Opinion
CIVIL 15-2073CCC
08-17-2016
Ashley MERCADO-APONTE, Plaintiff v. MED HEALTH HOSPICE, CORP.; Jefferson Miranda; Lourdes Cordero; Luis Montalvo; Karinell Montalvo; Kathia Montalvo, Defendants
For Plaintiff: María Elena Margarida-Franco, P.O. Box 270421, San Juan, PR 00928, Tel. 787-754-9100, 787-646-2569, Fax: 787-766-5551, Juan R. González-Muñoz, González Muñoz Law Offices, P.S.C., P.O. Box 9024055, San Juan, PR 00902-4055, Tel. 787-766-5052, Fax: 787-766-5551 For Defendants: Juan M. Frontera-Suau, Ufret & Frontera Law Firm, Capital Center Bldg, Suite 305, 239 Arterial Hostos Ave., San Juan, PR 00918-1475, Tel. 787-250-1420, Fax: 787-763-3286, Sonia B. Alfaro-de la Vega, Yasmin R. Vazquez-Vazquez, Alfaro & Vazquez Law Offices, PMB 254, 405 Ave. Esmeralda, Suite 2, Guaynabo, PR 00969-4427, Tel. (787) 294-9165, Fax: (787-294-9165, Alberto R. Estrella-Arteaga, Baerga & Quintana Law Office, Union Plaza Bldg., 416 Ponce de Leon Ave., Suite 810, San Juan, PR 00918-3426, Tel. 787-751-8999, Fax: 787-763-7760
For Plaintiff: María Elena Margarida-Franco, P.O. Box 270421, San Juan, PR 00928, Tel. 787-754-9100, 787-646-2569, Fax: 787-766-5551, Juan R. González-Muñoz, González Muñoz Law Offices, P.S.C., P.O. Box 9024055, San Juan, PR 00902-4055, Tel. 787-766-5052, Fax: 787-766-5551
For Defendants: Juan M. Frontera-Suau, Ufret & Frontera Law Firm, Capital Center Bldg, Suite 305, 239 Arterial Hostos Ave., San Juan, PR 00918-1475, Tel. 787-250-1420, Fax: 787-763-3286, Sonia B. Alfaro-de la Vega, Yasmin R. Vazquez-Vazquez, Alfaro & Vazquez Law Offices, PMB 254, 405 Ave. Esmeralda, Suite 2, Guaynabo, PR 00969-4427, Tel. (787) 294-9165, Fax: (787-294-9165, Alberto R. Estrella-Arteaga, Baerga & Quintana Law Office, Union Plaza Bldg., 416 Ponce de Leon Ave., Suite 810, San Juan, PR 00918-3426, Tel. 787-751-8999, Fax: 787-763-7760
ORDER
CARMEN CONSUELO CEREZO, United States District Judge
This is an action seeking damages for alleged acts of sexual harassment in the employment brought by plaintiff Ashley Mercado-Aponte against her employer Med Health Hospice, Corp. (Med Health), Med Health's owner Luis Montalvo, its medical director Karinell Montalvo, its human resources director Kathia Montalvo, its quality director Lourdes Cordero (Cordero) and the alleged harasser Jefferson Miranda under Title VII and Puerto Rico Laws 17, 69 and 80. Before the Court now is the Motion to Dismiss filed by defendants Med Health, the Montalvos and Cordero on October 30, 2015 (d.e. 17 ), which plaintiff opposed on November 13, 2015 (d.e. 21).
All movants seek dismissal of the Title VII sexual harassment claim alleging that it was based on a sole isolated incident insufficient to withstand a sexual harassment hostile environment prima facie case. Premised on the dismissal of the sole federal claim, they also move for dismissal of the supplemental law claims. Additionally, the Montalvos and Cordero seek dismissal of all the claims filed against them averring that no personal liability attaches under any of the federal or local statutes invoked and that no administrative remedies were exhausted against them.
As held by the Court of Appeals in Fantini v. Salem State Coll. , 557 F.3d 22, 30 (1st Cir. 2009), "[t]he statutory scheme [of Title VII] itself indicates that Congress did not intend to impose individual liability on employees." Accordingly, the Title VII claims against the individual defendants are DISMISSED, with prejudice.As to the retaliation claims under Title VII and Laws 17 and 69 asserted in the Third Cause of Action of the complaint (d.e. 1, at p. 12), the same are DISMISSED for lack of a factual foundation.
As for the request that the remaining Title VII claim for sexual harassment against defendant Med Health be dismissed for lack of factual allegations supporting such a claim under the hostile work environment modality, having reviewed the complaint's allegations, the same is DENIED. As the Title VII sexual harassment claim against Med Health has survived, the request for dismissal of the supplemental state law claims against said defendant is also DENIED.
