Vicenty Martell v. Estado Libre Asoicado De P.R.

48 F.Supp.2d 81

Victor VICENTY MARTELL, et al., Plaintiffs, v. ESTADO LIBRE ASOCIADO DE PUERTO RICO, et al., Defendants.

No. Civ. 98-1352(SEC).

United States District Court, D. Puerto Rico.

March 29, 1999.

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George Uzdavinis-Velez, Mayaguez, Puerto Rico, for plaintiffs.

Gloria Robison-Guarch, Department of Justice, Federal Litigation Division, San Juan, Puerto Rico; Reynaldo J. Salas-Soler, Hato Rey, Puerto Rico, for defendants.

OPINION AND ORDER

CASELLAS, District Judge.

This is an action brought pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 — et seq.; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101—et seq.; the Civil Rights Act, 42 U.S.C. § 1983; the First, Fifth and Fourteenth Amendments to the United States Constitution; and various provisions of state law. Plaintiffs are Victor Vicenty Martell, his wife and their conjugal partnership. Named as defendants are the Commonwealth of Puerto Rico; the Puerto Rico Department of Education and its Secretary, Victor Fajardo; school district superintendent Gracia M. Ruiz de Talavera; the Puerto Rico Industrial Commission; and the Retirement Board for the School Teachers of Puerto Rico.

Pending before the Court are two separate motions to dismiss (Dockets # 8, 9), one by the Retirement Board; the other by the remaining co-defendants. Both remain unopposed. For the reasons set forth below, both motions to dismiss (Dockets # 8, 9) are hereby GRANTED IN PART and DENIED IN PART.

Background

After a strenuous effort to separate the wheat from the chaff, we summarize the pertinent facts of the complaint in the light most hospitable to plaintiffs as follows. Plaintiff Victor Vicenty Martell was employed for twenty-nine years by the Puerto Rico Department of Education. During the time of his employment, he held various positions, including one as a classroom teacher. Later, however, due to a "physical condition[,] he obtained reasonable accommodation," and was reassigned to an administrative position (Docket # 1 at ¶ 42). He worked at the Manuel A. Barreto Public School, located within the Mayagüez North I School District, which was under the direction of superintendent, and herein co-defendant, Ruiz de Talavera. Id. at ¶¶ 6, 10.

According to plaintiff, Ruiz de Talavera "took several discriminatory decisions against ... [him] because of ... [his] physical handicap[,] and ... deprived him of his reasonable accommodation." Id. at ¶ 42. He also claims that Ruiz de Talavera requested his early retirement from the Department of Education because of his age and physical handicap, and that she "discriminated against ... [him] when she took some decisions to deprive ... [him] from (sic) his civil rights." Id. at ¶ 21.

On May 28, 1992, at the age of fifty-five, plaintiff was allegedly forced to accept early retirement "under threat of termination[] by superiors and administrative officers of the ... Department of Education," solely on the basis of his age. Id. at ¶¶ 22-24, 28. He further asserts that he was "demot[ed] and discharg[ed] ... from [his] employment[,] because of ... [his] physical handicap or condition, and in retaliation for ... [his] complaints of defendant's discriminatory treatment of ... [him] to defendant and appropriate authorities, all while giving ... [him] pretextual or untrue reasons for the termination." Id. at ¶ 43.

Moreover, plaintiff claims that as part of their retaliatory actions, defendants "provid[ed] untrue, misleading and unfavorable references and employment recommendations to potential and prospective employers." Id. at ¶ 44. According to him, defendants still keep retaliating against him by interfering with an appeal which he has pending before the Puerto Rico Industrial Commission. This appeal arose from a decision issued by the Puerto Rico State Insurance Fund on October 15, 1990, in a proceeding initiated by plaintiff on March 30, 1990. He claims that defendants' "fault and negligence" has prompted the continuance of various hearings scheduled in connection with his appeal. He contends that defendants' "faults (sic) and negligent acts are part of the strategy used by the[m]¹ ... to keep discriminating against ... [him] because of his age, his physical handicap[,] and because he reported such negligent acts to the corresponding authorities." Id. at ¶ 21. Finally, plaintiff contends that he was discharged without just cause, notice, or hearing; and that the Retirement Board failed to recognize the effective date of his retirement until March 26, 1993. Id. at ¶¶ 21, 29.

