Nieve De L. Ángeles Vázquez Lazo v. Dr. UroyoáN RamóN Emeterio Walker

NIEVE DE LOS ÁNGELES VÁZQUEZ LAZO, Plaintiff, v. DR. UROYOÁN RAMÓN EMETERIO WALKER, et al., Defendants.

CIVIL NO. 15-1891 (PAD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

September 30, 2016

MEMORANDUM AND ORDER

Delgado-Hernández, District Judge.

Plaintiff Nieve de los Ángeles Vázquez-Lazo initiated this action against the University of Puerto Rico, its President Dr. Urayoán Ramón Emeterio Walker, and other personnel of the University of Puerto Rico, Bayamón Campus,¹ in their individual and official capacity, alleging violations of Federal and Puerto Rico law.² Before the court is defendants' Motion to Dismiss (Docket No. 26), which plaintiff opposed (Docket No. 34). Defendants replied (Docket No. 42), and plaintiff sur-replied (Docket No. 52). For the reasons explained below, the motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

From January 2006 to January 2015, plaintiff worked as an Assistant Professor in the Humanities Department of UPRB, first pursuant to a temporary contract renewed on a yearly basis and, since August 2012, under a probationary appointment (Docket No. 8 at ¶¶ 4.19-4.20). Around September 2012, she expressed her desire to be considered for a promotion and tenure. Id. at ¶ 4.27. But Dr. Elsa Gelpí, then President of the Personnel Committee, questioned plaintiff's qualifications for a promotion and tenure. Id. at ¶ 4.28.³ In turn, according to plaintiff, this lead to a heated discussion, followed by harassment and a hostile work environment against her by defendants, for which, in November 2012, she filed an internal administrative complaint against them. Id. at ¶¶ 4.28 and 4.39.

In early May 2014, plaintiff was interviewed by El Nuevo Día newspaper, voicing concerns regarding UPR students' not being able to enroll in on-line courses offered by the Humanities Department of UPRB. Id. at ¶ 4.54. On May 22, 2014, the Personnel Committee recommended termination of plaintiff's probationary appointment because, among other things, she had not cooperated with the evaluation process. Id. at ¶¶ 4.55 and 4.56.⁴ In mid-June 2014, plaintiff filed a complaint before the Civil Rights Commission of Puerto Rico, alleging harassment, violation of free speech, age and national origin discrimination, and retaliation. Id. at ¶ 4.57.

On June 24, 2014, El Nuevo Día published an article regarding a letter circulated within the UPRB campus, opposing Fernández-Zavala's nomination as Chancellor, with signatures of faculty members and students who rejected her nomination, including plaintiff's. Id. at ¶ 4.59.That same day, Dr. Walker denied plaintiff's final appeal regarding her harassment and hostile work environment complaint. Id. at ¶¶ 4.59 and 4.60. Two days later, her appeal concerning the request for promotion and tenure was denied. Id. at ¶ 4.61. On June 3, 2014, after Fernández-Zavala was confirmed as Chancellor, Dr. González issued a letter terminating plaintiff's probationary appointment. Id. at ¶ 4.63). Defendants seek the dismissal under Fed. R. Civ. P. 12(b)(6), of all claims asserted against them in their official capacity. See, Docket No. 42 at footnote 1.

II. STANDARD OF REVIEW

To survive a motion to dismiss, a complaint must allege a plausible entitlement to relief. Rodríguez-Vives v. Puerto Rico Firefighters Corps., 743 F.3d 278, 283 (1st Cir. 2014); Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013); Rodríguez-Ortiz v. Margo Caribe, 490 F.3d 92, 95 (1st Cir. 2007). A determination of plausibility involves a context-specific task that requires courts to examine the complaint as a whole, separating factual allegations (which must be accepted as true) from conclusory legal allegations (which need not be credited). García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013); Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012).

Should the factual content holistically permit the court to reasonably infer that the defendant is liable for the misconduct alleged, dismissal is not appropriate. Sepúlveda-Villarini v. Dept. of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010). If the factual allegations are too conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal. S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010); Rodríguez-Reyes, 711 F.3d at 53.

This inquiry does not demand a high degree of factual specificity. García-Catalán, 734 F.3d at 103. Sufficiency may be found even if a plaintiff has not alleged every fact necessary to win at trial or to successfully resist summary judgment. Rodríguez-Reyes, 711 F. 3d at 53-54; Rodríguez-Vives, 743 F.3d at 286. All reasonable inferences must be drawn in plaintiff's favor. Foley v. Wells Fargo, 772 F.3d 63, 68 (1st Cir. 2014); García-Catalán, 734 F.3d at 103.

