Bibiloni-Del-Valle v. Estado Libre Asociado de Puerto Rico et al
Filing
151
FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER FOR ENTRY OF JUDGMENT AS A MATTER OF LAW RE: 144 MOTION for Judgment as a Matter of Law. Signed by Judge Jose A Fuste on 7/12/11.(su)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDGARDO L. BIBILONI-DEL-VALLE,
Plaintiff
v.
CIVIL NO.
07-1362 (JP)
COMMONWEALTH OF PUERTO RICO, et
al.,
Defendants
FINDINGS OF FACT, CONCLUSIONS OF LAW,
ORDER FOR THE ENTRY OF JUDGMENT AS A MATTER OF LAW
Before this Court is Defendants Commonwealth of Puerto Rico, the
Puerto Rico Police Department, and Galo Segarra Alonso’s renewed
motion for the entry of judgment as a matter of law, to alter or
amend the judgment, for remittitur, and for a new trial. (No. 144).
Also before the Court is Plaintiff’s opposition thereto1 (No. 145).
For the reasons stated herein, the Court GRANTS Defendants’ motion
for judgment as a matter of law.2
1.
The Court has done its best to understand Plaintiff’s incoherent opposition.
2.
On June 24, 2011, Plaintiff filed another motion (No. 146) entitled, “Motion
Requesting Order Under Rules 59(a) and 59(e), if the Verdict is Set Aside by
the United States Courts Due to Defendants [sic] Rule 50 and Rule 59.” This
motion, which is even more incoherent than Plaintiff’s opposition, appears to
be a supplement to his opposition. As such, the Court hereby STRIKES
Plaintiff’s attempt to supplement his previously filed opposition without leave
of Court.
CIVIL NO. 07-1362 (JP)
I.
-2-
INTRODUCTION AND PROCEDURAL BACKGROUND
Plaintiff Edgardo Bibiloni Del-Valle (“Bibiloni”) was employed
as a janitor by the Puerto Rico Police Department (“PR-PD”).
April
30,
2007,
he
filed
this
complaint
against
On
Defendants
Commonwealth of Puerto Rico, the PR-PD, and Galo Segarra Alonso
(“Segarra”), his former supervisor at the PR-PD, alleging that
Defendants retaliated against him for filing a complaint of sexual
harassment
before
the
Equal
Employment
Opportunity
Commission
(“EEOC”).3 He later filed an amended complaint on November 15, 2007.
He argues that Defendants dismissed him from his employment with the
PR-PD in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e-3(a) (“Title VII”). Plaintiff also asserts
claims under 42 U.S.C. § 1983 (“Section 1983”) for violation of the
equal protection and due process clauses of the United States
Constitution, and under Puerto Rican state laws.
By way of background, Plaintiff Bibiloni alleged that he was
sexually
harassed
by
a
male
coworker,
Angel
Rivera
Gonzalez
(“Rivera”), on numerous occasions. Specifically, Plaintiff alleged
that Rivera would touch him inappropriately and make sexual comments
to Plaintiff. Plaintiff alleged that Segarra, Plaintiff’s former
supervisor, knew about the sexual harassment and did nothing.
3.
The Court notes that Plaintiff also named as Defendants Pedro Toledo-Davila,
Ramon A. Ortega-Rodriguez, Vilma Fernandez-Bermudez, Carmen T. Lugo-Semolino,
Angel Rivera Gonzalez, and Francisco Quinones-Rivera. These Defendants were
dismissed from the case prior to the trial.
CIVIL NO. 07-1362 (JP)
-3-
Plaintiff filed a sexual harassment complaint with the PR-PD on
October 25, 2005, and with the EEOC on December 6, 2005.4 Plaintiff
alleges that he was terminated from his employment in October 2006.
In November 2006, Plaintiff filed his claim of retaliation at the
EEOC.
A jury trial was held in the instant case commencing on May 24,
2011. At the close of Plaintiff’s case, Defendant moved for judgment
as a matter of law. The Court reserved its ruling on the motion at
that time. On May 26, 2011, the trial concluded, and the jury
returned a verdict in favor of Plaintiff, and awarded Plaintiff
$500,000.00. Following trial, Defendants renewed their motion for
judgment
as
Defendants
a
matter
orally
of
law,
presented
and
their
counsels
for
arguments
Plaintiff
for
the
and
Court.
