Ramirez-Nieves v. Municipality of Canovanas et al

2017 | Cited 0 times | D. Puerto Rico | March 16, 2017

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civil No. 16-1749 (DRD)

OPINION AND ORDER Plaintiff Sara Ramirez- Lorna Soto-Soto-Villanueva Plaintiff brought this action under Section 1983 of the Civil Rights

Act, 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments of the United States Constitution; Articles 1802 and 1803 of the Civil Code, 31 L.P.R.A. §5141-5142 ( Articles 1802 and 1803 ); Puerto Rico Law No. 100 of 1959, 29 L.P.R.A. § 146, et seq. ( Law 100 ); Puerto Rico Law No. 115 of 1959, 29 L.P.R.A. § 194(a), et seq. ( Law 115 ); and § 12101, et seq. and 42 U.S.C. § 12102(3)(A). Motion to Dismiss (Docket No. motion is hereby GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND 1 In 1994, the Municipality hired Plaintiff Sara Ramirez-Nieves as a temporary employee. On November 16, 1995, Plaintiff was named Redaction Clerk 1, a permanent position. Plaintiff held several

1 The facts outlined below are neither exhaustive nor indicative of all the factual allegations set forth in the complaint. The facts, as outlined, simply relate to the arguments set forth in the pending motion to dismiss. SARA RAMIREZ-NIEVES, Plaintiff, v. MUNICIPALITY OF CANOVANAS, et al., Defendants.

permanent positions within the Municipality until October 1, 2001, when she was named Electronic Systems or.

On August 1, 2004, Plaintiff was named to the trust position of Special Assistant to the Mayor, Jose Soto- -law husband. 2

On October 1, 2006, Plaintiff was promoted to the position of Director of Community Affairs, another trust position. On August 17, 2007, Plaintiff was named Director of Cultural Affairs, another trust position. Plaintiff resigned as Director of Cultural Affairs and was reassigned to her permanent position as Electronic Systems Operator on December 31, 2009. On October 1, 2010, Plaintiff was again named Special Assistant to Mayor Chemo Soto.

In January of 2012, an election year 3

, Mayor Chemo Soto confided in Plaintiff that he was considering withdrawing from the race for reelection and was torn as to which of his children to support as his successor for Mayor of Canovanas, Defendant Soto-Villanueva or Jose Soto- Around this time, Chemo Soto held a meeting in the home he shared with Plaintiff. Present at the meeting were Jose Rodriguez- - - - - - Finance Director of the Mun Eyla Cardona- - present at the meeting voted on who Chemo Soto should support as his successor. Yukon garnered four (4)

one (1) vote. Plaintiff did not vote as it was well-known that she supported Yukon.

Despite ending her relationship with Chemo on February 8, 2012, Plaintiff remained Special Assistant to the Mayor. On May 17, 2014, Chemo Soto announced that he was resigning as a Mayor of Canovanas, effective on June 30, 2014. Plaintiff immediately began speaking to coworkers and residents of

2 -law wife from September 2006 until February 2012. The pair resided together during the above-referenced period. 3 The election cycle in Puerto Rico mirrors that of the United States. Elections are held every four years on the same date as those held in the United States. Accordingly, 2012 and 2016 are the election

Canova Chemo announced publically that he would support Defendant Soto-Villanueva as his successor. On July 1,

2014, Defendant Soto-Villanueva was sworn in as Mayor of the Municipality for the remainder of term.

to oversee several administrative matters related to a day-care center run by th

(in Spanish, the Little Indians ), at the center consisted of supervising personnel, drafting proposals to request federal funding or the daycare, and drafting letters and memoranda.

On August 28, 2014, Plaintiff met with Defendant Soto-Villanueva and Defendant explained that she did not trust Plaintiff due to her support of Plaintiff would be removed as Special Assistant to the Mayor and was to return to her permanent position as

Electronic Systems Operator. During the meeting, Defendant was aggressive and accused Plaintiff of attempting to alienate her father, Chemo. Defendant demanded Plaintiff speak to Yukon and convince him to drop out of the New P Deputy Mayor Rodriguez- determination to return Plaintiff to her permanent post. Plaintiff reported to her regular workplace the following

day.

