Gallego-Pagan v. Dep't of Corr. & Rehab.

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EILLEEN Y. GALLEGO-PAGAN, Plaintiff, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al. Defendants.

CIVIL No. 23-1272 (RAM)

United States District Court, D. Puerto Rico

September 5, 2024

OPINION AND ORDER

RAUL M. ARIAS-MARXUACH, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (“Motion to Dismiss”) (Docket No. 21). For the reasons outlined below, the Court hereby GRANTS Defendants' Motion to Dismiss.

I. BACKGROUND

On May 29, 2023, Plaintiff Eilleen Gallego-Pagan (“Plaintiff” or “Ms. Gallego”) filed a Complaint against her employer, the Department of Corrections and Rehabilitation (the “DCR”), as well as DCR supervisors and employees (the “Individual Defendants”)^[1], (collectively “Defendants”). (Docket No. 1). Plaintiff alleges that she was discriminated and retaliated against on the basis of sex and disability in violation of Title VII, 42 U.S.C. §§ 2000e, et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C §§ 12101, et seq.; and 42 U.S.C. § 1981a. Id. Ms. Gallego also asserts that Defendants violated the following Puerto Rico statutes: Law 44, P.R. Laws Ann. tit. 1, §§ 501, et seq.; Law 69, P.R. Laws Ann. tit. 29, §§ 1321-1341; Law 90, P.R. Laws Ann. tit. 29, §§ 3111, et seq.; Law 100, P.R. Laws Ann. tit. 29, §§ 146, et seq.; Law 115, P.R. Laws Ann. tit 29, §§ 194, et seq.; and Articles 1536 and 1538 of the Puerto Rico Civil Code. Id.

On September 26, 2023, Defendants filed the Motion to Dismiss seeking dismissal of the Complaint in its entirety. (Docket No. 21). Therein, Defendants argue that Plaintiff failed to exhaust administrative remedies as to her Title VII claims because the right to sue letter from the Equal Employment Opportunity Commission (“EEOC”) that Plaintiff included as an attachment to her complaint only referenced her disability discrimination claims. Id. at 4-5. Additionally, Defendants contend that: (a) the sex discrimination claims under Title VII and Law 69 are time-barred; (b) Plaintiff failed to plead a prima facie ADA claim; (c) there is no individual liability under Title VII, the ADA, and Puerto Rico Laws 44, 90, 100 and 115; (d) monetary relief against the Commonwealth of Puerto Rico is barred by the Eleventh Amendment; and (e) Plaintiff is not entitled to damages pursuant to Articles 1536 and 1538 of the Puerto Rico Civil Code. Id. at 513.

Plaintiff filed a Response in Opposition on October 12, 2023 “yielding” to various arguments raised by Defendants. (Docket No. 23). Notably, Ms. Gallego voluntarily dismissed the totality of her claims for disability discrimination under the ADA and Law 44. Id. at 8. Plaintiff also conceded that there is no individual liability under Title VII, Law 90, and Law 115, and that the Individual Defendants are entitled to Eleventh Amendment immunity in their official capacity. Id. at 8, 13. Lastly, she agreed that Articles 1536 and 1538 of the Puerto Rico Civil Code are currently inapplicable. Id. at 8.

As to her sex discrimination claims under federal and Puerto Rico law, Plaintiff argues that she exhausted administrative remedies and that said claims are not time-barred. Id. at 5-8. In support, Ms. Gallego submitted the Charge of Discrimination she filed before the EEOC (the “EEOC Charge”) in which she marked sex discrimination as one of the foundations of her claim. (Docket No. 23-1).

On October 12, 2023, Defendants filed a Reply acknowledging that Plaintiff evidenced that she had filed an EEOC Charge for sex discrimination but asserting that the facts alleged therein were not sufficiently related to the allegations of the Complaint.

(Docket No. 29). Defendants also reiterated their argument that Plaintiff's sexual discrimination claims are time-barred.

