             United States Court of Appeals
                        For the First Circuit

No. 09-2296

                        VÍCTOR HUGO RÍOS-COLÓN,

                         Plaintiff, Appellant,

                                  v.

PEDRO A. TOLEDO-DÁVILA, IN HIS PERSONAL AND OFFICIAL CAPACITIES;
EDDIE CORDERO-MARTÍNEZ, IN HIS PERSONAL AND OFFICIAL CAPACITIES;
   AND ELIZABETH ACEVEDO-RIVERA, IN HER PERSONAL AND OFFICIAL
                           CAPACITIES,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO
          [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                                Before

                      Lipez, Leval,* and Thompson,
                            Circuit Judges.


     Eileen Landrón Guardiola, with whom Eduardo Vera Ramírez, Luis
A. Rodriguez Muñoz, Julio César Alejandro Serrano, and Landrón &
Vera, L.L.P. were on brief, for appellant.
     Irene S. Soroeta-Kodesh, with whom Leticia Casalduc-Rabell,
Zaira Z. Girón-Anadón, and Susana I. Peñagaricano-Brown were on
brief, for appellees.


                            March 30, 2011




     *
         Of the Second Circuit, sitting by designation.
     LEVAL,   Circuit   Judge.      Plaintiff   Víctor     Hugo   Ríos-Colón

(“Ríos”) appeals from the judgment of the United States District

Court for the District of Puerto Rico, dismissing his suit alleging

racial discrimination in the course of his employment in the Puerto

Rico Police Department for failure to state a claim upon which

relief can be granted.     Fed. R. Civ. P. 12(b)(6).         The complaint

alleged that he is black and that his supervisor in the Police

Department used racial slurs against him and transferred him to a

less desirable position.         For the reasons explained below, we

conclude that the complaint plausibly alleged claims of racial

discrimination in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2000e-17, and of the Equal Protection

Clause   of   the   Fourteenth     Amendment    of   the    United   States

Constitution, made actionable by 42 U.S.C. § 1983. Accordingly, we

vacate in part and remand for further proceedings.1

                                 BACKGROUND

I. Allegations of the Complaint

     The complaint2 alleges as follows:

     At all relevant times, Ríos was an officer in the Puerto Rico



     1
      The complaint also asserted claims under section 1983 of
deprivation of rights under the First, Fourth, Fifth, and Tenth
Amendments, and the Due Process Clause of the Fourteenth Amendment,
which the district court also dismissed for failure to state a
claim. Ríos does not challenge those rulings on appeal.
     2
      “Complaint” refers to the First Amended Complaint filed
September 10, 2008.

                                   - 2 -
Police Department.        He holds a master’s degree in education from

Ana G. Méndez University and has been certified to give drug

prevention talks to schools, churches, and offices.               The complaint

asserts that he is “of the Negro race” and that “the color of his

skin is black.”

     From    2005    to   2007,   Ríos   was   assigned    to     the   Division

Prevención Drogas Mediante Educación a la Comunidad (hereinafter

the “Drug Prevention Division”) for the Aguadilla area, which had

offices near the Aguadilla airport.            His duties included giving

drug prevention talks and required him to work nights and weekends.

His earnings included approximately $100 per month in overtime pay.

     Agent Orlando Adames Cardona (“Adames”) was also assigned to

the Drug Prevention Division. Both Ríos and Adames were supervised

by Lieutenant Eddie Cordero Martínez (“Cordero”).                   Adames and

Cordero are white.

     In     August   2006,   Cordero     and   another    white    lieutenant,

Elizabeth      Acevedo-Rivera       (“Acevedo”),         began      exhibiting

discriminatory animus against Ríos in front of other officers. For

example, the complaint alleges that Cordero, in front of Ríos, made

reference to “this damn nigger,” and that Acevedo said of Ríos “I

will take that negro out of here,” and “I don’t want him here.”

Acevedo and Cordero also allegedly conspired to deprive Ríos of the

use of his office.