Subsequently, Defendant filed the instant motion, and Plaintiff filed
an opposition.
Defendants move the Court to reject the jury award in favor of
Plaintiff
evidence
arguing
to
that
support
Plaintiff
his
has
retaliation
not
claim
presented
and
sufficient
damages
award.
Plaintiff counters that he presented sufficient evidence at trial to
support the jury’s verdict, and thus, the jury’s verdict should
stand. Defendants move the Court for judgment as a matter of law, to
alter or amend the judgment, for remittitur, and, in the alternative,
4.
Plaintiff testified that he did not pursue this claim during the time period
permitted because he could not afford an attorney.
CIVIL NO. 07-1362 (JP)
-4-
for a new trial.
II.
MOTION FOR JUDGMENT AS A MATTER OF LAW
A.
Legal Standard for a Rule 50 Motion
Under Rule 50, a trial court may grant judgment as a matter of
law when “the jury [does] not have a legally sufficient evidentiary
basis for its verdict.” Jennings v. Jones, 587 F.3d 430, 436
(1st
Cir.
2009)
(internal
quotations
omitted).
A
judgment
notwithstanding the verdict should be granted if, examining the
evidence in the light most favorable to the non-moving party, the
Court finds that the facts and reasonable inferences lead to only one
conclusion – that there is a total failure of evidence to prove the
non-moving party’s case. Acevedo-García v. Monroig, 351 F.3d 547, 565
(1st Cir. 2003). “Courts may only grant a judgment contravening a
jury’s
determination
when
the
evidence
points
so
strongly
and
overwhelmingly in favor of the moving party that no reasonable jury
could have returned a verdict adverse to that party.”
Monteagudo
v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico,
554 F.3d 164, 170 (1st Cir. 2009).
B.
Plaintiff’s Title VII Retaliation Claim
Defendants argue that the evidence presented at trial was
insufficient
to
support
a
finding
of
liability
on
Plaintiff’s
retaliation claim, and that, even assuming Plaintiff made a prima
facie case of retaliation, Plaintiff failed to provide evidence to
CIVIL NO. 07-1362 (JP)
-5-
show that the three non-retaliatory reasons offered by Defendants for
dismissing Plaintiff were pretextual.
Title VII’s anti-retaliation provision provides as follows:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment . . . to discriminate against
any individual, or for a labor organization to
discriminate against any member thereof or applicant for
membership, because he has opposed any practice made an
unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or
participated
in
any
manner
in
an
investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a).
In order to establish a prima facie case of
retaliation, a plaintiff must show that he: (1) engaged in a
protected activity; (2) experienced some materially adverse action;
and (3) the adverse action was causally linked to his protected
activity.
Dixon v. Int’l Bhd. Of Police Officers, 504 F.3d 73, 91
(1st Cir. 2007); McDonough v. City of Quincy, 452 F.3d 8, 17 (1st
Cir. 2006). Protected conduct includes not only the filing of
administrative complaints, but also complaining to one’s supervisors.
Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003).
An adverse employment action must materially change the conditions
of
312
the
F.3d
plaintiff’s
6,
14
employment.
(1st
Cir.
Gu
2002)
v.
Boston
(citing
Police
Blackie
v.
Dep’t,
Maine,
75 F.3d 716, 725 (1st Cir. 1996)).
Once
the
retaliation,
plaintiff
the
has
defendant
made
must
a
prima
articulate
facie
a
showing
legitimate,
of
non-
CIVIL NO. 07-1362 (JP)
-6-
retaliatory reason for its employment decision. Calero-Cerezo v.
U.S. Dep’t of Justice, 355 F.3d 6, 26 (1st Cir. 2004); McDonough, 452
F.3d at 17 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)). If the defendant meets this burden, the plaintiff must show
that the proffered legitimate reason is in fact a pretext and that
the job action was the result of the defendant’s retaliatory animus.
Calero-Cerezo, 355 F.3d at 26.
In determining pretext, there is “no mechanical formula.”
McDonough, 452 F.3d at 18 (citing Che v. Mass. Bay Transp. Auth., 342
F.3d 31, 39 (1st Cir. 2003)). Pretext can be proven in many ways. Id.
