OPINION AND ORDER
I. INTRODUCTION AND BACKGROUND
The Court has before it Co-Defendants the Commonwealth ofPuerto Rico ("the Commonwealth"), the Department of Correctionsand Rehabilitation ("DOC"), the Juvenile InstitutionsAdministration ("JIA"), Sila M. Calderon, in her officialcapacity as Governor of the Commonwealth of Puerto Rico, Mr.Victor Rivera Gonzalez, in his official capacity asAdministrator of the Juvenile Institutions Administration andMr. Fernando Iglesias Vargas', in his official capacity asDirector of Social Treatment Center, "Motion To Dismiss UnderFed.R.Civ.P. 12(b)(6) and Memorandum of Law In Support Thereof"(docket No. 10); Co-Defendants Víctor Rivera González, JoséAponte Pérez, Fernando Iglesias Vargas, Pedro R. FigueroaPacheco and Luis Mendez's1, in their personal capacities,"Motion To Dismiss Under Fed.R.Civ.P. 12(b)(6) and Memorandum ofLaw In Support Thereof" (docket No. 14); Plaintiffs oppositionthereto (docket No. 28)2; Co-Defendants Myriam Quiñonesand José Lozada Medina's "Motion[s] to Quash Summons" (docketNos. 23, 24); and Plaintiffs opposition thereto (docket No. 27).
Plaintiff filed the instant action on March 12, 20013,pursuant to Title VII of the Civil Rights Act of 1964, asamended, 42 U.S.C. § 2000e — 2000e-17; 42 U.S.C. § 1981, 1983and 2000a-1; Title III of the Civil Rights Act of 1991; PuertoRico Law No. 17, of April 22, 1988, 29 P.R. Laws Ann. § 155; andArticles 1802 and 1803 of the Puerto Rico Civil Code, 31 P.R.Laws Ann. §§ 5141 and 5142. Plaintiff requests a declaratoryjudgment as well as compensatory and punitive damages. Plaintiffclaims that she has worked in an environment riddled withcontinuous sexual harassment, especially by her supervisor,Co-Defendant Alberto Santos Ortiz. She claims that no specialefforts were taken to prohibit or avoid the discriminatorycontact.
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All Defendants contend that Plaintiff cannot sustain a Section1981 cause of action because Plaintiff does not allege racialdiscrimination against her; that Plaintiffs claims under42 U.S.C. § 1981 and 1983 and 31 P.R. Laws Ann. §§ 5141 and 5142are time-barred and, as such, all of these claims should beaccordingly dismissed. Co-Defendants the Commonwealth, the DOC,the JIA and the named Co-Defendants, in their officialcapacities, claim that Plaintiffs claims under42 U.S.C. § 1981, 1983 and 2000a-1, Title III of the Civil Rights Act of1991, and Plaintiffs supplemental Commonwealth law claims arebarred by the Eleventh Amendment of the United StatesConstitution and should be dismissed against them. The namedCo-Defendants, in their individual capacities, claim that TitleVII does not provide for individual liability and as such theycannot be held personally liable and Plaintiffs Title VII claimshould be dismissed as held against them. Finally, Co-DefendantsMyriam Quiñones and José Lozada Medina claim that Plaintiffserved them outside of the 120 day term provided by Fed.R.Civ.P.4(m) for service of process and Plaintiffs claims against themshould be dismissed for failure to serve.
The Court deciphers from Plaintiffs muddled opposition thatPlaintiff argues that the Amended Complaint contains allegationssufficient to uphold a claim under 42 U.S.C. § 1981; that thestatute of limitations was tolled by Plaintiffs claims filedwith the Department of Labor; that neither the First Circuit northe Supreme Court of the United States have clearly held thatTitle VII cannot provide for individual liability; and thatPlaintiff has demonstrated cause as to why she failed toeffectuate service upon Co-Defendants Myriam Quiñones and JoséLozada Medina and claims that the service should be deemedeffective. The Court addresses these arguments in turn.
