Ramos-Santos v. Hernandez-Nogueras (867 F. Supp. 2d 235, 2012)

United States District Court for the District of Puerto Rico 2012-06-08

Government Organization and Employees

Citations

Full opinion text

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is the Report and Recommendation (“R & R”), (Docket No. 117), regarding two motions to dismiss: one filed by defendants Carmen G. Rodriguez-Diaz (“Rodriguez”), the Cuerpo de Bomberos de Puerto Rico (Puerto Rico Fire Department) (“PRFD”), and the Commonwealth of Puerto Rico (“the Commonwealth”), (Docket No. 23); the other, filed by Jeremías Hernandez-Nogueras (“Hernandez”) (Docket No. 24). Also before the Court is defendant Rodriguez’s unopposed motion alleging qualified immunity (Docket No. 36). Having considered the magistrate judge’s recommendations, as well as plaintiffs objections to the R & R and defendants’ opposition to plaintiffs objections, (Docket Nos. 135 & 144), the Court ADOPTS the findings and recommendations of the magistrate judge.

I. Background

A. Factual Background

The Court declines to rehash all of the facts that are contained in the magistrate judge’s R & R. Instead, the Court provides a brief overview of the facts, and will supply more details as needed. At the motion to dismiss stage under Federal Rule of Civil Procedure 12(b)(6) (Rule “12(b)(6)”), a court must accept the “well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his [or her] favor.” Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 34 (1st Cir.2002). Therefore, the Court relies on the statement of facts as it appears in plaintiffs second amended complaint. (Docket No. 67.)

Nelida Ramos-Santos (“plaintiff’) is a career employee with the Commonwealth and has worked for the PRFD since 1988. Id. at ¶ 20. After a series of promotions, plaintiff was appointed Head of Administration of the PRFD by defendant Rodriguez in March, 2010. Id. at ¶¶ 20-27. Defendant Rodriguez herself had recently been selected as Chief of the PRFD. Id. at ¶27. Shortly thereafter, defendant Hernandez was appointed Transportation Director of the PRFD and assigned to the same office building as plaintiff. Id. at ¶ 29.

Upon being introduced to plaintiff sometime in July, 2010, defendant Hernandez began what plaintiff describes as “a constant pattern of flirtatious remarks, constant invitations to go out to lunch, constant phone calls to her office, winks, and very frequent visits to plaintiffs office seeking help in matters that he himself could easily resolve.” Id. at ¶ 29. The magistrate judge notes that plaintiffs complaint fails to describe in any detail the alleged flirtations and remarks attributed to defendant Hernandez. (Docket No. 117 at p. 3.)

In mid-July, 2010, both plaintiff and defendant Hernandez attended a League of United Latin American Citizens (“LU-LAC”) convention in New Mexico. (Docket No. 67 at ¶¶ 31, 33.) On July 13, 2010, before leaving for the convention, plaintiff received a phone call from Manolo Fontan (“Fontan”), a service manager from Guaraguao Truck Sales, a supplier for the PRFD. Id. at ¶ 31. Fontan told plaintiff that defendant Hernandez had asked him to provide $5,000.00 to cover the cost of the PRFD employees’ tickets to New Mexico for the LULAC convention. Id. Fontan said that he had only enough money to buy one round-trip ticket, and that he had mailed a check to PRFD headquarters. Id. When plaintiff later received the check, she quickly informed defendant Rodriguez of its “illegality.” Id. at ¶ 32. Defendant Rodriguez said to plaintiff, “pay [for] the plane ticket and I will take care of returning the money later.” Id.

Upon arriving in New Mexico for the convention, a number of PRFD employees, including plaintiff and defendant Hernandez, stayed at the same hotel. Id. at ¶ 33. On July 16, 2010, plaintiff and defendant Hernandez were part of a group of PRFD employees gathered around the hotel pool. Id. Defendant Hernandez made an unkind remark to plaintiff about a PRFD captain named Luis Otto, whom he referred to as “that Popular,” a comment which plaintiff characterizes as showing “a patent discrimination for political reasons.” Id. Uncomfortable, plaintiff retired to her hotel room. Id. at ¶ 34. An hour later, defendant Hernandez called plaintiff in her room, inquiring whether she was upset with him. Id. at ¶ 35. Plaintiff responded by telling defendant Hernandez to refrain from calling her. Id. At around midnight that same evening, defendant Hernandez called plaintiff again; he told her that he was lonely and asked if she would like to come up to his room. Id. at ¶¶ 35-36. He also told plaintiff, in an excited manner, that “what he had for her was big and fat, referring to his penis, that she would like it, that he was crazy about giving her a kiss and that one of these days he would steal one from her.” Id. at ¶ 36.

During the LULAC convention, defendant Hernandez commented among members of the group that he was plaintiffs “bodyguard” and had to stay close by her because he was “assigned to this mission.” Id. at ¶ 37. Plaintiff told defendant Hernandez to refrain from making such comments, reminding Hernandez that she was married. Id. at ¶ 38. Nonetheless, defendant Hernandez persisted in asking plaintiff about her marital status despite plaintiffs refusal to engage in conversation. Id.

On August 16, 2010, defendant Hernandez and PRFD General Counsel Efren Gonzales prepared a complaint against plaintiff alleging sexual harassment. Id. at ¶ 39. The next day, defendant Hernandez told plaintiff that she seemed different ever since he had refused her repeated requests to go to her room at the LULAC convention. Id. At the same time, defendant Hernandez also began complaining to defendant Rodriguez about plaintiffs incompetence and failure to perform her duties. Id. at ¶ 41.

On September 14, 2010, plaintiff filed an administrative complaint against defendant Hernandez alleging sexual harassment and acts of retaliation. Id. at ¶ 42. Defendant Rodriguez told plaintiff “that she was being demoted to a lower rank position” on September 29, 2010. Id. at ¶ 43. On the same day, plaintiff was excluded from a meeting she usually attended. Id. Plaintiff filed a complaint with the EEOC on September 30, 2010. Id. at ¶ 44.