“One way is for the plaintiff to show that the employer gave
‘different and arguably inconsistent explanations’ for taking the
adverse employment action.” Id. (citing Dominguez-Cruz v. Suttle
Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000)).
At trial, Plaintiff’s evidence established that he engaged in
protected conduct when he filed a sexual harassment complaint with
the PR-PD and with the EEOC. Plaintiff also established that he
experienced a materially adverse employment action when he was
terminated from his employment. Despite establishing the first two
elements for a prima facie case of retaliation, Plaintiff falters on
the last element. Viewing the evidence in the light most favorable
to Plaintiff, the Court finds that Plaintiff’s evidence fails to show
a causal connection between the protected activity and the adverse
employment action.
CIVIL NO. 07-1362 (JP)
-7-
To establish a causal link, Plaintiff’s theory was that the PRPD knew he filed a sexual harassment complaint with the EEOC and knew
about the investigation report when the PR-PD dismissed him and that
the PR-PD dismissed him because he named Rivera and Segarra in his
complaint when Rivera’s father was a Lieutenant in the PR-PD and
Segarra’s father was a Commander. However, during the trial, the
evidence presented by Plaintiff was not sufficient to establish a
causal link between Plaintiff filing his sexual harassment complaint
and his subsequent dismissal from the PR-PD.
Plaintiff presented evidence that in late 2005 he filed a
complaint of sexual harassment with the PR-PD and the EEOC against
the PR-PD, Rivera and Segarra, among others. Plaintiff testified that
Rivera would touch him inappropriately, invite him to participate in
sexual relations, offer him money in exchange for sexual relations,
kiss Plaintiff on his back, as well as make other sexual comments to
Plaintiff. Plaintiff stated that Segarra was his supervisor at the
time and was aware of the harassment and did nothing. Plaintiff also
testified that Rivera’s father was a Lieutenant in the PR-PD and
Segarra’s father was a Commander. Plaintiff testified that, upon
filing his sexual harassment complaint, he requested an investigation
into those claims. He testified that he provided the investigator
with the names of several witnesses to the alleged sexual harassment.
Plaintiff testified that on June 14, 2006, June 22, 2006 and in
November 2006 he received letters from the PR-PD stating that it
CIVIL NO. 07-1362 (JP)
-8-
intended to dismiss him from his employment. Plaintiff testified that
one letter referred to an incident in 1999 where Plaintiff was
accused of domestic violence, and another letter referred to his
conduct showing his coworker, Margarita Figueroa (“Figueroa”), a
pornographic picture on his cell phone.
Plaintiff’s first witness, Yahaira Perez Roman (“Perez”), was
the Human Resources Manager for the PR-PD. She testified that on
October 14, 2005, prior to Plaintiff filing his sexual harassment
complaint, she received an investigation report of an alleged sexual
harassment incident involving Plaintiff and a female coworker,
Figueroa. The report, which was from the PR-PD’s Internal Affairs
auxiliary superintendent, indicated that Plaintiff was investigated
for showing his female coworker a pornographic photograph, a photo
of a penis, on his cell phone. Although Figueroa did not want to file
a formal complaint against Plaintiff, Perez testified that because
of the PR-PD’s policy of zero tolerance for sexual harassment the PRPD was required to continue with the investigation. Perez testified
that once a case investigation is received the protocol is to refer
the case to the Deputy Superintendent for Public Integrity, which it
was in this case. Finally, Perez testified that, based on this
incident and the results of the investigation, the Human Resources
Department
employment.
recommended
that
Plaintiff
be
dismissed
from
his
CIVIL NO. 07-1362 (JP)
-9-
Defendants’ witness, Miguel Rivera Claudio (“Rivera Claudio”),
who has been a police agent with the PR-PD for approximately ten
years,
testified
that
he
conducted
the
investigation
into
the
incident involving Figueroa, that he confirmed that Plaintiff did in
fact show Figueroa a pornographic picture on his cell phone, and that
Figueroa
stated
during
the
investigation
that
she
had
felt
disrespected by the incident. However, she did not want to file a
sexual harassment complaint. Rivera Claudio testified that as part
of the investigation Plaintiff was asked to provide a statement but
he refused. In connection with that incident, Rivera Claudio prepared
a report dated October 5, 2005. See Defs.’ Ex. 3. The report
indicates that the incident with Figueroa occurred at the end of June
2005 and that the investigator interviewed Figueroa on September 30,
2005 almost a month before Plaintiff filed his sexual harassment
complaint.
