Colon et al v. Longhorn Steakhouse Restaurant et al

Filing 64

OPINION AND ORDER GRANTING IN PART and DENYING IN PART 30 Longhorn's motion for summary judgment. We DISMISS Plaintiffs' sexual-harassment claims based upon a theory of harassment by a supervisor. Plaintiffs' coworker harassment, re taliation, and supplemental claims survive summary judgment and will be scheduled for trial. The Pretrial Conference scheduled for September 13, 2010, remains as set. Settlement Conference set for 10/4/2010 01:30 PM in Courtroom 7 before Chief Judge Jose A Fuste. Final Proposed Pretrial Order due by 10/8/2010. Jury Trial set for 10/12/2010 09:00 AM in Courtroom 7 before Chief Judge Jose A Fuste. Signed by Chief Judge Jose A Fuste on 9/10/2010.(mrj)

Colon et al v. Longhorn Steakhouse Restaurant et al

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO B E T H Z A ID A M. COLÓN, PEDRO M. R O D R ÍG U E Z -E M A , and their conjugal p a rtn e rs h ip , C iv il No. 08-1998 (JAF) P la in tif f s , v. R E S T A U R A N T OPERATORS INC., et al. D e f e n d a n ts .

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O P I N I O N AND ORDER P lain tif f s , Bethzaida M. Colón, Pedro M. Rodríguez-Ema, and their conjugal partnership, b rin g this action against Defendants, Restaurant Operators, Inc., d/b/a Longhorn Steakhouse O p e ra to rs , Inc. ("Longhorn"), and unnamed insurance companies, alleging sexual harassment th ro u g h the creation of a hostile work environment and retaliation in violation of Title VII of th e Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e­2000e-17. (Docket No. 10.) P l a in tif f s also bring supplemental claims under various Puerto Rico antidiscrimination and w ro n g f u l discharge statutes. (Id.) Longhorn moves for summary judgment (Docket

N o s . 30­33), and Plaintiffs oppose (Docket No. 39; 42). Longhorn replies to Plaintiffs' o p p o s itio n and statement of additional facts. (Docket Nos. 48; 49.) Plaintiffs surreply. (Docket N o . 63.)

Dockets.Justia.com

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W e derive the following facts from the parties' motions, statements of uncontested m a te ria l facts, and exhibits. (Docket Nos. 30­33; 39; 41; 42; 48; 49.) In January 2006, Colón began working as a server at the Longhorn Steakhouse in Plaza E s c o ria l, Carolina, Puerto Rico. As part of their duties, Longhorn servers were expected to p e rf o rm various "sideworks" on a rotating basis. These sideworks included: emptying garbage c a n s , fetching ice, restocking mugs and glasses, and refilling the "Expo" area. When a server is assigned to the Expo area for sidework, they are expected to carry stacks of plates and move g a rb a g e cans, among other tasks. In June 2007, Colón presented manager Benigno Collazo with a doctor's note stating that she suffered from arthritis and should not, at that time, be made to " c a rry, push, pull or lift more than 15 pounds." (Docket No. 33-4.) Plaintiffs contend that C o lla z o recorded in a notebook that Colón was not to be assigned to the Expo area, as it in v o lv e d lifting heavy stacks of plates and garbage cans. Collazo denies this, maintaining that h e never specified what tasks Colón would be barred from, only that the management would e n s u re she did not have to lift more than fifteen pounds. Regardless, both sides agree that after th e conversation with Collazo, Colón was not assigned to the Expo sidework for some time. W h e n Colón first began working at Longhorn, she was trained as a server by Lambert D a v id . Colón and David began to socialize outside of work more frequently beginning in June 2 0 0 7 . Lambert had previously been in a lengthy relationship with Marilyn Alvarado, a fellow s e rv e r at Longhorn. In the early hours of July 19, 2007, Colón was at David's residence when

