48 F. Supp.2d 81 (1999) | Cited 0 times | D. Puerto Rico | March 29, 1999


This is an action brought pursuant to the Age Discrimination inEmployment Act (ADEA), 29 U.S.C. § 621 — et seq.; the Americanswith Disabilities Act (ADA), 42 U.S.C. § 12101 — et seq.; theCivil Rights Act, 42 U.S.C. § 1983; the First, Fifth andFourteenth Amendments to the United States Constitution; andvarious provisions of state law. Plaintiffs are Victor VicentyMartell, his wife and their conjugal partnership. Named asdefendants are the Commonwealth of Puerto Rico; the Puerto RicoDepartment of Education and its Secretary, Victor Fajardo; schooldistrict superintendent Gracia M. Ruiz de Talavera; the PuertoRico Industrial Commission; and the Retirement Board for theSchool Teachers of Puerto Rico.

Pending before the Court are two separate motions to dismiss(Dockets # 8, 9), one by the Retirement Board; the other by theremaining co-defendants. Both remain unopposed. For the reasonsset forth below, both motions to dismiss (Dockets # 8, 9) arehereby GRANTED IN PART and DENIED IN PART.


After a strenuous effort to separate the wheat from the chaff,we summarize the pertinent facts of the complaint in the lightmost hospitable to plaintiffs as follows. Plaintiff VictorVicenty Martell was employed for twenty-nine years by the PuertoRico Department of Education. During the time of his employment,he held various positions, including one as a classroom teacher.Later, however, due to a "physical condition[,] he obtainedreasonable accommodation," and was reassigned to anadministrative position (Docket # 1 at ¶ 42). He worked at theManuel A. Barreto Public School, located within the MayagüezNorth I School District, which was under the direction ofsuperintendent, and herein co-defendant, Ruiz de Talavera. ¶¶ 6, 10.

According to plaintiff, Ruiz de Talavera "took severaldiscriminatory decisions against . . . [him] because of . . .[his] physical handicap[,] and . . . deprived him of hisreasonable accommodation." Id. at ¶ 42. He also claims thatRuiz de Talavera requested his early retirement from theDepartment of Education because of his age and physical handicap,and that she "discriminated against . . . [him] when she tooksome decisions to deprive . . . [him] from (sic) his civilrights." Id. at ¶ 21.

On May 28, 1992, at the age of fifty-five, plaintiff wasallegedly forced to accept early retirement "under threat oftermination[] by superiors and administrative officers of the . .. Department of Education," solely on the basis of his age. ¶¶ 22-24, 28. He further asserts that he was "demot[ed] anddischarg[ed] . . . from [his] employment[,] because of . . .[his] physical handicap or condition, and in retaliation for . .. [his] complaints of defendant's discriminatory treatment of . .. [him] to defendant and appropriate authorities, all whilegiving . . . [him] pretextual or untrue reasons for thetermination." Id. at ¶ 43.

Moreover, plaintiff claims that as part of their retaliatoryactions, defendants "provid[ed] untrue, misleading andunfavorable references and employment recommendations topotential and prospective employers." Id. at ¶ 44. According tohim, defendants still keep retaliating against him by interferingwith an appeal which he has pending before the Puerto RicoIndustrial Commission. This appeal arose from adecision issued by the Puerto Rico State Insurance Fund onOctober 15, 1990, in a proceeding initiated by plaintiff on March30, 1990. He claims that defendants' "fault and negligence" hasprompted the continuance of various hearings scheduled inconnection with his appeal. He contends that defendants' "faults(sic) and negligent acts are part of the strategy used bythe[m]1 . . . to keep discriminating against . . . [him]because of his age, his physical handicap[,] and because hereported such negligent acts to the corresponding authorities."Id. at ¶ 21. Finally, plaintiff contends that he was dischargedwithout just cause, notice, or hearing; and that the RetirementBoard failed to recognize the effective date of his retirementuntil March 26, 1993. Id. at ¶¶ 21, 29.

The Retirement Board argues that plaintiff's allegations failto state a claim upon which relief can be granted, essentially,because no employee-employer relationship existed or existsbetween them The Retirement Board also moves for dismissal basedon res judicata and time-bar. The remaining co-defendants basetheir motion to dismiss on Eleventh Amendment grounds, lack ofsubject matter jurisdiction, statute of limitations, and failureto state a claim. They also move to dismiss the claims ofplaintiff's wife and their conjugal partnership for lack ofstanding.

Applicable Law/Analysis

A. Motion to Dismiss Standard

In assessing whether dismissal pursuant Fed.R.Civ.P. 12(b)(6)for failure to state a claim is appropriate, "the trial court,must accept as true the well-pleaded factual allegations of thecomplaint, draw all reasonable inferences therefrom in theplaintiff's favor, and determine whether the complaint, so read,limns facts sufficient to justify recovery on any cognizabletheory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,508 (1st Cir. 1998) (citations omitted). Thus, a dismissal forfailure to state a claim is warranted "only if it clearlyappears, according to the facts alleged, that the plaintiffcannot recover on any viable theory." Correa-Martinez v.Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). However, asthe First Circuit has noted, "[a]lthough this standard isdiaphanous, it is not a virtual mirage. To survive a motion todismiss, a complaint must set forth `factual allegations, eitherdirect or inferential, respecting each material element necessaryto sustain recovery under some actionable legal theory.'" Bernerv. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (quoting Gooleyv. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). Injudging the sufficiency of a complaint, courts must"differentiate between well-pleaded facts, on the one hand, and`bald assertions, unsupportable conclusions, periphrasticcircumlocution, and the like,' on the other hand; the former mustbe credited, but the latter can safely be ignored." LaChapelle,142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1stCir. 1996)).

In this case, we initially construe plaintiff's allegations aspresenting claims for discriminatory constructive discharge inviolation of the ADEA and the ADA, and retaliatory claims underboth statutes. Inasmuch as defendants' arguments concerning resjudicata, time-bar, and lack of subject matter jurisdiction arebased on matters outside the complaint, we shall ignore them inour analysis. See Garita Hotel Limited Partnership, Etc. v.Ponce Federal Bank, 958 F.2d 15, 18 (1st Cir. 1992) (suggestingthat in order to avoid conversion of a Rule 12(b)(6) motion intoa Rule 56 motion, the trial court should expressly reject anysupplementary materials filed by the moving party); see alsoWhiting v. Maiolini, 921 F.2d 5, 7 (1st Cir. 1990) (holding thatit is inappropriate to convert a Rule 12(b)(6) into a Rule 56motion when nonmovant has not been affordedopportunity to respond to unannounced conversion, discovery hasbarely begun, and defendant has not answered the complaint);Maldonado v. Dominguez, 137 F.3d 1, 6 (1st Cir. 1998) (in orderto avoid conversion of a Rule 12(b)(6) motion into a Rule 56motion, district court must ignore matters outside thepleadings); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83(1st Cir. 1997) (same); Vega-Rodriguez v. Puerto Rico TelephoneCo., 110 F.3d 174, 177 (1st Cir. 1997) (same); but see Beddallv. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998) (determining documents that "defendant attaches to a motionto dismiss are considered a part of the pleadings if they arereferred to in the plaintiff's complaint and are central to theclaim.") (internal quotation marks and citation omitted).

B. The ADEA Claim

Under the ADEA, "the plaintiff bears the ultimate burden ofproving that he would not have been fired but for his age."Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1stCir. 1997) (citation and internal quotation marks omitted). Toestablish a prima facie case of age discrimination in violationof the ADEA, the aggrieved party must establish that he or she:(i) was within the protected age group; that is, over forty yearsof age; (ii) met the employer's employment expectations; (iii)was actually or constructively discharged; and (iv) that theemployer sought a replacement with roughly similar skills orqualifications. See id.; see also Vega v. Kodak Caribbean,Ltd., 3 F.3d 476, 479 (1st Cir. 1993); Mesnick v. GeneralElectric Co., 950 F.2d 816, 823 (1st Cir. 1991), cert. denied,504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); Hidalgo v.Overseas-Condado Insurance Agencies, Inc., 929 F. Supp. 555, 559(D.P.R. 1996) (Casellas, J.), aff'd, 120 F.3d 328 (1st Cir.1997).

In this case, plaintiff was not dismissed outright; he wasallegedly forced to accept early retirement under threat oftermination. To satisfy the third element of the prima facie casestandard, he would need to show that he was constructivelydischarged. See Vega, 3 F.3d at 479. In cases involving anemployer's offer for early retirement, "an ADEA plaintiffclaiming that he was, in effect, fired by being forced intoretirement must show that his employer's `offer' was but an emptysham masking its decision to fire the plaintiff because of hisage." Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1111 (1stCir. 1989). As the First Circuit has explained:

To transform an offer of early retirement into a constructive discharge, a plaintiff must show that the offer was nothing more than a charade, that is, a subterfuge disguising the employer's desire to purge plaintiff from the ranks because of his age. Under this dichotomy, offers which furnish employees a choice in name only are impermissible because, in the final analysis, they effectively vitiate the employee's power to choose work over retirement. Phrased another way, the law regards as the functional equivalent of a discharge those offers of early retirement which, if refused, will result in work so arduous or unappealing, or working conditions so intolerable, that a reasonable person would feel compelled to forsake his job rather than to submit to looming indignities. In terms of this standard, a plaintiff who has accepted an employer's offer to retire can be said to have been constructively discharged when the offer presented was, at rock bottom, "a choice between early retirement with benefits or discharge without benefits," or more starkly still, an "impermissible take-it-or-leave-it choice between retirement or discharge."

Vega, 3 F.3d at 480 (citations omitted). See also AmericanAirlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 122 (1st Cir.1998) (same); but see Alvarez-Fonseca v. Pepsi Cola of PuertoRico Bottling Co., 152 F.3d 17, 27 (1st Cir. 1998) (noting thatan offer of early retirement "is not, byitself, evidence of constructive discharge or discriminatoryanimus.") (citations omitted).

Here, plaintiff's contention that he was "forced to acceptearly retirement under threat of termination[] by superiors andadministrative officers of the . . . Department of Education,"solely on the basis of his age, (Docket # 1 at ¶¶ 22-24, 28),seems rather "bald," Aulson, 83 F.3d at 3, and accordinglyshould "carry no weight." Berner, 129 F.3d at 25. However, eventaking plaintiff's averments in the light most hospitable to hiscase, and thus assuming that his allegations meet the first threeelements of the prima facie case standard,2 we find that hisADEA claim is still insufficient. Plaintiff does not allege thathe was replaced by another person of similar skills andqualifications, Vega, 3 F.3d at 479, or that his employersought a replacement with roughly similar skills orqualifications. See Serrano-Cruz, 109 F.3d at 25. Accordingly,plaintiff's claim for discriminatory constructive discharge inviolation of the ADEA should be dismissed as to all defendants.In making this determination, we take into account that plaintiffis not a pro-se complainant; he is represented by counsel. Theprima-facie-case standard under the ADEA is well established, andwe cannot fathom any justifiable reason for excusing counsel forhis insufficient pleading.

Alternatively, plaintiff's claims of discriminatory dischargein violation of the ADEA and the ADA should be dismissed againstSecretary Fajardo and superintendent Ruiz de Talavera, because,while neither the Supreme Court nor the First Circuit have ruledon the issue, the prevailing view in this district seems to bethat supervisors should not be subject to individual liabilityunder the ADEA or the ADA. See Moreno v. John Crane, Inc.,963 F. Supp. 72, 76 (D.P.R. 1997) (Casellas, J.) (ADA); Flamand v.American Int'l Group, Inc., 876 F. Supp. 356, 361-64 (D.P.R.1994) (ADEA). In this connection, it should be noted, moreover,that although plaintiff alleges that he was an employee of theDepartment of Education, he does not allege that he was anemployee of the Industrial Commission or the Board of Retirement.Therefore, plaintiff's claim of discriminatory discharge underthe ADEA and the ADA should also be dismissed against saidco-defendants. See E.E.O.C. v. Puerto Rico Job Corps,729 F. Supp. 208, 217 (D.P.R. 1990) (determining that "[a]n aggrievedemployee alleging discrimination must establish that anemployee-employer relationship exists in order to successfullyallege a claim under ADEA.").

C. The ADA Claim

To establish a prima facie case of discrimination in violationof the ADA, a plaintiff must show "(1) that he or she suffersfrom a `disability' within the meaning of the Act; (2) that he orshe was able to perform the essential functions of the job,either with or without reasonable accommodation; and (3) that theemployer discharged him or her in whole or in part because ofthat disability." Feliciano v. State of Rhode Island,160 F.3d 780, 784 (1st Cir. 1998) (citation omitted).

In this case, plaintiff alleges that he is a disabledindividual within the meaning of the ADA, and that he is able toperform his duties with reasonable accommodation (Docket # 1 at¶ 40). He avers that at some point during the time of hisemployment he was afforded reasonable accommodation, resulting inhis reassignment "from his position of class teacher to teacherregistrator (sic) with administrative functions." Id. at ¶ 42.He contends, furthermore, that he was demoted and dischargedbecause of his "physical handicap or condition," and that he was"deprived of his reasonable accommodation." Id.

At the outset, we dismiss plaintiff's claim that he was demotedon the basis of his "handicap or condition." Plaintiff's onlyreference to a demotion is found in ¶ 42 of the complaint,unaccompanied by any substantiating facts. For example, plaintiffdoes not state when did this demotion occur, or how did it occur;that is, from what position was he demoted. Plaintiff's onlyreference to what could be very liberally construed as a transferis his reassignment from a position as a classroom teacher toanother with administrative duties. As plaintiff avers, however,this reassignment was motivated by his employer's decision toafford him reasonable accommodation. Id. Plaintiff does notcontend, and it would be contradictory to do so, that hisemployer's decision to afford him reasonable accommodation byassigning him different duties was prompted by a discriminatoryanimus. Plaintiff's contention can only be characterized asbare-boned.

Plaintiff's assertion that he was "deprived of his reasonableaccommodation" is similarly lacking in factual support, and theonly fair inference that we can draw in this regard is thatplaintiff was so deprived when he was allegedly forced to retire.Thus, we only address his claim of discriminatory discharge inviolation of the ADA. Assuming that he was in fact threatenedwith termination if he did not retire early, we find, at least atthis procedural stage, that plaintiff does have a colorable claimof discrimination under the ADA.

However, plaintiff's claim of discriminatory discharge underthe ADA should be dismissed against Secretary Fajardo andsuperintendent Ruiz de Talavera, since, as previously discussed,supervisors are not subject to individual liability under theADA. See Moreno, 963 F. Supp. at 76; Flamand, 876 F. Supp. at361-64. Plaintiff's ADA claim of discriminatory discharge shouldalso be dismissed against the Industrial Commission and theRetirement Board, because plaintiff does not aver that he had anemployee-employer relationship with either entity. Cf. PuertoRico Job Corps, 729 F. Supp. at 217. Accordingly, plaintiff mayonly assert his claim of discriminatory discharge under the ADAagainst the Commonwealth and the Department of Education.

D. The Retaliation Claims

To establish a case of retaliation under the ADEA or the ADA,the complainant has to make a prima facie showing that (1) he orshe engaged in protected conduct; (2) that he or she was subjectto an adverse employment action; and (3) a that causal connectionexisted between the protected conduct and the adverse action.See, e.g., Mesnick, 950 F.2d at 827; Soileau, 105 F.3d at 16.

The ADEA prohibits an employer from discriminating "against anyof his employees . . ., because such individual . . . has opposedany practice made unlawful by this section, or because suchindividual . . . has made a charge, testified, assisted, orparticipated in any manner in an investigation, proceeding, orlitigation under this chapter." 29 U.S.C. § 623(d). Similarly,the ADA forbids discrimination "against any individual becausesuch individual has opposed any act or practice made unlawful bythis chapter or because such individual made a charge, testified,assisted, or participated in any manner in an investigation,proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a).

In this case, plaintiff does not allege that he made a charge,testified, assisted, or participated in any manner in aninvestigation, proceeding, hearing or litigation under eitherstatute. He avers, however, that he complained to defendants(presumably the Department of Education and/or superintendentRuiz de Talavera) and to the "appropriate authorities" (withoutspecifying any) about defendants' "discriminatory treatment"(again, presumably the Department of Education and/orsuperintendent Ruiz de Talavera) (Docket # 1 at ¶¶ 21, 43). Wetake plaintiff's contention in the light most favorable to hiscase, and construe it simply as stating that he wasconstructively discharged for having opposed discriminatorypractices against him. Plaintiff also alleges that defendantshave retaliated against him (1) by interfering with his pendingappeal before the Industrial Commission, and (2) by providingunfavorable job references. Plaintiff's allegations, if true,would come under the scope of the ADEA and the ADA'santi-retaliation provisions.3 See 29 U.S.C. § 623(d);42 U.S.C. § 12203(a).

However, plaintiff's retaliation claims are not individuallysustainable against Secretary Fajardo and superintendent Ruiz deTalavera, because, as stated above, only employers may be liableunder the ADEA or the ADA. See Moreno, 963 F. Supp. at 76;Flamand, 876 F. Supp. at 361-64. Plaintiff's retaliation claimunder the ADEA and the ADA should also be dismissed against theRetirement Board and the Industrial Commission, because he failsto allege that either entity employed him. See Puerto Rico JobCorps, 729 F. Supp. at 217.

E. The Section 1983 Claims

Section 1983 of Title 42 of the United States Code provides inpertinent part:

Every person who, under color of any statute, ordinance, regulation, 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 proceeding for redress. . . .

In order to establish a prima facie claim under § 1983, thecomplaining party must allege that: (1) the conduct complained ofwas committed by a person acting under color of state law; and(2) this conduct constitutes a deprivation of a constitutionalright or a federal statutory right. See Parratt v. Taylor,451 U.S. 527, 536, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruledon other grounds by Daniels v. Williams, 474 U.S. 327, 330-31,106 S.Ct. 662, 88 L.Ed.2d 662; Martinez-Rodriguez v.Colon-Pizarro, 54 F.3d 980 (1st Cir.), cert. denied,516 U.S. 987, 116 S.Ct. 515, 133 L.Ed.2d 423 (1995); Martinez-Velez v.Simonet, 919 F.2d 808, 810 (1st Cir. 1990).

In their motion to dismiss, the Commonwealth, the IndustrialCommission, the Department of Education, Secretary Fajardo, andsuperintendent Ruiz de Talavera argue that the ADEA and the ADApreclude plaintiff's § 1983 claims, because these statutesrespectively provide the exclusive remedies for age anddisability discrimination for state government employees.

Neither the Supreme Court nor the First Circuit have squarelyaddressed thisissue. Regarding the ADEA, the First Circuit has specificallydeclined to resolve whether the ADEA provides the exclusiveremedy for age discrimination in the employment, thus preemptingsuits under § 1983. See Izquierdo Prieto v. Mercado Rosa,894 F.2d 467, 469 (1st Cir. 1990). In Izquierdo Prieto, however,the First Circuit noted, albeit in dicta, that "the ADEA and itsamendments provide a comprehensive statutory remedy that may notbe bypassed through the means of an action under42 U.S.C. § 1983," and that, therefore, a plaintiff would be barred frombringing suit under § 1983 premised on a violation of his or herstatutory rights under the ADEA. Id. at 469.

On the other hand, the First Circuit has held that a sexualharassment plaintiff may present his or her claim under Title VIIor § 1983. See Lipsett v. University of Puerto Rico,864 F.2d 881, 895-96 (1st Cir. 1988) (permitting concurrent causes ofaction for employment discrimination under Title VII and § 1983)(decided before the 1991 amendments to Title VII); Pontarelli v.Stone, 930 F.2d 104, 113 (1st Cir. 1991) (on-the-job sexualharassment claims are within the purview of § 1983). Districtcourts within this circuit, however, have reached differentconclusions after the passage of the 1991 amendments to TitleVII. See Marrero-Rivera v. Department of Justice, 800 F. Supp. 1024,1031-32 (D.P.R. 1992) (Fusté, J.) (1991 amendments toTitle VII provided comprehensive remedy for employmentdiscrimination and preempts such claims under § 1983); RibotEspada v. Woodroffe, 896 F. Supp. 69, 71 (D.P.R. 1995) (Casellas,J.) (Title VII does not provide the exclusive remedy for victimsof sexual harassment in public employment); Madon v. LaconiaSchool District, 952 F. Supp. 44, 48 (D.N.H. 1996) (concludingthat since the First Circuit has not reevaluated the question ofwhether Title VII preempts § 1983 constitutional claims foremployment discrimination after the 1991 amendments to Title VII,Lipsett continues to provide the applicable rule of law);Chapin v. University of Massachusetts at Lowell, 977 F. Supp. 72,81 (D.Mass. 1997) (same).

It could be argued that because of the similarities shared byTitle VII and the ADEA, and because actions pursuant to the ADAare subject to Title VII's enforcement provisions, see42 U.S.C. § 12117; Chico Velez v. Roche Products, Inc.,971 F. Supp. 56, 58 (D.P.R. 1997), it would be illogical to concludethat while concurrent § 1983 and Title VII claims may becompatible, concurrent § 1983 and ADEA or ADA claims may not.See Hornfeld v. City of North Miami Beach, 29 F. Supp.2d 1357,1365 (S.D.Fla. 1998). The fact still remains that neither theSupreme Court nor the First Circuit have addressed thesequestions.

However, other circuits which have addressed the issue, havereached the conclusion that the ADEA and the ADA respectivelyprovide the exclusive remedies for age and disabilitydiscrimination, and thus preempt such claims under § 1983. See,e.g., Zombro v. Baltimore City Police Dep't, 868 F.2d 1364, 1369(4th Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107L.Ed.2d 106 (1989) (ADEA); Migneault v. Peck, 158 F.3d 1131,1140 (10th Cir. 1998) (ADEA); Holbrook v. City of Alpharetta,112 F.3d 1522, 1531 (11th Cir. 1997) (ADA). At least one circuithas limited its holding stating that the ADEA preempts agediscrimination claims under § 1983, stating that "where the factsalleged will not independently support a § 1983 claim, theplaintiffs age discrimination claim is preempted by the ADEA."Lafleur v. Texas Dep't of Health, 126 F.3d 758, 760 (5th Cir.1997). This statement is more akin to the First Circuit's dictain Izquierdo Prieto. See 894 F.2d at 469.

We agree with the reasons provided by the Fourth, Fifth, Tenthand Eleventh Circuits for holding that the ADEA and the ADArespectively provide comprehensive exclusive remedies for age anddisability discrimination, and that, therefore, a stategovernment employee maynot bring suit under § 1983, premised on the deprivation of therights provided by those statutes, unless, as suggested by theFifth Circuit, he or she alleges facts which will independentlysupport a § 1983 claim.

Accordingly, plaintiff's § 1983 claim for deprivation of hisADEA and ADA rights should be dismissed. We shall assess,therefore, whether plaintiff has alleged facts which couldindependently support a claim under § 1983. Liberally construed,plaintiff's complaint could be read as alleging a deprivation ofhis property interest to continued employment in violation of theEqual Protection and Due Process clauses.4

"One who asserts that governmental action violates the EqualProtection Clause must show that he or she is the victim ofintentional discrimination." Judge v. City of Lowell,160 F.3d 67, 75 (1st Cir. 1998) (citation and internal quotation marksomitted). Because the right to government employment per se isnot a fundamental right, see Massachusetts Bd. of Retirement v.Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976),and because neither the aged nor the disabled are a suspectclass, see Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S.Ct.2395, 115 L.Ed.2d 410 (1991); City of Cleburne v. CleburneLiving Center, 473 U.S. 432, 445, 105 S.Ct. 3249, 87 L.Ed.2d 313(1985), plaintiff's equal protection claim is subject to arational basis analysis. Under this standard, the challengedgovernmental action will be sustained, "unless the varyingtreatment of different groups or persons is so unrelated to theachievement of any combination of legitimate purposes that [it]can only [lead to the conclusion] that the [such] action[] . . .[was] irrational." Ashcroft, 501 U.S. at 471, 111 S.Ct. 2395(quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59L.Ed.2d 171 (1979)) (internal quotation marks omitted).

In this case, it can be inferred from plaintiff's allegationsthat the decision to terminate his employment had no rationalbasis, and was motivated by a discriminatory intent, i.e., ageand disability. This inference is sufficient for his § 1983 claimto survive a motion to dismiss.

Plaintiff also alleges that defendants' actions violated hisFirst Amendment rights (Docket # 1 at ¶ 12). He presumably5invokes the First Amendment in connection with his with hisclaims that defendants have retaliated against him for havingcomplained about the discriminatory actions allegedly takenagainst him. "The First Amendment's guarantee of freedom ofspeech protects government employees from termination becauseof their speech on matters of public concern." Bd. of CountyCommissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 2347, 135L.Ed.2d 843 (1996) (citing Connick v. Myers, 461 U.S. 138, 146,103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). The First Circuit hasemployed a three-part test to determine whether a governmentemployee has an actionable claim for violation of his or herfreedom of speech right.

First, the court must determine whether . . . [the employee] made her statements as a citizen upon matters of public concern. If the speech involved matters not of public concern, but instead . . . of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Second, the court must weigh the strength of the employee's and the public's First Amendment interests against the government's interest in the efficient performance of the workplace. Third, if the employee's and the public's First Amendment interests outweigh a legitimate governmental interest in curbing the employee's speech, . . . [the employee] must show that the protected expression was a substantial or motivating factor in an adverse employment action.

Tang v. Rhode Island, 163 F.3d 7, 11 (1st Cir. 1998) (internalcitations and quotation marks omitted).

Plaintiff's alleged complaints to defendants and to "theappropriate authorities" (Docket at ¶¶ 21, 43) about thediscriminatory conduct allegedly demonstrated against him couldprobably rise to the level of constitutionally protected speechwhich would satisfy the first prong of the above-described test.However, based on the scant information available on the record,we can go no further. Defendants also do not address this issuein their respective motions to dismiss. Therefore, plaintiff'scolorable First Amendment claim under § 1983 should not bedismissed.

It is well settled, however, that neither a State, a stateagency nor a state official acting in her or his officialcapacity may be sued for damages in a § 1983 action. See, e.g.,Wang v. New Hampshire Bd. of Registration in Medicine,55 F.3d 698 700 (1st Cir. 1995); Johnson v. Rodriguez, 943 F.2d 104,108 (1st Cir. 1991); Will v. Michigan Dep't of State Police,491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This isso because § 1983 did not abrogate an unconsenting state'sEleventh Amendment immunity from being sued in damages in federalcourt. See Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139,59 L.Ed.2d 358 (1979); Will, 491 U.S. at 66-67, 109 S.Ct. 2304.This protection also extends to the Commonwealth of Puerto Rico.See, e.g., Negron Gaztambide v. Hernandez Torres, 145 F.3d 410,415 n. 7 (1st Cir. 1998); Fred v. Aponte Roque, 916 F.2d 37, 38(1st Cir. 1990). Therefore, plaintiff's claim for against theCommonwealth, the Industrial Commission,6 the Department ofEducation, Secretary Fajardo, and superintendent Ruiz deTalavera, in their official capacity,7 is insupportable as amatter of law, and should be dismissed accordingly.8

On the other hand, equitable relief is not covered by theEleventh Amendment immunity. See Puerto Rico Aqueduct and SewerAuthority v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684,121 L.Ed.2d 605 (1993); Chaulk Serv., Inc. v. Mass. Com'n,70 F.3d 1361 (1st Cir. 1995). Thus, plaintiff's claim for injunctiverelief should be maintained as to all defendants. Moreover,plaintiff's colorable § 1983 claim against Secretary Fajardo andagainst superintendent Ruiz de Talavera in their individualcapacity should also remain undisturbed. See Hafer v. Melo,502 U.S. 21, 112 S.Ct. 358, 365, 116 L.Ed.2d 301 (1991) (holding thatstate officials may be held individually liable under § 1983).

F. Standing

Plaintiff's spouse and their conjugal partnership do not havestanding underthe ADEA because they are not employees for purposes of thestatute. See Flamand, 876 F. Supp. at 372; Ramos v. RocheProducts, Inc., 694 F. Supp. 1018, 1026 (D.P.R. 1988), vacatedon other grounds, 880 F.2d 621 (1989); Paredes Figueroa v.International Air Services of Puerto Rico, 662 F. Supp. 1202,1202 (D.P.R. 1987). Plaintiff's spouse and their conjugalpartnership also do not meet any of the necessary elements toestablish a retaliation claim under the ADEA.

Furthermore, because neither plaintiff's wife nor theirconjugal partnership have asserted a claim of directconstitutional deprivation, they lack standing under § 1983.See, e.g., Robles Vazquez v. Garcia, 110 F.3d 204, 206 n. 4(1st Cir. 1997); Torres v. United States, 24 F. Supp.2d 181, 183(D.P.R. 1998). Plaintiff's spouse and their conjugal partnership,however, may pursue their claims for lost earnings. SeeRodriguez-Rios v. Cordero, 138 F.3d 22, 26 (1st Cir. 1998);Torres, 24 F. Supp.2d at 183-84.

G. Supplemental Claims

Defendants argue that plaintiff's state law claims should bedismissed because he failed to specifically plead28 U.S.C. § 1367 in invoking supplemental jurisdiction for his state lawclaims. This contention is without merit. Although plaintiff didnot specifically plead the statute, he did unambiguously petitionthe court to exercise supplemental jurisdiction over his statelaw claims. Since we have determined that some of plaintiff'sfederal causes of action should not be dismissed, we shall notdecline to exercise supplemental jurisdiction over his state lawclaims at this stage.

H. Conclusion

For the foregoing reasons, the Court finds that followingclaims should be, and are hereby, DISMISSED: (1) plaintiff'sclaim of discriminatory discharge in violation of the ADEA, as toall defendants; (2) plaintiff's claim of discriminatory dischargein violation of the ADA, as to Secretary Fajardo, superintendentRuiz de Talavera, the Industrial Commission and the RetirementBoard; (3) plaintiff's claims of retaliation under the ADEA andthe ADA, as to Secretary Fajardo, superintendent Ruiz deTalavera, the Industrial Commission and the Retirement Board; (4)plaintiff's monetary claims under § 1983 for deprivation of hisFirst Amendment, equal protection and due process rights, as tothe Commonwealth, the Department of Education, the IndustrialCommission, and Secretary Fajardo and superintendent Ruiz deTalavera, in their official capacity; and (5) plaintiff's spouseand their conjugal partnership's claims under the ADEA, the ADEA,and of direct constitutional deprivation under § 1983.

The following claims, however, will not be dismissed: (1)plaintiff's claim of discriminatory discharge under the ADAagainst the Commonwealth and the Department of Education; (2)plaintiff's retaliation claims under the ADEA and the ADA againstthe Commonwealth and the Department of Education; (3) plaintiff'sclaim for equitable relief under § 1983 against all defendants;(4) plaintiff's claims for monetary relief under § 1983 againstSecretary Fajardo and superintendent Ruiz de Talavera, in theirindividual capacity; (5) plaintiff's supplemental state lawclaims; and (6) plaintiff's spouse and their conjugalpartnership's claim for lost earnings. For the foregoing reasons,defendants' separate motions to dismiss (Dockets # 8, 9) arehereby GRANTED IN PART AND DENIED IN PART. The Court expressesno opinion, however, on whether this complaint could withstand aproperly documented motion for summary judgment. Partial judgmentshall be entered accordingly.


1. Here, plaintiff makes reference to a certain Mrs. MyrtaRamirez. This person, however, is neither mentioned as adefendant in the complaint, nor has she been served process.Accordingly, we shall not consider her as a proper party to thisaction.

2. Regarding the first element, plaintiff alleges that he wasfifty-five years old when he was forced to retire. As to thesecond element, it may be fairly inferred from the allegedduration of his employment — twenty-nine years — that his jobperformance was adequate.

3. It is of no consequence to his retaliation claims thatplaintiff has failed to present a claim of discrimination underthe ADEA. See Mesnick, 950 F.2d at 827 (holding that aplaintiff who fails to establish a claim of discrimination maystill assert a retaliation claim under the ADEA or the ADA);Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.1997) (same).

Also, regarding plaintiff's claims of retaliation based ondefendants' interference with his administrative appeal, anddefendants' unfavorable job references, we note that the ADEA'sand the ADA's anti-retaliation provisions may reach beyondultimate employment decisions, such as discharge, transfer ordemotion. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1stCir. 1994) (stating that actions other than discharge, such as"demotions, disadvantageous transfers or assignments, refusals topromote, unwarranted negative job evaluations, and toleration ofharassment by other employees," come under the scope of TitleVII's anti-retaliation provision) (citation omitted); Welsh v.Derwinski, 14 F.3d 85, 86 (1st Cir. 1994) (stating that theADEA's anti-retaliation provision extends beyond discharge,demotion or failure to promote, and that a "case by case review"is necessary to determine whether an employer's actionconstitutes an adverse employment action for purposes of statinga prima facie case of retaliation); La Rou v. Ridlon,98 F.3d 659, 663 (1st Cir. 1996) (same); Blackie v. State of Maine,75 F.3d 716, 725 (1st Cir. 1996) (same).

4. As the Supreme Court has held, "Puerto Rico is subject tothe . . . Due Process clause of either the Fifth or theFourteenth Amendment, and the equal protection guarantee ofeither the Fifth or the Fourteenth Amendment." Posadas de PuertoRico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328,331 n. 1, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (citingCalero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,668-69 n. 5, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); ExaminingBoard v. Flores de Otero, 426 U.S. 572, 599-601, 96 S.Ct. 2264,49 L.Ed.2d 65 (1976); Torres v. Puerto Rico, 442 U.S. 465,468-71, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979)).

5. We say presumably because plaintiff does not clearlyarticulate the bases of his First Amendment claim in hiscomplaint.

6. The Puerto Rico Industrial Commission is an agency of theCommonwealth with quasi-judicial functions, created pursuant tothe Compensation System for Work-Related Accidents Act, Law No.45 of April 18, 1935, as amended, P.R.Laws Ann., tit. 11, § 8(b)(1997). See, e.g., Agosto Serrano v. F.S.E., 132 D.P.R. 866,875 (1993).

7. In Smothers v. Benitez, 806 F. Supp. 299, 302 (D.P.R.1992) it was established that the Department of Education and itsSecretary are protected from a damages action under § 1983.

8. Because the Retirement Board does not argue that it is astate agency protected from § 1983, the Court will not addressthe issue.

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