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In the United States District Court for the District of Puerto Rico

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In the United States District Court for the District of Puerto Rico Case 3:04-cv-02195-PG Document 37 Filed 09/08/05 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO BERNICE APONTE RODRIGUEZ, Plaintiff v. Civil No. 04-2195 (PG) THE U.S. MARSHAL SERVICE, et al., Defendants MAGISTRATE-JUDGE’S REPORT AND RECOMMENDATION I. Factual and Procedural Background Plaintiff Bernice Aponte-Rodríguez (hereafter “Aponte”) brings suit against MVM, Inc., Luis Torres, and other MVM supervisors (hereafter the “MVM Defendants”); the U.S. Marshal Service, the Department of Justice, and Deputy U.S. Marshal César Torres (hereafter the “Federal Defendants”); and Local 72 of the United Government Security Officers of America (hereafter “Local 72”), among other parties. She alleges sexual harassment and retaliation and raises claims under Title VII, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981; 29 U.S.C. § 151 et seq., the Taft-Hartley Act, and 31 P.R. Laws Ann. § 5141, Puerto Rico’s general tort statute. All named defendants now move for dismissal (Docket Nos. 3, 12, 24). Despite the Court granting an extension of time, counsel for Aponte filed no opposition to the Motion to Dismiss filed by the Federal Defendants, and to date it remains unopposed. See Docket No. 31. Plaintiff opposes the motions filed by the MVM defendants and Local 72 (Docket Nos. 6, 14). The pending motions to dismiss were referred to the undersigned Magistrate-Judge for Report and Recommendation (Docket Nos. 32, 33). This is the second go-around for plaintiff. Her first attempt at bringing a claim against the named defendants traveled a tortured procedural road until the case was Case 3:04-cv-02195-PG Document 37 Filed 09/08/05 Page 2 of 23 Civil No. 04-2195(PG) Page No. 2 finally dismissed. Aponte originally brought this suit in Civil Case No. 01-2716(JAG) on December 21, 2001, and the history of that case is pertinent to the present case. The allegations in Case No. 01-2716(JAG) are identical to the allegations in the present case, with the exception being that Case No. 01-2716(JAG) was filed by Aponte and Victor Lebrón-Rios (her spouse), and in the current matter Aponte is the only named plaintiff. Civil Case No. 01-2716(JAG) proceeded as follows: 1. Local 72. On January 28, 2002, Local 72 filed a Motion to Dismiss for insufficiency of process, it was unopposed and the Court granted the motion. On April 5, 2002, Plaintiffs filed a motion for reconsideration and on May 2, 2002, Local 72 filed a second motion to dismiss. On July 30, 2002, the Court entered an Order for Plaintiffs to specify within ten days under what section of the Taft-Harley Act the claim was brought against Local 72. Plaintiffs failed to do so and as a result on August 19,2002, Judgment was entered dismissing with prejudice the claims against Local 72. 2. MVM Defendants. On January 30, 2002, the MVM Defendants filed an unopposed motion to dismiss for failure to exhaust administrative remedies. The motion was granted and partial judgment, with prejudice, was entered on April 26, 2002. However, on May 7,2002, the Court vacated the partial judgment and allowed plaintiffs an opportunity to file a motion for reconsideration wherein they asked the Court to dismiss the Title VII claims, without prejudice. The Court did not grant the request and dismissed the claims with prejudice on July 30, 2002, for failure to exhaust EEOC requirements. 3. Federal Defendants. On April 12, 2002, the Federal Defendants filed a motion to dismiss raising a number of theories for dismissal. The Court dismissed with prejudice the claims brought against the Federal Defendants on July 30, 2002. 4. Following the entry of the July 30, 2002, Order, on August 12, 2002, Aponte filed a charge of discrimination with the Puerto Rico Anti-Discrimination Unit against her employer MVM, Inc. No other entities or individuals were named in the charge. The EEOC Notice of Charge of Discrimination is dated September 16, 2002. 5. Final judgment was entered on August 19, 2002, and it dismissed the case with prejudice as to all defendants. Plaintiffs appealed the dismissal with prejudice of the Title VII claims as to the MVM Defendants and the Federal Defendants. Plaintiffs did not appeal any other issues raised against the Case 3:04-cv-02195-PG Document 37 Filed 09/08/05 Page 3 of 23 Civil No. 04-2195(PG) Page No. 3 MVM Defendants and the Federal Defendants, and did not appeal the Order dismissing with prejudice the claims brought against Local 72. 