Ojeda-Calderon v. Molly Maid, Inc. et al

Filing 58

ORDER Granting in part and Denying in part 39 Defendant's Motion for Summary Judgment Signed by Judge Raymond L. Acosta on 9/23/08. (VILM)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

SONIMAR OJEDA CALDERON, Plaintiff, v. MOLLY MAID, INC., et al., Defendants. CIVIL NO. 06-1535 (RLA)

ORDER IN THE MATTER OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Codefendant BLUE BAY PROFESSIONAL SERVICES, INC. has moved the court to dismiss the discrimination claims asserted under our federal jurisdiction and to decline supplemental jurisdiction. Specifically, defendant alleges that the comments purportedly made by EDDIE CARDONA are not pervasive enough to constitute a hostile environment; that this claim is time barred; that plaintiff failed to make a prima facie case of retaliation, and that plaintiff was discharged for legitimate business reasons. The court having reviewed the memoranda filed by the parties as well as the evidence submitted therewith hereby finds that dismissal of the federal claims are warranted. BACKGROUND Plaintiff instituted this action alleging sex discrimination pursuant to the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Specifically, plaintiff alleges that she was subjected to sexual harassment by EDDIE CARDONA, owner of the movant

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corporation, and that she was terminated from employment for refusing 3 his sexual advances. 4 Additionally, plaintiff alleges discrimination and wrongful 5 termination under various local statutes. 6 THE FACTS 7 The following material facts are uncontested based on the 8 evidence submitted by the parties. 9 Plaintiff commenced working for MOLLY MAID on March 17, 2004. 10 Plaintiff was initially recruited as a house cleaning employee. 11 Approximately one month after she started working for MOLLY MAID 12 plaintiff was reassigned to an office position where she would make 13 estimates, work with the files, answer the telephone, supervise the 14 routes, prepare the chemicals and solve any problems that arose 15 during the day. 16 EDDIE CARDONA was the owner and president of the MOLLY MAID 17 franchise where plaintiff was employed. 18 On December 16, 2004, plaintiff reported for a second time to 19 the Puerto Rico State Insurance Fund ("SIF") and was ordered to rest 20 effective that date. 21 On December 20, 2004, plaintiff was mailed a termination letter. 22 Plaintiff filed a sexual discrimination charge with the Equal 23 Employment Opportunity Commission ("EEOC") on October 17, 2005. 24 25 26

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CIVIL NO. 06-1535 (RLA) SUMMARY JUDGMENT

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3 Rule 56(c) Fed. R. Civ. P., which sets forth the standard for 4 ruling on summary judgment motions, in pertinent part provides that 5 they shall be granted "if the pleadings, depositions, answers to 6 interrogatories, 7 affidavits, if any, show that there is no genuine issue as to any 8 material fact and that the moving party is entitled to a judgment as 9 a matter of law." 10 Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 11 1999). The party seeking summary judgment must first demonstrate the 12 absence 13 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). 14 issue exists if there is sufficient evidence supporting the claimed 15 factual disputes to require a trial. Morris v. Gov't Dev. Bank of 16 Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. 17 Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 18 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). 19 it might affect the outcome of a lawsuit under the governing law. 20 Morrissey v. Boston Five Cents Sav. Bank, 54 F. 3d 27, 31 (1st Cir. 21 1995). 22 "In ruling on a motion for summary judgment, the court must view 23 `the facts in the light most favorable to the non-moving party, 24 drawing all reasonable inferences in that party's favor.'" Poulis25 26 A fact is material if A genuine of a genuine issue of material fact in the record. Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st and admissions on file, together with the

