Rios v. Municipality of Guaynabo

• Decision Date: 12 April 2013
• Docket Number: Civil No. 10–1293 (SEC).
• Parties: Maribel Montalvo RIOS, Plaintiff, v. MUNICIPALITY OF GUAYNABO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

938 F.Supp.2d 235

Maribel Montalvo RIOS, Plaintiff,

v.MUNICIPALITY OF GUAYNABO, et al., Defendants.

Civil No. 10–1293 (SEC).

United States District Court,

D. Puerto Rico.

April 12, 2013.

Vilma M. Dapena–Rodriguez, San Juan, PR, for Plaintiff.

Wandymar Burgos–Vargas, P.R. Department of Justice, Rafael E. Rivera–Sanchez, San Juan, PR, for Defendants.

OPINION AND ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Before the Court are the defendants' motions for summary judgment (Dockets # 169 & 172), the plaintiff's oppositions thereto (Dockets # 197 & 210), and the parties' respective replies (Dockets # 220 & 238). After reviewing the filings and the applicable law, the motions are GRANTED in part and DENIED in part.

Factual and Procedural Background

This case raises an issue of public import: The proper standard for determining when a high level official of a municipality is its proxy or alter ego for purposes of potential automatic employer liability for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. It also presents the opportunity to address whether the First Circuit's decision in Fantini v. Salem State Coll., 557 F.3d 22 (1st Cir.2009) tacitly overruled a putative exception to the no-individual-liability rule under Title VII: The so-called alter ego doctrine, as construed by some cases in this district.

The procedural history of this case has been neither straightforward nor laconic, and the facts are voluminous. In order to properly set the stage for the analysis, a comprehensive and specific recount of the procedural details in this case is indispensable. Maribel Montalvo Rios filed this federal question suit against the Municipality of Guaynabo (the “Municipality”) and its then-police chief Carmelo Correa under Title VII, alleging sexual harassment and retaliation. Montalvo also invoked supplementary jurisdiction under (1) Law 100, P.R. Laws. Ann. tit. 29, §§ 146–151; (2) Laws 17 and 69, P.R. Laws Ann. tit. 29, §§ 1551321; (3) Law 115, P.R. Laws Ann. tit. 29, § 194a; and (4) Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 51415142.

The following relevant material facts, drawn from the deposition testimony, affidavits, relevant statutes, and other documentary evidence, are outlined in a light most favorable to the non-movant, Montalvo. See Pérez–Cordero v. Wal–Mart Puerto Rico, Inc., 656 F.3d 19, 20 (1st Cir.2011).¹

Just like its sister municipalities, the Municipality “is the juridical entity of local government, subordinated to the Constitution of the Commonwealth of Puerto Rico and to its laws, whose purpose is the local common welfare and within it, primarily, the handling of the affairs, problems and collective needs of the inhabitants thereof. P.R. Laws Ann. tit. 21 § 4003. “From a[ ] historical point of view,” the Supreme Court of Puerto Rico has explained, “municipalities have existed as government autonomous entities with the purpose of facilitating the effective achievement of their politico-administrative ends. It has also been said that municipalities exist with the purpose of enforcing a state power that could be exercised by the government but not as conveniently as by the municipal entity.” Colon v. Municipio de Guayama, 14 P.R. Offic. Trans. 249, 256–57 (1983) (citation omitted). At its core, the Municipality is “governed by a local government composed of a Legislative Power and an Executive Power.” P.R. Laws Ann. tit. 21, § 4001(u).

The mayor, of course, is the highest authority of the executive branch of the municipal government, and as such, is charged with the direction, administration, and supervision of the operations of the municipality.” Id. § 4109. At the times material hereto, Héctor O'Neill is the Municipality's mayor (the “Mayor”). As mayor, he has the power to “appoint all officials and employees and dismiss them from their positions when necessary for the good of the service....” Id. § 4109( o).

Montalvo began working for the Municipality in 1992 as an Office Assistant. Docket # 244–1. A year later, the Municipal Assembly enacted Ordinance No. 84 of November 9, 1993 to establish a “Public Policy Manual on [S]exual [H]arassment.” Docket # 253–1, p. 1.² The ordinance also established an internal complaint procedure under which “[a]ny municipal employee may file a complaint for sexual harassment,” with “their immediate supervisor.” Id., p. 3 (bold omitted). This so-called “initial claim” could be verbal or in writing. Id.

While the Municipality is composed of various administrative units, the Municipality is the only entity that can sue and be sued. P.R. Laws Ann. tit. 21, § 4051(b).³ The relevant events occurred at the Municipality's Police Department (the “Department”). Although municipalities are not statutorily required to establish a police department, seeP.R. Laws Ann. tit. 21 § 4251, Puerto Rico law allows municipalities to “establish a public vigilance and protection corps,” P.R. Laws Ann. tit. 21 § 1063.