Between October 1 and December 27, 2010, “defendants gradually ... demoted [plaintiff] and withdrew [her] work functions.” Id. at ¶ 45. Plaintiff was moved to a different office with a damaged chair and without a working air conditioner; she was denied Internet access and admission to her assigned parking spot; and she was forced to maintain the facilities herself, mopping a filthy and unhygienic floor. Id. Moreover, whenever plaintiff encountered defendant Hernandez in the PRFD office building, he greeted her with “menacing and threatening demeanors [sic].” Id. at ¶ 46. Despite claiming that she was asked to leave the agency, plaintiff is still employed at the PRFD. (Docket No. 117 at p. 6.)

B. Procedural Background

On September 15, 2011, plaintiff filed a second amended complaint against defendants Hernandez and Rodriguez in their individual and official capacities, the Commonwealth, the PRFD, and a number of unnamed defendants. (Docket No. 67.) Plaintiff brings claims of sexual harassment and retaliation under a variety of federal and local statutes, to wit, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, the First and Fourteenth Amendments of the U.S. Constitution, Federal and Commonwealth whistleblower laws, and Puerto Rico Laws 17, 69, 100, 115 and 426. Id. at ¶¶ 1, 2, 50, 56, 59-61. Plaintiff seeks injunctive relief, compensatory damages, interest in back pay, punitive damages, attorneys fees and the reimbursement of litigation costs. Id. at ¶ 1.

On April 5, 2011, defendants Rodriguez, the Commonwealth and the PRFD filed a motion to dismiss pursuant to Rule 12(b)(6). (Docket No. 23.) On April 15, 2011, defendant Hernandez filed a separate motion to dismiss. (Docket No. 24.) In sum, defendants argue that all of plaintiffs claims that are not barred by the Eleventh Amendment ought to be dismissed for failure to state a cause of action. In addition, on May 23, 2011, defendant Rodriguez filed a motion seeking qualified immunity, reasoning that plaintiff had failed to plead a plausible constitutional claim. (Docket No. 36.)

Plaintiff filed an opposition to defendants’ motions to dismiss on April 25, 2011. (Docket No. 31.) In addition to refuting defendants’ arguments, plaintiff includes in her response several documents supporting her claim that she was demoted in retaliation for her administrative complaints concerning Hernandez. Specifically, plaintiff submits Spanish-language pay-stubs showing a change in salary and rank, arguing that these establish evidence of a property interest directly affected by the demotion. (See Docket No. 31.) On May 13, 2011, defendants Rodriguez, the Commonwealth, and the PRFD filed a reply to plaintiffs opposition to their motion to dismiss, arguing that plaintiff has failed to support any of her claims with sufficient facts. (Docket No. 35.)

Pursuant to a referral order issued by the Court, Magistrate Judge Marcos E. Lopez filed an R & R with regard to the motions to dismiss and the motion for qualified immunity on May 1, 2012. (Docket No. 117.) First, Magistrate Judge Lopez recommends that defendant Hernandez’s motion to dismiss be GRANTED. Second, he recommends that defendants Rodriguez, the Commonwealth, and the PRFD’s motion to dismiss be GRANTED IN PART AND DENIED IN PART. Finally, he recommends that defendant Rodriguez’s motion requesting dismissal of claims against her under qualified immunity be deemed MOOT.

Specifically, the R & R recommends that:

• All First and Fourteenth Amendment claims, as well as claims under Puerto Rico Laws 17, 69, 115, and 426 against defendants the Commonwealth and the PRFD, and against defendants Rodriguez and Hernandez in their official capacities, be DISMISSED on sovereign immunity grounds;

• All claims under Puerto Rico Law 100 against the Commonwealth and PRFD be DISMISSED;

• Any Title VII claims against defendants Rodriguez and Hernandez individually, to the extent the complaint asserts them at all, be DISMISSED as there is no individual liability under Title VII;

• All claims against defendants Rodriguez and Hernandez in their personal capacities under the First Amendment, the Fourteenth Amendment, and Puerto Rico Laws 17, 69, and 100 be DISMISSED for failure to state a claim upon which relief can be granted;

• All claims under the Whistleblower Protection Act of 1989, Pub.L. 101-12, codified at 5 U.S.C. § 1213 et seq., be DISMISSED for failure to state a claim upon which relief can be granted;

• Any claims against defendant Hernandez under Puerto Rico Laws 115 and 426 be DISMISSED for failure to state a claim upon which relief can be granted;

• All claims against defendants Rodriguez and Hernandez under 42 U.S.C. § 1985 be DISMISSED for failure to state a claim upon which relief can be granted;

• The prospective injunctive relief requested be DENIED because it lacks specificity as to what action in particular plaintiff wishes the Court to enjoin and no allegation of ongoing harm has been made; and

• Defendant Rodriguez’s request for qualified immunity be deemed MOOT because plaintiff failed to show that her constitutional rights had been violated.

Moreover, the magistrate judge recommends that the following claims survive the motion to dismiss:

• Plaintiffs Title VII retaliation claims against defendants Commonwealth and PRFD;

• Plaintiffs Law 115 claim against defendant Rodriguez in her individual capacity; and

• Plaintiffs Law 426 claim against defendant Rodriguez in her individual capacity.

Plaintiff filed partial objections to the R & R on May 19, 2012. (Docket No. 135.) Plaintiff argues that the magistrate judge committed error by recommending dismissal of her Fourteenth and First Amendment claims. Id. at ¶¶ 18 & 34. Plaintiff insists (1) that she has demonstrated “a hostile-work environment due to sexual harassment” pursuant to the Equal Protection Clause and Puerto Rico law; and (2) that she has demonstrated a violation of her First Amendment right to free speech.

On June 4, 2012, defendants Hernandez, Rodriguez, the Commonwealth, and the PRFD filed a joint opposition to plaintiffs objection to the R & R. (Docket No. 144.) Defendants allege that plaintiffs filing of her objection was untimely. Id. at p. 2. Although plaintiff did submit her objection several days after the original deadline, the Court granted plaintiffs motion for leave to file the objection instanter. (See Docket Nos. 134 & 137.)

II. Legal Standards

A. Standard under 28 U.S.C. § 636(b)(1)

A district court may refer a case to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(b). Any party adversely affected by the report and recommendation may file written objections within fourteen days of being served with the magistrate judge’s report. See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). In conducting its review, the court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125-126 (D.R.I.2004)).

