Opinion
CIVIL NO. 01-2280(PG)
September 25, 2003
REPORT AND RECOMMENDATION
Defendants Jose Lozada Medina, Hilda Rodriguez, and the Commonwealth of Puerto Rico filed a Motion for Summary Judgment and their Statement of Uncontested Material Facts (D.E. #26). Plaintiff's opposition was thereafter filed (D.E. #34). The certified translations of attachments to both motions were respectively filed sometime thereafter (D.E. #33, 39).
Defendants Lozada and Rodriguez submit, among others, that the claim under Title VII, cannot prosper against them because there is no individual liability under said statute and the complaint does not fulfill the requirements to establish discrimination. Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Insofar as the Commonwealth of Puerto Rico, an Eleventh Amendment immunity is raised as to charges of discrimination under 42 U.S.C. § 1983 and state law claims. Defendants also posit the complaint fails to meet the standards for gender discrimination under the Civil Rights Act. There are also averments that defendants did not retaliate against plaintiff, and there was a previous stipulated agreement with the Equal Employment Opportunity Commission (EEOC) upon which plaintiff would not sue defendants.
Finally, they avert being entitled to qualified immunity and that the Court should not exercise pendent and/or supplemental jurisdiction.
I. SUMMARY JUDGMENT
Plaintiff's opposition clearly states there is no gender or discrimination claim before this Court but rather one for retaliation.
Succinctly, on one hand, the uncontested issues by the parties serve to establish plaintiff's prima facie cause of action under the prevailing legal framework. On the other hand, the existence of controverted issues that entail credibility determinations regarding actions of retaliation foreclose that summary judgment be entered as to those claims.
Plaintiff Carrero, a female attorney, began working as Attorney I in December 1, 1996, and thereafter as Attorney Il at the Legal Division of the Administration of Juvenile Institutions of the Commonwealth of Puerto Rico (AIJ). Defendant Lozada became the Administrator on June 1, 1999, up until December 15, 2000. On May 12, 1999, the position of Attorney III was posted and plaintiff, together with another female attorney, were the two eligible candidates who filed for the position. A register was established, but it was cancelled. The parties do not agree if the denial to promote an Attorney III was before the date defendant Lozada became the Administrator or under the prior administration of Miguel Rivera. Since these events are background information for the existence and the filing of a discrimination complaint which is not a cause of action in this case, only the retaliation thereafter, the issue is not material. Attorney Carmen LebrÓn was the director of the Legal Division, who resigned on September 15, 1999. Defendant Rodriguez worked as Director of the Legal Division from October 18, 1999, through December 13, 2000. During this interim period, the Administrator, defendant Lozada, was also the director of the Legal Division.
A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable standard,Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996).
Plaintiff informed by the end of May or the beginning of June her then supervisor, Carmen LebrÓn, that she was pregnant. She had to be absent a few days that month because of certain complications. From thereon plaintiff considered that, on grounds of actions of not assigning work, assignments being withdrawn, exclusion from training and sanctions for leaving under a medical emergency duly notified, she held grounds for a complaint under the EEOC based on gender and pregnancy discrimination on June 25, 1999. After filing same, other duties were taken from plaintiff and she included a retaliation complaint by amending her EEOC complaint on October 8, 1999. When defendant Rodriguez became director, she also refused to assign work to plaintiff while she was pregnant. Once maternity leave was taken, from January 8, 2000, through April of 2000, a negotiated stipulation as to settlement of the EEOC complaint was reached on March 17, 2000. Plaintiff was granted a monthly increase of $324, waived her right to sue defendants and they committed not to retaliate. Unknown to plaintiff, this increase had already been approved upon recommendation of the Human Resources Department of December 1999, effective January 2000, but she was not notified. The increase negotiated was the same she would have received with or without the settlement.
It is plaintiff's contention that when she initially returned from maternity leave, the Legal Department had been rearranged and her office was now the smallest, even smaller than the ones assigned to law clerks. She was not given significant legal work and the renewed request for her reclassification was denied without stating a reason. By the time she returned, all attorneys in the Legal Division had been reclassified, with corresponding pay adjustments and merit steps given to support staff. The decision did not follow the appropriate classification channels of the Human Resources Department and was determined by the Legal Division and approved by the Administrator. Plaintiff was not even considered because she had recently received a salary increase as a result of the settlement of the EEOC complaint and because she had been out on maternity leave.
