Pérez v. Puerto Rico Nat'l Guard

Decision Date28 June 2013
Docket NumberCivil No. 13–1027(DRD).
Citation951 F.Supp.2d 279
PartiesAnnette Quintana PÉREZ, Plaintiff, v. PUERTO RICO NATIONAL GUARD, et al., Defendants.
CourtU.S. District Court — District of Puerto Rico


Mayra Vanessa Estrella Perez–Valdivieso, Rovira–Rodriguez Law Offices, Coto Laurel, PR, for Plaintiff.

Damaris Ortiz–Gonzalez, Department of Justice, Vilma M. Dapena–Rodriguez, San Juan, PR, for Defendants.


DANIEL R. DOMÍNGUEZ, District Judge.


Annette Quintana Pérez (“Quintana” or Plaintiff) filed claims of sexual discrimination, sexual harassment, and retaliation against the Commonwealth of Puerto Rico, the Puerto Rico National Guard 1 and Chief Master Sergeant (CMSgt.) Hector Mangual in his official and personal capacity (Docket No. 1). Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.2000e et seq., and 42 U.S.C. § 1983. Plaintiff further alleges Fourteenth Amendment Equal Protection violations for sexual discrimination and harassment.

Pending before the Court are two motions to dismiss; one from the Commonwealth of Puerto Rico, the Puerto Rico National Guard, and Chief Master Sergeant Mangual in his official capacity (Docket No. 15) and the other from Mangual in his personal capacity (Docket No. 18).


Quintana simultaneously served as Technical Sergeant for the Puerto Rico National Guard and a permanent civilian employee in Ponce, Puerto Rico (Docket No. 1, pp. 1–2). She worked in the National Guard's Counterdrug Program as a drug prevention specialist. Defendant, CMSgt. Mangual, was her immediate supervisor. Quintana claims that, while on temporary duty in Wisconsin for an Operational Readiness Exercise in 2002, CMSgt. Mangual convinced her to walk around the base with him and forced “intimacy” on her (Docket No. 1, p. 5). Quintana felt ashamed and did not report the incident.

Between the 2002 incident and 2010, Quintana alleges CMSgt. Mangual made constant sexual insinuations and invitations (Docket No. 1, p. 6). Quintana did not report any of the insinuations or invitations for fear of losing her job and damaging her reputation.

Quintana claims that, during another Operational Readiness Exercise on March 7, 2010, CMSgt. Mangual told her that he was going to go to her room because they were expected to be released early and did not have to work the next day (Docket No. 1, p. 6). Quintana states that CMSgt. Mangual called her “insistently” on her cell phone that night. Quintana did not answer, and CMSgt. Mangual left a message saying, “This was not going to stay like this.” (Docket No. 1, pp. 6–7).

Quintana was subsequently transferred from the Ponce station to the Ft. Buchanan Guaynabo station. Quintana alleges that CMSgt. Mangual told her she was transferred because if she was closer to him then she could not refuse his sexual invitations (Docket No. 1, p. 7). Quintana claims that CMSgt. Mangual continued to request sexual favors while stationed at Ft. Buchanan. Quintana did not report the March 7, 2010 incident or the purported intent behind the transfer. She, however, did tell a co-worker, Sergeant Caroline Nieves of this event.

On September 13, 2011, during an annual National Guard training in Carolina, Puerto Rico, Quintana claims CMSgt. Mangual called her several times and, after she did not answer, came to her hotel room 2 (Docket No. 1, pp. 7–8). Quintana claims that she opened the door, and CMSgt. Mangual told her that he wanted to have sex with her. CMSgt. Mangual then purportedly forced her to have sex with him (Docket No. 1, p. 8).

Quintana reported the September 2011 incident to Senior Master Sergeant (SMSgt.) Hernan Berrios (Docket No. 1, p. 9). Quintana states that SMSgt. Berrios informed her that he had heard about the situation but did not investigate because he learned of it through gossip. SMSgt. Berrios reported the situation to the Counterdrug Program Coordinator, Major (Maj.) Frontanes. Maj. Frontanes transferred Quintana to the Ponce station immediately (Docket No. 1, p. 9).

