Bibiloni-Del-Valle v. Estado Libre Asociado de Puerto Rico et al

Filing 76

ORDER granting in part and denying in part 51 motion for summary judgment. Signed by Judge Raymond L. Acosta on 10/14/09. (ans)

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

EDGARDO L. BIBILONI DEL VALLE, Plaintiff, v. THE COMMONWEALTH OF PUERTO RICO, et al., Defendants. CIVIL NO. 07-1362 (RLA)

ORDER IN THE MATTER OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT The COMMONWEALTH OF PUERTO RICO ("COMMONWEALTH"), the P.R. POLICE DEPARTMENT ("PR-PD"), ANGEL RIVERA and GALO SEGARRA - the remaining defendants in these proceedings - have moved the court to enter summary judgment in their favor and to dismiss the claims asserted against them in this action. The court having reviewed the arguments presented by the parties as well as the evidence submitted in support thereof hereby disposes of the motion as follows: I. BACKGROUND This action was instituted by EDGARDO BIBILONI against the local government and the two aforementioned individually-named defendants in their personal capacity asserting federal causes of action

pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, 2000e-3(a) (Title VII), as well as under 42 U.S.C. § 1983 for breach of the due process and equal protection clauses of the United States Constitution.

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Additionally, plaintiff claims violation of the Puerto Rico 3 anti-discrimination statutes, Act No. 17 of April 22, 1988, P.R. Laws 4 Ann. tit. 29, § 155 (2002) (Law 17) and Law 69 of July 6, 1985, as 5 amended, P.R. Laws Ann. tit. 29, § 1321-1341 (2002) (Law 69) as well 6 as the local tort provisions, arts. 1802 and 1803 of the Puerto Rico 7 Civil Code, P.R. Laws Ann. tit. 31, §§ 5141 and 5142 (1990) under our 8 supplemental jurisdiction. 9 II. SUMMARY JUDGMENT STANDARD 10 Rule 56(c) Fed. R. Civ. P., which sets forth the standard for 11 ruling on summary judgment motions, in pertinent part provides that 12 they shall be granted "if the pleadings, depositions, answers to 13 interrogatories, 14 affidavits, if any, show that there is no genuine issue as to any 15 material fact and that the moving party is entitled to a judgment as 16 a matter of law." 17 Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 18 1999). The party seeking summary judgment must first demonstrate the 19 absence 20 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). 21 issue exists if there is sufficient evidence supporting the claimed 22 factual disputes to require a trial. Morris v. Gov't Dev. Bank of 23 Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. 24 Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 25 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). 26 A fact is material if A genuine of a genuine issue of material fact in the record. Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st and admissions on file, together with the

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it might affect the outcome of a lawsuit under the governing law. 3 Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 4 1995). 5 "In ruling on a motion for summary judgment, the court must view 6 `the facts in the light most favorable to the non-moving party, 7 drawing all reasonable inferences in that party's favor.'" Poulis8 Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v. 9 Dynamics 10 marshaling the facts for this purpose we must draw all reasonable 11 inferences in the light most favorable to the nonmovant. That does 12 not mean, however, that we ought to draw unreasonable inferences or 13 credit 14 vitriolic invective." Caban Hernandez v. Philip Morris USA, Inc., 486 15 F.3d 1, 8 (1st Cir. 2007) (internal citation omitted, italics in 16 original). 17 Credibility issues fall outside the scope of summary judgment. 18 "`Credibility determinations, the weighing of the evidence, and the 19 drawing of legitimate inferences from the facts are jury functions, 20 not those of a judge.'" Reeves v. Sanderson Plumbing Prods., Inc., 21 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 23 91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe, 24 Inc., 202 F.3d 424, 432 (1st Cir. 2000) ("court should not engage in 25 credibility assessments"); Simas v. First Citizens' Fed. Credit 26 bald assertions, empty conclusions, rank conjecture, or Research Corp., 63 F.3d 32, 36 (1st Cir. 1995)). "In

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Union, 170 F.3d 37, 49 (1st Cir. 1999) ("credibility determinations 3 are for the factfinder at trial, not for the court at summary 4 judgment"); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st 5 Cir. 1998) (credibility issues not proper on summary judgment); 6 Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 7 108, 8 determinations, no room for the measured weighing of conflicting 9 evidence such as the trial process entails, and no room for the judge 10 to superimpose his own ideas of probability and likelihood. In fact, 11 only if the record, viewed in this manner and without regard to 12 credibility determinations, reveals no genuine issue as to any 13 material fact may the court enter summary judgment." Cruz-Baez v. 14 Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal 15 citations, brackets and quotation marks omitted). 16 In cases where the non-movant party bears the ultimate burden of 17 proof, he must present definite and competent evidence to rebut a 18 motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 19 U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202; Navarro v. Pfizer 20 Corp., 261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of 21 Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely 22 upon "conclusory allegations, improbable inferences, and unsupported 23 speculation". 24 Cir. 2000); 25 26 Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st 113 (D.P.R. 2002). "There is no room for credibility

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CIVIL NO. 07-1362 (RLA) (1st Cir. 1994); Medina-Muñoz v.

Page 5 R.J. Reynolds Tobacco Co., 896 F.2d

3 5, 8 (1st Cir. 1990). 4 Any testimony used in support of discriminatory motive in a 5 motion for summary judgment setting must be admissible in evidence, 6 i.e., based on personal knowledge and otherwise not contravening 7 evidentiary 8 affidavits 9 mechanism must "be made on personal knowledge, shall set forth such 10 facts 11 affirmatively that the affiant is competent to testify to the matters 12 stated therein." Hoffman v. Applicators Sales and Serv., Inc., 439 13 F.3d 9 16 (1st Cir. 2006); Nieves-Luciano v. Hernandez-Torres, 397 14 F.3d 1, 5 (1st Cir. 2005); Carmona v. Toledo, 215 F.3d 124, 131 (1st 15 2000). See also, Quiñones v. Buick, 436 F.3d 284, 290 (1st Cir. 2006) 16 (affidavit inadmissible given plaintiff's failure to cite "supporting 17 evidence to which he could testify in court"). Additionally, the 18 document "must concern facts as opposed to conclusions, assumptions, 19 or surmise", Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 20 2001), not conclusory allegations Lopez-Carrasquillo v. Rubianes, 230 21 F.3d at 414. 22 "To the extent that affidavits submitted in opposition to a 23 motion for summary judgment merely reiterate allegations made in the 24 complaint, without providing specific factual information made on the 25 26 basis of personal knowledge, they are insufficient. However, a as would be admissible in evidence, and shall show submitted in conjunction with the summary judgment principles. Rule 56(e) specifically mandates that

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party's own affidavit, containing relevant information of which he 3 has firsthand knowledge, may be self-serving, but it is nonetheless 4 competent 5 Centennial, 217 F.3d 46, 53 (1st Cir. 2000) (internal citations and 6 quotation marks omitted). 7 "A court is not obliged to accept as true or to deem as a 8 disputed 9 conclusory, or imaginative statement made to the Court by a party." 10 Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.5 (1st Cir. 11 2008) (internal citation, brackets and quotation marks omitted). 12 III. FACTUAL BACKGROUND 13 According to plaintiff, while employed as a janitor with the PR14 PD he was the object of inappropriate touching and sexual harassment 15 by a fellow janitor which situation was known to and instigated by 16 GALO SEGARRA, his supervisor, who failed to take any corrective 17 action. Plaintiff contends that he was subjected to retaliatory 18 harassment 19 complained of the sexually charged environment. 20 The evidence in record shows that plaintiff worked as a "Técnico 21 de Mantenimiento" or janitor, in the General Services Division of the 22 PR-PD. 23 GALO SEGARRA, Director of the General Services Division, was 24 25 26 plaintiff's supervisor at all relevant times. and eventual termination from employment for having material fact each and every unsupported, subjective, to support or defeat summary judgment." Santiago v.

