Pizarro-Correa v. Puerto Rico Internal Revenue Department et alMOTION to Dismiss for Failure to State a ClaimD.P.R.December 28, 2016IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO LUZ PIZARRO CORREA Plaintiff v. PUERTO RICO INTERNAL REVENUE DEPARTMENT a/k/a Departamento de Hacienda, COMMONWEALTH OF PUERTO RICO, ALBERTO CARDONA CRESPO Defendants CIVIL NO.: 16-2598 (FAB) Civil Action: A.D.A TITLE VII (GENDER) RETALIATION MOTION TO DISMISS PURSUANT TO FEDERAL CIVIL PROCEDURE RULE 12(b) TO THE HONORABLE COURT: COMES NOW, Defendants, the Puerto Rico Internal Revenue Department, the Commonwealth of Puerto Rico, and Alberto Cardona Crespo1, without submitting to this Honorable Court’s jurisdiction or waiving any affirmative defense, including those that may not be specifically mentioned below, through the undersigned Attorney, and respectfully STATE and PRAY as follows: INTRODUCTION Plaintiff filed the instant Complaint on September 7, 2016, asserting -in a loose and disorganized manner- ambiguous claims under the American with Disabilities Act (henceforth, “A.D.A.”), 42 U.S.C. §12101, Title VII, 42 U.S.C. §2000e, and an assortment of claims under local statutes that are not clearly stated as to how they apply to the factual claims in the case at bar. (Dkt. No. 1). As per the Complaint, Plaintiff was an employee of the Puerto Rico Internal Revenue Department (henceforth, “Hacienda”) and by extension a Commonwealth’s employee. In essence, Plaintiff’s allegations pivot on two unrelated incidents: 1 The Complaint is completely devoid of any factual allegations as to the capacity in which Co-Defendant, Alberto Cardona Crespo is brought. Thus, this Honorable Court should understand he is brought in his personal capacity. Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 1 of 19 Motion to Dismiss Case No. 16-2598 2 (1) on an internal sexual harassment claim filed against her, which resulted in her transfer from the Arecibo office to the Bayamón office while the investigation of the internal claim was pending (Dkt No. 11, ¶19); and (2) her job termination, after her voluntarily request for and subsequent grant by a third-party provider of long-term disability benefits. (Dkt No. 11, ¶23). As to the internal sexual harassment claim filed against her, pursuant from the Complaint, although Plaintiff alleges she brought a claim based on an isolated stray remark by Alberto Cardona Crespo to her supervisor’s attention2 -without providing the date-, the aforementioned Co-Plaintiff was the one who properly put on notice Hacienda and filed a formal internal complaint first -‘pre-emotively’- and as a result thereof she was transferred to a different district office pending the investigation. (Dkt No. 1, ¶17, 19). Indeed, Plaintiff candidly admits that the stray remark incident occurred sometime in September 2013, but was notified in writing of Hacienda’s intention to terminate her from her job on December 22, 2015 and formally terminated on March 7, 2016. (Dkt No. 1, ¶¶1, 16, 17, 19). Moreover, she also admits that Co-Plaintiff, Alberto Cardona Crespo was a coworker at all times relevant to the Complaint; not a supervisor. (Dkt No. 1, ¶12). Hence, the first incident is unrelated to the other. As to the second incident -her termination-, Plaintiff admits that since September 4, 2013, she had to periodically miss days from work for evaluations, rehabilitation and hospitalization for her mental illness, for which she had to bring constant certified excuses from her psychologist; thus, from that day forth, she had already been diagnosed with mental illness and disability. (Dkt No. 1, ¶16, 22, 26). Therefore, when Co-Defendant, Hacienda was notified by the third-party disability benefit provider, MetLife, that it had accepted Plaintiff’s voluntary application for long-term disability benefits, it -the employer- notified her in writing its intent to terminate her employment, given that she was unable to perform the essential functions of her position. In fact, the Complaint blatantly states that “[b]ecause of her mental disability, the plaintiff qualified for benefits.” (Dkt No. 1, ¶27, last sentence). 2 From the factual allegations in the Complaint, it is not even clear who her supervisor was. (Dkt No. 1, ¶¶16, 17, 26). Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 2 of 19 Motion to Dismiss Case No. 16-2598 3 Notwithstanding these admissions, Plaintiff has alleged that Defendants discriminated and retaliated against her based on her gender and her diagnosed “severe major depression and bipolar disorder” disability because of: the co-worker’s filing of an internal sexual harassment charge against her and Hacienda’s consequent investigation (Dkt No. 1, ¶9, 19); Hacienda’s determination to relocate her to a different district office after the internal charge was filed (Dkt No. 1, ¶9, 19); allegedly denying her a supposed reasonable accommodation request, consisting mainly in relocating her back to the office where her sexual harassment complainant was at (Dkt No. 1, ¶20); and her eventual termination based on her grant for long-term disability benefit due to her diagnosed conditions of severe major depression and bipolar disorder (Dkt No. 1, ¶22, 23). Plaintiff’s allegations arise in the employment context and have been brought into play under Title I of the A.D.A, pursuant to the Complaint. (Dkt No. 1, ¶5, 37 to 51) Appearing Defendants now requests the dismissal with prejudice of Plaintiff’s A.D.A. monetary relief claims of discrimination stated under Title I on account of sovereign immunity/Eleventh Amendment. For purposes of the A.D.A., Puerto Rico is considered a State. 42 U.S.C. § 12102(3). Thus, as to the A.D.A. claims, Plaintiff’s sole remedy, if any, would be injunctive relief for reinstatement and reasonable accommodation, but as we shall see, Plaintiff is not a qualified individual and therefore is not entitled to this remedy, either. Defendant also requests the dismissal of any retaliation claim, insofar as the Complaint falls wanting to demonstrate its plausibility, as no allegation was made sufficiently implicating the applicability of this cause of action under Title VII or A.D.A. to the facts alleged in the Complaint. Also, aside from mere conclusory allegations in the Complaint, it is completely devoid of any actual set of facts that demonstrate a plausible gender discrimination or hostile work environment suit under Title VII, as alleged in therein. (Dkt No. 1, ¶45 to 47). Finally, defendant requests the dismissal of all claims stated under local statutes on account of sovereign immunity/Eleventh Amendment. Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 3 of 19 Motion to Dismiss Case No. 16-2598 4 Also, this Honorable Court should bear in mind that, although the claims contained in the Complaint involve a disability benefit, only Title I of A.D.A. -reasonable accommodation in the employment- and Title VII -gender discrimination and retaliation- where alleged. STANDARD OF REVIEW Pursuant to Federal Rule of Civil Procedure 12 (b)(6) a defendant may, in response to an instant pleading, submit a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Arroyo Otero v. Hernández Purcell, 804 F. Supp. 418, 421 (D.P.R. 1992). The Court must accept as true any well-pleaded allegations in the complaint and draw all reasonable inferences therefrom in plaintiff’s favor. Correa Martínez v. Arrillaga Beléndez, 903 F. 2d 49, 51(1st Cir. 1990). While the court must comply with the standard of making all inferences in favor of plaintiffs, it is not obligated to “swallow the plaintiff’s invective hook, line and sinker, bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited.” Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996); Doyle v. Hasbro, Inc., 103 F. 3d 186 (1st Cir. 1996); Mass. School of Law at Andover v. American Bar, 142 F. 3d 26 (1st Cir. 1998). Plaintiffs must set forth in the complaint “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 (1st Cir. 1998). The primary purpose of a motion pursuant to Federal Rule of Civil Procedure 12 (b)(6) is to challenge the legal theory, not the sufficiency of any evidence that might be adduced. Advanced Cardiovascular v. Scimed Life, 988 F.2d 1157 (1993). “The Court’s function on a Rule 12 (b)(6) motion is not to weigh the evidence which might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Flamand v American Intem. Group, Inc., 876 F. Supp. 356, 360 (D.P.R. 1994) (citing Festa v. Local 3 Int’l Bhd. of Elec. Workers, 905 F.2d 25, 37 (2d Cir. 1990) (Emphasis added). Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 4 of 19 Motion to Dismiss Case No. 16-2598 5 To survive a motion to dismiss, a complaint must set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory. Berner v. Delahanty, 129 F. 3d 20 (1st Cir. 1997). For decades, the applicable standard was Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which established that a complaint should not be dismissed for failure to state a claim unless it appeared beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. In that sense, Courts were required to accept as true the well-pleaded allegations in the complaint and draw all reasonable inferences in favor of plaintiffs. See, e.g., Correa Martínez v. Arrillaga Meléndez, supra. The pleading requirements were “minimal,” but they were not “non-existent.” Gooley v. Mobil Oil Corp., supra at 514. The Federal Supreme Court in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), and in Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (U.S.,2009), overruled and considerably changed the confusing doctrine that had been laid by Conley v. Gibson, 355 U.S. 41, 45-46 (1957). More recently, the First Circuit Court in Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1 (1st Cir. 2011), examined the applicable standard to a motion to dismiss in light of the Supreme Court’s decisions in Twombly, supra and Iqbal, supra. There the Court asserted that “[i]n resolving a motion to dismiss, a court should employ a two-pronged approach. It should begin by identifying and disregarding statements in the complaint that merely offer “ ‘legal conclusion[s] couched as ... fact[ ]’ ” or “[t]hreadbare recitals of the elements of a cause of action.” Id. at 1949-50 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A plaintiff is not entitled to “proceed perforce” by virtue of allegations that merely parrot the elements of the cause of action. See id. at 1950; cf. Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.2009) (disregarding as conclusory, under Iqbal 's first prong, a factual allegation that merely “[p]arrot[ed] our standard for supervisory liability in the context of Section 1983” in alleging that defendants had “failed to Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 5 of 19 Motion to Dismiss Case No. 16-2598 6 [supervise] with deliberate indifference and/or reckless disregard of Plaintiff's federally protected rights”). Non-conclusory factual allegations in the complaint must then be treated as true, even if seemingly incredible. Iqbal, 129 S.Ct. at 1951 (“To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical.... It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”). But cf. Peñalbert- Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir.2011) (“[S]ome allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross the line between the conclusory and the factual.”) (internal quotation marks omitted). If that factual content, so taken, “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” the claim has facial plausibility. Iqbal, 129 S.Ct. at 1949. “The make-or-break standard ... is that the combined allegations, taken as true, must state a plausible, not a merely conceivable, case for relief.” Sepúlveda- Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir.2010) (Souter, J.).” Ocasio-Hernandez v. Fortuño-Burset, supra, 11 - 13. The First Circuit reaffirmed that the standard to examine the allegations of the complaint is the one established by Rule 8(a)(2), which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Ocasio-Hernandez v. Fortuño-Burset, supra, 11 - 13. The purpose of Rule 8 is to “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, supra at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). According to Rule 8, a complaint does not have to state “detailed factual allegations” but it has to indicate “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 1949 (U.S.,2009) (citing Twombly, supra at 555.) “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, supra at 1949 (quoting Twombly, 550 U.S. at 557). Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 6 of 19 Motion to Dismiss Case No. 16-2598 7 When facing a motion to dismiss under this rule, the court must be guided by “two principles: (1) legal conclusions masquerading as factual allegations are not entitled to the presumption of truth; and (2) plausibility analysis is a context-specific task that requires courts to use their judicial experience and common sense. Iqbal, 129 S.Ct. at 1949-50 (quoting Twombly, 550 U.S. at 555-56). In applying these principles, courts may first separate out merely conclusory pleadings, and then focus upon the remaining well-pleaded factual allegations to determine if they plausibly give rise to an entitlement to relief. Iqbal, 129 S.Ct. at 1950.” Febus-Cruz v. Sauri-Santiago, --- F.Supp.2d ----, 2009 WL 2195779 (D.Puerto Rico) (Besosa, J.) While reviewing a motion to dismiss, the Court may in certain limited circumstances consider evidence beyond the pleadings. In cases where “a complaint's factual allegations are expressly linked to - and admittedly dependent upon - a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).” Beddall v. State St. Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998). Here, the reference in plaintiff’s complaint to her administrative charge before the Equal Employment Opportunity Commission (“EEOC”) is an express link to the factual allegations. Consequently, the Court may examine documents containing the administrative charge as the operative date for purposes of determining whether the complaint is time-barred or not, and whether it was addressed to individual defendants or not. LEGAL ARGUMENT A. Plaintiff Is Not A Qualified Individual Pursuant To A.D.A. Pursuant to section 12112(a) of Americans with Disabilities Act (henceforth, “A.D.A.”), “[n]o covered entity shall discriminate against a qualified individual with disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employee, employee compensation, job training, and other terms, conditions, and privileges of employment.” The First Circuit Court has held in a myriad of cases