Jabbar v. Travel Services, Inc. et al

Filing 61

OPINION AND ORDER denying re 57 MOTION to Alter Judgment filed by Kareemah Amira Jabbar Signed by Chief Mag. Judge Justo Arenas on 9/10/2010.(Arenas, Justo)

Jabbar v. Travel Services, Inc. et al

Doc. 61

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

K A R E E M A H AMIRA JABBAR, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 co u rt on July 28, 2010. See Fed. R. Civ. P. 59(e) (Docket No. 55.) 23 24 25 26 27 28 to plaintiff, by granting summary judgment in favor of the defendants the court in c u r r e d in manifest error inasmuch as: (1) inferences were not viewed in the lig h t most favorable to her; (2) the jury's roll was usurped in determining w h e th e r she had complied with her burden in establishing a prima facie case of According A u g u st 30, 2010. (Docket No. 60.) For the reasons set forth below, plaintiff's m o tio n is hereby DENIED. I. OVERVIEW Plaintiff moves for reconsideration of the opinion and order issued by the Th is matter is before the court on motion to alter or amend judgment filed b y plaintiff, Kareemah Amira-Jabbar, on August 9, 2010. (Docket No. 57.) OPINION AND ORDER P l a in t i f f v. TR A V E L SERVICES, INC. et al, D e f e n d a n ts C IV IL 08-2408 (JA)

Plaintiff's motion was opposed by the defendants, Travel Services, Inc., Joanne F e rg u so n , John Ross, Miguel Hernández-Roses and Gilbert Anthony Linares, on

Dockets.Justia.com

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h o stile work environment; (3) it was erroneously concluded that Title VII's antire ta lia tio n provisions did not extend to former employees; (4) the constructive d isch a rg e claim was not addressed when in fact she was constructively d isch a rg e d from her employment with Travel Services, Inc. ("TSI"). (Id.) Defendants on the other hand argue that plaintiff's motion must be denied b e ca u se no such errors were made. (Docket No. 60, at 2.) d e fe n d a n ts claim that plaintiff's dissertation In essence, the

is a rehash of her previous

a rg u m e n ts in opposition to the various motions for summary judgment filed in th is case. (Id.) II. STANDARD OF REVIEW Under Fed. R. Civ. P. 59(e) a party has twenty eight (28) days upon "entry o f judgment, to file a motion seeking to alter or amend said judgment. The rule itse lf does not specify on what grounds the relief sought may be granted, and co u rts have ample discretion in deciding whether to grant or deny such a m o tio n ." Colón v. Blades, ___ F. Supp. 2d ____, 2010 WL 3432602, * 1 (D.P.R. S e p te m b e r 1, 2010) (quoting Candelario del Moral v. UBS Financial Services Inc. o f Puerto Rico, ___ F. Supp. 2d ____, 2010 WL 1409433, * 2 (D.P.R. April 9,

25 26 27 28 2 0 1 0 ) (citing Venegas-Hernández v. Sonolux Records, 370 F.3d 183, 190 (1st C i r .2 0 0 4 ) ) . Nevertheless, courts only grant a Rule 59(e) motion when "the

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m o v a n t shows a manifest error of law or newly discovered evidence." RodríguezR iv a s v. Police Dept. of Puerto Rico, 699 F. Supp. 2d 397, 400 (D.P.R. 2010) (q u o tin g Santiago-Sepulveda v. Esso Std. Oil Co. (P.R.), Inc., 638 F. Supp. 2d 1 9 3 , 197 (D.P.R. 2009) (citing Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir. 2 0 0 8 )). "Rule 59(e) may not, however, be used to raise arguments that could a n d should have been presented before judgment was entered, nor to advance n e w legal theories." Cintrón v. Pavia Hato Rey Hosp., 598 F. Supp.2d 238, 241 (D .P .R . 2009) (citing Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 72 (1st C ir .2 0 0 3 ) ) . III. ANALYSIS 1 . Reasonable Inferences Plaintiff argues that the court did not make all reasonable inferences in her

