Velez v. Marriott Pr Management, Inc., Civil No. 05-2108 (RLA).

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Citation590 F.Supp.2d 235
Docket NumberCivil No. 05-2108 (RLA).
PartiesMaria VELEZ, Plaintiff, v. MARRIOTT PR MANAGEMENT, INC., et al., Defendants.
Decision Date22 December 2008
590 F.Supp.2d 235
Maria VELEZ, Plaintiff,
MARRIOTT PR MANAGEMENT, INC., et al., Defendants.
Civil No. 05-2108 (RLA).
United States District Court, D. Puerto Rico.
December 22, 2008.

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Celina Romany-Siaca, Esq., San Juan, PR, for Plaintiff.

Gregory T. Usera, Esq., San Juan, PR, Ivy Mercado-Ramos, Esq., Guzman & Mercado P.S.C., Guaynabo, PR, for Defendants.


RAYMOND L. ACOSTA, District Judge.

Defendants SAN JUAN MARRIOTT RESORT AND STELLARIS CASINO and MARRIOTT P.R. MANAGEMENT CORP. ("MARRIOTT") have moved the court to enter summary judgment on their behalf and to dismiss plaintiff's complaint. The court having reviewed the memoranda filed by the parties as well as the documents submitted in support thereof hereby rules as follows.


Plaintiff instituted this action alleging sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1). Additionally, plaintiff seeks relief under Puerto Rico Act

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No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146 et seq. (2002) and Puerto Rico Act No. 69 of July 6, 1985, Laws of P.R. Ann. tit. 29, §§ 1321 et seq. (2002), two local discrimination statutes.

In essence, plaintiff claims that she was not selected for a "Pit Boss" position at the MARRIOTT's Casino in March 2004 based on sex discrimination. Plaintiff further avers that MARRIOTT subsequently retaliated against her for having complained of the aforementioned rejection for promotion.

We shall initially address two preliminary issues raised by the defendants which bear upon the evidence which will be available to plaintiff to prove her claims which are, her previous non-selection to Pit Boss positions in 1996, 1997 and 1999 and plaintiff's pattern or practice claim.


Defendants contend that plaintiff's nonselection for the Pit Boss positions during the years 1996, 1997 and 1999 constitute alleged discrete acts of discrimination which are time-barred inasmuch as she failed to timely exhaust the corresponding administrative remedies as mandated by Title VII.

Plaintiff amended her complaint on April 3, 2006 (docket No. 23) to include allegations of a systemic discriminatory practice. Specifically, the amended pleading avers that "[p]laintiff, as well as other female employees have not been promoted as part of a de facto policy of denial of Pit Boss promotions to female employees." Amended Complaint ¶ 15 (emphasis in original). Further, plaintiff charges that "[d]efendant's general practice regarding the hiring and promotion of employees from the Pit Boss position have been ongoing and can be described as a systemic violation of Plaintiff's rights." Amended Complaint ¶ 25 (italics in original).

Plaintiff concludes by alleging that "Defendant's de facto policy denying Pit Boss promotions to female employees constitutes a systemic and/or serial violation of Plaintiffs rights. An employer's continued and consistent discrimination, coupled with his refusal to correct a discriminatory practice, present a systemic violation which has resulted in reiterated unlawful refusals to grant promotions." Amended Complaint ¶ 30.

Prior to resorting to the courts for relief, plaintiffs must present their discrimination claims under Title VII to the appropriate agency. Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir.2005); Noviello v. City of Boston, 398 F.3d 76, 85 (1st Cir. 2005); Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 13 (1st Cir.2003); Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003); Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 3 (1st Cir.2001).

"[A] claimant who seeks to recover for an asserted violation of ... Title VII, first must exhaust administrative remedies by filing a charge with the EEOC, or alternatively, with an appropriate state or local agency, within the prescribed time limits.... This omission, if unexcused, bars the courthouse door, as courts long have recognized that Title VII's charge-filing requirement is a prerequisite to the commencement of suit." Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir.1999).