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CIVIL NO. 07-1362 (RLA) Domestic Violence Incident

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3 Plaintiff was involved in a domestic violence incident with his 4 former wife, JOHANNA TORRES BURGOS, on February 2, 1999. 5 In 6 investigating officer ascribed to the PR-PD Division of Domestic 7 Violence and Sexual Harassment, JOHANNA TORRES BURGOS indicated that 8 she was again living with plaintiff within six months after the 9 event; his conduct had changed significantly; she had no interest in 10 pursuing the matter any further and refused to answer any questions 11 on the subject at that time. 12 Plaintiff claims that a second Letter of Resolution of Charges 13 recommending his termination based on this incident was issued on 14 June 22, 2006, that is, more than seven years after the event. 15 Elevator Incident 16 According to a memorandum dated October 5, 2005, subscribed by 17 MIGUEL RIVERA CLAUDIO, Investigative Agent for the PR-PD Confidential 18 Investigations Division, on September 30, 2005, he received an 19 anonymous telephone call regarding an incident involving plaintiff 20 and MARGARITA FIGUEROA CARRASQUILLO. 21 The memorandum indicates that at the end of June 2005, while 22 MRS. FIGUEROA CARRASQUILLO was about to take the elevator on the 23 eleventh floor of their office building, she was stopped by plaintiff 24 25 26 who asked her if she knew a certain "John Doe". When she inquired who that person was, plaintiff asked her to check on the screen of his a sworn statement taken on February 16, 2000, by an

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CIVIL NO. 07-1362 (RLA) cellular telephone where a penis was shown. MRS.

Page 8 FIGUEROA

3 CARRASQUILLO reacted by telling plaintiff that this was disrespectful 4 and left. 5 The memorandum further notes that on September 30, 2005, MR. 6 RIVERA CLAUDIO interviewed MRS. FIGUEROA CARRASQUILLO who confirmed 7 the event but declined to press charges against plaintiff. 8 On October 18, 2005, FRANCISCO A. QUIÑONES RIVERA, ESQ., PR-PD 9 Auxiliary Superintendent of Public Integrity, referred the incident 10 involving MRS. FIGUEROA CARRASQUILLO to LT. I VILMA H. HERNANDEZ 11 BERMUDEZ, 12 Harassment Bureau, for an administrative investigation. 13 On October 19, 2005, MRS. FIGUEROA CARRASQUILLO provided LT. I 14 HERNANDEZ BERMUDEZ with a sworn statement indicating that she did not 15 want to press charges against plaintiff because she did not consider 16 the incident sexual harassment but rather it showed a lack of 17 respect. 18 On December 2, 2005, LT. I HERNANDEZ BERMUDEZ issued a Grievance 19 Report 20 Figueroa Carrasquillo does not have any kind of interest in the 21 administrative grievance for alleged sexual-harassment, the Puerto 22 Rico Police takes action in the matter because the agency can not 23 tolerate this kind of behavior between the personnel as is stipulated 24 25 26 in the `Regulation to [E]stablish the Public Policy and Procedure to wherein she concluded that "even though Mrs. Margarita PR-PD Director of the Domestic Violence and Sexual

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Filed [sic] Grievances of Sexual Harassment in the Puerto Rico Police 3 No. 6508.'"1 4 The Report recommended that plaintiff be issued a warning. 5 According to plaintiff, on June 14, 2006, a first Letter of 6 Resolution 7 elevator incident was issued. 8 Complaint of Sexual Harassment 9 On October 25, 2005, plaintiff filed a complaint with the PR-PD 10 Sexual Harassment Bureau alleging that he was the victim of sexual 11 harassment at work by a fellow janitor, ANGEL RIVERA, which conduct 12 was instigated by his supervisor, GALO SEGARRA. 13 On March 2, 2006, LT. I VILMA HERNANDEZ BERMUDEZ rendered a 14 Report regarding plaintiff's sexual harassment complaint. 15 Based 16 concluded that, rather than plaintiff being the victim of sexual 17 harassment on the part of ANGEL RIVERA, both plaintiff and co-worker 18 MIGUEL ANGEL ALICEA BRUNO consistently abused ANGEL RIVERA, who was 19 handicapped (deaf and dumb). 20 The Report recommended that the following sanctions be imposed: 21 Plaintiff: 22 MIGUEL ANGEL ALICEA BRUNO: 23 GALO SEGARRA: 24 25 26
1

of

Charges

recommending

his

termination

due

to

the

on

the

testimony

of

various

witnesses,

the

Report

Termination Termination Ten days suspension

Docket No. 59-13 p. 2.

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On September 19, 2006, a third Resolution of Charges was issued 3 proposing plaintiff's removal based on the investigation results 4 regarding the aforementioned conduct. 5 Upon plaintiff's petition, an administrative hearing regarding 6 this matter was held on May 16, 2007. Via a letter dated November 20, 7 2007, plaintiff was notified of the PR-PR's decision to remove him 8 from employment. 9 Plaintiff was subsequently terminated from his job at the PR-PD. 10 Retaliation 11 On December 6, 2005, plaintiff filed a claim for retaliation 12 with 13 alleging that shortly after he filed the aforementioned sexual 14 harassment complaint, the PR-PD filed a sexual harassment claim 15 against him based on an anonymous phone call even though the alleged 16 victim had no interest in pressing charges. 17 On November 13, 2006, plaintiff filed a retaliation claim with 18 the EEOC. 19 On January 29, 2007, the EEOC issued its notice of right to sue 20 letter. 21 IV. TITLE VII 22 A. Sexual Harassment 23 Defendants 24 25 26 have moved us to dismiss plaintiff's sexual harassment cause of action for failure to state a colorable claim as well as on timeliness grounds. the Puerto Rico Labor Department Anti-Discrimination Unit

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In his opposition, plaintiff clarifies that he is not pursuing 3 a sexual harassment claim through these proceedings. He specifically 4 noted that this action "is not a sexual harassment case; it is a 5 retaliation case because he was fired and retaliated, because he 6 [had] filed before a claim for sexual harassment at the EEOC."2 7 Rather, "the only cause of action asserted in the complaint is based 8 on his termination from employment allegedly due to retaliation for 9 having filed a prior claim at the EEOC which it [sic] was for sexual 10 harassment."3 11 Based on the foregoing, we need not address the arguments 12 presented by defendants in their motion addressing alleged legal 13 deficiencies and untimeliness4 pertaining to a sexual harassment cause 14 of action. 15 B. Retaliation 16 "Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), 17 states that it is unlawful for an employer to discriminate against an 18 employee because `he has opposed any practice made an unlawful 19 employment practice..., or because he has made a charge, testified, 20 assisted, 21 22 23 24 25 26
2

or

participated

in

any

matter

in

an

investigation,

Plaintiff's Opposition (docket No. 62) ¶ 11 p. 4. Id. (emphasis ours).