When plaintiff's maternity leave expired on April of 2000, defendant Rodriguez insisted for her to take the additional maternity leave of six month without paid. When plaintiff requested on July 19, 2000, to return to work part time or in the alternative, to return to work full time, the request was denied. There were several reasons subsequently proffered for such denial. Although once called to the Human Resources Department by August 17, 2000, she was therein informed she was to return to work on November of 2000. The refusal to allow her part-time work has conformed overtime to various justifications from defendant. First, because part-time work could be requested by other pregnant attorneys, because the child care center requirements would not have allowed her infant to be considered if she was not working regularly, and that upon consultation with personnel policies it was not recommended. These reasoning or justifications are controverted by the deposition testimony, documentation and statements.
In regard to defendants' averment that plaintiff failed to establish a claim under federal statute, defendants may not prevail. To sustain a claim of retaliation, plaintiff must product evidence on three points; 1) that she engaged in protected conduct under Title VII; 2) that she experienced an adverse employment action; and 3) there is a causal connection between the protected conduct and the adverse action. Gu v. Boston Police Dept. 312 F.3d 6 (1st Cir. 2002). See White v. N.H. Dep't of Corr., 221 F.3d 254, 262 (1st Cir. 2OOO): Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998). See also Kosereis v. Rhode Island, 331 F.3d 207 (1st Cir. 2003). There is no controversy that plaintiff engaged in protected conduct by filing the complaints of discrimination by gender, pregnancy, and retaliation with the EEOC. Neither should there be any dispute as to the adverse employment actions for summary judgment purposes and taking the non-movant's sworn statement and the allegations in the complaint as true. These provide specific, relevant, factual information based on plaintiff's personal knowledge.
Material changes include "demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees."Hernández-Torres v. Intercontinental Trading, Inc., supra. If an employee suddenly finds herself with dramatically decreased supervisory authority and without a voice in major decisions, this could also constitute an adverse employment action. Gu v. Boston Police Dept., supra.
As to the third prong, there is documentary evidence showing the filing of the EEOC complaint, settlement thereof, and written letters and memoranda regarding denials of reclassification and/or disparate treatment as to salary adjustment. The employer's reasons for such actions are in controversy and the analysis that these could be pretextual yields towards matters not to be elucidated through summary disposition evolving around questions of motive or intent. One method of establishing pretext is the employer's post hoc justifications, that is, those after-the-fact claims that are provided subsequent to the beginning of the legal action. In addition to those mentioned for denying the reclassification of the position, the defendants have recently prompted there was an electoral prohibition or "veda" when plaintiff requested reclassification in November of 2001. Mariani Giran v. Acevedo Ruiz, 834 F.2d 238, 239(1st Cir. 1987).
Title VII protects persons not just from certain forms of job discrimination, but from retaliation for complaining about the types of discrimination it prohibits. Dey v. Colt Const. Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994). See Civil Rights Act of 1964, § 704(a), as amended, 42 U.S.C.A. § 2000e-3(a). Retaliation claims are preserved if reasonably related to and grows out of the discrimination complained to with the EEOC. Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1 (1st Cir. 2001).
To establish a prima facie case of retaliation plaintiff must show that she engaged in statutorily protected expression by complaining about discrimination that Title VII covers; she suffered an adverse action by her employer; and there is a causal link between the protected expression and the adverse job action. Absent direct evidence by plaintiff on her retaliation claim, the McDonnell Douglas burden-shifting variant applicable to claims of retaliation should follow. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817(1973). See Dev. 28 F.3d at 1457.
Once plaintiff establishes these elements, then defendants have the burden to produce a legitimate (non-discriminatory) reason for the adverse employment decisions. Thereafter, plaintiff has the burden to prove that the defendants' proffered reasons were not true-that they were a mere pretext for retaliating against her. Miller v. American Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000).
Congress passed the Pregnancy Discrimination Act as an amendment to Title VII prompted by its concern that "[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . . " 42 U.S.C. § 2000e(k). Gleklen v. Democratic Congressional Campaign Committee, Inc., 199 F.3d 1365, 1367 (D.C. Cir. 2000).
As such, Title VII provides that it is "an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a). In 1978, Congress passed the Pregnancy Discrimination Act ("PDA"), which amended Title VII to make clear that "[t]he terms `because of sex' and `on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment purposes." Pub.L. No. 95-555, 92 Stat. 445 (codified as amended at 42 U.S.C. § 2000e(k)). Thus, discrimination on the basis of pregnancy is an unlawful employment practice under Title VII. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). Title VII prohibits discrimination against employees who oppose unlawful employment practices or participate in any charge or investigation under the Act. 42 U.S.C. § 2000e-3(a). An actual violation of Title VII by the employer is not a prerequisite for a retaliation claim; the employee need only have a sincere and reasonable belief that she is challenging conduct that violates Title VII. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir. 1989).