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A lv a ra d o appeared. An argument erupted between Alvarado and Colón. While Alvarado and L a m b e rt both contend that the argument never moved beyond a verbal altercation, Plaintiffs c la im that Alvarado hit Colón, causing her to fall down some stairs and land against a garbage c a n . Later that day, Colón informed manager Luis Hernández that she had been beaten up by A lv a ra d o and asked for his protection at work. P la in tif f s claim that on the following day, July 20, 2007, Alvarado threatened Colón with a breadboard, warning her not to talk to David again, mentioning that her father was a police lie u te n a n t, and promising "you're gonna get it."1 Colón told another manager, Héctor Falcón, a b o u t these threats and the alleged July 19 battery and asked for his protection from Alvarado. P la in tif f s claim that Falcón, in response, threatened to transfer Colón to another store if she c o n tin u e d to complain about Alvarado. Falcón states, however, that he made no such threat and th a t he promptly forwarded Colón's complaint to human resources for investigation. P la in tif f s allege further harassment by Alvarado over the next two months, including f re q u e n t threats like "[l]eave my husband alone, you don't know what I'm capable of"; in c re a s e d oversight of Colón's work; recommendations that management fire Colón; in tim id a tin g stares; threatening phone calls to Colón's home; an attempt by Alvarado to hit C o ló n with her car; and an incident in which Alvarado followed Colón's car home after seeing C o ló n at a bar with David.2 (See Docket Nos. 41-1 at 35­37, 57, 58, 59.)

In the original Spanish this quote is "te vas a joder," a considerably stronger phrase than the sanitized translation provided by Plaintiffs. In addition, Plaintiffs claim that Alvarado told coworkers that Colón was a "whore." (See Docket No. 58-1 at 14.) Plaintiffs fail to establish Colon's basis of personal knowledge for these remarks and, therefore,
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C o ló n filed a discrimination complaint with Puerto Rico's Antidiscrimination Unit (" A D U " ) on September 11, 2007. (Docket No. 33-18.) She withdrew the complaint a week la te r, stating that she had "no problems working on the same shift as [Alvarado]." (Docket N o . 33-19.) On October 11, Colón submitted a letter to Longhorn's human resources manager, e x p la in in g Colon's inability to officially withdraw the complaint until a Longhorn lawyer a p p e a re d with her before the ADU. (Docket No. 33-20.) Plaintiffs now claim that Colón was p re s s u re d by David to withdraw her complaint, for fear of its effect on his and Alvarado's c a re e rs . At the end of October, Longhorn completed its internal investigation, begun when C o ló n filed her complaint before the ADU. As a result, David and Alvarado were transferred to different restaurant locations, while Colón remained at the Plaza Escorial location. Plaintiffs a lle g e that when Colón was presented with the results of the investigation, a Longhorn official, P e d ro Morales, told her she was a "deplorable" person whose complaint had damaged the c a re e rs of David and Alvarado. (Docket No. 58-1 at 88­89.) P la in tif f s also claim that, in the wake of her discrimination complaint, Colón's re a s o n a b le accommodation was removed, in that she was made to perform the Expo sideworks; h e r hours were cut; she was assigned schedules outside of her availability; and she was assigned th e least desirable tables. (See Docket No. 41-1 at 38­40.) On November 15, 2007, Colón did n o t show up for her scheduled shift. On the following day, she received a disciplinary warning

we may not take them into consideration. See Fed. R. Civ. P. 56(e)(1) ("A supporting or opposing affidavit must be made on personal knowledge . . . .").

