Case 3:16-cv-01585-ADC-SCC Document 126 Filed 08/27/17 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

INES MARIA JELU IRAVEDRA Civil No. 16-1585 ADC

Plaintiff
v.
MUNICIPALITY OF GUAYNABO AND
HECTOR ONEILL ROSA
Defendants

MEMORANDUM OF LAW IN SUPPORT OF

CO-DEFENDANT ONEILL-ROSAS MOTION FOR SUMMARY JUDGMENT

[Space Intentionally Left in Blank]

Case 3:16-cv-01585-ADC-SCC Document 126 Filed 08/27/17 Page 2 of 25

TABLE OF CONTENTS

Page

I. Introduction. 1

II. Background.. 4

III. Applicable Summary Judgment Standard 7

IV. No Genuine Issue of Material Fact. 9

V. Claims under Article 1802 of the Puerto Rico Civil Code are Time-
Barred.. 12

VI. No Evidence of Intentional Emotional Distress.. 15

VII. Conclusion... 19

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TABLE OF AUTHORITIES

Page(s)
Cases

Air Sunshine, Inc. v. Carl, No. 09-2019 (MEL),

2010 WL 4861457, at *2 n.1 (D.P.R. Nov. 30, 2010) ... 2

Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247248 (1986) .. 8

Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3rd Cir. 1990) . 4

Atkins vs. City of Chicago, 631 F. 3d 823, 831-32 (7th Cir. 2011) . 2

Benito-Hernando v. Gavilanes, 849 F. Supp. 136, 140 (D.P.R. 1994) .. 13

Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007) 13

Branham v. Celadon Trucking Servs., Inc.,

744 N.E.2d 514, 523 (Ind. Ct. App. 2001) . 18

Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428 (1965) 13

Cabn Hernndez v. Philip Morris USA, Inc.,

486 F.3d 1, 8 (1st Cir. 2007) ... 14

Camacho v. United States, No. Civ. 04-1816 (HL),

2005 WL 2644959, at *7 (D.P.R. May 24, 2005) . 16

Colon-Prieto v. Geigel, 115 D.P.R. 232, 243 (1984) . 13

Dragon v. Rhode Island Dep't of Mental Health, Retardation and Hospitals,

936 F.2d 32, 35 (1st Cir. 1991) . 18

Fragoso v. Lopez, 991 F.2d 878, 886 (1st Cir.1993) .. 14

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) . 8

Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011) .. 8

Iverson v. City of Bos., 452 F.3d 94, 98 (1st Cir. 2006) . 8

Jakobiec v. Merrill Lynch Life Ins. Co.,

711 F.3d 217, 226 (1st Cir. 2013) .. 13

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Kearney v. Town of Wareham, 316 F.3d 18, 22 (1st Cir. 2002) . 13

Lee v. Langley, 121 P.3d 33, 38 n.3 (Utah Ct. App. 2005) ..... 17

Leon-Nogueras v. University of Puerto Rico,

964 F. Supp. 585, 588 (D.P.R. 1997) . 15

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U. S. 574, 586587 (1986) .. 8

Mndez Internet Mgmt. Servs., Inc. v. Banco Santander de P.R.,

No. 08-2140 (JAF), 2009 WL 1392189, at *5 (D.P.R. May 15, 2009) . 2

McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) ... []

Nieves-Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013) .. 8

Order of R.R. Telegraphers v. Ry. Express Agency, Inc.,

321 U.S. 342, 348-49 (1944) ... 14

Pina v. Children's Place, 740 F.3d 785 (1st. Cir. 2014) . 14

Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1264 (Ind. Ct. App. 2002) .. 17

Ricci v. DeStefano, 557 U.S. 557, 586 (2009) 2

Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir.1990) .. 13

Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001) ... 8

Santiago-Ramirez v. Sec'y of Dep't of Defense,

62 F.3d 445, 448 (1st Cir.1995) .. 16

Scott v. Harris, 550 U.S. 372, 380-81 (2007) 2, 9, 12

Sifre v. Department of Health, 38 F. Supp. 2d. 91, 96 (D.P.R. 1999) 15

Soto-Lebrn v. Federal Express Corp., 538 F.3d 45 (1st Cir. 2008) .. 14

Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London,

637 F.3d 53, 56 (1st Cir. 2011) .. 8

United States v. Kubrick, 444 U.S. 111, 117 (1979) .. 12

Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980) 13

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Statutes

42 U.S.C.A. 2000e et seq.

(Title VI of the Civil Rights Act of 1964) .. 1

P.R. Laws Ann. tit. 31, 5141

(Article 1802 of the Puerto Rico Civil Code) . 1, 13

P.R. Laws Ann. tit. 31, 5298(2)

(Article 1868 of the Puerto Rico Civil Code) 13

P.R. Laws Ann. tit. 31, 5303

(Article 1873 of the Puerto Rico Civil Code) ..... 15

Rules

Fed. R. Civ. P. 12(B)(6) . 1

Fed. R. Civ. P. 56 2, 4

Treaties

Restatement (Second) of Torts 46, 252, 892 (1979) .. 14, 17, 18

W. Page Keeton et al., Prosser and Keeton on The Law of Torts

12, at 64 (5th ed. 1984) ... 17

W. Prosser, Handbook of the Law of Torts 12 (4th ed. 1971) 17

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I. Introduction

The legal protection of victims of sexual harassment is a very serious matter, inasmuch

such right emerges from a long historical struggle by women for equality and dignity in the

workplace. It is precisely considering this history that courts should be vigilant against

fabricated and/or false claims, which ultimately serve only to trivialize and undermine the

seriousness of these type of cases.

