Velazquez v. Autonomous Municipality of Carolina

IRIS NEREIDA SANCHEZ VELAZQUEZ, Plaintiff,

v.AUTONOMOUS MUNICIPALITY OF CAROLINA, ET AL. Defendants.

Civil No. 11-1586 (SEC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Dated: December 14, 2012

OPINION AND ORDER

Before the Court are co-defendants Municipality of Carolina, Mayor José C. Aponte-Dalmau and Rubén Moyeno-Cintrón's (collectively, "Co-defendants") motion to dismiss pursuant to Fed. R. Civ. P. 12 (b)(6) (Docket #62), plaintiff's opposition thereto (Docket # 95), defendants' reply (Docket # 112), and plaintiff's surreply (Docket # 119). After reviewing the filings and the applicable law, Co-defendants' motion to dismiss is DENIED.

Factual and Procedural Background

On March 3, 2012, Iris N. Sánchez-Velázquez ("Plaintiff") filed a Third Amended Complaint against the Municipality of Carolina, Mayor José C. Aponte-Dalmau of the Municipality of Carolina ("Mayor") and several municipal police officers in their official and personal capacities, alleging employment discrimination on account of her gender, and retaliation under Title VII of the Civil Rights Act and the Fourteenth Amendment of the Constitution of the United States, and for violation of her First Amendment constitutionalrights, among other federal and state law claims.¹ Docket # 46. The relevant facts, as averred in the Third Amended Complaint, follow.

Plaintiff was a sergeant with the Carolina Municipal Police Department ("Municipal Police"). Docket # 46, ¶¶ 1 and 29. In 2007, Plaintiff was promoted to "Operations Director" of North Zone II, a position that had the duties and authority of a lieutenant. Id. ¶ 35. Later on, Freddie Márquez-Vergara ("Márquez") was appointed Commissioner of the Municipal Police. Id. ¶ 37. In August 2009, Márquez arbitrarily restructured the police zones and eliminated Plaintiff's North Zone II, the only zone assigned to a woman. Id. ¶ 38-39. De facto and operationally, however, North Zone II continued to exist, and Miguel Encarnación ("Encarnación"), a male sergeant, was later appointed by Márquez to that position. Id. ¶¶ 39, 40, and 41. The other three zones were directed by male police officers. Id. ¶ 35.

Plaintiff was placed under Encarnación's immediate supervision and was allegedly discriminated by him and Javier Millán ("Millán"), a lieutenant and supervisor of Plaintiff and Encarnación. Plaintiff avers that she was constantly humiliated, mocked, and harassed because of her gender and, additionally, that unfounded insubordination charges were regularly brought against her. Id. ¶ 41 and Docket # 46-3. She was also subjected to unequal treatment incomparison to male co-workers of lesser rank. Specifically, she was required to ask for permission to move from one zone to another and was assigned to perform secretarial work. Id. ¶ 42 and 43; Docket # 46-3.

On September 23, 2009, Plaintiff was appointed "Acting Commissioner" ("Oficial del Día") which, according to the Municipal Police regulations, provides an officer with the same authority as a police commissioner. Id. ¶ 44. During her shift as "Acting Commissioner", Encarnación refused to obey an order Plaintiff gave him regarding a domestic violence incident. Id. ¶¶ 44-48. Plaintiff alleges that since other officers heard his refusal to follow her order, her authority as "Acting Commissioner" was unlawfully questioned. Id. As a result of these actions, Plaintiff sent a memorandum to Márquez, requesting an investigation against Encarnación for insubordination. Id. ¶¶ 50-52. No actions were taken against Encarnación. Id.

On the other hand, Encarnación filed a complaint against Plaintiff with regard to the handling of the domestic violence incident. Id. ¶ 53. Márquez brought the complaint to the attention of the Mayor and recommended that he request an investigation of the situation through the Internal Affairs Office. Id. ¶ 54. According to Plaintiff, despite revealing exculpatory evidence, the Internal Affairs Office recommended disciplinary actions against her. Id. ¶ 57. The Mayor ordered fifteen (15) days of suspension from work and pay. Id. ¶¶ 57 and 85. Moreover, Márquez did not appoint her again as "Acting Commissioner" and instead filed another complaint against her for alleged workplace harassment with the Internal Affairs Officewhich was dismissed for lack of evidence. Id. ¶ 58-59.