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Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v. 3 Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir.1995)). 4 Credibility issues fall outside the scope of summary judgment. 5 "`Credibility determinations, the weighing of the evidence, and the 6 drawing of legitimate inferences from the facts are jury functions, 7 not those of a judge.'" Reeves v. Sanderson Plumbing Prods., Inc., 8 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 10 91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe, 11 Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("court should not engage in 12 credibility assessments."); Simas v. First Citizens' Fed. Credit 13 Union, 170 F.3d 37, 49 (1st Cir. 1999) ("credibility determinations 14 are for the factfinder at trial, not for the court at summary 15 judgment."); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st 16 Cir. 1998) (credibility issues not proper on summary judgment); 17 Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 18 108, 19 determinations, no room for the measured weighing of conflicting 20 evidence such as the trial process entails, and no room for the judge 21 to superimpose his own ideas of probability and likelihood. In fact, 22 only if the record, viewed in this manner and without regard to 23 credibility determinations, reveals no genuine issue as to any 24 material fact may the court enter summary judgment.". Cruz-Baez v. 25 26 113 (D.P.R. 2002). "There is no room for credibility

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Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal 3 citations, brackets and quotation marks omitted). 4 In cases where the non-movant party bears the ultimate burden of 5 proof, he must present definite and competent evidence to rebut a 6 motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 7 U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202; Navarro v. Pfizer 8 Corp., 261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of 9 Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely 10 upon "conclusory allegations, improbable inferences, and unsupported 11 speculation". 12 Cir. 2000); 13 (1st Cir. 1994); Medina-Muñoz v. 14 5, 8 (1st Cir. 1990). 15 TITLE VII 16 Sex discrimination encompasses sexual harassment in the work 17 setting. Depending on the circumstances, harassment may turn into a 18 hostile 19 harassment, whether by means of a co-worker's demands for sexual 20 favors as a `quid pro quo' or by the employer's creation or tolerance 21 of a hostile and abusive work environment, constitutes discrimination 22 prohibited 23 Corrections, 290 F.3d 466, 472 (1st Cir. 2002). 24 25 26 by Title VII." Gorski v. New Hampshire Dep't of work environment or a quid pro quo situation. "Sexual R.J. Reynolds Tobacco Co., 896 F.2d Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st

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CIVIL NO. 06-1535 (RLA) Hostile Work Environment

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3 The protection against discrimination in employment based on sex 4 provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C. 5 § 2000e-2(a)(1) has been expanded to areas beyond strictly "economic" 6 and "tangible discrimination" to situations where "sexual harassment 7 is so severe or pervasive as to alter the condition of the victim's 8 employment and create an abusive working environment." Faragher v. 9 City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 2283, 141 10 L.Ed.2d 662, 675 (1998) (citations, internal quotation marks and 11 brackets omitted); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 12 114 S.Ct. 367, 370, 126 L.Ed.2d 295, 302 (1993); Meritor Sav. Bank, 13 FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 14 49, 60 (1986); Carmona-Rivera v. Puerto Rico, 464 F.3d 12, 14 (1st 15 Cir. 2006); Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 16 (1st Cir. 2006); Valentin-Almeyda v. Municipality of Aguadilla, 447 17 F.3d 85, 94 (1st Cir. 2006); Noviello, 398 F.3d at 92. 18 Defendant argues that the alleged conduct was not pervasive 19 enough to constitute an abusive working environment. Because we find 20 the 21 defendant's argument on this issue. 22 Timeliness 23 Defendant also argues that plaintiff's hostile work environment 24 claim is time-barred. 25 26 hostile environment claim untimely, we need not address

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Prior to resorting to the courts for relief, plaintiffs must 3 present 4 appropriate 5 unsurprising that, in a Title VII case, a plaintiff's unexcused 6 failure to exhaust administrative remedies effectively bars the 7 courthouse door." Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 8 2005). "In order to prosecute a [Title VII] claim... an aggrieved 9 party must first file a timely administrative complaint." Noviello v. 10 City of Boston, 398 F.3d 76, 85 (1st Cir. 2005). "[P]laintiffs [may] 11 not proceed under Title VII without first exhausting administrative 12 remedies." Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 13 (1st 13 Cir. 2003); "Title VII requires that an aggrieved individual exhaust 14 his or her administrative remedies as a prerequisite to filing suit 15 in federal court." Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 16 2003). "Title VII requires, as a predicate to a civil action, that 17 the complainant first file an administrative charge with the EEOC 18 within a specified and relatively short time period (usually 180 or 19 300 days) after the discrimination complained of". Clockedile v. New 20 Hampshire Dept. of Corrections, 245 F.3d 1, 3 (1st Cir. 2001); "[A] 21 claimant who seeks to recover for an asserted violation of... Title 22 VII, first must exhaust administrative remedies by filing a charge 23 with the EEOC, or alternatively, with an appropriate state or local 24 agency, within the prescribed time limits.... This omission, if 25 unexcused, bars the courthouse door, as courts long have recognized 26 agency. "In light of the statutory scheme, it is their discrimination claims under Title VII to the