The purpose behind the exhaustion requirement is to give the employer timely notice of the events as well as provide an opportunity for an early amicable resolution of the controversy. "That purpose would be frustrated ... if the employee were permitted to allege one thing in the administrative charge and later allege something entirely different in a subsequent civil action." Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir.1996).

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In Puerto Rico an aggrieved employee has 300 days from the occurrence of the employment action complained of to file an administrative charge in instances where the local Department of Labor is empowered to provide relief, i.e., in instances of "deferral" jurisdiction. Lebron-Rios, 341 F.3d at 11 n. 5; Bonilla, 194 F.3d at 278 n. 4. Otherwise, the applicable period is 180 days. See, 42 U.S.C. § 2000e-5(e)(1).1

In Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) the Supreme Court redefined the factors to be used by the courts in examining allegations of continuing violations in suits brought by individual claimants and did away with the "systemic" or "serial" dichotomy previously used for extending the limitations period.2 "Morgan eliminates the need for juries to determine whether there was a systemic or serial violation in order to invoke the continuing violations doctrine". Crowley v. L.L. Bean, Inc., 303 F.3d 387, 410 (1st Cir.2002). The Supreme Court distinguished instead between "discrete discriminatory acts" and "hostile work environment claims" for purposes of determining the timeliness of Title VII actions brought by individual plaintiffs.

According to the Supreme Court, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." Morgan, 536 U.S. at 112, 122 S.Ct. 2061. The Supreme Court went on to list specific events which it concluded constituted distinctive actionable claims which marked the term for the limitations period to run.

Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice."

Id. at 114, 122 S.Ct. 2061 (emphasis ours).

On the other hand, "[h]ostile environmental claims are different in kind from discrete acts. Their very nature involves repeated conduct ... The `unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. at 115, 122 S.Ct. 2061. "As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has `occurred,' even if it is still occurring. Subsequent events, however, may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole." Id. at 117, 122 S.Ct. 2061.

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Illustrating the underlying difference between hostile work environment claims and other discrimination claims, the Court of Appeals in Campbell v. BankBoston, N.A., 327 F.3d 1, 11 (1st Cir.2003) stated that the limitations period for an alleged discriminatory change in retirement benefits plan began to run upon plaintiff being advised of the decision. Likewise, following the Morgan precedent in Rivera v. P.R. Aqueduct and Sewers Auth., 331 F.3d 183 (1st Cir.2003), the court rejected plaintiff's notion that two employment transfers were part of a continuing violation for purposes of the [Title VII] limitations period under a hostile work environment scheme. Rather, the court specifically determined that each such transfer constituted "`a separate and actionable unlawful employment practice.'" Id. at 188-89 (citing Morgan, 536 U.S. at 114, 122 S.Ct. 2061). See also, Dressler v. Daniel, 315 F.3d 75 (1st Cir.2003) (two separate claims with individual limitations period accruing from the denial of prospective employment and termination from employment); Miller v. New Hampshire Dept. of Corrections, 296 F.3d 18, 22 (1st Cir.2002) (distinguishing "a discrete act of discrimination— as opposed to a pattern of harassing conduct that, taken as a whole, constitutes a hostile work environment [and falls within the continuing violations exception to the limitations period].") Accord, Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7 (1st Cir.2002) finding hostile work environment claims timely under the Morgan premise.

Based on the foregoing, it is beyond cavil that the three specific instances of plaintiff's non-selection to the Pit Boss positions in 1996, 1997 and 1999 fall squarely within the discrete acts of discrimination as defined in Morgan. Hence, plaintiff was required to file individual administrative charges with respect to each one of these alleged discriminatory events within 300 days thereafter. It is undisputed that plaintiff in this case failed to do so for which reason any claims based on these non-selections have become stale.3

Accordingly, defendants' request for dismissal of plaintiff's discrimination claim based on her non-selection to the Pit Boss positions in the years 1996, 1997 and 1999 is GRANTED and it is hereby DISMISSED AS UNTIMELY.


In response to defendant's untimeliness arguments regarding alleged past discriminatory events, plaintiff further adduces the existence of...

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