Abreu v. Oquendo-Rivera

• Decision Date: 09 August 2010
• Docket Number: Civil No. 09-1652 (FAB)
• Citation: 729 F.Supp.2d 498
• Parties: Leyda MULERO ABREU, et al., Plaintiffs, v. Sergeant Luis J. OQUENDO-RIVERA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

729 F.Supp.2d 498

Leyda MULERO ABREU, et al., Plaintiffs,

v.Sergeant Luis J. OQUENDO-RIVERA, et al., Defendants.

Civil No. 09-1652 (FAB).

United States District Court, D. Puerto Rico.

Aug. 9, 2010.

Frank D. Inserni-Milam, Frank D. Inserni Law Office, San Juan, PR, for Plaintiffs.

Yadhira Ramirez-Toro, Department of Justice, San Juan, PR, for Defendants.

OPINION AND ORDER ¹

BESOSA, District Judge.

On November 17, 2009, Leyda Mulero-Abreu ("Mulero"), her husband, VictorReyes-Raspaldo ("Reyes"), and their conjugal partnership, (collectively referred to as "plaintiffs"), filed an amended complaint against defendants ² both in their personal and official capacities as members of the Puerto Rico Police Department ("PRPD"). (Docket No. 3.) Plaintiffs allege violations under Title VII of the Civil Rights Act for gender discrimination and sexual harassment, hostile work environment and retaliation. Pursuant to 42 U.S.C. § 1983 (" section 1983"), the plaintiffs also contend that defendants subjected them to violations of the First, Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. Plaintiffs further claim violations under articles 1802 and 1803 of the Civil Code as well as the special labor laws of Puerto Rico that prohibit discrimination at the workplace, and "any and all Puerto Rico legislation granting a cause of action for reprisals suffered by a 'whistleblower' of personnel and work related incidents of discrimination and harassment." ( Id.)

On February 16, 2010, defendants moved to dismiss the claims pursuant to section 1983 and the Whistleblower Protection Act of 1989 for failure to state a claim pursuant to Rule 12(b)(6). (Docket No. 12 at 2.) Plaintiffs opposed the motion to dismiss. (Docket No. 23.) For the reasons discussed below, the Court GRANTS in part and DENIES in part defendants' motion to dismiss.

FACTUAL BACKGROUND

The Court draws the following facts from the plaintiffs' forty-eight page amended complaint, (Docket No. 3), and takes them as true for the purpose of resolving defendants' motion:

Plaintiff Mulero is a policewoman currently working for the PRPD and is married to plaintiff Reyes. (Docket No. 3 at 4.) Mulero began working as an investigator for the PRPD in its Property Division in 1996; she has been transferred on at least five occasions from one division to another, including robbery, property, juvenile affairs and special services. Id. at 11. None of the transfers was requested by Mulero. Id. at 11-12. In 2006, defendant Sergeant Luis J. Oquendo ("Oquendo"), who worked in the same division as Mulero, told her that she was "hot" and placed his right hand on her left thigh. Id. at 12. In April, 2006, Oquendo told Mulero, "I dare to be with you if you give me an opportunity without anybody else knowing, just you and me." ³Id. In August, 2006, Oquendo commented that he would "justify" two negative memoranda regarding Mulero's low percentage in solving cases and that he was willing to assign her "fewer complaints" if she would go out with him. Id. at 12-13. In November, 2007, Oquendo made a comment to Mulero and her fellow officer, Christine Miller-Colon("Miller"), openly referring to his penis, and in December of that year he tried to kiss and hug Mulero. Id. In 2008, Oquendo told Mulero that her pants looked very good on her and made a comment "referring to the female organ exhibited by tight pants." Id. at 15.

On March 21, 2008, Mulero and Miller went to a restaurant business called "El Barril" in Piñones, regarding a recent theft. (Docket No. 3 at 16.) The two women stayed for lunch; after lunch, another patrol car, driven by Captain Mario Rivera ("Captain Rivera"), arrived and parked behind the vehicle assigned to Mulero and Miller. Id. Captain Rivera told Mulero that Miller and Mulero were prohibited from moving the patrol vehicle assigned to them because they were drunk. Id. at 17. Plaintiffs' amended complaint states, "[u]pon such unsupported and frivolous accusation, plaintiff Mulero asked Captain Rivera, 'are you going to take us and have the pertinent test made to determine whether we are in fact intoxicated or not?' " Id. Captain Rivera replied that the two women "have an abandonment of service [sic] and ... are drunk and ... are not going to drive the patrol car." Id. After Captain Rivera asked Mulero and Miller for their names and other information, Miller asked Captain Rivera for his name and his badge number. Id. Captain Rivera answered in pertinent part, "I don't have to give you any information, you are insubordinate and I am a higher official, if you continue talking you are going to make things worse." Id. Captain Rivera then told Oquendo to come to Piñones "because these women are drunk and they cannot drive the patrol car...." Id. at 18. On the phone, Miller told Oquendo, "[w]e want you to have us blow because we have not been drinking." Id.

