Pineda v. Almacenes Pitusa, Inc.

Decision Date06 May 1997
Docket NumberNo. CIV. 95-1884(SEC).,CIV. 95-1884(SEC).
Citation982 F.Supp. 88
PartiesMarisol de Jesus PINEDA, Plaintiff, v. ALMACENES PITUSA, INC., et al., Defendants.
CourtU.S. District Court — District of Puerto Rico

Jose Martinez Custodio, Utuado, PR, for Plaintiff.

Maria Soledad Ramirez Becerra, Mercado & Soto, Old San Juan, PR, for Defendants.

ORDER

CASELLAS, District Judge.

This sexual harassment, Title VII claim is before the Court on defendants' separate motions to dismiss (Dockets # 8, 9) which were duly opposed (Docket # 20). Defendant Almacenes Pitusa, Inc. essentially alleges that the complaint against it should be dismissed because (a) the named party is non-existent; (b) plaintiff's action was not brought within the 90-day statutory period; and (c) the action is time-barred. Co-defendants Domingo Vélez and Evelyn Lasalleplaintiff's supervisor and store manager, respectively — assert that the complaint against them should be dismissed because (a) they are not employers as defined in Title VII of the Civil Rights Act, and (b) plaintiff failed to exhaust all administrative remedies.

On December 11, 1996, the forgoing motions were referred to Magistrate Justo Arenas for a report and recommendation (Docket # 27). In his thorough and well-reasoned report, which he rendered on April 11, 1997. Magistrate Arenas found "that Vélez and Lasalle were not `employers' within the definition of Title VII," for which reason he recommended that their motions to dismiss be granted, and that the supplemental claims against then be dismissed as well. On the other hand, Magistrate Arenas found that plaintiff had "a valid Title VII claim against Pitusa because she exhausted all administrative requirements, timely notified the defendant of the suit, and properly notified the correct defendant of the suit." (Docket # 28, at 21). Thus, he recommended that its motion to dismiss be denied, and that the state law claims against it be allowed to proceed as supplemental to the Title VII claim.

The scope of our review of a Magistrate's recommendation is set forth in 28 U.S.C. 636(b)(1)(C). This section provides that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." However, no review is required of any issue that is not the subject of objection. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Borden v. Secretary of Health & Human Services, 836 F.2d 4.6 (1st Cir.1987). In fact, failure to file any objections within ten days of the Magistrate Judge's Report and Recommendation waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994). See also Rule 510.2, Local Rules, District of Puerto Rico.

The parties to this case failed to file any objections to the Magistrate Judge's report and recommendation within the allotted time period. Furthermore, this Court has examined Magistrate Arena's report and agrees with his conclusions and recommendations, for which reason we hereby APPROVE and ADOPT them as our own.

WHEREFORE, for the reasons stated in Magistrate Arenas' report and recommendation, co-defendant Almacenes Pitusa, Inc.'s motion to dismiss (Docket # 9) is hereby DENIED; co-defendants Vélez and Lasalle's motions to dismiss (Docket # 8) are hereby GRANTED, and the federal and supplemental causes of action against them are therefore DISMISSED. Partial judgment will be entered accordingly

SO ORDERED.

MAGISTRATE'S REPORT AND RECOMMENDATION

ARENAS, United States Magistrate Judge.

On July 14, 1995, plaintiff Marisol de Jesús Pineda (hereinafter plaintiff or de Jesús) filed this Title VII claim against defendant "Empresas Koppel d/b/a Almacenes Pitusa" and co-defendants Domingo Vélez and Evelyn Lasalle (hereinafter co-defendants or Vélez and Lasalle), alleging that she had been sexually harassed by Domingo Vélez, her supervisor at the Utuado [Empresas Koppel d/b/a] Almacenes Pitusa store at which she worked from May 1992 until her discharge on May 7, 1994. Co-defendant Evelyn Lasalle was the store manager during this time.

Jurisdiction of this court is invoked pursuant to the Civil Rights Act of 1991. 28 U.S.C. § 2000e-5. Pendent jurisdiction is invoked pursuant to 28 U.S.C. § 1367 for various state law claims.1

Service of process was made on August 15, 1995 upon Brenda Martínez, a secretary at Almacenes Pitusa, authorized to receive summonses. On September 12, 1994, the defendant, referring to itself as "the wrongfully named ... `Empresas Koppel d/b/a Almacenes Pitusa,'" filed a motion "Requesting Extension of Time to Answer and/or Otherwise Plead." An amended complaint was filed on September 20, 1995, in which "Almacenes Pitusa, Inc." was added as a party and "Empresas Koppel d/b/a Almacenes Pitusa" was eliminated as a party.