that to ascertain an A.D.A. claim, “a Plaintiff must establish: (1) Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 7 of 19 Motion to Dismiss Case No. 16-2598 8 that he or she suffers from a ‘disability’ within the meaning of the Act; (2) that he or she was able to perform the essential functions of the job, either with or without reasonable accommodation; and (3) that the employer discharged him or her in whole or in part because of that disability.” Feliciano v. Rhode Island, 160 F.3d 780 (1998) (quoting Katz v. City Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996)). To this point, it is clear that co-Defendant Alberto Cardona Crespo, is not a covered entity, as defined under the A.D.A. In fact, the Complaint is completely devoid of any factual allegations stating that Cardona Crespo was the employer or that he was Plaintiff’s supervisor; he was just a co-worker and employee of Hacienda. (Dkt. No. 1, ¶12). For that matter, Honorable Court should DISMISS with prejudice any and all A.D.A. claims raised against him in the instant Complaint. a. Plaintiff failed to allege an impairment that substantially limits a major life activity The A.D.A. prohibits discrimination against an otherwise qualified individual base on his or her disability. 42 U.S.C. §12112(a). It also defines disability as: (a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record of such an impairment; or (c) being regarded as having such an impairment. 42 U.S.C. §12102. As to ‘major life’ activities, it has been defined as basic activities of daily life that an average person in the general population can perform with little or no difficulty. 29 C.F.R. §1630.2(i). See also, Ramos Echevarría v. Pichis, Inc., 659 F.3d 182 (1st Cir. 2011). In other words, a physical or mental impairment, standing alone, is not necessarily a disability as contemplated by the A.D.A., the impairment must substantially limit a major life activity. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995). Evidence showing that the impairment limits a particular plaintiff to a substantial extent is required; in this case, an adequate allegation in the Complaint. Ramos Echevarría, supra. Thus, Plaintiff is required to specify the major life activity in which she claims to be substantially limited, if any. Id. Albeit it is evident from the allegations in the Complaint that Plaintiff may have a mental condition, that by itself is insufficient to properly state a disability claim as defined by the statutes under Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 8 of 19 Motion to Dismiss Case No. 16-2598 9 which she seeks relief. The Complaint is completely devoid of any allegation stating that Plaintiff is substantially limited, because of her impairment, in any major life activity. Thus, this Honorable Court should DISMISS with prejudice all A.D.A. claims in the instant Complaint. b. Plaintiff cannot perform the essential functions of her position Moreover, to be regarded as a ‘qualified individual’ under the A.D.A., Plaintiff must show that she possessed (1) the requisite skill experience, education, and other jo-related requirements for the position and, most important, (2) that she is able to perform the essential functions of the position, either with or without reasonable accommodation. Calero Cerezo v. United States Department of Justice, 355 F.3d 6 (1st Cir. 2004) (holding, like in the case at hand, that a disabled person, within the definition of the Act, was not a qualified individual for lacking the capacity to perform the job, even while suffering from major depression); Feliciano, supra; Katz, supra. In the pertinent part, Plaintiff alleges in her Complaint that she was diagnosed with a mayor severe depression and bipolar disorder (Dkt. No. 1, ¶1); she had to periodically (and frequently) miss days from work for evaluations, rehabilitation, psychological treatments and hospitalization for her mental illness, for which she had to bring constant certified excuses from her psychologist (Dkt. No. 1, ¶16, 22, 26); and she voluntarily applied for and was granted, by an independent third party, long term disability benefits. (Dkt. No. 1, ¶22 to 23). As it is well known, many Circuit Courts have long held that employees who are alleged to be disabled under the A.D.A. cannot prove that they can adequately perform the essential functions of a job without a showing that they can maintain a regular and dependable level of attendance at that job. Garrison v. City of Tallahassee, 2016 U.S. App. LEXIS 20214 (11th Cir. 2016) (holding that a Plaintiff was not a qualified individual because no reasonable accommodation would allow her to perform an essential function of job, full-time physical attendance). See also, Boileau v. Capital Bank Fin. Corp., 646 Fed. Appx. Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 9 of 19 Motion to Dismiss Case No. 16-2598 10 436 (6th Cir. 2016); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir 1998); Tyndall v. Nat’l Educ. Ctrs. Inc., 31 F.3d 209 (4th Cir 1994); Barfield v. Bell South Telecomm’ Inc., 886 F.Supp 1321 (S.D. Miss. 1995). In addition, by Plaintiffs allegation in the Complaint, it is undisputed that she is not a qualified individual under the A.D.A. because she cannot perform the essential functions of her previous position. “Indeed, that is why Plaintiff was collecting disability benefits […] A third party provider has determined that [she] is not capable of working.” Dorr v. Ford Motor Co., 2011 U.S. Dist. (E.D. Mich). (citations omitted). See also, Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) (noting that an inherent discrepancy exists where the plaintiff claims ‘total disability or the like’ for purposes of disability benefits, and the ability to perform essential job functions under A.D.A.); Lewis v. Zilog, Inc., 908 F. Supp. 931 (N.D. Ga. 1995) (noting that “[a] condition precedent to receiving long term disability benefits is that the employee be totally disabled to perform any job)”. Likewise, aside from mere conclusory allegations that Plaintiff “is an ‘individual with a disability’ within the meaning of 29 U.S.C. §705(20)(A)” (Dkt. No. 1,¶9), the Complaint is completely devoid of any factual allegation stating that Plaintiff possessed the requisite skill experience, education, and other jo- related requirements for the position or, most important, that she was able to perform the essential functions of the position, either with or without reasonable accommodation. From Plaintiffs own allegations, this Honorable Court can observe that Plaintiff did not have the capacity or was able to perform the essential functions of her position. Thus, this Honorable Court should DISMISS with prejudice all A.D.A. claims in the instant Complaint. c. No reasonable accommodation was requested or denied To show that a proposed accommodation was reasonable, Plaintiff must prove “not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for her employer under the circumstances.” Reed v. LaPage Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 10 of 19 Motion to Dismiss Case No. 16-2598 11 Bakeries, Inc., 244 F.3d 254 (1st Cir. 2001). This means that an employer is not required to provide the requested accommodation, once aware of an employee’s disability, if the proposed accommodation poses an undue hardship for its business. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999). Furthermore, “[t]he employer has at least some responsibility in determining the necessary accommodation.” Valentine v. American Home Shield Corp., 939 F.Supp 1376 (1996) (interpreting 29 C.F.R. §1630.2(o)(3)). “Neither the A.D.A. nor the regulations assign responsibility for when the interactive process fails.” Id (citing Beck v. Wisconsin Bd. Of Regulations, 75 F.3d 1130 (7th Cir. 1996)). As to this, it is clear that Hacienda was not required by the A.D.A. to automatically give her the requested relocation back to the Arecibo office, nor that it was feasible under the circumstances. Co- Defendant, Alberto Cardona Crespo filed an internal sexual harassment complaint against Plaintiff; Hacienda, as the employer for both of them, needed to ensure the safety of both parties and that its business operation would not be interrupted by personal scuffles between employees. As a matter of fact, it appears that Plaintiff is a resident of Carolina, Puerto Rico. (Dkt. No. 1,¶9). If anything would be unreasonable, is for Hacienda to locate her at the Arecibo office which is situated an hour drive further than the Bayamón office from her residence. The Complaint is completely devoid of any factual allegation stating how this relocation to Bayamón was unreasonable to Plaintiff; if anything, it benefited her. Pursuant to the above arguments, this Honorable Court should find that Plaintiff did not request a reasonable accommodation and/or that none of the Defendants discriminated against her by denying her a reasonable accommodation. Thus, this Honorable Court should DISMISS with prejudice the allegations regarding the disability discrimination when denied the relocation back to Arecibo. B. No Retaliation Cause Of Action Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 11 of 19 Motion to Dismiss Case No. 16-2598 12 To establish a retaliation claim under the A.D.A. and/or Title VII, Plaintiff must show that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse action. Alvarado v. Donahoe, 987 F.3d 453 (1st Cir. 2012); Oliveras Sifre v. Puerto Rico Department of Health, 214 F.3d 23 (1st Cir. 2000) (citing Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997)). Plaintiff loosely uses retaliation throughout the whole Complaint. However, this Honorable Court can conclude that her main argument that she suffered an adverse employment action was that she was