Diaz v. Antilles Conversion & Export, Inc., Civil No. 98-1900(DRD).

Citation62 F.Supp.2d 463
Decision Date23 August 1999
Docket NumberCivil No. 98-1900(DRD).
PartiesRafael Viera DIAZ, et al., Plaintiffs, v. ANTILLES CONVERSION & EXPORT, INC., et al., Defendants.
CourtUnited States District Courts. 1st Circuit. District of Puerto Rico

Ernesto G. Lopez-Soltero, Caguas, PR, for plaintiff.

Yolanda M. Roman-Gomez, Hato Rey, PR, for defendant.

OPINION AND ORDER

DOMINGUEZ, District Judge.

The Plaintiffs, Rafael Viera Diaz, Myriam Gomez Rivera, and their conjugal partnership, filed this action against Defendants, Antilles Conversion & Export, Inc. ("Antilles"), Esteban Ayala ("Ayala"), and Evelio Cervantes ("Cervantes"), on August 7, 1998. (Docket No. 1). The Complaint states that "[t]his Honorable Court enjoys jurisdiction of this action upon 29 USC Sec. 626(b); 29 USC Sec. 217; and 29 USC Sec. 216(b)." Id. The only violation alleged was of 29 U.S.C. § 623(a)(1). Id.

Defendants' Motion To Dismiss (Docket No. 3) was filed on December 16, 1998. Therein, the Defendants, argue that: (1) the claims against Co-defendants Ayala and Cervantes should be dismissed because the ADEA does not provide for the imposition of individual liability; (2) Plaintiffs' action is time-barred because Plaintiff, Rafael Viera Diaz, did not comply with ADEA's requisite to file a complaint with the Equal Employment Opportunity Commission ("EEOC"); and (3) this Court lacks subject matter jurisdiction over Plaintiffs' ADEA claims because Antilles is not "employer" with 20 or more employees during the relevant period.

INDIVIDUAL LIABILITY

First, the Court agrees that the ADEA does not provide for the imposition of individual liability. The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir. 1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995). This district, and in particular the undersigned, has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII or ADEA. See Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206-207 (D.P.R.1998) (Title VII); Contreras Bordallo v. Banco Bilbao Vizcaya de P.R., 952 F.Supp. 72 (D.P.R.1997) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975 F.Supp. 115, 120 (D.P.R. 1997) (ADEA). Therefore, the case against Co-defendants Ayala and Cervantes is hereby DISMISSED WITH PREJUDICE.1

LIMITATIONS AND EQUITABLE TOLLING

Second, the Court turns to the argument that Plaintiffs' action is time-barred because Plaintiff, Rafael Viera Diaz, did not file a complaint with the EEOC within 300 days of the unlawful employment practice occurred as required by the ADEA. See 29 U.S.C. § 626(d); see also Hernandez Arce v. Bacardi Corp., 37 F.Supp.2d 112, 114 (D.P.R.1999); Maldonado-Maldonado v. Pantasia Mfg. Corp., 983 F.Supp. 58, 62 (D.P.R.1997). From the Complaint Plaintiff's discharge occurred on October 31, 1997, see (Docket No. 1), which the Court finds to be the date when Plaintiffs' claim accrued. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir.1999). Therefore, Plaintiff, Rafael Viera Diaz, had to file an EEOC complaint by August 27, 1998. The only reference to any administrative filing contained in the Complaint is that "[o]n or about November, 1998, plaintiff filed a charge alleging unlawful discrimination on the basis of age against defendants." Id. On the face of the Complaint, even if the Court construed this reference to be an EEOC filing, Plaintiff was derelict in his duty to file within the 300 day deadline and this case must be dismissed. In fact, upon examination of Plaintiffs' opposition and taking all averments by Plaintiffs as true, the Court notes that the reference in the Complaint was actually to the filing of a wage and hour ("Normas de Trabajo") grievance with the Commonwealth of Puerto Rico's Department of Labor and Human Resources on November 24, 1997 (not November, 1998 as alleged in the Complaint). See (Docket No. 6, Exhs. 1 and 2).2 Moreover Plaintiffs "wholly failed to plead facts showing actively misleading or deceptive conduct by the [Antilles] that might permit [the Plaintiffs] to rely on equitable tolling or estoppel." Mercado-Garcia v. Ponce Fed. Bank, 979 F.2d 890, 896 n. 5 (1st Cir.1992). Furthermore, "[Plaintiffs] failed `to make a showing sufficient to establish the existence' of facts entitling [them] to relief under either of these doctrines, so that summary judgment would have been granted against [Plaintiffs] in either case." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).