19 20 21 22 23 th a t TSI knew or should have known of the harassment but that it failed to 24 25 26 27 28 im p le m e n t prompt and appropriate action. (Id.) Specifically, plaintiff claims that sh e demonstrated that when Mrs. Ferguson, TSI's Executive Vice-president, heard M r. Ross say that she belonged on the side of the road in Loiza cooking with her f a v o r because it agreed with the defendants that she had failed to establish e le m e n ts four, five and six of her prima facie case of hostile work environment. (Docket No. 57, at 2.) According to plaintiff, she provided evidence that showed

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p e o p le , she did not take any corrective action. (Id.) Also, plaintiff claims that she sh o w e d that Mr. Ross used to make racial jokes about other ethnic groups and th a t TSI knew about it but that it never did anything. (Id.) In addition to

p ro v in g these facts, plaintiff claims that she showed that it was an official practice a t TSI to load company outing pictures on Facebook so all employees could have th e m , instead of sending them through email. (Id.) The defendants do not contest that in assessing a motion for summary ju d g m e n t, all reasonable inferences have to be made in favor of the non-moving p a rty . (Docket No. 60, at 3.) However, the defendants do believe that plaintiff is inviting the court to make impermissible inferences by accepting self serving sta te m e n ts and conclusory allegations. (Id.) They argue that plaintiff cannot

e sta b lish a prima facie case of race discrimination based on the three incidents 19 20 21 22 23 d e fe n d a n ts argue that she does not have any personal knowledge that she herself 24 25 26 27 28 h e a rd the comments directly from him. (Id.) The defendants claim that even if it was assumed that the comments were in fact heard by plaintiff there is no e v id e n c e of how severe or frequent the comments were made or how they th a t occurred within a period of more than a year because they did not rise to the d e g r e e severity or pervasiveness required. (Id. at 3-4.) As to plaintiff's

a lle g a tio n regarding the other comments allegedly made by Mr. Ross, the

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in te rfe re d with anyone's terms and conditions of employment. (Id.) With respect to plaintiff's allegation that it was a company policy to upload company activity p ictu re s in Facebook, the defendants claim that there is no evidence that TSI or a n y o n e else for that matter, ordered or encouraged any of its employees to u p lo a d company activity pictures, much less comment on them. (Id. at 5.) "[W]hile it is true that, in the summary judgment context, a district court m u st draw all reasonable inferences in favor of the non-moving party, [it is] `not o b lig e d to accept as true or to deem as a disputed material fact, each and every u n su p p o rte d , subjective, conclusory, or imaginative statement made to the Court b y a party.'" Méndez-Aponte v. Puerto Rico, 656 F. Supp. 2d 277, 281 (D.P.R. 2 0 0 9 ) ( q u o tin g Torrech-Hernández v. General Elec. Co., 519 F.3d 41, 47 (1st C ir.2 0 0 8 )). If the non-moving party relies on such statements summary j u d g m e n t should be granted, even if it is an employment discrimination case "w h e re elusive concepts such as motive or intent are at issue . . . ." Meuser v. F e d e ra l Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting Medina-

M u ń o z v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)); see also F e licia n o de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 5

25 26 27 28 (1 st Cir. 2000).

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A lth o u g h plaintiff claims that Mrs. Ferguson was present when Mr. Ross a lle g e d ly made the derogatory comment during the Christmas party in December, 2 0 0 6 , she did not allege nor is there any evidence that shows that she co m p la in e d about the incident. Instead she assumes that because Mrs. Ferguson w a s allegedly there when the incident occurred that she had the obligation to take a n appropriate remedial action but that she failed to do so. Notwithstanding

p l a i n t i f f ' s disbelief, the court did make all reasonable inferences in her favor. After plaintiff complained about the candy cane incident on December 1, 2007 an in v e stig a tio n was conducted the following day. Amira-Jabaar v. Travel Services, In c., ___ F. Supp. 2d ____, 2010 WL 2989852, * 5 (D.P.R. July 28, 2010). As

p a rt of the investigation every incident that was brought to TSI's attention by p la in tif f was investigated, including the incident involving Mr. Ross. Id. The

in v e stig a tio n revealed that plaintiff did not know what the comment was that Mr. R o s s allegedly had made because according to her the comment was made in S p a n ish . Id. Plaintiff only said that she believed that Mr. Ross's comment was ra cia l in nature. Id. As a result, Mr. Ross was not reprimanded. Id. In the complaint and in her deposition, plaintiff relates the comment that M r. Ross allegedly made. (Docket No. 1, at 8-9, ¶¶ 41-42 & Docket No. 31-3, at 2 - 3 .) However, when TSI investigated all of the incidents that plaintiff had

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co m p la in e d off she did not know what exactly Mr. Ross had said.