     In February 2007, Cordero reassigned Ríos to the Bureau of


                                    - 3 -
Illegal Arms, Airport Illegal Arms Section, West Region, also in

Aguadilla. The new position was less desirable in that it required

Ríos to travel to other airports by himself without backup and did

not offer a private office or the same opportunity for overtime

pay.    No one was assigned to fill Ríos’s former position at the

Drug Prevention Division.

       In December 2007, Adames was transferred at his request,

creating a second vacancy at the Drug Prevention Division. Cordero

recommended a white agent, Sixto Salinas Cabàn (“Salinas”), for the

position,    and    he   was   appointed.      The       complaint   asserts   on

information and belief that Salinas was less qualified than Ríos as

he had only recently obtained a bachelor’s degree and was not

certified to give drug prevention talks.

II. The District Court’s Decisions

       On May 23, 2008, Ríos filed a complaint in the United States

District    Court    for   the   District     of    Puerto   Rico,    naming   as

defendants    in    both   their   personal        and   official    capacities:

Cordero; Acevedo; and Pedro A. Toledo-Dávila (“Toledo”), who was

Superintendent of the Puerto Rico Police Department.                  The court

granted the defendants’ motion to dismiss the complaint for failure

to state a claim.        Ríos-Colón v. Toledo-Dávila, No. 08-1577-CCC,

2009 WL 1767566 (D.P.R. June 19, 2009).

       The court ruled that the complaint failed under Title VII

because     that    statute    applies   to    employers,      not    individual


                                    - 4 -
supervisors, and the complaint did not name the Police Department

as a defendant.   Id. at *3.   The court also held that the complaint

did not plausibly allege violations of the First, Fourth, Fifth,

and Tenth Amendments, or the Due Process Clause of the Fourteenth

Amendment. Id. at *3-*6. Without addressing whether the complaint

stated a claim of racial discrimination in violation of the Equal

Protection Clause of the Fourteenth Amendment, the court dismissed

all of the federal claims and declined to exercise supplemental

jurisdiction over the remaining claims under Puerto Rico law.

     Upon Ríos’s motion for reconsideration, the court upheld its

prior ruling.     With respect to the Title VII claim, the court

acknowledged that the complaint “clearly pled a cause of action for

race discrimination,” but adhered to the dismissal of the claim

because the complaint did not name the Police Department as a

defendant.   Once again, the court did not address whether the

complaint stated a claim of racial discrimination in violation of

the Equal Protection Clause.

     This appeal followed.

                               DISCUSSION

     We review the district court’s dismissal of the complaint de

novo.    Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir.

2009).   “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’”     Ashcroft v. Iqbal, 129 S.


                                 - 5 -
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).

        Ríos advances two arguments on appeal.                     First, noting the

district          court’s   eventual      acknowledgment         that    the   complaint

asserted a viable claim of violation of Title VII, Ríos contends

the court erred in dismissing it on the ground that he brought the

suit        against   his     superior    officers,    rather      than    against     his

employer.         Second, Ríos contends the complaint plausibly alleged a

claim of racial discrimination in violation of the Equal Protection

Clause.        We agree with both contentions.

I.   Title VII

        Although acknowledging that the complaint “clearly pled a

cause of action for race discrimination” in violation of Title

VII,3       the    district    court     dismissed    the   claim       because   it   was

asserted against Ríos’s three supervisors, instead of against the

Police Department, his employer.

        Given       that    the   complaint        named    as    defendants       Ríos’s

supervisors (including the Department’s Superintendent) in their

official capacities, the failure to name the Police Department

itself did not justify dismissal of the Title VII claim.                          We have

ruled that a Title VII claim brought against a supervisory employee

in his official capacity as an agent of the employer operates as a


        3
      On appeal, defendants have not challenged the district
court’s   conclusion  that   the   complaint plausibly alleges
discrimination in violation of Title VII.

