Vizcarrondo v. Board of Trustees of Univ. Of P.R.

139 F.Supp.2d 198

Dr. Roberto VIZCARRONDO v. BOARD OF TRUSTEES OF THE UNIVERSITY OF PUERTO RICO, et al.

No. CIV. 99-1225(DRD).

United States District Court, D. Puerto Rico.

March 21, 2001.

COPYRIGHT MATERIAL OMITTED

Jorge A. Antongiorgi, Henry O. Freese-Souffront, Ruben T. Nigaglioni, McConnell Valdes, San Juan, PR, for defendants.

Roberto Vizcarrondo, San Juan, PR, pro se.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Pending before the Court is defendants, Norman Maldonado, George Hillyer, Pedro Santiago and Fernando Gallardo's Motion to Dismiss filed on April 20, 2000. (Docket No. 31). The motion was duly opposed by plaintiff on June 26, 2000. (Docket No. 40). In the motion to dismiss, defendants aver that plaintiff's claims should be dismissed because: 1) plaintiff is barred from asserting a cause of action for monetary damages under the American with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"); 2) Eleventh Amendment immunity impedes plaintiff from maintaining a cause of action against the state, a state agency or a state official acting in his official capacity under 42 U.S.C. §§ 1981, 1981a, 1983 and 1988; and 3) plaintiff has failed to establish a cause of action against defendants for which relief can be granted under the ADA, ADEA, Title VII, §§ 1981, 1983, 1988 and Puerto Rico anti-discrimination laws. For the following reasons, defendants' Motion to Dismiss is GRANTED in part and DENIED in part.

I. MOTION TO DISMISS STANDARD

When deciding a Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) the Court must accept as true all well-pleaded factual claims, and indulge all reasonable inferences in the plaintiff's favor. Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). Dismissal is appropriate only when the facts alleged, taken as true, do not justify recovery for the plaintiff. Fed.R.Civ.P. 12(b)(6). Thus, in order to survive a motion to dismiss, plaintiffs must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988). Although all inferences must be made in the plaintiffs' favor, this court need not accept "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson, 83 F.3d at 3.

Moreover, when considering a motion to dismiss under Rule 12(b)(6) "our focus [must be] limited to the allegations of the complaint." Litton Indus., Inc. v. Colón, 587 F.2d 70, 74 (1st Cir.1978)(internal quotations omitted). Specifically, the inquiry should be "whether a liberal reading of [the complaint] can reasonably admit of a claim ...." Id.; see also Doyle, 103 F.3d at 190. In Wagner v. Devine, 122 F.3d 53 (1st Cir.1997), the First Circuit held that a Court must "affirm a dismissal for failure to state a claim only if it clearly appears that, on the facts alleged, the plaintiff cannot recover on any viable theory." Id. at 55. The Supreme Court decades ago explained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that

[i]n appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Id. at 45-46, 78 S.Ct. 99. With this standard in mind, all of the facts alleged in the complaint are accepted as true. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989); Gooley, 851 F.2d at 514. The Court will now address defendants' allegations.

II. DISCUSSION

A. Plaintiff's Claims Under the ADA and the ADEA Against the Board of Trustees and Other Named Defendants in Their Official Capacity

Defendants aver that plaintiff is barred from asserting claims under the ADA and ADEA against defendants, because such claims are foreclosed by Eleventh Amendment immunity. (Docket No. 31). The Court agrees. The Eleventh Amendment bars suits brought in federal courts for monetary damages against states, unless the state being sued waives its immunity or consents to be sued. See e.g. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Supreme Court in the case of Kimel v. Florida Board of Regents, 528 U.S. 62, 92, 120 S.Ct. 631, 650, 145 L.Ed.2d 522 (2000), held that "the ADEA does not validly abrogate the States' sovereign immunity." Further, the Supreme Court recently addressed the issue of the States' Eleventh Amendment immunity as applied to the ADA and concluded that "Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I." Board of Trustees of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 967, 148 L.Ed.2d 866 (2001).

