Silva v. Universidad de Puerto Rico

• Decision Date: 03 May 1993
• Docket Number: Civ. No. 93-1022(PG).
• Citation: 817 F. Supp. 1000
• Parties: Ledy M. SILVA, Plaintiff, v. UNIVERSIDAD DE PUERTO RICO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

817 F. Supp. 1000

Ledy M. SILVA, Plaintiff, v. UNIVERSIDAD DE PUERTO RICO, et al., Defendants.

Civ. No. 93-1022(PG).

United States District Court, D. Puerto Rico.

March 26, 1993.

Opinion Denying Reconsideration May 3, 1993.

Dennis A. Simonpietri, Rafael A. Oliveras, Hato Rey, PR, for plaintiff.

Heber E. Lugo Rigau, Hato Rey, PR, for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

I. Introduction

This action was commenced against defendants, the University of Puerto Rico ("UPR") and Héctor M. Quiñones,¹ on January 8, 1993. The complaint in essence charges the defendants with sexual harassment and retaliation and requests relief pursuant to (i) several civil rights statutes: 42 U.S.C. §§ 1981, 1983, 1988 and 2000e (Title VII); (ii) their local counterparts: 29 L.P.R.A. §§ 146 (Law 100), 1321 (Law 69), 155 (Law 17), 185a (Law 80), 245w (Article 24); and, (iii) the local tort statute, Article 1802 of the Civil Code, 31 L.P.R.A. § 5141.²

The UPR has presently moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on several grounds. First, regarding the Title VII claim, it contends that plaintiff did not comply with the necessary administrative requirements necessary to obtain access to this forum. Second, regarding the claims brought under sections 1981 and 1983, it contends that they (i) are time barred; (ii) are not applicable to it since the UPR is not a "person" under the definitions provided by these statutes; or (iii) are barred because the UPR enjoys Eleventh Amendment immunity.

II. The Relevant Facts³

Plaintiff, Ledy M. Silva, began to work for the defendant UPR in the Purchases and Supplies Office on July 15, 1971. As of April 1990 defendant Quiñones was her supervisor. Shortly after learning of plaintiff's divorce, Quiñones started to compliment her about her looks and the way she dressed. On occasion, he expressed that he liked her. Once, he even asked her to go out with him, an invitation which she declined on the clearly emphasized ground that she would not mix work with love. Quiñones then asked for forgiveness.

Occasionally, Quiñones would approach plaintiff and gently puff on her spine area without touching her. However, on the morning hours of August 9, 1990, Quiñones poured the drop that made the cup overflow. He asked plaintiff to accompany him into the storage room into an area that was not visible by fellow coworkers. Once there, he stated that he lusted for her. He then straddled against her back side, touching her body, kissing her, and telling her "This is the way I wanted to hold you." He then held her hands, kissed them, and then placed her right hand on his genital area. "See how I am," he stated. He then asked her to go out with him at noon. Once again she declined the invitation. Afterwards, Quiñones stated that because of her he had to go take a cold shower.

After the above incident, plaintiff completed her day of work, but did not return to her job. In the days to follow, she discussed the incident with a lawyer, her gynecologists, members of her immediate family and a close friend. On August 14, 1990, plaintiff discussed the incident with the Director of the Purchases and Supplies Office and informed her that she was in no condition to continue working there unless Quiñones would respect her. She discussed with the director the possibility that she be given leave without pay and also requested that she be transferred to another unit. The director asked her to state her petition in writing. On August 29, 1990, after consulting an attorney, plaintiff addressed a letter to the director discussing the sexual harassment incident and stating what she previously stated orally. The matter was then referred to the UPR's legal department. Through September 5 to October 1990, an investigation was undertaken; plaintiff and Quiñones were interviewed, but no other witnesses were interviewed. Eventually, plaintiff was notified that no action would be taken against Quiñones.⁴

Subsequently, plaintiff filed complaints before the Antidiscrimination Unit of the Puerto Rico Department of Labor ("AU") and the Equal Employment Opportunity Commission ("EEOC") via the former of these two agencies. The AU did not conduct its own full fledged investigation, but merely relied on that conducted by the UPR. In turn, the EEOC relied on that by the AU. Both agencies made findings of no probable cause.

Since plaintiff did not return to work after the August 9, 1990 incident, the UPR initiated administrative actions against her for violating its regulations.⁵ By doing so, the UPR ratified Quiñones' actions.