In addition, Rivera Claudio testified that prior to the Figueroa
incident he was asked to observe Plaintiff because the PR-PD received
an anonymous call indicating that Plaintiff was frequently abandoning
his work place during work hours. Rivera Claudio stated that an
investigation was initiated to corroborate these allegations. As part
of the investigation, he conducted a surveillance of Plaintiff and
observed Plaintiff on several occasions leaving the police department
and visiting shopping centers, such as Plaza Las Americas, and
visiting other locations unrelated to his employment and to take care
CIVIL NO. 07-1362 (JP)
-10-
of personal matters. Rivera Claudio testified that he documented what
he observed and submitted his report for further administrative
investigations.
When asked about the investigation into him abandoning his work,
Plaintiff did not deny leaving work, but stated that he requested
permission
from
Segarra
or
the
secretary.
As
to
the
Figueroa
incident, Plaintiff also did not deny that this incident occurred.
Instead, he stated that because Figueroa did not want to file a
complaint that it was not sexual harassment. Plaintiff conceded that
as to the Figueroa incident he was provided the opportunity to give
a statement, but he chose not to do so.
To support his claim that he was sexually harassed by Rivera,
Plaintiff presented the testimony of his former coworker Miguel
Alicea Bruno (“Alicea Bruno”), who worked as a maintenance technician
in 2005 and 2006 with the PR-PD, and the testimony of his two sons,
Christian Bibiloni Cruz (“Bibiloni Cruz”) and Edgardo Luis Bibiloni
Cruz, Jr., who were minors in 2005.
Alicea Bruno testified that he once saw Rivera touch Plaintiff
inappropriately while they were all in the bathroom stall; however,
he never reported the incident. When questioned about whether he
recalled any other incident of a similar nature between Rivera and
Plaintiff, Alicea Bruno could not recall a single incident. Even
after being shown his previously prepared sworn statement to refresh
his recollection, Alicea Bruno could not recall details of any of the
CIVIL NO. 07-1362 (JP)
-11-
incidents without reading directly from the sworn statement. He
admitted that Plaintiff gave all the details contained in his sworn
statement to the notary public. He also conceded that he took no part
in preparing the statement, but simply signed the document. Alicea
Bruno testified that he was dismissed in 2008 from the PR-PD and was
reinstated in 2010.
Plaintiff’s son, Christian Bibiloni Cruz, who was 13 to 14 years
old in 2005 testified that on a visit to his father’s work in 2005
he saw Rivera touching his father on the chest and that he heard
Defendant Segarra tell Rivera to be careful with Plaintiff. He also
testified as to sexual comments he heard Rivera make to his father.
Another
of
Plaintiff’s
sons,
Edgardo
Luis
Bibiloni
Cruz,
Jr.
testified that he was around 15 years old in 2005, that he visited
his father’s work place and saw Segarra and heard him make a comment
that Rivera should not get too close to Plaintiff because he has five
children. He also testified that he heard Rivera state that Plaintiff
was cute and saw Rivera touch his father.
As to the investigation into Plaintiff’s sexual harassment
complaint, Defendants presented the testimony of Juan Ruiz Acevedo
(“Ruiz”), a lieutenant with the PR-PD for over seventeen years. In
2005, Ruiz worked for the PR-PD’s Bureau of Domestic Violence and
Sexual Harassment and was assigned to investigate Plaintiff’s claim
that he was sexually harassed by Rivera. Ruiz testified that the
investigation began because Plaintiff requested it. As part of the
CIVIL NO. 07-1362 (JP)
-12-
investigation, Ruiz interviewed Plaintiff, Rivera, and witnesses
identified by Plaintiff who allegedly saw the sexual harassment. In
addition, Ruiz interviewed approximately ten other PR-PD employees.
