Camacho-Acosta et al v. Harbor Holdings & Operations, Inc. et al
Filing
70
ORDER granting in part 36 Motion for Summary Judgment. Signed by Judge Raymond L. Acosta on 12/21/09. (ans)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
MORIDIA CAMACHO ACOSTA, et al., Plaintiffs, CIVIL NO. 07-1109 (RLA) v. HARBOR HOLDINGS & OPERATIONS, INC., et al., Defendants.
ORDER IN THE MATTER OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Defendants have moved the court to enter summary judgment on their behalf and to dismiss the instant complaint. The court having reviewed the arguments presented by the parties in their respective memoranda as well as the extensive documentation submitted therewith hereby disposes of defendants' request as follows. Plaintiff MORIDIA CAMACHO ACOSTA1 instituted these proceedings claiming sexual harassment, gender discrimination and retaliation pursuant to the provisions of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e(3) and § 2000e(5) as well as various local discrimination provisions.2
Plaintiff's husband, JOSE A. VELEZ DUVERGE, also seeks relief based on local tort provisions. Puerto Rico 29, §§ 146 et seq. 69 of July 6, 1985, (retaliation); Act
2
1
Act No. 100 of June 30, 1959, P.R. Laws Ann. tit. (2002) (sex discrimination); Puerto Rico Act No. Laws of P.R. Ann. tit. 29, §§ 1321 et seq. (2002) No. 17 of April 22, 1988, P.R. Laws Ann. tit. 29
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C I V I L NO. 07-1109 (RLA)
Page 2
Relief was also petitioned under the provisions of Act No. 139
3
of June 26, 1968, P.R. Laws Ann. tit. 11, §§ 201 et seq. (2007)
4
("Temporary Disability Benefit Act").
5
Plaintiff further claims unjust termination pursuant to Act 80
6
of May 30, 1976, P.R. Laws Ann. tit. 29, §§ 185a-185k (2002) ("Law
7
80") and breach of contract. The complaint also asserts tort claims
8
under arts. 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws
9
Ann. tit. 31, §§ 5141-5142 (2002).
10
Named
11 12
defendants
are:
HARBOR
HOLDINGS
&
OPERATIONS,
INC.
("HH&O"), SAN JUAN BAY PILOTS ("SJBP"), STEPHEN RIVERA, CESAR A. MONTES, JOSEPH ESTRELLA, DANIEL MURPHY, EMIL DIAZ, ROBERTO CANDELARIO
13
and FULGENCIO ANAVITATE.
14
I. SUMMARY JUDGMENT STANDARD
15
Rule 56(c) Fed. R. Civ. P., which sets forth the standard for
16
ruling on summary judgment motions, in pertinent part provides that
17
they shall be granted "if the pleadings, depositions, answers to
18
interrogatories,
19 20
and
admissions
on
file,
together
with
the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as
21
a matter of law."
22 23
Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st
Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 1999). The party seeking summary judgment must first demonstrate the
24 25 26
§ 155 (2002) (Law 17) (sexual harassment); Act No. 3 of March 13, 1942, P.R. Laws Ann. tit. 29, § 469 (2002) (pregnancy discrimination).
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C I V I L NO. 07-1109 (RLA)
Page 3
absence
3 4
of
a
genuine
issue
of
material
fact
in
the
record.
DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997).
5
A genuine
issue exists if there is sufficient evidence supporting the claimed factual disputes to require a trial. Morris v. Gov't Dev. Bank of
6
Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am.
7
Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S.
8
1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994).
9 10
A fact is material if
it might affect the outcome of a lawsuit under the governing law. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir.
11
1995).
12
"In ruling on a motion for summary judgment, the court must view
13
`the facts in the light most favorable to the non-moving party,
14
drawing all reasonable inferences in that party's favor.'" Poulis15
Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v.
16
Dynamics
17 18
Research
Corp.,
63
F.3d
32,
36
(1st
Cir.
1995)).
"In
marshaling the facts for this purpose we must draw all reasonable inferences in the light most favorable to the nonmovant. That does
19
not mean, however, that we ought to draw unreasonable inferences or
20
credit
21 22
bald
assertions,
empty
conclusions,
rank
conjecture,
or
vitriolic invective." Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (internal citation omitted, italics in
23
original).
24
Credibility issues fall outside the scope of summary judgment.
25
"`Credibility determinations, the weighing of the evidence, and the
26
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C I V I L NO. 07-1109 (RLA)
Page 4
drawing of legitimate inferences from the facts are jury functions,
3
not those of a judge.'" Reeves v. Sanderson Plumbing Prods., Inc.,
4
530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing
5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
6
91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe,
7
Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("court should not engage in
8
credibility assessments"); Simas v. First Citizens' Fed. Credit
9
Union, 170 F.3d 37, 49 (1st Cir. 1999) ("credibility determinations
10
are for the factfinder at trial, not for the court at summary
11
judgment"); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st
12
Cir. 1998) (credibility issues not proper on summary judgment);
13
Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d
14
108,
15 16
113
(D.P.R.
2002).
"There
is
no
room
for
credibility
determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, and no room for the judge
17
to superimpose his own ideas of probability and likelihood. In fact,
18
only if the record, viewed in this manner and without regard to
19
credibility determinations, reveals no genuine issue as to any
20
material fact may the court enter summary judgment." Cruz-Baez v.
21
Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal
22
citations, brackets and quotation marks omitted).
23
In cases where the non-movant party bears the ultimate burden of
24
proof, he must present definite and competent evidence to rebut a
25
motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477
26
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C I V I L NO. 07-1109 (RLA)
Page 5
U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v.
3
Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001); Grant's Dairy v. Comm'r
4
of Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot
5
rely
6 7
upon
"conclusory
allegations,
improbable
inferences,
and
unsupported speculation". 409, 412 (1st Cir. 2000);
8 9
Lopez-Carrasquillo v. Rubianes, 230 F.3d Maldonado-Denis v. Castillo-Rodríguez, 23 R.J. Reynolds Tobacco
F.3d 576, 581 (1st Cir. 1994); Medina-Muñoz v. Co., 896 F.2d 5, 8 (1st Cir. 1990).
10
Any testimony used in support of discriminatory motive in a
11
motion for summary judgment setting must be admissible in evidence,
12
i.e., based on personal knowledge and otherwise not contravening
13
evidentiary
14
principles. submitted in
Rule
56(e)
specifically with the
mandates
that
affidavits
15 16
conjunction
summary
judgment
mechanism must "be made on personal knowledge, shall set forth such facts
17 18
as
would
be
admissible
in
evidence,
and
shall
show
affirmatively that the affiant is competent to testify to the matters stated therein." Hoffman v. Applicators Sales and Serv., Inc., 439
19
F.3d 9, 16 (1st Cir. 2006); Nieves-Luciano v. Hernandez-Torres, 397
20
F.3d 1, 5 (1st Cir. 2005); Carmona v. Toledo, 215 F.3d 124, 131 (1st
21
Cir. 2000). See also, Quiñones v. Buick, 436 F.3d 284, 290 (1st Cir.
22
2006) (affidavit inadmissible given plaintiff's failure to cite
23
"supporting
24
evidence the
to
which
he
could concern
testify facts as
in
court"). to
Additionally,
25
document
"must
opposed
conclusions, assumptions, or surmise", Perez v. Volvo Car Corp., 247
26
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C I V I L NO. 07-1109 (RLA)
Page 6
F.3d 303, 316 (1st Cir. 2001), not conclusory allegations Lopez3
Carrasquillo v. Rubianes, 230 F.3d at 414.