Thus, there

b e in g no proper explanation as to plaintiff's contradictory version as to this fact th e court need not make unreasonable inferences in her favor. See Meuser v. F e d e ra l Express Corp., 564 F.3d at 515. Furthermore, the court cannot, as p la in tif f suggests, infer that Mr. Ross did in fact make the alleged discriminatory co m m e n ts to her in the presence of Mrs. Ferguson and that no remedial action w a s taken because according to her Mr. Ross used to make racial slurs which TSI k n e w about, but never did anything about. re a so n a b le inferences from such an assertion. The court cannot draw any See Caban-Hernández v. Philip

M o rris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (holding that a court does not have "to draw unreasonable inferences or credit bald assertions, empty

co n clu sio n s, rank conjecture, or vitriolic invective.")

Having said that, there is

a lso nothing that suggest that the court did not make reasonable inferences in f a v o r of plaintiff regarding the Facebook incident. Plaintiff claims that it was a g e n e ra l practice at TSI to upload pictures on Facebook after every company o u tin g . However, aside from plaintiff's deposition testimony there is no evidence th a t shows that the Facebook account belonged to TSI or that it condoned its use

25 26 27 28 d u rin g company time. Hence, it cannot be assumed that TSI knew or should

h a v e known about the alleged discriminatory comment that was posted by Mr.

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H e rn á n d e z. According to the record, when plaintiff finally complained about the in cid e n t to Mrs. Ferguson, TSI ordered its IT contractor to block access to the w e b site for all office computers. Amira-Jabaar v. Travel Services, Inc., ___ F. Based on the

S u p p . 2d ____, 2010 WL 2989852, * 5 (D.P.R. July 28, 2010).

f o re g o in g , there is no question that plaintiff's allegations were taken as true and th a t all reasonable inferences were made in her favor. 2. Credibility Determinations P la in tif f argues that it is the role of the jury and not that of the court to d e te rm in e whether or not her claims rose to the level of severity and p e rv a siv e n e ss required. (Docket No. 57, at 5.) The defendants nevertheless

b e lie v e that the court's decision had nothing to do with credibility, but rather was b a se d on the uncontested material facts that were supported by the evidence on

19 20 21 22 23 (D .P .R . 2008); CMI Capital Market Inv. LLC v. Municipality of Bayamón, 239 24 25 26 27 28 F .R .D . 293, 297 (D.P.R. 2006). Summary judgment may only be granted if there a re no genuine issues as to any material fact. Zabala-Calderon v. United States, 6 1 6 F. Supp. 195, 198 (D.P.R. 2008) (quoting Fed. R. Civ. P. 56(c)). Accordingly, th e record. (Docket No. 60, at 5.) It is well settled that "[c]redibility issues fall outside the scope of summary ju d g m e n t." Méndez Montes De Oca v. Aventis Pharma, 579 F. Supp. 2d 222, 224

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" [i]n characterizing the hostile or abusive workplace, courts have drawn a co n tin u u m between commonplace indignities and actionable harassment. Offhand remarks, simple teasing, tepid jokes, and isolated incidents are at one e n d of the continuum. This type of behavior, standing alone, usually does not a m o u n t to a hostile work environment. Severe or pervasive sexual remarks,

in n u e n d o e s, ridicule, and intimidation fall at the other end of the continuum and m a y support a jury verdict finding a hostile work environment." Medina v.