II. DISMISSAL STANDARD
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, aparty may, in response to an initial pleading, file a motion todismiss the complaint for failure to state a claim upon whichrelief can be granted. It is well-settled, however, that "acomplaint should not be dismissed for failure to state a claimunless it appears beyond doubt that the plaintiff can prove noset of facts in support of his claim which would entitle him torelief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,102, 2 L.Ed.2d 80 (1957); see also Miranda v. Ponce Fed. Bank,948 F.2d 41 (1st Cir. 1991). The Court must accept as true "allwell-pleaded factual averments and indulg[e] all reasonableinferences in the plaintiffs favor." Aulson v. Blanchard,83 F.3d 1, 3 (1st Cir. 1996) (citations omitted); see also Berríosv. Bristol Myers Squibb Caribbean Corp., 51 F. Supp.2d 61(Puerto Rico 1999) (Pieras, J.). A complaint must set forth"factual allegations, either direct or inferential, regardingeach material element necessary to sustain recovery under someactionable theory." Romero-Barceló v. Hernández-Agosto,75 F.3d 23, 28 n. 2 (1st Cir. 1996) (quoting Gooley v. Mobil OilCorp., 851 F.2d 513, 514 (1st Cir. 1988)). The Court, however,need not accept a complaint's "`bald assertions' or legalconclusions" 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)). Itis with this framework in mind that this Court will assess themotions before it.
III. FACTUAL ALLEGATIONS
Plaintiffs allegations as found in her Amended Complaint, andwhich are taken as true for purposes of this motion, are asfollows:
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A. Plaintiff has been employed by the JIA since February 1997 as a penal guard. B. Over the course of the last few years, Plaintiff has worked in an environment riddled with continual sexual harassment. She has been subjected to continual sexual harassment by her supervisors over that time period. The worst offender was her direct supervisor, Co-Defendant Alberto Santos-Ortiz ("Santos-Ortiz"). C. Co-Defendants were aware of the continual sexual exploits of other supervisors within the office and did nothing to stop them. Although these affairs and other sexual antics disrupted the work environment of the office, no effort was made to prohibit the conduct. D. Plaintiff avoided Co-Defendant Santos-Ortiz on multiple occasions, in order to avoid becoming the subject of his crude remarks and stares. She also did what she could to discourage him from telling her crude jokes, sexual jokes and innuendos and making suggestive and unwanted remarks to her. E. At one point, Co-Defendant Santos-Ortiz began approaching Plaintiff, often with the door closed, and asked her to be his lover and that he would pay all her debts and take care of all her needs. Plaintiff was appalled and offended. Plaintiff declined the offer choosing instead to suffer and be emotionally distressed. F. Almost immediately upon commencing her duties under the supervision of Co-Defendant Santos-Ortiz, he began asking Plaintiff about her age, civil status, residence and education. Later, he asked questions specifically related to her civil status; like if she had a boyfriend or had been married. Plaintiff informed him that it was not his concern. Co-Defendant Santos-Ortiz also asked Plaintiff if she danced and what things she preferred, what places she liked to go to and after questioning her he assured her that he was interested in going out with her. Plaintiff clearly stated that she did not go out with married men. G. Co-Defendant Santos-Ortiz began using the nick-name "Clarita" to address Plaintiff and asked that if that was the reason that she would not give him a kiss and a hug and that he was jealous because she did that with the other co-workers. H. Co-Defendant Santos-Ortiz also accused Plaintiff of being a racist and that was the reason she would not go out with him. I. In other instances, in front of other co-workers, Co-Defendant Santos-Ortiz stated that he wanted to marry Plaintiff and that her future husband would have to use "a chipping hammer and a lot of vinegar because Plaintiff had never tried it" and that "her vagina would be eaten by worms". J. After an incident with the juvenile detainees, where Plaintiff was held captive and where one of the inmates forced Plaintiff to hold his penis, Co-Defendant Santos-Ortiz said that it was of no importance and asked Plaintiff if that was the first time she had ever held a penis in her hands. K. Co-Defendant Santos-Ortiz was constantly comparing the bodies of the other female workers with Plaintiffs. L. Plaintiff suffered from adverse employment conditions as a result of her disdain to Co-Defendant Santos-Ortiz's advances. Plaintiff was subjected to severe psychological stress, as a result of the demeaning environment, in which she was required to work.
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M. On January 25, 1999, Plaintiff formally notified Co-Defendant Fernando Iglesias Vargas, Director of the Center of Social Treatment of the JIA, that she was being harassed by her supervisor, Co-Defendant Santos-Ortiz and that the harassment began in 1997. N. Due to Defendants inaction, Plaintiff filed a charge of discrimination against Defendants, at the Anti-Discrimination Unit of the Puerto Rico Department of Labor on July 7, 1999, complaining of the above alleged acts of sexual harassment. O. On or about December 12, 2000, the Equal Employment Opportunity Commission informed Plaintiff of her right to sue Defendants.IV. DISCUSSION
A. 42 U.S.C. § 1981
Defendants submit that Plaintiffs complaint contains nofactual allegations to establish a Section 1981 prima faciecase. Section 42 U.S.C. § 1981 provides as follows: a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other . . . (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.42 U.S.C. § 1981 (West 2001).
