Ramos-Borges v. P.R., P.R. Health Dept.
| Decision Date | 27 September 2010 |
| Docket Number | Civil No. 08-1692 (JA) |
| Citation | 740 F.Supp.2d 262 |
| Parties | Lynnette RAMOS-BORGES, Plaintiff v. Commonwealth of PUERTO RICO, PUERTO RICO HEALTH DEPARTMENT, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Ericson Sanchez-Preks, Godwin Aldarondo-Girald, Aldarondo Girald Law Office, San Juan, PR, for Plaintiff.
Miguel A. Rangel-Rosas, Maymi, Rivera & Rotger, PSC, Wandymar Burgos-Vargas, P.R. Department of Justice, San Juan, PR, for Defendants.
JUSTO ARENAS, United States Chief Magistrate Judge.
This matter is before the court on a motion for summary judgment filed by the defendants Commonwealth of Puerto Rico and Puerto Rico Health Department, Rosa Pérez-Perdomo, former Secretary of Health, Samuel Barbosa, Director of Internal Audit of the Department of Health, and Hermes Rivera-Polanco, Director of Human Resources of the Department ofHealth, in their personal and official capacities where applicable, on March 31, 2010. (Docket No. 39.) Plaintiff, Lynnette Ramos-Borges, filed a motion in opposition to the motion for summary judgment on July 2, 2010. (Docket No. 69.) For the reasons set forth below, the defendants' motion for summary judgment is GRANTED.
The facts as gleaned from the complaint, all facts of which have been denied by the defendants in their answer to the complaint, and are as follows: 1
Plaintiff is an accountant with two masters degrees and twenty years of public service. (Docket No. 1-10, at 3, ¶¶ 7-8.) During the year 2000, Dr. Carmen Feliciano ("Dr. Feliciano"), Secretary of Health, requested that plaintiff work with her at the Department of Health ("DOH"). ( Id. 3, ¶ 9.) During the New Progressive Party ("NPP") administration, plaintiff was appointed to a trust position as the Director of Internal Audits, under Dr. Feliciano's supervision. ( Id. ¶ 10.) Later, the position of Auditor VI (Deputy Director of the DOH) was opened as a career position. ( Id. ¶ 11.) Plaintiff applied for the position and was selected for the same on September 1, 2000. ( Id. ¶ 12.)
Plaintiff was a well-known member of the NPP. While at the DOH, plaintiff participated in activities sponsored by the DOH's NPP-affiliated employees. ( Id. ¶ 13.) During her probationary period under Dr. Feliciano's supervision, plaintiff received good performance evaluations. ( Id. at 4, ¶ 14.) After the 2000 elections, there was a change in government and the Popular Democratic Party ("PDP") gained control. ( Id. ¶ 17.) Dr. Johnny Rullán ("Dr. Rullán") replaced Dr. Feliciano as the Secretary of Health of the DOH. (Docket No. 1-10, at 4, ¶ 18.) Samuel Barbosa ("Mr. Barbosa") was appointed in a trust position as the Director of Internal Audits and became plaintiff's immediate supervisor. Plaintiff remained Deputy Director, but Mr. Barbosa did not assign her duties. ( Id. ¶¶ 19-20.)
On October 2, 2001, the defendants notified plaintiff, in a letter dated September 6, 2001, of their intent to declare null and void her career appointment, that she failed to comply with her probationary period and that they were reducing her salary by eliminating a salary differential. ( Id. at 4-5, ¶¶ 22-23.) In or around January 2002, the defendants referred plaintiff's appointment to the Secretary of Justice to take legal action to remove her from the career position. On November 18, 2002, defendants filed a quo warranto and declaratory judgment complaint against plaintiff and several other employees and requested that the court declare plaintiff's appointment null and void and order her removed from said position. ( Id. at 5, ¶¶ 24-25.) Plaintiff was forced to retain an attorney to defend her in said action. ( Id. ¶ 26.) On February 24, 2004, the Court of First Instance dismissed the complaint. The defendants challenged the court's dismissal at both the Commonwealth Court of Appeals and the Supreme Court but appellate review was denied. ( Id. ¶¶ 27-31.)
