PEREZ v. COOPERATIVA DE SEGUROS

Full title: YADIRA PEREZ, ET AL., Plaintiff, v. COOPERATIVA DE SEGUROS DE VIDA DE…

Court: United States District Court, D. Puerto Rico

Date published: Jun 1, 2004

Civil No. 03-2066 (HL) (D.P.R. Jun. 1, 2004)

Opinion

Civil No. 03-2066 (HL).

June 1, 2004

REPORT AND RECOMMENDATION INTRODUCTION

CAMILLE L. VELEZ-RIVE, Magistrate Judge

Plaintiffs filed this action seeking damages against the above employer and against individual co-defendants pursuant to Title VII of the Civil Rights Act of 1964, as amended, and supplemental jurisdiction over pendent state claims. Co-defendants Alba Cosme and Evelyn Burgos filed a Motion to Dismiss on grounds there is no individual liability under Title VII and thus, no cause of action as to them ( Docket No. 9). Co-defendants Andrés Rodríguez and José A. Brull joined said request for dismissal ( Docket No. 11, 12). Plaintiffs filed their opposition sometime thereafter and the issues raised therein, as well as in co-defendants' reply, are thus discussed below ( Docket No. 23, 24). The matter was referred to this Magistrate Judge for report and recommendation.

DISMISSAL STANDARD (Rule 12(b)(6))

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may, in response to an initial pleading, file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Still, "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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957); see Miranda v. Ponce Fed. Bank, 948 F.2d 41 (1^st Cir. 1991).

The Court must accept as true "all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiff's favor." Aulson v. Blanchard, 83 F.3d 1, 3 (1^st Cir. 1996). A complaint must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory."Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 28 n. 2 (1^st Cir. 1996) ( quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1^st Cir. 1988)). The Court, need not accept a complaint's "`bald assertions' or legal conclusions" when assessing a motion to dismiss. Abbott, III v. United States, 144 F.3d 1, 2 (1^st Cir. 1998) ( citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1^st Cir. 1996)).

Dismissal of Title VII Actions — Filing a claim with EEOC.

There are several requirements that a plaintiff must meet, pursuant to Title VII, prior to filing suit in federal court. See 42 U.S.C. § 2000e-5. For example, a plaintiff must file a timely Equal Employment Opportunity Commission ("EEOC") charge against the discriminatory party and receive notice of a right to sue. Id. In addition, a plaintiff generally may not maintain a suit against a defendant in federal court if that defendant was not named in the administrative proceedings and offered an opportunity for conciliation or voluntary compliance. 42 U.S.C. § 2000e-5(f) ("civil action may be brought against the respondent named in the charge"). McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 504 (1^st Cir. 1996).

The complaint in this case indicates that plaintiff filed a claim with the Puerto Rico Anti-Discrimination Unit of the Labor and Human Resources Department, which is the corresponding state agency that has been delegated the tasks of the EEOC. Co-defendants have not raised any issue in regard to compliance with the fulfillment of the requirements for this kind of claims.

Dismissal as to Co-defendants for Lack of Individual Liability under Title VII.

Above co-defendants asked this Court to dismiss plaintiffs' Title VII claims against them on the basis that Title VII does not provide for individual liability.¹ The First Circuit has yet to resolve the issue of individual liability in Title VII cases although other circuits courts have determined there is no such liability.²

1 Plaintiffs' opposition was due, as a last extension granted by the Court, on May 7, 2004. It was filed the next working day May 10, 2004, and has been duly considered (Docket No. 23).

2 See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2^nd Cir. 2003); Emerson v. Thiel College, 296 F.3d 184, 190 (3^rd Cir. 2002); Williams v. Banning, 72 F.3d 552, 554 (7^th Cir. 1995); Wathen v. General Elec. Co., 115 F.3d 400, 405 (6^th Cir. 1997); Haynes v. Williams, 88 F.3d 898 (10^th Cir. 1996); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9^th Cir. 1998).