In January of 2012, three months after the transfer to Ponce, Maj. Frontanes transferred Quintana back to Ft. Buchanan Guaynabo.

In February of 2012, Quintana requested a transfer to Ponce but Maj. Frontanes denied it (Docket No. 1, p. 10). Quintana states that CMSgt. Mangual's sexual advances continued and she reported it to SMSgt. Berrios, but SMSgt. Berrios did not take any further action (Docket No. 1, p. 10).

On March 2, 2012, after leaving the psychological clinic, Quintana encountered CMSgt. Mangual and showed him a sick slip from the clinic and told him that everything she was going through was his fault. CMSgt. Mangual responded by saying he was going to tell Maj. Frontanes to “take the gloves out of her face” (Docket No. 1, p. 10)

On March 5, 2012, Quintana claims that CMSgt. Mangual asked if they could meet before they went to the Ft. Buchanan office. She refused and suffered a panic attack. Quintana was hospitalized for depression (Docket No. 1, p. 11). She suffered a second panic attack during a meeting for all of the Counterdrug personnel led by Maj. Frontanes and CMSgt. Mangual. Following the second panic attack, Quintana met with the Sexual Assault Respond Coordinator. The coordinator assigned Quintana to the Victims Advocate and Suicide Prevention Specialist (Docket No. 1, p. 11).

On May 7, 2012, Quintana filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) (Docket No. 1, p. 4). The EEOC informed her that they lacked jurisdiction because the National Guard had an Equal Employment Opportunity Office (“EEOO”) and that she needed to file with her grievance with that agency.

On June 26, 2012, Quintana filed a complaint with the National Guard's EEOO, alleging sex-based discrimination, sexual harassment, sexual assault, and hostile work environment (Docket No. 1, p. 4). The EEOO dismissed the claim on November 13, 2012.

The Puerto Rico National Guard Counterdrug Program released Quintana on September 30, 2012, due to funding limitations (Docket No. 1, p. 12).

Quintana filed the instant action with this Court on January 11, 2013 (Docket No. 1). Defendants Commonwealth of Puerto Rico and CMSgt Mangual, in his official capacity only, moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (Docket No. 15). Defendant Puerto Rico National Guard later joined and supplemented that motion (Docket Nos. 21 and 27). Defendants assert Eleventh Amendment immunity and intra-military immunity. Further, Defendants claim that Eleventh Amendment immunity extends to individual defendants in their official capacities.

Defendant Mangual, in his personal capacity, moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Docket No. 18). Defendant asserts intra-military immunity against all claims. Additionally, Defendant avers the § 1983 claim is time barred and that there is no individual liability under Title VII.

Finally, all Defendants claim that Plaintiff has failed to adequately state Title VII and § 1983 claims. Defendants assert that Plaintiff does not plead the necessary facts as required by the “severe or pervasive” standard for hostile work environment claims under Title VII sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Additionally, Defendants claim that Plaintiff does not plead the requisite prima facie case for retaliation, specifically that Plaintiff was not engaged in a protected activity.

Plaintiff opposed the motion to dismiss on May 17, 2013. (Docket No. 28). Plaintiff rehashed the allegations from the original Complaint in support that her pleadings were adequate. Further, Plaintiff contends that applying Feres v. U.S. to this case would be extending Feres beyond the present case law. Feres v. U.S., 340 U.S. 135, 145–46, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (a soldier is barred from recovering against a supervisor or the government for injuries suffered “in the course of activity incident to service.”)

A. 12(b)(6) Failure to State a Claim

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, 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–Hernandez 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).’)(quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (citation omitted). 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 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 a Plaintiff must allege sufficient facts that comply with the basic elements of the cause of action. See Iqbal, 556 U.S. at 677–679, 129 S.Ct. 1937 (concluding that plaintiff's complaint was factually insufficient to substantiate the required elements of a Bivens claim, leaving the complaint with only conclusory statements). First, the Court must “accept as true all of the allegations contained in a complaint[,] discarding legal conclusions, conclusory statements and...

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