Opinion
CIVIL ACTION NO. 19-2157-WGY
06-30-2020
Maria Del Mar VAZQUEZ-JIMENEZ, Plaintiff, v. EVERTEC GROUP, LLC, Defendant.
Humberto F. Cobo-Estrella, Cobo-Estrella H. Law, LLC, San Juan, PR, for Plaintiff. Alberto Jose Bayouth-Montes, Dimitri Gonzalez-Izquierdo, O'Neill & Borges LLC, San Juan, PR, for Defendant.
Humberto F. Cobo-Estrella, Cobo-Estrella H. Law, LLC, San Juan, PR, for Plaintiff.
Alberto Jose Bayouth-Montes, Dimitri Gonzalez-Izquierdo, O'Neill & Borges LLC, San Juan, PR, for Defendant.
ORDER
Of the District of Massachusetts, sitting by designation.
On December 25, 2019, Maria Del Mar Vazquez-Jimenez ("Vazquez-Jimenez") filed a complaint in this Court against Evertec Group, LLC. ("Evertec"). The complaint alleges discrimination in employment based on gender and disability in violation of the Americans with Disabilities Act of 1990, § 3(2), 42 U.S.C. § 12102 ("ADA"); Title VII of the Civil Rights Act of 1964 (gender discrimination), 42 U.S.C. § 2000e and Equal Pay Act ("EPA"), 29 U.S.C. § 206. Compl., ECF No. 1.
Additionally, Vazquez-Jimenez alleges Puerto Rico state law claims of wrongful termination of employment; disability discrimination and gender discrimination. Id. §§ 40-46.
The complaint requests a jury trial and seeks Vazquez-Jimenez's reinstatement, back pay and benefits, compensatory and general damages (one million dollars), punitive damages (two million dollars) and attorney fees. Id. 11.
Evertec moved to dismiss the complaint for failure to state a claim, Def. Evertec's Mot. Dismiss Pls.’ Compl. ("Evertec's Mot."), ECF No. 6, and the parties have submitted their arguments, Mem. L. Obj. Def. Evertec's Mot. Dismiss Rule 12(b)(6) ("Pl.’s Obj."), ECF No. 7; Mem. L. Reply. Pl.’s. Obj. ("Evertec's. Reply"), ECF No. 12.
The Court DENIES the motion to dismiss the complaint as it provides "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Title VII prohibits employers from discriminating against employees with respect to their compensation, terms, conditions, or privileges of employment, because of their gender. See 42 U.S.C. § 2000e-2(a). To survive a motion to dismiss, a Title VII plaintiffs do not have to plead a full prima facie case based on the framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) ; Carris v. First Student, Inc., 682 F. App'x 30, 32 (2d Cir. 2017) ; Wilson v. Arkansas Dep't of Human Servs., 850 F.3d 368, 372 (8th Cir. 2017). Instead, plaintiffs "need only give plausible support to a minimal inference of discriminatory motivation." Carris, 682 F. App'x at 32. "[T]he elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim." Rodriguez-Reyes, 711 F.3d at 54.
Here, Vazquez-Jimenez is a woman, hence belongs to a protected group, alleging disparate treatment comparing to her male colleagues in at least two respects. First, Vazquez-Jimenez alleges that she was set to perform a named male employee's role (Noel Cruz: "Cruz") for a substantial period of time for a lesser compensation. Compl. ¶¶ 17-18. Second, Vazquez-Jimenez possesses allegations that she committed operational errors which resulted in discipline harsher than in the case of similarly situated male employees. Unlike male employees, she was not given warning or an opportunity to improve before termination (e.g., undergo personal improvement plan). Id. ¶ 19. These facts comply with the minimal pleading standard, and allow the reasonable inference of a gender-based discrimination.
Pursuant to the ADA, an employer must not "discriminate against "a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." " 42 U.S.C. § 12112(a), Trahan v. Wayfair Maine, LLC, 957 F.3d 54 (1st Cir. 2020). To state a claim of disability discrimination under the ADA, a plaintiff must allege "(1) he was disabled within the meaning of the Act; (2) he could perform the essential functions of his job, with or without reasonable accommodation; and (3) the employer took adverse action against him, in whole or in part, because of his disability." Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 48 (1st Cir. 2011) (internal citations omitted). "An individual is disabled for purposes of the ADA if he (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment." Id. (internal citations omitted). "[A]n adverse employment action includes both discharging an employee, see 29 C.F.R. § 1630.4(a)(1)(ii), and failing to make reasonable accommodations for an employee's disability." Trahan, 957 F.3d 54. "A reasonable accommodation is a change in workplace conditions that would enable an employee to perform the essential functions of her job." See 29 C.F.R. § 1630.2(o) (1)(ii). "Such an accommodation, though, must be feasible for the employer." Trahan, 957 F.3d 54. "The reasonableness of any proposed accommodation, including its feasibility, must be assessed on a case-by-case basis." Id.
In 2009, an amendment to the ADA has taken effect. See ADA Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553. The ADAAA relaxed the standards for finding the elements of "disability", "major life activity" and "substantially limits" to allow broad scope of cases. See 42 U.S.C. § 12102(4)(A) ; 29 C.F.R. § 1630.2(j)(1) ; Mancini v. Providence by & through Lombardi, 909 F.3d 32, 40, 42 (1st Cir. 2018).