According to Ruiz, none of the people he interviewed, including
those
identified
harassment
claims.
by
Plaintiff,
Indeed,
all
supported
of
the
Plaintiff’s
witnesses
sexual
informed
the
investigator that Rivera was the victim of Plaintiff and Alicea
Bruno’s harassment. Witnesses stated that Rivera is a deaf mute and
that Alicea Bruno and Plaintiff would mock him, make him buy them
food, force him to throw out their trash and give them money from
Rivera’s personal debit account, make sexual comments to Rivera, and
threaten to perform sexual acts on him. According to the witnesses’
statements, Plaintiff would show pornographic pictures, including
nude pictures of himself, to Rivera and would show other coworkers
pornographic pictures on his cell phone. Witnesses also informed Ruiz
that Alicea Bruno and Plaintiff would view pornographic movies at
work. Ruiz’s findings are documented in his report dated March 2,
2006. See Defs.’ Ex. 1.
Ruiz testified that to communicate with coworkers Rivera used
hand gestures and read lips, and that he needed two translators to
assist with interviewing Rivera because he could not speak. Ruiz
stated
that
unintelligent
numerous
man,
witnesses
who
was
described
mocked
and
Rivera
taken
as
a
advantage
humble,
of
by
Plaintiff. Ruiz also testified that when he interviewed Alicea Bruno
CIVIL NO. 07-1362 (JP)
-13-
as to Plaintiff’s claims of sexual harassment, Alicea Bruno could not
recall any of the incidents without reading from a sworn statement
he brought to the interview. As to the 1999 domestic violence
incident, Ruiz testified that he learned about the 1999 domestic
violence incident and that Plaintiff pled guilty to domestic violence
during
the
investigation
into
Plaintiff’s
sexual
harassment
complaint. The investigation began in October 2005 and concluded in
March 2006.
Upon concluding the investigation, Rivera recommended that
Plaintiff be dismissed from the PR-PD. He stated that he recommended
Plaintiff’s
termination
because
Plaintiff’s
conduct,
discovered
during the investigation, was “too horrendous.” In addition, based
on the findings from the investigation, he recommended that Segarra
be suspended for ten days without salary, that Alicea Bruno also be
dismissed, and that Rivera receive counseling.
Plaintiff admitted that with regard to the domestic violence
incident, where he was accused of punching his then wife, he pled
guilty. He testified that filed an independent complaint with the
Puerto Rico Labor Department, challenging the PR-PD’s decision to
dismiss him based on this incident because it occurred seven years
before. Plaintiff was given a hearing and given the opportunity to
present evidence but his dismissal was upheld. See Defs.’ Ex. 8.
Plaintiff challenged the decision a second time but once again the
PR-PD’s decision to dismiss Plaintiff on the basis of this 1999
CIVIL NO. 07-1362 (JP)
-14-
domestic violence incident was upheld finding that Plaintiff’s
conduct was in violation of certain PR-PD personnel regulations. See
Defs.’ Ex. 8.
Notwithstanding that Plaintiff presented evidence showing that
prior to his dismissal he filed a sexual harassment complaint, this
chronological proximity does not alone establish causation. Wright
v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003)(noting that
“chronological proximity does not by itself establish causality,
particularly
if
‘[t]he
larger
picture
undercuts
any
claim
of
causation’”)(quoting Soileau v. Guilford of Maine, Inc., 105 F.3d 12,
16 (1st Cir. 1997). In this case, Plaintiff cannot establish a causal
link between his termination and the filing of his sexual harassment
complaint based only on the fact that his termination took place at
some point after he filed the sexual harassment complaint and that
the PR-PD had knowledge of and investigated his sexual harassment
complaint. Plaintiff’s claim of retaliation is severely undercut when
his termination is placed against the background of Plaintiff showing
pornographic pictures to coworkers, his documented absences from work
to attend to personal matters, and the results of the investigation
where numerous witnesses contradicted Plaintiff’s claims of sexual
harassment and stated that he was the one harassing Rivera. Malone
v. Lockheed Martin Corp., 610 F.3d 16, 24 (1st Cir. 2010)(finding
that “[a]gainst the background of [the employee’s] unscheduled
absences over a period of more than two years” a causal link between
CIVIL NO. 07-1362 (JP)
-15-
the alleged protected activity and Plaintiff’s demotion “amounts to
nothing more than speculation, based solely on the fact that the
[demotion] happened at some point after the [alleged protected
activity]”).