Given the inapplicability of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.

2000e et seq., and its local counterparts, Plaintiff Ines Maria Jel-Iravedras (Plaintiff or

Jel-Iravedra) causes of action against co-defendant Hctor ONeill-Rosa (ONeill-Rosa)

all sound in tort and are exclusively premised on Article 1802 of the Puerto Rico Civil Code.1

Plaintiff seeks damages against ONeill-Rosa on the basis that he allegedly subjected her to

the intentional torts of assault, battery, breach of the peace, stalking, threats, defamation, and

undue intrusions into her private life, in violation of her constitutional right to privacy and

dignity, causing her to suffer severe mental anguish and emotional distress. See Joint Initial

Scheduling Memorandum (Docket No. 42) at pg. 26. Furthermore, Plaintiff alleges that these

alleged outrageous acts collectively configure the tort of intentional infliction of emotional

distress. Id.

Despite Plaintiffs allegations, ONeill-Rosa is entitled to summary judgment pursuant

to Fed. R. Civ. P. 56. The evidentiary record demonstrates that no genuine issue of material

fact exists precluding judgment as a matter of law. In fact, as will be shown below, the

evidentiary record unequivocally reveals that this case involves both a fabricated and false

1
P.R. Laws Ann. tit. 31, 5141

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claim of sexual harassment against ONeill-Rosa, who is not even an employee of the

Municipality of Guaynabo (the Municipality). Whats more, Plaintiffs version of the facts,

supporting her causes of action sounding in tort, is so utterly discredited by the evidentiary

record, and is so blatantly inconsistent, that no reasonable jury could believe her. Some of her

allegations should be deemed incredible as a matter of law, because they can only be true if

we are to ignore the laws of nature.

While Plaintiff is certainly entitled to rely on self-serving allegations to preclude

summary judgment, it is also likewise true that our Supreme Court has held that (w)hen

opposing parties tell two different stories, one of which is blatantly contradicted by the record,

so that no reasonable jury could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment. See Scott v. Harris, 550 U.S. 372, 380

81 (2007). Under such circumstances, this Court must view the facts for purposes of summary

judgment in the light depicted by the evidentiary record, and not as described by the non-

movant plaintiff. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott, 550 U.S. at

38081).2

Because Plaintiff plagues the evidentiary record with incredulous assertions, her

version of the story should be disregarded, thus warranting judgment as a matter of law.

Examples of allegations made by Plaintiff blatantly contradicted by the evidentiary record

include that ONeill-Rosa:

2
An analogous approach is required when evaluating a motion to dismiss pursuant to Fed. R. Civ. P. 12(B)(6). See
Air Sunshine, Inc. v. Carl, No. 09-2019 (MEL), 2010 WL 4861457, at *2 n.1 (D.P.R. Nov. 30, 2010) (disregarding
contradictory allegations because courts look to only well-pled allegations that are plausible on their face), revd
in part on other grounds, 663 F.3d 27 (1st Cir. 2011); Mndez Internet Mgmt. Servs., Inc. v. Banco Santander de
P.R., No. 08-2140 (JAF), 2009 WL 1392189, at *5 (D.P.R. May 15, 2009) (dismissing claims based on allegations
that were inherently implausible), affd, 621 F.3d 10 (1st Cir. 2010); see also Atkins v. City of Chicago, 631 F.3d
823, 83132 (7th Cir. 2011) (Twombly and Iqbal do not require a court to assume the truth of actual allegations that
are fantastic, or contradicted in the complaint itself), cert. denied, 132 S. Ct. 1569 (2012).

2
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1. submitted her to approximately from 72 to 180 separate incidents of unwanted

sexual advances uninterruptedly during a three-year period commencing on July

17, 2012 up to, and including, July 2015 (the Relevant Period), including

allegedly visiting at her office uninterruptedly anywhere from two (2), three

(3), to five (5) times a month for such purposes, when she cannot even

specifically identify a single person that witnessed such unwanted conduct

(see Statement of Uncontested Material Facts in Support of ONeill-Rosas

Motion for Summary Judgement filed herewith, the SUMF 19, 33-34); and

2. called or texted her, almost on a weekly basis, uninterruptedly during the

Relevant Period, when ONeill-Rosa has produced cell phone records that do

not evidence any such pattern of calls or texts, but rather establish that: (a)

Plaintiff often initiated such calls/texts and/or replied to his calls/texts (by way

of example, despite not having received any calls or texts from ONeill-Rosa

during the month of December 2012, she sent him a text on December 25,

2012, to wit, Christmas Day)3 and (b) there were no calls or texts from ONeill

Rosa for the eight continuous months of July 2013 to February 2014, then July,

August, September and December 2014, with no calls or texts whatsoever after

November 15, 2014 (see SUMF 28, 35-43).

In point of fact, the evidentiary record reveals that Plaintiffs story, taken as a whole, is in the

realm of obvious implausibility.

