Berrios v. Bristol Myers Squibb, Civil No. 98-2071(JP).

• Decision Date: 26 April 1999
• Docket Number: Civil No. 98-2071(JP).
• Citation: 51 F.Supp.2d 61
• Parties: Dilcia Ocasio BERRIOS, Plaintiff, v. BRISTOL MYERS SQUIBB, Puerto Rico, Inc., et seq., Defendants.
• Court: U.S. District Court — District of Puerto Rico

51 F.Supp.2d 61

Dilcia Ocasio BERRIOS, Plaintiff, v. BRISTOL MYERS SQUIBB, Puerto Rico, Inc., et seq., Defendants.

Civil No. 98-2071(JP).

United States District Court, D. Puerto Rico.

April 26, 1999.

Maria S. Kortright Soler, San Juan, PR, for plaintiff.

James D. Noel, McConnel Valdés, San Juan, PR, for defendant.

ORDER

PIERAS, Senior District Judge.

I. INTRODUCTION

Before the Court are several sets of motions. The Court first considers Plaintiffs' Opposition to Defendants' "Motion to Dismiss Claims Against Clotilde Mena" (docket No. 19); Co- Defendant Clotilde Mena's ("Mena") Request for Authorization to File Reply to Plaintiffs' Opposition to Motion to Dismiss Claim Against Clotilde Mena (docket No. 28); and Mena's Reply to Plaintiffs' Opposition to Motion Requesting Dismissal of Claims Against Clotilde Mena (docket No. 33). On March 2, 1999, the Court entered an Order (docket No. 22) ruling on Mena's Motion dismissing all claims against her at the time ("March 2nd Order"). Although Plaintiffs filed their response on March 1, 1999, the last day to file a response, such document was not received in chambers before entering the March 2nd Order.¹ The Court, however, shall consider Plaintiff's Response and Mena's Reply. The Court will then consider Plaintiffs' Motion Requesting Leave to Amend Complaint (docket No. 14), and Co-Defendant Mena's Motion to Dismiss Act 44 Claim Against Clotilde Mena (docket No. 29). The Court will finally consider Plaintiff's Motion Regarding Initial Scheduling Conference Order (docket No. 24).

II. BACKGROUND

Plaintiffs are Dilcia Ocasio ("Ocasio"); her common law husband, Juan Vélez-Albarrán ("Vélez"); and their two children, Mónica Vélez-Ocasio ("Mónica") and Juan Vélez-Ocasio ("Juan"). Because Plaintiffs' Opposition to Defendants' Motion to Dismiss; Mena's Request for Authorization to File Reply to Plaintiffs' Opposition; and Mena's Reply to Plaintiffs' Opposition arise out of Mena's Motion to Dismiss, the Court shall read the allegations under a Fed.R.Civ.P. 12(b)(6) standard.

A. Standard Under Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant 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. It is well-settled, however, 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Miranda v. Ponce Fed. Bank, 948 F.2d 41 (1st Cir. 1991). The Court must accept as true the well-pleaded factual averments contained in the complaint, while at the same time drawing all reasonable inferences therefrom in factor of the plaintiff. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 276, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). In opposing a Rule 12(b)(6) motion, "a plaintiff cannot expect a trial court to do his homework for him." McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir.1991). Rather, the plaintiff has an affirmative responsibility to put his best foot forward in an effort to present a legal theory that will support his claim. Id. at 23 (citing Correa-Martínez, 903 F.2d at 52; Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989); Ryan v. Scoggin, 245 F.2d 54, 57 (10th Cir.1957)). Plaintiff must set forth in his complaint "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). Therefore, for purposes of this discussion, Defendants assume that the following allegations are true.

B. Factual Background

Ocasio began working for Defendant Bristol Myers Squibb Puerto Rico, Inc. ("Bristol") on May 1, 1988 as a Sales Representative. Since the date of her employment and for the following eight years, Ocasio performed her duties in an "effective or good" manner. Her performance was at this level up until the period immediately prior to being diagnosed with having a brain tumor in May of 1996. The symptoms of the tumor manifested themselves in April 1996 when Ocasio started suffering from a major depression. During this time, Ocasio's supervisor called her to a meeting to notify her that she was being placed on probation.

In June of 1996, Ocasio traveled outside of Puerto Rico for surgery to treat the brain tumor. Despite medical intervention, the tumor had maintained its size. By early September of 1996, Ocasio's doctors certified that her condition was stable, and, in turn, Ocasio called her supervisors to notify them that she was able to return to work. Bristol, however, responded that she had to wait until the Human Resources Department officials called her before returning to work. Bristol notified Ocasio that she could return to work, and she returned on October 1, 1996. Shortly thereafter and for no apparent legal reason, Ocasio was placed on probation by her supervisor Manuel López-Cepero ("López-Cepero").

