IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

LUZ PIZARRO-CORREA,

Plaintiff,

v.

PUERTO RICO INTERNAL REVENUE 

DEPARTMENT, et al.,

Defendants.

Civil No. 16-2598 (FAB)

OPINION AND ORDER1

BESOSA, District Judge.

Plaintiff Luz Pizarro-Correa (“Pizarro”) brought this action 

against the Puerto Rico Internal Revenue Department, also known as 

Departamento de Hacienda (“Hacienda”), the Commonwealth of Puerto 

Rico (“Commonwealth”), and Alberto Cardona-Crespo (“Cardona”) 

(collectively “defendants”) alleging violations of the Americans 

with Disabilities Act (“ADA”), and Title VII of the Civil Rights 

Act of 1964 (“Title VII”). Pizarro also invokes the supplemental 

jurisdiction of this Court to adjudicate her claims pursuant to

Puerto Rico Law 44 (“Law 44”), P.R. Laws Ann. tit. 1, §§ 501 et 

seq.; Puerto Rico Law 115 (“Law 115”), P.R. Laws Ann. tit. 29, §§ 

194 et seq.; and Puerto Rico Law 100 (“Law 100”), P.R. Laws Ann. 

 1 Audrey Mulholland, a second-year student at American University Washington 

College of Law, assisted in the preparation of this Opinion and Order.

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tit. 29, §§ 146 et seq. Defendants move to dismiss2 Pizarro’s 

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

(“Rule 12(b)(6)”). (Docket No. 19.) For the reasons set forth 

below, the Court GRANTS IN PART and DENIES IN PART defendants’ 

motion to dismiss.

I. STANDARD OF REVIEW

Pursuant to Rule 12(b)(6), defendants may move to dismiss an 

action for failure to state a claim upon which relief can be 

granted. See Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) 

motion, a complaint must contain sufficient factual matter “to 

state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court must decide 

whether the complaint alleges sufficient facts to “raise a right 

to relief above the speculative level.” Id. at 555. In doing so, 

the Court is “obligated to view the facts of the complaint in the 

light most favorable to the plaintiffs, and to resolve any 

ambiguities in their favor.” Ocasio-Hernandez v. Fortuño-Burset, 

640 F.3d 1, 17 (1st Cir. 2011). Although “the elements of a prima 

facie case may be used as a prism to shed light upon the 

 2 Defendants filed a motion to dismiss on December 28, 2016. (Docket No. 12.) 

Two days later, defendants filed a motion for leave to correct nunc pro tunc

the motion to dismiss because of “various mistakes” and “grammatical 

oversights.” (Docket No. 17.) The Court granted this motion, permitting 

defendants to file a motion to dismiss nunc pro tunc on January 3, 2017. (Docket 

No. 19.) The motion to dismiss nunc pro tunc is now before the Court. Id. 

Accordingly, the initial motion to dismiss is moot. (Docket No. 12.)

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plausibility of the claim,” it is “not necessary to plead facts 

sufficient to establish a prima facie case” in order to survive a 

motion to dismiss. Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 

49, 54 (1st Cir. 2013). The prima facie analysis in a 

discrimination case is an evidentiary model, not a pleading 

standard. Id. at p. 51 (“the prima facie case is not the 

appropriate benchmark for determining whether a complaint has 

crossed the plausibility threshold.”). A complaint that 

adequately states a claim may still proceed even if “recovery is 

very remote and unlikely.” Ocasio-Hernandez, 640 F.3d at 13

(internal quotation marks and citations omitted).

II. FACTUAL BACKGROUND

The Court takes the following facts as true, as pled in the 

complaint. (Docket No. 1.) Pizarro worked for Hacienda as a 

revenue collections officer for approximately five and a half 

years. Id. at p. 1. Pizarro “suffered from mental illness” and 

was diagnosed with major severe depression and bipolar disorder. 

Id. Hacienda received notice of Pizarro’s mental health condition

on or about September 4, 2013, when she submitted medical notes 

from her psychologist to her supervisor.3 Id. at p. 2. Pizarro 

 3 Pizarro states only that she provided her employer with “medically certified 

excuses from work.” (Docket No. 1 at p. 2.) Pizarro does not specify the 

conduct or tasks that the medical notes purportedly excused.

