Rosa-Santos v. Puerto Rico Childrens Hospital, Inc. et al
ORDER granting in part and denying in part 43 Motion to Dismiss. Signed by US Magistrate Judge Marcos E. Lopez on 9/28/2012. (GDR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ODALYS ROSA SANTOS,
CIVIL NO.: 11-1539 (MEL)
PUERTO RICO CHILDREN’S HOSPITAL,
OPINION AND ORDER
On June 8, 2011, plaintiff Odalys Rosa Santos (“Rosa” or “plaintiff”) filed a complaint
against defendants the Puerto Rico Children’s Hospital (“the hospital”), Dr. Samuel A.
Fernández López (“Fernández”), and Fernando Lugo Fabres (“Lugo”), alleging that Fernández,
an orthopedic physician, and Lugo, an anesthesiologist, sexually harassed plaintiff, who was
employed by the hospital. Docket No. 1. The complaint asserts, against all three defendants,
hostile work environment and quid pro quo sexual harassment claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”) and Puerto Rico Law 17 of 1988 (“Law 17”), 29 L.P.R.A. §
155, as well as retaliation claims under both of those laws. Docket No. 1, ¶¶ 19-27.
Subsequently, all three defendants filed respective motions to dismiss. Docket Nos. 22,
23, 43. At an initial scheduling conference on May 17, 2012, the court granted the motions filed
by Lugo and Fernández. See Docket No. 62. Initially, the court also granted the hospital’s
motion, but later withdrew this ruling upon reconsideration. At a subsequent conference on May
21, 2012, the motion was denied as to its first argument, which asserted that the hospital could
not be held liable for the actions of Lugo and Fernández because they were not its employees,
but rather, respectively, an independent contractor and a doctor with staff privileges. See Docket
No. 43. The hospital also argued that: (1) plaintiff’s allegations were not severe or pervasive
enough to constitute a hostile work environment claim; and (2) even if the allegations were
sufficient, the hospital would not be liable under the Faragher/Ellerth doctrine. The court held in
abeyance the decision on these latter two arguments and now, for the reasons set forth below,
grants in part and denies in part the motion to dismiss.
The following allegations are drawn from plaintiff’s complaint. Docket No. 1. The
factual allegations are taken as true for the purpose of the pending motion.
At all times relevant to the complaint, Fernández worked at the hospital as an orthopedist,
Lugo worked there as an anesthesiologist, and Rosa was an employee of the hospital, although
the complaint does not indicate her position or the type of work that she did. Docket No. 1, ¶¶ 47. The complaint describes various incidents of alleged harassment that occurred between March
16, 2010 and June 29, 2010.
On March 16, 2010 Fernández approached Rosa while she was working and told her he
liked her a lot. Docket No. 1, ¶ 9. He then followed her around making comments, including
inviting Rosa “to go out to a motel to have sex.” Id. This occurred in front of others and against
Rosa’s will. Id. Rosa subsequently complained to the hospital’s personnel director about
unwanted sexual advances on March 19, 2010. Docket No. 1, ¶ 15.
In May of 2010, while Rosa was working, Fernández approached her and asked why she
was so “old fashioned.” Id. at ¶ 10. He told her that the only thing he wanted was “a piece of
that,” referring to her genitalia, and that there was “nothing wrong with that because it is going to
produce pleasure at the moment.” Id. He continued, asking her to let him pick her up “so we
can go to bed with you and please myself with your body because you always smell so good and
I am wondering if is going to taste good as well.” Id.
On May 4, 2010, while Rosa was helping to perform an x-ray and Fernández tried to
cover himself from the radiation by standing behind Rosa and telling her “sexual jokes” while
trying to smell her neck and also rubbing his genitals against her back. Id. at ¶ 12. When Rosa
asked him to stop, he replied, “[W]hat[, o]h my god, you don’t even let yourself give you a
On May 18, 2010, while Rosa was making a report for a patient, Fernández walked by
very close to her and, when she turned her back, spanked her left buttock so hard that it caused
her pain. Id. at ¶ 11. In response, Rosa yelled at him, “Hey! What are you doing?” Id. Rosa
also alleges that on June 15, 2010, Lugo approached her in the washing area and rubbed her from
behind, “putting his genitalia in [her] butt.” Id. at ¶ 13.
