Dasilva v. One, Inc.

• Decision Date: 07 October 2013
• Docket Number: Civil No. 12–1286 (DRD).
• Parties: Gabriela RÍOS DaSILVA, Elizabeth DaSilva, Plaintiff(s), v. ONE, INC. d/b/a The Wings Family Restaurant and Grill, José Amid Rodríguez, Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

980 F.Supp.2d 148

Gabriela RÍOS DaSILVA, Elizabeth DaSilva, Plaintiff(s),

v.ONE, INC. d/b/a The Wings Family Restaurant and Grill, José Amid Rodríguez, Defendant(s).

Civil No. 12–1286 (DRD).

United States District Court,

D. Puerto Rico.

Oct. 7, 2013.

Enrique J. Mendoza–Mendez, Mendoza Law Office, San Juan, PR, Juan R. Davila–Diaz, Hato Rey, PR, for Plaintiffs.

Eduardo A. Vera–Ramirez, Eileen Landron–Guardiola, Luis A. Rodriguez–Munoz, Landron & Vera LLP, Guaynabo, PR, for Defendants.

AMENDED OPINION AND ORDER

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court are: (a) Defendants' ONE, Inc.'s, doing business as, The Wings Family, and José Amid Rodríguez' Motion to Dismiss under FRCP 12(b)(6), filed on January 30, 2013, Docket No. 18, and (b) Response in Opposition to Defendants' Motions to Dismiss under FRCP 12(b)(6) (DOC. 18), filed by plaintiffs on February 4, 2013, Docket No. 19. For the reasons set forth below, the defendants' motion to dismiss is hereby granted in part and denied in part.

Introduction

The instant case was filed on April 27, 2012 and arises out of Plaintiffs,' Gabriela Ríos DaSilva's (“Gabriela Ríos”) and her mother Elizabeth DaSilva's (“DaSilva”) claims against Defendants,' One Inc. d/b/a The Wings Family Restaurant and Grill (“One Inc.”), and supervisor José Amid Rodríguez (“Rodríguez”) for employment discrimination based on sexual harassment, retaliation and constructive discharge. Plaintiffs' bring these claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Anti–Retaliation provisions; Puerto Rico Constitution and the applicable state law; Puerto Rico, Law No. 100 of June 30, 1959, 29 L.P.R.A. §§ 146 et seq. (“Law 100”); Law No. 69 of July 6, 1985, 29 L.P.R.A. §§ 1321 et seq. (“Law 69”); Law No. 17 of April 22, 1988, 29 L.P.R.A. §§ 155 et seq., the Puerto Rico Anti–Retaliation Act, as well as Articles 1802 and 1803 of the Civil Code of Puerto Rico, 31 L.P.R.A. §§ 5141 and 5143.

Factual and Procedural Background

Gabriela Ríos was an 18 year-old minor at the time when she was hired to work at One Inc. Ríos worked as a bartender and waiter at One Inc. from September 2, 2010 to April 28, 2011. During that period Ms. Ríos held the same position of bartender and waiter, until she was forced to resign seven months later on April 28, 2011.

On July 11, 2011, Elizabeth DaSilva in representation of her minor daughter and plaintiff herein Gabriela Ríos filed charge with the Antidiscrimination Unit of the Puerto Rico Department of Labor, charge number uadau 11–479ch. A Notice of Right to Sue was issued on February 21, 2012, EEOC Charge No. 16H–2011–00671, granting Gabriela Ríos ninety days of your receipt of this notice to file a lawsuit in a federal or state court under Title VII, the ADA or GINA. See Docket No. 14–1. The instant action was timely filed on April 27, 2012. See Complaint, Docket No. 1, and the Amended Complaint, Docket No. 17.