After the court proceedings, Dr. Pérez-Perdomo ("Dr. Pérez") and the other defendants continued the alleged acts of discrimination and created a hostile work environment with "innuendos," a demotion,selective discipline and retaliation. (Docket No. 1-10, at 6, ¶ 32.) Plaintiff requested a statutory salary increase, which was denied. ( Id. ¶ 33.) Plaintiff's file was audited and an additional $100 reduction to her salary was imposed. Plaintiff objected to this reduction to Mr. Barbosa, Hermes Rivera-Polanco ("Mr. Rivera") and Edith Sánchez ("Mrs. Sánchez"), the Deputy Director of Human Resources. ( Id. ¶ 34.) Plaintiff requested to be able to review her personnel file in order to respond to the defendants' claims; access to her file was denied. ( Id. ¶ 35.) Plaintiff alleges that the defendants, in a concerted manner, began to harass her due to her visits to the Human Resources Office. They questioned her for said visits and reprimanded her if she was tardy. Meanwhile, other employees were not disciplined for their tardiness or for going to the bathroom. ( Id. ¶ 36.) If plaintiff was late five minutes, said time was deducted from her pay while other employees who were late were treated differently. ( Id. at 7, ¶ 39.) She understands that the defendants created a hostile work environment with the intention of forcing her to resign. ( Id. at 6, ¶ 36.) Plaintiff requested a leave of absence without pay to study and prepare for an exam to obtain her Certified Public Accountant ("CPA") license but the same was denied. ( Id. at 6-7, ¶ 37.) Plaintiff also understands that Mr. Barbosa made an improper comment, while stating that "he wanted to make an audit with her in Vieques during the weekend," when there was no office in Vieques to audit. She complained about this statement but the defendants took no action. (Docket No. 1-10, at 7, ¶ 38.)
On or around July 1, 2007, plaintiff was demoted from Auditor VI to Auditor II. Orlando Vélez ("Mr. Vélez"), who was Auditor V, was appointed as Deputy Director and classified as Auditor VI. Plaintiff alleges she was stripped of her career position, rank and duties. ( Id. ¶ 40.) Plaintiff requested that the defendants review this decision and that she be reinstated in her career position. However, plaintiff remains an Auditor II without duties. ( Id. ¶ 41.) On December 14, 2007, plaintiff followed-up on her request seeking review of her demotion. The defendants denied ever receiving copy of such request. Plaintiff also wrote to Mr. Rivera and included a copy of her initial request to review her demotion. ( Id. at 9, ¶ 53.) On or around February 11, 2008, Mr. Barbosa was threatening and shouting at plaintiff during work hours. He falsely accused her of "having damaged his car." Plaintiff became very nervous. ( Id. at 7-8, ¶¶ 42-43.)
After this incident, plaintiff went immediately to Dr. Pérez' office to complain about Mr. Barbosa's actions, but Dr. Pérez refused to receive plaintiff and referred the matter to one of her assistants. Plaintiff collapsed at Mrs. Pérez' office and was taken to the hospital by ambulance. ( Id. at 8, ¶¶ 44-45.) She was placed on medical rest by the State Insurance Fund Corporation ("SIFC"). After plaintiff exhausted her sick leave, co-workers donated days from their sick leave. The leave donation was rejected by the defendants. Plaintiff understands this was done with the intention to keep her without salary and force her resignation. (Docket No. 1-10, at 8, ¶ 46.) Further, plaintiff alleges that the defendants made derogatory comments about NPP members and against her. Mr. Barbosa told plaintiff she had "to take it," to accept things since they "were in power now," referring to the PPD. ( Id. ¶¶ 48-49.)
On June 26, 2008, plaintiff filed a complaint against the defendants pursuant to 42 U.S.C. §§ 1983, 1985(3), and 1988, andthe First, Fifth and Fourteenth Amendments to the Constitution of the United States. (Docket No. 1-10, at 2, ¶ 6.) Plaintiff also brought several supplemental claims under the laws and Constitution of Puerto Rico alleging violations of her rights since the causes of action stem from the same nucleus of operative facts as their federal counterparts. ( Id.) The state causes of action are brought under Law 115 of December 20, 1991, P.R. Laws Ann. tit. 29, § 194 et seq.; Law No. 426 of November 7, 2000, P.R. Laws Ann. tit. 1, § 601 et seq.; Law No. 100 of June 30, 1959, as amended, P.R. Laws Ann. tit. 29, § 146 et seq. ( Id.) On March 6, 2009, the defendants filed their answer to plaintiff's complaint admitting nothing. (Docket No. 11.)
On March 31, 2010, the defendants moved for summary judgment. (Docket No. 39.) They argue in their motion and memorandum of law in support that plaintiff's section 1983 claim is time-barred since, notwithstanding the allegation that the discriminatory practice began in 2001, only two events of the arguable series of acts fall within the applicable statute of limitations, that is, events occurring between June 26, 2007 and June 26, 2008, the date of the filing of the complaint. ( Id. at 6.) Specifically, the defendants claim that the following acts are time barred:
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