3

Defendants' arguments regarding timeliness in their summary judgment petition are addressed exclusively to the sexual harassment claims.

4

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proceeding, or hearing.'" DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 3 2008). 4 The interests sought to be protected by Title VII's anti5 discrimination mandate differ from those underlying its retaliation 6 clause. 7 individuals based on who they are, i.e., their status. The anti8 retaliation provision seeks to prevent harm to individuals based on 9 what they do, i.e., their conduct." Burlington N. & Santa Fe Ry. Co. 10 v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). 11 "It therefore does not matter for retaliation purposes whether [the 12 employer] would have treated a male [employee] the same way he 13 treated [plaintiff]. The relevant question is whether [the employer] 14 was retaliating against [plaintiff] for filing a complaint, not 15 whether he was motivated by gender bias at the time." DeCaire, 530 16 F.3d at 19. 17 Hence, for retaliation purposes "[t]he relevant conduct is that 18 which occurred after [plaintiff] complained about his superior's 19 [discriminatory] related harassment." Quiles-Quiles v. Hendeson, 439 20 21 "The evidence of retaliation can be direct or circumstantial." 22 DeCaire, 530 F.3d at 20. Unless direct evidence is available, Title 23 VII retaliation claims may be proven by using the burden-shifting 24 25 26 framework set forth in McDonnell Douglas. "In order to establish a prima facie case of retaliation, a plaintiff must establish three F.3d 1, 8 (1st Cir. 2006) (italics in original). "The substantive provision seeks to prevent injury to

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elements. First, the plaintiff must show that he engaged in a 3 protected 4 suffered a materially adverse action, which caused him harm, either 5 inside or outside of the workplace. The impact of this harm must be 6 sufficient to dissuade a reasonable worker from making or supporting 7 a charge of discrimination. Third, the plaintiff must show that the 8 adverse action taken against him was causally linked to his protected 9 activity." Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 10 223 (1st Cir. 2007) (citations and internal quotation marks omitted); 11 Moron-Barradas v. Dep't of Educ. Of Commonwealth of P.R., 488 F.3d 12 472, 481 (1st Cir. 2007); Quiles-Quiles, 439 F.3d 13 "Under the McDonnell Douglas approach, an employee who carries 14 [his] burden of coming forward with evidence establishing a prima 15 facie case of retaliation creates a presumption of discrimination, 16 shifting the burden to the employer to articulate a legitimate, non17 discriminatory reason for the challenged actions... If the employer's 18 evidence 19 discrimination drops from the case, and the plaintiff retains the 20 ultimate burden of showing that the employer's stated reason for the 21 challenged actions was in fact a pretext for retaliating." Billings 22 23 internal quotation marks and brackets omitted). 24 25 26 "[A]n employee engages in protected activity, for purposes of a Title VII retaliation claim, by opposing a practice made unlawful by v. Town of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) (citations, creates a genuine issue of fact, the presumption of at 8. activity. Second, the plaintiff must demonstrate he

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Title VII, or by participating in any manner in an investigation or 3 proceeding under Title VII." Mariani-Colon, 511 F.3d at 224. 4 Plaintiff's prima facie burden "is not an onerous one." Calero5 Cerezo v. U.S. Dep't of Justice, 355 F.3d. 6, 26 (1st Cir. 2004). See 6 also, Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 858 (1st Cir. 7 2008) (citing DeCaire, 530 F.3d at 19) (deemed a "`relatively light 8 burden'"). 9 However, the effects of the retaliation must be materially 10 adverse 11 protects an individual not from all retaliation, but from retaliation 12 that produces an injury or harm." Burlington, 548 U.S. at 67. In 13 order to prevail on a retaliation claim "a plaintiff must show that 14 a 15 materially adverse, which in this context means it well might have 16 dissuaded a reasonable worker from making or supporting a charge of 17 discrimination." Id. at 68. It is not necessary that the conduct at 18 issue affect the employee's "ultimate employment decisions." Id. at 19 67. 20 The determination of whether a particular action is "materially 21 adverse" must be examined based on the facts present in each case and 22 "should be judged from the perspective of a reasonable person in the 23 plaintiff's position, considering all the circumstances." Burlington, 24 25 26 548 U.S. at 71 (citation and internal quotation marks omitted). reasonable employee would have found the challenged action to plaintiff. "[Title VII's] anti-retaliation provision

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In reaching its decision in Burlington, the Supreme Court 3 considered such factors as whether the duties of a position "were... 4 more arduous and dirtier" when compared to the other position which 5 "required more qualifications, which is an indication of prestige [] 6 and... was objectively considered a better job". Id. (citation and 7 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 supervisor's] behavior - upbraiding [plaintiff] for her question at 14 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 25 26 conduct need not relate to the terms or conditions of employment to give rise to a retaliation claim. Indeed, we think that these Specifically, the court noted that "some of [the

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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." 515 F.3d at 54 (citations, internal quotation marks and 11 brackets omitted). 12 "It is true that an employee's displeasure at a personnel action 13 cannot, 14 plaintiff] came forward with enough objective evidence contrasting 15 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." DeCaire, 530 F.3d at 20 19 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 25 26 burden of establishing a prima facie case of retaliation"); QuilesQuiles, 439 F.3d at 8 ("[I]n proper circumstances, the causation (citation and internal quotation marks omitted). See also, standing alone, render it materially adverse... [but

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element may be established by evidence that there was a temporal 3 proximity 4 complaint"); Calero-Cerezo, 355 F.3d at 25 (three to four months 5 insufficient for causal connection). 6 Plaintiff carries the burden of presenting admissible evidence 7 of retaliatory intent in response to a summary judgment request. The 8 court need not consider unsupported suppositions. "While [plaintiff] 9 engages in much speculation and conjecture, a plaintiff cannot defeat 10 summary judgment by relying on conclusory allegations, or rank 11 speculation. To defeat summary judgment, a plaintiff must make a 12 colorable showing that an adverse action was taken for the purpose of 13 retaliating against him." Mariani-Colon, 511 F.3d at 224 (citations 14 and internal quotation marks omitted). 15 Additionally, even though "it is permissible for the trier of 16 fact to infer the ultimate fact of discrimination from the falsity of 17 the employer's discrimination, but doing so is not required, as there 18 will be instances where, although the plaintiff has established a 19 prima facie case and set forth sufficient evidence to reject the 20 defendant's explanation, no rational fact-finder could conclude that 21 the action was discriminatory." DeCaire, 530 F.3d at 19-20 (italics 22 in original). 23 "[T]here is no mechanical formula for finding pretext. One way 24 25 26 to show pretext is through such weaknesses, implausibilities, between the behavior in question and the employee's

inconsistencies, incoherencies, or contradictions in the employer's

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CIVIL NO. 07-1362 (RLA) proffered legitimate reasons for its action that a