In October 2009, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that she was discriminated against because of her gender. Id. ¶ 60. The "Letter of Determination" issued by the EEOC on December 20, 2010 concluded that "the evidence obtained does establish a violation under Title VII of the Civil Rights Act of 1964 against Charging Party [Plaintiff] and other females. Specifically, Charging Party [Plaintiff] was subject to discrimination and Respondent [Municipality of Carolina - Municipal Police] actively participated in the discriminatory pattern." Docket ¶ 46-3. Additional frivolous complaints were filed against Plaintiff in retaliation for filing the EEOC charge. Id. ¶ 63.

On March 23, 2010, the Municipal Police announced five openings for the position of lieutenant to promote qualified sergeants. Id. ¶ 64. Plaintiff applied for the position, but on December 16, 2010, a group of male sergeants, which she believes were less qualified, got the promotion instead. Id. ¶ 65.²

Plaintiff wrote a memorandum, dated June 2010, to Lorenzo Delgado ("Delgado"), Director of Operations of the South Zone, regarding the misuse by Encarnación of an electronic tracking device installed in squad cars.³ Id. ¶ 67. As a result, Delgado filed a complaint againsther for failure to follow the chain of command. Id. ¶¶ 69-70. She then received a written reprimand, a copy of which was included in her personnel file. Id. ¶ 71.

That same month, Márquez filed another complaint against Plaintiff for posting comments on her Facebook page critizicing Márquez and the Municipality of Carolina. Id. ¶ 72. Then, in April 2011, Rubén Moyeno-Cintrón ("Moyeno") filed a complaint against her for publishing pictures of a municipal police officer sleeping during work hours on her Facebook page. Id. ¶ 75. Finally, a municipal agent, Marcos Molina ("Molina"), upon instructions of Johnny Cruz ("Cruz"), filed another complaint against Plaintiff for alleged sexual harassment. Id. ¶ 76.

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs' "well-pleaded facts must possess enough heft to show that [they are] entitled to relief." Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008). In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all "well pleaded facts [and indulge] all reasonable inferences" in plaintiff's favor. Bell Alt. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The First Circuit has held that "dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008). The Court "may augment the facts in the complaint by reference to documents annexed to the complaint or fairly incorporated into it, and matters susceptible to judicial notice." Id. at 305-6.Nevertheless, in judging the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, on the one hand, and 'bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,' on the other hand; the former must be credited, but the latter can safely be ignored." La Chapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)); see also Buck v. American Airlines, Inc., 476 F.3d 29, 33 (1st Cir. 2007). Thus, Plaintiffs must rely on more than unsupported conclusions or interpretations of law, as these will be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1 Cir. 1988)).

Moreover, "even under the liberal pleading standards of Federal Rule of Civil Procedure 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must allege 'a plausible entitlement to relief.'" Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir. 2007) (citing Twombly, 550 U.S. at 559). Although complaints do not need detailed factual allegations, the plausibility standard is not akin to a "probability requirement", but it ask more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court reaffirmed Twombly and clarified that two underlying principles must guide a court's assessment of the adequacy of pleadings when evaluating whether a complaint can survive a Rule 12(b)(6) motion. First, the court must identify any conclusory allegations in the complaint as such allegations are not entitled to an assumption of truth. Id. at 677. Specifically, the court is not compelled to accept legal conclusions set forth as factual allegations in the complaint. Id. Further, "threadbarerecitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555); see also 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 to the factual."). In other words, "[a] plaintiff is not entitled to 'proceed perforce' by virtue of allegations that merely parrot the elements of the cause of action." Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

Second, a complaint survives only if it states a plausible claim for relief. Iqbal, 556 U.S. at 670. Thus, any nonconclusory factual allegations in the complaint, accepted as true, must...