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claims one of her supervisors, Carmen Mercado, was fully aware of 

her medical conditions. Id.

Pizarro avers that in 2015 defendant Cardona, a male coworker 

at the Arecibo office, made sexually explicit and derogatory 

comments to Pizarro. Id. at p. 5. Cardona’s unwelcomed comments 

included telling Pizarro to dance on a stripper pole.4 Id. Pizarro 

informed her supervisor, Sylvia Serrano, of Cardona’s remarks, but 

Hacienda took no action. Id. Instead, Serrano allegedly notified 

Cardona of Pizarro’s intention to file a sexual harassment 

complaint so that Cardona could pre-emptively file his own 

complaint against Pizarro. Id. Subsequently, Cardona filed a 

sexual harassment complaint against Pizarro. Id. While Hacienda 

investigated Cardona’s claim, Pizarro was transferred to the 

Bayamon office. Id. Meanwhile, Pizarro’s sexual harassment 

complaint against Cardona was not investigated. Id. 

Pizarro alleges that her transfer to the Bayamon office 

exacerbated her mental health condition; consequently, she 

requested a return to the Arecibo office as an accommodation. Id.

at p. 6. During Pizarro’s time at the Bayamon office, Hacienda 

allegedly shared her mental health condition with another coworker who looked for an opportunity to discredit her and remove 

 4 The complaint states that Cardona told Pizarro to “enviar al tubo a bailar,” 

which the complaint translates into English as telling her to go “strip-pole 

dancing.” (Docket No. 1 at p. 5.)

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her from the workplace. Id. Pizarro was suspended without pay 

when a co-worker informed Hacienda that she was afraid to share 

the breakroom with Pizarro during meals. Id. While at the Bayamon 

office, Pizarro applied for long-term disability benefits through 

MetLife insurance because she needed “periodic medical evaluations 

and rehabilitation” for her illness. Id. at p. 7. MetLife 

notified Hacienda that her application was accepted on 

November 11, 2015. Id.

Hacienda completed the sexual harassment investigation

regarding Cardona’s accusations against Pizarro on October 8, 

2016. Id. The report “exonerated the plaintiff of the alleged 

harassment” charge. Id. at p. 6. Pizarro, however, was not 

notified of this outcome until after her employment was terminated. 

On December 22, 2015, Pizarro received notification of her 

dismissal from Hacienda, effective retroactively on October 11, 

2015.5 Id. Hacienda premised its decision to terminate Pizarro’s 

employment on the acceptance of her application for long-term 

disability benefits. Id. at p. 12. 

On December 30, 2015, plaintiff filed a second claim with the 

Equal Employment Opportunity Commission (“EEOC”) alleging

 5 The Court is relying upon the termination date provided in the factual 

allegations section of the complaint. The first page of the complaint, however, 

states that Pizarro’s termination date was March 7, 2016. (Docket No. 1 at 

p. 1.)

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disability discrimination by Hacienda.6 Id. at p. 3. On March 30, 

2016, Pizarro filed a third and final claim with the EEOC alleging 

sex discrimination, disability discrimination, and retaliation by 

Hacienda.7 Id. The EEOC closed all of Pizarro’s claims in June 

2016, and issued three right-to-sue letters. (Docket No. 1-3.) 

Pizarro filed her complaint on September 7, 2016. (Docket No. 1.)

III. DISCUSSION

A. Individual Liability Pursuant to the ADA, Title VII, and 

Puerto Rico Law

Defendants contend that Cardona cannot be sued in his 

individual capacity pursuant to the ADA. (Docket No. 19 at p. 8.) 

Pizarro counters that the only claims brought against Cardona are

for gender discrimination and for the creation of a hostile working 

environment.8 (Docket No. 20 at p. 1.) Well-established precedent 

establishes that there is no individual liability pursuant to the 

ADA or Title VII. Courts within this district and sister circuits

have concluded that the language of the ADA “does not provide for 

 6 Pizarro filed her first EEOC claim on March 24, 2015, claiming sexual 

discrimination and retaliation by Hacienda. (Docket No. 1 at p. 3.) 

7

 The EEOC determined that “based upon its investigation, the EEOC is unable to 

conclude that the information obtained established violations of the statutes.” 

(Docket No. 1-3.) Furthermore, the EEOC stipulated that its determination “does 

not certify that the respondent is in compliance with the statutes.” Id. 

8 The complaint merely alleges that Cardona sexually harassed Pizarro and created 

a hostile work environment. (Docket No. 1 at p. 4.) Because Pizarro does not 

enumerate the precise statutory claims brought against Cardona, in an abundance 

of caution, the Court will consider individual liability pursuant to all claims.

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individual liability, but only for employer liability.” CardonaRoman v. Univ. of P.R., 799 F. Supp. 2d 120, 128 (D.P.R. 2011)

(Dominguez, J.); see also Spiegel v. Schulmann, 604 F.3d 72 (2d 

Cir. 2010); Wathen v. Gen. Elec. Co., 115 F.3d 400 (6th Cir. 1997);

Mason v. Stallings, 82 F.3d 1007 (11th Cir. 1996). The First 

Circuit Court of Appeals has held that there is “no individual 

employee liability under Title VII” because individuals are not 

encompassed within the stautory definition of employer. Fantini 

v. Salem State College, 557 F.3d 22, 30 (1st Cir. 2009).

Decisions regarding the scope of liability pursuant to 

the Puerto Rico state law claims mirror federal case law. Law 44 

was modeled after the ADA, “and as the ADA does not provide for 

individual liability, neither should Law 44.” Cardona-Roman, 799 

F. Supp. 2d at 131 (D.P.R. 2011) (Dominguez, J.) (citation 

omitted). Law 115, which prohibits retaliation in the workplace, 

likewise contains no provision imposing individual liability. 

Torres v. House of Representatives of the Commonwealth of P.R., 

858 F. Supp. 2d 172, 193 (D.P.R. 2012) (Gelpi, J.) (“With regards 

to personal supervisor liability under Puerto Rico’s statute 

prohibiting retaliation in the workplace, Law 115, the Puerto Rico 

Court of Appeals found that it stems from the text of the act that 

the sanctions imposed therein are only against the employer, and 

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thus, the statute contains no provision imposing personal 

liability.”)

Law 100 by contrast, allows individuals to be sued in 

their personal capacity only if they are “employees of a covered 

entity within [its] scope.” Ortiz-Rodriguez v. Consorcio Del 

Noroeste, Case No. 14-1529, 2016 WL 1255694, at *13 (D.P.R. Mar. 

29, 2016) (Gelpi, J.), appeal dismissed (Aug. 5, 2016). Law 100 

was enacted to expand protection from discrimination to employees 

in the private sector. Huertas-Gonzalez v. Univ. of P.R., 520 F. 

Supp. 2d 304, 314 (D.P.R. 2007) (Dominguez, J.). Accordingly, Law 

100 does not apply to employees of the Commonwealth or its 

instrumentalities that do not function as businesses or private 

entities. See Hernandez-Payero v. Puerto Rico, 493 F. Supp. 2d 

215, 233 (D.P.R. 2007) (Besosa, J.) (concluding that “since the 

Puerto Rico Police Department is an arm of the state and does not 

function as a business or private entity, Law 100 is not 

applicable.”); Alberti v. Univ. of P.R., 818 F. Supp. 2d 452, 481 

(D.P.R. 2011), aff’d sub nom, Alberti v. Carlo-Izquierdo, 548 F. 

App’x 625 (1st Cir. 2013) (holding that Law 100 does not apply to 

“the arms of the state and/or individual defendants working 

therein”). Hacienda, as the tax collection agency for Puerto Rico, 

is an instrumentality of the Commonwealth that falls beyond the 

purview of Law 100. Because Cardona is employed by an entity that 

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is not covered pursuant to Law 100, he cannot be held individually 

liable. Because none of the asserted causes of actions could 

subject Cardona to individual liability, all claims against 

Cardona are DISMISSED.

B. Eleventh Amendment Immunity: ADA and Puerto Rico State 

Law Claims

Defendants next contend that the Eleventh Amendment bars

all ADA and Puerto Rico state law claims in federal court against 

the Commonwealth and Hacienda. (Docket No. 19 at pp. 14-18.) The 

Eleventh Amendment “prevents private individuals from bringing

suit against non-consenting states.”9 Garcia-Hicks v. Vocational 

Rehab. Admin., 25 F. Supp. 3d 204, 209 (D.P.R. 2014) (Besosa, J.)

(citing Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 

363 (2001)). The immunity established by the Eleventh Amendment 

also serves to “protect the arms or alter egos of the state.” 

Garcia-Hicks, 25 F. Supp. 3d at 210 (citing Ainsworth Aristocratic 

Int’l Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d 1034, 1036 (1st 

Cir. 1987)). The Commonwealth is considered a state for the 

purpose of Eleventh Amendment immunity. Metcalf & Eddy, Inc. v. 

P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939 n.3 (1st Cir. 1993).

Hacienda, an instrumentality of the Commonwealth, qualifies as an 

 9 The Eleventh Amendment states that: “The Judicial power of the United States 

shall not be construed to extend to any suit in law or equity, commenced or 

prosecuted against one of the United States by Citizens of another State, or by 

Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.

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arm of the state. See Vaqueria Tres Monjitas, Inc. v. Irizarry, 

587 F.3d 464, 477 (1st Cir. 2009) (“An administrative arm of the 

state is treated as the state itself for the purpose of the 

Eleventh Amendment, and it thus shares the same immunity.”); Fin.

of Am. Reverse LLC v. Almodovar-Figueroa, Civil No. 16-3017, 2017 

WL 2656108, at *3 (D.P.R. June 30, 2017) (Delgado-Colon, J.) 

(stating Hacienda is an instrumentality of the Puerto Rico 

government).

There are numerous exceptions to the constitutional 

grant of sovereign immunity. For instance, the Eleventh Amendment 

does not bar suit in federal court when: (1) the state consents 

to suit; (2) the state waives its immunity by statute; (3) Congress 

abrogates state immunity; or (4) constitutional imperatives 

warrant a state being subject to suit. Metcalf & Eddy, Inc., 991 

F.2d at 938 (citations omitted). The Supreme Court has provided 

an additional route to relief in federal court pursuant to the Ex 

Parte Young doctrine, which precludes states from invoking the 

Eleventh Amendment as a defense “where prospective injunctive 

relief, not involving damages or property transfer, is sought 

against named state officials for a violation of federal law.” 

Neo Gen Screening, Inc. v. New England Newborn Screening Program, 

187 F.3d 24, 28 (1st Cir. 1999) (citing Idaho v. Coeur d’Alene 

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Tribe of Idaho, 521 U.S. 261, 276-77 (1997) (emphasis added)); see

also Ex Parte Young, 209 U.S. 123 (1908). 

Pizarro claims that defendants discriminated against her 

by failing to accommodate her disability reasonably in violation 

of the ADA. (Docket No. 1 at p. 11.) Although Pizarro fails to

specify the sections of the ADA from which her claims arise, 

employment discrimination is prohibited by Title I. See 42 U.S.C. 

§§ 12111-12117. While Congress fully intended to abrogate

sovereign immunity when enacting the ADA, the Supreme Court 

concluded in Garrett that “Title I of the ADA was not a valid 

congressional abrogation” and that Eleventh Amendment immunity 

still applied. Garcia-Hicks, 25 F. Supp. 3d at 210 (citing 

Garrett, 531 U.S. at 374)). Consequently, Pizarro’s Title I claim

pursuant to the ADA is barred against the Commonwealth and Hacienda 

by the Eleventh Amendment.

In response to defendants’ motion to dismiss for

Eleventh Amendment sovereign immunity, Pizarro waived her claim 

for monetary compensation pursuant to the ADA, making clear that 

she requests only injunctive relief. (Docket No. 20 at p. 10.) 

An action seeking injunctive relief pursuant to the ADA can be 

sustained only as to named state officials. Melendez-Gonzalez v. 

Oficina de Administracion de los Tribunales, 218 F. Supp. 2d 227, 

231 (D.P.R. 2002) (Laffitte J.) (“Any claims for injunctive relief

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may only be brought against the named individual defendants in 

their official capacity.”). Because Pizarro has not named any 

state official purportedly responsible for violations of the ADA, 

all ADA claims are DISMISSED.

With regard to the causes of action stemming from Puerto 

Rico law, the Commonwealth has not waived sovereign immunity. 

Pagan v. Puerto Rico, 991 F. Supp. 2d 343, 347 (D.P.R. 2014) 

(Casellas, J.). The First Circuit Court of Appeals has held that 

the Commonwealth “has not waived its Eleventh Amendment sovereign 

immunity under Law 44 because there is no specific language in the 

statute indicating that Puerto Rico intended to make itself subject 

to [. . .] federal court for disability-based employment 

discrimination.” Torres v. Junta de Gobierno de Servicios de 

Emergencia, 91 F. Supp. 3d 243, 255 (D.P.R. 2015) (Gelpi, J.)

(citing Acevedo Lopez v. Police Dep’t of P.R., 247 F.3d 26, 29 

(1st Cir. 2001)). Furthermore, various judges within this district 

have held on numerous occasions that sovereign immunity shields 

the Commonwealth and its instrumentalities from Law 100 and Law 

115 claims in federal court. See Lugo-Matos v. P.R. Police Dep’t, 

Civil No. 14-1839, 2016 WL 742912, at *6 (D.P.R. Feb. 24, 2016) 

(Garcia-Gregory, J.); Vizcarrondo v. Bd. of Trs. of Univ. of P.R., 

139 F. Supp. 2d 198, 208 (D.P.R. 2001) (Dominguez, J.); Dogson v. 

Univ. of P.R., 26 F. Supp. 2d 341, 343 (D.P.R. 1998) (Dominguez, 

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J.) (holding that a Law 100 discrimination claim based on sex is 

barred by the Eleventh Amendment). 

In sum, the Eleventh Amendment bars claims pursuant to 

Law 44, Law 100, and Law 115 in federal court against the 

Commonwealth and Hacienda, as an instrumentality. Accordingly, 

Pizarro’s claims stemming from Puerto Rico law are DISMISSED.

C. Title VII Claims

Pizarro’s remaining claims are for gender 

discrimination, hostile work environment, and retaliation in 

violation of Title VII.10 Defendants contend that Pizarro has 

failed to allege sufficient facts plausibly to sustain any of these 

claims.

1. Gender Discrimination

Pizarro claims that defendants discriminated 

against her on the basis of her gender. In support of this claim, 

she offers a number of factual allegations: (1) her employers 

ignored her sexual harassment claims against Cardona while

selectively choosing to investigate Cardona’s claims against her; 

(2) Hacienda withheld the results of the investigation, which 

absolved her of wrongdoing, until after terminating her

 10 These claims survive the Eleventh Amendment barrier because Congress 

abrogated sovereign immunity pursuant to Title VII by expressly authorizing 

actions for damages against a state. See Lipsett v. Univ. of P.R., 864 F.2d 

881, 885 (1st Cir. 1988).

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employment; and (3) Cardona remained at the Arecibo office while 

Pizarro was transferred to the Bayamon office. (Docket No. 1 at 

pp. 11-12.) These allegations, Pizarro argues, assert a gender 

discrimination claim predicated on the disparate treatment of

Pizarro and Cardona, her male co-worker.

In relevant part, Title VII prohibits an employer 

from “discriminat[ing] against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, 

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a). 

Where direct evidence of gender discrimination is lacking, claims 

are subject to the burden shifting analysis articulated by the 

Supreme Court in McDonnell Douglas. Lockridge v. Univ. of Me.

Sys., 597 F.3d 464, 470 (1st Cir. 2010); see also McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802 (1973). According to this 

analysis, the plaintiff shoulders the initial burden of 

establishing a prima facie case of gender discrimination. 

Lockridge, 597 F.3d at 470.

The elements of a prima facie gender discrimination

claim depend on the nature of the asserted claim. A claim founded 

upon disparate treatment requires the plaintiff to allege that: 

“(1) she is a member of a protected class, (2) she possessed the 

necessary qualifications and adequately performed her job, (3) she 

suffered an adverse employment action, and (4) similarly situated 

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members outside her protected class were treated more favorably.” 

Adkins v. Atria Senior Living, Inc., 113 F. Supp. 3d 399, 412 (D. 

Me. 2015) (citing McDonnell Douglas Corp., 411 U.S. at 793). 

Plaintiff need only demonstrate “a small showing that is not 

onerous and is easily made.” Che v. Mass. Bay Transp. Auth., 342 

F.3d 31, 38 (1st Cir. 2003) (internal quotation marks and citations

omitted).

Having reviewed the complaint, the Court is 

satisfied that Pizarro has adequately alleged a prima facie gender

discrimination claim pursuant to Title VII. First, it is 

undisputed that being a woman, Pizarro is a member of a protected 

class under Title VII which explicitly guards against 

discrimination in the workplace on the basis of sex. 42 U.S.C. § 

2000e-2. Second, Pizarro’s five-and-a-half-year tenure at

Hacienda suggests she possessed the necessary qualifications for

her former job. Third, (1) her involuntary transfer to the Bayamon 

office and (2) her termination constitute an adverse employment 

action. See Hernandez-Torres v. Intercont’l Trading, Inc., 158 

F.3d 43, 47 (1st Cir. 1998) (stating that adverse employment 

actions include “demotions, disadvantageous transfers or 

assignments, refusals to promote, unwarranted negative job 

evaluations, and toleration of harassment by other employees”). 

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Finally, Pizarro has alleged facts that, if proven, 

suggest that she was treated differently than Cardona, a male 

coworker. For example, Pizarro’s sexual harassment claim against 

Cardona was not investigated while Cardona’s claim against Pizarro 

was investigated. Furthermore, Pizarro had to transfer offices 

pending the investigation of Cardona’s allegations against her, 

yet Cardona was never made to transfer offices. (Docket No. 1 at 

p. 12.)

At this juncture, the question before the Court is 

not whether Pizarro will ultimately prevail on her Title VII gender 

discrimination claim. Rather, at issue is whether Pizarro has 

alleged sufficient facts to raise her right to relief above the 

speculative level. The Court is satisfied that she has. 

Accordingly, the Court DENIES defendants’ motion to dismiss 

Pizarro’s gender discrimination claim against Hacienda and the 

Commonwealth.

2. Hostile Work Environment Claim

Title VII prohibits sex-based discriminatory 

employment practices that create a hostile work environment, often 

referred to as sexual harassment. See Lockridge, 597 F.3d at 473 

(internal quotation marks and citations omitted). To establish a 

claim of a hostile work environment, a plaintiff must demonstrate 

that: (1) he or she is a member of a protected class; (2) he or 

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she was subject to unwelcome harassment; (3) the harassment 

occurred as a result of class membership; (4) the harassment was 

so severe and pervasive it altered the conditions of employment 

and created an abusive work environment; (5) the conduct complained 

of was objective and subjectively offensive, such that a reasonable 

person would find it hostile or abusive and the victim perceived 

it to be so; and (6) a basis for employer liability exists. CerezoMartin v. Agroman, 213 F. Supp. 3d 318, 326 (D.P.R. 2016) (Besosa, 

J.) (citing Torres-Negron v. Merck & Co., Inc., 488 F.3d 34, 39 

(1st Cir. 2007)). 

When a hostile work environment claim is premised 

on sexual harassment, courts should avoid distinguishing sexually 

oriented conduct from instances of unequal treatment and instead 

consider the aggregate of all claims. See O’Rourke v. City of 

Providence, 235 F.3d 713, 730 (1st Cir. 2001). In assessing the 

severity and impact of the harassment, courts consider the totality 

of the circumstances, “including the frequency of the 

discriminatory conduct, its severity, whether it is physically 

threatening or humiliating, whether it is a mere offensive 

utterance, and whether it unreasonably interferes with an 

employee’s work performance.” Davila v. Potter, 550 F. Supp. 2d 

234, 240 (D.P.R. 2007) (Besosa, J.) (citing Faragher v. City of 

Boca Raton, 524 U.S. 775, 788 (1998)). 

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To defeat a motion to dismiss pursuant to Rule 

12(b)(6), Pizarro is not required to plead every element of a prima 

facie case, nor must she identify every incident of sexual 

harassment. Polo-Echevarria v. Centro Medico del Turabo, Inc., 

949 F. Supp. 2d 332, 339 (D.P.R. 2013) (Besosa, J.) (citations 

omitted). She must, however, plead sufficient facts to make relief 

under a hostile work environment claim plausible. Id. Pizarro 

claims defendant Cardona’s sexually explicit remarks, his false 

accusation of sexual harassment against her, Hacienda’s failure to 

investigate her sexual harassment claim, and her involuntary 

transfer to the Bayamon office all contributed to the creation of 

a hostile work environment. (Docket No. 1 at pp. 5-6.) Pizarro 

additionally claims that defendants created a hostile work 

environment when they shared private information regarding her 

mental health with other coworkers. Id. at p. 12.

Defendants contend that the allegations contained 

in the complaint are not severe or pervasive. Defendants claim 

Pizarro’s allegations are more akin to work “discomfort” and result 

from “the genuine but innocuous differences in the ways men and 

women routinely interact with members of the same sex and of the 

opposite sex.” Id. at p. 13. The Court disagrees with this 

assessment. While a “mere offensive utterance” does not generally

rise to the level of creating a hostile work environment, Pizarro’s 

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allegations extend beyond a single comment. Pizarro’s allegations

in the complaint include multiple instances of degrading 

commentary from Cardona, failure of her supervisors to investigate 

her claims of sexual harassment, and the consequent involuntary 

transfer to a new office. When considered in the aggregate, these 

allegations suffice to make a plausible hostile work environment 

claim. See O’Rourke, 235 F.3d at 730 (holding that “incidents of 

nonsexual conduct - such as work sabotage, exclusion, denial of

support, and humiliation – can in context contribute to a hostile 

work environment”). Accordingly, the Court DENIES defendants’

motion to dismiss the hostile work environment claim pursuant to 

Title VII.

3. Retaliation

Pizarro’s remaining claims involve retaliation in 

violation of Title VII.11 Title VII prohibits employers from taking 

retaliatory action against an employee who opposes any practice or 

act made unlawful by it. See 42 U.S.C. § 2000e-3. A plaintiff 

can establish a claim for retaliation pursuant to Title VII by 

showing that (1) he or she engaged in a protected activity; (2) he 

or she suffered an adverse employment action; and (3) there was a 

 11 In this case, any retaliation claim pursuant to the ADA is also barred by 

Eleventh Amendment sovereign immunity because it is premised on employment 

discrimination arising under Title I. See Diaz v. Dep’t of Educ., 823 F. Supp. 

2d 68, 74 (D.P.R. 2011) (Garcia-Gregory, J.).

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causal connection between the adverse action and protected 

activity. See Salgado-Candelario v. Ericsson Caribbean, Inc., 614 

F. Supp. 2d 151, 178 (D.P.R. 2008) (Delgado-Colon, J.) (citing 

Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 

2004)). Protected activity encompasses any action “taken to 

protest or oppose statutorily prohibited discrimination.” 

Fantini, 557 F.3d at 32. When a plaintiff argues retaliation 

through indirect evidence, the McDonnell Douglas burden-shifting 

framework is again applied. Davila, 550 F. Supp. 2d at 241. The 

plaintiff must first establish a prima facie claim before the 

burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the adverse action. Id. The burden 

then shifts back to the plaintiff to provide evidence that “the 

offered reason is pretext cloaking the employer’s retaliatory 

animus.” Vazquez-Robles v. CommoLoco, Inc., 186 F. Supp. 3d 138, 

155 (D.P.R. 2016) (Besosa, J.).

There is no question that Pizarro has adequately 

alleged that she engaged in protected activity by filing an 

internal sexual harassment complaint and three EEOC claims in March

2015, December 2015, and March 2016. See Mariana-Colon v. Dep’t.

of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 223 (1st Cir. 

2007) (determining that contacting human resources and the EEOC 

regarding alleged discrimination was “undoubtedly” protected 

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activity). Pizarro states that shortly after filing her first 

EEOC claim on March 24, 2015, she was subject to adverse employment 

action in the form of her employer’s failure reasonably to 

accommodate her disability, suspension from work, and eventual 

termination from employment. (Docket No. 1. at p. 12.) Pizarro 

further claims that defendants’ legitimate and non-retaliatory 

reason for her termination – that she was granted long-term 

disability benefits from MetLife – is a pretext for unlawful 

retaliation.12 Id. While Pizarro has satisfied the first two 

requirements in establishing a retaliation claim, she has failed 

to allege a causal connection between the two sufficiently.

The only argument Pizarro submits linking the 

protected activity and adverse employment action is through a

temporal nexus, claiming the adverse actions occurred “shortly 

after” her initial EEOC filing. (Docket No. 1 at p. 12.) 

Establishing causation through temporal proximity requires that 

the events occurred in a very close timeframe. Echevarria v. 

AstraZeneca, LP, 133 F. Supp. 3d 372, 401 (D.P.R. 2015) (DelgadoHernandez, J.). Courts have held adverse employment actions 

occurring only three months after the protected activity to be

 12 Pizarro at one point in the complaint also asserts that she was terminated 

as a result of exercising her right to apply for long-term disability benefits. 

(Docket No. 1 at p. 9.) Pizarro cites no authority, however, establishing that 

an application for long-term disability benefits is considered a protected 

activity when evaluating a claim of retaliation.

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insufficient to establish a retaliatory motive. See Colburn v. 

Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir. 

2005).

Here, an analysis of the alleged temporal nexus 

connecting the protected activity to alleged adverse employment 

action is not feasible. Pizarro fails to articulate when all of 

the protected activities and adverse employment actions occurred. 

It is unclear to the Court when Pizarro filed her internal sexual 

harassment complaint, when Hacienda denied her request to be 

transferred back to the Bayamon office, and when she was suspended. 

An adverse employment action cannot precede the protected 

activity. The only dates Pizarro provides to the Court are for

the EEOC filings and termination. The earliest date in which 

Pizarro alleges she engaged in protected activity is March 24, 

2015, the date of the first EEOC complaint. Her termination of 

employment occurred approximately nine months following the EEOC 

complaint. The nine-month delay between the protected activity 

and adverse action is insufficient to establish a causal 

connection. More information, including the date in which Pizarro 

filed the internal complaint with Hacienda, is required to evaluate

more fully the causal connection between the protected activity 

and adverse action. Accordingly, the Court GRANTS defendants 

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12(b)(6) motion regarding to plaintiff’s retaliation claim. This 

claim is DISMISSED without prejudice.

IV. CONCLUSION

For the reasons set forth above, the Court DENIES defendants’ 

12(b)(6) motion with respect to plaintiff’s Title VII gender 

discrimination and hostile work environment claims. The Court 

GRANTS defendants’ motion to dismiss all claims against Cardona,

and GRANTS defendants’ motion to dismiss all ADA and Puerto Rico 

state law claims. Those claims are DISMISSED WITH PREJUDICE. The 

Court also GRANTS defendants’ 12(b)(6) motion with respect to

plaintiff’s Title VII retaliation claim. This claim is DISMISSED 

WITHOUT PREJUDICE.

Pursuant to Judge Swain’s order in Case No. 17-03283-LTS 

(docket number 617), plaintiff’s Title VII gender discrimination 

and hostile work environment claims are stayed without prejudice 

to an application for further relief from stay.

IT IS SO ORDERED.

San Juan, Puerto Rico, July 31, 2017.

s/ Francisco A. Besosa

FRANCISCO A. BESOSA

UNITED STATES DISTRICT JUDGE

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