The Commonwealth of Puerto Rico is considered a state for purposes of the Eleventh Amendment. See Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct & Sewer Auth., 991 F.2d 935, 939 n. 3 (1st Cir.1993). Further, the First Circuit Court of Appeals and the District Court of Puerto Rico have consistently determined that the University of Puerto Rico is an instrumentality of the Commonwealth of Puerto Rico and as such is protected from suit in federal courts by the Eleventh Amendment. See Pinto v. Universidad De P.R., 895 F.2d 18 (1st Cir.1990) ("University is an arm of the state within the purview of the Eleventh Amendment.... University cannot be held liable for damages is clear."); Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir.1978) ("University is sufficiently an "arm" of the state, ... to be immune from damage suits under the Eleventh Amendment."). Llewellyn-Waters v. University of Puerto Rico, 56 F.Supp.2d 159 (D.P.R.1999); Dogson v. University of Puerto Rico, 26 F.Supp.2d 341, 343-44 (D.P.R.1998); Amelunxen v. University of Puerto Rico., 637 F.Supp. 426, 434 (D.P.R.1986).

Moreover, contrary to what plaintiff avers in the opposition, the fact that the University has the power "[t]o sue and be sued," P.R. LAWS ANN. tit. 18 § 852f(13) (1993), does not strip the University of its Eleventh Amendment immunity. See In re San Juan Dupont Plaza Hotel Fire Litig., 888 F.2d 940, 944-45 (1st Cir.1989). As stated in Lebrón v. Ashford Presbyterian Community Hospital, 975 F.Supp. 407, 409 (D.P.R.1997), "the Board of Trustees ("Junta de Sindicos") of the UPR is composed of several members who are all appointed by the Governor with the advise and consent of the Senate of Puerto Rico. Id., § 602(a)(b)(1)." Finally, the University of Puerto Rico is an instrumentality of the Commonwealth of Puerto Rico, in light of its financial and political dependence on the Commonwealth's government, thus making it an "arm" of the state entitled to Eleventh Amendment immunity. Pinto v. Universidad De Puerto Rico, 895 F.2d 18 (1st Cir.1990); Silva v. Universidad de Puerto Rico, 834 F.Supp. 553, 556 (D.P.R.1993).

Similarly, defendants Norman Maldonado, President of the University of Puerto Rico, George Hillyer, Chancellor of the University of Puerto Rico, Pedro Santiago, Chancellor of the University of Puerto Rico, and Fernando Gallardo, Chancellor of the University of Puerto Rico Regional Colleges Administration, are also shielded from liability by the state's Eleventh Amendment immunity when sued in their official capacities. See Suárez Cestero v. Pagán Rosa, 996 F.Supp. 133, 142 (D.P.R.1998). Therefore, plaintiff's causes of action against the Board of Trustees and other co-defendants in their official capacities under the ADA and the ADEA for monetary damages must be DISMISSED.

The only remaining claims under the ADA and ADEA against the Board of Trustees and other named co-defendants in their official capacity are the ones seeking equitable relief (requesting "hiring, promotion and tenure" from defendants). Equitable relief is an authorized remedy, notwithstanding Eleventh Amendment barring applicability of ADA and ADEA to the states under Kimel, 528 U.S. at 92, 120 S.Ct. at 650 and Garrett, 531 U.S. 356, 121 S.Ct. 955, 967.¹

B. The Title VII Claim

"The Supreme Court has held that damages actions may be maintained under Title VII against a state, reasoning that Title VII's express authorization of damages actions against a state abrogates the eleventh amendment barrier." Lipsett v. University of Puerto Rico, 864 F.2d 881, 885 (1st Cir.1988) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). However, plaintiff has failed to plead a cause of action against defendants under Title VII.

Pursuant to Rule 12(b)(6), in order to survive a motion to dismiss, plaintiff must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988). "[P]laintiffs [cannot] skirt their failure to earmark half-truths by hiding the procedural swaddling of Rule 12(b)(6)." Gooley, 851 F.2d at 514. Moreover, "[a]lthough the pleading threshold is low, `it is real-and it is the plaintiff's burden to take the step which brings this case safely into the next phase of the litigation." Royal Business Group, Inc., 933 F.2d at 1065 (citing Gooley, 851 F.2d at 514).

"Complaints based on civil rights statutes must do more than state simple conclusions; they must at least outline facts constituting the alleged violation." Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (emphasis added). The plaintiff must allege enough facts, which at the very least give rise to an inference of discriminatory animus. See Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982). Broadly speaking, Title VII outlaws discrimination based on race, color, religion, gender, or national origin. See 42 U.S.C. § 2000e. However, nowhere in the complaint or plaintiff's opposition is there any...