Cruz v. Puerto Rico Power Auth.

• Court: U.S. District Court — District of Puerto Rico
• Writing for the Court: DANIEL R. DOMÍNGUEZ
• Citation: Cruz v. Puerto Rico Power Auth., 878 F.Supp.2d 316 (D. P.R. 2012)
• Decision Date: 17 July 2012
• Docket Number: Civil No. 11–2023(DRD).
• Parties: Norberto Lopez CRUZ, et al., Plaintiffs, v. PUERTO RICO POWER AUTHORITY, et al., Defendants.

878 F.Supp.2d 316

Norberto Lopez CRUZ, et al., Plaintiffs,

v.PUERTO RICO POWER AUTHORITY, et al., Defendants.

Civil No. 11–2023(DRD).

United States District Court, D. Puerto Rico.

July 17, 2012.

Eileen Landron–Guardiola, Luis A. Rodriguez–Munoz, Eduardo A. Vera–Ramirez, Guaynabo, PR, Carlos Del–Valle–Cruz, Del Valle Law, Old San Juan, PR, for Plaintiffs.

Angel A. Valencia–Aponte Maraliz Vazquez–Marrero, Departamento De Justicia, San Juan, PR, for Defendants.

OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

I. INTRODUCTION

Plaintiff Norberto Lopez Cruz (“Plaintiff”) filed an Amended Complaint on October 14, 2011 (Docket No. 29) against Defendants Puerto Rico Power Authority (“PREPA”), Otoniel Cruz Carrillo (“Cruz”), Luis A. Soto De Jesus (“Soto”), Hiran Gomez Cañals (“Gomez”), all in their individual capacities (collectively, the “Defendants”), alleging retaliation and harassment. Plaintiff files this action under Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983, claiming violations of the First Amendment. Plaintiff's additional claims arise under the laws of Puerto Rico which are attached to the instant case via the exercise of the Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

II. RELEVANT FACTUAL BACKGROUND

Plaintiff has been an electrical line operator for PREPA for most of his career. On October 20, 2008, he filed a report with the Occupational Safety and Health Administration (“OSHA”) stating that a fellow co-worker, Bienvenido Feliciano, was not qualified for his position which required working with live electrical lines.

As a result of his report to OSHA, Plaintiff claims he has been subject to numerous instances of work-related harassment. From November 21, 2008 to September 10, 2010, Plaintiff was the target of at least eight different instances of administrative investigations. None of these investigations resulted in any disciplinary action.

On August 28, 2009, Defendant Gomez, one of Plaintiff's supervisors, berated Plaintiff publicly. In response, Plaintiff filed an administrative complaint through his employee's union on December 3, 2009. According to Plaintiff's complaint, the claim “has been awarded” ¹ (Docket No. 29, page 6).

Plaintiff avers that he was ordered to work diverse tasks that, according to state and federal norms, require support personnel; Plaintiff asserts that Defendants ordered Plaintiff to work the tasks without the aid of other co-workers.

On August 10, 2010, Plaintiff obtained a protective order in state court against Defendants and, as a result, Defendant was relocated to San Sebastian. Upon his arrival at San Sebastian, however, the supervisor in charge refused to acknowledge the transfer and sent Plaintiff back to his previous job location. Due to this continued harassment, Plaintiff alleges that he was forced out of work for more than a month because the State Insurance Fund determined that he was emotionally unfit to work. Subsequently, he received a permit to continue working and Plaintiff continued to seek treatment for his emotional condition.

On December 12, 2010, Plaintiff was promoted to Electric Line Operator II in Aguadilla, Puerto Rico. However, Plaintiff alleges that said promotion has not been made official by PREPA's human resources department. As a result, Plaintiff has continued to receive his original salary, which is lower than the salary of an Electric Line Operator II.

III. PROCEDURAL HISTORY

On April 23, 2012 co-Defendant PREPA filed a motion to dismiss (Docket No. 41) arguing that Plaintiffs have failed to put forth a plausible Section 1983 claim or plead the requisite elements for a First Amendment claim. PREPA also alleges that Plaintiff's claims are barred by the statute of limitation because the latest alleged instance of retaliation occurred on September 10, 2010 and the instant matter was filed on October 14, 2011.²

On April 27, 2012, co-Defendants Gomez and Soto, also Plaintiff's supervisors, filed a motion to dismiss (Docket No. 44). This motion to dismiss was largely a reiteration of PREPA's prior allegation that Plaintiff's claims were time barred. Additionally, co-Defendants Gomez and Soto aver that, even if the claims were timely, they do not meet the standards for a First Amendment retaliation claim.

