Perez-Abreu v. Metropol Hato Rey, LLC

Francisco Perez-Abreu, et al., Plaintiffs, v. Metropol Hato Rey, LLC, et al., Defendants.

Civil No. 18-1865 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

May 22, 2019

OPINION AND ORDER

On November 13, 2018, Plaintiffs Francisco Perez-Abreu, his wife Olga Felix-Ancona, and the conjugal partnership Perez-Felix (collectively, "Plaintiffs") filed this employment discrimination suit against Metropol Hato Rey, LLC, and Restaurant Metropol 3, Inc. ("Defendants").¹ The complaint asserts claims under the Age Discrimination in Employment Act, also known as "ADEA," 29 U.S.C. § 621 et seq., and Puerto Rico law.² Docket No. 1. Having been served and before answering the complaint, Defendants move to dismiss all claims under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. Docket No. 11.

After a review of Defendants' motion, the court ordered Plaintiffs to show cause as to why their claims should not be dismissed for the reasons stated by Defendants. Docket No. 12. At that time, the court granted Plaintiffs leave to amend the complaint by April 12, 2019 to assert their claims with more specificity and cure any material pleading deficiencies.Plaintiffs filed their motion in compliance with the show cause order but never amended the complaint. Docket No. 13.

The Motion to Dismiss

Mainly, Defendants argue that Plaintiff Perez failed to exhaust administrative remedies on his ADEA claims based on the alleged discriminatory actions taken against him in scheduling and table assignments, both of which supposedly provoked a loss of Perez's income. Docket No. 11 at pp. 5-9. Defendants contend that Perez neither filed a discrimination charge with the EEOC (or the "ADU")³ within 300 days of these alleged actions, nor obtained a right-to-sue letter from the corresponding agency prior to filing suit. Accordingly, they ask the court to dismiss the ADEA claims on failure to exhaust grounds. Alternatively, Defendants posit that the complaint fails to state plausible ADEA claims, and therefore, subject to dismissal under Rule 12(b)(6). Finally, Defendants raise several bases for dismissal of the claims brought under Puerto Rico law,⁴ which the court does not reach for the reasons explained infra.

I. STANDARD OF REVIEW

Motions to dismiss brought under Rule 12(b)(1) and 12(b)(6) are subject to the same standard of review. Negrón-Gaztambide v. Hernández-Torres, 35 F.3d 25, 27 (1st Cir. 1994). "When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff'sfavor." Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (citing Hosp. Bella Vista, 254 F.3d at 363). See also De Leon v. Vornado Montehiedra Acquisition L.P., 166 F. Supp. 3d 171, 173 (D.P.R. 2016) (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)) (courts may also consider whatever evidence has been submitted, including depositions and exhibits). The party invoking the jurisdiction of a federal court bears the burden of proving its existence. Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). See also United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n. 6 (1st Cir. 2005) (citing Deniz v. Municipality of Guaynabo, 285 F.3d 142 (1st Cir. 2002); Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275 (1st Cir. 1999)) (noting that "[f]ailure to exhaust administrative remedies and ripeness challenges may be appropriate in a motion to dismiss for lack of subject matter jurisdiction").⁵

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a complaint that fails to state a claim upon which relief could be granted. "To avoid dismissal, a complaint must provide 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Garcia-Catalan v. United States, 734 F.3d 100, 102 (1st Cir. 2013) (quoting FED. R. CIV. P. 8(a)(2)). Even though detailed factual allegations are not necessary for a complaint to survive a motion to dismiss, "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 [.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Those nonconclusory factual allegations that the court accepts as true mustbe sufficient to give the claim facial plausibility. Quiros v. Munoz, 670 F. Supp. 2d 130, 132 (D.P.R. 2009). "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). With this in mind, the court turns to the facts alleged in the complaint.

II. DISCUSSION

The Facts

Plaintiff Perez is over 40-years old. From 1988 to December 21, 2013, he worked for Defendant Metropol 3 on a full-time basis. On December 20, 2013, Defendant informed Plaintiff and the other employees that the restaurant would undergo a reorganization, relocate and re-open its doors on December 26, 2013, under the name "Metropol Hato Rey, LLC."⁶ Docket No. 1 ¶¶ 6-10.

