Filed: Mar. 30, 2011
Latest Update: Feb. 22, 2020
Summary: Cordero are white.discriminatory animus against Ríos in front of other officers.jurisdiction over the remaining claims under Puerto Rico law.3, On appeal, defendants have not challenged the district, courts conclusion that the complaint plausibly alleges, discrimination in violation of Title VII.
United States Court of Appeals
For the First Circuit
No. 09-2296
VÍCTOR HUGO RÍOS-COLÓN,
Plaintiff, Appellant,
v.
PEDRO A. TOLEDO-DÁVILA, IN HIS PERSONAL AND OFFICIAL CAPACITIES;
EDDIE CORDERO-MARTÍNEZ, IN HIS PERSONAL AND OFFICIAL CAPACITIES;
AND ELIZABETH ACEVEDO-RIVERA, IN HER PERSONAL AND OFFICIAL
CAPACITIES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lipez, Leval,* and Thompson,
Circuit Judges.
Eileen Landrón Guardiola, with whom Eduardo Vera Ramírez, Luis
A. Rodriguez Muñoz, Julio César Alejandro Serrano, and Landrón &
Vera, L.L.P. were on brief, for appellant.
Irene S. Soroeta-Kodesh, with whom Leticia Casalduc-Rabell,
Zaira Z. Girón-Anadón, and Susana I. Peñagaricano-Brown were on
brief, for appellees.
March 30, 2011
*
Of the Second Circuit, sitting by designation.
LEVAL, Circuit Judge. Plaintiff Víctor Hugo Ríos-Colón
(“Ríos”) appeals from the judgment of the United States District
Court for the District of Puerto Rico, dismissing his suit alleging
racial discrimination in the course of his employment in the Puerto
Rico Police Department for failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). The complaint
alleged that he is black and that his supervisor in the Police
Department used racial slurs against him and transferred him to a
less desirable position. For the reasons explained below, we
conclude that the complaint plausibly alleged claims of racial
discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2000e-17, and of the Equal Protection
Clause of the Fourteenth Amendment of the United States
Constitution, made actionable by 42 U.S.C. § 1983. Accordingly, we
vacate in part and remand for further proceedings.1
BACKGROUND
I. Allegations of the Complaint
The complaint2 alleges as follows:
At all relevant times, Ríos was an officer in the Puerto Rico
1
The complaint also asserted claims under section 1983 of
deprivation of rights under the First, Fourth, Fifth, and Tenth
Amendments, and the Due Process Clause of the Fourteenth Amendment,
which the district court also dismissed for failure to state a
claim. Ríos does not challenge those rulings on appeal.
2
“Complaint” refers to the First Amended Complaint filed
September 10, 2008.
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Police Department. He holds a master’s degree in education from
Ana G. Méndez University and has been certified to give drug
prevention talks to schools, churches, and offices. The complaint
asserts that he is “of the Negro race” and that “the color of his
skin is black.”
From 2005 to 2007, Ríos was assigned to the Division
Prevención Drogas Mediante Educación a la Comunidad (hereinafter
the “Drug Prevention Division”) for the Aguadilla area, which had
offices near the Aguadilla airport. His duties included giving
drug prevention talks and required him to work nights and weekends.
His earnings included approximately $100 per month in overtime pay.
Agent Orlando Adames Cardona (“Adames”) was also assigned to
the Drug Prevention Division. Both Ríos and Adames were supervised
by Lieutenant Eddie Cordero Martínez (“Cordero”). Adames and
Cordero are white.
In August 2006, Cordero and another white lieutenant,
Elizabeth Acevedo-Rivera (“Acevedo”), began exhibiting
discriminatory animus against Ríos in front of other officers. For
example, the complaint alleges that Cordero, in front of Ríos, made
reference to “this damn nigger,” and that Acevedo said of Ríos “I
will take that negro out of here,” and “I don’t want him here.”
Acevedo and Cordero also allegedly conspired to deprive Ríos of the
use of his office.
In February 2007, Cordero reassigned Ríos to the Bureau of
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Illegal Arms, Airport Illegal Arms Section, West Region, also in
Aguadilla. The new position was less desirable in that it required
Ríos to travel to other airports by himself without backup and did
not offer a private office or the same opportunity for overtime
pay. No one was assigned to fill Ríos’s former position at the
Drug Prevention Division.
In December 2007, Adames was transferred at his request,
creating a second vacancy at the Drug Prevention Division. Cordero
recommended a white agent, Sixto Salinas Cabàn (“Salinas”), for the
position, and he was appointed. The complaint asserts on
information and belief that Salinas was less qualified than Ríos as
he had only recently obtained a bachelor’s degree and was not
certified to give drug prevention talks.
II. The District Court’s Decisions
On May 23, 2008, Ríos filed a complaint in the United States
District Court for the District of Puerto Rico, naming as
defendants in both their personal and official capacities:
Cordero; Acevedo; and Pedro A. Toledo-Dávila (“Toledo”), who was
Superintendent of the Puerto Rico Police Department. The court
granted the defendants’ motion to dismiss the complaint for failure
to state a claim. Ríos-Colón v. Toledo-Dávila, No. 08-1577-CCC,
2009 WL 1767566 (D.P.R. June 19, 2009).
The court ruled that the complaint failed under Title VII
because that statute applies to employers, not individual
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supervisors, and the complaint did not name the Police Department
as a defendant. Id. at *3. The court also held that the complaint
did not plausibly allege violations of the First, Fourth, Fifth,
and Tenth Amendments, or the Due Process Clause of the Fourteenth
Amendment.
Id. at *3-*6. Without addressing whether the complaint
stated a claim of racial discrimination in violation of the Equal
Protection Clause of the Fourteenth Amendment, the court dismissed
all of the federal claims and declined to exercise supplemental
jurisdiction over the remaining claims under Puerto Rico law.