After Rosa denounced these incidents to an unspecified individual or individuals, several
high-ranking hospital employees ceased talking with her during work. Id. at ¶ 14. They
assigned her different working schedules, with which she could not comply. Id. They also failed
to inform her about schedule changes during holidays, did not let her take lunch breaks, forced
her to use physical force beyond her capacity, and gave her duties that were not in her job
description. Id. Rosa resigned from her position with the hospital on June 29, 2010, an act
which she claims was compelled by the circumstances previously described. Id. at ¶ 14, 16.
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
To avoid dismissal, 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, 679 (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, 556 U.S. at 678)
(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, 556 U.S. at 678). Only if it does will the complaint
survive a motion to dismiss under Rule 12(b)(6).
Hostile Work Environment Claim
In her complaint, plaintiff alleges that the actions of the hospital, Fernández, and Lugo
created a hostile work environment in violation of Title VII. Docket No. 1, ¶¶ 23-24. Defendant
argues in its motion to dismiss that the facts alleged by plaintiff are insufficient to state a hostile
work environment claim. Docket No. 43, at 9.
The protection against discrimination in employment provided by Title VII has extended
to protection against an abusive or hostile work environment. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-16 (2002). An abusive work environment is created “when the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Id. (internal quotations omitted) (quoting Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993)); see also Collazo v. Nicholson, 535 F.3d 41, 44-45 (1st Cir. 2008);
Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 2006); Valentín-Almeyda v.
Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006); Noviello v. City of Boston, 398 F.3d
76, 92 (1st Cir. 2005). To sustain a hostile work environment claim, a plaintiff must prove:
(1) that he is a member of a protected class; (2) that he was subjected to
unwelcome sexual or racial harassment; (3) that the harassment was based upon
sex or race; (4) that the harassment was sufficiently severe or pervasive so as to
alter the conditions of plaintiff’s employment and create an abusive work
environment; (5) that sexually or racially objectionable conduct was both
objectively and subjectively offensive, such that a reasonable person would find it
hostile or abusive and the victim in fact did perceive it to be so; and (6) that some
basis for employer liability has been established.
Douglas v. J.C. Penney Co., Inc., 474 F.3d 10, 15 (1st Cir. 2007) (internal quotations omitted).
Defendant contends that plaintiff’s claim fails to rise to the level of a hostile work
environment, because the facts alleged in the complaint, even if accepted as true, are not so
severe or pervasive as to constitute an alteration of the conditions of plaintiff’s employment.
Determining whether the conduct is sufficiently severe or pervasive is a highly factual and
contextual question. In Harris, the Supreme Court noted that the test for proving a hostile work
environment “is not, and by its nature cannot be, . . . mathematically precise.” 510 U.S. at 22.
To determine whether an environment is sufficiently “hostile” or “abusive,” a court must
examine the totality of the circumstances including “the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.” Id. at 23. The
conduct must be “extreme” or “humiliating,” or must have “unreasonably interfered with
[plaintiff’s] ability to work.” Prescott v. Higgins, 538 F.3d 32, 42 (1st Cir. 2008). At one end of
the spectrum, “[s]imple teasing, offhand comments, and isolated incidents” would not constitute
a hostile work environment. Faragher v. City of Boca Ratón, 524 U.S. 775, 788 (1998) (internal
quotations omitted) (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82 (1998)); see
also Alberti v. Univ. of P.R., Civil No. 08-1484 (DRD), 2012 WL 2355579, at *8 (D.P.R. June
21, 2012) (holding that “isolated and stray remarks” that plaintiff found offensive were not a
consistent pattern undertaken with the intent to cause harm). At the other end, “[s]evere or
pervasive sexual remarks, innuendoes, ridicule, and intimidation … may support a jury verdict
finding a hostile work environment.” Figueroa Garcia v. Lilly Del Caribe, Inc., 490 F. Supp. 2d
193, 204-05 (D.P.R. 2007).
For example, in Figueroa Garcia, the plaintiff presented evidence at the summary
judgment stage of “numerous, sexually charged incidents, some humiliating and one involving
unwanted and explicitly sexual physical contact with an intimate body part … and sexually
suggestive comments directly to her two or three times per week.” Id. at 205. The court
determined that this evidence was enough for plaintiff to take her case to the jury. Id. Here, with
respect to Fernández, the complaint alleges four sexually charged incidents in a three-month
period, consisting of sexual comments on three of those occasions and two instances of physical
contact with an intimate body part. As to Lugo, the complaint alleges conclusorily that he used
“hostile and sexual language” on “many occasions,” but it also states one incident on June 15,
2010, of uninvited contact between intimate body parts. Docket No. 1, ¶ 13. This particular
incident is sufficient to establish that Lugo’s alleged conduct was sexually charged and
The incidents that plaintiff alleges are comparable to, if not worse than, the conduct in
numerous cases where a motion to dismiss or a motion for summary judgment has been denied.