But even if this Court feels obliged to defer to Plaintiffs readily evident fiction for

purposes of summary judgment, ONeill-Rosa is still nevertheless entitled to a judgment as a

3
Notably, this Christmas day call comes after ONeill Rosa had allegedly subjected her to unwanted sexual conduct
on approximately 18 to 30 separate occasions.

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matter of law. Even under Plaintiffs version of the facts: (a) each of the alleged causes of

actions against him, whether premised on physical or non-physical acts, is time-barred and/or

(b) the alleged cause of action based on intentional infliction of emotional distress, to the

extent not time barred, does not meet the required doctrinal standards.

II. Background;
(An innocent tryst ends, when she falls for another, but married man)

While ONeill-Rosas request pursuant to Fed. R. Civ. P. 56 does not require this Court

to adjudicate the veracity of the following facts- given that it need only conclude that

Plaintiffs version of the facts sounding in tort is so blatantly contradicted by the record that no

reasonable jury could believe her4 , it is nevertheless important to provide a context to the

events that give rise to Plaintiffs complaint in the case sub judice (the Complaint). See

Docket No. 1. After all, fundamental notions of fairness require that ONeill-Rosa be granted,

for purposes of the record, an opportunity to set forth his full version of the facts. A play

cannot be understood on the basis of some of its scenes but only on its entire performance.

Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3rd Cir. 1990).

ONeill-Rosas version of the facts is consistent with the evidentiary record,

particularly his cell phone records. See SUMF 64-65. He readily concedes that he was

engaged in a sporadic romantic tryst with Plaintiff, which dates to a first introduction that

occurred in late of the year 2010, or the commencement of year 2011. See SUMF 62, 63 and

64. He further acknowledges that he proceeded to retreat from further pursuit of this

4
ONeill-Rosa also has an affirmative defense further discussed below premised on the alleged acts being time-
barred, which does not even require that this Court reach a determination on the patently obvious perjurious story
told by Plaintiff.

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relationship when he learned that Plaintiff had become involved with the Director of Human

Resources for the Municipality, Mr. Eduardo R. Fara-Rodrguez (Fara). See SUMF 62.

Plaintiff, on the other hand, tells a story that is simply nothing less than mindboggling

considering the evidentiary record. In fact, the evidentiary record reveals a completely different

story. ONeill-Rosas cell phone records so blatantly contradict her allegations, that there is

only one rational conclusion a fact finder could reach in the case, to wit, that the tortious

conduct alleged by Plaintiff could not have occurred.

Central to Plaintiffs story is the allegation that ONeill-Rosa called or texted her,

almost on a weekly basis, uninterruptedly during the Relevant Period. But the evidentiary

record totally disproves these allegations in a manner that renders any other evidence

purporting to contradict such records merely as creating metaphysical doubt as to the facts,

long recognized as insufficient to avoid summary judgment. See SUMF 28, 35-43.

While it is hard to precise Plaintiffs motivations for bringing these serious, obviously

false allegations against ONeill-Rosa, it is incontrovertible that it is only after she is notified

of a poor job evaluation in July 2015, that for the first time she complains in writing about the

72 to 180 alleged separate incidents of unwanted sexual advances during a three-year period.

See SUMF 56. In fact, as if that werent enough, it is her sentimental partner at the time Mr.

Fara- yes, the Director of Human Resources for the Municipality who urges her to file a

written complaint. Said urging by Fara comes almost a full year after Plaintiff first had

allegedly told Mr. Fara about an alleged unwanted conduct. See SUMF 48, 49, 50 and 57. It

is also only after Mr. Fara tells her he could no longer do anything that she files the written

complaint. See SUMF 57.

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The evidentiary record shows, for example, that despite allegedly being harassed by

ONeill-Rosa on approximately 72 to 180 separate occasions, she became sentimentally

involved with Mr. Fara, who is never told a word about any physical contact or even the

alleged events of sexual assaults. See SUMF 48 and 49. This sentimental partner, who also

happens to be an attorney, learns for the first time about these 72 to 180 separate incidents only

after the Plaintiff files a formal complaint with the Municipality on July 13, 2015, of which he

claims he did not know anything about. Id.

Mr. Fara also happens to be the person who personally interviewed Plaintiff for her

Attorney II position with the Municipality on or about June 2012, after she walked through the

Municipalitys door and lands at his office allegedly not knowing anyone and not being

recommended by anyone. SUMF 17. This is so even though the Municipalitys Mayor at that

time happens to be the father of ONeill-Rosa- who Plaintiff alleges also harassed her at her

previous job, only weeks before she commences working for the Municipality, and which

alleged harassment is not unveiled until the discovery process in the present case. See SUMF

14.

Soon thereafter, Mr. Fara and Plaintiff became amorously involved, sharing breakfast

at her office, often lunches and sharing with their respective children outside of work. See

SUMF 50 and 51. Although when the relationship began he was married, Plaintiff was not

shy about sharing with co-workers and staff the stressful situation that being involved with a

married man entails. See SUMF 51. She talked openly about her stress, about wanting to get

married, about wanting to have another child with him; often she even confided on the gifts for

special occasions she would like to receive from him. Id.