Gabriela Ríos asserts that she was subject to unwanted and unsolicited sexual commentaries, as well as physical conduct that was perpetuated by her supervisor Rodríguez, and defendant herein. Plaintiff Ríos claims that such unwelcome conduct started on her third day as an employee and never stopped until she was forced to resign her job on April 28, 2011. See Docket No. 20–1. Gabriela Ríos alleges that defendant Rodríguez made sexually oriented comments and invitations to her, such as: (a) “you look hot today,” (b) “you are my girlfriend,” (c) “lie to your mother so we can stay here and have fun,” (d) “when are we going to hang out as a couple,” (e) “you will like to go out with elder man like me,” (f) “I can't wait to have you,” (g) “what underwear are you wearing,” (h) “you are mine,” (i) “where do you live so I can pick you up,” (j) “why don't stay late tonight,” and other commentaries. See Amended Complaint, Docket No. 17 at page 3. Plaintiff Ríos asserts that Rodríguez' behavior included sexually oriented physical contact, such as pulling her close to his body, giving her hugs, grabbing her by the arms and saying “you are mine.” See Amended Complaint, Docket No. 17 at page 3. “Gabriela rejected Rodríguez conduct and in turn she suffered adverse employment actions.” Id. The adverse employment actions consist of “her constructive discharge and having to work in an intolerable sexually harassing charged environment.” Id. Ms. Ríos alleges that she “submitted a complaint at her work place and no remedial action was ever taken.” Id.

Plaintiff Ríos further alleges that she complained about Rodríguez' behavior with Mrs. María Alicea Avilés, who was partially employed as an executive for One Inc., and who also happens to be harasser Rodríguez' mother. See Amended Complaint, Docket No. 17 at page 3. “Her work environment turned so hostile that she [Ríos] was forced to quit her job on April 28th, 2011.” Id. Plaintiff Ríos further alleges that she “could not take this harassment any more.” Id. “She did her best to survive these hostile and intolerable conditions because her economical realities forced her to, but said tolerance finally took a toll on her.” Id. (Emphasis ours). “Her [Ríos] fears and damage to her emotional well being increased to a point that she could not bear the situation any longer.” Id.

Plaintiff Ríos alleges that she was not aware of any employer's anti-discrimination or anti-harassment policy in the work environment, as none was given to her. See Amended Complaint, Docket No. 17 at page 4.

The defendants filed a Motion to Dismiss under FRCP 12(b)(6), Docket No. 18, and a timely opposition was filed by plaintiffs, Docket No. 19.

Applicable Law and Discussion

The Motion to Dismiss Standard under Fed.R.Civ. R. 12(b)(6).

Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”) provides that a complaint will be dismissed for “failure to state a claim upon which relief can be granted.” “So, when the allegations in a complaint, however true, fall short of a claim of entitlement to relief, ‘this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.’ ” (Citations omitted). Bell Atlantic Corporation, et al. v. Twombly, et al., 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Twombly, 550 U.S. at 555 and 570, 127 S.Ct. 1955, the Court held:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ... (citations omitted) ... a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level,see5 C. Wright & Miller, Federal Practice and Procedure § 1216, pp. 235–236 (3d ed. 2004).

...

Here, in contrast, we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. (Emphasis ours).

See also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“Specific facts are not necessary; the statements need only ‘give the defendants fair notice of what the ... claim is and the grounds upon which it rests' ”) (quoting Twombly, 127 S.Ct. at 1964)) (emphasis ours); Thomas v. Rhode Island, 542 F.3d 944, 948 n. 4 (1st Cir.2008) (the motion to dismiss standard followed in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) “no longer governs in light of Twombly ” (quoting Twombly, 127 S.Ct. at 1964);Rodríguez–Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95–96 (1st Cir.2007) (citing Twombly ); and Torres v. Bella Vista Hospital, Inc., 523 F.Supp.2d 123, 133 (D.P.R.2007) (quoting Twombly, 127 S.Ct. at 1974). Thus, the new standard under Twombly is that a claim for relief must contain allegations that “are plausible on its face.” See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A district court's dismissal of a claim under Fed.R.Civ.P. 12(b)(6) is reviewed de novo by the Court of Appeals. Thomas v. Rhode Island, 542 F.3d at 948. “In doing so, we must assume the truth of all well-pleaded facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Thomas, 542 F.3d at 948, citing Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.2008).

First, however, the Court must review the pleadings under the provisions of Fed.R.Civ.P. 8 to determine whether the complaint meets the plausibility requirements established by Twombly and Iqbal.

Fed.R.Civ.P. 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, 555, 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.” See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir.2011). “In order to show an entitlement to relief a complaint must contain enough factual material ‘to raise a right to relief above the speculative level’ on the assumption that all the allegations in the complaint are true even if doubtful in fact” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Thus, a plaintiff must, and is now required to, 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 also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

When considering a motion to dismiss, the...