Ramos–Santos v. Hernandez–Nogueras

• Citation: 867 F.Supp.2d 235
• Decision Date: 08 June 2012
• Docket Number: Civil No. 11–1105 (FAB).
• Parties: Nelida RAMOS–SANTOS, Plaintiff, v. Jeremias HERNANDEZ–NOGUERAS, Carmen G. Rodriguez–Diaz, Cuerpo de Bomberos de Puerto Rico, Commonwealth of Puerto Rico, John Doe, Richard Doe, Peter Roe, Nancy Doe, Carl Roe, Defendants.
• Court: U.S. District Court — District of Puerto Rico

867 F.Supp.2d 235

Nelida RAMOS–SANTOS, Plaintiff,

v.Jeremias HERNANDEZ–NOGUERAS, Carmen G. Rodriguez–Diaz, Cuerpo de Bomberos de Puerto Rico, Commonwealth of Puerto Rico, John Doe, Richard Doe, Peter Roe, Nancy Doe, Carl Roe, Defendants.

Civil No. 11–1105 (FAB).

United States District Court,

D. Puerto Rico.

June 8, 2012.

Frank D. Inserni–Milam, Frank D. Inserni Law Office, San Juan, PR, Celina Romany–Siaca, Celina Romany Law Office, Guaynabo, PR, for Plaintiff.

Angel E. Rotger–Sabat, Maymi, Rivera & Rotger–Sabat, Miguel A. Rangel–Rosas, Maymi, Rivera & Rotger, PSC, Vanessa D. Bonano–Rodriguez, Department of Justice, San Juan, PR, for Defendants.

OPINION AND ORDER ¹

BESOSA, District Judge.

Before the Court is the Report and Recommendation (“R & R”), (Docket No. 117), regarding two motions to dismiss: one filed by defendants Carmen G. Rodriguez–Diaz (“Rodriguez”), the Cuerpo de Bomberos de Puerto Rico (Puerto Rico Fire Department) (“PRFD”), and the Commonwealth of Puerto Rico (“the Commonwealth”), (Docket No. 23); the other, filed by Jeremias Hernandez–Nogueras (“Hernandez”) (Docket No. 24). Also before the Court is defendant Rodriguez's unopposed motion alleging qualified immunity (Docket No. 36). Having considered the magistrate judge's recommendations, as well as plaintiff's objections to the R & R and defendants' opposition to plaintiff's objections, (Docket Nos. 135 & 144), the Court ADOPTS the findings and recommendations of the magistrate judge.

I. BackgroundA. Factual Background

The Court declines to rehash all of the facts that are contained in the magistrate judge's R & R. Instead, the Court provides a brief overview of the facts, and will supply more details as needed. At the motion to dismiss stage under Federal Rule of Civil Procedure 12(b)(6) (Rule “12(b)(6)”), a court must accept the “well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his [or her] favor.” Medina–Claudio v. Rodriguez–Mateo, 292 F.3d 31, 34 (1st Cir.2002). Therefore, the Court relies on the statement of facts as it appears in plaintiff's second amended complaint. (Docket No. 67.)

Nelida Ramos–Santos (“plaintiff”) is a career employee with the Commonwealth and has worked for the PRFD since 1988. Id. at ¶ 20. After a series of promotions, plaintiff was appointed Head of Administration of the PRFD by defendant Rodriguez in March, 2010. Id. at ¶¶ 20–27. Defendant Rodriguez herself had recently been selected as Chief of the PRFD. Id. at ¶ 27. Shortly thereafter, defendant Hernandez was appointed Transportation Director of the PRFD and assigned to the same office building as plaintiff. Id. at ¶ 29.

Upon being introduced to plaintiff sometime in July, 2010, defendant Hernandez began what plaintiff describes as “a constant pattern of flirtatious remarks, constant invitations to go out to lunch, constant phone calls to her office, winks, and very frequent visits to plaintiff's office seeking help in matters that he himself could easily resolve.” Id. at ¶ 29. The magistrate judge notes that plaintiff's complaint fails to describe in any detail the alleged flirtations and remarks attributed to defendant Hernandez. (Docket No. 117 at p. 3.)

In mid-July, 2010, both plaintiff and defendant Hernandez attended a League of United Latin American Citizens (“LULAC”) convention in New Mexico. (Docket No. 67 at ¶¶ 31, 33.) On July 13, 2010, before leaving for the convention, plaintiff received a phone call from Manolo Fontan (“Fontan”), a service manager from Guaraguao Truck Sales, a supplier for the PRFD. Id. at ¶ 31. Fontan told plaintiff that defendant Hernandez had asked him to provide $5,000.00 to cover the cost of the PRFD employees' tickets to New Mexico for the LULAC convention. Id. Fontan said that he had only enough money to buy one round-trip ticket, and that he had mailed a check to PRFD headquarters. Id. When plaintiff later received the check, she quickly informed defendant Rodriguez of its “illegality.” Id. at ¶ 32. Defendant Rodriguez said to plaintiff, “pay [for] the plane ticket and I will take care of returning the money later.” Id.