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Mr. Fara also played a significant role in Plaintiffs promotion to the position of

Attorney III on December 10, 2014. So much so, that he even requested that the Municipalitys

Deputy Mayor, Attorney Aurialis Lozada, and ONeill-Rosa assist Plaintiff with respect to this

position. See SUMF 51(d) and 54. But Plaintiff, who arguably did not meet the

qualifications for appointment to the position of Attorney III, soon thereafter begins to struggle

with her employment duties, performing below the level expected of her. And as noted above,

it is only after receiving notice of a poor job evaluation, that she files a written sexual

harassment claim against ONeill-Rosa with the Municipality and, subsequently, with the

Equal Employment Opportunity Commission (the EEOC). See SUMF 53, 56-58.

Quite frankly, the lack of any sense of integrity that has plagued Plaintiffs actions

during this process, including often trying to litigate matters in the public arena, knowing full

well of the ramifications to the reputation of ONeill-Rosa and the harm to his children is

unsettling. Plaintiffs attempt to prevaricate when necessary, as means to avoid acknowledging

her perjurious actions, is demonstrative.5 The extent of such evasion is furthered creeped into

case management, as evidence by a recent attempt by Plaintiff designed to hinder and delay

ONeill-Rosas receipt of deposition transcripts. See Docket No. 113, 119 and 123.

III. Applicable Summary Judgment Standard

Summary judgment is appropriate where the record, viewed in the light most favorable

to the nonmoving party, discloses no genuine issue of material fact and demonstrates that

the moving party is entitled to a judgment as a matter of law. Iverson v. City of Bos., 452

5
In her deposition, Plaintiff uses the term recall to qualify her responses a staggering of approximately 98 times
during the first day of her deposition, and 92 times during the second and final day of her deposition, which
amounts, respectively, exclude answers to questions that asked for her recollection.

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F.3d 94, 98 (1st Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). The nonmovant may defeat a

summary judgment motion by demonstrating, through submissions of evidentiary quality, that

a trial worthy issue persists. Id. (emphasis ours).

At the summary judgment stage, facts must be viewed in the light most favorable to

the nonmoving party, but only if there is a genuine dispute as to those facts. Fed. Rule Civ.

Proc. 56(c). This standard is favorable to the nonmoving party, but it does not give him a free

pass to trial. Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011). To be genuine, a factual

dispute must be built on a solid foundation -- a foundation constructed from materials of

evidentiary quality. [C]onclusory allegations, empty rhetoric, unsupported speculation, or

evidence which, in the aggregate, is less than significantly probative will not suffice to ward

off a properly supported summary judgment motion. See Nieves-Romero v. United States, 715

F.3d 375, 378 (1st Cir. 2013). See Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of

London, 637 F.3d 53, 56 (1st Cir. 2011); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.

1990); and Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001).

The Supreme Court of the United States has further emphasized that [w]hen the

moving party has carried its burden under Rule 56(c), its opponent must do more than simply

show that there is some metaphysical doubt as to the material facts . Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574,

586587 (1986) (footnote omitted). [T]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact. Anderson v.

Liberty Lobby, Inc., 477 U. S. 242, 247248 (1986). Furthermore, as noted above, our Supreme

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Court has further held that (w)hen opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

See Scott, 550 U.S. at 38081.

Accordingly, as will be shown below, this Court need not suspend its judgment

concerning the implausibility of the Plaintiffs story, but rather is required to view the facts in

the light depicted by the evidentiary record:

IV. No Genuine Issue of Material Fact

Plaintiffs version is so utterly discredited by the evidentiary record, and is so blatantly

inconsistent, that no reasonable jury could believe her story. Specifically, it is the sheer alleged

number of unwanted sexual advances that warrants the characterization of Plaintiffs claims as

incredible as a matter of law, particularly when viewed against the evidentiary record. As

noted above, not only does Plaintiff allege that ONeill-Rosa subjected her to approximately 72

to 180 separate incidents of unwanted sexual advances, but she also alleges that he also called

or texted her, almost on a weekly basis, uninterruptedly during the Relevant Period.

Considering this preposterous alleged number of incidents, Plaintiffs story is blatantly

inconsistent with each of the following undisputed facts that form part of the evidentiary

record:

1. Despite alleging that ONeill-Rosa called or texted her, almost on a weekly basis,
uninterruptedly during the Relevant Period, his cell phone records do not evidence any such pattern
of calls or texts, and further demonstrating that: (a) Plaintiff often initiated such calls/texts and/or
replied to his calls/texts (by way of example, despite not having received any calls or texts from
ONeill-Rosa. and during the month of December 2012, she sent him a text on December 25, 2012,
to wit, Christmas Day) and (b) there were no calls or texts from ONeill Rosa for the eight
continuous months - from July 2013 to February 2014, nor on July, August, September and
December 2014, with no calls or texts whatsoever after November 15, 2014 (SUMF 28, 35-43);

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2. Despite being allegedly submitted to approximately 72 to 180 separate incidents of

unwanted sexual advances during the Relevant Period, and being told she would be fired if she did
not submit to such advances, Plaintiff is unable to specifically identify even a single person that
witnessed any such acts. To wit, she cant identify a single witness of such unwanted sexual
advances, despite her allegation that ONeill-Rosa: (a) visited her office at the Municipalitys Legal
Division two, three, to five times a month, and that every time he came to her office, the door was
open and (b) also engaged in unwanted sexual conduct outside of the Municipalitys Legal Division
such as: (i) rubbing his genitals against her genitalia or buttocks at the Electoral Committee of the
then Mayor of the Municipality; (ii) throwing himself over to kiss her and fondle her body while
she was performing duties at other offices of the Municipality, and (iii) whenever she was in the
presence of ONeill-Rosa, he would lustfully look at her body and/or make sexual gestures with
his tongue or bit (sic) his lips in a sexual manner (SUMF 19, 33-34);