Section 1981 has been recognized by this Court to protect fourdifferent interests: "(i) contractual rights, (ii) access tojudicial process, (iii) full and equal benefit of all laws andproceedings, and (iv) subjection to punishment." Bermúdez Zenónv. Rest. Compostela, Inc., 790 F. Supp. 41, 44 n. 3 (Puerto Rico1992) (Pieras, J.) (citing 2 J. Cook & J. Sobieski, CivilRights Actions 5-24 ¶ 5.03 (Bender 1991)). The First Circuithas explicitly held that Section 1981 prohibits intentionaldiscrimination based on race. See Alexis v. McDonald's Rest. ofMass. Inc., 67 F.3d 341, 346-347 (1st Cir. 1995).
Plaintiff argues that Co-Defendant Santos-Ortiz's allegedcomments calling her a racist are sufficient to maintain a claimunder Section 1981. The Court finds Plaintiffs argument to bespecious at best. The Supreme Court of the United Stateseloquently laid out the parameters of the protections garneredunder Section 1981 as those protecting individuals from racebased discrimination and not from discrimination based upon sexor gender. See Runyon v. MacCrary, 427 U.S. 160, 16796 S.Ct. 2586, 2593 49 L.Ed.2d 415 (1976); see also Trujillo v. ReadyMix Concrete, Inc., 585 F. Supp. 1346, 1347 (Puerto Rico 1984).Assuming arguendo that Co-Defendant Santos-Ortiz did indeed callPlaintiff a racist it would appear to be a manner in whichalleged sexual harassment was manifested and was not a form ofrace based discrimination. For this reason, Defendants' Motionsto Dismiss are hereby GRANTED IN PART and Plaintiffs claimsarising under 42 U.S.C. § 1981 are hereby DISMISSED WITHPREJUDICE against all Defendants.
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B. Timeliness of Plaintiff's Claims
Defendants contend that Plaintiffs claims under42 U.S.C. § 19814 and 1983; and under 31 P.R. Laws Ann. §§ 5141 and5142 are time barred. Defendants state that Plaintiffsaforementioned claims accrued in 1997 when her supervisor wasallegedly harassing her, or at the very latest, on January 25,1999, when Plaintiff allegedly formally notified Co-DefendantIglesias Vargas, that she was being harassed by Co-DefendantSantos-Ortiz. Defendants argue that Plaintiff filed the currentcomplaint outside of the Puerto Rico one-year statute oflimitations and as such, it should be dismissed. Plaintiffargues that she tolled the running of the statute of limitationswhen she filed a complaint with the Department of Labor anddisputes Defendants' dates being that retaliatory actions weretaken against her after filing the complaint.
Section 1983 does not provide a statute of limitation.Instead, the Supreme Court of the United States has held thatcourts must borrow the State's limitation period governingpersonal injury actions. See Wilson v. García, 471 U.S. 261,266, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985) (finding itmost unlikely that the period of limitations applicable to suchclaims ever was, or ever would be, fixed [by the forum State] ina way that would discriminate against federal claims, or beinconsistent with federal law in any respect); see also Nievesv. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001). In Puerto Ricothe applicable limitation period for tort actions is one yearunder Article 1868(2) of the Civil Code. 31 P.R. Laws Ann. §5298(2); see also Carreras-Rosa v. Alves-Cruz, 127 F.3d 172,174 (1st Cir. 1997); Muñiz-Cabrero v. Ruiz, 23 F.3d 607, 610(1st Cir. 1997); Torres v. Superintendent of Police,893 F.2d 404, 406 (1st Cir. 1990). In addition, this one-year period isapplicable to actions brought pursuant to Articles 1802 and 1803of the Puerto Rico Civil Code. See Matos Ortiz v. Commonwealthof Puerto Rico, 103 F. Supp.2d 59, 63 (Puerto Rico 2000) (citingOlmo v. Young & Rubicam of P.R., Inc., 110 P.R. Dec. 740,745-48 (P.R. 1981)).
Although state law is utilized to determine the length of thestatute of limitations for Section 1983, federal law willdetermine the date of accrual. See Muñiz-Cabrero, 23 F.3d at610; Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1stCir. 1992). The actual period begins to run when the aggrievedperson "knows, or has reason to know, of the injury on which theaction is based." Rivera-Muriente, 959 F.2d at 353; see alsoMuñiz-Cabrero, 23 F.3d at 610. Under this reasoning, "the oneyear period begins one day after the date of accrual."Benítez-Pons v. Commonwealth of Puerto Rico, 136 F.3d 54, 59(1st Cir. 1998); see also Carreras-Rosa, 127 F.3d at 174.