4
"To the extent that affidavits submitted in opposition to a
5
motion for summary judgment merely reiterate allegations made in the
6
complaint, without providing specific factual information made on the
7
basis of personal knowledge, they are insufficient. However, a
8
party's own affidavit, containing relevant information of which he
9
has firsthand knowledge, may be self-serving, but it is nonetheless
10
competent
11 12
to
support
or
defeat
summary
judgment."
Santiago
v.
Centennial, 217 F.3d 46, 53 (1st Cir. 2000) (internal citations and quotation marks omitted).
13
"A court is not obliged to accept as true or to deem as a
14
disputed
15
material
fact
each
and
every
unsupported,
subjective,
conclusory, or imaginative statement made to the Court by a party."
16
Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.5 (1st Cir.
17
2008) (internal citation, brackets and quotation marks omitted).
18
II. FACTUAL BACKGROUND
19
Plaintiff was hired by codefendant HH&O on May 3, 2001, as an
20
accountant at the rate of $12.00 per hour. This was the rate that
21
plaintiff requested at the time she was initially hired.
22
Throughout her tenure, plaintiff was the only female employee
23
working at HH&O.
24
The elected President of the Board of Directors acts as Chief of
25
Personnel of all HH&O's employees.
26
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C I V I L NO. 07-1109 (RLA)
Page 7
Codefendant STEPHEN RIVERA, then President of the Board of
3
Directors of HH&O, interviewed and hired plaintiff.
4
Codefendant HH&O is a corporation created to operate, manage,
5
develop and administer the facilities, services and any other matters
6
related to the services rendered by the harbor pilots in San Juan,
7
Puerto Rico.
8
Codefendant SJBP is a duly organized corporation that groups the
9
harbor pilots serving the port of San Juan, Puerto Rico as the only
10
pilots' association recognized by the Pilotage Commission for the San
11
Juan Harbor.
12
The individual harbor pilots are independent contractors who
13
provide their services to SJBP. The SJBP does not have any employees
14
on its payroll.
15
The harbor pilots are the individuals responsible for bringing
16
in ships into the San Juan bay. They divide their work shifts in two17
week periods. They work for two weeks and are off duty the following
18
two
19 20
weeks.
Thus,
their
period
of
service
within
a
year
is
approximately 26 weeks, excluding vacation time. The harbor pilots are not required to be present at the offices of HH&O when on duty.
21
During her deposition, plaintiff described her duties as an
22
accountant for HH&O as follows: in charge of completing the entire
23
accounting cycle (i.e., income tax returns, bank reconciliations,
24
general
25 26
ledger,
budget),
accounts
payable,
debt
collection
and
payment to the harbor pilots for services rendered.
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C I V I L NO. 07-1109 (RLA)
Page 8
Plaintiff further noted that codefendant EMIL DIAZ was in charge
3
of
4 5
accounts
receivable,
accounts
payable,
billing
agencies,
collection agencies, employee payroll and billing small vessels. On September 28, 2001, plaintiff was notified of a salary
6
increase from HH&O effective October 1, 2001. The compensation
7
package also included fringe benefits such as medical insurance, life
8
insurance,
9 10
reimbursement
of
$500.00
in
medical
deductibles
and
$275.00 for an annual medical exam. Via
11 12
a
letter
dated
October
10,
2002,
codefendant
ROBERTO
CANDELARIO, then President of the Board of Directors, notified plaintiff of a 7% salary increase. In 2002 plaintiff continued to
13
enjoy the same fringe benefits. Further, once she had worked a full
14
year as a permanent employee plaintiff was also added to the 401k
15
plan.
16
On October 3, 2005, plaintiff filed a Charge of Discrimination
17
with the Anti-Discrimination Unit of the Puerto Rico Department of
18
Labor
19 20
("PR-DOL")
claiming
gender
discrimination
and
sexual
harassment. On
21 22
October
19,
2005, the
plaintiff
filed
a
second of
Charge the
of
Discrimination
23
with
Anti-Discrimination
Unit
PR-DOL
alleging gender discrimination and retaliation. Plaintiff did not identify or name SJBP as her employer in any
24
of her discrimination charges.
25 26
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C I V I L NO. 07-1109 (RLA)
Page 9
On November 14, 2005 plaintiff left work before the end of her
3
shift and filed a criminal complaint in the local police station
4
charging MONTES with breach of peace.
5
According to the police records, this complaint was dismissed
6
due to lack of interest. Plaintiff alleges that she was unaware that
7
the complaint had been dismissed by the police.
8
The following day, on November 15, 2005, plaintiff reported for
9
treatment at the Puerto Rico State Insurance Fund ("SIF").
10
Plaintiff never returned to work after November 14, 2005. She
11
never resigned from her employment either verbally or in writing even
12
after being released from treatment by the SIF in May 2006.
13
In 2006 HH&O hired MARI TERE RIVERA as an Accountant, initially
14
on a temporary basis. She was subsequently employed on a permanent
15
basis when plaintiff did not return to her job after being discharged
16
from treatment by the SIF.
17
III. TITLE VII - SEXUAL HARASSMENT
18
A. The Law
19
The protection against discrimination in employment based on sex
20
provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C.
21
§ 2000e-2(a)(1) has been expanded to areas beyond strictly "economic"
22
and "tangible discrimination" to situations where "sexual harassment
23
is so severe or pervasive as to alter the condition of the victim's
24
employment and create an abusive working environment." Faragher v.
25
City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 2283, 141
26
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C I V I L NO. 07-1109 (RLA)
Page 10
L.Ed.2d 662, 675 (1998) (citations, internal quotation marks and
3
brackets omitted); Billings v. Town of Grafton, 515 F.3d 39, 47 (1st
4
Cir. 2008); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct.
5
367, 370, 126 L.Ed.2d 295, 302 (1993); Meritor Sav. Bank, FSB v.
6
Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49, 60
7
(1986); Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005).
8
Ascertaining which particular conduct falls within the "severe
9
or pervasive" realm in order to trigger Title VII protection is no
10
easy task.
11 12
However, "in order to be actionable under the statute, a
sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find
13
hostile or abusive, and one that the victim in fact did perceive to
14
be so." Faragher, 524 U.S. at 787, 118 S.Ct. at 2283, 141 L.Ed.2d at
15
676; Billings, 515 F.3d at 47; Noviello, 398 F.3d at 92. The court
16
will examine the totality of the circumstances to determine whether
17
the degree of the hostile or abusive environment the employee is
18
subjected to is intense enough to fit within Title VII protection.
19
Faragher, 524 U.S. at 787, 118 S.Ct. at 2283, 141 L.Ed.2d at 676;
20
Noviello, 398 F.3d at 92; Lee-Crespo v. Schering-Plough del Caribe,
21
Inc., 354 F.3d 34, 46 (1st Cir. 2003); Che v. Mass. Bay Transp. Auth.,
22
342 F.3d 31, 40 (1st Cir.
23 24
2003).
[W]hether the environment is objectively hostile or abusive must be answered by reference to all the circumstances,
25
including the frequency of the discriminatory conduct; its
26
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C I V I L NO. 07-1109 (RLA)
Page 11
severity;
3 4
whether
it
is
physically
threatening
or
humiliating, or a mere offensive utterance, and whether it unreasonably
5
interferes
with
an
employee's
work
performance.
6
Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18-19 (1st Cir. 2002)
7
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct.