3. Despite being allegedly submitted to approximately 72 to 180 separate incidents of

unwanted sexual advances during the Relevant Period, and ONeill Rosa visiting her office
anywhere from two, three, to five times a month for such purposes, the following persons, all
who worked within the premises of the Municipalitys Legal Division where Plaintiffs office was
also located during the Relevant Period: (1) only witnessed ONeill-Rosa at the Municipalitys
Legal Division no more than 2 to 3 times during the Relevant Period; (2) never witnessed ONeill-
Rosa at Plaintiffs office; and (3) never witnessed any harassment of Plaintiff by ONeill Rosa:

a. Attorney, now judge of the Commonwealths Superior Court, Hctor Hoyos-

Torres, who worked as Director of the Municipalitys Legal Division from July
2012 until January 2013 when he was sworn in as Superior Court Judge of the
Commonwealth of Puerto Rico (SUMF 34(a));

b. Attorney Denise Rodrguez-Flores, who started working as Director of the

Municipalitys Legal Division on February 2013 and was Plaintiffs supervisor
from said date through May 2015 (SUMF 34(b));

c. Attorney Ana Quintero, who worked with the Municipality as Director of the
Legal Division from June 1, 2015 through November 2016 (SUMF 34(c));

d. Attorney Lillian Roig-Flores, who worked at the Municipalitys Legal Division

from March through at least April 2017, and had an office that was either in front
of Plaintiffs office or next to it- until December 2014 (SUMF 34(d));

e. Attorney Terilyn Sastre-Fuentes, who worked at the Municipalitys Legal Division

from August 2009 through at least April 2017 (SUMF 35(e));

f. Attorney Nicole Martnez-Martnez, who worked at the Municipalitys Legal

Division from August 2014 through at least May 2017 (SUMF 34(f));

g. Attorney Jaime Torrns-Banuchi, who worked at the Municipalitys Legal

Division from 2003 through at least May 2017 (SUMF 34(g));

h. Attorney Franky Amador, who started working at the Municipality on November

2009, first as Deputy Commissioner of the Municipal Police and then at the
Municipalitys Legal Division, and had an office in the Municipalitys Legal

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Division with a direct line of sight to that of Plaintiff for approximately her first
20 months working at the Municipality (SUMF 43(h));

i. Ms. Mildred Reyes-Torres, a secretary at the Municipalitys Legal Division since

2012 through at least April 2017, and who worked directly with Plaintiff and
Attorney Lilian Roig (SUMF 34(i));

j. Ms. Sonia Monge-Berros, secretary of the Municipalitys Legal Division Director

since at least the time Plaintiff began to work there up to at least April 2017
(SUMF 34(j)); and

k. Ms. Lucina Baez-Huertas, who has worked as a secretary in the Municipalitys

Legal Division since 2009 up to at least April 2017 (SUMF 34(k)).

4. Although Plaintiff: (1) had allegedly lost her self-esteem, and became depressed
and scared by October/November 2012, (2) was allegedly subjected by ONeill-Rosa
uninterruptedly to sexual advances, on average, two to five times a month; (3) was allegedly
visited at her office by ONeill-Rosa uninterruptedly two, three, to five times a month; (4)
allegedly received from ONeill-Rosa uninterruptedly calls or texts on weekly basis, which calls
were at night and were waking [her] up, she nevertheless alleges that her work performance
at the Municipality was excellent up and until she was promoted to the position of Attorney III
(SUMF 47);

5. Although Plaintiff: (1) had allegedly lost her self-esteem, and became depressed
and scared by October/November 2012, (2) was allegedly subjected by ONeill-Rosa
uninterruptedly to sexual advances, on average, two to five times a month; (3) was allegedly
visited at her office by ONeill-Rosa uninterruptedly two, three, to five times a month; (4)
allegedly received from ONeill-Rosa uninterruptedly calls or texts on weekly basis, which calls
were at night and were waking [her] up, (5) her work performance at the Municipality was
excellent up and until she was promoted to the position of Attorney III; and (6) was a single
mother, she found the time and energy to become involved in a sentimental relationship with Mr.
Fara (SUMF 21-29 and 50-51);

6. Despite having become involved in sentimental relationship with Mr. Fara that
commenced in 2012 and continued until at least July 2015, sharing breakfast with him at her
office, often lunches and sharing with their respective children outside of work, and him being an
attorney and head of the Municipalitys Human Resources Department, she never informed him
that she was being subjected, uninterruptedly, by ONeill-Rosa to unwanted sexual advances, on
average, two to five times a month, including visiting at her office anywhere from two, three,
to five times a month for such purpose (SUMF 48 and 49);