Defendants argue that the statute of limitations should havebegun to run in either 1997, or at least, on January 25, 1999.However, Plaintiff argues that the date should be later becauseof her retaliatory claims. Nevertheless, Plaintiffs retaliatoryclaims would have stemmed from retaliatory actions takendirectly after her claims were filed. See Matos Ortiz,103 F. Supp.2d at 62. Therefore, the latest possible moment to accruePlaintiffs claim would be August 1999. Plaintiff filed thecurrent case on March 12, 2001. At first blush, it would appearthat Plaintiff's claims are indeed out of term. However,
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Plaintiff argues that the statute of limitations was tolled dueto her extrajudiciary claims filed with the Department of Laborand the EEOC.
Pursuant to Article 1873 of the Puerto Rico Civil Code, aplaintiff can interrupt the prescriptive period in one of threeways. "Prescription of actions is interrupted by theirinstitution before the courts, by extrajudicial claim of thecreditor, and by any act of acknowledgment of the debt by thedebtor." 31 P.R. Laws Ann. § 5303 (Lexis Pub. 1998); see alsoTokyo Marine and Fire Ins. Co., Ltd. v. Pérez & Cia. De PuertoRico, Inc., 142 F.3d 1, 4 (1st Cir. 1998). It is settled thatfor an extrajudicial claim to toll the statute of limitations,it, must contain identical causes of action as the claimasserted in court. See Matos Ortiz, 103 F. Supp.2d at 62;León-Nogueras v. Univ. Of Puerto Rico, 964 F. Supp. 585, 589(Puerto Rico 1997).
Defendants argue that the filing of a charge with the EEOC orthe Anti-Discrimination Unit of the DOL cannot serve to toll thestatute of limitations for a Section 1983 claim. Defendantsadditionally argue that Plaintiffs claims under Articles 1802and 1803 of the Puerto Rico Civil Code cannot be tolled byPlaintiff's extrajudicial claims. Plaintiff counters, withoutany jurisprudential support, that her claim filed with theAnti-Discrimination Unit of the Department of Labor tolls theprescriptive date on her Section 1983 and Article 1802 and 1803claims.
This Court has clearly held that "the EEOC has no jurisdictionover claims brought pursuant to § 1983, and thus, a charge filedwith the EEOC or Puerto Rico Anti-Discrimination Unit cannotserve to toll the limitations period for a § 1983 claim." Sifrev. Department of Health, 38 F. Supp.2d 91, 96 (Puerto Rico 1999)(Pieras, J.); see also Matos Ortiz, 103 F. Supp.2d at 62,León-Nogueras, 964 F. Supp. at 589.
However, the case law is not so clear as to whether a claimfiled with the DOL or the EEOC would toll the applicable statuteof limitations for a plaintiffs claims brought under Articles1802 or 1803. Case law clearly demonstrates that claims broughtunder Title VII or Puerto Rico Law 100, are not only tolled butare suspended pending the ultimate determination of theextrajudicial proceeding5. See León-Nogueras,964 F. Supp. at 587-588; Cintrón v. Estado Libre Asociado de PuertoRico, 127 P.R. Dec. 582, 593-595 (P.R. 1990). The Supreme Courtof Puerto Rico has rendered a decision that appears to arguethat both Article 1802 and Law 100 claims can be tolled.Sánchez v. A.E.E., 142 P.R. Dec. 880, 889 (Puerto Rico 1997).However, there is no evidence to demonstrate that Article 1802claims should be suspended pending the ultimate determination ofa extrajudicial proceeding, like a claim under Law 100.Therefore, the Court must look at what effect a toll would haveupon the statute of limitations in the case at hand.
This Court has held that: The normal effect of a single extrajudicial claim, such as an administrative charge, is to toll the statute of limitations and thus to start it running again. However, the court notes that the pendency of administrative proceedings does not prevent the period from running. Therefore, if no further action is
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taken, upon the expiration of the new period the cause of action will be barred.León-Nogueras, 964 F. Supp. at 587. Under this analysis, theone-year statute of limitations for Plaintiffs claims would havebegun anew on the date that Plaintiff filed her extrajudicialclaim, which in this case was July 7, 1999. As noted earlier,Plaintiff did not file her complaint with this Court until March12, 2001; well past the one-year statute of limitations period.It is for these reasons, that Plaintiff cannot now sustain thatshe tolled the statute of limitations when she filed a complaintwith the DOL on July 7, 1999. Accordingly, Defendants' Motionsto Dismiss are hereby GRANTED IN PART and Plaintiffs claimsarising under 42 U.S.C. § 1983 and under Articles 1802 and 1803of the Puerto Rico Civil Code are hereby DISMISSED WITHPREJUDICE against all Defendants.