See, e.g., Colondres v. Potter, CIV. 11-1171 JAF, 2012 WL 1069257, at *1-*2 (D.P.R. Mar. 29,
2012) (denying motion to dismiss where supervisor “lustfully stared at [plaintiff’s] body, made
comments to Plaintiff about her physique that indicated her desire to have sex with Plaintiff,
made sexual insinuations to Plaintiff, invited Plaintiff to go out, and displayed jealousy regarding
Plaintiff’s relationships with her ex-husband, female coworkers, and clients at work”); Garcia v.
Sprint PCS Caribe, 841 F. Supp. 2d 538, 557 (D.P.R. 2012) (denying motion for summary
judgment where plaintiff alleged that supervisor made four comments over a three-month
period); Guzmán v. Macy’s Retail Holdings, Inc., 09 CIV.4472 (PGG), 2010 WL 1222044
(S.D.N.Y. Mar. 29, 2010) (“A female plaintiff’s allegation that a male co-worker rubbed his
genitals against her body, and then repeated that action after the plaintiff asked him to stop has
adequately alleged sexual harassment, particularly for purposes of a motion to dismiss.”)
(internal citation omitted); Walter v. Westdeutscher Rundfunk, 03 CIV.5676 LAK JCF, 2004
WL 1052776, at *5-*6 (S.D.N.Y. May 11, 2004) (a single act of plaintiff’s supervisor “‘rubbing
his genitals’ in his office” was sufficient to withstand a motion to dismiss), report and
recommendation adopted in part, 03 CIV. 5676 (LAK), 2004 WL 1238382 (S.D.N.Y. June 2,
2004) (adopting the recommendation of dismissal of motion to dismiss); Wahlstrom v. Metro-N.
Commuter R. Co., 89 F. Supp. 2d 506, 511, 521 (S.D.N.Y. 2000) (denying motion for summary
judgment with respect to a co-worker who “wrapped his arms around [plaintiff], grabbed her in a
‘bear hug,’ made a grunting sound, and slapped her left buttock three times” because of the
severity of the single incident); Yaba v. Roosevelt, 961 F. Supp. 611, 620 (S.D.N.Y. 1997)
(holding one incident of “sexual touching and harassment” to be sufficient to deny a motion to
dismiss). Thus, plaintiff has alleged facts that, if accepted as true, are sufficiently severe or
pervasive as to establish a plausible entitlement to relief.
The Hospital’s Vicarious Liability
The hospital bases its contention that it cannot be held liable for Fernández’s and Lugo’s
conduct on two grounds. The first, as previously mentioned, is that Title VII does not hold
employers liable for the actions of non-employees. As discussed, however, the court rejected
this argument because a plaintiff’s employer may indeed be liable for a non-employee’s acts of
harassment under Title VII if it “knows or should have known of the conduct and fails to take
immediate and appropriate corrective action.” Hernández v. Miranda Vélez, Civil No. 92-2701
(JAF), 1994 WL 394855, at *8 (D.P.R. July 20, 1994) (quoting 29 C.F.R. § 1604.11(e)), aff’d,
132 F.3d 848 (1st Cir. 1998); see also Docket No. 62, at 3 (citing Rivera v. MVM, Inc., Civil No.
09-2114 (DRD), 2011 WL 5075662, at *7 (D.P.R. Aug. 1, 2011) (holding that plaintiff’s
employer could be liable for subcontractor’s conduct if employer knew or should have known of
such conduct and failed to take action)); Plaza Torres v. Rey, 376 F. Supp. 2d 171, 182-84
(D.P.R. 2005); Acevedo Vargas v. Colón, 68 F. Supp. 2d 80, 87-88 (D.P.R. 1999); Dunn v.
Washington County Hosp., 429 F.3d 689, 690-92 (7th Cir. 2005) (holding that a hospital may be
liable for acts of sexual harassment by a doctor who has staff privileges if the hospital knew or
should have known of such acts and “did not act reasonably to equalize working conditions once
it had knowledge”).
