Miranda v. Deloitte LLP

• Decision Date: 08 February 2013
• Docket Number: Civil No. 12–1271 (FAB).
• Court: U.S. District Court — District of Puerto Rico
• Parties: Wanda G. MIRANDA, Plaintiff, v. DELOITTE LLP, Deloitte Tax LLP, Deloitte & Touche LLP, Deloitte Services LLP, Francisco A. Castillo–Penne, Ricardo Villate–Prieto, Michelle Corretjer–Catalan, John Doe, Richard Doe, ABC, Def Insurance Companies, Defendants.

922 F.Supp.2d 210

Wanda G. MIRANDA, Plaintiff,

v.DELOITTE LLP, Deloitte Tax LLP, Deloitte & Touche LLP, Deloitte Services LLP, Francisco A. Castillo–Penne, Ricardo Villate–Prieto, Michelle Corretjer–Catalan, John Doe, Richard Doe, ABC, Def Insurance Companies, Defendants.

Civil No. 12–1271 (FAB).

United States District Court,

D. Puerto Rico.

Feb. 8, 2013.

Maria I. Santos–Rivera, Maria I. Santos Law Office, San Juan, PR, for Plaintiff.

Carl E. Schuster, Juan F. Santos–Caraballo, Schuster & Aguilo LLP, San Juan, PR, for Defendants.

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court is the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) filed by defendants Deloitte LLP, Deloitte Tax LLP, Deloitte & Touche LLP, Deloitte Services LP, Francisco A. Castillo Penne, Ricardo Villate Prieto, and Michelle Corretjer Catalan. (Docket No. 17.) Having considered the complaint, (Docket No. 1), as well as the arguments contained in plaintiff Wanda G. Miranda (“plaintiff Miranda”)'s oppositions, (Docket Nos. 22; 30; & 42), and defendants' replies (Docket Nos. 25 & 32), the Court GRANTS IN PART and DENIES IN PART defendants' motion to dismiss.

I. BACKGROUNDA. Factual History

The Court takes the following facts as true, as pled in plaintiff Miranda's complaint:

1. Plaintiff Miranda's Employment Relationship to Defendants Villate, Corretjer, and Castillo

Plaintiff Miranda was originally hired by defendant Deloitte & Touche LLP in 1990 as a member of the Tax Staff. (Docket No. 1 at p. 5.) She resigned from Deloitte & Touche LLP in 1992, but she returned eight years later, accepting the position of Tax Manager in 2000. Id. Defendant Castillo was the Tax Managing Partner of the Deloitte office in San Juan, and defendants Villate and Corretjer were the Directors of Deloitte San Juan. Id. at pp. 12–13. Defendant Castillo “was plaintiff's supervisor” and “feedback provider,” id. at pp. 4 & 8, and defendant Villate “was plaintiff's counselor and supervisor at the time of the events described in th[e] complaint.” Id. at p. 4. Defendant Villate has been plaintiff Miranda's “counselor and primary feedback provider” since January 24, 2000. Id. at p. 6. Both defendants Castillo and Villate rated plaintiff Miranda's work performance as Tax Manager for her yearly employment reviews. Id. at p. 8. Appointed as Tax Director in September 2010, defendant Corretjer also became plaintiff Miranda's supervisor at that time. Id. at p. 4.

The complaint alleges that since the year 2000, defendants Castillo and Villate “had the authority to take disciplinary actions against [plaintiff] Miranda, including her termination,” and also “had the authority to direct [her] daily work activities.” (Docket No. 1 at p. 13.) Defendant Corretjer also “had the authority to recommend disciplinary actions against [plaintiff] Miranda” as well as the authority “to direct [her] daily work activities,” but only since September 2010. Id.

2. Defendant Castillo's Alleged Behavior

Plaintiff Miranda alleges that defendant Castillo “enjoyed making offensive jokes of sexual content to the female employees of Deloitte San Juan” in the tax department. (Docket No. 1 at p. 9.) His jokes “were of sexual content, offensive and disrespectful to women,” and plaintiff Miranda describes them as being “lewd” and related to the drug Viagra. Id. He once told plaintiff Miranda a joke about her touching her husband's “wichu”—a “vulgar word used in Puerto Rico to refer to a male's penis,” id. at p. 10, and after plaintiff Miranda told him that she did not like his joke, defendantCastillo “continued making the ‘wichu’ joke in front of her to other female co-workers.” Id. Defendant Castillo also “continually showed [plaintiff] Miranda uninvited offensive jokes of sexual content that he received through his cellular” phone, and “used to quietly approach [her] desk and stare at her.” Id. When defendant Castillo stared at plaintiff Miranda and other female employees, he did so “in sexually suggestive manners, such as looking at their breasts.” Id. at p. 9.

