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RIVERA v. PUERTO RICAN HOME ATTENDANTS SERVS.

June 24, 1996

DIANA RIVERA, et ano., Plaintiffs, against PUERTO RICAN HOME ATTENDANTS SERVICES, INC., et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge

 Defendants Puerto Rican Home Attendants Services, Inc. ("PRHAS"), Michael Nunez, and Juan Hernandez have moved to dismiss portions of plaintiffs' First Amended Complaint. They argue that: (1) certain alleged incidents relied upon as part of plaintiffs' sexual harassment and retaliation claims are time barred and/or fail to satisfy the exhaustion requirements of 42 U.S.C. § 2000e-5(e) and (f), and (2) the assault and battery counts are time barred and fail to state a claim upon which relief can be granted. *fn1"

 Facts

 Between April and May of 1995, *fn2" plaintiffs Diana Rivera and Iris Fernandez separately filed charges with the EEOC alleging sexual harassment and retaliation by Michael Nunez, the executive director and program director of PRHAS, and Juan Hernandez, the assistant director of operations. After obtaining right to sue letters, the plaintiffs jointly filed a complaint in this Court on October 4, 1995, reiterating and expanding upon the allegations in the plaintiffs' EEOC charges. The allegations span a period beginning in 1987, when each plaintiff first was employed by PRHAS, and extend approximately to the time of the district court complaint. (Am Cpt PP 11-12, 14, 24)

 Defendants' exhaustion argument turns on whether certain allegations in the complaint exceeded the scope of the EEOC charges. It therefore is important to examine the plaintiffs' EEOC charges in some detail.

 Ms. Rivera's EEOC Charge

 In an affidavit filed with her EEOC charge, Ms. Rivera alleged the following:

 Ms. Rivera commenced work at PRHAS as a clerk working under Mr. Hernandez' supervision for approximately a year. She then became Mr. Hernandez' secretary, a position she held from approximately October 1988 until October 1994, when she was promoted to her present position as personnel specialist. As a personnel specialist, her unit supervisor has been Mr. Hernandez, along with Frances Foye, both of whom report to Mr. Nunez, the executive director of the agency. (Pl Mem. Ex A ("Rivera Charge") PP 1-3) *fn3"

 During all the time Ms. Rivera was a secretary to Mr. Hernandez, he made inappropriate sexual comments to her, which she "tried to ignore" in the hope that he would stop. (Id. P 2) After she became a personnel specialist, he "kept a constant vigilance" of her activities and was always "looking at" and "watching" her, a practice that "continues to the present time." (Id.)

 Matters escalated on March 13, 1995, when Mr. Hernandez, during a conference that he had invited Ms. Rivera to attend, propositioned her to sleep in his room. She refused. (Id.) This action caused her such upset that she felt ill and informed Mr. Hernandez that she probably would not be at the office the next day. Three days later, Mr. Hernandez wrote her a memorandum disallowing her sick day, docking her pay, and declaring that she showed a lack of responsibility and dedication toward her job and fellow workers. He sent a copy of the memorandum to the executive director, Mr. Nunez. Ms. Rivera described these actions as "all in retaliation" for her refusal of his proposition. (Id.).

 On March 20, 1995, Ms. Rivera wrote a complaint about Mr. Hernandez, describing his proposition and other treatment, and sent copies to Mr. Nunez and others. (Id.) Thereafter, Ms. Foye, with the approval of Mr. Hernandez, wrote Ms. Rivera a memorandum chastising her for taking extra time at lunch and informed her that her that she would be "docked in pay for this." (Id.)

 Ms. Rivera alleged further that "this kind of harassment has continued in all respects to the present time" (id.) and that she has been the object of "retaliation from all management" because of her complaint. (Id. P 5) Hardly anyone in the office speaks to her, she said, because she has been isolated. (Id. P 2) She stated that "at the present time, there is no amelioration of the situation," and that the circumstances had become intolerable. She began suffering specific physical effects such as weight and hair loss. She felt she had "nowhere to turn," because she needed the employment to support her young son. (Id.)

 Ms. Fernandez' EEOC Charge

 In an affidavit attached to her EEOC charge, Ms. Fernandez described improper advances or comments allegedly made by Messrs. Nunez and Hernandez. She alleged that both retaliated against her and claimed that she was conspiring with Ms. Rivera in making complaints against them. (Nunez Aff. Ex. B) More specifically, her allegations included the following:

 As the assistant director of administration, a position Ms. Hernandez has held for more than five years, her immediate supervisor is Mr. Nunez. (Id. P 1) Previously, she worked as an acting assistant director for two ...


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