A d e cco , 561 F. Supp. 2d 162, 171-73 (D.P.R. 2008) (citations omitted). Plaintiff is correct in that the court concluded that the defendants actions w e re not severe or pervasive enough as to establish a hostile work environment. Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____, 2010 WL 2989852, * 4 (D.P.R. July 28, 2010). However, in doing so the court did not determine

19 20 21 22 23 p la in tif f 24 25 26 27 28 co m m e n ts. Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____, 2010 W L 2989852, * 4 (D.P.R. July 28, 2010). As the record showed, the first incident in v o lv in g Mr. Ross took place in December, 2006. Id. Nine months later in complained of were merely isolated incidents involving offhand w h e re along the continuum the defendants' conduct lied. See Figueroa García v. Lilly Del Caribe, Inc., 490 F. Supp.2d 193, 204-05 (D.P.R. 2007). After looking a t the totality of the circumstances the court found that the three incidents

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S e p te m b e r, 2007 the Facebook incident occurred. Id. Finally, the last incident in v o lv in g the candy cane took place in December, 2007. Id. Furthermore, the

co u rt also found that there was no evidence that plaintiff was physically th re a te n e d and that the defendants' conduct did interfere with her work p e rfo rm a n ce . Id. Despite of this, plaintiff stresses that as in Danco, Inc. v. WalM a rt Stores, Inc., 178 F.3d 8 (1st Cir. 1999) these incidents would have been e n o u g h to establish a hostile work environment. I disagree. Although, the court did not explained why Danco was not controlling in this ca se it did considered it before ruling on the motion for summary judgment. The f a cts in Danco are distinguishable from those in this case. In Danco, the

in cid e n ts alleged by plaintiff occurred within a period of one month, between O cto b e r and November, 1994. Id. at 10-11. Unlike Danco, in this case the

19 20 21 22 23 co u rt's finding had nothing to do with credibility. Contrary wise, it was a matter 24 25 26 27 28 o f sufficiency of the evidence of which there was not enough. 3. Retaliation Claim in cid e n ts alleged by plaintiff occurred over a span of a year. Also, although the in cid e n ts alleged in Danco were race related they involved physical violence, left lo n g lasting effects and interfered with plaintiff's work. Id. at 16-17. Thus, the

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P la in tif f argues that by determining that TSI was not her employer at the tim e the alleged retaliatory actions took place and at the time she engaged in the protected activity, the court erroneously concluded that Title VII's anti-retaliation p ro v isio n did not extend to former employees. (Docket No. 57, at 7.) Plaintiff cla im s that even though she was not associated to TSI since December of 2007, it was not until September, 2008 when the Equal Employment Opportunity C o m m issio n ("EEOC") issued the Right to Sue letter that TSI first had the o p p o rtu n ity to retaliate against her. (Id.) She claims that due to the temporal

p ro x im ity between the time the Right to Sue letter was issued and the time she w a s discharged, a reasonable jury could infer that TSI's reliance on the nonc o m p e t e clause was a mere pretext in order to affect her relationship with her n e w employer, Dragonfly. (Id.) The defendants contend that no error was made in the assessment of plaintiff's claim. (Docket No. 60, at 7.) The court acknowledges that it erred in finding that plaintiff's retaliation f a ile d because at the time the alleged discriminatory acts took place she was not TS I's employee. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (finding th a t the term "employees" as used in the anti-retaliation provisions of Title VII

25 26 27 28 in clu d e s former employees). However, it held that even if TSI was considered p la in tif f 's employer at the time of the supposed retaliatory incidents she

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c o m p la in e d off, plaintiff's claim would have still failed.