8
367, 126 L.Ed.2d 295 (1993)) (internal citations omitted); Noviello,
9
398 F.3d at 92; Lee-Crespo, 354 F.3d at 46; Che, 342 F.3d at 40;
10
Gorski v. New Hampshire Dep't of Corrections, 290 F.3d 466, 472 (1st
11
Cir. 2002); Conto v. Concord Hosp., Inc., 265 F.3d 79, 82 (1st Cir.
12
2001); O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir.
13
2001).
14
The First Circuit Court of Appeals summarized the elements
15
plaintiff
16 17
must
prove
in
order
to
succeed
in
her
hostile
work
environment claim as set forth by the Supreme Court.
18
These are:
(1) that she... is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that
19
the harassment was based upon sex; (4) that the harassment
20
was sufficiently severe or pervasive so as to alter the
21
conditions of plaintiff's employment and create an abusive
22
work environment; (5) that sexually objectionable conduct
23
was both objectively and subjectively offensive, such that
24
a reasonable person would find it hostile or abusive and
25 26
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C I V I L NO. 07-1109 (RLA)
Page 12
the victim in fact did perceive it to be so; and (6) that
3
some basis for employer liability has been established.
4
O'Rourke, 235 F.3d at 728.
5
A hostile work environment may result from "sexual remarks,
6
innuendoes, ridicule and intimidation ... disgusting comments" Goya,
7
304 F.3d at 19 (citations and internal quotations omitted) "unwelcome
8
sexual advances or demands for sexual favors" Gorski, 290 F.3d at 472
9
(citations and internal quotations omitted) which are "sufficiently
10
severe
11 12
or
pervasive
to
alter
the
conditions
of
the
victim's
employment and create an abusive working environment." O'Rourke, 235 F.3d at 728 (citations and quotation marks omitted). See also,
13
Noviello, 398 F.3d at 84.
14
"The point at which a work environment becomes hostile or
15
abusive does not depend on any mathematically precise test. Instead
16
the objective severity of harassment should be judged from the
17
perspective of a reasonable person in the plaintiff's position
18
considering all the circumstances. These circumstances may include
19
the frequency of the discriminatory conduct; its severity; whether it
20
is
21 22
physically
threatening
or
humiliating,
or
a
mere
offensive
utterance; and whether it unreasonably interferes with an employees' work performance, but are by no means limited to them, and no single
23
factor is required." Billings, 515 F.3d at 48 (internal citations and
24
quotation marks omitted).
25 26
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C I V I L NO. 07-1109 (RLA)
Page 13
Courts must discern between "commonplace indignities typical of
3
the workplace (such as tepid jokes, teasing, or aloofness... and
4
severe or pervasive harassment... [and] [t]he thrust of this inquiry
5
is to distinguish between the ordinary, if occasionally unpleasant,
6
vicissitudes of the workplace and actual harassment." Id at 92. See
7
also, Lee-Crespo, 354 F.3d at 37 (supervisor's conduct found "boorish
8
and unprofessional" and plaintiff "subjected to incivility" "but...
9
incidents... not severe or pervasive enough to alter the terms and
10
conditions of [plaintiff's] employment").
11
"No particular `types of behavior' are essential to a hostile
12
environment claim." Billings, 515 F.3d at 48."[T]he hostility vel non
13
of a workplace does not depend on any particular kind of conduct;
14
indeed, a worker need not be propositioned, touched offensively, or
15
harassed by sexual innuendo in order to have been sexually harassed."
16
Billings, 515 F.3d at 48 (internal citations, quotation marks and
17
brackets omitted).
18
It
19 20
is
plaintiff's
burden
to
establish
the
severity
and
pervasiveness of the harassment sufficient to alter the conditions of her employment. Conto, 265 F.3d at 82. In this particular case
21
plaintiff must also present evidence that the harassment was based on
22
plaintiff's gender. Lee-Crespo, 354 F.3d at 44 n.6.
23
Because this determination is "fact specific" Conto, 265 F.3d at
24
81, ordinarily "it is for the jury to weigh those factors and decide
25
whether the harassment was of a kind or to a degree that a reasonable
26
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C I V I L NO. 07-1109 (RLA)
Page 14
person would have felt that it affected the conditions of her
3
employment."
4 5
Goya, 304 F.3d at 19.
See also, Che, 342 F.3d at 40
("[a]s a general matter, these are questions best left for the jury.")
6
B. The Facts
7
According to plaintiff, the following three incidents involving
8
ESTRELLA constitute her only claims of purported sexual harassment
9
while employed with HH&O.3
10
On September 2, 2005 and on September 6, 2005, ESTRELLA told
11
plaintiff that if she deposited funds on that day he would kiss her
12
and on September 13, 2005, ESTRELLA told her she looked tired and
13
offered to give a rub with Ben Gay ointment. Plaintiff testified in
14
her deposition that these three incidents - which took place in
15
September 2005 - were the only comments or acts which she deemed
16
sexual harassment on his part.
17
Plaintiff alleges that apart from rejecting these advances and
18
avoiding ESTRELLA, she
19 20
brought them to the attention of EMIL DIAZ
who failed to take any corrective action. DIAZ denies having received any such complaints.
21
ESTRELLA rejected any discriminatory connotation to his remarks
22
explaining that it was their custom to greet each other with a kiss
23
on the cheek when he met plaintiff and that he used the phrase "If
24 25 26 See Opposition to Motion for Summary Judgment (docket No. 42) p p . 9-10, ¶¶ 23-25.
3
1 2
C I V I L NO. 07-1109 (RLA)
Page 15
you are hurting, a little Ben Gay will take the pain away" with
3
everyone at the office.
4
Even assuming ESTRELLA's remarks were impregnated with the
5
sexual connotation proffered by plaintiff, we find that these three
6
isolated incidents, albeit undesirable in a work setting, do not meet
7
the severity and pervasiveness required by law. In other words, these
8
three
9 10
comments
are
legally
insufficient
to
alter
plaintiff's
conditions of employment necessary to meet the hostile environment requirements.
11
Based on the foregoing, plaintiff's Title VII sexual harassment
12
claim is DISMISSED.
13
IV. CONSTRUCTIVE DISCHARGE
14
As the term unequivocally connotes, the sine qua non requirement
15
for a constructive discharge claim is that a plaintiff is compelled
16
to leave his or her employment.
17
[T]he purpose of the constructive discharge doctrine [is]
18
to protect employees from conditions so unreasonably harsh
19
that a reasonable person would feel compelled to leave the
20
job. The doctrine reflects the sensible judgment that
21
employers charged with employment discrimination ought to
22
be accountable for creating working conditions that are so
23
intolerable to a reasonable employee as to compel that
24
person to resign.
25 26
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C I V I L NO. 07-1109 (RLA)
Page 16
Ramos v. Davis & Geck, Inc., 167 F.3d 727, 732 (1st Cir. 1999). See
3
also, Feliciano-Hill v. Principi, 439 F.3d 18, 27 (1st Cir. 2006);
4
Vieques Air Link, Inc. v. U.S. Dep't of Labor, 437 F.3d 102, 108 (1st
5
Cir. 2006).
6
In order to establish a claim based on constructive discharge
7
"plaintiff must prove that his employer imposed working conditions so
8
intolerable that a reasonable person would feel compelled to forsake
9
his job rather than to submit to looming indignities." Landrau-Romero
10
v. Banco Popular de P.R., 212 F.3d 607, 613 (1st Cir. 2000) (citations
11
and internal quotations omitted); Jorge v. Rumsfeld, 404 F.3d 556,
12
562 (1st Cir. 2005);
13 14
Simas v. First Citizen's Fed. Credit Union, 170
F.3d 37, 46 (1st Cir. 1999); Serrano-Cruz v. DFI Puerto Rico, Inc., 109
15 16
F.3d
23,
26
(1st
Cir.