Page 18 reasonable

3 factfinder could rationally find them unworthy of credence and with 4 or without the additional evidence and inferences properly drawn 5 therefrom infer that the employer did not act for the asserted non6 discriminatory reasons." Billings, 515 F.3d at 55-56 (citations, 7 internal quotation marks and brackets omitted). 8 However, courts "should exercise caution in second guessing 9 [employer's] 10 personnel departments, substituting their judicial judgments for the 11 business judgments of employers." Dennis, 549 F.3d at 859 (citation 12 and 13 evidence that an employer's decision was pretextual or motivated by 14 discriminatory 15 decision." Bennett v. Saint Gobain Corp., 507 F.3d 23, 32 (1st Cir. 16 2007). 17 Lastly, there are instances where issues of fact regarding the 18 veracity of the allegedly pretextual reasons demand that trial be 19 held to resolve them. See i.e., Billings, 515 F.3d at 56 (citations 20 and internal quotation marks omitted) ("But we think that, under the 21 circumstances of this case, it is the jury that must make this 22 decision, one way or another. As we have advised, where a plaintiff 23 in a discrimination case makes out a prima facie case and the issue 24 25 26 becomes whether the employer's stated nondiscriminatory reason is a pretext for discrimination, courts must be particularly cautious intent, a court has no right to supersede that internal quotation marks omitted). "In the absence of any employment decisions. Courts should not act as super

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about granting the employer's motion for summary judgment. Such 3 caution is appropriate here, given the factual disputes swirling 4 around the transfer decision.") 5 In order to adequately establish the necessary causation as part 6 of his prima facie burden, plaintiff must present evidence that the 7 person responsible for the decision at issue either was aware of the 8 protected conduct or "consulted with anyone possessing a motive to 9 retaliate against [plaintiff]... [to] support[] an inference of 10 complicity." Dennis, 549 F.3d at 858 (citation and internal quotation 11 marks omitted). 12 Even though "[t]emporal proximity can create an inference of 13 causation in the proper case... to draw such an inference, there must 14 be proof that the decisionmaker knew of the plaintiff's protected 15 conduct when he or she decided to take the adverse employment 16 action." Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 84 (1st 17 Cir. 2006). See also, Freadman v. Metropolitan Property and Cas. Ins. 18 Co., 484 F.3d 91, 106 (1st Cir. 2007) (no causal connection inasmuch 19 as accommodation request made after decision to remove plaintiff 20 21 adverse action must have been taken for the purpose of retaliating. 22 And to defeat summary judgment, a plaintiff must point to some 23 evidence of retaliation by a pertinent decisionmaker.") 24 25 26 made); Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) ("[T]he

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CIVIL NO. 07-1362 (RLA) C. Retaliatory Harassment

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3 In retaliation cases, "[t]he adverse employment action may be 4 satisfied by showing the creation of a hostile work environment or 5 the intensification of a pre-existing hostile environment." Quiles6 Quiles, 439 F.3d at 9. See also, Noviello v. City of Boston, 398 F.3d 7 76, 89 (1st Cir. 2005) ("[T]he creation and perpetuation of a hostile 8 work 9 action".) "[A] hostile work environment, tolerated by the employer, 10 is cognizable as a retaliatory adverse employment action... This 11 means that workplace harassment, if sufficiently severe or pervasive, 12 may 13 sufficient to satisfy the second prong of the prima facie case for... 14 retaliation cases." Id. (under Title VII). "Harassment by coworkers 15 as a punishment for undertaking protected activity is a paradigmatic 16 example of adverse treatment spurred by retaliatory motives and, as 17 such, is likely to deter the complaining party (or others) from 18 engaging in protected activity." Id. at 90. 19 "[R]etaliatory actions that are not materially adverse when 20 considered individually may collectively amount to a retaliatory 21 hostile work environment." Billings, 515 F.3d at 54 n.13. 22 "In looking at a claim for hostile work environment, we assess 23 whether a plaintiff was subjected to severe or pervasive harassment 24 25 26 that materially altered the conditions of his employment. To sustain a claim of hostile work environment, [plaintiff] must demonstrate in and of itself constitute an adverse employment action environment can comprise a retaliatory adverse employment

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that the harassment was sufficiently severe or pervasive so as to 3 alter the conditions of his employment and create an abusive work 4 environment and that the [discriminatory] objectionable conduct was 5 both objectively and subjectively offensive, such that a reasonable 6 person would find it hostile or abusive and [that plaintiff] in fact 7 did perceive it to be so." Thompson v. Coca-Cola Co., 522 F.3d 168, 8 179 (1st Cir. 2008) (internal citations and quotation marks and 9 brackets omitted). 10 "The environment must be sufficiently hostile or abusive in 11 light of all of the circumstances, including the frequency of the 12 discriminatory 13 threatening or humiliating, or a mere offensive utterance; and 14 whether 15 performance." Prescott v. Higgins, 538 F.3d 32, 42 (1st Cir. 2008) 16 (citation and internal quotation marks omitted); Rios-Jimenez v. 17 Principi, 520 F.3d 31, 43 (1st Cir. 2008); Torres-Negron v. Merck & 18 Co., Inc., 488 F.3d 34, 39 (1st Cir. 2007). 19 "There is no mathematically precise test we can use to determine 20 when this burden has been met, instead, we evaluate the allegations 21 and 22 discriminatory conduct; its severity; whether it was physically 23 threatening or humiliating, or a mere offensive utterance, and 24 25 26 whether it unreasonably interfered with an employee's work all the circumstances, considering the frequency of the it unreasonably interferes with an employee's work conduct; its severity; whether it is physically

performance." Carmona-Rivera v. Commonwealth of Puerto Rico, 464 F.3d

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CIVIL NO. 07-1362 (RLA) 14, 19 (1st Cir. 2006) (citation and internal

Page 22 quotation marks

3 omitted). 4 "In 5 particular conduct hostile or abusive, a court must mull the totality 6 of the circumstances, including factors such as the frequency of the 7 discriminatory 8 threatening or humiliating, or a mere offensive utterance; and 9 whether 10 performance. The thrust of this inquiry is to distinguish between the 11 ordinary, if occasionally unpleasant, vicissitudes of the workplace 12 and actual harassment." Noviello, 398 F.3d at 92 (citations and 13 internal quotation marks omitted). 14 Plaintiff 15 harassment such that a court could find behavior on the part of the 16 defendants that was objectively and subjectively offensive behavior 17 that a reasonable person would find hostile or abusive." Carmona18 Rivera, 19 omitted). See also, Noviello, 398 F.3d at 92 ("rudeness or ostracism, 20 standing alone, usually is not enough to support a hostile work 21 environment claim"); De la Vega v. San Juan Star, Inc., 377 F.3d 111, 22 23 treatment" not sufficient). 24 25 26 "[I]f protected activity leads only to commonplace indignities typical of the workplace (such as tepid jokes, teasing, or 118 (1st Cir. 2004) (general claims of "humiliating and discriminatory 464 F.3d at 19 (citation and internal quotation marks must provide "evidence of ridicule, insult, or it unreasonably interferes with an employee's work conduct; its severity; whether it is physically determining whether a reasonable person would find