II. APPLICABLE LAW

A. The Motion to Dismiss Standard

Fed. R. Civ. P. 12(b)(6) allows a complaint to be dismissed for “failure to state a claim upon which relief can be granted.” When ruling on a motion to dismiss under this rule, courts must determine whether “all the facts alleged [in the complaint], when viewed in the light most favorable to the plaintiffs, render the plaintiff's entitlement to relief plausible.” Ocasio-Hernandez v. Fortuno-Bur set, 640 F.3d 1, 14 (1st Cir. 2011) (emphasis in original). This requires treating “any non-conclusory factual allegations in the complaint as true.” Nieto-Vicenty v. Valledor, 984 F.Supp.2d 17, 20 (D.P.R. 2013). Courts may also consider: “(a) ‘implications from documents' attached to or fairly ‘incorporated into the complaint,'(b) ‘facts' susceptible to ‘judicial notice,' and (c) ‘concessions' in plaintiff's ‘response to the motion to dismiss.'” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55-56 (1st Cir. 2012) (quoting Arturet-Velez v. R.J. Reynolds Tobacco Co. , 429 F.3d 10, 13 n.2 (1st Cir. 2005)).

B. Title VII and Sex Based Discrimination

Title VII makes it unlawful for an employer to discharge or otherwise discriminate against any individual with respect to their “compensation, terms, conditions or privileges of employment” because of an individual's sex. 42 U.S.C. § 2000e-2. “To state a claim to relief, a complaint asserting sex discrimination must plausibly allege that the plaintiff experienced an adverse employment action taken on the basis of her gender.” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012) (citation omitted). “An adverse employment action is one that affect[s] employment or alter[s] the conditions of the workplace, and typically involves discrete changes in the terms of employment, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (quotations and citations omitted).

Furthermore, it is well established that sexual harassment, in the form of a hostile work environment, can constitute sex discrimination. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751-54 (1998). “Title VII . . . allows a plaintiff to prove unlawful discrimination by showing that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (internal quotation marks omitted). In other words, an employer can be held liable if they fail to provide a harassment free workplace by “committing or tolerating sexual harassment against an employee, . . . effectively alter[ing] the terms or conditions of the victim's job.” Medina-Rivera v. MVM, Inc., 713 F.3d 132, 136-37 (1st Cir. 2013).

To succeed in a hostile work environment claim based on sexual harassment, a plaintiff must establish the following six (6) elements:

(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 established.

O'Rourke, 235 F.3d at 728 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-89 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-23 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-73 (1986)). Applying this hostile work environment test “requires an assessment of the totality of the circumstances,” such as the severity and frequency of the conduct; “whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Valentin-Almeyda v. Mun. Of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quotations omitted).

C. Timeliness and Exhausting Administrative Remedies

Prior to proceeding under Title VII in federal court, a plaintiff must exhaust administrative remedies, including EEOC procedures. See Frederique-Alexandre v. Dep't of Nat. & Env't Res. P.R., 478 F.3d 433, 440 (1st Cir. 2007) (citing Lebr6n-Rios v. U.S. Marshal Servs., 341 F.3d 7, 13 (1st Cir. 2003)). Specifically, a plaintiff must first file an administrative charge with EEOC within either 180 or 300 days after the alleged Title VII violation occurred. Frederique-Alexandre, 478 F.3d at 437. In Puerto Rico, a deferral jurisdiction, the charge must be filed within 300 days. Id. This timeliness requirement is “mandatory” and failure to comply “means a potential plaintiff ‘lose[s] the ability to recover for [the alleged discrimination].'” Id. (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)). Therefore, if a plaintiff fails to file an EEOC charge within 300 days, their “discrete discriminatory acts will be time-barred, and thus not actionable, even if they are related to acts alleged in timely filed charges.” Ayala v. Shinseki, 780 F.3d 52, 56 - 57 (1st Cir. 2015) (citing Morgan, 536 U.S. at 113).

After filing the administrative charge, a plaintiff may bring suit in federal court “only if the EEOC dismisses the administrative charge, or if it does not bring civil suit or enter into a conciliation agreement within 180 days of the filing of the administrative charge.” Franceschi v. U.S. Dep't of Veterans Affs., 514 F.3d 81, 85 (1st Cir. 2008) (citing 42 U.S.C. § 2000e-5(f)(1)). The employee must wait for a right-to-sue letter from the EEOC, after which he will have 90...