1997).
See
also,
Melendez-Arroyo
v.
Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) ("treatment so hostile or degrading that no reasonable employee would
17
tolerate continuing in the position").
18
The "subjective perceptions" of the employee are insufficient.
19
The reasonableness of plaintiff's decision to leave his employment is
20
an objective one and will be examined based on the ability to
21
"present sufficient evidence to allow the jury to credit his claim
22
that a reasonable employee would have felt compelled to resign under
23
the circumstances,"
24 25
Ramos v. Davis & Geck, Inc., 167 F.3d at 731 and
"cannot be triggered solely by the employee's subjective beliefs, no matter how sincerely held."
26
Marrero v. Goya of P.R., Inc., 304 F.3d
1 2
C I V I L NO. 07-1109 (RLA)
Page 17
at 28. See also, Feliciano-Hill, 439 F.3d at 27 and Serrano-Cruz, 109
3
F.3d at 26 (applying "objective standard" in examining employer's
4
actions).
5
Plaintiff is not required to present "proof that the employer
6
created the intolerable work conditions with the specific intent of
7
forcing the employee to resign." Ramos v. Davis & Geck, Inc., 167
8
F.3d at 732.
9
The court is faced with the difficult task of sorting through
10
the considerable number of proposed uncontested facts submitted by
11
plaintiff in an attempt to get them to fit within the myriad claims
12
asserted
13 14
by
her.
Even
though theory
both of
parties relief
have
addressed
the
constructive
15
discharge
in
their
respective
memoranda, no reference to any particular statute has been proffered to support this particular cause of action. Thus, we shall assume
16
that the constructive discharge claim was a culmination of the
17
allegedly discriminatory harassment asserted under Title VII.
18
Constructive discharge that results from sexual harassment or a
19
hostile work environment is actionable under Title VII. Pennsylvania
20
State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159
21
L.Ed.2d 204 (2004). The Supreme Court has indicated that the hostile
22
work environment claim is a "lesser included component" of "the
23
graver claim of hostile-environment constructive discharge". Id. at
24
149 (italics in original). In other words, "[c]reation of a hostile
25
work environment is a necessary predicate to a hostile-environment
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 18
constructive discharge case... [T]he only variation between the two
3
claims is the severity of the hostile working conditions." Id.
4
According to plaintiff, she was subjected to working conditions
5
so intolerable that she felt compelled to forsake her job. In her
6
memorandum, plaintiff claims that prevailing atmosphere during her
7
last months at work was permeated with constant harassment which
8
forced her to leave work.
9
However, because we have dismissed plaintiff's underlying sexual
10
harassment claim we need not pursue arguments regarding alleged
11
harassment culminating in discharge.
12
Accordingly, plaintiff's constructive discharge claim is hereby
13
DISMISSED.
14
V. GENDER BASED DISCRIMINATION - WORKING CONDITIONS AND PAY
15
Plaintiff further alleges gender based discrimination due to
16
changes to her work schedule, salary increases and fringe benefits as
17
well as difference in pay.
18
A. Burden of Proof
19
Art. 703 of Title VII of the 1964 Civil Rights Act, as amended,
20
makes it unlawful for an employer to "discriminate against any
21
individual with respect to his compensation, terms, conditions, or
22
privileges of employment because of such individual's ... [sex]... or
23
national origin". 42 U.S.C. § 2000e-2(a)(1).
24
In
25 26
cases
where
direct
evidence
of
discrimination
is
not
available, claims alleging denial of "equal terms and conditions of
1 2
C I V I L NO. 07-1109 (RLA)
Page 19
employment because of [gender]" are subject to the McDonnel Douglas
3
burden shifting framework. Kosereis v. Rhode Is., 331 F.3d 207, 212
4
(1st Cir. 2003). See also, Rodriguez v. Smithkline Beecham, 224 F.3d
5
1, 8 (1st Cir. 2000) (absent direct evidence of discrimination,
6
plaintiff must follow the McDonnell Douglas burden-shifting framework
7
by presenting evidence sufficient to constitute a prima facie case of
8
wage discrimination).
9
In order to meet her initial burden in this action, plaintiff
10
must "show[] by a preponderance of the evidence that she has a job
11
similar to that of higher paid males. Once that prong is established,
12
the defendant must merely provide a non-discriminatory reason for the
13
disparity. The third stop in the evidentiary structure is that the
14
plaintiff must demonstrate by a preponderance of the evidence that
15
the employer's reason is a pretext for unlawful discrimination."
16
Rodriguez v. Smithkline Beecham, 62 F.Supp.2d 374, 383 (D.P.R. 1999),
17
aff'd, 224 F.3d 1 (internal citations omitted).
18
Even though they may, in disparate treatment cases plaintiffs
19
are not required to show that they were treated differently than non20
members as part of their prima facie case. "`[T]he time to consider
21
comparative evidence in a disparate treatment case is at the third
22
step of the burden-shifting ritual, when the need arises to test the
23
pretextuality vel non of the employers' articulated reason for having
24
acted adversely to the plaintiff's interest.'" Kosereis, 331 F.3d at
25 26
1 2
C I V I L NO. 07-1109 (RLA)
Page 20
213 (citing Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir.
3
1999); Garcia, 535 F.3d at 31.
4
"A plaintiff can demonstrate that an employer's stated reasons
5
are pretextual in any number of ways, including by producing evidence
6
that
7 8
plaintiff
was
treated
differently
from
similarly
situated
employees. To successfully allege disparate treatment, a plaintiff must show that others similarly situated to her in all relevant
9
respects were treated differently by the employer. The comparison
10
cases need not be perfect replicas, but they must closely resemble
11
one another in respect to relevant facts and circumstances." Garcia,
12
535 F.3d at 31 (internal citations, brackets and quotation marks
13
omitted). See Rivera Aponte v. Restaurant Metropol #3, Inc., 338 F.3d
14
9, 12 (1st Cir. 2003) ("[A] claim of disparate treatment based on
15
comparative evidence must rest on proof that the proposed analogue is
16
similarly situated in all material respects") (quotation omitted).
17
See also, Rivera-Rodriguez v. Frito Lay, 265 F.3d 15, 25 (1st Cir.
18
2001); Rivas v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002);
19
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st Cir.
20
1999).
21
In examining the matters at issue we must bear in mind that
22
"whether or not personal or professional hostility played a role in
23
the assessment, federal law does not protect generally against
24
arbitrary or unfair treatment in private employment, but only against
25
actions motivated by listed prejudices such as race, age and gender.
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 21
Discrimination is a form of unfairness; but not all unfairness is
3
discrimination." Sabinson v. Trustees of Dartmouth Coll., 542 F.3d 1,
4
4 (1st Cir. 2008).
5
B. Work Schedule
6
Plaintiff
7 8
claims
that
changes
in
her
work
schedule
were
discriminatory. When plaintiff was initially hired, her working hours were from 6:30 a.m. to 3:30 p.m. Effective February 8, 2004, the
9
Accounting Department hours were changed to commence at 7:00 a.m.
10
until 4:00 p.m. in order to provide better service to the shipping
11
agencies. Effective February 28, 2005, the work shifts for both
12
plaintiff and IVAL GUTIERREZ were changed again to commence at 8:00
13
a.m. until 5:00 p.m.
14
Based on the foregoing, we find this allegation without merit.