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Page 23

aloofness), a reasonable person would not be deterred from such 3 activity. After all, an employee reasonably can expect to encounter 4 such tribulations even if she eschews any involvement in protected 5 activity. On the other hand, severe or pervasive harassment in 6 retaliation for engaging in protected activity threatens to deter due 7 enforcement of the rights conferred by statutes." Noviello, 398 F.3d 8 at 92. 9 Proving retaliatory intent is crucial. Hence, the purpose behind 10 the harassment must be to retaliate for the protected conduct, that 11 is, it must be motivated by plaintiff's exercise of his statutory 12 rights. Carmona-Rivera, 464 F.3d at 20; Quiles-Quiles, 439 F.3d at 9. 13 Causation may be established by the temporal proximity between 14 the harassment and the protected conduct. See, i.e., id. 439 F.3d at 15 9 (intensified harassment shortly after filing EEOC complaint). 16 Even 17 determined by the finder of fact... that does not prevent a court 18 from ruling that a particular set of facts cannot establish a hostile 19 environment as a matter of law in an appropriate case." Billings, 515 20 F.3d at 47 n.7. 21 D. The Three Retaliatory Events 22 Plaintiff 23 retaliation and retaliatory harassment claims. Thus, we shall examine 24 25 26 the charged conduct which took place after plaintiff filed his sexual cites the same events in support of both his though "[t]he existence of a hostile environment is

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CIVIL NO. 07-1362 (RLA)

Page 24

harassment claim on October 25, 2005, to determine whether or not 3 they are actionable under either of these discrimination modes. 4 Plaintiff relies on the three Resolution of Charges Letters and 5 his termination as evidence of retaliation. The first Resolution of 6 Charges Letter, dated June 14, 2006, pertains to the 1999 domestic 7 violence incident whereas the second one, dated June 22, 2006, refers 8 to the elevator episode with MARGARITA FIGUEROA CARRASQUILLO. We are 9 not privy to either of these two letters. All we have before us 10 regarding this correspondence and surrounding events is plaintiff's 11 description thereof in his sworn statement none of which has been 12 challenged by defendants. We do not know the specifics regarding the 13 matters addressed in these documents nor the outcome of the personnel 14 actions proposed thereby.5 15 Lastly, plaintiff points to a third Resolution Charge Letter 16 which 17 concluded that plaintiff sexually harassed his co-worker, ANGEL 18 RIVERA. This led to plaintiff's eventual termination. 19 20 21 22 23 24 25 26 We initially note that the first two Resolution of Charges Letters have not been made part of the record by either party and that plaintiff's references thereto are far from clear. All we know from plaintiff's declaration is that on June 14, 2006, a first Letter of Resolution of Charges purportedly recommending his termination due to the elevator incident involving MARGARITA FIGUEROA CARRASQUILLO was issued. See Unsworn Statement under Penalty of Perjury (docket No. 59-17) ¶¶ 8, 10 pp. 3-4. Plaintiff further avers that on June 22, 2006, a second Letter of Resolution of Charges was issued recommending his termination based on a domestic violence incident with his former wife. Id. ¶¶ 4-5, pp. 2, 3, 5.
5

resulted

from

a

PR­PD

internal

investigation

and

which

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CIVIL NO. 07-1362 (RLA) 1. Elevator Incident

Page 25

3 As to the elevator incident which gave rise to the first 4 Resolution of Charges Letter, there is no dispute that: the same did 5 take place in June 2005; MRS. FIGUEROA CARRASQUILLO was interviewed 6 on September 30, 2005; the investigation was initiated by a report 7 addressed to the PR-PRD Sexual Harassment Bureau on October 5, 2005, 8 and that by the time plaintiff submitted his discrimination claim an 9 investigation mandated by the PR-PD Policy regulations had already 10 taken 11 aforementioned 12 plaintiff was referred for investigation on October 18, 2005, prior 13 to October 25, 2005, the date when plaintiff submitted his sexual 14 harassment claim. 15 Effects of decisions taken prior to the protected conduct cannot 16 be 17 relationship between them. "The filing of a complaint cannot be the 18 basis for adverse employment action but it also cannot immunize an 19 employee 20 complaint." Sabinson v. Trustees of Dartmouth Coll., 542 F.3d 1, 5 21 22 We 23 elevator incident pre-dated plaintiff's sexual harassment complaint, 24 25 26 he cannot argue that it was carried out with retaliatory animus. Plaintiff having failed at the causal relationship step of his find that inasmuch as the investigation regarding the (1st Cir. 2008). from action already planned and not dependant on the deemed retaliatory because there is no possible causal occurrence which has not been controverted by its course. In other words, the matter regarding the

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Page 26

initial prima facie burden, any attempt to claim retaliation based on 3 this particular incident is rejected. 4 Accordingly, 5 incident is hereby DISMISSED. 6 2. 7 In the case of the domestic violence incident, we have no idea 8 as to what, if anything, transpired from the time the event was 9 originally investigated and the time the second Resolution of Charges 10 Letter was purportedly issued which merited action on the part of the 11 PR-PD. Further, we are unaware of the outcome of the letter. The only 12 evidence on record reflects that plaintiff was involved in a domestic 13 violence incident with his former wife, JOHANNA TORRES BURGOS, on 14 February 2, 1999; that her sworn statement was taken by the PR-PD on 15 February 16, 2000, where she indicated that she had no interest in 16 pursuing the matter, and that an alleged second Letter of Resolution 17 of Charges recommending his termination based on this incident was 18 issued on June 22, 2006. 19 Apart from plaintiff's statement, there is no indication on 20 record as to what triggered PR-PD to issue the June 22, 2006 letter 21 regarding an incident which occurred seven years prior. 22 As previously noted, plaintiff's burden to prove a prima facie 23 retaliation claim is not onerous. For each claim there must be 24 25 26 evidence of plaintiff having engaged in protected conduct, some Domestic Violence Incident the retaliatory claim based on the elevator

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Page 27

materially adverse action taken against plaintiff and a causal 3 relation existing between the two. 4 The challenged conduct need not be related to the employee's 5 working terms or conditions. Rather, as decreed by the Supreme Court, 6 we must ascertain whether a "reasonable employee would have found the 7 challenged action materially adverse, which in this context means it 8 well 9 supporting a charge of discrimination." Burlington, 126 S.Ct. at 2415 10 (internal citations and quotation marks omitted). In other words, its 11 significance is gauged by its deterrent effect on 12 or endorsing discrimination complaints. 13 Further, whether the alleged actions are sufficiently severe 14 must be determined on a case-by-case basis and from the standpoint of 15 a reasonable person in like circumstances. Cotton v. Cracker Barrell 16 Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006). Under 17 particular circumstances, "the existence of an adverse employment 18 action may be a question of fact for the jury when there is a dispute 19 concerning 20 21 2009). 22 "Whether an action is sufficient to constitute an adverse 23 employment 24 25 26 action for purposes of a retaliation claim must be determined on a case-by-case basis using both a subjective and an objective standard. The employee's subjective view of the the manner in which the action taken affected the plaintiff-employee." Bergeron v. Cabral, 560 F.3d 1, 6 (1st Cir. either the filing might have dissuaded a reasonable worker from making or