C. Eleventh Amendment Immunity
Co-Defendants the Commonwealth, the DOC, the JIA, and namedCo-Defendants Sila M. Calderón, Víctor Rivera González, andFernando Iglesias Vargas, in their official capacities, arguethat Plaintiffs federal claims under 42 U.S.C. § 1981, 1983 and2000a-1, Title III of the Civil Rights Act of 1991, and hersupplemental Commonwealth law claims under Articles 1802 and1803 of the Puerto Rico Civil Code and under Puerto Rico Law No.17 of April 22, 1988, are barred by the sovereign immunitygranted by the Eleventh Amendment of the United StatesConstitution6. Plaintiffs opposition does not seem tooppose this argument at all7. Nevertheless, the Courtshall analyze Defendant's contention in the light most favorableto Plaintiff.
It is well settled law that the Eleventh Amendment immunizesstates from suits for damages in federal court in the absence ofabrogation by Congress or waiver by the state. See Fitzpatrickv. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976);Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662(1974). The Commonwealth of Puerto Rico is treated as a Statefor Eleventh Amendment purposes. See Jusino Mercado v.Commonwealth of Puerto Rico, 214 F.3d 34, 39 (1st Cir. 2000);Ortiz-Feliciano v. Toledo-Dávila, 175 F.3d 37, 39 (1st Cir.1999); see also Lane v. First Nat. Bank of Boston,871 F.2d 166, 176 (1st Cir. 1989) (affirming dismissal of copyright claimagainst the Commonwealth of Massachusetts on Eleventh Amendmentgrounds); Ramírez v. Puerto Rico Fire Service, 715 F.2d 694,697 (1st Cir. 1983).
Therefore, the applicability of Eleventh Amendment immunity toCo-Defendant the Commonwealth and to Co-Defendant Sila Calderón,in her official capacity, are apparent. See Pennhurst StateSchool & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900,908, 79 L.Ed.2d 67 (1984). However, when an action is broughtagainst a public agency or institution, the application of theEleventh Amendment depends upon whether the entity "is to betreated as an arm [or alter ego] of the State partaking of theState's Eleventh Amendment immunity, or is instead to be treatedas a municipal corporation or other political subdivision towhich
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the Eleventh Amendment does not extend." Mt. Healthy City Sch.Dist. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572,50 L.Ed.2d 471 (1977); see also Pennhurst, 465 U.S. at 100, 104S.Ct. at 907; Ainsworth Aristocrat Intern. Pty. Ltd. v. TourismCo. of P.R., 818 F.2d 1034, 1036 (1st Cir. 1987).
This analysis is necessary because a state only has existencethrough its instrumentalities that carry out its functions andestablish its public policy. Therefore, suits brought againstnon-autonomous instrumentalities of the state would beconsidered suits against the state itself. See Mt. Healthy,429 U.S. at 280, 97 S.Ct. at 572; Paul N. Howard Co. v. PuertoRico Aqueduct Sewer Auth., 744 F.2d 880, 886 (1st Cir. 1984)(finding that a true arm of the state can be protected by theEleventh Amendment but when the instrumentality is autonomous,like the Puerto Rico Aqueduct and Sewer Authority, EleventhAmendment immunity does not apply).
The central factors in the final determination appear to be the degree of autonomy of the governmental entity and whether recovery against it would come from state funds; if the governmental unit simply is functioning as the alter ego of the state in accomplishing some public purpose, it will be treated as the state for purposes of the Eleventh Amendment.13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,Federal Practice and Procedure § 3524 at 135-136 (West 2d Ed.1984).
The Court's now turns to determine whether or notCo-Defendants the DOC and the JIA8 can be considered armsof the Commonwealth. Plaintiff has provided no dispute inconsidering the DOC and the JIA as arms of the Commonwealth. Itis inferred that both the DOC and the JIA perform penal andsocial services for the community as an arm of the Commonwealth.It is equally implied that these offices do not derive incomefrom any independent source and instead rely upon theirbudgetary allotments from the Commonwealth treasury. But seeHoward, 744 F.2d at 886. Therefore, any judgment held againsteither the DOC, the JIA, Co-Defendant Rivera González, in hisofficial capacity, or Co-Defendant Iglesias Vargas, in hisofficial capacity, would effectively be a judgment against theCommonwealth.