15
Plaintiff has failed to establish that she was treated differently
16
from her male counterparts. The changes at issue equally affected
17
male employees and no evidence of pretext has been found.4
18
Accordingly,
19 20
the
gender
discrimination
claim
based
on
plaintiff's work schedule is DISMISSED. C. Salary Revisions and Fringe Benefits
21
We find that plaintiff's salary revisions and Christmas bonuses
22
were not discriminatory based on her gender. Plaintiff's salary was
23
never reduced nor was she ever demoted. She continued to have the
24 25 26
Additionally, effective February 10, 2003, the work schedule in the Mechanics Department was also changed to commence at 7:00 a.m. until 4:00 p.m.
4
1 2
C I V I L NO. 07-1109 (RLA)
Page 22
same benefits while employed. She received salary increases in 2001,
3
2002, and 2005. It is undisputed that in 2003 and 2004 no employee
4
received a salary increase.
5
Plaintiff argues that in 2002 her salary was increased by only
6
7%. However, as pointed out by defendants, when compared to the male
7
employees plaintiff did no worse than them. That year another male
8
employee received the same increase percentage while another three
9
received 5% and one only 3%.
10
Plaintiff also contends that in 2005 her pay increase was only
11
9 cents. However, the amounts awarded as salary increases for that
12
year
13 14
overall were minor. Further, plaintiff had two warnings in her
record at the time. Lastly, during her tenure plaintiff always received a Christmas
15
bonus which was higher than the amounts received by the vast majority
16
of the male employees.
17
Accordingly, plaintiff's
18 19
gender discrimination claim based on
salary revisions and benefits is DISMISSED. D. Difference in Pay
20
Plaintiff contends that when she was hired RIVERA promised that
21
her salary would be $18.00 per hour, plus a $500.00 monthly car
22
allowance and payment of accounting fees for small ships of SJBP.
23
According to plaintiff, she felt discriminated based on gender
24
because she was not given the salary and benefits she had been
25
promised by RIVERA. According to plaintiff she was advised by STEPHEN
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 23
RIVERA that she would be carrying out all duties previously performed
3
by RUBEN JIMENEZ, her predecessor, and that upon becoming a permanent
4
employee she would be receiving his same salary and fringe benefits.
5
Additionally, RUBEN JIMENEZ was paid a monthly fee for the small
6
vessels which she was also promised. Plaintiff was assigned the
7
accounting for the small vessels. However, she contends that she was
8
paid for this service only once in 2002 after becoming a permanent
9
employee.5 Payment was discontinued purportedly upon STEPHEN RIVERA's
10
objection who alleged that EMIL DIAZ was the only person in charge of
11
small vessels.
12
We find that plaintiff has met her prima facie burden to
13
establish wage disparity. She was a female and was paid less than her
14
predecessor while occupying the same position. Other than denying any
15
such promises were made and arguing that the purported agreement was
16
a misunderstanding on plaintiff's part, defendants have not proffered
17
any non-discriminatory reasons to account for the difference in pay.
18
Accordingly, we DENY defendants' request to dismiss plaintiff's
19
claim based on a discriminatory pay scale with respect to her
20
predecessor.6
21 22 23 24 25 26 See Letter from CANDELARIO dated July 31, 2002, notifying p l a i n t i f f that commencing on the third trimester of 2002, upon having c o n c l u d e d her probationary one year period, she would be paid 5% of t h e total small vessels' revenue for her accounting services to the S J BP .
5
This claim is separate from any breach of contract cause of action plaintiff may have pled.
6
1 2
C I V I L NO. 07-1109 (RLA)
Page 24
VI. RETALIATION - THE LAW
3
"Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a),
4
states that it is unlawful for an employer to discriminate against an
5
employee because `he has opposed any practice made an unlawful
6
employment practice..., or because he has made a charge, testified,
7
assisted,
8 9
or
participated
in
any
matter
in
an
investigation,
proceeding, or hearing.'" DeClaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008).
10
The interests sought to be protected by Title VII's anti11
discrimination mandate differ from those underlying its retaliation
12
clause.
13 14
"The
substantive
provision
seeks
to
prevent
injury
to
individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on
15
what they do, i.e., their conduct." Burlington N. & Santa Fe Ry. Co.
16
v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
17
"It therefore does not matter for retaliation purposes whether [the
18
employer] would have treated a male [employee] the same way he
19
treated [plaintiff]. The relevant question is whether [the employer]
20
was retaliating against [plaintiff] for filing a complaint, not
21
whether he was motivated by gender bias at the time." DeClaire, 530
22
F.3d at 19.
23
Hence, for retaliation purposes "[t]he relevant conduct is that
24
which occurred after [plaintiff] complained about his superior's
25
[discriminatory] related harassment." Quiles-Quiles v. Henderson, 439
26
F.3d 1, 8 (1st Cir. 2006).
1 2
C I V I L NO. 07-1109 (RLA)
Page 25
A. Burden of Proof
3
"The evidence of retaliation can be direct or circumstantial."
4
DeClaire, 530 F.3d at 20. Unless direct evidence is available, Title
5
VII retaliation claims may be proven by using the burden-shifting
6
framework
7
set a
forth
down
in
McDonnell of
Douglas. a
"In
order
to
establish
8 9
prima
facie
case
retaliation,
plaintiff
must
establish three elements. First, the plaintiff must show that he engaged
10 11
in
a
protected
activity.
Second,
the
plaintiff
must
demonstrate he suffered a materially adverse action, which caused him harm, either inside or outside of the workplace. The impact of this
12
harm must be sufficient to dissuade a reasonable worker from making
13
or supporting a charge of discrimination. Third, the plaintiff must
14
show that the adverse action taken against him was causally linked to
15
his protected activity." Mariani-Colon v. Dep't of Homeland Sec. ex
16
rel., 511 F.3d 216, 223 (1st Cir. 2007) (citations and internal
17
quotation marks omitted); Moron-Barradas v. Dep't of Educ. of Com. of
18
Puerto, 488 F.3d 472, 481 (1st Cir. 2007); Quiles-Quiles, 439 F.3d
19
at 8.
20
"Under the McDonnell Douglas approach, an employee who carries
21
her burden of coming forward with evidence establishing a prima facie
22
case of retaliation creates a presumption of discrimination, shifting
23
the
24 25
burden
to
the
employer
to
articulate
a
legitimate,
non-
discriminatory reason for the challenged actions... If the employer's evidence
26
creates
a
genuine
issue
of
fact,
the
presumption
of
1 2
C I V I L NO. 07-1109 (RLA)
Page 26
discrimination drops from the case, and the plaintiff retains the
3
ultimate burden of showing that the employer's stated reason for the
4
challenged actions was in fact a pretext for retaliating." Billings
5
v. Town of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) (citations,
6
internal quotation marks and brackets omitted).
7
"[A]n employee engages in protected activity, for purposes of a
8
Title VII retaliation claim, by opposing a practice made unlawful by
9
Title VII, or by participating in any manner in an investigation or
10
proceeding under Title VII." Mariani-Colon, 511 F.3d at 224.
11
"[Title VII's] anti-retaliation provision protects an individual
12
not from all retaliation, but from retaliation that produces an
13
injury or harm." Burlington, 548 U.S. at 67. In order to prevail on
14
a retaliation claim "a plaintiff must show that a reasonable employee
15
would have found the challenged action materially adverse, which in
16
this context means it well might have dissuaded a reasonable worker
17
from making or supporting a charge of discrimination." Id. at 68. It
18
is not necessary that the conduct at issue affect the employee's
19
"ultimate employment decisions." Id. at 67.
20
According
21 22
to
Burlington,
the
determination
of
whether
a
particular action is "materially adverse" must be examined based on the facts present in each case and "should be judged from the
23
perspective of a reasonable person in the plaintiff's position,
24
considering all the circumstances." Id. at 71 (citation and internal
25
quotation marks omitted).