After Oquendo arrived with two other agents and spoke with Captain Rivera, he approached Mulero and "forcibly" took the patrol car keys from her hands. (Docket No. 3 at 18.) He also told Miller, "let's go" and "get in the patrol car." Id. Mulero and Miller were ordered to get into the car with Agent Torres to be taken to a police precinct. Id. at 19. At the precinct, Inspector Fausto Morales did not ask Mulero or Miller to "blow to determine if [they were] drunk" because he had "no evidence" and he believed that neither of them appeared to be physically intoxicated. Id.

On April 18, 2008, Mulero filed a formal complaint of sexual harassment against Oquendo. (Docket No. 3 at 21.) On July 1, 2008, Mulero received an order for transfer dated March 27, 2008. Plaintiff explained that she "had asked for a transfer because of the sexual harassment going on...." ⁴ Id. As of September, 2008, no action had been taken by the PRPD "to resolve or investigate and finalize the complaint filed by plaintiff Mulero regarding sexual harassment." Id. at 22.

Plaintiffs allege various irregularities regarding the payment of Mulero's salary and bonus checks. On September 30, 2008, Mulero did not receive her biweekly paycheck. (Docket No. 3 at 22.) She received her check for November 30, 2008, "at the payroll teller's office where she had to go to get it, as opposed to the normal procedure in which all employees receive their checks in their respective workplaces." Id. at 27. On December 5, 2008, Mulero "came to know that all of the other employees of the [PRPD] had received their bonus checks for December but [that] she had not received hers." Id. When she inquired as to why she had not received her check via direct deposit, ashad been done in previous years, "she was told that Mr. Juan Carlos Martinez at the Leave Division had not given the order to have plaintiff Mulero's bonus deposited...." Id. When Mulero went to the Payroll Division on December 15, 2008, she was told that "the check was at the License Office with Mr. Juan Carlos Martinez and that he had not authorized the check to be delivered to plaintiff Mulero." Id. at 28. On January 30, 2008, because Mulero had not received her paycheck for the previous fifteen days, plaintiff Reyes "had to go up again to the Payroll Office to seek and find out why the check had not been issued and finally the check was provided with no explanation for not having produced it in a normal matter." Id. at 30.

Plaintiff Mulero has taken the following actions to address the alleged sexual harassment since 2006: Mulero had a meeting with Lieutenant Fernandez, the Sexual Harassment and Domestic Violence Office Director, and Sergeant Lasanta, Mulero's supervisor, to discuss the alleged sexual harassment by Oquendo, (Docket No. 3 at 14); she "formally and/or personally and/or indirectly through correspondence complained" about the alleged sexual harassment to Sergeant Lasanta, Sergeant Johnny Acevedo-Roman, the official investigator for the domestic violence and sexual harassment bureau at the General Headquarters, Lieutenant Jose Ocasio-Garcia, director of the property division of the San Juan CIC, Inspector Jose Marrero-Rivera, director of the CIC of San Juan, and Lieutenant Vilma Fernandez, director of the sexual harassment division of the PRPD, during April, 2008, id. at 21; she sent at least eight letters to Pedro Toledo, the former PRPD Superintendent, requesting intervention regarding the alleged harassment and alleged retaliation suffered by plaintiff Mulero, id. at 23-29; she sent copies of two such letters to Attorney Rosa-Segui of the Legal Affairs Office of the Police and to Lieutenant Vilma Fernandez, id. at 24; she sent at least four letters to Superintendent Toledo informing him that she had not received her September 30, 2008 paycheck, id. at 25-26, 28; she told Superintendent Toledo that he and the PRPD "were ignoring the regulations that established a public policy procedure for the filing of sexual harassment complaints in Puerto Rico under regulation number 6508 approved on August 20, 2002," id. at 29; she informed Superintendent Toledo that she "received her check for November 30, 2008, at the payroll teller's office where she had to go to get it, as opposed to the normal procedure by which all employees receive their checks, id. at 27; she filed a complaint, which has not been resolved by the PRPD, with Miller, against Captain Rivera and Oquendo regarding the incidents on March 21, 2008, id. at 26; she informed current Superintendent Jose Figueroa-Sancha that the sexual harassment complaint had yet to be resolved and that Mulero was fearful for her personal security vis à vis Oquendo, id. at 30-39; she requested reasonable accommodation, id. at 33, 39; and she wrote letters to Superintendent Figueroa-Sancha, Jose Rosa-Carrasquillo, Jose Rivera-Diaz and Margarita Moris ⁵ explaining that she had requested intervention regarding the alleged unjustified transfer. Id. at 39.

PROCEDURAL BACKGROUND

Plaintiffs filed their amended complaint on November 17, 2009. (Docket No. 3.) First, ...