As to the issue of whether the three Montalvo defendants and Cordero are personally liable under Laws 17, 69 and 100, Puerto Rico laws against discrimination and sexual harassment in the workplace, the same was adjudicated in Rosario – Toledo v. Distribuidora Kikuet , Inc., 151 D.P.R. 634 (2000). The plaintiff, Keila Rosario-Toledo, was employed by Distribuidora Kikuet, Inc. and her alleged sexual harasser was Enrique Mangual-Flores, the president and/or owner of that corporation. The Court reviewed the statutory definitions of "employer" provided in Law 17, 29 L.P.R.A. § 155a (sexual harassment at the workplace), in Law 69, 29 L.P.R.A. § 1322(2) (sex discrimination) and in Law 100, 29 L.P.R.A. § 151–2 (discrimination in employment). All of these definitions of the term "employer" include any natural or juridical person who employs personnel, workers or employees and their agents, officials, administrators, supervisors or representatives of such natural or juridical person. The Court defined the controversy before it as follows: "whether the term "employer" includes its agents, officials, administrators and supervisors, among other persons who form part of the enterprise, when it is alleged ... and subsequently proven, that these incurred in the conduct prohibited by these statutes." The Court described the issue as one strictly of law. It understood defendant Mangual's principal thesis to be that "the Puerto Rico Legislative Assembly did not intend to hold agents or supervisors of an enterprise liable for acts of discrimination by them under Laws 17, 69 and 100 ... claiming that the doctrine adopted by the Legislature was that the employer would respond exclusively for the acts of discrimination committed by its employees, agents and supervisors and that, consequently, the employees, agents and supervisors would not answer for these acts even when these are committed by them." [Translation ours.] The Court answered that the law was clear and free of all ambiguity. Specifically referring to Laws 17, 69 and 100, it stated that their plain language "prohibited harassment and sexual discrimination in the workplace and imposed responsibilities and penalties to the employer; that its definitions of "employer" include its supervisors, officials, administrators and agents and reflect the unequivocal intention of the Legislative Assembly to hold them responsible for acts of sexual harassment in the workplace when such acts are committed by them." Defendant Mangual, the president and principal stockholder of the corporation that employed the plaintiff, was ruled to be an employer within the meaning of Laws 17, 69 and 100 and, as such, was liable in his personal capacity for his own acts of sexual harassment. It commented that it would be inconsistent, on the one hand, to interpret the statutory definition as imposing sole responsibility upon the employer or owner of the enterprise for the acts of sexual harassment committed by his supervisor, officials, administrators and agents while, on the other hand, giving immunity to his supervisors, officials, administrators and agents despite the fact that they are the direct perpetrators of the harm. It further stated that the lawmakers made the employer or owner of the enterprise responsible for the sexual harassment acts of his supervisors, officials, administrators and agents to foster the employer's affirmative and active participation towards ensuring a work environment of respect and dignity towards the worker but that the lawmaker could not simultaneously have had the intention of promoting behavior that is proscribed by the statute by way of granting immunity to the supervisors, officials, administrators and agents of the employer so that they could engage in such behavior with impunity. The Court then referred that it is precisely because of this that the Legislature provided in Article 11 of Law 17 that "any person responsible for sexual harassment in the workplace, as defined in Articles 1 to 13 of this Law, shall incur in civil liability," meaning that this provision is not limited to the employer or owner of the enterprise but extends to any person liable for such conduct without distinction. The Kikuet II, Rosario Toledo v. Distribuidora Kikuet , 153 D.P.R. 125 (2000), in which a resolution was entered denying Mr. Mangual's motion for reconsideration, did not alter in any manner the holding in Kikuet I.
This interpretation was fully adopted in this District in Rivera – Maldonado v. Hospital Alejandro Otero – López , 614 F.Supp.2d 181 (D.P.R. 2009). There the Court, at p. 197, concluded the following: "After a comprehensive reading of Kikuet , we find that the Court's imposition of personal liability is on the supervisor that actually commits the act of discrimination or sexual harassment." In that case, the complaint alleged that Rivera-Maldonado had been sexually harassed at work by her supervisor, Pedro Delgado. With regard to personal liability, the Court dismissed the claims against the Director of Human resources, Nilda Paravisini, and the Hospital's medical director, Carlos Disdier, because it was uncontested that neither committed acts of sexual harassment against the plaintiff. The Court found that pursuant to Kikuet , under Puerto Rico Laws Nos. 17, 69 and 100 plaintiff's claim of sexual harassment would have only prospered against the supervisor Pedro Delgado who was the one who incurred in the proscribed conduct.
In the case before us, none of the defendants mentioned before—Luis Montalvo, Karinell Montalvo, Kathia Montalvo, and Lourdes Cordero—incurred in any acts of sexual harassment. There are no allegations whatsoever of that sort made by plaintiff Mercado-Aponte in her complaint. Accordingly, all claims of sexual harassment pursuant to Laws 17, 69 and 100 against these defendants are also DISMISSED, with prejudice.
As to the Law 80 claims, the same are also DISMISSED against the Montalvos and Cordero under Miró – Martínez v. Blanco Vélez Store, Inc. , 393 F.Supp.2d 108, 115 (D.P.R. 2005), which invoked Flamand v. American Intern. Group, Inc. , 876 F.Supp. 356, 364 (D.P.R. 1994), where it was held that supervisors are not employers under Puerto Rico Law 80.
In light of the above, defendant's Motion to Dismiss (d.e. 17 ) is DENIED as to the claims for sexual harassment brought against defendant Med Health Hospice, Corp. under Title VII and Puerto Rico Laws 17, 69, 100 and 80. It is GRANTED, and partial judgment will be entered accordingly, as to the claims for retaliation under Title VII and Laws 17 and 69, and all claims under Title VII and Laws 17, 69, 100 and 80 brought against individual defendants Luis Montalvo, Karinell Montalvo, Kathia Montalvo, and Lourdes Cordero.
SO ORDERED.