As this Court is bound by an unbroken line of cases wherebythe First Circuit has consistently held that the Commonwealth ofPuerto Rico is to be considered a "state" for Eleventh Amendmentpurposes, Plaintiffs claims under 42 U.S.C. § 2000a-1, Title IIIof the Civil Rights Act of 1991, and her supplementalCommonwealth law claims under Puerto Rico Law No. 17 of April22, 1988, against Co-Defendants the Commonwealth, the DOC, theJIA, and named Co-Defendants Sila M. Calderón, Victor RiveraGonzález, and Fernando Iglesias Vargas, in their officialcapacities cannot remain. See Negrón Gaztambide v. HernándezTorres, 145 F.3d 410 (1st Cir. 1998) (vacating judgment againstPuerto Rico officials based in part on Eleventh Amendmentimmunity); Metcalf & Eddy Inc. v. Puerto Rico Aqueduct & SewerAuthority, 991 F.2d 935, 939 n. 3 (1st Cir. 1993) ("We haveconsistently treated the Commonwealth of Puerto Rico as if itwere a state for Eleventh Amendment purposes."); De León Lópezv. Corporación Insular de Seguros, 931 F.2d 116, 121
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(1st Cir. 1991) ("The [E]leventh [A]mendment, despite theabsence of any express reference, pertains to Puerto Rico in thesame manner, and to the same extent, as if Puerto Rico were aState."); Fernández v. Chardán, 681 F.2d 42, 59 n. 13 (1stCir. 1982) (Puerto Rico enjoys the full benefits of the EleventhAmendment.). Accordingly, Co-Defendants the Commonwealth, theDOC, the JIA, and named Co-Defendants Sila M. Calderón, VíctorRivera González, and Fernando Iglesias Vargas', in theirofficial capacities, Motion to Dismiss is hereby GRANTED INPART and Plaintiffs claims arising under 42 U.S.C. § 2000a-1,Title III of the Civil Rights Act of 1991, and her supplementalCommonwealth law claims under Puerto Rico Law No. 17 of April22, 1988 against Co-Defendants the Commonwealth, the DOC, theJIA, and named Co-Defendants Sila M. Calderón, Víctor RiveraGonzález, and Fernando Iglesias Vargas, in their officialcapacities, are hereby DISMISSED WITH PREJUDICE.
D. Individual Liability Under Title VII
Co-Defendants Victor Rivera González, José Aponte Pérez,Fernando Iglesias Vargas, Pedro R. Figueroa Pacheco and LuisMendez's, in their personal capacities, argue that Plaintiffsclaims under Title VII should be dismissed as they are notemployers as within the meaning of Title VII and that Title VIIdoes not provide for individual liability. In turn, Plaintiffargues that, since neither the Supreme Court of the UnitedStates nor the First Circuit Court of Appeals have rendered adecision excluding individual liability under Title VII,Defendants' motion is frivolous and does not warrant anopposition9.
Section 703(a) of Title VII states that: [i]t shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin.42 U.S.C. § 2000e-2 (emphasis added). Title VII's coverage hasbeen extended to proscribe sexual harassment in the workplace.See Acevedo Vargas v. Colón, 2 F. Supp.2d 203, 205 (Puerto Rico1998) (referring to the EEOC guidelines which establish thecriteria for determining when unwelcome conduct of a sexualnature constitutes sexual harassment for purposes of Section 703of Title VII). Therefore, Title VII is the applicable federalcause of action addressing claims for sexual harassment in theworkplace.
Because Title VII is directed at "employers," determining themeaning of this term is essential to our discussion. Title VIIdefines employer as "a person engaged in an industry affectingcommerce who has fifteen or more employees for each working dayand any agent of such person." 42 U.S.C. § 2000-e (emphasisadded). Therefore, because "individual capacity" Co-Defendantsare not the employing entity, the Court will focus on whetherthey can be held liable as agents of the employing entity. SeeRivera Rodríguez v. Police Dept. of Puerto Rico, 968 F. Supp. 783,785 (Puerto Rico 1997) (Pieras, J.); Anonymous v. LegalServices Corporation of Puerto Rico, 932 F. Supp. 49, 50 (PuertoRico 1996) (stating that "resolution of the [individualliability] question depends on how the `and any agent' languageis interpreted."). That is
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to say, the Court must decide whether Title VII, by including inits definition of employer any agent of "a person engaged in anindustry affecting commerce who has fifteen or more employees,"intended for such agents to be subject to liability for engagingin the proscribed discriminatory behavior. 42 U.S.C. § 2000e-2.