Defendant’s next argument is that it should not be held liable under the Faragher/Ellerth
doctrine. The Faragher/Ellerth doctrine sets forth the standard of vicarious employer liability
when the alleged harasser is the plaintiff’s “supervisor with immediate (or successively higher)
authority over the employee.” Faragher v. City of Boca Ratón, 524 U.S. 775, 807 (1998). The
affirmative defense is available when an employer maintains an anti-harassment policy and
complaint procedure of which the employee is aware, and the employee unreasonably fails to
utilize that procedure. Faragher, 524 U.S. at 808; Burlington Industries, Inc. v. Ellerth, 524 U.S.
742 (1998). There are two elements to establishing a Faragher/Ellerth defense. “First, the
employer must show that it ‘exercised reasonable care to prevent and correct promptly any
sexually harassing behavior.’” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 20 (1st Cir.
2002) (quoting Ellerth, 524 U.S. at 765). Usually, this element is met with “proof that the
employer ‘had promulgated an antiharassment policy with [a] complaint procedure.’”
(quoting Ellerth, 524 U.S. at 765). “Second, the employer must establish ‘that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.’” Id. at 20-21 (quoting Ellerth, 524 U.S.
at 765). This element is usually met with “proof that the plaintiff unreasonably ignored an
established complaint procedure.” Id. at 21.
Defendant’s assertion of this defense is procedurally premature. To prove the first
element, an employer must demonstrate that it has such an antiharassment policy with a
complaint procedure. At the motion to dismiss stage, only the facts alleged in the complaint may
be considered. Litton Indus., Inc. v. Colón, 587 F.2d 70, 74 (1st Cir. 1978). Here, plaintiff
makes no mention of an antiharassment policy at the hospital. Defendant would be unable to
establish this defense at this stage of the proceedings. The Faragher/Ellerth defense is more
appropriate at the summary judgment stage.
Furthermore, the Faragher/Ellerth defense is inapplicable in this case. As discussed at the
beginning of this section, the standard for employer liability here is a negligence standard; in
other words, plaintiff will prevail if she can prove that the hospital knew or should have known
about the harassment. Because this defense only applies where the harassment is committed by
the plaintiff’s supervisor,1 it is not available where, as here, the alleged harasser is a third-party
Here, the complaint does not allege that Fernández and Lugo were plaintiff’s superiors. The complaint does not
even indicate what position plaintiff held at the hospital.
over which defendant has some degree of control. See Godoy v. Maplehurst Bakeries, 747 F.
Supp. 2d 298, 312 (D.P.R. 2010) (noting that the Faragher/Ellerth defense is unavailable where
alleged harasser is plaintiff’s co-worker; rather, “knew or should have known and failed to take
appropriate action” was the applicable standard); see also Dulaney v. Packaging Corp. of Am.,
673 F.3d 323, 330-31 n.7 (4th Cir. 2012) (noting that respondeat superior liability under Title
VII is subject to the Faragher/Ellerth defense and contrasting respondeat superior with
Even if the Faragher/Ellerth defense were applicable, defendant would fail to meet the
second element. Contrary to what defendant claims in its motion, plaintiff does allege that she
complained to the personnel director about Fernández’s advances. Docket No. 1, ¶ 15. While it
is not clear whether this was the exact procedure provided for in defendant’s anti-discrimination
policy, if the allegations of the complaint are taken as true—as they must at this stage of the
proceedings—it is certainly not the case, as defendant says, that “Rosa did not complain about
any improper conduct on Fernández or Lugo’s behalf, or anyone else.” 2 Docket No. 43, at 16.
Particularly considering that the hospital personnel director told plaintiff that “they were going to
deal with it,” plaintiff’s actions are sufficient to defeat the second element of the Faragher/Ellerth
defense. Docket No. 1, ¶ 15. It is not true that “an employee only acts reasonably if the
employee follows the [employer’s] formal procedure, and … [the employer] is entitled to ignore
any notice of harassment that is outside of the procedure.” Agusty-Reyes v. Dept. of Educ. of
Puerto Rico, 601 F.3d 45, 56 (1st Cir. 2010) (noting that “a reasonable jury could find … that …
Defendant may be correct that plaintiff did not inform the hospital about Lugo’s advances until the EEOC
complaint on January 4, 2011. The only non-conclusory allegation in the complaint concerning Lugo occurred on
June 15, 2010. Docket No. 1, ¶ 13. Plaintiff complained to the hospital personnel director about unwanted sexual
advances on March 19, 2010. Id. at ¶ 15. Nevertheless, the complaint sufficiently alleges that she complained about
Fernández’s advances, as one incident with Fernández occurred three days before the meeting with the personnel
director. Id. at ¶¶ 9, 15.