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CIVIL NO. 07-1362 (RLA) significance and adversity of the employer's action

Page 28 is not

3 controlling; the employment action must be materially adverse as 4 viewed by a reasonable person in the circumstances. Title VII is 5 neither a general civility code nor a statute making actionable the 6 ordinary tribulations of the working place." Cotton v. Cracker Barrel 7 Old Country Store, Inc., 434 F.3d at 1234 (internal citations, 8 quotation marks and brackets omitted). 9 At this stage of the proceedings, the issue before us is whether 10 a letter recommending termination from employment would dissuade a 11 reasonable person from making or supporting a discrimination charge. 12 An admonishment letter has been deemed to constitute an adverse 13 employment action for purposes of a retaliation claim. Almeyda v. 14 Municipality of Aguadilla, 447 F.3d 85, 97 (1st Cir. 2006). 15 In this particular case, we find that the risk of termination as 16 purportedly cautioned in the letter is sufficiently severe so as to 17 constitute a materially adverse action for purposes of Title VII. The 18 possibility of such a sanction could undoubtably be reasonably 19 considered by an employee as a deterrent from exercising his anti20 discrimination rights. In other words, being exposed to losing his 21 job would likely dissuade a reasonable person from complaining of 22 possible discriminatory conduct. 23 Based on the limited record before us and with defendants' total 24 25 26 failure to refute plaintiff's allegations on this particular point or set forth any non-discriminatory reasons for the proposed

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Page 29

termination, we must conclude that plaintiff has met his undemanding 3 prima facie burden regarding the domestic violence incident. No 4 explanation has been provided by defendants for issuing a letter in 5 2006 addressing events which took place in 1999, where the only 6 underlying support is the victim's statement - taken six years prior 7 - declining to provide information. The only apparent intervening 8 event was plaintiff's sexual harassment complaint which plaintiff 9 cites and we must accept absent evidence to 10 Accordingly, the request to dismiss plaintiff's retaliation 11 claim under Title VII based on the second Letter of Resolution of 12 Charges due to the domestic violence incident is DENIED. 13 3. 14 Lastly, plaintiff contends that his termination pursuant to a 15 third 16 investigation report disposing of plaintiff's complaint concluded 17 that rather than being the victim of sexual harassment, plaintiff was 18 instead the aggressor in the sexual harassment of co-worker ANGEL 19 RIVERA. 20 We can safely conclude that plaintiff met his prima facie burden 21 on this particular cause of action. As previously noted, plaintiff 22 complained of discrimination which constitutes protected conduct and 23 both his employer's letter and eventual cessation of employment with 24 25 26 the PR-PD clearly constitute adverse actions. As to the retaliatory motive, plaintiff refers to inculpatory statements allegedly made by Resolution of Charges Letter was also retaliatory. An Third Letter of Resolution of Charges and Termination the contrary.

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his supervisors CRISTOBAL RIVERA and HECTOR NAVARRO. Specifically, in 3 his declaration plaintiff stated that "Hector Navarro told me the 4 comment 5 harassment that I filed against Galo Segarra and Angel Rivera".6 6 "Cristobal Rivera told me that I will be fired for the complaint that 7 I made to Galo Segarra and to Angel Rivera".7 8 Defendants countered alleging that these events resulted from an 9 exhaustive investigation and not from any retaliatory animus. This 10 position, however, has been put at issue by plaintiff. Even though 11 the investigation report used as grounds for plaintiff's termination 12 cites the testimony of various witnesses attesting to plaintiff's 13 harassing conduct towards ANGEL RIVERA, plaintiff has submitted 14 contradictory information tending to prove that it was he who was the 15 victim of ANGEL RIVERA's harassment. Plaintiff also makes reference 16 to a sworn statement of MIGUEL A. ALICEA BRUNO, his co-worker, citing 17 instances where ANGEL RIVERA engaged in unwanted touching and sexual 18 advances towards plaintiff and that GALO SEGARRA, their supervisor, 19 slighted plaintiff's complaints regarding RIVERA's behavior.8 20 21 22 23 24 25 26 Unsworn Statement under Penalty of Perjury (docket No. 59-17) ¶ 28 pp. 10-11.
7 6

that

I

will

be

fired

due

to

the

complaint

of

sexual

Id. ¶ 29 p. 11. Sworn Statement of MIGUEL ALICEA BRUNO (docket No. 19-15).

8

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CIVIL NO. 07-1362 (RLA)

Page 31

Plaintiff further indicated that ANGEL RIVERA's father was a PR3 PD lieutenant9 and GALO SEGARRA's father a commander at the PR-PD10 4 which 5 investigation process. 6 "[W]here a plaintiff in a discrimination case makes out a prima 7 facie case and the issue becomes whether the employer's stated 8 nondiscriminatory reason is a pretext for discrimination, courts must 9 be particularly cautions about granting the employer's motion for 10 summary judgment." Billings, 515 F.3d at 56 (internal citations and 11 quotation marks omitted). 12 Based on the foregoing, we find that plaintiff has met his 13 burden of presenting evidence that defendants' purportedly non14 discriminatory reasons for dismissal might be pretextual. 15 Accordingly, 16 Resolution of Charges and his termination as retaliatory under Title 17 VII is DENIED. 18 4. Harassment/Hostile Environment 19 Plaintiff further argues that the aforementioned retaliatory 20 events are also tantamount to a retaliatory hostile work environment. 21 In 22 environment may be deemed a retaliatory adverse action under Title 23 24 25 26 Unsworn Statement under Penalty of Perjury (docket No. 59-17) ¶ 18 p. 7.
10 9

also

raise

a

possible

specter

of

partiality

in

the

the

request

to

dismiss

the

third

Letter

of

Noviello

the

court

specifically

found

that

a

hostile

work

Id. ¶ 19 p. 7.

