Castro Ortiz v. Fajardo, CIV. 00-1083(DRD).

• Decision Date: 22 February 2001
• Docket Number: No. CIV. 00-1083(DRD).,CIV. 00-1083(DRD).
• Citation: 133 F.Supp.2d 143
• Parties: Adelino CASTRO ORTIZ, Plaintiff, v. Victor FAJARDO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

133 F.Supp.2d 143

Adelino CASTRO ORTIZ, Plaintiff, v. Victor FAJARDO, et al., Defendants.

No. CIV. 00-1083(DRD).

United States District Court, D. Puerto Rico.

February 22, 2001.

Adelino Castro-Ortiz, Juncos, Pro Se.

Marie L. Cortes-Cortes, Department of Justice of PR, Federal Litigation Division, San Juan, for defendant.

Nicolas Nogueras-Cartagena, Condado, Pro Se.

ORDER

DOMINGUEZ, District Judge.

Pending before the Court are co-defendants, the Commonwealth of Puerto and Victor M. Fajardo's Motions to Dismiss under Fed.R.Civ.P. 12(b)(6). (Docket No. 10 and 17). Plaintiff, appearing pro se, filed an opposition on January 29, 2001.¹ (Docket No. 29). Plaintiff's causes of action are founded upon the Titles I and V of the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, 12111, et seq., The Rehabilitation Act of 1973, 29 U.S.C. § 793, and the Fifth Amendment to the Constitution of the United States. (Docket No. 1). For the following reasons, defendants' motions to dismiss are DENIED in part and GRANTED in part.

I. STANDARD OF REVIEW

When deciding a Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) the Court must accept as true all well-pleaded factual claims, and indulge all reasonable inferences in the plaintiff's favor. Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). Dismissal is appropriate only when the facts alleged, taken as true, do not justify recovery for the plaintiff. Fed.R.Civ.P. 12(b)(6). Thus, in order to survive a motion to dismiss, plaintiffs must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988). Although all inferences must be made in the plaintiffs' favor, this court need not accept "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson, 83 F.3d at 3.

Moreover, when considering a motion to dismiss under Rule 12(b)(6) "our focus [must be] limited to the allegations of the complaint." Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir.1978)(internal quotations omitted). Specifically, the inquiry should be "whether a liberal reading of [the complaint] can reasonably admit of a claim ...." Id.; see also Doyle, 103 F.3d at 190. Recently, in Wagner v. Devine, 122 F.3d 53 (1st Cir.1997) the First Circuit held that a Court must "affirm a dismissal for failure to state a claim only if it clearly appears that, on the facts alleged, the plaintiff cannot recover on any viable theory." Id. at 55. The Supreme Court decades ago explained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule 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."

Id. at 45-46, 78 S.Ct. 99. With this standard in mind, all of the facts alleged in the complaint are accepted as true. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989); Gooley, 851 F.2d at 514.

Defendants aver that plaintiff has failed to state a claim upon which relief can be granted because plaintiff: 1) failed to exhaust administrative remedies; 2) failed to include the Rehabilitation Act and Fifth Amendment claims in his EEOC charge; 3) failed to establish a prima facie case of retaliation under the ADA; 4) defendant Victor Fajardo cannot be sued in his personal capacity; and 5) no punitive damages are allowed against defendants under the ADA or Rehabilitation Act. (Docket Nos. 10 and 17). The Court will now consider defendant's allegations.²

II. DISCUSSION

A. Failure to Exhaust Administrative Remedies

In the motion to dismiss, defendant avers that plaintiff has failed to exhaust administrative remedies by untimely filing the EEOC charge. (Docket Nos. 10 and 17). "[T]he ADA mandates compliance with the administrative procedures specified in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e." Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir.1999). "[S]uch compliance must occur before a federal court may entertain a suit that seeks recovery for an alleged violation [under the ADA]." Id. In fact, 42 U.S.C. § 2000e-5(e), in pertinent part states that a charge is to be filed with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred," or within three hundred days if "the person aggrieved has initially institutionalized proceedings with [an authorized] State or local agency" or "within thirty days after receiving notice that the State or local agency has terminated the proceedings with a State or local agency, whichever is earlier." The statutory period's function is to "protect[ ] employers from the burden of defending claims arising from employment decisions that are long past." O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (citing Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir.1999)).