On September 1, 2014, - Villanueva, approached Plaintiff. Levy demanded to collect on donations Plaintiff had pledged to Chemo Soto event on donate the total cost of the unsold tickets campaign. In total, twenty (20) tickets, priced at $30, went unsold and, as such, Levy demanded Plaintiff Plaintiff agreed to pay half of the money, $300. Throughout the month of October 2014, Levy continued to call Plaintiff demanding she pay the remaining $300.

On October 3, 2014, Plaintiff called Defendant Soto-Villanueva to discuss work-related matters. on about withdrawing from the race for mayor. On November 24, 2014, Plaintiff requested paid medical leave under orders from the therapist. On April 21, 2015, the final day of P Resources office to request an extension of her leave, albeit unpaid. Plaintiff received a letter, signed by

Defendant, removing her from her trust position and returning her to her career post of Electronic Systems Operator. On August 17, 2015, Plaintiff returned to work as Electronic Systems Operator, a position that paid $1,500 fewer per month than her prior trust position. After being assigned back to her permanent position, Plaintiff was stationed at a desk in a hallway, isolated from her coworkers.

regarding an incident where Plaintiff found political materials left in Municip copy machine. Plaintiff mentioned coworker Luz C. Bauzo as a witness to whom she showed the copies and

mentioned that Plaintiff notified Human Resources Director Barreto-Horta of the incident. Pursuant to the investigation into the incident, Barreto-Horta and computers were confiscated. Plaintiff was assigned a different computer the following day.

On October 13, 2015, Plaintiff filed a complaint with the Puerto Rico Office of Governmental Ethics name) regarding the incident with the political materials at the photocopier as well as the sale election campaign in Municipality offices and during working hours and the distribution of political materials during business hours employees. The complaint is currently pending before OEG.

s mayoral bid Case 3:16-cv-01749-DRD Document 46 Filed 03/16/17 Page 4 of 21 campaign activities. her home, which

is two blocks away from the Municipality offices. 4

5 II. PROCEDURAL HISTORY April 18, 2016, Plaintiff filed a Complaint against the Municipality of Canovanas, Lorna Soto- Villanueva in her personal and official capacities, John Does 1-10, and unknown Insurance Company A (Docket No. 1). Plaintiff filed suit under Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments of the United States Constitution; Articles 1802 and 1803 of the Civil Code, 31 L.P.R.A. §5141-5142; Puerto Rico Law No. 100 of 1959, 29 L.P.R.A. § 146, et seq.; and Puerto Rico Law No. 115 of 1959, 29 L.P.R.A. § 194(a), et seq..

On June 22, 2016, Plaintiff filed an Amended Complaint against Defendants (Docket No. 21). plaint was nearly identical to her prior complaint with the exception of an additional claim under the § 12101, et seq. and 42 U.S.C. § 12102(3)(A).

4 Plaintiff also provided several names of coworkers who were purportedly discriminated against by Defendant Lorna Soto. Rafael Osvaldo Burgos-Quiñones was a heavy-machinery mechanic for the Municipality who was replaced as supervisor of his area after - assigned to the Office of General Services was not renewed after openly supporting one of Defend election; Aidan Pagan-Cruz was terminated as Special Assistant to the Mayor when he refused to sell tickets to an activity

-Vargas was berated and chastised when she declined to work as chef Sandra Casilla-Rodriguez was subjected to discrimination and adverse employment actions after declining to serve as a ballot

5 The Court is cognizant that some of the facts stated above may fall outside of the applicable statute of limitations for some of Plaintiff s causes of action. Nevertheless, the Court authorizes Plaintiffs to use evidence of the time-barred claims evidence of her timely claims. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 98 (1st Cir. 2003).

On August 15, 2016, Defendant Lorna Soto-Villanueva filed a Motion to Dismiss (Docket No. 24) joined by Defendant Municipality of Canovanas (Docket No. 27). Defendants averred the complaint should be dismissed as Plaintiff was a trust employee and, accordingly, Defendant Lorna Soto was free to remove be dismissed, as there is no individual liability under the ADA. 6

Finally, Defendants argued that Plaintiff had . Specifically, Defendants note that Plaintiff has not pled which constitutionally protected activity was the seed

On October Motion to Dismiss (Docket No. 38). Plaintiff asseverated that had pled plausible political discrimination, First Amendment retaliation, Law 115, and ADA claims. Plaintiff also explained that her position as Special Assistant to the Mayor was only a trust position by name. In reality, she had no policymaking authority and political affiliation was not a valid requirement of her position.

II. STANDARD OF REVIEW FOR MOTIONS TO DISMISS Under Bell Atlantic v. Twombly,

See Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in

fac Twombly, 550 U.S. at 555) (citation omitted). Thus, a plaintiff must, and is now required to,

6 Clauses, Articles 1802 and 1803 of the Puerto Rico Civil Code, and Law 100 are not included herein because Plaintiff voluntarily dismissed her claims under these laws. See Docket No. 38 at 19.

with the requirements of Rule 8(a). Id. at 570; see e.g. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

-step process under the current context- Twombly, 550 U.S. 544, and Iqbal, 556 U.S. 662. cause of action. See Iqbal, 556 U.S. at 677- to substantiate the required elements of a Bivens claim, leaving the complaint with only conclusory

legal conclusions, conclusory statements and factually threadbare recitals of the elements of a cause of

action. IqbalMaldonado v. Fontanes, 568 F.3d 263, 268 (1st

Cir. 2009) (quoting Iqbal, 556 U.S. 678) (quoting Twombly, 550 U.S. at 557).

Under the second step of the inquiry, the Court must determine whether, based upon all assertions that were not discarded under the first step of the inquiry, the compla Iqbal - may be granted, or, conversely, whether dismissal under Rule 12(b)(6) is appropriate. Id.

Sanchez v. Pereira-Castillo the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged - Iqbal, 556 U.S. at 679 Id. at 679-80 (citing Twombly Case 3:16-cv-01749-DRD Document 46 Filed 03/16/17 Page 7 of 21 pe Ocasio-Hernandez, 640 F.3d at 12, (citing Iqbal, 556 U.S. 679).

The First Circuit has cautioned against equating plausibility with an analysis of the likely success on Sepúlveda- , 628 F.3d 25, 30 (1st Cir.

2010) (citing Twombly, 550 U.S. at 556); Ocasio-Hernandez, 640 F.3d at 12 (citing Iqbal, 556 U.S. 679); see Twombly -pleaded complaint may proceed even if it appears that a recovery is very see Ocasio-Hernandez, 640 F.3d at 12 (citing Twombly d that

-or-break standard . . . is that the combined allegations, taken as true, must state a plausible, [but] Sepúlveda-Villarini, 628 F.3d at 29. Additionally, a district court may not weigh evidence in deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Massachusetts , 671 F.3d 33, 39 n. 6 (2012)(emphasizing that a primary difference between a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) is that, under Rule 12(b)(1), a court may weigh the evidence and make factual determinations).

Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996). Similarly, unadorned factual assertions as to the elements of the cause of action are inadequate as well. Penalbert-Rosa v. Fortuno-Burset even if not in the form of admissible evidence, would likely be enough at [the motion to dismiss] stage; pure

Id. at 596; see Iqbal the ground that they are unrealistic or nonsensical. . . . It is the conclusory nature of [the] allegations, rather

see Mendez

Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal parroting the elements of a cause of action is insufficient. Ocasio-Hernandez, 640 F.3d at 12 (citing Sanchez

v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)).

The First Circuit recently outlined two considerations for district courts to note when analyzing a motion to dismiss. García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir. 2013). First, a complaint modeled on Form 11 of the Appendix of the Federal Rules of Civil Procedure which contains sufficient facts to make the claim plausible is ordinarily enough to surpass the standard prescribed under Twombly-Iqbal. Id. at 104. Second, district courts shoul Id. (more latitude is appropriate in cases

it of discovery, would have any

III. LEGAL ANALYSIS A. Section 1983 Claims Section 1983 does not create any independent substantive rights; Section 1983 is only a procedural vehicle to vindicate constitutional and other federal statutory violations brought about by state actors. See Baker v. McCollan, 443 U.S. 137, 145, n.3 (1979 Albright v. Oliver,

210 U.S. 266 (1994); Lockhart-Bembery v. Sauro, 498 F.3d 69, 74 (1st Cir. 2007); Cruz-Erazo v. Rivera- Montañez, 212 F.3d 617 (1st Cir. 2000). Section 1983 merely provides a mechanism to remedy for deprivations of rights that are federally enshrined elsewhere. Oklahoma City v. Tuttle, 471 U.S. 808 (1985). Section 1983 provides:

custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper

42 U.S.C. § 1983.

conduct complained of was committed by a person acting under the color of state law; and (2) whether this

conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 558 (1st Cir. 1989)(citing Parratt v. Taylor, in a § 1983 action have exercised power possessed by virtue of state law and made possible only because wrongdoer is clothed with West v. Atkins, 487 U.S. 42, 49 (1988)(internal citations and quotations omitted).

Defendants do no Nevertheless, at all times relevant to this case Plaintiff and Defendant Soto-Villanueva were employees of

Defendant Municipality of, Defendant was acting in her official capacity as Mayor, and Defendant was acting under the color of state law. Therefore, Section 1983 is an appropriate avenue to remedy the alleged conduct that supposedly deprived Plaintiff of her rotected by law. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)(holding that Municipalities are persons section 1983 claim, and, therefore, are subject to claims pursuant to the statute.); see also Rosaura Bldg. Corp. v. Municipality of Mayaguez, 778 F.3d 55, 62 (1st Cir. 2015) Rodríguez García v.

Miranda Marín, 610 F.3d 756, 770 (1st Cir.2010)).

First Amendment Political Discrimination The First and Fourteenth Amendments protect the rights of individuals to freely associate with others Kusper v. Pontikes, 414 U.S. 51, 57, 58

The First Amendment protects associational rights. Incorporated within this prophylaxis is the right to be free from discrimination on account of one's political opinions or beliefs. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004)(citing LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir.1996). The one exception to the rule against political discrimination in public employment is reserved for positions where political loyalty is a legitimate requirement for the position in question. See Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76 (1990); Branti v. Finkel, 445 U.S. 507, 516-518 (1980); Elrod v. Burns, 427 U.S. 347, 372-73 (1976)(plurality opinion). Subject to the latter exception, government officials cannot discharge public employees simply because of their political affiliations. See Elrod, 427 U.S. at 350. Additionally, [p]romotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees. Rutan Rutan v. Republican Party of Ill., 868 F.2d 943, 954-957 (7th Cir. 1989)).

The First Amendment serves to protect the freedom of government employees to associate with a political circumstances. Id. at 76.

affiliation, (3) that an adverse employment action occurred, and (4) that political affiliation was a substantial

Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 239 (1st Cir. 2010). In order to survive the motion to dismiss stage, a plaintiff must make a fact specific showing that his political affiliation was a substantial or motivating factor in the employment decision. See Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 594 (1st Cir. 2011) (citing Montfort Rodríguez v. Rey Hernández, 504 F.3d

221, 224 25 (1st Cir. 2007)). Additionally, it is sufficient for plaintiffs to simply allege that they and defendants are affiliated to different political parties. See Ocasio-Hernandez, 640 F.3d at 13. The Court is satisfied that Plaintiff has adequately pled the four prongs required for a prima facie showing of political discrimination under Section 1983. Defendant Lorna Soto was aware that Plaintiff was hat she had no faith in Plaintiff because of her political support of Yukon and that Defendant was going to have Plaintiff return to her career post as Electronic Systems Engineer. Despite the fact that Defendant Soto reconsidered her decision to relocate Plaintiff, she eventually followed through on her initial promise and reinstated Plaintiff to her career positon, seemingly motivated by political animus. Plaintiff was also assigned to an undesirable and secluded work area.

motion is anchored upon the the Mayor was a trust position and political affiliation is a proper requirement of the position. See Olmeda

v. Ortiz-Quinonez, In a nutshell, [S does not extend involve decision making on issues where there is room for political disagreement o and where the jobholder is a policymaker, confidential assistant, spokesman, or similar officeholder. In Puerto Rico employees may only be terminated trus can be López-Erquicia v. Weyne-Roig, 846 F.3d 480, 483 (1st Cir. 2017)(citing P.R. Laws Ann. tit. 3, §§ 1462e, 1465 and § 1462c). ctual f official description of job Uphoff Figueroa v. Alejandro, 597 F.3d 423, 430 (1st Cir. 2010)(internal citations omitted); see also Galloza perusal of the job description for the position is the most useful starting point for determining the position's inherent attributes. Historically, the First Circuit has found the following positions not protected by Section 1983:

Assistant Secretary of State for Protocol Affairs at the Puerto Rico State Department, who made recommendations to and counseled Puerto Rico's highest elected officials; a municipal recreation commissioner with ffecting parks and environmental law issues and cases for the Puerto Rico; a municipal police nd finance a regional tax administrator; associate directors of several community centers; and an audit director who supervised employees and counseled a senior official about policy matters. López-Erquicia, 846 F.3d at 486 (citations and marks omitted).

Nevertheless, deciding whether to afford First Amendment protection on a particular employee depends on the facts of the case. Courts in the First Circuit generally employ a two-prong analysis to determine whether a job is policymaking in nature. necessitates a high-level glimpse of the purpose of the employing agency and the role that the particular position occupies within it . . . [in order to determine] whether the agency employing the plaintiff handle[s] matters potentially subject to partisan political Galloza, 389 F.3d at 29. This factor does not provide much guidance to the Court s analysis as the employing agency, a municipality, provides a broad spectrum of services to its residents. The office of the mayor, where Plaintiff was a Special Assistant, oversees all these services. However, because Plaintiff s assignment was limited to supervising -care center run by the municipality, the second analytical prong should prove dispositive.

The second prong is narrowly focused on drawing the line between the policymakers, for which political affiliation is crucial, and non-policymakers. In doing so, the Court should responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential

information, a communicator, or some other office holder whose function is such that party affiliation is an López-Erquicia, 846 F.3d at 485. Courts should also weigh factors such as relative pay, title, and legal or legislative classification. See Galloza at 29.

Plaintiff was supervised personnel, coordinated activities and social services for the children, coordinated drafted proposals to request federal funding for the daycare, and drafted letters and memoranda. These

functions are not those of a policymaker privy to confidential information. Instead, these resememble routine administrative tasks, as opposed to policy-driven determinations. But see Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1998)(finding an associate director of administration and finance and associate director for discrimination.). Therefore, despite Defendants attempt to paint stripes on a horse and call it a zebra,

Plaintiff s trust position as Special Assistant to the Mayor is plausible entitled to First Amendment Protection. In any event, at this pre-discovery stage, the Court is not in a position to make a definitive determination on See García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir. 2013). Accordingly, the Court finds that Plaintiff has pled sufficient facts to proceed with her political discrimination claim and DENIED.

First Amendment Retaliation Ranking v. McPherson, 483 U.S. 378, 383 (1987)(citing Perry v.

Sindermann, 408 U.S. 593, 597 (1972)). oyees do not lose their First Amendment rights to Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007). must show that he spoke as a citizen on a matter of public concern, that his interest in speaking outweighed the government's interest, as substantial or motivating factor in [the adverse employment action] Rodriguez v. Municipality of San Juan,

659 F.3d 168, 180 (1st Cir. 2011)(internal citations and quotations omitted). Defendants aver that Plaintiff

has failed to plead which constitutionally protected statement prompted the alleged adverse employment actions.

T speech was made pursuant to his official duties. This determination is outcome determinative, as statements

made by public employees pursuant to their official duties are not protected for First Amendment purposes. See Garcetti v. Ceballos, 547 U.S. 410, 420-21 (2006). In order to determine whether an employee spoke as a citizen, a court must whether the statements in question were made pursuant to those responsibilities. Decotiis v. Whittemore,

635 F.3d 22, 31 (1st Cir. 2011). The First Circuit has outlined several non-exclusive factors to aid in the

responsibilities:

(1) whether the employee was commissioned or paid to make the speech in question; (2) the subject matter of the speech; (3) whether the speech was made up the chain of command; (4) whether the employee spoke at her place of employment; (5) whether the speech gave objective observers the impression that the employee represented the employer when she derived from special knowledge obtained during the course of her employment; and (7) whether there is a so-called citizen analogue to the speech. Decotiis, 635 F.3d at 32. Here, Plaintiff spoke on a matter of public concern misuse of municipal property when she filed complaints with Human Resources and the OEG about political propaganda being printed and photocopied hines. Plaintiff did not make these statements pursuant to her official duties or up the chain of command. she was stripped of duties previously assigned to her career position, she was barred from handling any

information regarding high-ranking Municipal officials, and she was assigned to an undesirable work area. Plaintiff also asserts she was the subject of hostile treatment by some superiors at her workplace. Accordingly, upon finding that Plaintiff has adequately alleged that she spoke as a private citizen on a matter

1983 Retaliation Claim is DENIED.

B. ADA Claim Prima Facie ADA Case The ADA prohibits an employer from discriminating against a qualified person with a 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 because of his or her disability or perceived disability. Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011)(quoting 42 U.S.C. § 12112(a) (1990). In order to succeed on a disability discrimination claim, a plaintiff must prove that: (1) she is disabled within the meaning of the ADA; (2) she was able to perform the essential functions of the job with or without a reasonable accommodation; and (3) that she was discharged or adversely affected, in whole or in part, because of [his] disability. Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir.2008). Nevertheless, at the motion to dismiss stage, the Court shall be flexible, as no single allegation must establish a particular element provided that the allegations in the complaint make the reasonable accommodation claim plausible. Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. ... some necessary element [of the cause of action], provided that, in sum, the allegations of the complaint

Ocasio Hernández v. Fortuño Burset, 640 F.3d 1, 14 15 (1st Cir. 2011)).

Disability eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, neurological disability status. 42 U.S.C. § 12102(B).

The determination of whether or not a plaintiff has a disability must be made on a case-by-case basis. See Calero-Cerezo v. U.S. Dept. Of Justice, 355 F.3d 6, 20 (1st Cir. 2004). In so doing, courts normally consider three questions: (1) Does the plaintiff suffer a physical or mental impairment?; (2) Was the Id. (citing Bragdon v. Abbott, 524 U.S. 624, 630 31 (1998)). Looking

at the factual assertions outlined by the Plaintiff in the complaint, which the Court must accept as true, the Court finds that the answer to all three questions is obviously in the affirmative. We briefly explain.

Plaintiff suffers from a mental impairment covered by the ADA as the First Circuit has held that major depression is a disability covered by the ADA. See Calero-Cerezo, 355 F.3d at 20 21 ( This circuit has recognized depression as a mental impairment that may constitute, at least in some circumstances, a disability under federal law. ). In the complaint, Plaintiff alleges that she suffers from lack of concentration, impaired thinking and communication, crying fits, anxiety, stress, loss of appetite, and loss of hair as a result of her condition. Furthermore, Plaintiff s therapist ordered her to request paid medical leave in order to alleviate her condition. Turning to the second question in our inquiry, the C deppression See Calero-Cerezo, 355 F.3d at 21. Many of the activities enumerated by Plaintiff in

the complaint have been rec communication and concentration. See Id. (citing Criado v. IBM Corp., 145 F.3d 437, 442-43 (1st Cir. 1998); Lawson v. CSX Transp., Inc., 245 F.3d 916, 923

(7th Cir. 2001); Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 155 (1st Cir. 1998); and Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 33 n. 4 (1st Cir. 2001)). 7

Hence, the Court finds that Plaintiff has pled sufficient facts to support the notion that her condition limited Turning to the third and final question in our required inquiry, the Court finds that Plaintiff has made a sufficient showing that her concentration, ability to communicate, and stress levels, among other things, have been severely impacted

by her medical condition. This, in turn, has caused her to causes her to lose her appetite, her hair, and to undergo anxiety and severe emotional distress, which negatively impacted her life on a daily basis. Accordingly, the Court job, with or without an accommodation?

Qualifications -related requirements

2) she is able to perform the position's essential functions with or without reasonable Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 32-33 (1st Cir. 2011)(citing García Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st

Calero-Cerezo, 355 F.3d at 22 (internal citations and quotations omitted). In the case at bar, Plaintiff held the position of Special Assistant to the Mayor intermittently between 2004 and 2015. The facts alleged in the complaint suggest that Plaintiff performed her tasks adequately, as

7 The Court notes that working, in and of itself, may be considered a major life activity for purposes of the ADA. See Calero- Cerezo, 355 F.3d at 21.

she was renamed to the position several times throughout the aforementioned eleven-year period. Moreover, Plaintiff served as Special Assistant to Defendant Lorna Soto between July 1, 2014 and November 24, 2014, when Plaintiff went on medical leave. No facts in the complaint suggest that Plaintiff s work performance was not satisfactory.

functions of her work with or without reasonable accommodation as Plaintiff s deppression began around mid-2014 and she returned to work on 2015 and continued to perform the functions of her job effectively. whether Defendants, cognizant of P subjected her to adverse employment actions.

Discrimination The Court now turns to the third, and final, prong of our analysis whether Plaintiff was subjected to adverse employment actions due to her disability. emotions, disadvantageous transfers or assignments, may constitute adverse employment action, subject to the facts of a particular case. Colon-Fontanez v.

Municipality of San Juan, 660 F.3d 17, 36 37 (1st Cir. 2011)(citing Hernández Torres v. Intercont'l Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998) and Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996)). In the instant case , Plaintiff was handed a letter demoting her back to her career position on the day she visited the Human Resources office to extend her medical leave, albeit unpaid. This entailed a substantial salary reduction. Moreover, Plaintiff alleges she continued to face harassment and disparate treatment by her superiors after she returned to work. Altogether, the Court is satisfied that Plaintiff s pleadings are sufficient to support all three prongs of a prima facie ADA claim. Accordingly, Defendant Municipality of Canovanas Motion to Dismiss Plaintiff s ADA Claim is DENIED. On the other hand, Defendant Lorna Soto s Motion to Dismiss Plaintiff s ADA Claim against her, as an individual, is hereby GRANTED as there is no individual liability under the ADA. See Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 52 (1st Cir. 2011)(Holding

there is no personal liability under the ADA); see also Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st Cir.2009)(holding that Title VII, analogous to the ADA, does not support claims against individuals nor claims against coworkers.); and Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996)(same).

C. Law 115 Claim Law 115 provides, provides in relevant part that:

No employer may discharge, threaten, or discriminate against an employee regarding the terms, conditions, compensation, location, benefits or privileges of the employment should the employee offer or attempt to offer, verbally or in writing, any testimony, expression or information before a legislative, administrative or judicial forum in Puerto Rico, when such expressions are not of a defamatory character nor constitute disclosure of privileged information established by law. P.R. Laws Ann. tit. 29, § 194a An employee must establish she (a) participated in an activity protected by §§ 194 et seq. and (b) was subsequently discharged. Lupu v. Wyndham El Conquistador Resort & Golden Door Spa, 524 F.3d 312, 313 (1st Cir. 2008). In order to prevail on a claim under Law 115, a plaintiff-employee must show that she engaged in protected activity and that she was thereafter discriminated against regarding her employment. Velez v. Janssen Ortho, LLC, 467 F.3d 802, 809 (1st Cir. 2006)(internal citations omitted). If the employer has provided a legitimate non-discriminatory reason, the ultimate burden of showing pretext still falls on the plaintiff. Rivera Rodriguez v. Sears Roebuck De Puerto Rico, Inc., 432 F.3d 379, 383 n. 2 (1st Cir. 2005).

The Court already found that Plaintiff pled an actionable retaliation claim under Section 1983 stemming from her complaint before the Municipality s Human Resources Office and the OEG. See supra at 15. The Court reaches the same conclusion as to Plaintiff s Law 115 claim. Because Plaintiff filed a charge with the OEG and Plaintiff has pled sufficient facts to suggest adverse employment actions resulted from the

filing of that charge, the Court finds Plaintiff has also pled a plausible Law 115 claim. Defendants Motion to Dismiss Plaintiff s Law 115 claim is DENIED.

IV. CONCLUSION For the aforementioned reasons, the Court hereby GRANTS in part AND DENIES in part Defendant Motion to Dismiss (Docket No. 24):

(a) Plaintiff s ADA claim against Defendant Lorna Soto, as an individual, is hereby

DISMISSED with prejudice; (b) Plaintiff s Fourteenth Amendment Due Process and Equal Protection Claims are voluntarily

DISMISSED without prejudice; (c) Plaintiff s Article 1802 and 1803 of the Puerto Rico Civil Code Claims are voluntarily DISMISSED

without prejudice; (d) Plaintiff s Law 100 Claim is voluntarily DISMISSED without prejudice; (e) and Defendants Motion to Dismiss as to all of Plaintiff s remaining claims is DENIED. IT IS SO ORDERED. In San Juan, Puerto Rico, this 16th day of March, 2017. s/ Daniel R. Dominguez DANIEL R. DOMINGUEZ U.S. DISTRICT JUDGE

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