Plaintiff presented no evidence, aside from his own testimony,
to support his theory that he was retaliated against because he named
Rivera and Segarra in his complaint when Rivera’s father was a
Lieutenant in the PR-PD and Segarra’s father was a Commander.
Plaintiff is not entitled to inferences based on speculation. See
Malone, 610 F.3d at 23. The evidence showed that Plaintiff was
dismissed after the PR-PD conducted a thorough investigation and
almost a year after he filed his sexual harassment complaint. In
considering the evidence presented at trial in the light most
favorable to Plaintiff, the Court finds that Plaintiff has failed to
present
sufficient
evidence
to
support
a
prima
facie
case
of
retaliation.
Even assuming that Plaintiff established a prima facie case of
retaliation, Plaintiff has not met his burden of showing that the
reasons proffered by Defendant for Plaintiff’s termination were
pretextual. At trial, Defendants articulated three legitimate, nonretaliatory reasons for Plaintiff’s dismissal. Defendants stated that
Plaintiff’s dismissal was based on: 1) the 2005 cellular phone
incident, where Plaintiff showed his female coworker, Figueroa, a
pornographic picture on his cell phone; 2) the 1999 domestic violence
CIVIL NO. 07-1362 (JP)
-16-
incident, which was discovered during the 2005-2006 investigation,
where
Plaintiff
pled
guilty
to
domestic
violence;
and
3)
the
investigation report into Plaintiff’s complaint, which concluded
based on statements by multiple witnesses that Plaintiff and Alicea
Bruno were harassing Rivera.
With regard to the Figueroa incident, Plaintiff did not deny
that this incident took place, but instead argued that because
Figueroa never filed a sexual harassment complaint against Plaintiff
she was not sexually harassed. Nevertheless, Defendants presented
evidence that the PR-PD has a zero tolerance policy for sexual
harassment
and
that
because
of
this
policy
it
conducted
an
investigation of the incident. Defendants also presented evidence
that this incident and the related investigation occurred before
Plaintiff filed his sexual harassment complaint and that based on
this incident the dismissal of Plaintiff was recommended. Thus,
Plaintiff has not met his burden of showing that this reason was
pretextual.
Plaintiff argued that the 1999 domestic violence incident was
pretextual because it occurred seven years prior to his dismissal.
However, Defendants presented evidence that this incident and that
Plaintiff pled guilty were not discovered until the investigation
into Plaintiff’s sexual harassment claim. Defendants also presented
evidence that the incident and Plaintiff’s conduct violated PR-PD
regulations. Although dismissing Plaintiff for the 1999 domestic
CIVIL NO. 07-1362 (JP)
-17-
violence incident may seem “unfair” because it occurred seven years
prior, the First Circuit has explicitly stated, “Title VII was not
designed to transform courts into ‘super personnel departments,
assessing
the
merits-or
even
the
nondiscriminatory business decisions.”
Conquistador
Resort
&
County
Club,
rationality
of
employers’
Feliciano de la Cruz v. El
218
F.3d
1,
8
(1st
Cir.
2000)(quoting Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st
Cir.1991). Accordingly, Plaintiff has not met his burden of showing
that this reason was pretextual.
The third non-retaliatory reason articulated by Defendants for
dismissing Plaintiff was the investigation report, which concluded
that
Rivera
According
to
was
the
the
victim
report,
of
Plaintiff’s
numerous
sexual
witnesses,
harassment.
including
those
identified by Plaintiff, contradicted Plaintiff’s sexual harassment
claim. Witnesses provided statements that Plaintiff and Alicea Bruno
had been harassing Rivera, mocking his disabilities, showing him and
other coworkers pornographic pictures, and taking advantage of
Rivera, who was deaf and mute.