In the complaint, plaintiff states that

"21. Through medical certificate of March 20, 1993, the defendant was informed of the medical definition of OCD, the specific limitations of OCD and the medical recommendations for an adequate supervision of performance in the work-place (classroom).

22. Subsequently, numerous medical certificates were sent to the Department of Education due to violations to the recommendations made by Dr. Carlos O. Perez Cortes. Other specifications were made by Dr. Carlos O. Perez Cortes on March 14, 1996 and March 11, 1997 due to other violations to his medical recommendations that were related to the plaintiff's condition.

23. On August 23, 1996, the school director, Irma D. Rivera Olmeda, in accordance with superintendent William Torres Cruz and Regional Director Amparo Rodriguez Alejandro, transferred plaintiff from Jose de Diego/Jose D. Zayas Elementary School to Luis Muñoz Rivera Elementary School. This action interfered with plaintiff's enjoyment of his duties as an art teacher in such school and aggravated his OCD ...

24. During the school years 1996-1998, the director of the Luis Muñoz Rivera Elementary School, Ms. Marilyn Felix Martinez have constantly violated the recommendations constantly made by plaintiff's psychiatrist in relation to his condition of OCD ...

26. On March 3, 1998 plaintiff sent a complaint to the Department of Education regarding an action of the Director and another teacher, Mr. Joel Diaz Rivera which affected the plaintiff's OCD condition.

27. On December 9, 1998, the defendant released plaintiff from his essential functions as an art teacher with pay.

29. On April 1999 the plaintiff formally applied to defendant, Department of Education for [a] reasonable accommodation under [the] A.D.A. Dr. Carlos O. Perez Cortes had previously suggested reasonable accommodations and other considerations through medical recommendations throughout the years from 1993 onward.

31. On May 25, 1999 the EEOC received a complaint from plaintiff, Mr. Adelino Castro, after he had waited a reasonable time without a response from the Department of Education.

35. On August 13, 1999, Ms. Irma A Gimenez Lopez denied the reasonable accommodation based on the charges previously formulated by her ..."

(Docket No. 2).

It is clear plaintiff's filing of the EEOC claim is untimely, as to the events that took place in paragraphs 21, 22, 23, 24, 26 and 27. (Docket No. 2). The events that took place between 1993 through 1998, fall outside the three hundred day time period allowed by the statute for filings with either the EEOC or the available state agency. See 42 U.S.C. § 2000e-5. The only date that falls within the allotted time to file a claim was the request for a reasonable accommodation, however, the injury did not take place the date he requested a reasonable accommodation, but the day the denial was issued. As stated in the compliant, the EEOC claim was filed on May 1999, and the denial of benefits took place three months after the EEOC charge was filed, on August 1999. (Docket No. 2).³

In addition, plaintiff does not aver that a continuous violation equitably tolled the limitation period. In any event, plaintiff's tolling argument would lack merit. "The continuing violation doctrine is an equitable exception that allows an employee to seek damages for otherwise time-barred allegations if they are deemed part of an ongoing series of discriminatory acts and there is `some violation within the statute of limitations period that anchors the earlier claims.'" O'Rourke, 235 F.3d at 730 (citing Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir.1998)). "No continuous violations can be found where the plaintiff was aware of the alleged discrimination outside the time for filing a charge." Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 612 (1st Cir.2000). See O'Rourke, 235 F.3d at 731. Moreover,

"Even where a plaintiff alleges a violation within the appropriate statute of limitations period, the continuing violation claim will fail if the plaintiff was or should have been aware that the was being unlawfully discriminated against while the earlier acts, now untimely where taking place."

Landrau-Romero, 212 F.3d at 612 (citing Provencher, 145 F.3d at 14). See O'Rourke, 235 F.3d at 731 (One of the criteria in determining if there is a continuing violation is "3) are the acts of sufficient permanence that they should trigger an awareness of the need to assert one's rights?").

As stated in paragraph 24 of the complaint, "[d]uring the school years 1996-1998, the director of the Luis Muñoz Rivera Elementary School, Marilyn Felix Martinez ... constantly violated the recommendations made by plaintiff's psychiatrist in relations to his condition of OCD." (Docket No. 2). Additio...