Nonetheless, numerous cases in the District of Puerto Rico have already determined that no personal liability exists under Title VII and that individual defendants are not liable under Title VII. See Vélez Sotomayor v. Progreso Cash Carry, Inc., 279 F. Supp.2d 65 (D. Puerto Rico 2003); Serapión v. Martínez, 119 F.3d 982 (1^st Cir. 1997); Padilla-Cintrón v. Rossello-González, 247 F. Supp.2d 48 (D. Puerto Rico 2003);Canabal v. Aramark Corp., 48 F. Supp. 2d 94, 95-98 (D. Puerto Rico 1999); Acevedo-Vargas v. Colón, 2 F. Supp.2d 203, 206 (D. Puerto Rico 1998); Pineda v. Almacenes Pitusa, Inc., 982 F. Supp. 88, 92-93 (D. Puerto Rico 1997); Hernández v. Wangen, 938 F. Supp. 1052 (D. Puerto Rico 1996); Anonymous v. Legal Services Corp., 932 F. Supp. 49, 50-51 (D. Puerto Rico 1996). And see Nieves v. Puerto Rico, 2003 WL 22316560 (D. Puerto Rico 2003); López Hernández v. Municipality of San Juan, 206 F. Supp.2d 243 (D. Puerto Rico 2002); Olivo González v. Teachers' Retirement Board, 208 F. Supp.2d 163 (D. Puerto Rico 2002); Castro Ortiz v. Fajardo, 133 F. Supp.2d 143 (D. Puerto Rico 2001).

In accordance with the precedent of this District and the rationale exposed in above cases, it is recommended that co-defendants' request for dismissal for lack of individual liability under Title VII BE GRANTED.

Alter Ego Doctrine.

Plaintiff's claims under Title VII as to these co-defendants should also be dismissed since, contrary to averments in the opposition, co-defendants are not considered employers within the meaning of Title VII and, as above discussed, Title VII does not provide for individual liability. Neither the Supreme Court of the United States nor the First Circuit Court of Appeals have rendered a decision excluding individual liability under Title VII.

Section 703(a) of Title VII states that:

[i]t shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2 (emphasis added).

Title VII's coverage has been extended to proscribe sexual harassment in the workplace. Acevedo Vargas v. Colón, 2 F. Supp.2d 203, 205 (D. Puerto Rico 1998) (referring to the EEOC guidelines which establish the criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment for purposes of Section 703 of Title VII). Therefore, Title VII is the applicable federal cause of action addressing claims for sexual harassment in the workplace.

Because Title VII is directed at "employers," determining the meaning of this term is essential. Title VII defines employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day and any agent of such person." 42 U.S.C. § 2000-e. Therefore, because "individual capacity" above co-defendants are not the employing entity, it should be determined whether they can be held liable as agents of the employing entity. Rivera Rodríguez v. Police Dept. of Puerto Rico, 968 F. Supp. 783, 785 (D. Puerto Rico 1997);Anonymous v. Legal Services Corporation of Puerto Rico, 932 F. Supp. at 50 (D. Puerto Rico 1996) (stating that "resolution of the [individual liability] question depends on how the `and any agent' language is interpreted.").

Numerous Circuit Courts of Appeals have held that no personal liability can be attached to agents or supervisors under Title VII. Serapión, 119 F.3d at 982( declining to address the issue of individual liability); see Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7^th Cir. 1998) ( citing Williams v. Banning, 72 F.3d 552 (7^th Cir. 1995), where no individual liability under Title VII was found); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4^th Cir. 1998) ( finding no individual liability under Title VII);Wathen v. General Elec. Co., 115 F.3d 400, 405-06 (6^th Cir. 1997) ( same); Haynes v. Williams, 88 F.3d 898 (10^th Cir. 1996) ( same); Dici v. Com. of Pa., 91 F.3d 542 (3^rd Cir. 1996) ( same); Tomka v. Seiler Corp., 66 F.3d 1295 (2^nd Cir. 1995) ( same); Gary v. Long, 59 F.3d 1391 (D.C. Cir. 1995) ( same); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8^th Cir. 1995) ( same); Smith v. Lomax, 45 F.3d 402 (11^th Cir. 1995) ( same); Grant v. Lone Star Co., 21 F.3d 649 (5^th Cir. 1994) ( same); Miller v. Maxwell's International, Inc., 991 F.2d 583 (9^th Cir. 1993) ( same).

Consonant with the majority of the Circuit Courts, the District of Puerto Rico has generally held that individual defendants are not liable under Title VII. See above cited cases.

This Magistrate Judge agrees with the reasoning of previous decisions within this District insofar that Title VII's statutory structure suggests that Congress did not intend to impose individual liability over supervisors or agents of employers. Had Congress intended to hold individuals liable, it would have addressed the actions and conditions that would subject them to liability. Canabal, 48 F. Supp.2d at 96. Tasks mandated to employers under Title VII are applicable to the corporate entities and not to individual supervisors. See Hernández, 938 F. Supp. at 60 ( noting that tasks such as maintaining records that shed light on potential unlawful employment practices and posting notices about the provisions of Title VII in conspicuous places on the work premises are undoubtedly tasks associated with corporate entities, not individuals.). Therefore, because Title VII is mostly structured to guide an employer's behavior, the Court finds that Title VII does not provide for individual liability.