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 27
In reaching its decision in Burlington, the Supreme Court
3
considered factors such as the fact that the duties of a position
4
"were...
5 6
more
arduous
and
dirtier"
when
compared
to
the
other
position which "required more qualifications, which is an indication of prestige [] and... was objectively considered a better job". Id.
7
(citation and quotation marks omitted).
8
In Billings the court distinguished between minor incidents
9
which take place in the usual course of a work setting and have no
10
import on an individual's decision to file a discrimination charge
11
and those which might deter an employee from complaining of such
12
conduct.
13 14
Specifically,
the
court
noted
that
"some
of
[the
supervisor's] behavior - upbraiding [plaintiff] for her question at the Board of Selectmen meeting, criticizing her by written memoranda,
15
and allegedly becoming aloof toward her - amounts to the kind of
16
petty slights or minor annoyances that often take place at work and
17
that all employees experience and that, consequently, fall outside
18
the scope of the antidiscrimination laws... But we cannot say the
19
same for the other incidents, namely, investigating and reprimanding
20
[plaintiff] for opening the letter from [the supervisor's] attorney,
21
charging her with personal time for attending her deposition in this
22
case, and barring her from the Selectmen's Office. While these
23
measures might not have made a dramatic impact on [plaintiff's] job,
24
conduct need not relate to the terms or conditions of employment to
25
give rise to a retaliation claim. Indeed, we think that these
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 28
actions, by their nature, could well dissuade a reasonable employee
3
from making or supporting a charge of discrimination. An employee who
4
knows that, by doing so, she risks a formal investigation and
5
reprimand - including a threat of further, more serious discipline 6
for being insufficiently careful in light of her pending litigation
7
as well as the prospect of having to take personal time to respond to
8
a notice of deposition issued by her employer in that litigation,
9
might well choose not to proceed with the litigation in the first
10
place." Billings, 515 F.3d at 54 (citations, internal quotation marks
11
and brackets omitted).
12
"It is true that an employee's displeasure at a personnel action
13
cannot,
14 15
standing
alone,
render
it
materially
adverse...
[but
plaintiff] came forward with enough objective evidence contrasting her former and current jobs to allow the jury to find a materially
16
adverse employment action." Id. at 53.
17
Depending on the particular set of facts at hand, "temporal
18
proximity alone can suffice to meet the relatively light burden of
19
establishing a prima facie case of retaliation." DeClaire, 530 F.3d
20
at 19 (citation and internal quotation marks omitted). See also,
21
Mariani-Colon, 511 F.3d at 224 ("[T]he `temporal proximity' between
22
appellant's allegations of discrimination in June 2002 and his
23
termination in August 2002 is sufficient to meet the relatively light
24
burden of establishing a prima facie case of retaliation"); Quiles25
Quiles, 439 F.3d at 8 ("[I]n proper circumstances, the causation
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 29
element may be established by evidence that there was a temporal
3
proximity
4 5
between
the
behavior
in
question
and
the
employee's
complaint.") "[T]here is no mechanical formula for finding pretext. One way
6
to
7 8
show
pretext
is
through
such
weaknesses,
implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered
9 10
legitimate
reasons
for
its
action
that
a
reasonable
factfinder could rationally find them unworthy of credence and with or without the additional evidence and inferences properly drawn
11
therefrom infer that the employer did not act for the asserted non12
discriminatory reasons." Billings, 515 F.3d at 55-56 (citations,
13
internal quotation marks and brackets omitted).
14
Plaintiff carries the burden of presenting admissible evidence
15
of retaliatory intent in response to a summary judgment request. The
16
court need not consider unsupported suppositions. "While [plaintiff]
17
engages in much speculation and conjecture, a plaintiff cannot defeat
18
summary judgment by relying on conclusory allegations, or rank
19
speculation. To defeat summary judgment, a plaintiff must make a
20
colorable showing that an adverse action was taken for the purpose of
21
retaliating against him." Mariani-Colon, 511 F.3d at 224 (citations
22
and internal quotation marks omitted).
23
Additionally, even though "it is permissible for the trier of
24
fact to infer the ultimate fact of discrimination from the falsity of
25
the employer's discrimination, but doing so is not required, as there
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 30
will be instances where, although the plaintiff has established a
3
prima facie case and set forth sufficient evidence to reject the
4
defendant's explanation, no rational fact-finder could conclude that
5
the action was discriminatory." DeClaire, 530 F.3d at 19-20 (italics
6
in original).
7
Lastly, there are instances where issues of fact regarding the
8
veracity of the allegedly pretextual reasons demand that trial be
9
held to resolve them. See i.e., Billings, 515 F.3d at 56 (citations
10
and internal quotation marks omitted) ("But we think that, under the
11
circumstances of this case, it is the jury that must make this
12
decision, one way or another. As we have advised, where a plaintiff
13
in a discrimination case makes out a prima facie case and the issue
14
becomes whether the employer's stated nondiscriminatory reason is a
15
pretext for discrimination, courts must be particularly cautious
16
about granting the employer's motion for summary judgment. Such
17
caution is appropriate here, given the factual disputes swirling
18
around the transfer decision.")
19
B. Retaliatory Harassment
20
In retaliation cases, "[t]he adverse employment action may be
21
satisfied by showing the creation of a hostile work environment or
22
the intensification of a pre-existing hostile environment." Quiles23
Quiles, 439 F.3d at 9. See also, Noviello, 398 F.3d at 89 ("[T]he
24
creation and perpetuation of a hostile work environment can comprise
25
a
26
retaliatory
adverse
employment
action".)
"[A]
hostile
work
1 2
C I V I L NO. 07-1109 (RLA)
Page 31
environment,
3 4
tolerated
by
the
employer,
is
cognizable
as
a
retaliatory adverse employment action... This means that workplace harassment, if sufficiently severe or pervasive, may in and of itself
5
constitute an adverse employment action sufficient to satisfy the
6
second prong of the prima facie case for... retaliation cases." Id.
7
(under Title VII). "Harassment by coworkers as a punishment for
8
undertaking protected activity is a paradigmatic example of adverse
9
treatment spurred by retaliatory motives and, as such, is likely to
10
deter the complaining party (or others) from engaging in protected
11
activity." Id. at 90.
12
"[R]etaliatory actions that are not materially adverse when
13
considered individually may collectively amount to a retaliatory
14
hostile work environment." Billings, 515 F.3d at 54 n.13.
15
Proving retaliatory intent is crucial. Hence, the purpose behind
16
the harassment must be to retaliate for the protected conduct, that
17
is, it must be motivated by plaintiff's exercise of her statutory
18
rights. Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 20 (1st Cir.
19
2006); Quiles-Quiles, 439 F.3d at 9.
20
Causation may be established by the temporal proximity between
21
the harassment and the protected conduct. See, i.e., id. 439 F.3d at
22
9 (intensified harassment shortly after filing EEOC complaint).
23
Even
24 25
though
"[t]he
existence
of
a
hostile
environment
is
determined by the finder of fact... that does not prevent a court from ruling that a particular set of facts cannot establish a hostile
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 32
environment as a matter of law in an appropriate case." Billings, 515
3
F.3d at 47 n.7.
4
C. Retaliation - The Facts
5
Plaintiff's
6
initial
discrimination we shall by
charge examine
was the to
filed
on
October
7 8
3,
2005.
Accordingly, events
subsequent determine constitute a hostile
allegedly whether
9 10
retaliatory either
charged or
plaintiff
individually actions
collectively to
they
materially environment.