On October 5, 1995, the defendant and co-defendants moved to dismiss the cause of action. Co-defendants Vélez and Lasalle claimed that the plaintiff has no cause of action against them because they are not employers under the definition of "employer" in Title VII and that the plaintiff failed to exhaust all administrative remedies.

In its motion to dismiss, "Empresas Koppel d/b/a Almacenes" changed its status from "the wrongfully named co-defendant" to "the non-existing party" and argued that there can be no cause of action against it because it does not exist. Additionally, it claimed that the plaintiff had not brought a timely action within the 90-day statutory period. Finally, it contended that since the existing party, "Almacenes Pitusa, Inc.," had not yet been served with process on the date of the motion's filing, the action against it is time-barred.2 If dismissals are granted, the supplemental claims must then follow.

Plaintiff opposed the motion to dismiss on December 11, 1995, and a reply to the opposition was tendered on December 20, 1995, and later filed.

In reviewing the dispositive motions, I accept the facts in the complaint as true, and if necessary draw all reasonable inferences in favor of the non-movant. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993).

I. BACKGROUND

De Jesús worked as a store clerk at the Utuado branch of Almacenes Pitusa from May of 1992 until her dismissal on May 7, 1994. Throughout her term of employment, her performance was consistently rated as excellent by her supervisors. De Jesús alleges that in response to sexual harassment by her supervisor Domingo Vélez, she met co-defendant Lasalle at Lasalle's home and requested that she intervene and file a complaint against him. Lasalle refused, however, to do so, and warned that if de Jesus filed a complaint, she would be fired. Fearful of losing her job, de Jesús did not press the matter further, but the harassment continued.

On May 7, 1995, de Jesús confronted Vélez and requested a meeting with the regional supervisor. In response, Vélez became angry and battered de Jesús, who proceeded to file a criminal charge of battery against him. After the criminal charge was filed, de Jesús was summarily dismissed from her job.

On November 8, 1994, de Jesús filed charges of sex discrimination, sexual harassment, and retaliation with the E.E.O.C. and the Director of the Anti-Discrimination Unit of the Department of Labor and Human Resources of the Commonwealth of Puerto Rico. Conciliation was attempted and failed. The E.E.O.C. issued de Jesús a right to sue letter or April 18, 1995.

The defendants raise several issues which I will address seriatim.

II. DEFENSES BY CO-DEFENDANTS VELEZ AND LASALLE

In their motion to dismiss, co-defendants Vélez and Lasalle claim that the plaintiff has no cause of action against them because 1) they are not employers under Title VII's definition of "employer" and 2) the plaintiff failed to exhaust the administrative requirements and failed to timely file administrative claims.

For the reasons discussed below, I recommend dismissal of the complaint, including all supplemental claims against Vélez and Lasalle, because they are not employers within the statutory definition in Title VII. Notwithstanding my recommendation to dismiss, in evaluating the second defense, I would find that the plaintiff did exhaust all administrative requirements and timely filed her administrative claims.

A. Do Vélez and Lasalle Fall Within the Statutory Definition of "Employer?"

Under Title VII, it is unlawful "for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1).

Although the statute does not explicitly address the question of sexual harassment, it has been interpreted to prohibit such behavior. Marrero-Rivera v. Department of Justice, 800 F.Supp. 1024, 1027 (D.P.R.1992). Furthermore, since 1980, the regulations governing Title VII have explicitly prohibited sexual harassment. 29 C.F.R. § 1604.11.

De Jesús may pursue her Title VII sexual harassment claim against co-defendants Vélez and Lasalle only if they were her "employers" within the meaning of Title VII. The statute defines an employer as "a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person." 42 U.S.C. § 2000e(b).

Although the law is completely silent as to individual liability,3 de Jesús argues that the co-defendants, as the plaintiff's supervisors, may be held personally liable under Title VII as agents of Almacenes Pitusa, Inc. Vélez and Lasalle contend that while supervisors may ordinarily be said to be agents of their corporate employer, this agency does not render them independent "employers" as defined in Title VII.

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