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that Title VII's charge-filing requirement is a prerequisite to the 3 commencement of suit." Bonilla v. Muebles J.J. Alvarez, Inc., 194 4 F.3d 275, 278 (1st Cir. 1999). 5 The purpose behind the exhaustion requirement is to give the 6 employer 7 opportunity for an early amicable resolution of the controversy. 8 "That purpose would be frustrated... if the employee were permitted 9 to allege one thing in the administrative charge and later allege 10 something entirely different in a subsequent civil action." Lattimore 11 v. Polaroid Corp., 99 F.3d 454, 464 (1st Cir. 1996). 12 In Puerto Rico, an aggrieved employee has 300 days from the 13 occurrence 14 administrative charge in instances where the local Department of 15 Labor 16 "deferral" jurisdiction. Bonilla, 194 F.3d at 278 n.4; Lebron-Rios, 17 341 F.3d at 11 n.5. Otherwise, the applicable period is 180 days. 18 See, 42 U.S.C. § 2000e-5(e)(1).1 19 20
1

timely

notice

of

the

events

as

well

as

provide

an

of

the

employment

action

complained

of

to

file

an

is

empowered

to

provide

relief,

i.e.,

in

instances

of

In pertinent part, § 2000e-5(e)(1) reads: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto... such charge shall be filed by or on

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In Nat'l R.R. Passenger Corp. v Morgan, 536 U.S. 101, 122 S.Ct. 3 2061, 153 L.Ed.2d 106 (2002) the Supreme Court redefined the factors 4 to be used by the courts in examining allegations of continuing 5 violations and did away with the "systemic" or "serial" dichotomy 6 previously 7 eliminates the need for juries to determine whether there was a 8 systemic or serial violation in order to invoke the continuing 9 violations doctrine". 10 (1st Cir. 2002). The Supreme Court distinguished instead between 11 "discrete discriminatory acts" and "hostile work environment claims" 12 for purposes of determining the timeliness of Title VII actions. 13 According to the Supreme Court, "discrete discriminatory acts 14 are not actionable if time barred, even when they are related to acts 15 alleged in timely filed charges. Each discrete discriminatory act 16 starts a new clock for filing charges alleging that act." 17 536 U.S. at 112. The Supreme Court went on to list specific events 18 which it concluded constituted distinctive actionable claims which 19 marked the term for the limitations period to run. 20 Discrete acts such as termination, failure to promote, 21 denial 22 23 24 25 26 behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. (Emphasis ours). of transfer, or refusal to hire are easy to Morgan, Crowley v. L.L. Bean, Inc., 303 F.3d 387, 410 used for extending the limitations period. "Morgan

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CIVIL NO. 06-1535 (RLA) identify. Each incident of discrimination decision and

Page 10 each a

3 retaliatory 4 separate actionable "unlawful employment practice." 5 Morgan, 536 U.S. at 114 (emphasis ours). 6 On the other hand, "[h]ostile environmental claims are different 7 in kind from discrete acts. 8 conduct... The `unlawful employment practice' therefore cannot be 9 said to occur on any particular day. It occurs over a series of days 10 or perhaps years and, in direct contrast to discrete acts, a single 11 act of harassment may not be actionable on its own." Morgan, 536 U.S. 12 at 115. "As long as the employer has engaged in enough activity to 13 make 14 employment practice has `occurred,' even if it is still occurring. 15 Subsequent events, however, may still be part of the one hostile work 16 environment claim and a charge may be filed at a later date and still 17 encompass the whole." Morgan, 536 U.S. at 117. 18 Illustrating the underlying difference between hostile work 19 environment claims and other discrimination claims, the Court of 20 Appeals in Campbell v. Bankboston, N.A., 327 F.3d 1, 11 (1st Cir. 21 2003) 22 discriminatory change in retirement benefits plan began to run upon 23 plaintiff being advised of the decision. Likewise, following the 24 Morgan precedent in Rosario-Rivera v. P.R. Aqueduct and Sewers Auth., 25 331 F.3d. 183, (1st Cir. 2003) the court rejected plaintiff's notion 26 stated that the limitations period for an alleged out an actionable hostile environment claim, an unlawful Their very nature involves repeated adverse employment constitutes