The McDonnell Douglas burden-shifting test applies to a retaliation claim just as it does to a pregnancy discrimination claim.Knox v. State of Indiana, 93 F.3d 1327, 1333 (7th Cir. 1996). Under the above indicated test, defendants can rebut the inference from a prima facie case with a legitimate nondiscriminatory reason and shift the burden back to plaintiff to show pretext. Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1014 (7th Cir. 1997).
Direct evidence of unlawful activity consist of statements by a decisionmaker that directly reflect the alleged animus and bear squarely on the contested employment decision. Kirk v. Hitchcock Clinic, 261 F.3d 75 (1st Cir. 2001). Still, having plaintiff shown a prima facie case, under the pretext approach the legitimate and nondiscriminatory justifications for the employer's actions would be webbed under a circumstantial evidence analysis and a preponderance of the evidence.
Retaliation claim may be viable even if the underlying discrimination claim is not. Mesnick v. General Electric, 950 F.2d 816, 827 (1st Cir. 1991) ( citing Petitti v. New England Tel. Tel. Co., 909 F.2d 28, 33 (1st Cir. 1990)). Title VII does not limit adverse job action to strictly monetary considerations.Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987). Congress recognized that job discrimination can take many forms, and does not always manifest itself in easily documented sanctions such as salary cuts or demotions. Accordingly, Congress "cast the prohibitions of Title VII broadly" to encompass changes in working conditions that are somewhat more subtle, but equally adverse. Rodroguez v. Board of Education, 620 F.2d 362, 364 (2d Cir. 1980).
Consonant with plaintiff's averment as to the pretextual reason proffered, such as the electoral ban, which fails to explain the previous strain of actions or inactions as to salary compensation and/or reclassification, the exclusion from being considered for a reclassification because of having been on maternity leave and/or on leave without pay on account of the birth a child seems to fall squarely on the kind of discrimination under the statute. Evidence of a company's general atmosphere of discrimination may be considered along with any other evidence bearing on motive in deciding whether a Title VII plaintiff has met her burden of showing that the defendants' reasons are pretexts. Santiago-Ramos v. Centennial P.R. Wireless Corp., supra. Likewise, plaintiff has fulfilled the requisite burden that would defeat defendants' request for summary judgment.
At the summary judgment stage of Title VlI discrimination action, once the employer has articulated legitimate, nondiscriminatory reason for employee's termination, the Court is required to decide whether, viewing aggregate package of proof offered by the employee and taking all inferences in her favor, she had raised genuine issue of fact as to whether adverse employment decisions were motivated by discrimination and/or retaliation. Santiago-Ramos v. Centennial P.R. Wireless Corp. 217 F.3d 46 (1st Cir. 2000). If there is sufficient evidence in the record from which a jury could infer in a Title VII action that an employer's proffered reasons for terminating an employee were pretextual and that it made its decision because of discriminatory and/or retaliatory animus, for which summary judgment is not appropriate.Santiago-Ramos v. Centennial P.R. Wireless Corp., supra.
There is sufficient evidence in the case herein from which a jury could find that the reasons proffered by defendants not only are controverted by the evidence, thus raising genuine issues of material fact, but could be deemed at this initial stage to foreclose summary judgment under its well-established standard of review. Thus, as to the claims for summary judgment requested by defendants under the averments above discussed, SHOULD BE DENIED.
II. ELEVENTH AMENDMENT IMMUNITY
The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142 (1985)).
Insofar as defendants' Eleventh Amendment claim for immunity, there is no need for this Magistrate to discuss same at length since plaintiff have clarified there is no discrimination complaint herein submitted.
Defendants Lozada and Rodriguez have been sued in their personal capacity under 42 U.S.C. § 1983 and the Commonwealth of Puerto Rico appears sued under Title VII. Any official capacity suit refers to equitable relief sought by plaintiff. The Commonwealth may, however, still be liable for attorney's fees if plaintiff prevails under 42 U.S.C. § 1988. There is ample case law under this scenario that allows this kind of actions as above premised as not impinging on Eleventh Amendment immunity. Congress abrogated the States' sovereign immunity in Title VII of the Civil Rights Act, which the Highest Court has recognized since 1976. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976). See Nevada Dept. Human Resources v. Hibbs, 123S.CM972, 1978 (2003).