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f ro m Falcón. That night, she was admitted to the hospital. Puerto Rico's State Insurance Fund p la c e d Colón on medical leave from November 27, 2007 through May 13, 2008. W h e n Colón returned to work at Longhorn in May 2008, she was reinstated as a h o s te s s -- a position with reduced hourly pay and responsibilities. Longhorn maintains that this w a s a result of a new medical evaluation limiting her to lifting no more than ten pounds. P la in tif f s and Longhorn disagree over whether this ten-pound limitation prevented Colón from p e rf o rm in g the essential duties of a server. Plaintiffs further state that, as a hostess, Colón was s e g re g a te d from other employees and stripped of various duties that had been assigned to other h o s te s s e s . (Docket No. 41-1 at 41­42.) Longhorn asserts that any difference seen in Colón's h o s tin g duties was a result of her doctor's proscribing any activity in which she lifted over ten p o u n d s . (Docket No. 49 at 18­21.) C o ló n resigned from her position with Longhorn on September 3, 2008. Plaintiffs filed th is action the following day, claiming violations of Title VII; the Americans with Disabilities A c t ("ADA"), 42 U.S.C. §§ 12101­12213; and Puerto Rico's antidiscrimination laws. (Docket N o . 2.) Plaintiffs amended their complaint (Docket No. 10) and later moved to voluntarily d ism is s their ADA claims (Docket No. 22). II. S u m m a r y Judgment Under Rule 56(c) W e grant a motion for summary judgment "if the pleadings, the discovery and disclosure m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material fact a n d the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual

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d isp u te is "genuine" if it could be resolved in favor of either party and "material" if it potentially a f f e c ts the outcome of the case. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2 0 0 4 ). T h e movant carries the burden of establishing that there is no genuine issue as to any m a te ria l fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In evaluating a motion for s u m m a ry judgment, we must view the record in the light most favorable to the nonmovant, and w e must consider the entire record of admissible evidence. See Reeves v. Sanderson Plumbing P ro d s ., 530 U.S. 133, 150­51 (2000). "Once the moving party has made a preliminary showing th a t no genuine issue of material fact exists, the nonmovant must produce specific facts, in s u ita b le evidentiary form, to establish the presence of a trialworthy issue." Clifford v. Barnhart, 4 4 9 F.3d 276, 280 (1st Cir. 2006) (internal quotation marks omitted). The nonmovant "may not re ly merely on allegations or denials in its own pleading; rather, its response must . . . set out s p e c if ic facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). III. A n a ly s is

P la in tif f s allege that Colón was a victim of both hostile work environment sexual d isc rim in a tio n and retaliation, in violation of Title VII. For the reasons stated below, we find th a t genuine issues of material fact exist as to both claims.

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T itle VII makes it unlawful for employers to "fail or refuse to hire or to discharge any in d iv id u a l, or otherwise to discriminate against any individual with respect to his compensation, te rm s , conditions, or privileges of employment, because of such individual's . . . sex." 42 U .S .C . § 2000e-2(a)(1). This prohibition covers discrete acts of employment discrimination, s u c h as termination or refusal to hire, but its reach is not limited to "`economic' or `tangible' d isc rim in a tio n ." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). Even in the a b s e n c e of an adverse employment decision, § 2000e-2(a)(1) prohibits employers from requiring e m p lo ye e s "to work in a discriminatorily hostile or abusive environment." Id.; see also TorresN e g ró n v. Merck & Co., 488 F.3d 34, 39­40 (1st Cir. 2007). A claim of hostile work environment under Title VII exists where a "workplace is p e rm e a te d with discriminatory intimidation, ridicule and insult that is sufficiently severe or p e rv a siv e to alter the conditions of the victim's employment and create an abusive working e n v iro n m e n t." Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). To prevail in a claim of hostile w o rk environment sexual harassment, a plaintiff must demonstrate: (1 ) that she (or he) is a member of a protected class; (2) that she w a s subjected to unwelcome sexual harassment; (3) that the h a ra s sm e n t was based upon sex; (4) that the harassment was s u f f ic ie n tly severe or pervasive so as to alter the conditions of p la in tif f 's employment and create an abusive work environment; ( 5 ) that sexually objectionable conduct was both objectively and s u b je c tiv e ly offensive, such that a reasonable person would find it h o s tile or abusive and the victim in fact did perceive it to be so; a n d (6) that some basis for employer liability has been established.