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that two employment transfers were part of a continuing violation for 3 purposes of the [Title VII] limitations period under a hostile work 4 environment scheme. 5 each such transfer constituted "`a separate and actionable unlawful 6 employment practice.'" Id. at 188-89 (citing Morgan, 536 U.S. at 7 114). 8 separate claims with individual limitations period accruing from the 9 denial of prospective employment and termination from employment); 10 Miller v. New Hampshire Dept. of Corrections, 296 F.3d 18, 22 (1st 11 Cir. 2002) (distinguishing "a discrete act of discrimination - as 12 opposed to a pattern of harassing conduct that, taken as a whole, 13 constitutes 14 continuing violations exception to the limitations period]." Accord, 15 Marrero v. Goya de Puerto Rico, Inc., 304 F.3d 7 (1st Cir. 2002) 16 finding hostile work environment claims timely under the Morgan 17 premise. 18 In this regard it is important to distinguish between the 19 alleged individual acts constituting a pattern of harassment and 20 plaintiff's claim for termination from employment which we previously 21 found was timely.2 Thus, we must ascertain whether any of the alleged 22 harassing events occurred within the preceding 300 days. 23 24 25 26 See Order in the Matter of Defendants' Motion to Dismiss (docket No. 27).
2

Rather, the court specifically determined that

See also,

Dressler v. Daniel, 315 F.3d 75 (1st Cir. 2003) (two

a

hostile

work

environment

[and

falls

within

the

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According to plaintiff, she was subjected to numerous unwanted 3 sexual comments and invitations by MR. CARDONA which created a 4 hostile work environment. 5 It is undisputed that plaintiff filed her EEOC charge on October 6 17, 2005 which would cover discriminatory events back to December 22, 7 2004. However, it appears from the record that plaintiff left the 8 office on December 16, 2004, as per the SIF physician's instructions, 9 never to return inasmuch as she was discharged via a letter mailed to 10 her on December 20, 2004, while she was still on leave. 11 In view of the above and plaintiff having failed to submit 12 evidence of any harassing conduct during the period of time that she 13 was on SIF leave, we find that her hostile environment claim is time14 barred. 15 Quid Pro Quo 16 Plaintiff 17 discriminatory reasons. Specifically, she alleges that it was due to 18 her rejection of MR. CARDONA's sexual advances. 19 "Within 20 prohibited by Title VII, there are various types of harassment 21 claims, each generally treated by courts as analytically distinct 22 from the others. For example, there are quid pro quo harassment 23 claims, there are hostile work environment claims, and there are 24 retaliation claims." Forrest v. Brinker Int'l Payroll Co., 511 F.3d 25 225, 228 (1st 2007). "Quid pro quo sexual harassment also violates 26 the broad category of workplace sexual harassment avers that her employment was terminated for

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Title VII. In this form of harassment, an employee or supervisor uses 3 his 4 subordinate employee, and if denied those favors, retaliates by 5 taking action adversely affecting the subordinate's employment." 6 Valentin-Almeyda, 447 F.3d at 94 (quotations and citations omitted); 7 O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). 8 "Sexual harassment, whether by means of a co-worker's demands for 9 sexual favors as a `quid pro quo' or by the employer's creation or 10 tolerance of a hostile and abusive work environment constitutes 11 discrimination prohibited by Title VII." Gorski, 290 F.3d at 472. 12 "[T]he terms quid pro quo and hostile work environment... 13 illustrate the distinction between cases involving a threat which is 14 carried out and offensive conduct in general". Burlington Indus., 15 Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 141 L.Ed.2d 633 16 (1998). 17 The termination letter adduced that plaintiff's dismissal was 18 based on her "[f]requent insubordination" and "[f]requent lack of 19 respect and high tone of voice when addressing the employer and its 20 employees." 21 Plaintiff, on the other hand, claims that she was dismissed from 22 her 23 24 25 26 According to plaintiff, in June 2004, MR. CARDONA told her that he wanted to take a cruise with her. Some time later on, he insisted on taking plaintiff out to dinner on a Saturday night for Mexican food and listen to mariachis. MR. CARDONA also asked her what kind of man she liked.
3