11
adverse
necessary
establish
1.
12 13
Inspection of personnel file and leaving early.
In a memorandum dated October 28, 2005, RIVERA, as President of the Board of Directors, advised plaintiff that pursuant to her
14
October 17, 2005 written request, she could inspect her personnel
15
file pursuant to the policy established in the Employee Handbook. In
16
the memorandum plaintiff was also admonished for leaving her work 20
17
minutes early on October 18, 2005 without prior authorization from
18
her supervisor.
19
Upon receipt of the memorandum, plaintiff wrote a note stating
20
that
21 22
the
admonishment
was
in
retaliation
for
having
filed
the
discrimination charge. Plaintiff has not introduced evidence of any causal connection
23
between her complaint and this letter. Further, apart from mentioning
24
that she had left early that day - a fact plaintiff has not disputed
25
- we find no connotation in the memorandum which could be deemed
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 33
adverse to her. It merely constitutes a response to her request for
3
information. Therefore, we conclude that this memorandum is not
4
sufficient grounds for establishing a retaliation claim.
5
2. Payment to Pilots on Fridays.
6
On November 10, 2005, plaintiff was handed copy of a memorandum
7
dated May 17, 2005, addressed to the Accounting Department with
8
instructions that payment to pilots were to be effected every Friday.
9
Upon
10 11
its
receipt,
plaintiff
wrote
a
note
indicating
that
the
memorandum had been personally handed in retaliation for having filed her discrimination charge.
12
Plaintiff conceded that payments to the harbor pilots for
13
services rendered was part of her duties and that it was her
14
responsibility to make collection efforts in order to have sufficient
15
funds available to pay the pilots for their services every Friday.
16
She
17 18
also
conceded
in
her
deposition
that
most
of
the
pilots
complained because payment was not being timely made.7 We do not agree with plaintiff's characterization of this
19
memorandum as a warning. There is no indication of any negative
20
effect on her record. Nor do we attach any significance to the fact
21
that plaintiff was handed a copy thereof in November other than to
22 23 24 25 26 Defendants submitted two letters from CANDELARIO one dated S e p t e m b e r 28, 2005, requesting reimbursement for expenses incurred due t o the failure to deposit his checks on time and another one c o m p l a i n i n g of his failure to receive the November 11, 2005 check. A d d i t i o n a l l y , on November 14, 2005, DANIEL MURPHY also wrote e x p r e s s i n g his concerns regarding non-payment during the month of N o ve m be r .
7
1 2
C I V I L NO. 07-1109 (RLA)
Page 34
alert her to the existing situation that payment to harbor pilots was
3
not being promptly made. Hence, we ascribe no retaliatory weight to
4
this incident.
5
Additionally, there is ample uncontested evidence submitted by
6
defendants which served as a basis for having sent her copy of the
7
memorandum at that time.
8
3.
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Documents Regarding 40-ft. Vessel and Incident with CESAR MONTES.
On November 14, 2005, plaintiff was handed a letter signed by STEPHEN RIVERA instructing her to keep all invoices and documents related to a 40-feet pilot vessel in a separate file. Plaintiff wrote a note at the bottom of this communication stating that it was done in reprisal for having filed her discrimination charges. Whereupon, according to plaintiff, MONTES came over to her office door, became belligerent and violent, shouting at her and waving his hands to the point she feared for her safety. Plaintiff left early that day and filed a criminal complaint against MONTES for breach of the peace. In his deposition MONTES explained that he initially verbally requested plaintiff to keep a separate file regarding the vessel. He further noted that the request was prompted by the need to ensure that all documents pertaining to the vessel's insurance and a loan that was being requested were easily retrievable. According to MONTES, plaintiff petitioned that his request be put in writing as
per her attorney's instructions for which reason the memorandum had been prepared.
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C I V I L NO. 07-1109 (RLA)
Page 35
The November 14, 2005 letter cannot be construed as a warning as
3
plaintiff contends. It does not contain any information unfavorable
4
to plaintiff or her performance nor can it be construed in any way as
5
detrimental to plaintiff's employment. Rather, the request was based
6
on established requirements of the Pilotage Commission regarding the
7
vessel's
8 9
insurance
coverage
as
well
as
a
loan
that
was
being
processed. Nor can we ascribe any retaliatory motive for the written instructions.
10
It is also difficult to attribute retaliatory motive to MONTES'
11
alleged reaction from plaintiff's version of the events.8 In her
12
deposition plaintiff noted that "Captain Montes began to yell at me
13
about it, that it was because of what I had written on the lower
14
right-hand side [of the November 14, 2005 letter] that we were having
15
all the problems in the company, he began to wave his hands and I
16
felt threatened." Docket No. 40-4 Tr. 206 L. 15-17.
17
She further explained:
18
Q
19 20
[W]hen you're telling me that he went to your office and was yelling at you from the door, if at that moment that he's talking with you about your note and about the
21
document, did he say that it's for the purpose of the loan.
22 23 24 25 26
In support of her retaliatory animus behind MONTES' alleged reaction to her note, plaintiff alleges that this was defendants' first notice of her discrimination charges. However, on November 10, 2005, she had already alerted defendants of her having filed discrimination charges by writing a similar note when the May 17, 2005 memorandum was delivered.
8
1 2
C I V I L NO. 07-1109 (RLA)
Page 36
A
3
No. He yelled at me. What did he say? That everything that was occurring in the company was my fault.
Q
4
A
5 6
Docket No. 62-2 Tr. 28 L. 2-10.
7
Lastly, we find that this incident by itself does not meet the
8
adverse requirement necessary for a retaliatory claim.
9
Based on the foregoing, plaintiff's claim for retaliation under
10
Title VII is DISMISSED.
11
VII. JOINT EMPLOYERS
12
A. The Law
13
Plaintiff contends that both HH&O and SJBP, as joint employers,
14
share
15 16
liability
for
the
discrimination
claims
asserted
herein.
Accordingly, we must initially ascertain who plaintiff's employer was for purposes of Title VII.
17
In order to establish liability under Title VII, plaintiff must
18
present sufficient evidence to show that the discriminatory conduct
19
at issue can be attributable to her employer. "Title VII liability
20
attaches only in the event of a covered employment relationship."
21
Medina v. Adecco, 561 F.Supp.2d 162, 176 (D.P.R. 2008). The statute
22
defines an "employer" as an individual or firm that "is engaged in an
23
industry affecting commerce who has fifteen or more employees for
24
each working day in each of twenty or more calendar weeks in the
25
current
26
or
preceding
calendar
year,
and
any
agent
of
such
a
1 2
C I V I L NO. 07-1109 (RLA)
Page 37
person...." 42 U.S.C. § 2000e(b). See also De Jesus v. LTT Card
3
Serv., 474 F.3d 16 (1st Cir. 2007) (discussing factors for determining
4
who qualifies as an "employer" under Title VII).
5
The "joint employer" doctrine seeks to hold an entity liable to
6
an
7 8
employee
of
another
entity
if
the
evidence
shows
that
it
sufficiently had power over the employee in question. "A
9 10
joint
employer
relationship
exists
where
two
or
more
employers exert significant control over the same employees and share or
11 12
co-determine
those
matters
governing
essential
terms
and
conditions of employment." Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 163 (1st Cir. 1995) (quoting Holyoke Visiting Nurses Ass'n v. NLRB,
13
11 F.3d 302, 306 (1st Cir. 1993). "In order to qualify as an employer
14
(or joint employer) for Title VII purposes, an entity must exercise
15
significant control over the terms and conditions of an individual's
16
employment." Medina, 561 F.Supp.2d at 177.