The Retirement Board argues that plaintiff's allegations fail to state a claim upon which relief can be granted, essentially, because no employee-employer relationship existed or exists between them The Retirement Board also moves for dismissal based on res judicata and time-bar. The remaining co-defendants base their motion to dismiss on Eleventh Amendment grounds, lack of subject matter jurisdiction, statute of limitations, and failure to state a claim. They also move to dismiss the claims of plaintiff's wife and their conjugal partnership for lack of standing.

Applicable Law/Analysis

A. Motion to Dismiss Standard

In assessing whether dismissal pursuant Fed.R.Civ.P. 12(b)(6) for failure to state a claim is appropriate, "the trial court, must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998) (citations omitted). Thus, a dismissal for failure to state a claim is warranted "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). However, as the First Circuit has noted, "[a]lthough this standard is diaphanous, it is not a virtual mirage. 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, 25 (1st Cir.1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). 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." LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)).

In this case, we initially construe plaintiff's allegations as presenting claims for discriminatory constructive discharge in violation of the ADEA and the ADA, and retaliatory claims under both statutes. Inasmuch as defendants' arguments concerning res judicata, time-bar, and lack of subject matter jurisdiction are based on matters outside the complaint, we shall ignore them in our analysis. See Garita Hotel Limited Partnership, Etc. v. Ponce Federal Bank, 958 F.2d 15, 18 (1st Cir. 1992) (suggesting that in order to avoid conversion of a Rule 12(b)(6) motion into a Rule 56 motion, the trial court should expressly reject any supplementary materials filed by the moving party); see also Whiting v. Maiolini, 921 F.2d 5, 7 (1st Cir.1990) (holding that it is inappropriate to convert a Rule 12(b)(6) into a Rule 56 motion when nonmovant has not been afforded opportunity to respond to unannounced conversion, discovery has barely begun, and defendant has not answered the complaint); Maldonado v. Dominguez, 137 F.3d 1, 6 (1st Cir.1998) (in order to avoid conversion of a Rule 12(b)(6) motion into a Rule 56 motion, district court must ignore matters outside the pleadings); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997) (same); Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 177 (1st Cir.1997) (same); but see Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998) (determining documents that "defendant attaches to a motion to dismiss are considered a part of the pleadings if they are referred to in the plaintiff's complaint and are central to the claim.") (internal quotation marks and citation omitted).

B. The ADEA Claim

Under the ADEA, "the plaintiff bears the ultimate burden of proving that he would not have been fired but for his age." Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir.1997) (citation and internal quotation marks omitted). To establish a prima facie case of age discrimination in violation of the ADEA, the aggrieved party must establish that he or she: (i) was within the protected age group; that is, over forty years of age; (ii) met the employer's employment expectations; (iii) was actually or constructively discharged; and (iv) that the employer sought a replacement with roughly similar skills or qualifications. See id.; see also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993); Mesnick v. General Electric Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); Hidalgo v. Overseas-Condado Insurance Agencies, Inc., 929 F.Supp. 555, 559 (D.P.R.1996) (Casellas, J.), aff'd, 120 F.3d 328 (1st Cir. 1997).

In this case, plaintiff was not dismissed outright; he was allegedly forced to accept early retirement under threat of termination. To satisfy the third element of the prima facie case standard, he would need to show that he was constructively discharged. See Vega, 3 F.3d at 479. In cases involving an employer's offer for early retirement, "an ADEA plaintiff claiming that he was, in effect, fired by being forced into retirement must show that his employer's `offer' was but an empty sham masking its...