The alter ego doctrine falls within a more nuanced set of rules in a suit against a supervisor who is so closely connected to a corporate employer as to be considered its alter ego. See Harrison v. Netcentric Corp., 433 Mass. 465, 744 N.E.2d 622, 632-633 (2001) ( observing, in dictum, that courts frown upon a "tortious interference claim against an individual decision maker who is indistinguishable from the corporation itself"); Schinkel v. Maxi-Holding, Inc., 30 Mass.App.Ct. 41, 565 N.E.2d 1219, 1225 (1991) ("Conceivably, one in the position of chief executive officer . . . might be so closely identified with the corporation itself, and with its policies, that he should not be treated as a third person in relation to corporate contracts, susceptible to charges of tortious interference when he causes the corporation to breach its contractual obligations."). Zimmerman v. Direct Federal Credit Union, 262 F.3d 70, 76 (1^st Cir. 2001).

This Magistrate Judge takes notice that plaintiffs have presented a generalized "alter-ego" exception in their opposition to dismissal as to a ruling against individual liability under Title VII. However, plaintiffs' discussion succinctly names the existence of such exception and then claims that plaintiffs are not obliged to unveil all of the uncontested facts and have the right to discover additional uncontested facts to establish the individual defendants' control over the employing entity.³ This approach is insufficient to defeat a well-pleaded request for dismissal as asserted by co-defendants as to the federal claim under Title VII.

3 The allegations in the complaint refer to codefendant Rodríguez as the Assistant to the Vice President of Medicare; codefendant Cosme as the Assistant to the Vice President and/or Assistant to the Vice President Operations Medicate; codefendant Brull as Vice President of Medicare; and codefendant Burgos as the Human Resources Director.

Dismissal of Pendent State Claims.

Plaintiffs have also submitted that, even if no federal cause of action survives, the pendent state claims should remain in this federal forum against co-defendants.

Pendent jurisdiction exists whenever there is a claim arising under the Constitution, the Laws of the United States, and treaties made under their authority and the relationship between that claim and the state claim can be found to constitute, but one constitutional case. The state claims must be linked to the federal claim by a "common nucleus of operative facts", and must be sufficiently substantial to confer federal court jurisdiction.United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138 (1966); Confederación Laborista De Puerto Rico v. Cervecería India, Inc., 607 F. Supp. 1077, 1081 (D. Puerto Rico 1985).⁴

4 See Ponce Federal Bank v. The Vessel "Lady Abby", 980 F. Supp56 (1^st Cir. 1992) (Nonfederal claim against a person not otherwise a party in a case is sufficiently related to an admiralty claim to permit assertion of pendent party jurisdiction if state law claim against additional party arises out of common nucleus of operative facts with admiralty claim and resolution of factually connected claims in single proceeding would further interests of conserving judicial resources and fairness to parties).

In Gibbs, 383 U.S. at 726, the Supreme Court ruled that a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1^st Cir. 1995).

Since the exercise of pendent jurisdiction is discretionary, and any remaining federal claims in this litigation would be related to other co-defendants, upon an assessment of judicial economy and fairness to litigants, this Court should not exercise jurisdiction as to co-defendants' claims under state law.

Thus, it is recommended that pendent state claims against above co-defendants BE DISMISSED.

Plaintiffs' Claim for Attorney's Fees.

Additionally, co-defendants' request for attorneys' fees against plaintiff SHOULD BE DENIED since the issues submitted in the complaint have not been clearly determined at appellate level and the lawsuit as presented does not seem to be unfounded nor frivolous. See Top Entertainment Inc. v. Torrejon, 351 F.3d 531 (1^st Cir. 2003) ( discussing the district court not imposing fees for being obstinate or frivolous, since the sanction of dismissal imposed by the district court was alone enough when the dismissal did not purport to be related to Rule 44.1(d) which embodies a policy judgment by the Puerto Rico legislature that obstinate and frivolous actions require the imposition of some attorney's fees as a sanction).

CONCLUSION

It sum it is recommended that the Motion to Dismiss filed by co-defendants Andrés Rodríguez, José Brull, Alba Cosme and Evelyn Burgos BE GRANTED ( Docket No., 11, 12); that pendent state claims against above co-defendants BE DISMISSED ( Docket No. 1, 23); and that said co-defendants' request for attorneys' fees against plaintiff ( Docket No. 9, 11, 12) BE DENIED.

IT IS SO RECOMMENDED.

The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1^st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").