terminated from her job. However, as we have demonstrated above, Plaintiff had to periodically (and frequently) miss days from work for evaluations, rehabilitation, psychological treatments and hospitalization for her mental illness, for which she had to bring constant certified excuses from her psychologist (Dkt. No. 1, ¶16, 22, 26); and voluntarily applied for and was granted, by an independent third party provider, long term disability benefits. (Dkt. No. 1, ¶22 to 23). Hence, was able to perform the essential functions of her position and was receiving long term disability benefits as a result thereof. Therefore, this Honorable Court should DISMISS with prejudice any retaliation claim alleged in the Complaint. C. Lack of Hostile Work Environment Claim Title VII was not intended to be a "general civility code" for the workplace. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). Thereby, discomfort is not the test. Id. To prevail on a hostile work environment claim, a plaintiff must establish: (1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 12 of 19 Motion to Dismiss Case No. 16-2598 13 established. Forres v. Brinker Int’l Payroll Co., 511 F.3d 225 (1st Cir. 2007) (quoting Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002)). When assessing whether harassing treatment meets the ‘severe or pervasive’ standard, the factors a Court must review include "the severity of the conduct, its frequency, whether it is physically threatening or not, and whether it interfered with the victim's work performance.” Gerald v. Univ. of P.R., 707 F.3d 7 (1st Cir. 2013). See also, O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001). Concomitantly, the First Circuit Court has explained that “stray workplace remarks, as well as statements made either by non- decisionmakers or by decisionmakers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus.” González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir.2002). Accordingly, direct evidence of discrimination does not include stray remarks in the workplace, particularly those made by non-decisionmakers or statements made by decisionmakers unrelated to the decisional process itself. Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir.1996). Along these lines, conduct that results from genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex does not constitute gender based employment discrimination under Title VII. O’Rourke, supra (quoting Oncale, supra). Plaintiff single gender discrimination allegation in the Complaint is that she “was subject to gender discrimination when she was falsely accused by male coworker Alberto Cardona.” (Dkt. No. 1, ¶19). That by itself is not enough to sufficiently state a gender discrimination claim against any Co-Defendant. It is not reasonable for this Honorable Court to conclude that Plaintiff was discriminated because of her gender just because Co-Defendant, Alberto Cardona Crespo was engaging himself in protected activity. Moreover, pursuant to the above, Co-Defendant, Alberto Cardona Crespo’s alleged stray remark - “telling plaintiff to strip-pole dancing”- (Dkt. No. 1, ¶17) cannot be understood as sufficiently severe or pervasive so as to alter the conditions of Plaintiff's employment and create an abusive work environment or Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 13 of 19 Motion to Dismiss Case No. 16-2598 14 as a sexually objectionable conduct that was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive. In light of the above, this Honorable Court should DISMISS with prejudice the hostile work environment and gender discrimination claims in the Complaint. D. Plaintiff’s Claims Against The Commonwealth Pursuant To A.D.A. Are Barred By Eleventh Amendment Defendant, Hacienda submits that this Honorable Court should dismiss Plaintiff’s cause of action under Title I of the A.D.A. because the Defendant is considered an arm of the state (therefore, the Commonwealth) and is entitled to immunity pursuant to the Eleventh Amendment of the United States Constitution. 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. The Supreme Court held, in Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001), that the A.D.A.’s legislative record failed to establish a pattern in fact of “irrational state discrimination” in employment against the disabled that would justify acting under Section 5 of the Fourteenth Amendment’s powers, and thus sustain Congress’s abrogation of the States’ Eleventh Amendment immunity. It determined that for Congress to authorize private individuals to sue the States in federal courts to recover money damages, “there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation.” Id. In examining the merits of the question of whether the abrogation of the State’s Eleventh Amendment immunity exceeded Congress’s power under the Fourteenth Amendment, the Supreme Court first acknowledged