[plaintiff] had exercised reasonable care” where she complained to her supervisor’s supervisor
and filed a union grievance, rather than filing a formal internal complaint) (internal quotation
omitted). Therefore, defendant would not qualify for the Faragher/Ellerth defense even if it were
Quid Pro Quo Claim
Another cause of action that plaintiff sets forth is quid pro quo sexual harassment under
Title VII. Under quid pro quo sexual harassment, “‘an employee or supervisor uses his or her
superior position to extract sexual favors from a subordinate employee, and if denied those
favors, retaliates by taking action adversely affecting the subordinate's employment.’” ValentinAlmeyda v. Municipality Of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (italics added) (quoting
O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)). “Quid pro quo harassment,
in which ‘a supervisor uses employer processes to punish a subordinate for refusing to comply
with sexual demands,’ is actionable because it involves explicit and tangible alterations in the
terms or conditions of employment.” Perez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19,
26 (1st Cir. 2011) (internal citation omitted) (quoting Hernandez–Loring v. Universidad
Metropolitana, 233 F.3d 49, 52 (1st Cir. 2000)). The facts alleged in the complaint are not
sufficient to support a claim of quid pro quo harassment.
First, in the complaint, plaintiff does not allege that Fernández or Lugo is her superior.
She does not even state what her position at the hospital is, nor does she indicate whether she
ever had to report to or follow the instruction of Fernández or Lugo. In four out of five of the
allegations involving Fernández or Lugo, plaintiff was working and was approached by
Fernández or Lugo independently of her work. In the incident on May 4, 2010, plaintiff and
Fernández were working together; specifically, “[plaintiff] was helping to perform a CT Scan.”
Docket No. 1, ¶ 12. But this allegation also fails to demonstrate a supervisor-subordinate
relationship contemplated by Title VII.
Furthermore, plaintiff alleges no instance where Fernández, Lugo, or any other person
used employer processes to punish her for denying sexual favors. “The harassing supervisor
must be the one who orders the tangible employment action or, at the very least, must be
otherwise substantially responsible for the action.” Agusty-Reyes v. Dept. of Educ. of Puerto
Rico, 601 F.3d 45, 53 (1st Cir. 2010) (internal quotation omitted) (quoting Lee-Crespo v.
Schering-Plough Del Caribe Inc., 354 F.3d 34, 44 (1st Cir. 2003). Plaintiff does allege that the
hospital itself “took reprisals,” but she does not allege at any point in the complaint that
Fernández or Lugo took advantage of his position at the hospital to punish her. Docket No. 1, ¶
14. The only allegations with respect to Fernández or Lugo involved solicitations of sexual
favors, inappropriate joking, and inappropriate touching, not any punishment or threat of
punishment for refusing to comply with their sexual demands.
For these reasons, plaintiff fails to meet a quid pro quo cause of action under the facts
articulated in her complaint.
Defendant does not address plaintiff’s retaliation claim in its motion to dismiss. This
alone would be sufficient for this court to deny the motion with respect to the retaliation claim.
Furthermore, the facts in the complaint are sufficient to sustain plaintiff’s prima facie burden for
Plaintiff can establish a prima facie case for retaliation by showing: (1) she engaged in
protected conduct; (2) she suffered a materially adverse action, which caused her harm
“sufficient to dissuade a reasonable worker from making or supporting a charge of
discrimination”; and (3) a causal connection between the two.
Mariani-Colon v. Dep’t of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 223 (1st Cir. 2007) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)).
While an EEOC complaint would constitute protected conduct ordinarily, plaintiff filed
her EEOC complaint (January 4, 2011) after the end of her employment (June 29, 2010).
Nevertheless, her discussion with the hospital personnel director on March 19, 2010, was
protected conduct for Title VII retaliation purposes. “‘The term “protected activity” refers to
action taken to protest or oppose statutorily prohibited discrimination.’” Rivera Maldonado v.
Hosp. Alejandro Otero Lopez, 614 F. Supp. 2d 181, 198 (D.P.R. 2009) (quoting Fantini v. Salem
State College, 557 F.3d 22, 31 (1st Cir. 2009)). “‘Protected conduct includes not only the filing
of administrative complaints, … , but also complaining to one’s supervisors.’” Id. (quoting
Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006)).
complaining to the personnel director certainly qualifies as protected conduct.