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F o rre st v. Brinker Int'l Payroll Co., 511 F.3d 225, 228 (1st Cir. 2010) (quoting Crowley v. L.L. B e a n , Inc., 303 F.3d 387, 395 (1st Cir. 2002)). L o n g h o rn seeks summary judgment on the "basis for employer liability" and "sufficiently severe or pervasive" elements of Plaintiffs' hostile work environment sexual-harassment claim. (D o c k e t No. 30 at 19­20.) a. E m p lo y e r Liability

P la in tif f s advance two bases of employer liability for Alvarado's harassment of Colón: th a t Alvarado acted as Colón's supervisor or, in the alternative, that Alvarado acted as Colón's c o w o rk e r. (Docket No. 10.) Longhorn responds with a two-prong argument against liability. F irs t, it argues that Alvarado was not a supervisor but a coworker. Second, Longhorn maintains th a t it took prompt and appropriate steps to remedy the alleged harassment and, therefore, c a n n o t be held liable under a theory of coworker liability. (Docket Nos. 30 at 19; 48 at 5.) A n employer may be liable for sexual harassment regardless of whether the harasser is a supervisor or coworker, but a plaintiff's burden of proof differs depending on which the h a r a s s e r is. See Crowley, 303 F.3d at 401. Thus, we begin our analysis by asking whether A l v a r a d o was Colón's supervisor or coworker. To determine whether an employee is a s u p e rv is o r within the meaning of Title VII, we look to that employee's ability to "hire, fire, d e m o te , promote, transfer or discipline an employee." Noviello v. City of Bos., 398 F.3d 76, 9 6 (1st Cir. 2005) (quoting Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th C ir. 1998)). "Without some modicum of this authority, a harasser cannot qualify as a supervisor

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f o r purposes of imputing vicarious liability to the employer in a Title VII case, but, rather, s h o u ld be regarded as an ordinary coworker." Id. I n this case, Longhorn has presented the deposition testimony of various witnesses s u p p o rtin g the proposition that Alvarado never had such supervisory authority over Colón. (D o c k e t No. 31 at 3­4.) Plaintiffs, however, have not countered this argument with evidence d e m o n s tra tin g Alvarado had supervisory authority over Colón. Rather, Plaintiffs argue that A lv a ra d o 's "Key Employee" position carried with it the "authority to admonish [employees] and to recommend to the manager the issuance of warnings to them." (Docket No. 41-1 at 2.) There is no evidence on the record that an "admonishment" from a Key Employee carried any adverse c o n s e q u e n c e s . Therefore, we find that Alvarado was not a supervisor under the Title VII re g im e . T o establish employer liability for a hostile work environment created by coworkers, a p la in tif f must prove that the employer both "knew or should have known of the charged sexual h a ra ss m e n t and failed to implement prompt and appropriate action." Forrest, 511 F.3d at 230 (q u o tin g Crowley, 303 F.3d at 401). W e find that a genuine issue of material fact exists as to whether Longhorn acted p ro m p tl y and appropriately to correct the hostile work environment created by Alvarado. L o n g h o rn has asserted that it took reasonable steps to investigate Colón's harassment claim and to prevent any further harassment. (Docket Nos. 30 at 22; 31 at 16­17; 48.) The First Circuit h a s not articulated a standard by which to determine whether an employer's action was prompt a n d appropriate. See, e.g., Wilson v. Moulison N. Corp., 691 F. Supp. 2d 232, 237 (D. Me.

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2 0 1 0 ) (noting the absence of a standard). Because such determinations are case specific and f a c t intensive, the First Circuit has stated that they are best left to juries. Forrest, 511 F.3d at 2 3 2 . In Forrest, however, the court affirmed summary judgment for the employer on the basis o f its "prompt and appropriate" response to harassment. Id. The court noted that the employer h a d implemented a policy against sexual harassment and trained managers to discipline h a ra ss e rs ; that, following the victim's complaints, successive disciplinary actions were taken a g a in st the harasser throughout the four to six-week period of harassment; and that the harasser w a s fired within a month of receiving his first warning. Id. at 231­32.3 The Tenth Circuit has ta k e n a similar approach. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1 9 9 8 ) ("[Appropriate responses] have often included prompt investigation of the allegations, p ro a c tiv e solicitation of complaints, scheduling changes and transfers, oral or written warnings . . ., reprimands, and warnings that future misconduct could result in progressive d isc ip lin e . . . ."). P la in tif f s show that Colón reported instances of harassment to supervisors on July 19 and 2 0 , 2007. (Docket No. 41-1 at 37.) Given that Longhorn's investigation, which culminated in th e transfer of Alvarado, was not completed until the end of October 2007 and that no other

