Bonilla v. Liquilux Gas Corp.

• Citation: 812 F. Supp. 286
• Decision Date: 09 February 1993
• Docket Number: Civ. No. 92-1978 (JAF).
• Parties: Vilma Antonmarchi BONILLA, Plaintiff, v. LIQUILUX GAS CORP.; Gas Del Pueblo, Inc.; Puerto Rico Fuels, Inc.; Julio Vega, and his conjugal partnership, Defendants.
• Court: U.S. District Court — District of Puerto Rico

812 F. Supp. 286

Vilma Antonmarchi BONILLA, Plaintiff, v. LIQUILUX GAS CORP.; Gas Del Pueblo, Inc.; Puerto Rico Fuels, Inc.; Julio Vega, and his conjugal partnership, Defendants.

Civ. No. 92-1978 (JAF).

United States District Court, D. Puerto Rico.

February 9, 1993.

Enrique Mendoza-Mendoza, San Juan, PR, for plaintiff.

Manuel A. Quilichini, San Juan, PR, for Julio Vega.

Luis A. Núñez-Salgado, Cancio, Nadal & Rivera, San Juan, PR, for remaining defendants.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiff is bringing an action under Title VII, 42 U.S.C. § 2000e et seq. She is also bringing her action under various local civil rights statutes: Law No. 100, Law No. 69, Law No. 17, and Law No. 80, 29 L.P.R.A. §§ 146, 1321-1341, 155 & 185a, respectively. Defendants are plaintiff's supervisor, Julio Vega, his conjugal partnership, and his employers: Liquilux Gas Corp. ("Liquilux"), Gas del Pueblo, Inc. ("Gas del Pueblo"), and Puerto Rico Fuels, Inc. ("Puerto Rico Fuels"). Defendants have moved to dismiss a portion of plaintiff's action under Title VII because they argue the Civil Rights Act of 1991 does not apply retroactively. They move to dismiss the pendent state claims to avoid jury confusion. Puerto Rico Fuels argues that it was improperly named as an employer party defendant. We deny defendants' motion to dismiss all remedies made available by the Civil Rights Act of 1991. We deny the motion to dismiss the pendent state claims. In addition, we deny the motion to dismiss filed by defendant Puerto Rico Fuels.

Facts

The plaintiff, Vilma Antonmarchi Bonilla, had worked as a secretary for Casa Muñoz, Inc. ("Casa Muñoz"), in Yauco, since 1968. She alleges that in 1988, Casa Muñoz was purchased by Liquilux, Gas del Pueblo, and Puerto Rico Fuels. Whether these three companies bought Casa Muñoz together or exist in some hierarchical relationship to each other is not clear from the complaint. In May of 1991, Julio Vega began to work as plaintiff's supervisor. Plaintiff alleges that he began to subject her to unwelcome sexual advances which eventually led to a deterioration of her emotional and physical health. She reported these incidents to her employers; however, they did nothing to put an end to the situation. Her illness and the failure of her employers to respond to the problem caused her to resign from her position in October of 1991. Early in 1992, an employer's committee found that Mr. Vega's actions did not constitute sexual harassment, but offered to reinstate plaintiff in the Ponce office. Plaintiff found this alternative unacceptable because she lives in Yauco and the commute to Ponce would have been too burdensome. She felt that Vega should have been the one moved. Considering the response of her employers inadequate, plaintiff remained absent from work. She took the appropriate administrative steps for bringing a claim under Title VII and eventually filed a suit in federal district court.

Discussion

Defendants have made three motions in response to plaintiff's complaint. Puerto Rico Fuels has moved to dismiss because it has no record that it ever employed either the plaintiff or Julio Vega. All of the defendants move to dismiss the claims brought under the amendments to Title VII passed as part of the Civil Rights Act of 1991. Pub.L. 102-166, 105 Stat. 1071 (1991). They also all move to have the pendent state claims dismissed as incompatible with the federal claims.