6. The EEOC issued its right to sue letter on February 7,2003, advising Aponte that she had 90 days from the date of receipt of the notice to file a lawsuit. 7. On August 14, 2003, the First Circuit vacated the District Court’s judgment and remanded the case for entry of an order dismissing the case without prejudice as to the MVM Defendants and for the Court to reconsider the Federal Defendants’ Motion to Dismiss. Lebrón-Ríos v. United States Marshal Serv., 341 F.3d 7 (1st Cir. 2003). Upon remand the Title VII claims raised against the Federal Defendants and MVM Defendants were dismissed without prejudice. The District Court entered its order on February 26, 2004. The instant complaint was filed on November 1, 2004. The complaint alleges that on April 25, 2001, plaintiff Aponte was hired by MVM, Inc. (hereafter “MVM”), a private company that provides security personnel to the U.S. Marshal Service in Puerto Rico and elsewhere in the United States. She was assigned to work as a Court Security Officer (hereafter “CSO”) at the Puerto Rico federal courthouse. After being hired Aponte began to receive unwanted sexual overtures from Luis Torres, the MVM site supervisor for the Puerto Rico federal courthouse. The complaint alleges that Luis Torres was instrumental in Aponte being hired because, as he told others, “he was very [fond] of her and wanted to go to bed with her, as he has done with some other women assigned to the same job assignment in Puerto Rico with M.V.M., Inc. for many years back.” After she was hired, Aponte was ordered to report to Luis Torres's office for “training.” Instead of training, Luis Torres asked Aponte to sit near him and repeatedly invited her to share breakfast or lunch. Whenever he saw Aponte, Luis Torres tried to get as physically close as possible. He admired the color of her lipstick and frequently commented on her hair style and makeup. On one occasion, Luis Torres ran his hands over Aponte’s hair and expressed his delight at its softness. On another occasion, he touched the back of her neck. Aponte Case 3:04-cv-02195-PG Document 37 Filed 09/08/05 Page 4 of 23 Civil No. 04-2195(PG) Page No. 4 protested his actions and moved to avoid further contact. Regardless, Luis Torres persisted and often called her and asked her to visit his office. The complaint also alleges that when Luis Torres discovered that Aponte was romantically involved with someone he was furious, and insisted that he wanted Aponte to be his “mistress”. Aponte applied for a transfer to the federal district court for the Virgin Islands, because her husband had been transferred there, but her application was turned down with no explanation. Aponte alleges that she complained about the alleged actions to Deputy U.S. Marshal César Torres, the liaison between MVM and the U.S. Marshal Service, and as well to her union, Local 72, to no avail. Finally, Aponte alleges she was a victim of retaliation after she stayed home one day with her ill husband. Although she informed her immediate supervisor she would not be at work, she was punished for her absence with one day off-duty. After serving her off-duty penalty, Aponte received a call from MVM ordering her not to report back to work. The complaint states that Aponte filed for EEO protection and her request was duly denied, and the present action is “started neither the time frame of the law.” II. Motion to Dismiss A. Legal Standard 1. Rule 12(b)(1) Under Rule 12(b)(1) of the Federal Rules of Civil Proceedings, defendants may move to dismiss an action against them based on the lack of federal subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Since federal courts have limited jurisdiction, the party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction. Sarboso Publ’g, Inc. v. Caiman Records Am., Inc., 141 Fed.Supp.2d 224, 226 Case 3:04-cv-02195-PG Document 37 Filed 09/08/05 Page 5 of 23 Civil No. 04-2195(PG) Page No. 5 (D.P.R. 2001) (citations omitted). In assessing a motion to dismiss for lack of subject-matter jurisdiction, a district court “must construe the complaint liberally, treating all well- pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs.” Viqueira v. First Bank, 140 F.3d 12 (1st Cir.1998) (citing Royal v. Leading Edge Prods., Inc., 833 F.2d 1 (1st Cir.1987)). Additionally, a court may review any evidence, including submitted affidavits and depositions, to resolve factual disputes bearing upon the existence of jurisdiction. Sarboso Publ’g, 141 Fed.Supp.2d at 226 (citing Land v. Dollar, 330 U.S. 731, 734-35 (1947); Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996) (citation omitted); Baker v.
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