In dicta, the court rejected the Sixth Circuit's approach, wherein an employer response is appropriate unless it "exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination." Forrest, 511 F.3d at 231 n.8 (quoting McCombs v. Meijer, 395 F.3d 346, 353 (6th Cir. 2005)). The Court noted that this standard was a heavier burden for plaintiffs than that usually seen in First Circuit opinions. Id. ("A reasonable jury could find that an employer response was not prompt and appropriate without being so indifferent as to indicate an attitude of permissiveness amounting to discrimination.")

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a c tio n had been taken to remedy the harassment, a reasonable jury could find that Longhorn's a c tio n was not prompt. b. S u ffic ie n tly Severe or Pervasive Harassment

L o n g h o rn has broadly alleged that the instances of harassment cited by Plaintiffs were n e ith e r severe nor pervasive and, thus, did not create a hostile work environment in violation o f Title VII. (See Docket No. 30 at 22.) T h e First Circuit has recognized that whether harassment is "sufficiently severe or p e rv a siv e " to alter the work environment is a question not easily resolved. See Pomales v. C e lu la re s Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 2006) ("There is no mathematically precise te s t to determine whether [a plaintiff] presented sufficient evidence . . . ." (quoting Kosereis v. R h o d e Island, 331 F.3d 207, 216 (1st Cir. 2003))). Courts must engage in a broad inquiry in c o rp o ra tin g all relevant factors, including "the frequency of the discriminatory conduct; its s e v e rity; whether it was physically threatening or humiliating, or a mere offensive utterance; and w h e th e r it unreasonably interfered with an employee's work performance." Id. Given the facts p e c if ic nature of this inquiry, it is a determination normally left to the trier of fact, and s u m m a ry judgment on this issue should be granted only to "polic[e] the baseline for hostile e n v iro n m e n t claims." See id. (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1 9 9 9 )). In Pomales, the First Circuit affirmed summary judgment on one such baseline claim w h e re there was a single incident of verbal harassment without proof that it negatively impacted th e victim's ability to perform her job. Id. at 83­84.

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In light of the evidence presented by Plaintiffs, which includes claims of battery, assault, a n d physical intimidation, a reasonable jury could find that the alleged harassment was severe. 2. Retaliation

P la in tif f s claim that, following Colón's sexual-harassment complaint, Longhorn took s te p s to retaliate against her by creating a work environment so hostile that she had no choice b u t to resign. (Docket No. 38 at 23­26.) T itle VII makes it unlawful for employers to retaliate against employees who seek Title V II's protections. See 42 U.S.C. § 2000e-3(a). A prima-facie case of retaliation under Title VII m u s t establish: (1) plaintiff's protected participation or opposition; (2) a materially adverse e m p lo ym e n t action that harmed the plaintiff inside or outside the workplace and that was h a rm f u l enough to "dissuade a reasonable worker from making or supporting a charge of d isc rim in a tio n ;" and (3) the adverse action taken was causally linked to the plaintiff's protected a c tiv ity. Mariani-Colón v. Dep't of Homeland Sec., 511 F.3d 216, 223 (1st Cir. 2007). The c a u s a l link can be demonstrated, without further evidence, by the temporal proximity of the a d v e rse employment action to the plaintiff's protected participation. See DeCaire v. Mukasey, 5 3 0 F.3d 1, 19 (1st Cir. 2008) (holding that occurrence of adverse employment action within o n e year of protected participation was, by itself, enough to satisfy causal prong of prima-facie c a s e ). O n c e a plaintiff establishes a prima-facie case of retaliation, the employer must articulate a legitimate, nonretaliatory reason for its actions. See Roman v. Potter, 604 F.3d 34, 39 (1st Cir. 2 0 1 0 ). Once the employer meets this burden of production, the plaintiff must show that the