On October 5, 2010, when plaintiff Miranda received a flu shot at Deloitte, she became distressed by defendant Castillo's behavior. He allegedly entered the room and asked the male nurse to administer the flu shot to plaintiff Miranda “not in her arm but in her buttocks.” (Docket No. 1 at p. 11.) To demonstrate how he preferred plaintiff Miranda to receive her flu shot, defendant Castillo allegedly “used offensive body language ... by separating his legs, bending over and reclining over the back of the chair, lifting his buttocks and making as if he was going to pull down his pants.” Id. He then remained in the room to watch how the male nurse administered the shot to plaintiff Miranda, and did not leave the room until the male nurse finished. Id. Plaintiff Miranda felt humiliated and embarrassed by defendant Castillo's conduct, “remained in shock and intimidated” while the male nurse administered her flu shot, and “felt so bad that she had to leave the office” early that day. Id.

The day after the flu shot incident, plaintiff Miranda called Deloitte's Integrity Help Line to report defendant Castillo's behavior. (Docket No. 1 at p. 10.) Following the Help Line's instructions to obtain Deloitte's Harassment Policy from the website, plaintiff Miranda filed, via e-mail, an incident report on sexual harassment against defendant Castillo. Id. at pp. 11–12. She e-mailed the incident report to “Leslie Berry (D & T San Diego Office) and Alisa A. Brussel (D & T New York Office),” and later that day received confirmation that her internal complaint had been received and would remain confidential, and that she would be contacted after the prompt examination of the complaint. Id. at p. 12. Plaintiff Miranda alleges, however, that she never received any further communication regarding her incident report. Id. at p. 12.

The following day, on October 7, 2010, defendant Castillo allegedly approached plaintiff Miranda “from behind and pushed his body against her back[,] pushing her toward her computer screen.” (Docket No. 1 at p. 13.) This caused plaintiff Miranda “to be frightened and intimidated.” Id. A few weeks after plaintiff Miranda submitted the sexual harassment complaint, defendant Castillo “called [plaintiff] Miranda into his office a[nd] closed the door to demand [an] explanation on why she filed a [s]exual [h]arassment [i]ncident [r]eport against him.” Id. at p. 14. He told plaintiff Miranda that she “had tainted his record and that next time he would appreciate [if she] talk to him at front and face-to-face before filing any future report.” Id. He later sent an e-mail to plaintiff Miranda thanking her for “allegedly accepting his apology.” Id. Plaintiff Miranda states that she “did not accept [defendant] Castillo's apology,” but the complaint does not allege that she replied in any form to dispute the contents of defendant Castillo's e-mail. Id.

On February 15, 2011, defendants Castillo and Villate, as well as Deloitte's South Regional Tax Partner, met with plaintiff Miranda to discuss a Performance Improvement Plan (“PIP”), which indicates that an employee “needs to improve his or her performance.” (Docket No. 1 at p. 15.) The complaint alleges that defendant Castillo issued the PIP to plaintiff Miranda “in retaliation for her filing of the sexual incident report against [defendant] Castillo.” Id. The PIP allegedly contains the “concerns” of three corporate clients regarding plaintiff Miranda's work, id., but plaintiff Miranda contends that the concerns referenced work she had performed for previous tax years: 2008 and 2009. Id. at p. 16. Plaintiff Miranda alleges that Deloitte's website “establishes that an employee should be given 6 to 9 months to comply with a PIP.” Id. Her complaint also states that she “immediately worked on the plan that was handed to her” by joining social organizations, enrolling in continuing education courses, meeting every billing period goals and keeping defendant Villate informed about them, receiving “excellent” feedback from clients, giving a tax seminar to the audit partners, and complying with e-filing requirements. Id. at pp. 16–17.

In the months after plaintiff Miranda received the PIP, defendants Villate, Corretjer, and Castillo allegedly “created a hostile work environment for [her] that severely interfered with [her] conditions of employment.” (Docket No. 1 at p. 18.) Prior to February 15, 2011, defendant Corretjer had allegedly “never sent an e-mail to, or had any type of communication” with, plaintiff Miranda regarding her performance, but after that date defendant Corretjer attempted to intimidate plaintiff Miranda, reprimanded her, and treated her “with hostility.” Id.

Sometime between February and March 2011, defendant Castillo told plaintiff Miranda the following “uninvited joke”:

The handyman went to a house w[h]ere a young boy was present. The handyman started to work and his screwdriver fell and the young boy told him that that's why his father had two screwdrivers. The handyman continued to repair another appliance using a hammer. The hammer fell and the boy told him that that's why his father had two hammers. The handyman continued repairing different appliances throughout the day with different tools and each time a tool fell the young boy replied that that's why his father had two of those tools. The handyman went to the bathroom and the boy followed him. The handyman grabbed his penis and told the boy, “[D]on't tell me your father has two of this too,” to which the boy replied, “[N]o, he only has one but [it's] twice as long as yours.

(Docket No. 1 at pp. 19–20.) During March and April of 2011, defendant Castillo “continued to show [plaintiff] Miranda uninvited offensive jokes of sexual content that he received through his cellular” phone. Id. at p. 20.

3. Plaintiff Miranda's Termination

On May 25, 2011, defendant Castillo “verbally...