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VII, 42 U.S.C. § 2000e(3)(a). "This means that workplace harassment, 3 if sufficiently severe or pervasive, may in and of itself constitute 4 an adverse employment action sufficient to satisfy the second prong 5 of the prima facie case for Title VII retaliation cases." Id. at 89. 6 "Harassment by coworkers as a punishment for undertaking protected 7 activity is a paradigmatic example of adverse treatment spurred by 8 retaliatory motives and, as such, is likely to deter the complaining 9 party (or others) from engaging in protected activity." Noviello, 398 10 F.3d at 90. 11 "An 12 substantiality 13 environment 14 jurisprudence of Title VII, embodies that prerequisite. In order to 15 prove a hostile work environment, a plaintiff must show that [he] was 16 subjected to severe or pervasive harassment that materially altered 17 the 18 objectively and subjectively offensive, one that a reasonable person 19 would find hostile or abusive, and one that the victim in fact did 20 perceive to be so. In determining whether a reasonable person would 21 find particular conduct hostile or abusive, a court must mull the 22 totality 23 frequency of the discriminatory conduct; its severity; whether it is 24 25 26 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work of the circumstances, including factors such as the conditions of [his] employment. The harassment must be doctrine, as developed in the anti-discrimination before it can be actionable. The hostile work allegedly retaliatory act must rise to some level of

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Page 33

performance. The thrust of this inquiry is to distinguish between the 3 ordinary, if occasionally, unpleasant, vicissitudes of the workplace 4 and actual harassment. 5 This 6 harassment context. On the one hand, if protected activity leads only 7 to commonplace indignities typical of the workplace (such as tepid 8 jokes, teasing, or aloofness) a reasonable person would not be 9 deterred from such activity. After all, an employee reasonably can 10 expect to encounter such tribulations even if [he] eschews any 11 involvement in protected activity. On the other hand, severe or 12 pervasive 13 activity threatens to deter due enforcement of rights conferred by 14 statutes such as Title VII... "Along this continuing, rudeness or 15 ostracism, standing alone, usually is not enough to support a hostile 16 work environment claim." Noviello, 398 F.3d at 92 (internal citations 17 and quotation marks omitted). "In reaching this conclusion, we take 18 into account the relative ubiquity of the retaliatory conduct, its 19 severity, its natural tendency to humiliate (and, on occasion, 20 physically 21 interfere with the p]laintiff's work performance." Id. at 93. 22 We find the hostile work environment scenarios confronted by the 23 courts in the aforementioned cases inapposite to the facts before us. 24 25 26 The outstanding retaliatory events are limited to distinct personnel measures sufficiently severe in and of themselves for each one to be threaten) a reasonable person, and its capacity to harassment in retaliation for engaging in protected framework is readily transferable to the retaliatory

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CIVIL NO. 07-1362 (RLA)

Page 34

actionable under § 2000e-3(a). In examining the retaliatory conduct 3 charged by plaintiff herein we are not faced with the type of severe 4 and pervasive harassing environment at his workplace necessary to 5 impact on his employment conditions. Rather than classifying these 6 two Resolution of Charges Letters and plaintiff's termination as part 7 of a retaliatory harassment mode, we find that each one constitutes 8 a separate retaliation claim under Title VII. 9 Accordingly, 10 claim asserted under Title VII is hereby DISMISSED. 11 VII. § 1983 CLAIMS 12 Plaintiff also charges violation of 42 U.S.C. § 1983 which 13 reads: 14 Every 15 ordinance, regulation, custom or usage, of any State or 16 Territory, subjects, or causes to be subjected, any citizen 17 of 18 jurisdiction thereof to the deprivation of any rights, 19 privileges, or immunities secured by the Constitution and 20 laws, shall be liable to the party injured in an action at 21 law, suit in equity, or other proceeding for redress. 22 Section 1983 does not create substantive rights but is rather a 23 procedural 24 25 26 mechanism for enforcing constitutional or statutory rights. Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). The statute, i.e., § 1983 "`is not itself a source of the United States or other person within the person who, under color of any statute, the retaliatory harassment/hostile environment

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substantive rights, but a method for vindicating federal rights 3 elsewhere conferred... by the United States Constitution and federal 4 statutes.'" Rodriguez Garcia v. Municipality of Caguas, 354 F.3d 91, 5 99 (1st Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3, 6 99 S.C. 2689, 61 L.Ed.2d 433 (1979)). Hence, it is plaintiffs' burden 7 to identify the particular underlying constitutional or statutory 8 right that is sought to be enforced via judicial proceedings. 9 In order to prevail in a § 1983 claim plaintiff must bring forth 10 evidence that defendant (1) acted "under color of state law" and (2) 11 deprived plaintiff of a federally protected right. Cepero-Rivera v. 12 Fagundo, 414 F.3d 124, 129 (1st Cir. 2005); Barreto-Rivera v. Medina13 Vargas, 168 F.3d 42, 45 (1st Cir. 1999); Rogan v. City of Boston, 267 14 F.3d 24 (1st Cir. 2001); Dimarco-Zapa v. Cabanillas, 238 F.3d 25, 33 15 (1st Cir. 2001); Collins v. 16 "As 17 participated in the conduct that deprived the plaintiff of his rights 18 can be held liable." Cepero-Rivera, 414 F.3d at 130. See i.e., 19 Barreto-Rivera, 168 F.3d at 48 (in the context of supervisors they 20 can be held liable solely "on the basis of [their] own acts or 21 omissions"); 22 Maldonado-Denis, 23 F.3d at 581; Gutierrez-Rodriguez v. Cartagena, 23 24 25 26 882 F.2d 553, 562 (1st Cir. 1989). "Such liability can arise out of participation in a custom that leads to a violation of constitutional rights, or by acting with deliberate indifference to the Diaz v. Martinez, 112 F.3d 1, 4 (1st Cir. 1997); an additional corollary, only those individuals who Nuzzo, 244 F.3d 246 (1st Cir. 2001).

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CIVIL NO. 07-1362 (RLA) constitutional rights of others."

Page 36 Diaz v. Martinez, 112 F.3d at 4

3 (citations omitted). 4 "In 5 [retaliation he] must demonstrate that defendants were involved in 6 the alleged deprivation of [his] rights, - in this case [the two 7 retaliatory 8 conduct complained of must have been causally connected to the 9 deprivation." Cepero-Rivera, 414 F.3d at 31 (italics in original) 10 (citations and internal quotation marks omitted). 11 Thus, as part of his prima facie burden plaintiff must set forth 12 evidence indicative of a causal connection or relationship between 13 the alleged misconduct and the defendants' acts or omissions. "In 14 order to have a valid claim under § 1983, plaintiff[] must show that 15 defendant's 16 constitutional deprivation." Sullivan v. City of Springfield, 561 17 F.2d 7, 14 (1st Cir. 2009). 18 A. ANGEL RIVERA - Title VII 19 Defendants move to dismiss the § 1983 claims asserted against 20 ANGEL RIVERA alleging that codefendant did not act under color of law 21 nor did he deprive plaintiff of a federally protected right. 22 Apart 23 general, the only allegation in the Amended Complaint addressed 24 25 26 specifically at codefendant ANGEL RIVERA pertains exclusively to sex discrimination and reads as follows: from conclusory statements regarding defendants in actions were the cause in fact of the alleged events]. Imposition of liability requires that the order for [plaintiff] to succeed on [his] claim of

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CIVIL NO. 07-1362 (RLA)