At this point, the Court takes cognizance of external materials presented by both parties and in accordance with the standard set-forth in Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 18-19 (1st Cir.1992), converts the motion to dismiss into a motion for summary judgment. A court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact ..." FED.R.CIV.P. 56(c). "In applying this formulation, a fact is `material' if it potentially affects the outcome of the case," Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir.1997), and "`genuine' if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Cortés-Irizarry v. Corporación Insular De Seguros, 111 F.3d 184, 187 (1st Cir.1997). The court should "`look at the record ... in the light most favorable to ... the party opposing ... the motion' ... [and] indulge all inferences favorable to the party opposing the motion." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975) (quoting Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)) (citations omitted). However, the nonmovant must "present definite, competent evidence to rebut the motion." Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). "The court may consider any material that would be admissible or usable at trial." See 10A CHARLES ALAN WRIGHT ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2721, at 361 (3d ed.1998). "But the court should do no more than this in reviewing the quality of the evidence. Most critically, it must never `weigh the evidence and determine the truth of the matter....'" Lipsett v. University of P.R., 864 F.2d 881, 895 (1st Cir.1988) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). Furthermore, "[n]o credibility assessment may be resolved in favor of the party seeking summary judgment." Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995) (citations omitted). "Summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

Plaintiff, Rafael Viera Diaz, has provided document showing that he filed with the EEOC on September 1, 1998, see (Docket No. 6, Exhs. 1 and 3), which is after the 300 day EEOC grievance filing deadline of August 27, 1998. In an attempt to avert the impending limitations axe, Plaintiffs assert that the prescription should be equitably tolled due to the allegation within Rafael Viera Diaz' sworn statement "[t]hat on the first week of February 1998 I visited the offices of the EEOC and was told there that they had no jurisdiction over my case." See (Docket No. 6, Exh. 1, para. 6).

Defendants filed a Motion To Strike Portion Of Affidavit (Docket No. 8) directed at excluding the portion of Plaintiff's, Rafael Viera Diaz, statement regarding the alleged statement by an EEOC employee that the EEOC had no jurisdiction over Plaintiff's case. See (Docket No. 6, Exh. 1, para. 6). Plaintiffs have not opposed said request. Defendants argue that paragraph six (6) of Plaintiff's, Rafael Viera Diaz, sworn statement constitutes hearsay and is therefore inadmissible. See FED.R.EVID. 802; (Docket No. 8). Rule 56(e) requires supporting affidavits to aver to facts that are admissible in evidence. See FED.R.CIV.P. 56(e); Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir.1998) ("Evidence that is inadmissible at trial, such as inadmissible hearsay, may not be considered on summary judgment.") (citing FED.R.CIV.P. 56(e); FDIC v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir. 1986)). Defendants contend that paragraph six (6) is inadmissible hearsay and therefore summary judgment is appropriate because the record is devoid of any admissible evidence to support Plaintiffs' proffered equitable tolling exception to the statute of limitations.

"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FED.R.EVID. 801(c). Clearly, Plaintiffs have not offered paragraph six (6) of Plaintiff's, Rafael Viera Diaz, sworn statement to show that the EEOC "had no jurisdiction over [Plaintiff's] case." See (Docket No. 6, Exh. 1, para. 6). Rather, the statement is offered for the purpose of explaining why the Plaintiff, Rafael Viera Diaz failed to timely file an EEOC grievance. Therefore, the statement is not inadmissible hearsay. See Kelley v. Airborne Freight Corp., 140 F.3d 335, 346 (1st Cir. 1998); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 575 (1st Cir.1989).

However, this does not end the Court's inquiry. The Supreme Court has held "that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a...

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