B. Standard Under Rule 12(b)(6)

Rule 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted. Fed. R. Civ.P. 12(b)(6). When considering a motion under Rule 12(b)(6), a court must accept the “well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his [or her] favor.” Medina-Claudio, 292 F.3d at 34. “[A]n adequate complaint must provide fair notice to the defendants and state a facially plausible legal claim.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1,12 (1st Cir.2011). When faced with a motion to dismiss, “[a] plaintiff is not entitled to ‘proceed perforce’ by virtue of allegations that merely parrot the elements of the cause of action.” Id. at 12 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). Any “[n]on-conclusory factual allegations in the complaint [, however,] must ... be treated as true, even if seemingly incredible.” Id. (citing Iqbal, 129 S. Ct. at 1951). Where those factual allegations “ ‘allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,’ the claim has facial plausibility.” Id. (quoting Iqbal, 129 S.Ct. at 1949). Furthermore, a court may not “attempt to forecast a plaintiffs likelihood of success on the merits; ‘a well-pleaded complaint may proceed even if ... a recovery is very remote and unlikely’.” Id. at 13 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The relevant inquiry, therefore, “focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Id.

According to Rule 12(b)(6), a court must base its determination solely on the material submitted as part of the complaint or central to it. Fudge v. Penthouse Int’l Ltd., 840 F.2d 1012, 1015 (1st Cir.1988). Generally, “a court may not consider documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). “When ... a complaint’s factual allegations are expressly linked to — and admittedly dependent upon — a document (the authenticity of which is not challenged), [however,] that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).” Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir.1998) (internal citation omitted). This is especially true where the plaintiff has “actual notice ... and has relied upon these documents in framing the complaint.” Watterson v. Page, 987 F.2d 1, 4 (1st Cir.1993).

III. Discussion

A. Plaintiffs Objections

Plaintiff objects that the magistrate judge erred by recommending dismissal of her Fourteenth and First Amendment claims. (Docket No. 135 at ¶¶ 18 & 34.) Plaintiff insists (1) that she has demonstrated “a hostile-work environment due to sexual harassment” pursuant to the Equal Protection Clause and Puerto Rico law; and (2) that she has demonstrated a First Amendment violation of her free speech. By limiting her objection to the prenominate concerns, any other objection is waived. See D.P.R. Loc. Civ.R. 7(b). The Court will consider both objections in turn.

i. Hostile Environment Claim

Plaintiff objects that the magistrate judge erred in his recommendation to dismiss plaintiffs hostile-environment claim against defendant Hernandez under the Equal Protection clause, and Puerto Rico Laws 17, 69, and 100. (Docket No. 185 at ¶¶ 4-18.) Specifically, plaintiff objects to the magistrate judge’s determination that under the hostile-environment standard, the facts alleged by plaintiff in her complaint fail to establish that she was subjected to a hostile environment due to sexual harassment. Id. at ¶ 5. Plaintiff argues in favor of a broader consideration of evidence under an incomplete four-point standard of hostile-environment harassment. Id. at ¶¶ 8-11, 12. Plaintiffs arguments are unpersuasive. First, by requesting that the Court consider evidence related to the separate and distinct retaliation claim against defendant Rodriguez, plaintiff impermissibly conflates that claim with the hostile-environment claim against defendant Hernandez. Id. at ¶¶ 8-11. Second, the incomplete four-point standard recommended by plaintiff is incorrect because it neglects two important criteria employed by the First Circuit Court of Appeals to identify a hostile environment. Id. at ¶¶ 12. The Court now addresses these two significant errors in plaintiffs argument.

a. Conflation of Separate Claims

Plaintiff argues that “[s]he was placed in a hostile environment as a reaction and retaliation to her having complained of sexual harassment ... by Hernandez.” (Docket No. 135 at ¶ 7.) (emphasis added.) In support of this allegation, plaintiff submits facts contained in paragraphs forty-two through forty-seven of her second amended complaint detailing the alleged demotion suffered by plaintiff in retaliation to her filing a sexual-harassment grievance. (See Docket No. 67.) Plaintiff ignores the fact that sexual harassment and retaliatory harassment are distinct causes of action, governed by separate and independent statutes and common law standards. See 42 U.S.C. §§ 2000e-2 & 2000e-3(a); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Noviello v. City of Boston, 398 F.3d 76 (1st Cir.2005). By supporting her sexual harassment claim against defendant Hernandez with evidence specific to her retaliation claim against defendant Rodriguez, plaintiff impermissibly conflates two distinct causes of action against two separate defendants.

The First Circuit Court of Appeals has acknowledged that when “an individual sexually harasses a victim and then engages in non-sexual retaliatory harassment, the sexual and non-sexual harassment arguably may be part and parcel of the same violation.” Noviello, 398 F.3d at 87; see Perez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d at 32 (1st Cir.2011) (a single-defendant case holding that where “evidence can reasonably be viewed as demonstrating either discriminatory animus or retaliatory animus, [the court] may consider the same evidence in assessing the sufficiency of both the plaintiffs claims”). Nonetheless, the Noviello Court has qualified this statement, noting that “[t]he majority of cases are not cut from this seamless cloth. Even when retaliation is derivative of a particular act of [sexual] harassment, it normally does not stem from the same animus. Most often, retaliation is a distinct and independent act of discrimination ...” Noviello, 398 F.3d at 87. This distinction between sexual and retaliatory harassment is especially sharp when the plaintiff has asserted different claims against two separate defendants. In Noviello, for instance, an act of sexual harassment was committed by one party, while retaliatory harassment was “orchestrated by a cohort of different individuals.” Id. Because the offensive behavior of both parties did not stem from the same animus, the court of appeals viewed the sexual and retaliatory harassment as “separate and independent harms.” Id. That is the case here, where plaintiff asserts a sexual harassment claim against defendant Hernandez and a retaliatory harassment claim against defendant Rodriguez. It is clear that the alleged misdeeds of both parties are distinct, that they do not arise from the same animus, and therefore that they must not be condensed into a “mixed-motive” claim. Id. at 88. Moreover, plaintiff cannot prop up her failing sexual harassment claim with the more robust retaliatory harassment allegations against defendant Rodriguez. Id. (holding that “[t]he plaintiff cannot rely on the second [claim] to revive the first”). For these reasons, plaintiffs objections are undermined by her conflation of two distinct causes of action.

b. Incorrect Hostile-Environment Standard

Plaintiffs objections to the R & R reveal a second error by adopting an incomplete standard for hostile-environment harassment. Plaintiff states that “[i]n order to prevail in an abusive or hostile environment case when it is created by a supervisor the plaintiff must show that (1) she is a member of a protected group; (2) she was subjected to unwanted conduct based on sex; (3) the conduct was objectively severe ...; and (4) she subjectively perceived conduct to be abusive.” Id. No matter how compelling the results of this analysis may ultimately be, they must be discarded because plaintiff fails to address all six points typically included in the First Circuit standard. Notably, plaintiffs standard lacks the requirement that an employer be aware of the alleged harassment.