Congress’s duty to determine and remedy violations of the rights guaranteed by the Fourteenth Amendment. Id. However, the Supreme Court reaffirmed the Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 14 of 19 Motion to Dismiss Case No. 16-2598 15 principle that the judiciary, and not Congress, has the responsibility of defining the substance of constitutional guarantees. Id.; see also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80-81 (2000). By the same token, the Supreme Court examined the limitations the Equal Protection Clause that are placed upon the States’ treatment of the disabled citizens. Garrett, supra. That is the “congruence and proportionality test” that evolved in City of Boerne v. Flores, 521 U.S. 507 (1997). The Supreme Court first looked at its prior decisions under the Equal Protection Clause that dealt with the issue. It took account of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), in order to apply the “rational basis” review for Equal Protection cases. It concluded that States are not constitutionally required to make special accommodations for the disabled, so long as their actions toward these individuals are rational. Garrett, supra. The Supreme Court also rejected the proposition that “negative attitudes” or “fear” runs afoul of the Fourteenth Amendment. Finally, the Court also analyzed whether the statute under scrutiny constituted a reasonably prophylactic regulation, or merely an attempt to redefine the States’ obligations regarding disabled discrimination. Id. After reviewing the A.D.A.’s legislative record, the Supreme Court concluded that Congress failed to identify in fact a pattern of irrational state discrimination in employment against the disabled. Id. In light of the little evidence supporting any findings of widespread unconstitutional discrimination against the disabled, the Supreme Court concluded that the statute was not a valid exercise of Congress’s power under the Section 5 of the Fourteenth Amendment. Id. It expressed that the rights and remedies created by the ADA against the States would “raised the same sort of concerns as to congruence and proportionality as were found in City of Boerne….” Id. As such, the Supreme Court concluded that “Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I …”. Id. Consequently, Plaintiff cannot recover monetary or compensatory damages from the Commonwealth of Puerto Rico or from Defendants in their official capacity. Monell, supra (holding that a Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 15 of 19 Motion to Dismiss Case No. 16-2598 16 suit against an officer in his official capacity is “only another way of pleading an action against an entity of which an officer is an agent”). While the Commonwealth prohibits employment discrimination on the basis of disability, there is no specific language indicating that Puerto Rico intends to make itself subject to damages suits in federal Court for disability-based employment discrimination. Because Congress did not have valuable authority to abrogate state’s immunity and because Puerto Rico has not waived its claim to Eleventh Amendment Immunity, Plaintiff’s Title I A.D.A. claim for employment discrimination cannot survive. See Acevedo Lopez v. Police Department of the Commonwealth of PR, 247 F.3d 26 (1st Cir. 2001). “The Eleventh Amendment bars private money damages actions for state violations of ADA Title I, which prohibits discrimination against the disabled.” Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Therefore, the Commonwealth of Puerto Rico, and consequently the Defendants in their official capacity, are immune to all monetary claims filed under Title I. Torres-Alamo v. Puerto Rico, 502 F.3d 20 (1st Cir.2007). See Cardona Roman v. University of Puerto Rico, 2011 WL 3204837, 4 (D.Puerto Rico, 2011). As has already been explained, it is black letter law that a Plaintiff cannot recover money damages pursuant to Title I of the A.D.A., as the same are barred by Eleventh Amendment immunity. Plaintiff’s sole A.D.A. remedy is limited to an equitable relief. However, Plaintiff is not entitled to this relief either, insofar as she is not a qualified individual. Simply put, Plaintiff cannot recover compensatory damages and, because she is not a qualified individual, she is also not entitled to any equitable remedy under the A.D.A. Therefore, her claims of discrimination under Title I of A.D.A. against Hacienda and the Commonwealth should be DISMISSED with prejudice for the reasons above stated. E. The Eleventh Amendment Precludes State Law Claims Against the Commonwealth of Puerto Rico Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 16 of 19 Motion to Dismiss Case No. 16-2598 17 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). See also, Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Hans v. Louisiana, 134 U.S. 1 (1890). Thus, the Eleventh Amendment embodies a constitutional constraint on the exercise of federal judicial power that renders an “unconsenting state immune from suits brought in federal courts by her own citizens as well as by citizens of another state”. Employees of Dept. of Public Health & Welfare, 411 U.S. 279 (1973). 