Although the First Circuit has yet to decide whether a TitleVII plaintiff may maintain a suit against an individual in hispersonal capacity, most circuits have held that no personalliability can be attached to agents or supervisors under TitleVII. See Serapion v. Martinez, 119 F.3d 982 (1st Cir. 1997)(declining to address the issue of individual liability); butsee Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 493 (7thCir. 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 (4thCir. 1998) (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); Diciv. 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. BasicInstitute 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 (9thCir. 1993) (same). Like the majority of the circuit courts, thisDistrict has generally held that individual defendants are notliable under Title VII. See Canabal v. Aramark Corp.,48 F. Supp.2d 94, 95-98 (Puerto Rico 1999) (Pieras, J.); AcevedoVargas v. Colón, 2 F. Supp.2d at 206; Pineda v. AlmacenesPitusa, Inc., 982 F. Supp. 88, 92-93 (Puerto Rico 1997);Hernández v. Wangen, 938 F. Supp. 1052 (Puerto Rico 1996);Anonymous v. Legal Services Corporation, 932 F. Supp. at 50-51.
The Court is compelled by the reasoning of previous decisionswithin this District. Title VII's statutory structure suggeststhat Congress did not intend to impose individual liability oversupervisors or agents of employers. See Acevedo Vargas v.Colón, 2 F. Supp.2d at 206. Liability under the statute istriggered when the defendant/employer retains fifteen or moreemployees. See 42 U.S.C. § 2000-e. In establishing thisthreshold, Congress sought to protect small entities. See Tomkav. Seiler Corp., 66 F.3d at 1319. Thus, "`[i]f Congress decidedto protect such entities with limited resources from liability,it is inconceivable that Congress intended to allow civilliabilities to run against individual employees.'" AcevedoVargas v. Colón, 2 F. Supp.2d at 206-07 (citing Miller, 991F.2d at 587).
Further, because liability under Title VII hinges on retaining15 or more employees, in order to hold an individual liable, theemploying entity would have to retain at least 15 employees. Ifthat number is not surpassed, individuals would not be subjectto liability. Therefore, individual liability derives from theemployer's exposure to liability. The Court finds thatconditioning an individual's liability on a factor over whichthe individual would not generally have control would benonsensical. Had Congress intended to hold individuals liable,it would have addressed the actions and conditions that wouldsubject them to liability. Canabal, 48 F. Supp.2d at 96.
Further, this District has concluded that the tasks mandatedto employers under Title VII are applicable to the corporateentities and not to individual supervisors. See Hernández v.Wangen, 938 F. Supp. at
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1064 (noting that tasks such as maintaining records that shedlight on potential unlawful employment practices and postingnotices about the provisions of Title VII in conspicuous placeson the work premises are undoubtedly tasks associated withcorporate entities, not individuals.). Therefore, because TitleVII is mostly structured to guide an employer's behavior, theCourt finds that Title VII does not provide for individualliability10.
For this reason, the Court hereby GRANTS IN PARTCo-Defendants Víctor Rivera González, José Aponte Pérez,Fernando Iglesias Vargas, Pedro R. Figueroa Pacheco and LuisMendez's, in their personal capacities, Motion to Dismiss andhereby DISMISSES WITH PREJUDICE Plaintiffs Title VII claimsagainst Co-Defendants Víctor Rivera González, José Aponte Pérez,Fernando Iglesias Vargas, Pedro R. Figueroa Pacheco and LuisMéndez, in their personal capacities.
E. Service of Process
Finally, Co-Defendants Myriam Quiñones and José Lozada Medinaargue that Plaintiff did not serve them with summons within the120-day period prescribed by Fed.R.Civ.P. 4(m) and thatPlaintiff's claims against them should be dismissed. Plaintiffacknowledges that Co-Defendants Quinones and Lozada Medina wereserved out of term but argues that there was "good cause" forthe delay.
Rule 4(m) of the Federal Rules of Civil Procedure provides inpertinent portion: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the compliant, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.Fed.R.Civ.P. 4(m) (West 2002). Plaintiff filed her complaint onMarch 12, 2001 (docket No. 1). Plaintiff amended her complainton June 7, 2001, but did not request further summons (docket No.4)11. Therefore, Plaintiff effectively had until July 10,2001 to effectuate service. However, Plaintiff did noteffectuate service on Co-Defendants Quiñones and Lozada Medinauntil September 25, 2001.
The First Circuit has held that "if a plaintiff fails toproperly serve a named defendant within 120 days after filing acomplaint, he must show `good cause why such a service was notmade within that period' or face dismissal." Benjamin v.Grosnick, 999 F.2d 590, 591 (1st Cir. 1993) (quotingFed.R.Civ.P. 4(j)12). The Court deciphers from Plaintiffsopposition that her process server was taken to the hospital togive birth and took the relevant summons with her and that otherprocess servers served Co-Defendants Quiñiones
[247 F. Supp.2d 61]
and Lozada while the original process server was in labor.