III. DISCUSSION

A. Multiple Defendants.

Defendants allege the action should be dismissed because, in their opinion, the complaint fails to particularize the claims made against each of them (Docket No. 26 at pp. 6-9). The cases they rely on involve claims of fraud, which pursuant to Fed. R. Civ. P. 9(b), must be pleaded with particularity.⁵ But the heightened pleading standard of Rule 9 does not apply here. Furthermore, the Amended Complaint identifies each defendant by title and the different boards where he or she was serving, and details each defendant's involvement in the events alleged therein. In consequence, it "affords each named defendant with proper notice of the actionable facts, regardless of the form in which those facts are presented." Peña-Peña v. Figueroa-Sancha, 866 F.Supp.2d 81, 92 (D.P.R. 2012)(citing, 7 Wright, Miller & Kane, Federal Practice and Procedure § 1654 (3d ed. 2011)). Nothing more is required at this stage.

B. Section 1983.

Defendants assert that the Section 1983 claim is time-barred (Docket No. 26 at pp. 26-30). They point out the adverse employment actions -the non-renewal of plaintiff's probationary appointment, the denial of her tenure and promotion, and her dismissal- (1) occurred "before the filing of the original complaint;" (2) are discrete acts not subject to the continuing violationdoctrine; and (3) were not adequately tolled. Id. If defendants meant to say the alleged adverse employment actions occurred more than a year before the complaint was filed,⁶ their concern is dispelled by plaintiff's clarification that (1) "the only employment action [she] challenge[s], for which she seeks damages, is her July 2014 retaliatory dismissal," and (2) the other acts alleged in the Amended Complaint are included "as background evidence of defendants' discriminatory and retaliatory intent" (Docket No. 33 at pp. 22-23).⁷

Defendants fault plaintiff for not proving the necessary "personal involvement required under § 1983" (Docket No. 26 at pp. 12-13). Defendants cite case law, yet do not discuss how it applies here. See, Rocafort v. IBM Corp., 334 F.3d 115, 122 (1st Cir. 2003)(holding that passing reference to legal phrases and case citation without developed argument is not sufficient to defeat waiver"); DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 1996)("Simply noting an argument in passing without explanation is insufficient to avoid waiver"). Even if the argument were not considered waived, however, it would not lead to dismissal, as plaintiff does not have to "prove [ ] personal involvement" at this stage, but rather plead it. And plaintiff has adequately done so.

To prevail in a Section 1983 claim, a plaintiff "must allege facts sufficient to support a determination (i) that the conduct complained of has been committed under color of state law, and (ii) that [the alleged] conduct worked a denial of rights secured by the Constitution or laws of the United States." Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005) (quoting, Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32 (1st Cir. 1996)). For Section 1983 liability purposes, ". . . a state employee generally acts under color of state law when, while performing in his official capacity or exercising his official responsibilities, he abuses the position given to him by the State." West v. Atkins, 487 U.S. 42, 49 (1988).

Viewing the Amended Complaint as a whole, the allegations include facts that, taken as true, state a facially plausible claim under Section 1983. See García-Catalán, 734 F.3d at 103. In the end, they refer to defendants' participation in the decisions that plaintiff has challenged. So viewed, dismissal is not appropriate, at least at this stage of the litigation. See Rodríguez-Reyes, 711 F.3d at 54 ("It is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage").

C. First Amendment.

Defendants challenge plaintiff's First Amendment claim, arguing that her statements to the media did not address an issue of public concern, nor were made to protect the public interest. (Docket No. 26 at p. 25). But taken the pleaded facts as true, they plausibly show that, when plaintiff was interviewed by El Nuevo Día, she was speaking as a citizen on a matter of public concern, to wit, the unavailability of on-line courses for students at UPRB, to protect students, and hence, the public interest. Additionally, defendants state Mt. Healthy requires dismissal (Docket No. 26 at pp. 36-38). Yet the Mt. Healthy defense "is inappropriate at the motion to dismiss stage because the parties have not yet engaged in any significant discovery." Álvarez-Morales v. Municipality of Las Marías, 2015 WL 8095429, at *5 (D.P.R. 2015); see also, Maloy v. Ballori, 744 F.3d 250, 253 (1st Cir. 2014) ("Typically too, an assessment of a plaintiff's complaint does not entail consideration—much less require rebuttal—of the defendant's explanations for its action . . .")(internal citations omitted); Thomas v. Eby, 481 F.3d 434, 442 (6th Cir. 2007) ("it makes little sense to apply [the Mt. Healthy defense] at the pleading stage"); Johnson v. Eggersdorf, 8 Fed.Appx. 140, 144 n.1 ...