While the Supreme Court has declined to articulate a multi-point standard, it has provided a basic framework according to which the standard may be developed. The First Circuit Court of Appeals has developed a six-point standard for hostile-environment harassment based on Supreme Court jurisprudence. See Faragher, 524 U.S. at 787-89, 118 S.Ct. 2275; Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-73, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Under either the general Supreme Court framework or the narrower First Circuit standard, plaintiffs hostile-environment claim fails.

According to the First Circuit standard, a plaintiff must meet six criteria in order to succeed on a hostile-environment claim: (1) that she is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiffs employment; (5) that sexually objectionable conduct was both objectively and subjectively offensive; and (6) that some basis for employer liability has been demonstrated. See Perez-Cordero, 656 F.3d at 27; Agusty-Reyes v. Dept. of Educ. of Puerto Rico, 601 F.3d 45, 52 (1st Cir.2010); O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001). The six-point standard may be applied when a hostile environment has been created either by a supervisor or by a non-supervisory co-worker. See Perez-Cordero, 656 F.3d at 27; Agusty-Reyes, 601 F.3d at 52 (applying standard to supervisor); see Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir.2006); O’Rourke, 235 F.3d at 728 (applying standard to non-supervisors).

Plaintiff fails to meet at least one of the elements of the First Circuit standard. Upon considering the facts and extending “every reasonable inference” in plaintiffs favor, the Court still finds that plaintiff failed to satisfy point (6) of the First Circuit standard. Medina-Claudio, 292 F.3d at 34. As the R & R has shown, there is no basis for employer liability because the allegations in the complaint provide no reason to believe that defendant Rodriguez or any other supervisor knew or should have known about Hernandez’s alleged harassment. (Docket No. 117 at p. 21.) Plaintiff is precluded from claiming hostile-environment harassment by a non-supervisory co-worker under the First Circuit standard because she fails to show at least one element of the test.

Even under the more generous Supreme Court framework, plaintiffs claim fails. Indeed, the magistrate judge employs a more general standard, mirroring that of the Supreme Court, when considering plaintiffs hostile environment claim. Rather than use the six-point standard set forth by the First Circuit, the magistrate judge maintains that a plaintiff may bring a hostile-environment claim where “sexual harassment [is] so ‘severe and pervasive’ as to ‘alter the condition [of the victim’s] employment and create an abusive working environment.” Faragher, 524 U.S. at 786, 118 S.Ct. 2275 (quoting Meritor, 477 U.S. at 67, 106 S.Ct. 2399). That conduct is actionable only when it “go[es] beyond the ‘merely offensive’ and approaches] tangible injury (including psychological injury)[. F]aetors to be considered include frequency, severity, whether the conduct is ‘physically threatening or humiliating,’ ” and whether it “ ‘unreasonably interferes with an employee’s work performance.’ ” Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 56 (1st Cir.2000) (quoting Harris, 510 U.S. at 21-23, 114 S.Ct. 367). While there is no “mathematically precise test” to determine when a work environment becomes hostile, the situation “should be judged from the perspective of a reasonable person in plaintiffs position, considering all circumstances.” Billings v. Town of Grafton, 515 F.3d 39, 48. (1st Cir.2008).

Plaintiffs complaint “consists essentially of one severe incident-the telephone call to hter hotel room during which Hernandez said that he had something ‘big and fat’ for her and that he wanted to steal a kiss-and an unspecified number of non-severe incidents ...” (Docket No. 117 at p. 17.) Courts have often held that a single severe incident of offensive sexual conduct is not sufficient to create a hostile environment. See Clark County School Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Moreover, because plaintiff does not provide details regarding the frequency and severity of the lesser incidents, even after a third bite at the apple by filing a second amended complaint, the Court cannot gauge whether those lesser incidents might have interfered with plaintiffs work performance or caused her any psychological harm. For these reasons, the magistrate judge recommends that plaintiffs hostile work environment claim against defendant Hernandez be dismissed.

The Court adopts this recommendation, based both on the First Circuit six-point standard and the analysis performed by the magistrate judge. But the Court echoes Billings v. Town of Grafton by noting its concern that the “highly fact-specific nature of hostile environment claims tends to make it difficult to draw meaningful contrasts between one case and another for purposes of distinguishing between sufficiently and insufficiently abusive behavior.” 515 F.3d 39, 49 (1st Cir.2008). “While it is easy to find more grievous episodes of harassment,” there are also cases in which behavior “no worse” than that described by plaintiff in her amended complaint has been held sufficient to justify the finding of a hostile environment. Hernandez-Loring, 233 F.3d at 56 (declining to dismiss a claim allegng repeated requests for dates and the use of suggestive language by a non-supervisory co-worker). As noted, a hostile environment does not depend on one specific type of conduct; therefore, a plaintiff “need not be propositioned, touched offensively, or harassed by sexual innuendo in order to have been sexually harassed.” Billings, 515 F.3d at 48 (quoting Quick v. Donaldson Co., 90 F.3d 1372, 1379 (8th Cir.1996)); see Harris, 510 U.S. at 23, 114 S.Ct. 367. The Court may look to other cases as “instructive examples of actionable sexual harassment,” but simply because the allegations in plaintiffs claim are of a lesser degree does not mean they will necessarily fall short of the standard. Billings, 515 F.3d at 49. Rather, the existence of a hostile environment depends in part on how the court characterizes the specific allegations in relation to the plaintiff. Id. In this case, the conduct of which plaintiff complains was merely episodic, but not so frequent as to become pervasive; with one exception, never severe; mildly humiliating rather than physically threatening; and never a significant impediment to plaintiffs work performance. See Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 46 (1st Cir.2003). Given this characterization of defendant’s behavior, as well as the failure of plaintiffs claim to meet the First Circuit standard, the Court GRANTS defendant Hernandez’s motion to dismiss plaintiffs Equal Protection clause, Law 17, Law 69, and Law 100 claims against him.