Page 37

18. Codefendants (sic), Mr. Angel Rivera, with his homosexual conduct was the principal cause in the hostile and offensive environment in the workplace and with his action was the person that caused the retaliation against [plaintiff], he never apologized for violating my dignity and for creating an intimidating, hostile and offensive environment in the workplace along with Mr. Segarra. A careful reading of the pleading reveals that the claims asserted against codefendant ANGEL RIVERA are based essentially on his purportedly sexually harassing conduct which allegedly created a hostile work environment. However, plaintiff has conceded that sexual harassment is not at issue in this litigation. Further, as discussed ante, only the retaliatory events pertaining to the domestic violence incident as well as plaintiff's termination based on the PR-PD internal investigation remain as viable Title VII discrimination claims in this case. Yet, there is no evidence suggesting that codefendant ANGEL RIVERA was in any way responsible for either of them. In carrying out the necessary § 1983 inquiry, attention must be focused not on the alleged sexually harassing events which

plaintiff consistently brings to the surface in his memorandum - but rather on the outstanding retaliatory incidents, i.e., the charges letter based on the domestic violence episode and plaintiff's

termination which resulted from the PR-PD internal investigation. In this vein, the court has faced a colossal undertaking in trying to

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CIVIL NO. 07-1362 (RLA)

Page 38

ascertain the specific legal claims in these proceedings. Not only are the allegations in the complaint overly broad and interspersed with conclusory statements but yet more difficult are plaintiff's arguments in response to the summary judgment request. Despite assertions that sexual harassment is not at issue, plaintiff's opposition exclusively relies on the alleged harassing incidents in his attempt to salvage his § 1983 cause of action against this codefendant. Further, there is a dearth of documentary information pertaining to the allegedly retaliatory memoranda and plaintiff's termination.11 Hence, plaintiff having failed to proffer evidence regarding codefendant's personal involvement in either of the two subsisting allegedly retaliatory events, he cannot premise his § 1983 cause of action against ANGEL RIVERA on retaliation. Based on the foregoing, plaintiff's § 1983 claim against

codefendant ANGEL RIVERA based on alleged violations of Title VII is hereby DISMISSED. B. Equal Protection Liability under § 1983 based on equal protection principles mandates that plaintiff present sufficient evidence for a trier of

Only the September 19, 2006 Resolution of Charges Letter and the November 20, 2007 termination letter were submitted as part of the summary judgment process. We have not been privy to either the alleged June 14, 2006 or June 22, 2006 Resolution of Charges correspondence nor what consequences, if any, came about as a result therefrom. Further, there is no indication in the record as to the date when plaintiff was effectively terminated from employment.

11

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CIVIL NO. 07-1362 (RLA)

Page 39

fact to conclude that "(1) [plaintiff] compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995) (citations and internal quotation marks omitted). "A requirement for stating a valid disparate treatment claim under the Fourteenth Amendment is that the plaintiff make a plausible showing that he or she was treated differently from others similarly situated. A similarly situated person is one that is roughly

equivalent to the plaintiff in all relevant respects." Estate of Bennett v. Wainwright, 548 F.3d 155, 166 (1st Cir. 2008) (internal citations and quotation marks omitted). "In order to have a valid claim under § 1983, plaintiff[] must show that defendant's actions were the cause in fact of the alleged constitutional deprivation. It is not enough for plaintiff[] to show [defendant] may have used an impermissible... classification; there must be a causal link between this and the adverse employment action. On an alleged Equal Protection Clause violation, the plaintiff must show more than invidious intent. [He] must also demonstrate that the causal connection between the defendant's action and the plaintiff's injury is sufficiently direct." Sullivan v. City of Springfield, 561 F.3d 7, 14-15 (1st Cir. 2009) (internal citations, quotation marks and brackets omitted).

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

CIVIL NO. 07-1362 (RLA) Plaintiff has failed to meet his burden

Page 40 regarding this

particular claim. In an overly broad manner, he alleges violations to rights secured under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. However, apart from the total lack of information as to the acts or omissions of either of the two individual defendants necessary to establish the required causal nexus, plaintiff has failed to specify how he was treated differently from others similarly situated. There is nothing in either the pleading or in plaintiff's response to the summary

judgment motion which indicates the type of classification which purportedly resulted in an adverse action. In other words, plaintiff has failed to compare his situation to that of other PR-PD employees and explain how this classification motivated a difference in

treatment at work. Accordingly, the equal protection claim asserted under § 1983 is hereby DISMISSED. C. First Amendment - Retaliation12 Retaliation for exercising rights protected under the First Amendment may be vindicated through § 1983. See Broderick v. Evans, 570 F.3d 68 (1st Cir. 2009); Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008); Rosado-Quiñones v. Toledo, 528 F.3d 1, 5 (1st Cir. 2008).

Even though the complaint does not specifically mention the First Amendment as a source of plaintiff's demand for relief, there are sufficient retaliatory allegations in the pleading as to state such a cause of action. Additionally, both parties address this provision in their respective memoranda.

12

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

CIVIL NO. 07-1362 (RLA) As part of his burden to establish a free speech

Page 41 claim,

consonant with the standard set forth by the United States Supreme Court in Mt. Healthy Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), "plaintiff must show that he engaged in constitutionally protected conduct and that this conduct was a substantial or motivating factor in the alleged adverse employment action... If the [p]laintiff meets his prima facie burden the defendant can prevail if it can establish it would have taken the same action regardless of plaintiff's... protected conduct." Welch, 542 F.3d at 936; Fabiano v. Hopkins, 352 F.3d 447, 453 (1st Cir. 2003). Initially a determination must be made to ensure that the conduct at issue does fall within the ambit of the First Amendment. This entails the following inquiry: (1) whether the speech involves a matter of public concern; (2) whether, when balanced against each other, the First Amendment outweigh interests the of the plaintiff interest and in the public

government's

functioning

efficiently; and (3) whether the protected speech was a substantial or motivating factor in the adverse action against the plaintiff. Rosado-Quiñones v. Toledo, 528 F.3d 1, 5 (1st Cir. 2008). Ordinarily, complaints regarding internal personnel matters within a government agency are not deemed matters of public concern. "[W]hen a public employee speaks not as a citizen upon matters of

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CIVIL NO. 07-1362 (RLA)

Page 42

public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Rosado-Quiñones, 528 F.3d at 5-6 (citing Connick v. Myers, 461 U.S. 138, 147 , 103 S.Ct. 1684, 75 L.Ed.2d 798 (1983)). Indeed, "there is no absolute First Amendment right to file lawsuits." Rosado-Quiñones, 528 F.3d at 7. However, lawsuits to uphold civil rights or statutory policy concerns under Title VII have been found to qualify for

Constitutional protection. Id. Thus, we find that based on the circumstances present in this case, the complaint of sexual

harassment based on rights protected under Title VII sufficiently meets the public interest requirement sufficient to meet plaintiff's burden. "Turning to the question of who can be held liable for [the violation] we note that it is axiomatic that the liability of persons sued in their individual capacities under section 1983 must be gauged in terms of their own actions." Welch v. Ciampa, 542 F.3d at 936. As previously discussed, there is no indication in the record as to ANGEL RIVERA having played any role in either of the allegedly retaliatory events charged by plaintiff. Hence, we conclude that plaintiff has failed to establish a prima facie case against this particular codefendant by failing to demonstrate that he was

"personally and directly involved in the alleged violation of his

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CIVIL NO. 07-1362 (RLA)

Page 43

[First Amendment] rights." Cepero-Rivera, 414 F.3d at 130 (citation 3 omitted). 4 Thus, the § 1983 claim asserted aga