I. Puerto Rico Fuels as a Defendant

Puerto Rico Fuels presents an affidavit from Mrs. Edna Rodriguez, an administrative assistant at Puerto Rico Fuels. Mrs. Rodriguez is in charge of personnel records. The affidavit states that no personnel record exists for either the plaintiff or Julio Vega during the period of time covered by the complaint. Plaintiff is bringing suit against her employer. An "employer" is defined in Title VII as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U.S.C. § 2000e(b). Plaintiff has stated that both she and Mr. Vega worked for Puerto Rico Fuels at the time when she was allegedly harassed by Mr. Vega. An "employee" is defined in Title VII as "an individual employed by an employer." 42 U.S.C. § 2000e(f). From plaintiff's allegations, we assume that Puerto Rico Fuels fits the definition of employer and that plaintiff was employed by Puerto Rico Fuels. In the context of a motion to dismiss, which is governed by Fed.R.Civ.P. 12(b)(6), the court must "accept as true all material allegations of the ... complaint, and construe them in favor of the complaining party." International Paper Company v. Jay, 928 F.2d 480, 482 (1st Cir.1991). Therefore, absent a showing that Puerto Rico Fuels could never have been plaintiff's employer, we cannot dismiss the action against Puerto Rico Fuels. It must appear "to a certainty that the plaintiff would be unable to recover under any set of facts." González-Bernal v. United States, 907 F.2d 246, 248 (1st Cir.1990).

By presenting us with evidence of the absence of any personnel records for the individuals involved in this suit, Puerto Rico Fuels has shown that it is not the direct employer of either the plaintiff or Julio Vega. However, there are ways to employ an individual without being their direct employer. The First Circuit has acknowledged the adoption of both the concept of "single employer" and that of "joint employer" into the Title VII context. Rivas v. Federación de Asociaciones Pecuarias de Puerto Rico, 929 F.2d 814, 820 n. 15 (1st Cir.1991). Two employers can be treated as a single entity if they stand in some sort of relationship: "the controlling criteria ... are interrelation of operations, common management, centralized control of labor relations and common ownership." Radio & Television Broadcast Technicians v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). Two employers may be considered "joint employers," if they share such things as "`the supervision of the employee's day to day activities, authority to hire or fire employees, promulgation of work rules and conditions of employment, work assignments, and issuance of operating instructions.'" Rivas, 929 F.2d at 820 (quoting G. Heileman Brewing Co., Inc. v. NLRB, 879 F.2d 1526, 1531 (7th Cir.1989)). In the case of the single employer doctrine, the two entities are essentially the same entity. In the case of the joint employer doctrine, the two share control of the employee to such an extent that they both function as an employer, even though they are operationally distinct. In either case, a company can be legally considered the employer of an individual without having a record of having employed that individual.

Because we do not yet know from the pleadings the relationship of the various corporate defendants to each other, we cannot dismiss the action against Puerto Rico Fuels. It is possible that without actually having employed Julio Vega or the plaintiff, such that it would have personnel records for them, Puerto Rico Fuels could have been sufficiently related to their direct employer to be considered their employer. "Entities which exercise significant control over an employment situation may be proper defendants in a Title VII action even though they are not the immediate employer." Baranek v. Kelly, 630 F.Supp. 1107, 1113 (D.Mass.1986) (citing Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1340 (D.C.Cir.1973)). Plaintiff has asserted that Puerto Rico Fuels is her employer, and Puerto Rico Fuels has not yet produced sufficient evidence to disprove this claim.

II. Retroactivity of the Civil Rights Act of 1991

Defendants move to dismiss the claims brought under the Civil Rights Act of 1991. This would be more appropriately formulated as an objection to plaintiff's retroactive application of the Act in requesting remedies from the amended version of Title VII in her claim. Plaintiff has requested compensatory and punitive damages along with a jury trial. The legislation comprising the Civil Rights Act of 1991 allowed a Title VII plaintiff to seek these remedies. 42 U.S.C. § 1981a. Even though plaintiff never specifically refers to section 1981a, which she need not do in notice pleading, this is clearly the statutory provision at the basis of her request for damages. Therefore, we must decide whether these remedial and procedural provisions may properly apply to an action concerning events that occurred prior to the passage into law of those provisions.

This case comes to us in the same posture as another case recently decided by this court. Marrero-Rivera v. Dept. of Justice, 800 F.Supp. 1024 (D.P.R.1992). As in Marrero-Rivera, the instant case was filed after the passage of the Act. The case was filed on July 16, 1992 and the Civil Rights Act of 1991 was passed on November 21, 1991. As in Marrero-Rivera, the alleged illegal activity took place before the passage of the Act, in the summer of 1991. In Marrero-Rivera, we decided that the Civil Rights Act of 1991 should be applied retroactively.¹ In the First Circuit, courts follow the presumption in Bradley v. School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 711, 94 S.Ct. at 2016. The First Circuit had resolved the apparent tension between the facts in Bradley and Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), by finding "that the touchstone for deciding the question of retroactivity is whether retroactive application of a newly announced principle would alter substantive rules of conduct and disappoint private expectations." C.E.K. Indus. Mechanical Contractors, Inc. v....