ii. First Amendment Claim

Plaintiff objects to the magistrate judge’s determination that plaintiffs First Amendment claim fails the test set forth in Ramos Rivera v. Dep’t de la Familia de Puerto Rico, 536 F.Supp.2d 115 (D.P.R.2008). (Docket No. 135 at ¶ 19.) Specifically, plaintiff objects to the magistrate judge’s assertion that plaintiff failed to establish part one of the first prong, to wit, that by bringing defendant Hernandez’s alleged misdeeds to the attention of defendant Rodriguez she was speaking as a public citizen. (Docket No. 117 at p. 27.) Without knowing exactly what plaintiffs duties were as head of the agency’s administration, the magistrate judge determines that “the most reasonable inference is that the responsibilities of the Head of Administration included keeping PRFD operations running efficiently and reporting any irregularities to PRFD Chief Rodriguez. Therefore, the most reasonable inference is that plaintiffs speech was uttered in the course of her official job duties.” (Docket No. 117 at p. 27.) The Court agrees with the magistrate judge. Plaintiffs only defense is to aver that her professional responsibilities as Head of Administration “did not erode or erase her serious concern and conscious efforts to identify and complain as a citizen acts of public corruption ...” (Docket No. 135 at ¶24.) This argument is unavailing. Instead of thoroughly addressing the R & R, plaintiff develops an argument based almost entirely on the Pickering “balancing test,” thereby ignoring over forty years of subsequent First Amendment jurisprudence. See Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The Supreme Court has held that the First Amendment protects public employees who suffer retaliation after speaking out on matters of public concern. See Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Nonetheless, the Court has qualified Pickering by holding that an employee who speaks pursuant to her official duties is acting as an employee, not a public citizen, and therefore that her speech is not protected under the Constitution. Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In order to make out a First Amendment claim, a plaintiff must establish three elements: (1) that she was speaking as a public citizen on a matter of public concern; (2) that the plaintiffs and the public’s First Amendment interests outweigh the government’s interest in promoting efficiency in the services that it provides; and (3) that the protected speech was a “substantial motivating factor” in the adverse employment decision. Ramos Rivera, 536 F.Supp.2d at 115 (internal citations omitted).

The First Circuit Court of Appeals has developed a two-step test to address the threshold question of whether an employee was speaking as a public citizen or in her capacity as an employee. Decotiis v. Whittemore, 635 F.3d 22, 31 (1st Cir.2011). First, the trial court must determine the plaintiffs official responsibilities; second, it must decide whether the speech at issue was made pursuant to those responsibilities. Id. Based on the facts submitted in plaintiffs second amended complaint, there is no reason to doubt that, in speaking to defendant Rodriguez about defendant Hernandez’s dealings with Fontan, plaintiff was acting pursuant to her official duties as Head of Administration. Moreover, plaintiff fails to make a convincing argument against this assertion. Because plaintiff spoke as an employee of the PRFD, her speech is not constitutionally protected. Therefore, defendants’ motion to dismiss plaintiffs First Amendment claim is GRANTED.

IV. Conclusion

The Court has made an independent examination of the entire record in this case, including plaintiffs objections to the R & R and defendants’ opposition to those objections, and ADOPTS the magistrate judge’s findings and recommendations as the opinion of this Court. Accordingly, defendant Hernandez’s motion to dismiss is GRANTED. Defendants Rodriguez, Commonwealth and PRFD’s motion to dismiss is GRANTED IN PART AND DENIED IN PART. The motion to dismiss is DENIED as to plaintiffs claims against defendants Commonwealth and PRFD under Title VII, and plaintiffs claims against defendant Rodriguez under Law 115 and Law 426. Finally, defendant Rodriguez’s motion for qualified immunity is deemed MOOT.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

MARCOS E. LÓPEZ, United States Magistrate Judge.

On January 17, 2011, Nélida Ramos Santos (“Ramos” or “plaintiff’) filed a complaint against her employer, the “Cuerpo de Bomberos de Puerto Rico” (the Puerto Rico Fire Department, translation ours) (“PRFD”), as well as PRFD employees Jeremías Hernández Nogueras (“Hernández”), Carmen Rodríguez Díaz (“Rodríguez”), and the Commonwealth of Puerto Rico (the “Commonwealth”), and several unnamed defendants (collectively, “defendants”), alleging violations of her First and Fourteenth Amendment rights via 42 U.S.C. § 1983 (“Section 1983”), Title VII of the Civil Rights Act of 1964 (“Title VII”), Federal and Commonwealth whistleblower laws, and Commonwealth anti-discrimination laws, specifically, Law No. 100 of June 30, 1959, Law No. 69 of July 6, 1985, and Law No. 115 of December 20, 1991. (Docket No. I). Pending before the court are two motions to dismiss, one filed by the Commonwealth, the PRFD, and Rodriguez (Docket No. 23) and a second filed by Hernandez. (Docket No. 24). Also pending before the court is Rodriguez’s unopposed motion in her personal capacity claiming that she is entitled to qualified immunity. (Docket No. 36). Plaintiff filed a response in opposition to the two motions to dismiss (Docket No. 31) and'the Commonwealth and PRFD have filed a reply. (Docket No. 35).

1. Factual Background

The court draws the following factual allegations from plaintiffs second amended complaint (Docket No. 67) and treats them as true for the purposes of the pending motion:

Plaintiff is a career employee with the Commonwealth who has worked for the PRFD since 1988. (¶ 11). She began working there as an accountant and, in 1994, was assigned to the Emergency Medical Corps, where she was later promoted to Director of Budget Finance. (¶¶ 22-23). She held this position until April 2009, when she was offered an opportunity to serve as Special Assistant to the chief of the PRFD by Coronel Benjamín Rodríguez, who later appointed plaintiff as interim Director of Purchasing and Supply. (¶¶26, 28). In September 2009, plaintiff was appointed Assistant Chief of Administration. (¶ 29). In March 2010, co-defendant Rodriguez was selected as chief of the PRFD and appointed plaintiff as Head of the Administration of the PRFD. (¶ 29).