In determining whether this reason was pretextual, the issue is
whether Defendant PR-PD based its decision to terminate Plaintiff on
the investigation report as it claims. See Mulero-Rodriguez v. Ponte,
Inc., 98 F.3d 670, 674 (1st Cir. 1996) (explaining that “in weighing
whether [Plaintiffs] have presented enough evidence for a reasonable
factfinder to deem the cited reasons pretextual, we remember that the
CIVIL NO. 07-1362 (JP)
-18-
issue is not whether [Defendant’s] reasons to fire [Plaintiff] were
real, but merely whether the decisionmakers [...] believed them to
be real”) (citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1093
(1st Cir.1995)). While Plaintiff attempts to attack the conclusions
and veracity of the investigation report, Plaintiff presented no
support for these claims and presented no evidence showing that
Defendants did not believe the conclusions of the report. Plaintiff
testified that Rivera’s father was a Lieutenant in the PR-PD and
Segarra’s father was a Commander. Nevertheless, Plaintiff provided
no factual support to show that Defendants retaliated against him and
fabricated the investigation report because of any favoritism of
Rivera and Segarra. Defendant’s evidence showed that as per the
recommendation of the investigation report, Segarra was suspended
without pay for ten days for his failure to properly supervise
Plaintiff and prevent the harassment of Rivera. The report also
recommended
the
dismissal
of
Plaintiff
and
Alicea
Bruno
and
recommended counseling for Rivera. As such, Plaintiff has not met his
burden of showing that this reason was pretextual.
The Court finds that based on the evidence in the record no
reasonable juror could conclude that the three reasons provided by
Defendants were pretextual.
C.
Plaintiff’s Section 1983 Claims
Plaintiff argues that he has presented sufficient evidence to
establish a Section 1983 First Amendment claim. The Court finds that
CIVIL NO. 07-1362 (JP)
-19-
given that Plaintiff failed to present sufficient evidence to show
retaliation under Title VII, Plaintiff has undoubtedly failed to meet
his burden of proving retaliation under Section 1983. One of the
requirements for a Section 1983 retaliation case is that the employee
“must
meet
the
‘burden
of
producing
sufficient
direct
or
circumstantial evidence from which a jury reasonably may infer that
his constitutionally protected conduct . . . was a substantial or
motivating factor behind his dismissal’.” Diaz-Bigio v. Santini, 2011
WL 2557003, at *6
(1st Cir. June 29, 2011)(quoting Acevedo–Diaz v.
Aponte, 1 F.3d 62, 67 (1st Cir. 1993)(emphasis added). In Diaz-Bigio,
the First Circuit specifically stated:
[t]he employee’s burden of proving motivation “is more
substantial than the burden of producing prima facie
evidence in, for example, the first stage of a Title VII
discrimination case.” Guilloty Perez v. Pierluisi, 339 F.3d
43, 56 n. 11 (1st Cir.2003). The employee “must produce
sufficient evidence of motivation at the initial stage such
that ‘the burden of persuasion itself passes to the
defendant-employer.’” Id. (quoting Acevedo–Diaz v. Aponte,
1 F.3d 62, 67 (1st Cir. 1993)).
2011 WL 2557003, at *6, n. 3 (emphasis added). In the instant case,
as discussed above, Plaintiff did not make a prima facie case of
retaliation under Title VII because he did not present sufficient
evidence for a reasonable jury to conclude that he was dismissed from
his employment because he filed a sexual harassment complaint. Thus,
Plaintiff
has
not
met
the
more
retaliation under Section 1983.
substantial
burden
of
proving
CIVIL NO. 07-1362 (JP)
-20-
III. MOTION FOR A NEW TRIAL
Defendants move this Court, in the alternative, for a new trial
pursuant to Rule 59. Rule 50(c)(1) provides that “[i]f the court
grants a renewed motion for judgment as a matter of law, it must also
conditionally rule on any motion for a new trial by determining
whether a new trial should be granted if the judgment is later
vacated or reversed.” Fed. R. Civ. P. 50. As such, the Court hereby
conditionally GRANTS Defendants’ motion for a new trial on the ground
that failing to do so would constitute an injustice because the
jury’s
verdict
against
Defendants
and
award
of
$500,000.00
to
Plaintiff was not supported by legally sufficient evidence at trial.
IV.
CONCLUSION
In conclusion, the Court finds that the evidence presented at
trial points so strongly and overwhelmingly in favor of Defendants
that no reasonable jury could have returned a verdict against
Defendants. For the reasons stated herein, Defendants’ motion for
judgment as a matter of law is GRANTED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 12th day of July, 2011.
s/José Antonio Fusté
JOSÉ ANTONIO FUSTÉ
UNITED STATES DISTRICT JUDGE
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