7. Despite having allegedly rejected unwanted sexual advances by ONeill-Rosa on

approximately more than 60 to 150 occasions, him having allegedly told her that her continued
employment was conditioned on satisfying his sexual desires and having recently allegedly
informed her supervisors that she feared that ONeill-Rosa wanted was sexual favors from her, and
thus she was afraid to meet with him: (a) she was promoted to Attorney III on December 10, 2014,
with a salary of $5,100 and (b) had never been disciplined by her employer, the Municipality, prior
to her promotion to Attorney III (SUMF 53);

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8. Despite the allegation of 72 to 180 separate incidents of unwanted sexual advances,

including sexual assault, during the Relevant Period, Plaintiff never filed a claim with the police,
the WAO or any other legal authority against ONeill-Rosa (SUMF 44);

9. Similarly, despite allegedly receiving up to approximately 72 to 180 unwelcomed

calls from ONeill-Rosa during the Relevant Period, Plaintiff did not change her cell phone number,
did not seek to block calls from ONeill-Rosa until sometime in the year 2015, nor did she ever file
a claim with the police, the WAO or any other legal authority against ONeill-Rosa (SUMF 45).

The evidentiary record, taken as a whole, undeniably disproves Plaintiffs story.

Furthermore, ONeill-Rosas cell phone record is the type of evidence that speak[s]

for itself. Scott, 550 U.S. at 378. Like the videotape in Scott, the cell phone records in this

case convey an obvious, neutral, unambiguous, and clear meaning that a court on summary

judgment could determine for itself. The cell phone records are capable of only one rational

understanding: there is only one rational conclusion a fact finder could reach in the case, to wit,

the tortious conduct alleged by Plaintiff did not occur.

V. Claims under Article 1802 of the Puerto Rico Civil Code are Time-Barred

A statute of limitations creates a time limit for suing in a civil case, based on the date

when the claim accrued (as when the injury occurred or was discovered). See Blacks Law

Dictionary 1546 (10th ed. 2014). The statutes purpose is to require diligent prosecution of

known claims for the sake of fairness, finality, and efficiency. Id. Statutes of limitations

protect defendants and the courts from having to deal with cases in which the search for truth

may be seriously impaired by the loss of evidence, whether by death or disappearance of

witnesses, fading memories, disappearance of documents, or otherwise. United States v.

Kubrick, 444 U.S. 111, 117 (1979). As noted by our Supreme Court, the statute of limitations

recognizes that after a certain period of time it is unfair to require the defendant to attempt to

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piece together his defense to an old claim. Walker v. Armco Steel Corp., 446 U.S. 740, 751

(1980); see also, Rodriguez Narvaez v. Nazario, 895 F.2d 38, 42 (1st Cir.1990).

The source of tort liability in Puerto Rico is statutory, not common law. See Benito-

Hernando v. Gavilanes, 849 F. Supp. 136, 140 (D.P.R. 1994) (citing Valle v. Am. Intl Ins.

Co., 108 D.P.R. 692, 8 P.R. Offic. Trans. 735, 73638 (1979)). Thus, Plaintiffs must bring all

claims sounding in tortincluding all claims alleging intentional, negligent, or grossly

negligent conductunder Article 1802 of the Puerto Rico Civil Code, Puerto Ricos basic tort

statute. Id.

Tort claims under Article 1802 of the Puerto Rico Civil Code are subject to the one-

year statute of limitations provided by Article 1868(2) of the Civil Code, P.R. Laws Ann. tit.

31, 5298(2). A cause of action under Article 1802 accrues - and the prescriptive period set

by article 1868(2) therefore begins to run - when the injured party knew or should have

known of the injury and of the likely identity of the tortfeasor. See Colon-Prieto v. Geigel,

115 D.P.R. 232, 243 (1984). Asking a defendant to defend a claim after the expiration of such

one-year term, is simply unfair. See Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428 (1965)

(Statutes of limitations are primarily designed to assure fairness to defendants.).

Moreover, the summary judgment stage is the put up or shut up moment in

litigation. Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 226 (1st Cir. 2013).

Conjecture cannot take the place of proof in the summary judgment calculus. Bennett v.

Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007); see also Kearney v. Town of Wareham,

316 F.3d 18, 22 (1st Cir. 2002) (Creating a genuine issue of material fact requires hard proof

rather than spongy rhetoric.). While it is admittedly not the duty of district courts to weigh the

credibility of the parties testimony at the summary judgment stage, in the rare circumstance

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where the plaintiff relies almost exclusively on his own testimony, much of which is

contradictory and incomplete, it will be impossible for a district court to determine whether . . .

there are any genuine issues of material fact, without making some assessment of the

plaintiff's account. Pina v. Children's Place, 740 F.3d 785 (1st. Cir. 2014) (quoting Jeffreys v.

City of New York, 426 F.3d 549, 554 (2d Cir. 2005)); see also Cabn Hernndez v. Philip

Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007).

A party opposing summary judgment cannot rely on the absence of evidence, but

must point to specific facts that demonstrate the existence of an authentic dispute.

McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (emphasis ours). Inability to

produce specific facts to oppose summary judgment on statute of limitations grounds is

tantamount to reviving claims so old that the evidence has been lost, memories have faded,

and witnesses have disappeared. Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321

U.S. 342, 348-49 (1944).