Upon Ríos’s motion for reconsideration, the court upheld its
prior ruling. With respect to the Title VII claim, the court
acknowledged that the complaint “clearly pled a cause of action for
race discrimination,” but adhered to the dismissal of the claim
because the complaint did not name the Police Department as a
defendant. Once again, the court did not address whether the
complaint stated a claim of racial discrimination in violation of
the Equal Protection Clause.
This appeal followed.
DISCUSSION
We review the district court’s dismissal of the complaint de
novo. Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir.
2009). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
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Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Ríos advances two arguments on appeal. First, noting the
district court’s eventual acknowledgment that the complaint
asserted a viable claim of violation of Title VII, Ríos contends
the court erred in dismissing it on the ground that he brought the
suit against his superior officers, rather than against his
employer. Second, Ríos contends the complaint plausibly alleged a
claim of racial discrimination in violation of the Equal Protection
Clause. We agree with both contentions.
I. Title VII
Although acknowledging that the complaint “clearly pled a
cause of action for race discrimination” in violation of Title
VII,3 the district court dismissed the claim because it was
asserted against Ríos’s three supervisors, instead of against the
Police Department, his employer.
Given that the complaint named as defendants Ríos’s
supervisors (including the Department’s Superintendent) in their
official capacities, the failure to name the Police Department
itself did not justify dismissal of the Title VII claim. We have
ruled that a Title VII claim brought against a supervisory employee
in his official capacity as an agent of the employer operates as a
3
On appeal, defendants have not challenged the district
court’s conclusion that the complaint plausibly alleges
discrimination in violation of Title VII.
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claim against the employer. See Vera v. McHugh, 622 F.3d 17, 25
n.8 (1st Cir. 2010) (noting that, in a Title VII suit brought by an
employee of the Puerto Rico Army solely against the Secretary of
the Army, “[t]he Secretary was sued in his capacity as [the
plaintiff’s] employer”); see also Sauers v. Salt Lake Cnty.,
1 F.3d
1122, 1125 (10th Cir. 1993) (“[T]he proper method for a plaintiff
to recover under Title VII is by suing the employer, either by
naming the supervisory employees as agents of the employer or by
naming the employer directly.” (quoting Busby v. City of Orlando,
931 F.2d 764, 772 (11th Cir. 1991))).
II. Equal Protection
The district court dismissed the complaint in its entirety
without addressing whether it plausibly alleged a violation of the
Equal Protection Clause. We agree with Ríos that the complaint
asserted a claim under the Equal Protection Clause, which should
not have been dismissed. To prevail on a claim of racial
discrimination in violation of the Equal Protection Clause, a
plaintiff must establish (1) that he was selected for adverse
treatment compared with others similarly situated, and (2) that the
selection for adverse treatment was based on his race. See
Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir. 1995);
Yerardi’s Moody St. Rest. & Lounge, Inc. v. Bd. of Selectmen,
878
F.2d 16, 21 (1st Cir. 1989).
The complaint alleges that Ríos was transferred from a
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position with the Drug Prevention Division to a less desirable
position with the Bureau of Illegal Arms. The position to which he
was transferred allegedly offered materially less attractive
working conditions and fewer opportunities to earn overtime pay.
The complaint furthermore plausibly alleges that the
disadvantageous transfer was based on racial discrimination. It
alleges that Cordero, the supervisor who caused Ríos to be
transferred and who recommended a less qualified white candidate in
preference to Ríos when a position in the Drug Prevention Division
later became available, had used abusive and derogatory slurs
expressing explicit anti-black racial bias. These allegations were
sufficient to plead a cognizable claim under the Equal Protection
Clause, as they convey a plausible inference that Cordero
discriminated against Ríos in official acts, depriving him of
significant advantages because of his race. See Iqbal, 129 S. Ct.
at 1949 (a claim survives a motion to dismiss if the factual
allegations permit “the reasonable inference that the defendant is
liable for the misconduct alleged”); Adarand Constructors, Inc. v.
Pena,
515 U.S. 200, 229–30 (1995) (“[W]henever the government
treats any person unequally because of his or her race, that person
has suffered an injury that falls squarely within the language and
spirit of the Constitution’s guarantee of equal protection.”).
We conclude that the complaint pleaded a claim under section
1983 of racial discrimination in violation of the Equal Protection
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Clause, which claim should not have been dismissed.4
III. Supplemental Jurisdiction
Defendants argue that Ríos should be precluded from advancing
his local law claims upon remand because in this appeal he did not
separately challenge the district court’s decision to decline
supplemental jurisdiction over those claims. We disagree. The
district court’s decision to decline supplemental jurisdiction was
based on its conclusion that the complaint failed to state any
viable federal claims. Our decision to vacate the dismissal of the
federal claims eliminates the basis of that decision. We find no
waiver. We accordingly vacate the district court’s order declining
to exercise supplemental jurisdiction over the local law claims.
CONCLUSION
The district court’s dismissal of Ríos’s claims of racial
discrimination in violation of Title VII and the Equal Protection
Clause, and its order declining to exercise supplemental
jurisdiction over his local law claims, are hereby vacated, and the
case is remanded for further proceedings consistent with this
opinion. Costs of the appeal to abide the ultimate resolution of
the case.
4
The district court perhaps believed that the plaintiff’s
claim of racial discrimination was asserted only under Title VII
and not as a constitutional matter. We acknowledge that the
complaint could have been clearer in this regard. Nonetheless, the
briefs for both the defendants and the plaintiff, submitted in
relation to the defendants’ motion to dismiss, expressly recognized
that the complaint included an equal protection claim.
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