The amended complaint alleges two discrete acts of age-based discrimination. The first one occurred back in 2010, when Defendants reduced Plaintiff's workweek to 35 hours.⁷ As a result, Perez suffered a reduction in his fixed income and the wages derived from tips. Id. ¶¶ 11-12. He continued to work a 35-hour workweek until March of 2018, when Defendants reestablished his previous 40-hour weekly schedule. Id. ¶ 15. The second action took place after Metropol's reorganization in December of 2013. Perez alleges that after the restaurant relocated, he was not assigned to a specific working station. Instead, he had to serve tables on a need-be basis,⁸ and fewer clients, resulting in a loss of wages and tips. Id.¶ 14. Plaintiffs contend that age-based animus motivated the restaurant's 2013 reorganization; or that as part of the process, Defendants favored younger employees in relation to scheduling and table assignments. The complaint hurriedly mentions that other unidentified employees who were age 40 or older, or with more seniority, were also affected. Id. ¶¶ 12-14.

ADEA's Administrative Exhaustion Requirements

Under ADEA, a plaintiff must file an employment discrimination charge with the EEOC (or the ADU) within 300 days of the alleged discrimination or practice before suing in federal court. 29 U.S.C. § 626(d). See Tapia-Tapia, 322 F. 3d at 744; Gonzalez-Bermudez v. Abbott Laboratories PR Inc., 214 F. Supp. 3d 130, 152 n. 6 (D.P.R. 2016). The charge must generally describe the acts or practices that form the bases of the administrative complaint. Labiosa-Herrera v. Puerto Rico Telephone Company, 153 F. Supp. 3d 541, 547 (D.P.R. 2016) (citing Jorge v. Rumsfel, 404 F.3d 556, 565 (1st Cir. 2005); Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990)) (discussing administrative exhaustion requirements under ADEA, with attention to content requirements of the factual statement in the EEOC charge). The point is to put the employer on notice of the alleged violations and give the parties an opportunity for conciliation before resorting to federal court. Id. (citing Thornton v. United Parcel Service, Inc., 587 F.3d 27, 32 (1st Cir. 2009)) (noting that the factual statement incorporated in the charge should even alert any alternative or collateral grounds of discrimination that a plaintiff raises for the first time in court).

There are some exceptions to the requirements of exhausting administrative remedies. See, e.g., Tapia-Tapia, 322 F.3d at 745 n. 4 (mentioning equitable tolling exception, among others); Pratt v. Premier Salons, Inc., 67 F. Supp. 3d 520 (D.P.R. 2014)(recognizing an exception based on the "substantial identity" between respondents in EEOC charge and defendants named in complaint); Calderon v. Unitex, Inc., 885 F. Supp. 2d 539, 542-543 (D.P.R. 2012) (briefly explaining two exceptions known as the "scope of the investigation rule" and the "reasonably related retaliatory claims test"-also called the "Clockedile exception" after Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 6 (1st Cir. 2001)-but ultimately dismissing plaintiff's disability discrimination claims on failure to exhaust grounds). None of them apply here.

Indeed, Plaintiffs concede that Perez never filed a charge with the EEOC within the time limits the ADEA establishes, and therefore, did not exhaust administrative remedies for the ADEA claims. Docket No. 13 ¶ 6. However, they invoke the "single filing" rule or exception and urge the court to adopt it. Id. (quoting Snell v. Suffolk County, 782 F.2d 1094, 1100 (2d Cir. 1986)) (citing Holowecki v. Fed. Express Corp., 440 F.3d 358 (2nd Cir. 2006)). This exception, which has also come to be known as "piggybacking," would allow Perez to vicariously exhaust his administrative filing responsibilities via another plaintiff's timely-filed administrative complaint. Plaintiffs specifically purport to piggyback on one out of several EEOC-ADU charges filed by Perez's coworker, Juan Santiago-Del Valle. Mr. Del Valle sued Metropol Hato Rey, LLC for alleged age discrimination and the case is currently before Chief Judge Gustavo A. Gelpí. See Santiago-Del Valle v. Metropol Hato Rey, LLC, Civil No. 18-1864 (GAG).⁹

The single-filing exception has been adopted by most circuit courts, but not the First Circuit. See Peeples v. City of Detroit, 891 F.3d 622, 632-633 (6th Cir. 2018); Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1202 (9th Cir. 2016); Sheffield v. United Parcel Serv., Inc., 403 F. App'x 452, 454 (11th Cir. 2010); Ruehl v. Viacom, Inc., 500 F.3d 375, 385 (3d Cir. 2007). See also Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001) (recognizing that the Eleventh Circuit applies the...