At some time prior to July 2010, co-defendant Hernández was appointed Transportation Director of the PRFD and assigned to the same office building as plaintiff. (¶ 31). After being introduced to plaintiff, Hernández began what plaintiff describes as “a constant pattern of flirtatious remarks, constant invitations to go out to lunch, constant phone calls to her office, winks, and very frequent visits to plaintiffs office seeking help in matters that he himself could easily resolve.” (¶ 31). Plaintiffs complaint does not describe any of these alleged flirtations, nor does she recount any of the specific remarks that Hernández allegedly made. Plaintiff states that she rejected these “advances,” but that they continued throughout the summer of 2010. (¶ 32).

During mid-July of 2010, both plaintiff and Hernández attended a LULAC convention in New Mexico, which agency personnel were encouraged and asked to attend. (¶¶ 32-35). On July 13, 2010, prior to leaving for the convention, plaintiff received a telephone call from Manolo Fontán (“Fontán”), a service manager from Guaraguao Truck Sales, a supplier for the PRFD, informing her that Hernández had asked Fontán to provide $5,000.00 to cover the cost of the PRFD’s employees’ tickets to New Mexico for the LULAC convention. (¶ 33). Fontán stated that he only had sufficient funds to pay for one round-trip plane ticket, and he sent a check “in the name of Condado Travel” to the PRFD’s headquarters. (¶ 33-34). The complaint does not describe plaintiffs response, if any, to Fontán. Plaintiff received the check at some unspecified time after her conversation with Fontán. When she did so, she quickly informed Rodriguez “of the illegality of the check.” Plaintiff asked Rodriguez what she should do with the check, to which the latter responded “pay [for] the plane ticket and I will take care of returning the money later. This Jeremías is really something asking for money.” (¶ 34).

On July 16, 2010, plaintiff, Hernández, and other PRFD employees were at the hotel pool in New Mexico, where they were staying during the LULAC convention. Hernández told plaintiff to be careful with a PRFD captain named Luis Cotto whom he called “that Popular,” which plaintiff characterizes as a comment that “show[ed] a patent discrimination for political reasons.” (¶¶ 35-36). This made plaintiff feel uncomfortable, so she retired to her hotel room. (¶ 36). An hour later, she received a call from defendant inquiring if she was upset with him. (¶ 36). Plaintiff responded that she had not given Hernández any reason to feel like he could call her hotel room, and she told him to refrain from calling her. (¶37). At around midnight that same evening, Hernández called plaintiff again and said he was lonely and asked her if she would like to go up to his room to spend some time together. (¶ 37). He also told her “in an excited manner that what he had for her was big and fat, referring to his penis, that she would like it, that he was crazy about giving her a kiss and that one of these days he would steal one from her.” (¶ 38).

At unspecified times during the convention, Hernández commented to other members of their group that he was plaintiffs “bodyguard” and so he had to be near her because he was assigned to this “mission.” (¶ 39). Plaintiff told him to stop making such comments, as she had a partner. (¶ 40). Hernández also asked plaintiff more than once about her marital status and told her that Rodriguez had informed him several times that plaintiff was married. (¶ 40). Plaintiff told Hernández that he had no need to ask such questions and that she was not going to answer them. (¶ 40).

On August 16, 2010, Hernández prepared a complaint against plaintiff alleging sexual harassment, with assistance from PRFD general counsel, Efrén González. (¶ 41). The next day Hernández stated to plaintiff that she seemed different since he had refused her repeated requests to go to her room at the LULAC convention because “he was a man faithful to his family and God.” (¶ 41). He alleged that as a result of his refusal, plaintiff would not talk to him and would not process papers and matters related to his work area. (¶ 42). Between August 23 and September 14, 2010, Hernández complained to Rodriguez, claiming that plaintiff was incompetent and failing to perform her duties. (¶ 43).

On September 14, 2010, plaintiff filed an administrative complaint against Hernández alleging sexual harassment and acts of retaliation. (¶ 44). On September 29, 2010, Rodriguez told plaintiff “that she was being demoted to a lower rank position.” (¶45). That same day, plaintiff was excluded from a meeting she usually would attend. Id. The next day, plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging sexual harassment and acts of retaliation for having complained of improper behavior related to the handling of financial matters by a fellow co-worker. (¶ 46).

Between October 1 and December 27, 2010, “defendants gradually ... demoted [plaintiff] and withdrew [her] work functions.” (¶47). Additionally, plaintiff was moved to a different office that did not have a working air conditioner, her office chair was damaged, she was refused internet access, she was not allowed to use assigned parking, and she had to mop the floor in her office because it was dirty and unhealthy. (¶ 47). During this same time period, when plaintiff encountered Hernández in hallways, stairways and other general office building spaces, he looked at her “with menacing and threatening demeanors [sic].” (¶ 48). Plaintiff states that this demeanor caused her “severe paranoia, nervousness, fear and extreme discomfort.” Id. (¶ 48). Plaintiff also states that she was asked to leave the agency, but does not allege that she was in fact discharged or constructively discharged; rather, she is still employed at the PRFD. (¶¶ 11, 49). While plaintiff alleges that she was demoted, she does not indicate the position to which she was demoted and thus currently occupies. Moreover, the complaint fails to allege which work functions in particular she is now not allowed to perform and whether her salary has been reduced.

II. Standard of Review

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must limit its focus to the allegations of the complaint. Litton Indus., Inc. v. Colón, 587 F.2d 70, 74 (1st Cir.1978). The inquiry is whether the allegations, accepted as true, show “a plausible entitlement” to the relief requested. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To avoid dismissal, a third-party plaintiff must “set forth factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable legal theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988).

Determining whether a complaint makes out a plausible entitlement to relief involves two steps. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 11-12 (1st Cir.2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). First, the court should separate a complaint’s factual allegations from any “legal conclusions couched as fact or threadbare recitals of the elements of a cause of action,” and disregard the latter. Id. at 12 (quoting Iqbal, 129 S.Ct. at 1949-50) (internal quotations omitted). The court then treats non-conclusory factual allegations as true, “even if seemingly incredible.” Id. Second, the court must determine if the factual content, taken as a whole, admits of “the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 129 S.Ct. at 1949). Only if it does will the complaint survive a motion to dismiss under Rule 12(b)(6). See id.