The Court notes that Co-Defendants Quinones and Lozada Medinawere not served until more than two months after the 120-dayperiod had expired. While the undersigned does not pretend to bean obstetrician, the Court highly doubts that Plaintiffsoriginal process server was in labor the entire time and if shewere, the Court is puzzled as to why Plaintiff did not seek anextension of time to serve Defendants. Furthermore, as Plaintiffhas argued that other process servers were utilized toultimately serve process, the Court fails to understand why ittook more than two months for the other process servers to serveprocess, as well. Ultimately, the Court finds that Plaintiff hasnot demonstrated "good cause" for the delay in servingCo-Defendants Quinones and Lozada Medina. For this reason theCourt hereby GRANTS Co-Defendants Quiñones and Lozada Medina'smotions to quash summons. Plaintiffs claims against the same arehereby DISMISSED WITHOUT PREJUDICE.
For the foregoing reasons, The Court hereby DENIESDefendants' "Motion to Strike Plaintiffs `Motion In OppositionTo Defendant's Motion to Dismiss" (docket No. 29a); the Courthereby GRANTS IN PART Co-Defendants Pedro R. Figueroa Pachecoand Luis Méndez's Motions to Join and Adopt Defendants' Motionto Dismiss (docket Nos. 22 and 29); Plaintiff's claims againstCo-Defendants Quiñones and Lozada Medina are hereby DISMISSEDWITHOUT PREJUDICE; Plaintiffs claims arising under42 U.S.C. § 1981 and 1983 and under Articles 1802 and 1803 of the PuertoRico Civil Code are hereby DISMISSED WITH PREJUDICE againstall Defendants; Plaintiffs claims arising under42 U.S.C. § 2000a-1, Title III of the Civil Rights Act of 1991, and hersupplemental Commonwealth law claims under Puerto Rico Law No.17 of April 22, 1988, against Co-Defendants the Commonwealth,the DOC, the JIA, and named Co-Defendants Sila M. Calderón,Víctor Rivera González, and Fernando Iglesias Vargas, in theirofficial capacities, are hereby DISMISSED WITH PREJUDICE; andPlaintiffs Title VII claims against Co-Defendants Víctor RiveraGonzález, José Aponte Pérez, Fernando Iglesias Vargas, Pedro R.Figueroa Pacheco and Luis Méndez, in their personal capacitiesare hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
1. The Court hereby GRANTS IN PART Co-Defendants Pedro R.Figueroa Pacheco and Luis Mendez's Motions to Join and AdoptDefendants' Motion to Dismiss (docket Nos. 22 and 29) andINCLUDES Co-Defendants Figueroa and Mendez in itsconsideration of the "personal capacity" Defendants' motion.
2. The Court ACCEPTS Plaintiff's opposition and herebyDENIES Defendants' "Motion to Strike Plaintiff's `Motion InOpposition To Defendant's Motion to Dismiss." (docket No. 29a).
3. Plaintiff filed an Amended Complaint on June 7, 2001(docket No. 4).
4. As the Court has dismissed Plaintiff's claims under42 U.S.C. § 1983 above, the Court need not analyze the timelinessof the same.
5. Defendants have not attempted to argue that Plaintiff'sTitle VII claim should be dismissed as time barred.
6. As the Court has dismissed Plaintiff's claims under42 U.S.C. § 1981 and 1983, and Articles 1802 and 1803 above, theCourt need not analyze the effects of sovereign immunity uponthe same. Furthermore, the Court notes that Defendants do notinclude Plaintiff's Title VII claims in their Eleventh Amendmentargument.
7. In fact, Plaintiff's motion mentions that "someone [sic]of the defendants may get out from the case." (Docket No. 28 at4).
8. Subsequently finding that the claims against Co-DefendantsVictor Rivera Gonzalez, and Fernando Iglesias Vargas, in theirofficial capacities, to be claims against the Commonwealthitself.
9. The Court notes that Plaintiff's argument to not opposeDefendant's argument of individual liability is not nearly asclear as the Court's summary allows it to appear.
10. The Court notes it has found previously that an"alter-ego" exception, to the rule against individual liabilityunder Title VII, exists. See Canabal, 48 F. Supp.2d at 97;Santiago, 33 F. Supp.2d at 102. However, in the case at hand,Plaintiff has not attempted to find, in her complaint nor in heropposition, that "individual capacity" Co-Defendants are an"alter-ego" of Plaintiff's employer, For this reason the Courtneed not enter this analysis.
11. The Court notes that Plaintiff was granted leave to amendthe complaint due to a typographical error found in the originaland not to add any defendants (docket No. 3).
12. The Court notes that former Fed.R.Civ.P. 4(j) has beensince superseded by Fed.R.Civ.P. 4(m).