Here, Plaintiff causes of action against ONeill-Rosa all sound in tort, and all are

time-barred by the one-year statute of limitations provided by Article 1868(2) of the Puerto

Rico Civil Code. This period begins at the time the aggrieved person had knowledge of the

injury. P.R. Laws Ann. tit. 31, 5298. This statutory provision has been interpreted by the

Supreme Court of Puerto Rico to require one to show both notice of the injury and notice

of the person who caused it." Fragoso v. Lopez, 991 F.2d 878, 886 (1st Cir.1993) (quoting

Colon Prieto v. Geigel, 115 P.R. Dec. 232, 247, 1984 WL 270950, 15 Official Translations

313, 330 (1985)). Obviously, since 2012, Plaintiff had knowledge of the alleged injury and

person that caused it.

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Plaintiff fails to allege any specific facts that occurred within the one-year period

prior to filing her Complaint, to wit, from March 30, 2015 to March 31, 2016. The last alleged

physical tortious act occurred during the year 2014, and the last somewhat arguably specific

alleged tortious act occurred coetaneous with her promotion to Attorney III on December of

the year 2014. See SUMF 32.

The evidentiary record irrefutably establishes that there were no calls or texts initiated

by ONeill-Rosa after November 15, 2015. Furthermore, Plaintiff does not allege to any

extrajudicial claim against ONeill-Rosa that would serve to interrupt the prescription period

of the statute of limitations for acts that occurred prior to March 30, 2015.6 See Docket No. 1;

SUMF 56 and 58. Lastly, the case law makes clear that her extrajudicial claims against the

Municipality did not toll the statute of limitations for her tort claim against ONeill-Rosa. See

Sifre v. Department of Health, 38 F. Supp. 2d. 91, 96 (D.P.R. 1999); Leon-Nogueras v.

University of Puerto Rico, 964 F. Supp. 585, 588 (D.P.R. 1997) (pointing out that the

Supreme Court of Puerto Rico has held that the filing of an administrative charge [with the

EEOC or the AU] will not toll the running of the statute of limitations for a tort action, even if

the tort arises from the same event which gave rise to the administrative complaint). Thus,

her claims against ONeill-Rosa, all of which are brought under Article 1802, are time-barred.

VI. No Evidence of Intentional Infliction of Emotional Distress

Even if this Court were to find acceptable Plaintiffs self-serving conclusory

allegations, (empty rhetoric, and the like) regarding the time-period for purposes of the

6
Puerto Rico's tolling principles are contained in Article 1873 of the Puerto Rico Civil Code, which states,
[p]rescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor,
and by any act of acknowledgment of the debt by the debtor. See P.R. Laws Ann. tit. 31, 5303.

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applicable statute of limitations with respect to her cause of action based on intentional

infliction of emotional distress, judgment as a matter of law is in any event warranted because

any such conduct within the relevant time-period does not meet the required doctrinal

standards. Again, it is the sheer number of alleged acts of outrageous conduct, during a period

extending for three years in which Plaintiff takes no affirmative action to definitely prevent

such conduct, that renders Plaintiffs claims not actionable as a matter of law.

Under Puerto Rico law, the elements of a claim for intentional infliction of

emotional distress (IIED) are: (1) that the defendant engaged in extreme and outrageous

conduct; (2) that such conduct was intended to cause the plaintiff severe emotional distress, or

was done with reckless disregard for the plaintiff's emotional state; (3) that the plaintiff

suffered severe emotional distress; and (4) that the severe distress is causally related to the

extreme and outrageous conduct. Santiago-Ramirez v. Sec'y of Dep't of Defense, 62 F.3d 445,

448 (1st Cir.1995); Camacho v. United States, No. Civ. 04-1816 HL, 2005 WL 2644959, at

*7 (D.P.R. May 24, 2005); Restatement (Second) of Torts 46 (1965). Because there is

limited authority in Puerto Rico case law regarding IIED, federal courts often look to the

Restatement (Second) of Torts and the interpretation of IIED claims in other jurisdictions for

guidance. Santiago-Ramirez, 62 F.3d at 448, supra (relying on the Restatement and case law

from other jurisdictions in an IIED case under Puerto Rico law); see also Soto-Lebrn v.

Federal Express Corp., 538 F.3d 45 (1st Cir. 2008).

For purposes of finding liability for IIED, it has not been enough that the defendant

has acted with an intent which is tortious or even criminal, or that he has intended to inflict

emotional distress, or even that his conduct has been characterized by malice, or a degree of

aggravation which would entitle the plaintiff to punitive damages for another tort. Soto-

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Lebrn 538 F.3d at 60. Liability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Id.

While an outrageousness finding is primary, according to the Restatement the victim must

suffer emotional distress so severe that no reasonable man could be expected to endure it.

Restatement (Second) of Torts 46 cmt. J (1965). It has also been said of this tort that there

is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature

which is especially calculated to cause, and does cause, mental distress of a very serious

kind. See W. Prosser, Handbook of the Law of Torts 12 (4th ed. 1971) (emphasis ours).