Few courts have had the occasion to apply the ADAAA and set a very low standard to survive a motion to dismiss. See Garcia-Hicks v. Vocational Rehab. Admin., 148 F. Supp. 3d 157, 167 (D.P.R. 2015) (citing Feldman v. Law Enf't Assocs. Corp., 779 F.Supp.2d 472, 485 (E.D.N.C. 2011) ; and Lowe v. Am. Eurocopter, LLC, No. 1:10CV24-A-D, 2010 WL 5232523, at *8 (N.D. Miss. Dec. 16, 2010) ). See also Arroyo-Ruiz v. Triple-S Mgt. Grp., 206 F. Supp. 3d 701, 713 (D.P.R. 2016) (citing Franchi v. New Hampton Sch., 656 F.Supp.2d 252, 259 (D.N.H. 2009) ) ("finding that, while the complaint "could have spelled out [his impairment's] limiting effect more clearly," a "successful ADA claim does not require ‘excruciating details as to how the plaintiff's capabilities have been affected by the impairment,’ " " (quoting Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 24 (1st Cir. 2002) )). "Even pursuant to the harsh, pre-ADAAA standard ... some courts still realized that the bar to overcoming a motion to dismiss under the ADA is low ... required only an identification of an impairment in the complaint." Garcia-Hicks, 148 F. Supp. 3d at 165 (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 213–14 (3d Cir. 2009) and E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir. 2001) ). "This low standard for surviving motions to dismiss is consistent with the ADA's purpose of broad coverage." Garcia-Hicks, 148 F. Supp. 3d at 165.
Here, on the one hand, Vazquez-Jimenez well establishes her disability and Evertec's awareness of it. Compl. ¶¶ 9, 12, 16, 22. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 20 (1st Cir. 2004) (Depression may qualify as a mental impairment ). She mentions her impairment to be at least in part work-related, and the numerous absences from attending work allow a reasonable inference that her work, a major life activity, was substantially affected. Compl. ¶¶ 12, 16, 22. See 42 U.S.C. § 12102(2)(A) ; Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 240 (1st Cir. 2001) (Working is a major life activity). Also, Vazquez-Jimenez establishes her competency at her job by alleging a long-term employment with a satisfying record. Compl. ¶¶ 9-13. She was selected to replace a fellow employee (Cruz) which shows her competency as well. Id. ¶¶ 17-18. In November 2018, Vazquez-Jimenez was involuntary terminated for alleged operational errors although she did not receive a warning, a personal improvement plan or other opportunity to correct, while other employees were treated more favorably. Id. ¶ 19. On the other hand, the complaint does little to allege causation between the termination or other adverse employment action and Vazquez-Jimenez's disability. Further, Vazquez-Jimenez does not elaborate how the accommodation request to change work area, that was denied by Evertec, was reasonable and necessary to her disability. See id. ¶ 16. Finally, stating that her supervisor, Ivonne Rivera ("Rivera"), created a hostile environment was utterly conclusory. See id.
The Court may, nevertheless, reasonably infer that something or someone (Rivera?) in the work area has triggered Vazquez-Jimenez's depression and anxiety and made her request a relocation. As Vazquez-Jimenez's disability induced many absences from work and a request for accommodation that was unacceptable to Evertec, it is reasonable to infer that this might have effectuated the decision to terminate.
Therefore, in light of the ADAAA -- that Evertec ignores and cites cases that predated its application, See Evertec's Mot. 8-9, Evertec's. Reply. 7-8 -- Vazquez-Jimenez's ADA claim may proceed.
Pursuant to the EPA, employers must not discriminate among employees on the basis of sex by paying higher wages to employees of the opposite sex for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Kairam v. W. Side GI, LLC, 793 F. App'x 23, 25 (2d Cir. 2019) (Internal citations and quotations omitted).
"[A] successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice." E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d 247, 256 (2d Cir. 2014).
"[A] plausible EPA claim must include "sufficient factual matter, accepted as true" to permit "the reasonable inference" that the relevant employees' job content was "substantially equal." " Id.
Here, however thin, the allegations are sufficient to reasonably infer that Evertec discriminated between Vazquez-Jimenez and her male colleague, Cruz, by paying the former less for the same job content. Vazquez-Jimenez alleges she performed Cruz's tasks, virtually replacing him for a substantial period of time (one year, since May 2016). Compl. ¶¶ 17-18. Whatever his duties were, she was placed to do exactly those. Vazquez-Jimenez also states that she was paid less than Cruz's for his role. Id. ¶ 17. At this early stage of the proceedings, it is reasonable to infer discrimination in payment between one female and her named male counterpart, doing the same work.
Finally, since all the asserted state-law claims arise from the same nucleus of operative facts as the federal law claims, this Court must exercise supplemental jurisdiction over them. Compl. ¶¶ 43-46. See 28 U.S.C. § 1367(a), Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996).
Therefore, the Court DENIES the motion to dismiss, ECF No. 6.