III. Analysis

Plaintiff brings her claims of sexual harassment and retaliation under a variety of federal and local statutes. The Commonwealth, the PRFD, and Rodriguez move to dismiss all of plaintiffs claims against them, arguing that some are barred by Eleventh Amendment sovereign immunity and that others should be dismissed for failure to state a claim. (Docket No. 23). Hernández moves separately to dismiss plaintiffs constitutional claims, as well as all damages claims against him in his official capacity, based on the same arguments that his co-defendants assert. (Docket No. 24). Each of these arguments will be addressed in turn.

A. Unnamed Defendants

As a preliminary matter, plaintiffs complaint includes five generally named defendants who allegedly aided and abetted in committing the civil rights violations for which she sues. Said defendants have not been addressed in either a motion to amend the complaint or a request for additional time to serve those defendants. Further, plaintiff has failed to demonstrate good cause for her failure to name and serve the unnamed defendants within the 120-day time period specified by Federal Rule of Civil Procedure 4(m). Therefore, it is hereby recommended that the court dismiss all five unnamed defendants in the amended complaint. See Mulero Abreu v. Oquendo Rivera, 729 F.Supp.2d 498, 511 (D.P.R.2010).

B. Eleventh Amendment Immunity & Individual Liability

Plaintiffs complaint does not specify which of her many claims are asserted against which of the four named defendants; thus, it will be read to assert all claims against all defendants. However, several of plaintiffs claims against the Commonwealth, the PRFD and the individual defendants are barred by the doctrine of Eleventh Amendment sovereign immunity, while other claims are brought under laws that do not allow individuals to be sued. Therefore, before proceeding to the merits of plaintiffs claims, it must be clarified which of those claims may be maintained against which of the defendants.

1. Eleventh Amendment Sovereign Immunity

Co-defendant Hernández moves to dismiss all of plaintiffs claims for money damages against him in his official capacity as barred by the Eleventh Amendment to the United States Constitution. (Docket No. 24, p. 12). The Commonwealth, the PRFD, and Rodriguez in her official capacity move to dismiss plaintiffs First and Fourteenth Amendment claims on the same grounds. (Docket No. 23 at 7). The Eleventh Amendment provides that “[t]he 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. Accordingly, it is well-settled that the Eleventh Amendment bars suits against a state by individuals. See e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Additionally, “a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For a state agency or department to invoke Eleventh Amendment immunity, it must be an arm, or alter ego, of the state. Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 99 (1st Cir.2002). The PRFD is an arm of the state and is thus cloaked with such immunity. Ramirez v. Puerto Rico Fire Svc., 715 F.2d 694, 697 n. 4 (1st Cir.1983). Additionally, claims against state employees in their official capacities are deemed to lie against the state itself, and are thus also protected from suit by the Eleventh Amendment. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Therefore, all of plaintiffs claims against the Commonwealth, the PRFD, and Hernández and Rodriguez in their official capacities will be barred by the Eleventh Amendment unless an exception applies.

Certain sovereign immunity exceptions exist when that protection is waived by the state or “stripped away” by Congress. Metcalf & Eddy, Inc. v. P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 938 (1st Cir.1993). There are four circumstances in which this occurs: (1) when a state consents to be sued in a federal forum; (2) when a state waives “its own immunity by statute or the like”; (3) when Congress abrogates state immunity; and (4) when “other constitutional imperatives ... take precedence over the Eleventh Amendment federal-court bar.” Id. at 938 (citations omitted); see also Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir.2006). Title VII is an example of the third listed exception, whereby Congress has abrogated states’ sovereign immunity to authorize awards of monetary damages against states. See Fitzpatrick v. Bitzer, 427 U.S. 445, 447, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (upholding 1972 amendments to Title VII, which extended damages provisions to individuals suing state governments). Therefore, plaintiffs Title VII claims against the Commonwealth and PRFD present no Eleventh Amendment issues. On the other hand, there is no such exception with respect to plaintiffs constitutional claims. It is well-settled that Congress did not intent to waive states’ sovereign immunity by enacting 42 U.S.C. § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66, 67 n. 6, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)).

Similarly, the court can find no such exception with respect to plaintiffs Puerto Rico law claims. Courts will only find that a state has waived its own Eleventh Amendment immunity by legislative fiat where the same is “stated ‘by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (holding that the statute must “specify the State’s intention to subject itself to suit in federal court” in order to constitute a waiver). Laws 17 and 69 do include the Commonwealth government and its agencies within the definition of “employers” who may be held liable under those laws, see 29 L.P.R.A. §§ 155a(2) and 1322, but they contain no express or implied authorization of suits in federal court. Accordingly, this court has held that the Commonwealth has not waived its sovereign immunity under Laws 17 and 69. See Nieves Garay v. Puerto Rico Police Dep’t, Civil No. 09-1959, 2011 WL 2518801, at *5 (D.P.R. June 23, 2011); Huertas-González v. Univ. of Puerto Rico, 520 F.Supp.2d 304, 315-16 (D.P.R.2007); Padilla Cintrón v. Rosselló González, 247 F.Supp.2d 48, 58-59 (D.P.R. 2003). Additionally, the Commonwealth has not waived its sovereign immunity with respect to Law 115, which does not even include the Commonwealth and its agencies in its definition of employer. See Díaz v. Dep’t of Educ., 823 F.Supp.2d 68, 76-77 (D.P.R.2011); 29 L.P.R.A. § 194. While this court has yet to address the same question as to Law 426, there is nothing in the text of that law indicating the Commonwealth’s consent to be sued under it in federal court. Law 426’s civil liability provision states that an aggrieved plaintiff “may file a civil suit against the public official or employee who acts in contravention of [Law 426’s] provisions.” 1 L.P.R.A. § 606(b). However, it does not authorize suit against the Commonwealth government or the agency itself, either in state or federal court. Therefore, Law 426 should not be read to waive the Commonwealth’s sovereign immunity.