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e m p l o ye r's proffered legitimate reason is merely a pretext for retaliatory animus. Id. At the s u m m a ry judgment stage, a plaintiff is not required to prove pretext by a preponderance of the e v id e n c e ; she need only raise a genuine issue of material fact as to whether retaliation was the tru e motivation for the adverse employment action suffered. See Collazo v. Bristol-Myers S q u ib b Mfg., No. 09-1665, 2010 WL 3037811, at *8 (1st Cir. Aug. 5, 2010) (citing DominguezC ru z v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)). L o n g h o rn does not dispute that Colón engaged in protected activity. It argues, however, th a t Colón did not suffer an adverse employment action and, in the alternative, that there was n o causal relation between her protected activity and the adverse actions alleged. (Docket N o . 30.) A n employer's creation or toleration of a hostile work environment qualifies as an a d v e rse employment action. See Noviello, 398 F.3d at 88­90. A constructive discharge is also a materially-adverse action and exists where "working conditions imposed by the employer had b e c o m e so onerous, abusive, or unpleasant that a reasonable person in the employee's position w o u ld have felt compelled to resign." Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2 0 0 0 ). In the present case, a reasonable jury could find that Colón suffered from an adverse e m p lo ym e n t action. Plaintiffs present evidence that, within three months following her

c o m p la in ts of discrimination, Colón's number of scheduled hours were reduced while other s e rv e rs ' hours remained the same; she was increasingly scheduled for shifts outside her a v a ila b le hours; she was assigned to lower traffic tables; and reasonable accommodations

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p re v io u s ly granted to her for a shoulder disability were withdrawn. (See Docket No. 41-1 at 3 8 ­ 4 0 ). Plaintiffs also show that after she returned to work in May 2008, she was assigned to a lower-paid hostess position, reduced work hours and duties, and was segregated from c o w o rk e rs . (Docket No. 41-1 at 41­42.) Longhorn's only challenge to these facts is to argue th a t Colón's reasonable accommodation was never revoked. Given the conflicting testimony o f Colón and the management on the issue, it is a question best left for the jury. A s to Longhorn's challenge of the causal connection, Longhorn asserts that legitimate b u s in e s s reasons justify the changes in Colón's working conditions. (See Docket No. 49 at 1 3 ­ 1 7 .) Longhorn states that Colón's schedule was changed as part of a seasonal dip in b u s in e s s lasting from August to November each year and that Colón's responsibilities differed o n ly because she could no longer perform the duties of a server. (Id.) In light of the evidence o f these detrimental changes to Colon's working conditions, and of how closely they followed h e r discrimination complaint, a reasonable jury could find that Longhorn's proffered legitimate re a s o n s were a pretext for discriminatory retaliation. See Mariani-Colón, 511 F.3d at 223. B. S u p p le m e n ta l Claims L o n g h o rn has not challenged the merits of Plaintiffs' supplemental claims, relying in ste a d on our discretion to dismiss supplemental claims where all federal claims conferring o rig in a l jurisdiction have been dismissed. As we do not dismiss all Plaintiffs' federal claims, w e have no basis to dismiss their supplemental claims.

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F o r the reasons stated above, we hereby GRANT IN PART and DENY IN PART L o n g h o rn 's motion for summary judgment (Docket No. 30). We DISMISS Plaintiffs' sexualh a ra ss m e n t claims based upon a theory of harassment by a supervisor. Plaintiffs' coworker h a ra ss m e n t, retaliation, and supplemental claims survive summary judgment and will be s c h e d u le d for trial. T h e Pretrial Conference scheduled for September 13, 2010, remains as set. The parties a re urged to consider all settlement possibilities and, to that end, a final settlement conference s h a ll be held on October 4, 2010, at 1:30 P.M. Trial shall be held on October 12, 2010, at 9 :0 0 A.M. A Final Proposed Pretrial Order shall be filed by October 8, 2010. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 10 th day of September, 2010. s/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge