not assigned to the Air Unit but transferred to the Barrio Obrero Police Precinct, in September 2015, and soon thereafter was transferred to the Loiza Street Precinct, in December 2015. (See Second Amended Complaint, Docket No. 17, p.6, ¶20) Plaintiff contends that he was retaliated because he expected to be reassigned to the Air Unit. However, Plaintiff acknowledges that the settlement agreement of the administrative charge did not mention where he was going to be reassigned. (See Second Amended Complaint, Docket No. 17, p.6, ¶20) The First Circuit Court has expressed the following in regards to transfers, “lateral transfers, that is, a transfer that does not involve a demotion in some form or substance, generally cannot rise to the level of a materially adverse employment action.” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir.2002). Rodriguez v. ASIFAL, No. CIV. 12-1324 SEC, 2013 WL 1196618, at *4 (D.P.R. Mar. 25, 2013) (Emphasis Ours) Moreover, “No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers,” Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 12 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 13 Cir.2002), the Court may not act as “a super-personnel department that reexamines an entity's business decisions.” Espinal, 693 F.3d at 35 (citation omitted). Irizarry-Santiago v. Essilor Indus., 982 F. Supp. 2d 131, 137 (D.P.R. 2013) Plaintiff’s transfer to the Barrio Precinct and the Loiza Street Precinct must not be construe as a materially adverse employment action. Since, the settlement agreement of the administrative charge did not mention where Plaintiff was going to be reassigned there is no indication that age discrimination was the factor behind the reassignment. On the contrary, the PRPD had good reasons because of the administrative complaint to reassign Plaintiff from the PRPD Air Unit. Plaintiff retaliation claims lacks the necessary factual content to cross the conclusory threshold. There is nothing more other than speculative and conclusory allegations. As a result, Plaintiff’s retaliations claim must be dismissed. C. DEFENDANTS ARE ENTITLED TO ELEVENTH AMENDMENT IMMUNITY The Eleventh Amendment to the Constitution of the United States provides that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State. U.S. Const. amd. XI. Although the Eleventh Amendment literally seems to apply only to suits against a State by citizens of another State, the Supreme Court has consistently extended the scope of the amendment to suits by citizens against their own State. Board of Tr. of the Univ. of Alabama v. Garrett, 121 S. Ct. 955, 962 (2001). In Kimel, the Court applied these principles to the ADEA, holding that Congress did not have the power under Section 5 of the Fourteenth Amendment to Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 13 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 14 extend the ADEA to state employers and, therefore, did not have the power to abrogate the states' Eleventh Amendment immunity. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 82-90 (2000). In that sense, the Supreme Court has established that the Eleventh Amendment stands “not so much for what it says, but for the presupposition which it confirms.” Kimel, 528 U.S. at 72-73. This presupposition is composed of two separate premises: first, that each State is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). It is clear, though, that the Constitution does not provide for federal jurisdiction over suits against non-consenting states. Kimel, 528 U.S. at 73. A long line of cases has established that the Commonwealth of Puerto Rico enjoys the full protection of the Eleventh Amendment. Jusino-Mercado v. Commonwealth of Puerto Rico, 214 F.3d 34, 37 (1st Cir. 2000); Ortíz-Feliciano v. Toledo-Dávila, 175 F.3d 37, 39 (1st Cir. 1999). The Eleventh Amendment bar to suits in federal courts by private parties against non- consenting states extends to governmental instrumentalities, which are an arm or "alter ego" of the State. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 100 (1984); Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280-281 (1977); Ainsworth Aristocrat Int'sl Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d. 1034, 1036 (1 st Cir. 1987); Ochoa Realty Corp. v. Faria, 618 F. Supp. 434, 435 (D.P.R. 1985); Ursulich v. Puerto Rico National Guard, 384 F. Supp. 736, 737-738 (D.P.R. 1974). Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 14 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 15 This is so because a state only has existence through its instrumentalities that carry out its functions and establish its public policy. State agencies and departments are usually alter egos or branches of the state and, thus, suits against these instrumentalities are in fact suits against the state itself. Mt. Healthy, 429 U.S. at 280; Paul N. Howard v. Puerto Rico Aqueduct and Sewer Authority, 744 F.2d 880, 886 (1st Cir. 1984); Pérez v. Rodríguez Bou, 575 F.2d 21, 25 (1st Cir. 1978). The Eleventh Amendment bars recovery of damages against the Commonwealth of Puerto Rico, the Puerto Rico Police Department and the public officers in their official capacity due to the fact that the Police Department is an instrumentality of the state or, in other words, an arm of the state and a suit against it is a suit against the Commonwealth itself. See Lopez Rosario v. Police Department, 126 F. Supp. 2d 167, 170-171 (D.P.R. 2000) Congress has the power to abrogate the Eleventh Amendment immunity if the following two conditions are met: “[f]irst, there must be a ‘clear legislative statement’ of Congress’s intent to do so [and, s]econd, its attempt to abrogate must have been done under proper constitutional authority, which only has been held to exist under § 5 of the Fourteenth Amendment.” Torres v. Puerto Rico Tourism Company, 175 F. 3d 1, 3 (1 st Cir. 1999), citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 1123-28, 134 L. Ed. 2d 252 (1996). Nevertheless, although ADEA contains an explicit abrogation provision, Congress had no power to enact it. The Supreme Court stated: [W]e hold that ADEA is not a valid exercise of Congress’ power under § 5 of the Fourteenth Amendment. The ADEA’s purported abrogation of the States’ sovereign immunity is accordingly invalid. Kimel v. Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 15 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 16 Florida Board of Regents, 528 U.S. 62, 91, 120 S. Ct. 631, 650 (2000); see also Fromm v. Commission of Veterans Affairs, 220 F. 3d 887, 889 (8 th Cir. 2000). The Commonwealth and the Police Department have not agreed to be sued in federal court. Concerning this matter the First Circuit has stated: ‘The court has held that, absent waiver by the state or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court.’ Kentucky v. Graham, 473 U.S. 159, 169, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). The test for finding that a state has waived its Eleventh Amendment immunity is a stringent one. See Atacadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985). A state’s consent to suit in the federal courts must be ‘unequivocally expressed.’ Pennhurst, 465 U.S. at 99, 104 S. CT. 900. It must be ‘stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ Edelman v. Jordan, 415 U.S. 651, 673, 94 S. Ct.1347, 39 L. Ed. 2d 662 (1974) […]. Furthermore, ‘in order for a state statute or constitutional provision to constitute a waiver of the Eleventh Amendment immunity, it must specify the state’s intention to subject itself to suit in federal court.’ Atascadero, 473 U.S. at 241, 105 S. CT. 3142. Acevedo Lopez v. Police Department of the Commonwealth of Puerto Rico, 247 F. 3d at 28. “Because ADEA does not validly abrogate the States’ sovereign immunity, however, the present suits must be dismissed.” Kimel v. Board of Regents, 528 U.S. at 92, 120 S. Ct. at 650. Puerto Rico has not waived its Eleventh Amendment immunity, thus, the ADEA claim for age discrimination in employment and § 1983 claim cannot survive. See Id, see also Vizcarrondo v. Board of Trustees of the University of Puerto Rico, 139 F. Supp. 2d 198, 201 (D.P.R. 2001); Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 16 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 17 Kvorjak v. Maine, 259 F. 3d 48, 50 (1 st Cir. 2001); Garcia Figueroa v. Commonwealth of Puerto Rico, 204 F. Supp. 2d 281, 284 (D.P.R. 2002). Even though, the PRPD has not been served with process in the instant complaint, Defendant submits to this court that the Age Discrimination lawsuit against the PRPD cannot survive because of the Eleventh Amendment Immunity. Therefore, even if this court allows Plaintiff to serve process the PRPD, it would be futile since the PRPD has not waived its Eleventh Amendment immunity against claim for age discrimination in employment. Thus, the appearing defendant contends that all claims under the ADEA should be DISMISS WITH PREJUDICE against all defendants. D. PERSONAL CAPACITY CLAIMS AGAINST DEFENDANT CALDERO LOPEZ The First Circuit has established that the statutory scheme of Title VII itself indicates that Congress did not intend to impose individual liability on employees. See Fantini v. Salem State College, 557 F.3d 22, 28 (1st Cir.2009). It is also well-settled that there is no individual liability under Title I of the ADA. See Román-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st Cir.2011). Ramos v. Vizcarrondo, 120 F. Supp. 3d 93, 102 (D.P.R. 2015). Additionally, there is no individual liability under the ADEA, as only the employer is liable for the acts of its agents. See Correa-Ruiz v. Calderon-Serra, 411 F.Supp.2d 41, 47 (D.P.R.2005); see also Vizcarrondo v. Bd. of Trustees, 139 F.Supp.2d 198, 205 (D.P.R.2001) (Emphasis ours) Accordingly, Plaintiff’s ADEA claim, against appearing defendant, in his individual or personal capacity, must be dismissed. Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 17 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 18 E. PLAINTIFF FAILED TO STATE A CLAIM OF SEX DISCRIMINATION AGAINST APPEARING DEFENDANT UNDER LAW 100 ARISING OUT OF THE COMMONWEALTH OF PUERTO RICO LAWS, 29 L.P.R.A. §§1323 AND 1333, 29 L.P.R.A. §1340, AND 29 L.P.R.A. §1341: Law No. 100 prohibits employment discrimination because of age, race, color, gender, social or national origin, social position, political affiliation, political or religious ideology and marital status. P.R.Laws Ann. Tit. 29, § 146. According to the Supreme Court of Puerto Rico, sexual harassment is a form of discrimination on the basis of sex proscribed by Law 100. Delgado Zayas v. Hospital Interamericano, 137 P.R. Dec. 643, 651 (1994). Law 100 prevents private enterprises or government agencies acting as a private business from discriminating by reason of age, race, color, religion, gender or national origin or social condition. Mulero Abreu v. Oquendo-Rivera, 729 F. Supp. 2d 498, 524 (D.P.R. 2010). Puerto Rico's Law 100 makes it unlawful for an employer to discriminate against an employee because of the employee's political affiliation. Tit. 29, § 146. To state a claim under Puerto Rico's Law 100, an employee must allege: (1) that he was actually or constructively discharged, and (2) that the decision was discriminatory. Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir. 2007). MAYRA ORTIZ-RODRIGUEZ, et. al.. Plaintiffs, v. CONSORCIO DEL NOROESTE, et al., Defendants., No. 14-1529 (GAG), 2016 WL 1255694, at *12 (D.P.R. Mar. 29, 2016) Law 100, the term “employer” is defined as: “any natural or artificial person employing laborers, workers or employees, and the chief, official, manager, officer, managing partner, administrator, superintendent, foreman, overseer, agent or representative of such natural or Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 18 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 19 artificial person. It shall include all such agencies or instrumentalities of the Government of Puerto Rico as may be operating as private businesses or enterprises.” Hernandez-Payero v. Puerto Rico, 493 F. Supp. 2d 215, 233 (D.P.R. 2007) (emphasis ours) It necessarily follows that the Commonwealth of Puerto Rico falls short of meeting Law 100's definition of “employer.” The foregoing legal principles clearly point out that the Consortium, as a nonprofit government instrumentality, also falls outside the purview of Law 100. See Marquez-Ramos v. Puerto Rico, No. Civ. 11-1547 (SEC), 2012 WL 1414302, at *10 (D.P.R. 2012). Ortiz-Rodriguez v. Consorcio Del Noroeste, No. 14-1529 (GAG), 2016 WL 1255694, at *12 (D.P.R. Mar. 29, 2016) Personal liability under Law 100 applies “to any supervisor responsible for an act of discrimination.” Rodríguez-Narváez, 552 F. Supp at 218. However, this Court is split as to whether the individual liability applies to any employee, irrespective of its employer or any individual employed by an entity covered by Law 100. Compare Rodríguez-Narváez, 552 F. Supp at 218; Pacheco-Muniz v. Gonzalez-Cruz, No. CIV. 12-2058 (JAG), 2014 WL 1320276, at *12 (D.P.R. 2014) with Marquez-Ramos, No. Civ. 11-1547 (SEC), 2012 WL 1414302, at *10.The undersigned reasons with Marquez-Ramos in reading Rorario I and Rosario II as extending Law 100's individual liability to any individual responsible -not just supervisors- for the discriminatory conduct, as long as that person is employed by a covered entity. Marquez-Ramos, No. Civ. 11-1547 (SEC), 2012 WL 1414302, at *10. In other words, Law 100's individual liability applies to individuals employees of a covered entity within the scope of Law 100. MAYRA ORTIZ-RODRIGUEZ, et. al.. Plaintiffs, v. CONSORCIO DEL Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 19 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 20 NOROESTE, et al., Defendants., No. 14-1529 (GAG), 2016 WL 1255694, at *13 (D.P.R. Mar. 29, 2016) (emphasis ours) Moreover, in Vizcarrondo v. Bd. of Trustees of Univ. of Puerto Rico, it was established that “Puerto Rico's sovereign immunity under the Eleventh Amendment serves to bar plaintiff's claims under [Law 1 (18 P.R. LAWS ANN. § 601), Law 100, (29 P.R. LAWS ANN. § 146),] Law 17 (29 P.R. LAWS ANN. § 155) and Article 1802 of the Puerto Rico Civil Code (31 P.R. LAWS ANN. § 5141)” for damages in federal court. Nogueras v. University of Puerto Rico, 890 F.Supp. 60, 64 (D.P.R.1995); Amelunxen, 637 F.Supp. at 426. “The Eleventh Amendment has been construed to guard a state and ‘arms of the state’ against claims brought in federal court by citizens of that or any other state.” Id. As previously stated, the University of Puerto Rico is an instrumentality of the Commonwealth of Puerto Rico and as such is protected from suit in federal courts by the Eleventh Amendment. See Pinto, 895 F.2d at 18 (“University is an arm of the state within the purview of the Eleventh Amendment.... University cannot be held liable for damages is clear.”); Perez, 575 F.2d at 25; Llewellyn-Waters, 56 F.Supp.2d at 159.Vizcarrondo v. Bd. of Trustees of Univ. of Puerto Rico, 139 F. Supp. 2d 198, 208 (D.P.R. 2001) In the instant case, Mr. Melendez’s second amended complaint does not contain a single factual allegation of discrimination based on sex. On its face Plaintiff’s claims under Law 100 must be dismissed for lack of relevance. However, even if plaintiff made an error in drafting the amended complaint and intended to allege an age discrimination claim under Law 100, Superintendent Caldero-Lopez and the PRPD, both as a nonprofit government instrumentality, fall outside the purview of Law 100.There is no doubt that the PRPD and its officers do not Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 20 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 21 function as a private business nor operate for profit. Thus, plaintiff’s claim of sex and/or age discrimination under Law 100 against defendants must be DISMISSED WITH PREJUDICE. F. DEFENDANT IS ENTITLED TO QUALIFIED IMMUNITY AS TO THE AFOREMENTIONED CAUSES OF ACTION: Qualified immunity is an affirmative defense against liability, which may be raised by state officials sued in their personal capacity. See Gómez v. Toledo, 446 U.S. 635, 640 (1980); Scheuer v. Rhodes, 416 U.S. 232 (1974). The general rule of qualified immunity is that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Rodriguez v. Solivan, 266 F. Supp. 2d at 281, 2003 WL 21338948 at 7 (D. Puerto Rico); Harlow v. Fitzgerald, 427 U.S. 808, 818 (1982). This rule concentrates on the objective reasonableness of the official's conduct and eliminates from consideration all claims of the official's subjective state of mind. Id. at 819. As the qualified immunity defense has evolved it has been stated by the Supreme Court that "it provides ample protection to all but the plainly incompetent." Malley v. Briggs, 475 U.S. 335, 341 (1986). A defendant can establish a qualified immunity defense in one of three ways: first, the defense should be sustained if the Court finds that no constitutional right has been violated, even if the allegations of plaintiff are established; second, even if the interest asserted by the plaintiff is clearly of a type generally protected by federal law, the defendant is entitled to immunity if the right was not clearly established; third, even if third, the contours of the plaintiff's federal rights Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 21 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 22 and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant may enjoy qualified immunity, if it was objectively reasonable for him to believe that his acts did not violate those rights. Saucier v. Katz, 121 S. Ct. 2151, 2156-2158 (2001). “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery”. Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st Cir. 1996) (emphasis added). Qualified immunity also protects government officials from the distractions brought about by trials, the inhibition of discretionary action and the deterrence of able people from public service. Guzmán-Rivera v. Rivera-Cruz, 98 F. 3d 664, 666 (1st Cir. 1996) (citing Harlow, 457 U.S. at 816, 102 S. Ct. at 2737). In the instant case, no constitutional right has been violated. Moreover, the appearing defendant is entitled to immunity if the allege right was not clearly established; and the contours of plaintiff's federal rights and the official's permissible actions were not clearly delineated at the time of the acts complained of, thus, Caldero-Lopez is entitled to qualified immunity inasmuch as it was objectively reasonable for him to believe that the acts, if any, did not violate those rights. G. PENDANT JURISDICTION: Defendant Caldero-Lopez moves the court to defer any surviving supplemental jurisdiction to the state courts that are better suited to apply local state law to the facts of this case. Pendent jurisdiction exists whenever there is a claim arising under the Constitution, Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 22 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 23 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; state claims must be linked to federal claim by a common nucleus of operative facts, and must be sufficiently substantial to confer federal court jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) In deciding whether or not to retain jurisdiction on state-law claims after a dismissal of all claims over which the trial court has original jurisdiction, the trial court must take into consideration concerns of comity, judicial economy, convenience and fairness. See Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995); Vera-Lozano v. Int’l Broad., 50 F.3d 67, 70 (1st Cir. 1995). District courts may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); see also, Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995);Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.1991) (holding that “[t]he power of a federal court to hear and to determine state-law claims in non-diversity cases depends upon the presence of at least one “substantial” federal claim in the lawsuit.”). Medina-Medina v. Puerto Rico, 769 F. Supp. 2d 77, 82 (D.P.R. 2011) Therefore, if at this juncture there are any surviving Pendent state-law claim, this Honorable Court should dismissed with prejudice any Pendent state-law claims against the appearing defendants pursuant to 28 U.S.C. sec. 1367(c)(3). Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 23 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 24 IV. CONCLUSION & PRAYER The Second Amended Complaint has some factual allegations that are “interesting enough”, but they hardly amount to any indication or sign that Plaintiff was discriminated because of his age. The pleadings in the complaint do not point out clearly the adverse action that plaintiff allegedly suffered. Even though plaintiff has amended the complaint on two occasions, it is still full of holes and confusing timetables with many footnotes that instead of clarifying the alleged facts create more confusion. Plaintiff’s allegations are designed to make as much noise and create as much fog as possible in order to blind the Court into believing that Plaintiff has crossed the plausibility threshold. However, the PRPD’s decision in the assignment of the pilots for the new helicopters was based on rational factors other than age and the retaliation claims lack the necessary factual content to cross the conclusory threshold. Moreover, the ADEA claim for age discrimination in employment cannot survive because of Eleventh Amendment immunity. Also, there is no individual liability under the ADEA. Likewise, the PRPD, as a nonprofit government instrumentality, also falls outside the purview of Law 100 and individual liability applies to individual employees of a covered entity within the scope of Law 100. Accordingly, the appearing defendant respectfully request that the amended complaint must be dismissed because plaintiff has failed to state a claim upon which relief may be granted. Furthermore, it is respectfully requested that once the jurisdictional basis for maintaining Plaintiff’s Puerto Rico claims is undermined by the dismissal of the federal claims, that those Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 24 of 25 MOTION TO DISMISS Michael Meléndez v. José Caldero López, et als Civil No. 16-1292 (FAB) 25 supplemental Commonwealth claims be dismissed without prejudice pursuant to 28 U.S.C. 1367(c)(3). WHEREFORE, appearing defendant respectfully request that this Honorable Court grant the present motion, and DISMISS all claims against appearing defendant. IT IS HEREBY CERTIFY that on this same date I electronically filed the foregoing using the CM/ECF system which will send notification of such filing to all parties of record. RESPECTFULLY SUBMITTED In San Juan, Puerto Rico on this 13 th day of September, 2016. CÉSAR MIRANDA RODRÍGUEZ Secretary of Justice MARTA ELISA GONZÁLEZ Y. Deputy Secretary of Justice in Charge of Litigation WANDYMAR BURGOS VARGAS Director Federal Litigation Division Department of Justice S/JOEL TORRES ORTIZ Joel Torres Ortiz U.S.D.C. NO. 302311 Federal Litigation Division Department of Justice P.O. Box 9020192 San Juan, P.R., 00902-0192 Tel. (787) 721-2900 ext. 2647,2650,2624,2606 Fax (787) 723-9188 joeltorres@justicia.pr.gov Case 3:16-cv-01292-FAB Document 18 Filed 09/13/16 Page 25 of 25