On May 10, 2012, Plaintiffs filed an opposition to PREPA's motion to dismiss (Docket No. 45). Therein, Plaintiffs argue their complaint draws a plausible inference that Defendants have deprived Plaintiff of his constitutional rights under the First Amendment (Docket No. 45, page 4). Furthermore, Plaintiffs assert that the Defendants' conduct has been continuous and unceasing and, “thus constitute[s] a continuing violation and thus all claims have been brought with the required statute of limitations period” (Docket No. 45, page 12).

On May 15, 2012, Plaintiffs opposed co-Defendant's Gomez and Soto's motion to dismiss (Docket No. 48). Plaintiff avers that Gomez, Soto, and PREPA conspired to violate Plaintiff's First Amendment, Fifth Amendment and Fourteenth Amendment rights. Additionally, Plaintiffs restate that the complaint raises a claim above the speculative level necessary to satisfy the applicable pleading standard.

IV. STANDARD OF REVIEW FOR MOTIONS TO DISMISS

Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a plaintiff must “provide the grounds of his entitlement [with] more than labels and conclusions.” Thus, a plaintiff must now present allegations that “nudge [his] claims across the line from conceivable to plausible” in order to comply with the requirements of Rule 8(a). Id. at 570, 127 S.Ct. 1955;see e.g. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

When considering a motion to dismiss, the Court's inquiry occurs in a two-step process under the current context-based “plausibility” standard established by Twombly, 550 U.S. 544, 127 S.Ct. 1955, and Iqbal, 556 U.S. 662, 129 S.Ct. 1937. “Context based” means that plaintiff must allege facts that comply with the basic elements of the cause of action. See Iqbal, 556 U.S. at 671–672, 129 S.Ct. 1937 (explaining the basic elements of a Bivens claim and thereafter concluding that facts were not sufficiently provided, leaving only conclusory statements). First, the Court must “accept as true all of the allegations contained in a complaint[,]” discarding legal conclusions, conclusory statements and factually threadbare recitals of the elements of a cause of action. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.2009)(quoting Iqbal, 556 U.S. 662, 129 S.Ct. 1937)(internal quotation omitted).

Under the second step of the inquiry, the Court must determine whether, based upon all assertions that were not discarded under the first step of the inquiry, the complaint “states a plausible claim for relief.” Id. This second step is “context-specific” and requires that the Court draw from its own “judicial experience and common sense” to decide whether a plaintiff has stated a claim upon which relief may be granted, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id. Thus, “[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient facts to show that he has a plausible entitlement to relief.” Sanchez v. Pereira–Castillo, 590 F.3d 31, 41 (1st Cir.2009).

A complaint that rests on “bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like” will likely not survive a motion to dismiss. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). Similarly, unadorned factual assertions are inadequate as well. Penalbert–Rosa v. Fortuno–Burset, 631 F.3d 592 (1st Cir.2011). “Specific information, even if not in the form of admissible evidence, would likely be enough at [the motion to dismiss] stage; pure speculation is not.” Id. at 596.

V. ANALYSIS

A. Statute of Limitations Claims

In Puerto Rico, the appropriate limitations period for Section 1983 claims is one year. See31 L.P.R.A. § 5141 (2008); see also Moran Vega, 537 F.3d 14, 21;Sanjurjo Santiago v. Metro. Bus. Auth., 2009 WL 1935848, at *4 (D.P.R.2009). In their amended complaint, however, Plaintiffs claim that Lopez Cruz was subject to “continuous, unceasing, and systematic harassment” (Docket No. 45, page 8). Plaintiffs aver that once they set forth facts showing a continuing violation, the statute of limitations begins to accrue after the last violation concluded (Docket No. 45, page 12).

The continuing violation doctrine is an exception to the statute of limitations that allows an employee to seek damages for claims that would otherwise be time-barred 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 v. City of Providence, 235 F.3d 713, 730 (1st Cir.2001). The First Circuit has identified several criteria in determining the sufficiency of a serial continuing violation claim. In O'Rourke, the First Circuit found that said inquiry has three prongs: first, “if the subject matter of the discriminatory acts is sufficiently similar that there is a substantial relationship between the otherwise untimely acts and the timely acts;” second, “are the acts isolated and discrete or do they occur with frequency or repetitively or continuously;” and finally, “are the acts of sufficient permanence that they should trigger an awareness of the need to assert one's rights?” (internal quotations omitted). Id. at 731.

In applying that three-prong inquiry to Plaintiffs' situation, the Court finds that the continuing violations doctrine is not satisfied. Plaintiff was subject to eight administrative investigations from November 21, 2008 to September 10, 2010; these investigations ultimately...