III. Discussion

(i) Sexual Harassment claim

Via judicial interpretation, Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, bars sexual harassment in the workplace. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 73, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). Before resorting to a federal court for redress of a Title VII violation, a plaintiff must first leap over several procedural hurdles. One such hurdle is 42 U.S.C. § 2000e-5(e), which provides:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful practice occurred, or within thirty days after receiving notice that the state or local agency has terminated the proceedings under the state or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the state or local agency.

Those states where a claimant must file a charge with the EEOC within one hundred eighty days are known as "nondeferral states," while those where a claimant has three hundred days to do so are known as "deferral states." Deferral states are those which have antidiscrimination laws and a state agency established or authorized to grant or seek relief from any discrimination. Pursuant to 42 U.S.C § 2000e-5(d) state agencies in deferral states have exclusive jurisdiction over discrimination claims for a period of sixty days unless the state agency disposes of the complaint beforehand.

Puerto Rico has both discrimination laws (i.e., Law 100) and a state agency authorized to grant relief from such discrimination ("El Departamento del Trabajo"—the Department of Labor). In addition, the EEOC has designated the Commonwealth's Department of Labor as a state deferral agency, 29 C.F.R. § 1601.74, and has entered into worksharing agreements with the AU. Hence Puerto Rico is a deferral jurisdiction for purposes of Title VII. Cuello Suárez v. Puerto Rico Electric Power Authority, 798 F.Supp. 876, 886 (D.P.R.1992) (Pérez-Giménez, J.), aff'd 988 F.2d 275 (1st Cir.1993); Calderón Trujillo v. Ready Mix Concrete, Inc., 635 F.Supp. 95, 98 (D.P.R.1986) (Cerezo, J.). Accord Matos Molero v. Roche Products, ___ D.P.R. ___, 93 J.T.S. 6, 10315 (Naveira de Rodón, J. writing unanimously for seven members of the Puerto Rico Supreme Court). Being a deferral jurisdiction, a Title VII claimant in Puerto Rico has three hundred days to file a claim with the EEOC.⁶

An exception to Puerto Rico's three hundred day deferral filing limit is found in 29 C.F.R. § 1601.74 n. 5 which states that:

The Commonwealth of Puerto Rico Department of Labor has been designated as a FEP agency for all charges except ... (3) charges alleging violations of Title VII by agencies or instrumentalities of the Government of Puerto Rico when they are not operating as private businesses or enterprises ... (emphasis added).

Thus, where an instrumentality of the Puerto Rico government, within the meaning of the above regulation, is charged with violating Title VII, a claimant must act within nondeferral jurisdiction time limits, that is within one hundred eighty days before the EEOC.

In Pérez v. Rodríguez Bou, 575 F.2d 21, 25 (1st Cir.1978) our Circuit stated via dictum that the UPR is an instrumentality of the Government:

The extent and nature of the Commonwealth of Puerto Rico's financial support for the University of Puerto Rico and the fact that the Commonwealth appoints the governing body of the University convinces us that the University is an "arm" of the state, ...

In Amelunxen v. University of Puerto Rico, 637 F.Supp. 426, 434 (D.P.R.1986), Judge Laffitte of this District analyzed the law creating the UPR and, relying on Pérez v. Rodríguez Bou, concluded that it is an "arm" of the Commonwealth. His decision was affirmed without an opinion in 815 F.2d 691 (1st Cir.1987). Subsequently, in Pinto v. Universidad De Puerto Rico, 895 F.2d 18, 18 (1st Cir.1990), Judge Aldrich stated in the Court's holding: "That the University cannot be liable for damages is clear." This Court's own independent analysis once again prompts the same conclusion for purposes of both the Eleventh Amendment and 29 C.F.R. § 1601.75 n. 5. The UPR is a tax exempt institution since it achieves a public purpose of the Commonwealth. 18 L.P.R.A. § 612(f). Its budget is provided by the general revenues collected by the government of Puerto Rico. 18 L.P.R.A. § 621a. Its governing board is appointed by the Governor with the advise and consent of the Senate. 18 L.P.R.A. § 602(b)(1).

It is true of course, that the UPR possesses various characteristics of an autonomous body. It has academic and administrative autonomy to achieve its objectives as provided by the law which created...