Amira-Jabaar v. Travel

S e rv ice s, Inc., ___ F. Supp. 2d ____, 2010 WL 2989852, * 8 (D.P.R. July 28, 2 0 1 0 ). The court reasoned that even though a causal connection could be

e sta b lish e d due to the temporal proximity between the alleged retaliatory actions a n d the issuance of the Right to Sue letter, the defendants' proffered reason for th e adverse action was both legitimate and non-discriminatory. Id. As the record sh o w e d , TSI only communicated with Dragonfly, a direct competitor of TSI, after f in d in g out it that plaintiff was working for them in order to let them know about th e existence of the non-competition agreement. Id. Despite this, plaintiff failed to present any evidence that demonstrated that the defendants' proffered reason w a s pre-textual. Cachola-Bonilla v. Wyndham El Conquistador Resort & Country C lu b , 577 F. Supp. 2d 566, 584 (D.P.R. 2008) (noting that the plaintiff is the one w h o has the ultimate burden of showing that the proffered reason is pre-textual a n d the adverse employment decision was the result of the defendant's retaliatory a n im u s ) . Plaintiff simply believes that because there is a temporal proximity

b e tw e e n the protected activity and the alleged retaliatory actions, the defendants' r e lia n ce on the non-compete clause is merely pre-textual. Once again plaintiff

25 26 27 28 re lie s on "subjective speculation and suspicion" to prove that TSI's actions were in fact pre-textual. Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____,

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2 0 1 0 WL 2989852, * 8 (D.P.R. July 28, 2010) (quoting Mariani-Colón v. Dep't of H o m e la n d Sec. ex rel. Chertoff, 511 F.3d 216, 222 (1st Cir. 2007)). Thus, the co u rt correctly dismissed plaintiff's retaliation claim. 4. Constructive Discharge Claim Plaintiff asserts that like the hostile work environment claim the

co n stru ctiv e discharge claim should have not been dismissed. (Docket No. 57, a t 7 & 8.) The defendants in turn argue that plaintiff's claim fails because there

is nothing that suggests that the working conditions were so onerous, abusive, d if ficu l t or unpleasant that a reasonable person would have felt compelled to re sig n . (Docket No. 60, at 7.) "The Supreme Court has indicated that the hostile work environment claim i s a `lesser included component' of `the graver claim of hostile-environment co n stru ctiv e discharge.'" Acosta v. Harbor Holdings & Operations, Inc., 674 F.

S u p p . 2d 351, 362 (D.P.R. 2009) (quoting Pennsylvania State Police v. Suders, 5 4 2 U.S. 129, 149 (2004)). This means that the"[c]reation of a hostile work

e n v iro n m e n t is a necessary predicate to a hostile-environment constructive d isch a r g e case ... [T]he only variation between the two claims is the severity of

25 26 27 28 th e hostile working conditions." Id. Nevertheless, "the fact that [a] plaintiff

e n d u r e d a hostile work environment-without more-will not always support a

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f in d in g of constructive discharge." Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7 , 28 (1st Cir. 2002). This is so because the standard for a constructive

d isch a rg e claim "is more onerous than the hostile work environment standard." Bodman v. Maine, ___ F. Supp. 2d ____, 2010 WL 2653388, * 6 (D. Me. June 2 2 , 2010). The court in this case did not err in dismissing plaintiff's constructive d isch a rg e claim. Plaintiff's claim was disposed of because she failed to make out a hostile work environment claim. Amira-Jabaar v. Travel Services, Inc., ___ F. S u p p . 2d ____, 2010 WL 2989852, * 6 (D.P.R. July 28, 2010) (citing Dykstra v. F irst Student , Inc., 324 F. Supp. 2d 54, 68 (D. Me. 2004)). In the brightest of sce n a rio s assuming that plaintiff did establish a prima facie case for hostile work e n v iro n m e n t, the court would have still dismissed her claim for constructive

19 20 21 22 23 M a ss. 2004) (Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 24 25 26 27 28 4 8 (1st Cir.1998)). However, plaintiff in this case failed to provide said evidence. Thus, plaintiff's constructive discharge claim was properly dismissed. IV. CONCLUSION d i s c h a rg e . In order to prove her claim, plaintiff needed to "offer evidence of

m o re severe harassment than that required for a hostile work environment c la im ." Luciano v. Coca-Cola Enterprises, Inc., 307 F. Supp. 2d 308, 320 (D.

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F o r the reasons set forth above, plaintiff's motion to alter or amend ju d g m e n t (Docket No. 57) is hereby DENIED. At San Juan, Puerto Rico, this 10 th day of September, 2010.

S/JUSTO ARENAS Chief United States Magistrate Judge