Vargas v. Fuller Brush Co. of Puerto Rico, No. CIV. 03-2056PG.

• Decision Date: 08 September 2004
• Docket Number: No. CIV. 03-2056PG.
• Citation: 336 F.Supp.2d 134
• Parties: Idiana Aguirre VARGAS, Plaintiff, v. THE FULLER BRUSH COMPANY OF PUERTO RICO, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

336 F.Supp.2d 134

Idiana Aguirre VARGAS, Plaintiff, v. THE FULLER BRUSH COMPANY OF PUERTO RICO, INC., et al., Defendants.

No. CIV. 03-2056PG.

United States District Court, D. Puerto Rico.

September 8, 2004.

COPYRIGHT MATERIAL OMITTED

Jose L. Cabiya-Morales, Wanda Cintron-Valentin, Cabiya & Molero Law Office, PSC, San Juan, PR, for Plaintiffs.

Juan M. Frontera-Suau, Frontera Suau Law Officer, San Juan, PR, for Fuller Brush Co. of Puerto Rico, Inc., Benancio Lopez, Eduardo Escalera, defendants.

Roberto A. Fernandez-Quiles, Gonzalez Castaner & Morales Cordero Law Office, San Juan, PR, for Juan Carlos Padron, defendant.

ORDER

PEREZ-GIMENEZ, District Judge.

ORDER granting in part and denying in part Motions to Dismiss, adopting Report and Recommendation.

REPORT AND RECOMMENDATION

VELEZRIVE, United States Magistrate Judge.

INTRODUCTION

Plaintiff Idiana Aguirre Vargas filed this action seeking damages against the above defendants on claims of sexual harassment by her employer, the Fuller Brush Company of Puerto Rico, Inc. ("Fuller") and some of its employees, including Juan Carlos Padrón ("Padrón"), as the alleged harasser, and Venancio López ("López") and Eduardo Escalera ("Escalera"), as executives of Fuller who failed to prevent Padrón's conduct and who created a hostile work environment. The claims fall under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Pendent supplemental jurisdiction under the laws of the Commonwealth of Puerto Rico are premised on the same alleged actions, to wit; Law 100 of June 30, 1959, 29 L.P.R.A. § 146; Law 17 of June 30, 1959, 29 L.P.R.A. § 155; Law 69 of July 6, 1985, 29 L.P.R.A. § 1321; Law 80 of May 30, 1976, 29 L.P.R.A. § 185a; Law 2 of October 17, 1961, 32 L.P.R.A. § 3132; and Articles 1802 and 1803 of the P.R. Civil Code, 31 L.P.R.A. § 5141 and § 5142.

Co-defendants Fuller, López and Escalera filed a Motion to Dismiss plaintiff's cause of action for lack of individual liability under Title VII. In essence, they argue neither of them is charged by plaintiff of engaging in any unlawful conduct of sexual nature and they were not named as parties in the charge filed with the Anti-Discrimination Unit of the Puerto Rico Department of Labor. Thus, plaintiff has failed to exhaust the administrative remedies. In addition, Fuller, López and Escalera contend there is no individual liability under Puerto Rico Laws 80, 100, 69 and 17 and the claims under Laws 100, 17 and 69 are time barred. Furthermore, they claim the allegations under Laws 100 and 80 should be dismissed because the application of the burden of proof established by both laws is in contravention of Fuller's due process right under the United States Constitution. Finally, they allege plaintiff's claims under Articles 1802 and 1803 of the Puerto Rico Civil Code are also time barred. (Docket No. 10).

Similarly, co-defendant Padrón filed a Motion to Dismiss claiming that individual defendants are not liable under Title VII and for failure to state a claim upon which relief could be granted. Fed. R.Civ. P. 12(b)(6). In essence, dismissal is sought under Title VII because the allegations in the complaint do not sustain a sexual harassment claim. Furthermore, Padrón argues, with no basis for federal subject matter jurisdiction, that this Court should not exercise supplemental jurisdiction and even if the exercise of supplemental jurisdiction is appropriate, the Court should dismiss the Commonwealth claims. (Docket No. 16).

Plaintiff submitted timely oppositions to both Motions to Dismiss. (Docket Nos. 21 and 22).

Both Motions to Dismiss were referred to this Magistrate Judge for report and recommendation (Docket No. 30).

ANALYSIS

Motion to Dismiss and Standard under Rule 12(b)(6).

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may, in response to an initial pleading, file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Still, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Miranda v. Ponce Fed. Bank, 948 F.2d 41 (1st Cir.1991).

The Court must accept as true "all well-pleaded factual averments and indulg[e] all reasonable inferences in the plaintiff's favor." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). A complaint must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 28 n. 2 (1st Cir.1996) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988)). The Court, need not accept a complaint's" `bald assertions' or legal conclusions" when assessing a motion to dismiss. Abbott, III v. United States, 144 F.3d 1, 2 (1st Cir.1998) (citing Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1216 (1st Cir.1996)).