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, supra. 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 (1996). It is clear, though, that the Constitution does not provide for federal jurisdiction over suits against non-consenting states. Kimel, supra. 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 (1st Cir. 2000); Ortiz-Feliciano v. Toledo-Dávila, 175 F.3d 37 (1st Cir. 1999). The Eleventh Amendment’s 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 (1984); Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977); Ainsworth Aristocrat Int'sl Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d. 1034 (1st Cir. 1987); Ochoa Realty Corp. v. Faria, 618 F. Supp. 434 (D.P.R. 1985); Ursulich v. Puerto Rico National Guard, 384 F. Supp. 736 (D.P.R. 1974). 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. Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 17 of 19 Motion to Dismiss Case No. 16-2598 18 Mt. Healthy, supra; Paul N. Howard v. Puerto Rico Aqueduct and Sewer Authority, 744 F.2d 880 (1st Cir. 1984); Pérez v. Rodríguez Bou, 575 F.2d 21 (1st Cir. 1978). In the case at bar, it is obvious that the real party in interest is the Commonwealth of Puerto Rico. The Commonwealth of Puerto Rico has not consented to be sued for damages in federal Courts. In Ursulich v. Puerto Rico National Guard, 384 F. Supp. 736 (D.P.R. 1974), this Honorable Court expressed that “[I]t is inherent in the nature of sovereignty not to be amenable to a suit by an individual without its consent. This principle applies with full force to the states of the Union. (Citations omitted). That the principle is, likewise, applicable to the Commonwealth of Puerto Rico is clear, for the Commonwealth possesses many of the attributes of sovereignty, and has full power of local self-determination similar to the one the states of the Union have.” On this point, the First Circuit Court has held that the Eleventh Amendment indeed does deprive federal Court to hear claims for damages against the Commonwealth of Puerto Rico, Figueroa Rodríguez v. Aquino, 863 F. 2d 1037 (1st. Cir. 1988); Ramírez v. Puerto Rico Fire Service, 715 F.2d. 694 (1st Cir. 1983), since “Puerto Rico, despite the lack of formal statehood, enjoys the shelter of the Eleventh Amendment in all respects”. Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770 (1st Cir. 1981). “The Commonwealth of Puerto Rico has consented to be sued in suits for damages only in the Courts of the Commonwealth of Puerto Rico.” Ursulich, supra. However, the Commonwealth has not waived its Eleventh Amendment immunity to suits for damages in federal Courts. Culebras Enterprises Corp. v. Rivera Ríos, 813 F.2d 506 (1st. Cir. 1987). Therefore, “Puerto Rico sovereign immunity under the Eleventh Amendment serves to bar Plaintiff’s claim under [local Acts No. 44, No. 100, and Article 1802of the Civil Code] for damages in federal Court.” Vizcarrondo v. Board of Trustees of the University of Puerto Rico, 139 F. Supp. 2d 198 (2001) (citing Noguera v. University of Puerto Rico, 890 F. Supp. 60 (D.P.R. 1995). Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 18 of 19 Motion to Dismiss Case No. 16-2598 19 Since the instant Complaint is claiming monetary damages and violation of local statutes against the Commonwealth of Puerto Rico (and also Hacienda), supplemental jurisdiction is barred by the Eleventh Amendment and all claims so stated should be DISMISSED with prejudice. WHEREFORE, Defendants respectfully requests from this Honorable Court the DISMISSAL of the instant Complaint, in its entirety, with prejudice, for failure to state a claim upon which relief can be granted, and GRANT reasonable attorney fees, along with any other relief that is deemed available by law. I HEREBY CERTIFY that on this same date, I have electronically filed the foregoing with the Clerk of the Court using CM/ECF system, which will send notification of such filing to all attorneys of record. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this ___th day of December, 2016. CÉSAR R. MIRANDA RODRÍGUEZ Secretary of Justice NOEMI CORTÉS IRIZARRY Interim Deputy Secretary General Litigations Office WANDYMAR BURGOS VARGAS Director Federal Litigation Division Department of Justice S/IVÁN J. SOLARES NÚÑEZ Iván José Solares Núñez U.S.D.C. No.: 302210 Counsel Attorney for Defendant Department of Justice Federal Litigation and Bankruptcy Division P.O. Box 9020192 San Juan, P.R., 00902-0192 Tel. (787) 721-2900, ext. 2647,2650,2624,2606 Fax (787) 723-9188 isolares@justicia.pr.gov Case 3:16-cv-02598-FAB Document 12 Filed 12/28/16 Page 19 of 19