17
"The joint employer inquiry is a matter of determining which of
18
two,
19 20
or
whether
both,
respondents
control,
in
the
capacity
of
employer, the labor relations of a given group of workers." Rivas v. Fed. de Asoc. Pecuarias de P.R., 929 F.2d 814, 820 (1st Cir. 1991)
21
(citation and internal quotation marks omitted).
22
"[T]he `joint employer' concept recognizes that the business
23
entities involved are in fact separate but that they share or co24
determine those conditions of employment." Rivas, 929 F.2d at 820
25
n.17 (italics in original).
26
1 2
C I V I L NO. 07-1109 (RLA)
Page 38
In order to ascertain if indeed a joint employment condition is
3
present, the court must examine "factors which include: supervision
4
of the employees' day-to-day activities; authority to hire, fire, or
5
discipline employees; authority to promulgate work rules, conditions
6
of employment, and work assignment; participation in the collective
7
bargaining
8 9
process;
ultimate
power
over
changes
in
employer
compensation, benefits and overtime; and authority over the number of employees." Rivera-Vega, 70 F.3d at 163; Rivas, 929 F.2d at 820. See
10
also Holyoke, 11 F.3d at 306 ("right to approve employees, control
11
number of employees, remove an employee, inspect and approve work,
12
and pass on changes in pay and overtime allowed"); Torres-Negron v.
13
Merck & Company, Inc., 488 F.3d 34, 42 (1st Cir. 2007) (listing
14
applicable factors to determine when "two or more entities are a
15
single employer under the integrated-enterprise test").
16
In Holyoke, 11 F.3d at 307, the court upheld a joint employer
17
finding based on the entity's "joint control of the... employees by,
18
inter alia, its unfettered power to reject any person referred to it
19
by [the employer] and its substantial control over the day-to-day
20
activities of the referred employees." See i.e., Virgo v. Rivera
21
Beach Assoc., Ltd., 30 F.3d 1350, 1361 (11th Cir. 1994) ("[A]ctual
22
control is a factor to be considered when deciding the `joint
23
employer' issue, but the authority or power to control is also highly
24
relevant");
25 26
Medina,
561
F.Supp.2d
at
177
("The
extent
of
1 2
C I V I L NO. 07-1109 (RLA)
Page 39
[codefendant's] control over [plaintiff] determines the outcome of
3
the joint employer inquiry.")
4
"A `joint employer' relationship is different from, though
5
sometimes confused with, a `single employer' situation." Virgo, 30
6
F.3d at 1359.
7
"The courts, in the Title VII context, have inappropriately used
8
the terms `single employer' and `joint employer' interchangeably,
9
which in fact refer to two distinct concepts... The `single employer'
10
inquiry... involves the question of whether two allegedly separate
11
business enterprises should in fact be treated as a single entity."
12
(citations omitted). Rivas, 929 F.2d at 820 n. 16.
13
"The difference between the "joint employer" and the "integrated
14
employer" tests turns on whether the plaintiff seeks to impose
15
liability on her legal employer or another entity... The former looks
16
to whether there are sufficient indicia of an employer/employee
17
relationship to justify imposing liability on the plaintiff's non18
legal employer. The latter applies where, as here, liability is
19
sought to be imposed on the legal employer by arguing that another
20
entity is sufficiently related such that its actions... can be
21
attributable to the legal employer." Engelhardt v. S.P. Richards Co.,
22
Inc., 472 F.3d 1, 4 n.2 (1st Cir. 2006).
23
"Whether joint employer status exists is essentially a factual
24
question." Rivera-Vega, 70 F.3d at 163.
25 26
"[B]ecause the joint employer
issue is simply a factual determination, a slight difference between
1 2
C I V I L NO. 07-1109 (RLA)
Page 40
two cases might tilt a case toward a finding of a joint employment".
3
Holyoke, 11 F.3d at 307.
4
B. The Facts
5
It is uncontroverted that plaintiff was hired as an accountant
6
by HH&O which paid her salaries as its employee.9 HH&O notified
7
plaintiff
8 9
of
her
salary
increases
including
granting
her
a
7%
increase on October 10, 200210 and established changes in her work schedule.11 Only HH&O was listed as plaintiff's employer in her
10
discrimination charge filed on October 5, 2005 and in her retaliation
11
charge filed on October 19, 2005 with the PR-DOL. SJBP was not named
12
therein.
13
Additionally,
14 15
the
following
written
reprimands
as
well
as
incidents plaintiff challenges as harassing or retaliatory were issued by HH&O:
16
17 18
Plaintiff's warning on April 2, 2002 for having paid the entire dues to the Master Mates & Pilots rather than in trimesters.
19 20 21 22 23 24 25 26 See Service Contract dated May 3, 2001 establishing her salary a n d working conditions. See also, table of Employee Salaries from 2001-2005; Table of S a l a r y Increase Analysis for 2002-2003 and Table of Xmas Bonus P r op o sa l . See January 8, 2004 memorandum changing working hours for the A c c o u n t i n g Department to commence at 7:00 a.m. until 4:00 p.m. e f f e c t i v e February 8, 2004 and February 3, 2005 memorandum changing w o r k schedule commencing at 8:00 a.m. until 5:00 p.m. effective F e b r u a r y 28, 2005.
11 10 9
1 2
C I V I L NO. 07-1109 (RLA)
Page 41
3 4
Letter dated June 18, 2004 regarding deficiency in her performance and $100,000.00 frozen assets in Banco Popular account.
5
6 7
Letter dated September 1, 2004, deducting one-day pay due to an alleged unauthorized absence.
8 9
Three-day suspension letter dated September 30, 2005 due to incident with Oceanic.
10 11
October 28, 2005 letter advising plaintiff of her right to inspect her personnel file and admonishing plaintiff for leaving work ahead of time.
12
13 14
The May 17, 2005 memorandum which provided that pilots were to be paid every Friday allegedly handed to plaintiff on November 10, 2005.
15
16 17
The November 14, 2005 memorandum requiring that all matters pertaining to a 40 feet boat be kept together in a separate file.
18
It is uncontested that codefendant SJBP is a duly organized
19
corporation that groups the harbor pilots who enter the ships to the
20
San Juan bay. It is the only pilots' association recognized by the
21
Pilotage Commission for the San Juan Harbor. The individual harbor
22
pilots are independent contractors who provide their services to
23
SJBP. The SJBP does not have any employees on its payroll. Payment of
24
$220.00
25 26
to
plaintiff
which
was
effected
on
July
31,
for
her
1 2
C I V I L NO. 07-1109 (RLA)
Page 42
accounting services was reported by SJBP to the Puerto Rico Treasury
3
Department for professional services, not as an employee.
4
Plaintiff argues that the fact that HH&O personnel matters were
5
discussed at the SJBP Board Meetings evinces that these entities were
6
joint
7 8
employers.
However,
inasmuch
as
the
same
individuals
constituted the Board of Directors for both HH&O and SJBP the fact that these discussions were held during the SJBP meetings does not
9
necessarily mean that it was SJBP who was making the decisions. This
10
is particularly so when the corresponding letters - specifically
11
those
12 13
used
by
plaintiff
as
grounds
for
her
discriminatory
and
retaliatory charges - were all issued by HH&O. Accordingly,
14 15
the
claims
asserted
against
SJBP
in
these
proceedings are DISMISSED. VII. TITLE VII - INDIVIDUAL LIABILITY
16
It is now clearly established that Title VII does not allow for
17
individual lia
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