As one court concisely noted, [i]t is the intent to harm one emotionally that

constitutes the basis for the tort of an intentional infliction of emotional distress. Powdertech,

Inc. v. Joganic, 776 N.E.2d 1251, 1264 (Ind. Ct. App. 2002) (citing Cullison v. Medley, 570

N.E.2d 27, 31 (Ind. 1991)). According to the Restatement (Second) of Torts, the intent

element will be satisfied if the defendant desires to inflict severe emotional distress, and also

where he knows that such distress is certain, or substantially certain, to result from his

conduct. Restatement (Second) of Torts 46 cmt. J (1965). According to Prosser and

Keeton, the intent requirement is only satisfied if the defendant either desiring to cause it

or knowing that it was substantially certain to follow from the conduct inflicts the mental

distress. See W. Page Keeton et al., Prosser and Keeton on The Law of Torts 12, at 64 (5th

ed. 1984).

In light of the intent requirement, consent is a complete defense to all intentional

torts: [n]o intentional tort will lie where the plaintiff consents to otherwise tortious activity.

Lee v. Langley, 121 P.3d 33, 38 n.3 (Utah Ct. App. 2005); see also Restatement (Second) of

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Torts 252 (1979). The law generally recognizes that to one who is willing, no harm is done.

Consent may be manifested by action or inaction and need not be communicated to the

actor. Restatement (Second) of Torts 892 (1979). If words or conduct are reasonably

understood by another to be intended as consent, they constitute apparent consent and are as

effective as consent in fact. Id. More specifically with respect to apparent consent:

Even when the person concerned does not in fact agree to the
conduct of the other, his words or acts or even his inaction may
manifest a consent that will justify the other in acting in reliance
upon them. This is true when the words or acts or silence and inaction,
would be understood by a reasonable person as intended to indicate
consent and they are in fact so understood by the other. . . . On the
other hand, if a reasonable person would not understand from the
words or conduct that consent is given, the other is not justified in
acting upon the assumption that consent is given even though he
honestly so believes; and there is then no apparent consent. Id. at
892, cmt. c (emphasis ours).

In an appropriate case, as is the case here, the question of intent can be decided as a

matter of law. See e.g. Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 523 (Ind.

Ct. App. 2001) (finding that there was no showing of an intent to harm). In this regard, it is

important to underscore that a party cannot create an issue for the trier of fact by relying on

the hope that the jury will not trust the credibility of witnesses.... There must be some

affirmative evidence.... Dragon v. Rhode Island Dep't of Mental Health, Retardation and

Hospitals, 936 F.2d 32, 35 (1st Cir. 1991) (quoting Wright and Miller, Federal Practice and

Procedure: Civil 2d 2527 (1st ed. 1971) (misquoted as 2528 in Dragon)).

Assuming, arguendo, that by March 30, 2015, ONeill Rosa had subjected the

Plaintiff to 66 to 165 unwanted sexual acts, said assumption, coupled with the cell phone

records evidencing multiple calls by her to him, can only support one conclusion as a matter

of law can emerge, to wit, that by March 30, 2015 she had communicated consent to ONeill

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Rosas alleged outrageous conduct. This is particularly true when ONeill Rosa knew that

Plaintiff is an attorney: (a) whose known prior employment was at the Commonwealths

Womens Advocate Office and (b) who allegedly, after feeling harassed by ONeill-Rosa at

her preceding employment, had no difficulty in resigning such position immediately. See

SUMF 4-9, 10, 12-14.

VII. Conclusion

As stated earlier, sexual harassment is a very serious matter, inasmuch such right

emerges from a long historical struggle by women for equality and dignity in the workplace.

Fabricated and/or false claims ultimately serve only to trivialize and undermine the

seriousness of these types of cases. False accusations of sex harassment also deeply affect the

seriousness of a judicial process entrusted with the task of redressing the rights violations and

the pain and humiliation suffered by real victims. False accusations, in a world of cybernetic

media, also harm forever the reputation of a defendant that, as in the present case, additionally

must face the like-father comparison, being the son of a Mayor publicly vilified and accused

of sexual harassment.

The judicial process, fortunately, must address the real facts. As shown above,

Plaintiffs version is so utterly discredited by the evidentiary record and is so blatantly

inconsistent, that no reasonable jury could believe her story. In fact, considering the cell

phone records, many of her central allegations can only be true if we are to ignore the laws of

nature.

Moreover, even if this Court felt obliged, at this stage of the proceedings, to adopt

Plaintiffs version of the facts, her claims against ONeill-Rosa are time-barred. While it is

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hard to precise Plaintiffs motivations for bringing these serious, yet patently obvious false,

allegations against ONeill-Rosa, judgment as a matter of law is warranted in his favor.

A summary judgment in defendants ONeill-Rosas favor should additionally redress

the absence of fairness these frivolous actions bring about and deter the improper manipulation

of such an important right in the workplace.

Dated: August 27, 2017 Respectfully submitted,

San Juan, Puerto Rico

/s/ Celina Romany Siaca

CELINA ROMANY SIACA
USDC-PR 121811
CELINA ROMANY LAW OFFICES
15 Taft Street, Suite 402
San Juan, Puerto Rico 00911
Tels. 787-754-9304; Fax: 787-754-9324
celinaromanylawoffices@gmail.com

CERTIFICATION OF SERVICE

THE UNDERSIGNED HEREBY CERTIFIES that on August 27, 2017, a true and
correct copy of the foregoing was filed with the Clerk of the Court using the CM/ECF system
and served on all those parties receiving notification through the CM/ECF system.

/s/ Celina Romany Siaca

CELINA ROMANY
USDC-PR 121811

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