                                           - 6 -
claim against the employer.          See Vera v. McHugh, 622 F.3d 17, 25

n.8 (1st Cir. 2010) (noting that, in a Title VII suit brought by an

employee of the Puerto Rico Army solely against the Secretary of

the Army, “[t]he Secretary was sued in his capacity as [the

plaintiff’s] employer”); see also Sauers v. Salt Lake Cnty., 1 F.3d

1122, 1125 (10th Cir. 1993) (“[T]he proper method for a plaintiff

to recover under Title VII is by suing the employer, either by

naming the supervisory employees as agents of the employer or by

naming the employer directly.” (quoting Busby v. City of Orlando,

931 F.2d 764, 772 (11th Cir. 1991))).

II.   Equal Protection

      The district court dismissed the complaint in its entirety

without addressing whether it plausibly alleged a violation of the

Equal Protection Clause.           We agree with Ríos that the complaint

asserted a claim under the Equal Protection Clause, which should

not   have   been   dismissed.       To     prevail    on    a    claim   of   racial

discrimination in violation of the Equal Protection Clause, a

plaintiff must establish (1) that he was selected for adverse

treatment compared with others similarly situated, and (2) that the

selection for adverse treatment was based on his race.                            See

Rubinovitz     v.   Rogato,   60    F.3d    906,    909-10       (1st   Cir.   1995);

Yerardi’s Moody St. Rest. & Lounge, Inc. v. Bd. of Selectmen, 878

F.2d 16, 21 (1st Cir. 1989).

      The    complaint   alleges     that    Ríos     was   transferred        from   a


                                      - 7 -
position with the Drug Prevention Division to a less desirable

position with the Bureau of Illegal Arms.               The position to which he

was   transferred       allegedly       offered   materially   less     attractive

working conditions and fewer opportunities to earn overtime pay.

The    complaint        furthermore         plausibly      alleges     that        the

disadvantageous transfer was based on racial discrimination. It

alleges   that    Cordero,    the       supervisor   who    caused    Ríos    to    be

transferred and who recommended a less qualified white candidate in

preference to Ríos when a position in the Drug Prevention Division

later became available, had used abusive and derogatory slurs

expressing explicit anti-black racial bias. These allegations were

sufficient to plead a cognizable claim under the Equal Protection

Clause,   as     they    convey     a    plausible   inference       that    Cordero

discriminated against Ríos in official acts, depriving him of

significant advantages because of his race.                See Iqbal, 129 S. Ct.

at 1949 (a claim survives a motion to dismiss if the factual

allegations permit “the reasonable inference that the defendant is

liable for the misconduct alleged”); Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 229–30 (1995) (“[W]henever the government

treats any person unequally because of his or her race, that person

has suffered an injury that falls squarely within the language and

spirit of the Constitution’s guarantee of equal protection.”).

      We conclude that the complaint pleaded a claim under section

1983 of racial discrimination in violation of the Equal Protection


                                         - 8 -
Clause, which claim should not have been dismissed.4

III. Supplemental Jurisdiction

     Defendants argue that Ríos should be precluded from advancing

his local law claims upon remand because in this appeal he did not

separately challenge the district court’s decision to decline

supplemental jurisdiction over those claims.          We disagree.   The

district court’s decision to decline supplemental jurisdiction was

based on its conclusion that the complaint failed to state any

viable federal claims. Our decision to vacate the dismissal of the

federal claims eliminates the basis of that decision.         We find no

waiver. We accordingly vacate the district court’s order declining

to exercise supplemental jurisdiction over the local law claims.

                                CONCLUSION

     The district court’s dismissal of Ríos’s claims of racial

discrimination in violation of Title VII and the Equal Protection

Clause,     and   its   order   declining    to   exercise   supplemental

jurisdiction over his local law claims, are hereby vacated, and the

case is remanded for further proceedings consistent with this

opinion. Costs of the appeal to abide the ultimate resolution of

the case.


     4
      The district court perhaps believed that the plaintiff’s
claim of racial discrimination was asserted only under Title VII
and not as a constitutional matter.       We acknowledge that the
complaint could have been clearer in this regard. Nonetheless, the
briefs for both the defendants and the plaintiff, submitted in
relation to the defendants’ motion to dismiss, expressly recognized
that the complaint included an equal protection claim.

                                  - 9 -