Upon arriving in New Mexico for the convention, a number of PRFD employees, including plaintiff and defendant Hernandez, stayed at the same hotel. Id. at ¶ 33. On July 16, 2010, plaintiff and defendant Hernandez were part of a group of PRFD employees gathered around the hotel pool. Id. Defendant Hernandez made an unkind remark to plaintiff about a PRFD captain named Luis Otto, whom he referred to as “that Popular,” a comment which plaintiff characterizes as showing “a patent discrimination for political reasons.” Id. Uncomfortable, plaintiff retired to her hotel room. Id. at ¶ 34. An hour later, defendant Hernandez called plaintiff in her room, inquiring whether she was upset with him. Id. at ¶ 35. Plaintiff responded by telling defendant Hernandez to refrain from calling her. Id. At around midnight that same evening, defendant Hernandez called plaintiff again; he told her that he was lonely and asked if she would like to come up to his room. Id. at ¶¶ 35–36. He also told plaintiff, in an excited manner, that “what he had for her was big and fat, referring to his penis, that she would like it, that he was crazy about giving her a kiss and that one of these days he would steal one from her.” Id. at ¶ 36.

During the LULAC convention, defendant Hernandez commented among members of the group that he was plaintiff's “bodyguard” and had to stay close by her because he was “assigned to this mission.” Id. at ¶ 37. Plaintiff told defendant Hernandez to refrain from making such comments, reminding Hernandez that she was married. Id. at ¶ 38. Nonetheless, defendant Hernandez persisted in asking plaintiff about her marital status despite plaintiff'srefusal to engage in conversation. Id.

On August 16, 2010, defendant Hernandez and PRFD General Counsel Efren Gonzales prepared a complaint against plaintiff alleging sexual harassment. ²Id. at ¶ 39. The next day, defendant Hernandez told plaintiff that she seemed different ever since he had refused her repeated requests to go to her room at the LULAC convention. Id. At the same time, defendant Hernandez also began complaining to defendant Rodriguez about plaintiff's incompetence and failure to perform her duties. Id. at ¶ 41.

On September 14, 2010, plaintiff filed an administrative complaint against defendant Hernandez alleging sexual harassment and acts of retaliation. Id. at ¶ 42. Defendant Rodriguez told plaintiff “that she was being demoted to a lower rank position” on September 29, 2010.³Id. at ¶ 43. On the same day, plaintiff was excluded from a meeting she usually attended. Id. Plaintiff filed a complaint with the EEOC on September 30, 2010. Id. at ¶ 44.

Between October 1 and December 27, 2010, “defendants gradually ... demoted [plaintiff] and withdrew [her] work functions.” Id. at ¶ 45. Plaintiff was moved to a different office with a damaged chair and without a working air conditioner; she was denied Internet access and admission to her assigned parking spot; and she was forced to maintain the facilities herself, mopping a filthy and unhygienic floor. Id. Moreover, whenever plaintiff encountered defendant Hernandez in the PRFD office building, he greeted her with “menacing and threatening demeanors [sic].” Id. at ¶ 46. Despite claiming that she was asked to leave the agency, plaintiff is still employed at the PRFD. (Docket No. 117 at p. 6.)

B. Procedural Background

On September 15, 2011, plaintiff filed a second amended complaint against defendants Hernandez and Rodriguez in their individual and official capacities, the Commonwealth, the PRFD, and a number of unnamed defendants. (Docket No. 67.) Plaintiff brings claims of sexual harassment and retaliation under a variety of federal and local statutes, to wit, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, the First and Fourteenth Amendments of the U.S. Constitution, Federal and Commonwealth whistleblower laws, and Puerto Rico Laws 17, 69, 100, 115 and 426.⁴Id. at ¶¶ 1, 2, 50, 56, 59–61. Plaintiff seeks injunctive relief, compensatory damages, interest in back pay, punitive damages, attorneys fees and the reimbursement of litigation costs. Id. at ¶ 1.

On April 5, 2011, defendants Rodriguez, the Commonwealth and the PRFD filed a motion to dismiss pursuant to Rule 12(b)(6). (Docket No. 23.) On April 15, 2011, defendant Hernandez filed a separate motion to dismiss. (Docket No. 24.) In sum, defendants argue that all of plaintiff's claims that are not barred by the Eleventh Amendment ought to be dismissed for failure to state a cause of action. In addition, on May 23, 2011, defendant Rodriguez filed a motion seeking qualified immunity, reasoning that plaintiff had failed to plead a plausible constitutional claim. (Docket No. 36.)

Plaintiff filed an opposition to defendants' motions to dismiss on April 25, 2011. (Docket No. 31.) In addition to refuting defendants' arguments, plaintiff includes in her response several documents supporting her claim that she was demoted in retaliation for her administrative complaints concerning Hernandez. Specifically, plaintiff submits Spanish-language paystubs showing a change in salary and rank, arguing that these establish evidence of a property interest directly affected by the demotion. ( See Docket No. 31.) On May 13, 2011, defendants Rodriguez, the Commonwealth, and the PRFD filed a reply to plaintiff's opposition to their motion to dismiss, arguing that plaintiff has failed to support any of her claims with sufficient facts. (Docket No. 35.)

Pursuant to a referral order issued by the Court, Magistrate Judge Marcos E. Lopez filed an R & R with regard to the motions to dismiss and the motion for qualified immunity on May 1, 2012. (Docket No. 117.) First, Magistrate Judge Lopez recommends that defendant Hernandez's motion to dismiss be GRANTED. Second, he recommends that defendants Rodriguez,...