Defendants' motion claiming an Eleventh Amendment immunity SHOULD BE DENIED.
III. INDIVIDUAL LIABILITY UNDER TITLE VII
Notwithstanding, this Magistrate's main concern relates to whether an individual, such as codefendants Lozada and Rodriguez, could be properly sued under Title VII when acting on behalf of an employer. This is a legal issue subject up to the present time to an array of opposite interpretations by appellate circuit courts. Defendants have submitted there is no individual liability. Plaintiff's opposition similarly establishes a plethora of split authorities as to personal liability for violations of Title VII. Since the Court of Appeals for the First Circuit has not yet addressed this issue, there is no obvious answer. However, being forced to take sides to such legal controversy, one must consider on one hand the remedial nature of Title VII, its statutory construction and the fact that defendants could be considered as having acted as an agent of the employer, should allow plaintiff's claim to prosper. On the other hand, there is a consistent relevant district court analysis finding no individual liability under Title VII.
Defendants Lozada and Rodriguez have asked this Court to dismiss the Title VII claims against them on the basis that Title VII does not provide for individual liability. The First Circuit has yet to resolve the issue of individual liability in Title VII cases although other circuits courts have determined there is no such liability. In numerous cases in the district of Puerto Rico, it has been determined that no personal liability exists under Title VII and that individual defendants are not liable under Title VII. See Volez Sotomayor v. Progreso Cash Carry, Inc., 2003 WL 22038234 (D.P.R. 2003) and cases therein cited: Padilla-Cintran v. Rosello-Gonzalez, 247 F. Supp.2d 48, 2003 WL 681865 (D.P.R. 2003); Canabal v. Aramark Corp., 48 F. Supp.2d 94, 95-98 (D.P.R. 1999);Acevedo-Vargas v. Colon, 2 F. Supp.2d 203, 206 (D.P.R. 1998);Pineda v. Almacenes Pitusa, Inc., 982 F. Supp. 88, 92-93 (D.P.R. 1997); Serapian v. Martinez, 119 F.3d 982 (1st Cir. 1997); Hernandez v. Wangen, 938 F. Supp. 1052 (D.P.R. 1996):Anonymous v. Legal Services Corp., 932 F. Supp. 49. 50-51 (D.P.R. 1996). See also Lopez Hernandez v. Municipality of San Juan, 206 F. Supp.2d 243 (D.P.R. 2002); Olivo Gonzalez v. Teachers' Retirement Board, 208 F. Supp.2d 163 (D.P.R. 2002);Castro Ortiz v. Fajardo, 133 F. Supp.2d 143 (D.P.R. 2001).
Following the rationale exposed in above cases, above codefendants Lozada's and Rodriguez' petition regarding lack of individual liability under Title VII SHOULD BE GRANTED.
IV. PENDENT and/or ANCILLARY JURISDICTION
In 1990, Congress enacted the provisions found in 28 U.S.C. § 1367, granting federal courts "supplemental jurisdiction" or what had formerly been referred to as "pendent jurisdiction" and "ancillary jurisdiction." Pursuant to same, "in any civil action over which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action . . . that they form part of the same case and controversy." 28 U.S.C. § 1367 (1993). See the Supreme Court's analysis inUnited Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130(1966).
In Gibbs a federal court may exercise supplemental jurisdiction over a state claim whenever it is joined with a federal claim and the two claims "derive from a common nucleus of operative fact" and the plaintiff "would ordinarily be expected to try them both in one judicial proceeding." Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138;Brown v. Trustees of Boston University, 891 F.2d 337, 356 (1 st Cir. 1989). The statute expressly states that a district court may refuse to exercise this jurisdiction if the state claim "substantially predominates over the claim or claims over which the district court has original jurisdiction" or "the claim raises a novel or complex issue of state law." 28 U.S.C. § 1367(c)(1), (c)(2). Still, the decision whether to exercise supplemental jurisdiction is left to the broad discretion of the district court, this decision will be disturbed only upon finding an abuse of discretion. See Newman v. Burgin, 930 F.2d 955, 963 (1st Cir. 1991); McCaffrey v. Rex Motor Transportation, Inc., 672 F.2d 246, 250 (1st Cir. 1982). See Vera-Lozano v. International Broadcasting, 50 F.3d 67, 70-71 (1st Cir. 1995).
As to pendent and/or supplementary jurisdiction over state claims, same may be discretionarily retained in this case since federal claims would survive and plaintiff's state claims are related to same and form part of the same case or controversy.
It is thus recommended that the summary judgment be denied in part, granted in part, as above discussed.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").