Second, although the actions taken by the hospital did not qualify as “explicit and
tangible alterations in the terms or conditions of employment” for purposes of quid pro quo
harassment, Perez-Cordero, 656 F.3d at 26, it does qualify as a “materially adverse” action which
“might have dissuaded a reasonable worker from making or supporting a charge of
discrimination,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotations omitted). These two standards differ; the retaliation standard, “unlike the substantive
provision, is not limited to discriminatory actions that affect the terms and conditions of
employment.” Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st Cir. 2010) (internal quotation
omitted) (quoting Burlington Northern, 548 U.S. at 64), cert. denied, 131 S. Ct. 978 (U.S. 2011);
see also Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir. 2008) (“[C]onduct need not relate
to the terms or conditions of employment to give rise to a retaliation claim.”). Thus, plaintiff
need only show that the employer’s action “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68 (internal
quotation omitted). For example, plaintiff allegedly was given working schedules she could not
comply with, assigned physical labor beyond her capability, not informed about changes in
schedules, and assigned duties not in her job description. Docket No. 1, ¶ 14. Even though these
actions “‘might not have made a dramatic impact on plaintiff’s job,’” they made it substantially
more difficult or even impossible for plaintiff to complete her job satisfactorily; thus, this series
of actions by the hospital, considered together, certainly might have dissuaded a reasonable
worker from speaking with the personnel director. Bibiloni Del Valle v. Puerto Rico, 661 F.
Supp. 2d 155, 169 (D.P.R. 2009) (quoting Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir.
Furthermore, an escalation of harassment on the heels of complaints about harassment is
sufficiently adverse action. See Pérez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 31
(1st Cir. 2011). According to the facts alleged in the complaint, plaintiff had one incident where
Fernández solicited a sexual favor, reported it three days later, and the remainder of the specific
incidents involving Fernández and Lugo occurred afterwards. This set of allegations is sufficient
to support a claim at the motion to dismiss stage that the sexual harassment escalated in response
to plaintiff’s complaint. See id.
With respect to the third prong, temporal proximity can be a major factor in determining
whether there is a causal connection between protected activity and adverse action for purposes
of a prima facie retaliation case. See DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008)
(“[T]emporal proximity alone can suffice to meet the relatively light burden of establishing a
prima facie case of retaliation.”) (internal quotation omitted);
Mariani Colón v. Dep’t of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir. 2007) (finding two-month interval
sufficient to meet prima facie burden); Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 25-26
(1st Cir. 2004) (finding one-month interval sufficient to meet prima facie burden). A reasonable
reading of paragraphs 14 and 15 of the complaint would indicate that the alleged reprisals took
place between March 19, 2010, and June 29, 2010, a range of time over three months. It is
unclear from the complaint whether these incidents occurred closer to plaintiff’s internal
complaint or closer to her resignation. At this time, plaintiff has alleged sufficient facts to meet
her prima facie burden at the motion to dismiss stage. The issue of temporal proximity between
protected activity and materially adverse action in this case can be readdressed at the summary
judgment stage. Therefore, defendant’s motion to dismiss is denied with respect to the claim of
Supplemental Jurisdiction over Puerto Rico Law 17 Claims
Plaintiff makes each of her three claims—hostile work environment, quid pro quo
harassment, and retaliation—under Puerto Rico Law 17 as well. Because only the quid pro quo
harassment claim is dismissed under Title VII at this stage, plaintiff’s Law 17 claim is dismissed
only to the extent that it pertains to a quid pro quo harassment claim. See Ruiz v. Caribbean
Restaurants, Inc., 54 F. Supp. 2d 97, 120 (D.P.R. 1999) (noting that Law 17 causes of action are
“nearly identical to the EEOC’s guidelines for Title VII sex discrimination causes of action, that
is quid pro quo and hostile work environment”).
Based on the foregoing analysis, the Court hereby GRANTS IN PART and DENIES IN
PART defendant’s Motion to Dismiss (Docket No. 43). The Court DENIES defendants’ motion
with respect to plaintiff’s Title VII and Puerto Rico Law 17 causes of action that state hostile
work environment and retaliation claims. The Court, however, grants defendants’ motion with
respect to plaintiff’s quid pro quo sexual harassment claim under Title VII and Puerto Rico Law
17, and thus DISMISSES both causes of action WITH PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 28th day of September, 2012.
s/Marcos E. López
U.S. Magistrate Judge