On November 22, 1996, Ocasio requested reasonable accommodations from Bristol due to her diagnosed conditions and difficulty in driving at night on dark roads after working long days. Instead of accommodating her, Bristol sent Ocasio home, told her to apply for disability benefits, and took away all her responsibilities. On January 11, 1997, Bristol removed the car assigned to Ocasio, and on January 13, 1997, López-Cepero arrived at Ocasio's home and removed all her work materials, equipment, credit card, "pager", and the car assigned to her.

From November to May 1997, Ocasio insisted that she could perform her duties, making a request to be reinstated on March 13, 1997. After holding a meeting on March 26, 1997 with Mena, the Human Resources Director, Bristol decided not to give her reasonable accommodations. Ocasio was offered no alternatives, and she was just told that she should apply for disability leave through Bristol's long-term disability retirement program. Bristol told Ocasio that if she refused to apply for long-term leave she would be terminated. Although Ocasio asked to be reinstated and said that she could perform her work, Bristol insisted that Ocasio fill out her disability papers.

Thereafter, Dr. Luis Serrano, a neuroophthalmologist, examined Ocasio and determined that she could perform her duties. Bristol did not inform Ocasio of these results for a considerable period of time and did not call Ocasio to report back to work. Despite knowing that Ocasio could work, Bristol never contacted her to discuss Dr. Serrano's results and instead mailed a letter to Ocasio firing her because she had abandoned her position. Ocasio was permanently replaced by a male employee because Bristol wanted a male sales representative handling the Southwestern region of Puerto Rico.

Since the March 2nd Order, Plaintiffs have voluntarily withdrawn their claims against Mena under the federal and local employment discrimination statutes.² (Mem.Supp. Pls.' Opp'n Defs' Mot. Dismiss Claims Against Clotilde Mena at 5). Ocasio, however, brings several claims against Bristol under the Title VII, the Americans with Disabilities Act ("ADA"); Puerto Rico Law 80, P.R.Laws Ann. tit. 29, §§ 185a-185k ("Law 80"); Puerto Rico Law 100, P.R.Laws Ann. tit. 29, § 146 ("Law 100"). Co-Plaintiffs Vélez, Mónica, and Juan bring claims against Defendants Bristol and Mena under the Puerto Rico general tort statute, Article 1802 of the Puerto Rico Civil Code, P.R.Laws Ann. tit. 31, § 5141. Ocasio never raised a tort claim against Mena or Bristol.

Faced with these causes of action, Co-Defendant Mena argues that Vélez, Mónica, and Juan's tort claims against her should be dismissed because under Puerto Rico law, tort claims of the relative of a victim of employment discrimination are contingent on the victim's causes of action for employment discrimination. Therefore, if Ocasio cannot sustain a claim against Mena under the employment discrimination statutes, her relatives cannot maintain a cause of action in tort against her. Mena further argues that Plaintiffs' Amended Complaint, which adds a claim under the Puerto Rico anti-discrimination law, Law 44, should be dismissed because she is not subject to liability under the statute.

III. DISCUSSION

A. Claims Against Mena

1. Relatives' Claims in Tort Against Mena

The Court is asked to determine whether a common law husband and the children of a victim of employment discrimination have a cause of action in tort against an individual working in the employer's human resources area, who is not individually liable under employment discrimination statutes but allegedly discriminated against the victim, for the damages resulting from his discriminatory acts.

Plaintiffs aver that such action in tort may be maintained and rely on the Puerto Rico Supreme Court's decision in Santini v. Serv Air, 94 JTS 121, which acknowledged the existence of a cause of action in tort under Article 1802 of the Puerto Rico Civil Code "precisely in those instances where the special statutes did not afford such cause of action." (Pls' Opp'n to Defs' Mot. Dismiss Claims Against Clotilde Mena at ¶ 4a). According to Plaintiffs, a tort action is premised on principles of civil responsibility which call for the redress of "every harm, material or moral, if there are three requisites or elements: (i) that a harm be suffered; (ii) that there be a causal nexus between the damage and the act or omission of the adverse party and; the act is intentional or negligent." (Mem. Supp. Pl's Opp'n Defs' Mot. Dismiss Claims Against Clotilde Mena at 6). Therefore, Plaintiffs conclude that so long as these three elements are met a wronged individual will have an action in...