There is one remaining exception to the sovereign immunity doctrine, which exists with respect to claims for prospective injunctive relief against state officers in their official capacity. Ex Parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Pennhurst, 465 U.S. at 102-03, 104 S.Ct. 900. This allows a state official to be sued only to enjoin a continuing violation of federal law. Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Whalen v. Mass. Trial Court, 397 F.3d 19, 29-30 (1st Cir.2005). Plaintiff, after conceding that the Eleventh Amendment bars her § 1983 claims for money damages against the Commonwealth and the PRFD, maintains that she can still bring her claim for “prospective injunctive relief against the state under the case[ ] of Ex Parte Young.” (Docket No. 31, p. 6, ¶ 9). Plaintiffs slightly misapprehends that doctrine. Young and its progeny allow suits against state officials in their official ea-parity, but do not allow the state itself to be sued. See Pennhurst, 465 U.S. at 117-18, 104 S.Ct. 900. Therefore, any claim for injunctive relief under Section 1983 could proceed only against Rodríguez and Hernández in their official capacities. However, because plaintiffs complaint fails to allege any specific, ongoing violation of her constitutional rights, she cannot make out a claim for injunctive relief. To obtain injunctive relief, a plaintiff must show the existence of a real and immediate injury, not an abstract injury or one that is conjectural or hypothetical. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Under this standard, a showing of past injury is insufficient if it is “unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Rather, there must be a “real and immediate threat of repeated injury.” Id. Plaintiff fails to specify that defendants’ alleged violations of her First and Fourteenth Amendment rights have caused continuing adverse effects or will cause repeated injury. Moreover, the paragraphs in plaintiffs complaint referring to injunctive relief merely ask the court to order defendants to stop violating plaintiffs civil rights and to provide her with a “workplace free from hostile environment and free from sex discrimination.” (Docket No. 67, ¶¶ 5-8, 1-3). She does not indicate the specific behavior that she wishes the court to enjoin. Therefore, it is recommended that plaintiffs request for injunctive relief be dismissed, and thus her constitutional claims remain outstanding only as to Rodríguez and Hernández in their individual capacities.

2. Title VII Individual Liability

It is well-settled that individual employees are not liable for acts that violate Title VII. Fantini v. Salem State Coll., 557 F.3d 22, 29-31 (1st Cir.2009) (“Consequently, we find that there is no individual employee liability under Title VII.”) (citing multiple eases from other circuits); see also; Cardona Román v. Univ. of P.R., 799 F.Supp.2d 120, 129 (D.P.R.2011); Rivera-Tirado v. Autoridad de Energía Eléctrica, 663 F.Supp.2d 36, 38 (D.P.R.2009). In her opposition, plaintiff appears to clarify that her Title VII claims are directed only against her employer, the Commonwealth and the PRFD. (Docket No. 31 at 22, ¶47). Therefore, it is recommended that plaintiffs Title VII claims against Hernández and Rodriguez, to the extent that the complaint asserts them, if at all, be dismissed.

3. Individual Liability Under Puerto Rico Laws

By contrast, individual employees can be held liable under Puerto Rico Law 100. See Otero Merced v. Preferred Health Inc., 680 F.Supp.2d 388, 392 (D.P.R.2010) (citing Rosario Toledo v. Distribuidora Kikuet, Inc., 151 D.P.R. 634 (2000) (considering allegations of sexual harassment)); Pacheco Bonilla v. Tooling & Stamping, Inc., 281 F.Supp.2d 336 (D.P.R.2003) (noting that Law 100 liability extends not only to the actual employer or the owner and president of a corporation, but also to any other person responsible for the illegal conduct). Individual employees can also be held liable for sexual harassment under Laws 17 and 69. See Miró Martínez v. Blanco Vélez Store, Inc., 393 F.Supp.2d 108, 114-15 (D.P.R.2005).

Additionally, claims for violations of Laws 115 and 426 may be brought against individual employees. This court has held that Law 115 allows for individual liability against a supervisor who retaliates against an employee. Reyes Guadalupe v. Casas Criollas, 597 F.Supp.2d 255, 260 (D.P.R.2008) (citing Hernández v. Raytheon Serv. Co. P.R., Civ. No. 05-1937(CCC)), 2006 WL 1737167 (D.P.R. Apr. 26, 2006) (unpublished). Law 426 provides that any public employee who alleges a violation of said law “may file a civil suit against the public official or employee who acts in contravention of [Law 426’s] provisions.” 1 L.P.R.A. § 606(b). Therefore, the plain language of Law 426 permits individual liability. In sum, plaintiff can maintain all of her Puerto Rico claims against Hernández and Rodriguez in their personal capacities.

4. Plaintiffs Outstanding Claims

Accordingly at this juncture, plaintiffs First and Fourteenth Amendment constitutional claims remain outstanding only as to Rodríguez and Hernández in their personal capacities. Plaintiffs Title VII claim remains only as against the Commonwealth and the PRFD. Plaintiffs Puerto Rico law claims, under Laws 17, 69, 100, 115, and 426, may proceed only against the individual defendants in their personal capacities.

C. Sexual Harassment Under Title VII & the 14th Amendment

1. Sexual Harassment as an Equal Protection Violation

A plaintiff asserting a violation of the Equal Protection Clause of the Fourteenth Amendment must allege that she has experienced intentional discrimination based on her membership in a protected class, see Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), or that she as an individual has been intentionally treated differently from others similarly situated and that there is no rational basis for the treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Of course, she must also allege that the discriminatory or differential treatment was perpetrated by a state actor. Id.

Defendants move to dismiss plaintiffs equal protection claim, arguing that she has not alleged that she was the subject of an impermissible classification nor that she was treated differently from any other similarly situated employee. Plaintiffs response in opposition is that she was treated unequally based on her sex. (Docket No. 31 at 14-15, 1? 29). Although plaintiff did not manage to clearly delineate this in her opposition or in her complaint, her claim that Hernandez sexually harassed her constitutes a sex discrimination claim under the Equal Protection clause, just as it does under Title VII. Sexual harassment is a form of discrimination based on sex. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Lipsett v. Univ. of P.R., 864 F.2d 881, 888 (1st Cir.1988). Moreover, sex-based discrimination is a violation of equal protection if it “does not ‘serve important go