or

her

superior

position

to

extract

sexual

favors

from

a

employment

because

she

rebuked

MR.

CARDONA's

advances.3

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Additionally, she pointed out that she had never been reprimanded and 3 even submitted a letter recognizing her as employee of the month in 4 April 2004. 5 Based on the foregoing, there are issues of material fact 6 regarding the reason for plaintiff's termination from employment 7 which preclude summary judgment on her discriminatory termination 8 claim under Title VII. 9 Retaliation 10 Defendant has petitioned that plaintiff's Title VII retaliation 11 claim be dismissed. 12 Title VII proscribes retaliation by an employer based on an 13 employee's 14 § 2000e(3)(a). A prima facie retaliation showing requires that 15 plaintiff 16 protected conduct; (2) experienced an adverse employment action; and 17 (3) there is a causal connection between the protected conduct and 18 the ensuing adverse action. Pomales v. Celulares Telefonica, Inc. 447 19 F.3d 79, 84 (1st Cir. 2006); Noviello v. City of Boston, 398 F.3d 76, 20 88 (1st Cir. 2005); Che v. Mass. Bay Tranp. Auth., 342 F.3d 31, 38 (1st 21 Cir. 2003); Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003); Gu 22 v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002); Marrero v. 23 Goya, 304 F.3d at 22. 24 showing 25 approach is employed, and defendant must articulate a legitimate, 26 of retaliation, the McDonnell Douglas burden-shifting "Once the plaintiff has made a prima facie present evidence that: (1) she engaged in Title VII complaint of discriminatory practices. 42 U.S.C.

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non-retaliatory reason for its employment decision. If the defendant 3 meets this burden, the plaintiff must now show that the proffered 4 legitimate reason is in fact a pretext and that the job action was 5 the result of the defendant's retaliatory animus." Calero-Cerezo v. 6 U.S. Dept. of Justice, 355 F.3d 6, 26 (1st Cir. 2004); Wright v. 7 CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003); Che, 342 F.3d at 39. 8 Should the employer advance a legitimate reason for its decision, 9 "the 10 employer's 11 Mesnick, 950 F.2d 816, 827 (1st Cir. 1991). 12 Assuming plaintiff has in effect plead a cause of action for 13 retaliation based on the federal anti-discrimination statute, we find 14 the evidence lacking. The record is devoid of any protected conduct 15 which would serve as a basis for the retaliation. As a matter of 16 fact, plaintiff indicated that she never complained of the alleged 17 comments to anyone. 18 SUPPLEMENTAL JURISDICTION 19 The court having declined to dismiss all the Title VII claims, 20 the request to decline supplemental jurisdiction is DENIED. 21 CONCLUSION 22 Based on the foregoing, the Motion for Summary Judgment filed by 23 codefendant BLUE BAY PROFESSIONAL SERVICES, INC. (docket No. 39)4 is 24 disposed of as follows: 25 26
4

ultimate

burden

falls reason

on is

the

plaintiff

to

show

that

the

proffered

pretext

masking

retaliation...."

Plaintiff's Opposition (docket No. 48).

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Plaintiff's sexual harassment claim pursuant to Title VII is DISMISSED as time-barred.

3 4 5 pursuant to Title VII is DENIED. 6 7 DISMISSED. 8 9 DENIED. 10 Judgment shall be entered accordingly. 11 IT IS SO ORDERED. 12 San Juan, Puerto Rico, this 23rd day of September, 2008. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge The petition to dismiss plaintiff's supplemental claims is Plaintiff's retaliation claim pursuant to Title VII is The petition to dismiss plaintiff's quid pro quo claim