The Department is in charge of

compelling obedience to the ordinances and regulations promulgated by the corresponding municipality, provisions on illegal parking of vehicles, and to prevent, discover and investigate crimes of domestic violence ..., breaking and entering, battery, and unlawful possession crimes as well as misdemeanors included pursuant to the Penal Code of Puerto Rico, and to persecute crimes committed in its presence, and within its jurisdiction or outside of them whenever it is necessary to conclude an intervention initiated in the municipality of its jurisdiction. Id.

The Department is in turn divided in two major areas: The civilian employees and the “employees in uniform” (e.g., police officers) who follow the “rank system.” Docket # 189–1, p. 22:23–24. In 2005, the Municipality's Mayor appointed Correa as Police Commissioner. Docket # 227–14. As Commissioner, Correa was in command of the Municipal Police and of its divisions, Docket # 227–9 p. 52:8–21, although the Mayor was his “immediate boss.” Docket # 185–1, p. 48:1–4.⁴ Puerto Rico law requires that the Department be “constituted into a unified organization system,” whereby Correa was empowered “to determine the best use of human resources ...” P.R. Laws Ann. tit. 21 § 1067(g).

While the Mayor had the ultimate authority to fire an employee, in practice it was Correa who recommended termination to Human Resources, although “they did not necessarily always have to follow ..[his] instructions.” Docket # 185–1, 42:15–17. By law, furthermore, Correa had to “propose” the appointments of “the members of the Municipal Police and the civilian personnel of the Corps,” and then the Mayor would actually “make” the appointment. P.R. Laws Ann. tit. 21, § 1067(a). Regarding disciplinary actions, Correa was “empowered to set aside or confirm the punishment, or impose any other that he may deem reasonable....” Id. § 1069.

Correa also “participate[d] in the process of creating public policy.” Docket # 185–1, p. 52:19–21, insofar as he “made press statements” on behalf of the Municipality without prior approval from the Mayor. Id., pp. 52–53. He also had the power to “prepare[ ] and administer[ ] the expense budget of the Municipal Police” and “manage[ ] administrative complaints filed by citizens against Municipal Police personnel.” Docket # 189–2, p. 2.

On July 1, 2006, Montalvo was transferred to the Department, becoming an “Executive Officer I” of its Purchases and Supplies Division, a civilian position that she presently holds. Docket # 244–2; Docket # 88, ¶ 15; Docket # 189–6, p. 2. The Purchases and Supplies Division where Montalvo works is one of 15 divisions. Docket # 170–4; Docket # 227–9:51 18.21. Although Montalvo's immediate supervisor is Zaida Avilés, Docket # 185–1, p. 31:7–15, Correa was Montalvo's next-in-line (and ultimate) supervisor, and she “answered” to him. Docket # 189–6, p. 2. “Almost always,” Montalvo testified in her deposition, she reported directly to Correa. Docket # 185–5, p. 92:13–19.

From January 2009 until August 2009, Montalvo alleges that Correa sexually harassed her by subjecting her to a pattern of sexual advances and innuendos during work hours. The most salient, but not all sexual harassment allegations, are reproduced as they appear in Montalvo's Amended Complaint, see Docket # 72, ¶¶ 21–42, supplementing them with Montalvo's deposition and affidavit testimony, see, e.g., Docket 189–5 & 6, Docket # 244–12.⁵

The alleged sexual harassment began in early January 2009, when Correa told Montalvo “how good she looked,” saying that the money she had just spent in a breast-augmentation surgery was “a good investment.” Correa allegedly also told Montalvo that he “needed to see and taste the work done on her breasts.” Montalvo testified that Correa's comments on and stares at her breasts were commonplace, and so were his unwelcome sexual gestures with his hand.

On January 30, Correa asked Montalvo if she ever had sex in the office and suggested that she wear a skirt to the office. Correa also told Montalvo that “she would like it (the sex),” and that she should not be afraid. Montalvo alleges that Correa justified his “illegal actions by saying that this was “modern supervision.” Montalvo says that when she rejected Correa, he would often laugh, and say that “this was modern supervisor.” According to Montalvo, Correa would constantly boast that he was the “chief of this fucking Police Department.”

In February, Montalvo alleges that Correa decided to invite her on a date, assuring her that “ ‘she would like it and that she should not be afraid.’ ” Correa also tried touching Montalvo, repeating the term “modern supervision.” Later that month, Correa entered Montalvo's office and asked her if she wanted to become “the first lady of the Police Department.” Correa then entered Montalvo's office and asked her how long had she been single, explaining that “sex was important to get rid of...