Title VII Actions and Individual Defendants.

Determining the meaning of the term "employer" is essential because Title VII is directed at "employers." Title VII defines employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day and any agent of such person." 42 U.S.C. § 2000-e. Therefore, because of "individual capacity", above co-defendants are not the employing entity, and it should be determined whether they can be held liable as agents of the employing entity. Rivera Rodríguez v. Police Dept. of Puerto Rico, 968 F.Supp. 783, 785 (D.Puerto Rico 1997); Anonymous v. Legal Services Corporation of Puerto Rico, 932 F.Supp. at 50 (D.Puerto Rico 1996) (stating that "resolution of the [individual liability] question depends on how the `and any agent' language is interpreted.").

The Court of Appeals for the First Circuit has no final disposition as to individual liability under Title VII, but see Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 951-52 (1st Cir.1995) (leaving the question open) and Serapión v. Martínez, 119 F.3d 982, 992 (1st Cir.1997). More so, in a recent case there is a limited pronouncement on this issue, which seems to outline the path that may be soon followed. See Vélez v. Awning Windows, Inc., 375 F.3d 35, 42 n. 5 (1st Cir.2004), indicating that the law does not provide for supervisory liability under Title VII may be true, but that the state statute still imposes liability on supervisors for acts of sexual harassment. See Mejías Miranda v. BBII Acquis'n Corp., 120 F.Supp.2d 157 (D.Puerto Rico 2000) (no personal liability can attach to agents and supervisors under Title VII or the ADEA); Acevedo Vargas v. Colón, 2 F.Supp.2d 203, 205 (D.Puerto Rico 1998) (referring to the EEOC guidelines which establish the criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment for purposes of Section 703 of Title VII). Therefore, Title VII is the applicable federal cause of action addressing claims for sexual harassment in the workplace as to an employer.

Numerous Circuit Courts of Appeals have likewise held that no personal liability can be attached to agents or supervisors under Title VII. Serapión, 119 F.3d at 982 (declining to address the issue of individual liability); see Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7th Cir.1998) (citing Williams v. Banning, 72 F.3d 552 (7th Cir.1995), where no individual liability under Title VII was found); Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir.1998) (finding no individual liability under Title VII); Wathen v. General Elec. Co., 115 F.3d 400, 405-06 (6th Cir.1997) (same); Haynes v. Williams, 88 F.3d 898 (10th Cir.1996) (same); Dici v. Com. of Pa., 91 F.3d 542 (3rd Cir.1996) (same); Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir.1995) (same); Gary v. Long, 59 F.3d 1391 (D.C.Cir.1995) (same); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8th Cir.1995) (same); Smith v. Lomax, 45 F.3d 402 (11th Cir.1995) (same); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994) (same); Miller v. Maxwell's International, Inc., 991 F.2d 583 (9th Cir.1993) (same).

On a similar vain, numerous cases in the District of Puerto Rico have already determined that no personal liability exists under Title VII and that individual defendants are not liable under Title VII. See Vélez Sotomayor v. Progreso Cash & Carry, Inc., 279 F.Supp.2d 65 (D.Puerto Rico 2003); Serapión, 119 F.3d at 982; Padilla-Cintrón v. Rosselló-González, 247 F.Supp.2d 48 (D.Puerto Rico 2003); Canabal v. Aramark Corp., 48 F.Supp.2d 94, 95-98 (D.Puerto Rico 1999); Acevedo Vargas v. Colón, 2 F.Supp.2d 203, 206 (D.Puerto Rico 1998); Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 92-93 (D.Puerto Rico 1997); Hernández v. Wangen, 938 F.Supp. 1052 (D.Puerto Rico 1996); Anonymous v. Legal Services Corp., 932 F.Supp. at 50-51. And see Nieves v. Puerto Rico, 2003 WL 22316560 (D.Puerto Rico 2003); López Hernández v. Municipality of San Juan, 206 F.Supp.2d 243 (D.Puerto Rico 2002); Olivo González v. Teachers' Retirement Board, 208 F.Supp.2d 163 (D.Puerto Rico 2002); Castro Ortiz v. Fajardo, 133 F.Supp.2d 143 (D.Puerto Rico 2001).

This Magistrate Judge agrees with numerous judicial reasoning within this District Court insofar Title VII's statutory structure suggests Congress did not intend to impose individual liability over supervisors or agents of employers. Had Congress intended to hold individuals liable, it would have addressed the actions and conditions that would subject them to liability. Canabal, 48 F.Supp.2d at 96. Tasks mandated to employers under Title VII are applicable to the corporate entities and not to individual supervisors. See Hernández v. Wangen, 938 F.Supp. at 1060 (noting that tasks such as maintaining records that shed light on potential unlawful employment practices and posting notices about...