Luciano v. Municipio de San Juan et al

Filing 87

OPINION AND ORDER granting in part and denying in part 50 motion for summary judgment; denying 76 Motion to Strike. Pursuant to the court's order at Docket No. 84 this case is hereby referred to Magistrate Judge Bruce J. Mcgiverin for the holding of a final settlement conference. Signed by Judge Gustavo A. Gelpi on 9/26/11. (SAA)

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

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MIGUELINA C. LUCIANO-CRUZ

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Plaintiff,

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v.

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MUNICIPIO DE SAN JUAN, et al.

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CIVIL NO. 09-1720 (GAG)

Defendants.

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MEMORANDUM OPINION & ORDER

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Miguelina C. Luciano-Cruz (“Plaintiff”) commenced this action against the Municipality of

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San Juan (the “Municipality”), Jorge Santini, in his official capacity as Mayor of San Juan, and

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Hector Yambo (“Yambo”), in his personal and official capacity, alleging acts of sexual harassment

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and seeking money damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

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2000e et seq. Plaintiff also invokes the pendent jurisdiction of the court to adjudicate claims under

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Puerto Rico state laws: Law No. 100 of June 30, 1959 (“Law 100"), P.R. Laws Ann. tit. 29, §§ 146

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et. seq.; Law No. 69 of July 6, 1985 (“Law 69"), P.R. Laws Ann. tit. 29, §§ 1321 et seq.; Law No.

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17 of April 22, 1988 (“Law 17"), P.R. Laws Ann. tit. 29, §§ 155 et seq.; and Articles 1802 and 1803

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of the Civil Code of Puerto Rico (“Articles 1802 & 1803”), P.R. Laws Ann. tit. 31, §§5141-42.

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Presently before the court is the Municipality’s motion for summary judgment (Docket No.

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50). Plaintiff filed an opposition to this motion (Docket No. 62) which was controverted by the

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Municipality’s reply brief (Docket No. 72). Plaintiff filed a corresponding sur-reply and motion to

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strike (Docket No. 76). After considering these excellently redacted pleadings and the pertinent law,

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the court DENIES Plaintiff’s motion to strike (Docket No. 76) and GRANTS in part and DENIES

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in part the Municipality’s motion for summary judgment (Docket No. 50).

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I.

Factual Background

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At the time of the filing of this complaint, Plaintiff had been an employee of the Municipality

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for fourteen years. During the alleged incidents of sexual harassment, Plaintiff was working as an

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associate nurse at San Jose Elderly Care Center (the “Center”) in San Juan, Puerto Rico. Around

Civil No. 09-1720 (GAG)
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February 2007, Yambo was assigned to be the director and supervisor of the Center. On or around

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mid May, early June of 2007, Yambo began an alleged pattern of sexual comments and jokes

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towards Plaintiff and other female employees under his supervision. There were also various

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documented incidents of physical sexual harassment in the office.

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On June 15, 2007, Plaintiff spoke to Gloria Ortiz1 regarding Yambo’s inappropriate conduct.

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Gloria Ortiz informed Plaintiff that someone would speak to Yambo about his actions. Maria Teresa

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Diaz2 spoke to Yambo about the incidents and informed him that he needed to stop this behavior.

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Following this reprimand, the harassment against Plaintiff lessened, however the alleged acts of

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sexual harassment against other female employees continued.

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On January 31, 2008, Plaintiff reported new incidents of harassment to Carmen Perez

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Texidor3. These incidents occurred on January 25 and 28, 2008. These incidents were reported to

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Maria Luisa Rivera Echevarria4. A formal report was written and on February 8, 2008 the

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Municipality ordered an investigation based on the written complaint filed by Plaintiff. On February

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11, 2008, Yambo was transferred to another facility. Plaintiff filed a complaint for sexual

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harassment with the Equal Employment Opportunity Commission (“EEOC”) on August 8, 2008.

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II.

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Plaintiff’s Title VII Claim
With respect to Plaintiff’s Title VII claims, the Municipality moves for summary judgment

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Supervisor of the social workers for the Elderly Services Program of the Municipality of

San Juan.
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Director of the Elderly Services Program of the Municipality of San Juan.

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Assistant to Maria Teresa Diaz.

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Deputy Director for the Department of the Family and the Community for the Municipality
of San Juan.

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on two grounds: (1) it alleges that Plaintiff’s allegations of sexual harrasment that occurred in May

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and June of 2007 are time barred and thus the Municipality cannot be liable for any damage resulting

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from these incidents; and (2) there is no vicarious liability flowing from the remaining incidents as

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the Municipality acted in a timely manner to prevent further harassment from occurring.

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Under Title VII, a person seeking remedy from employment discrimination is required to file

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a charge with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the

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alleged incident. See Sampayo-Garraton v. Rave. Inc., 726 F. Supp. 18, 20 (D.P.R. 1989). It is

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uncontested that Plaintiff filed her charge with the EEOC on August 8, 2008. Therefore, Plaintiff’s

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allegations of harassment occurring in May and June of 2007 would be time-barred unless the claims

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were equitably tolled. The continuing violation theory “allows an employee to seek damages for

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otherwise time-barred allegations if they are deemed part of an ongoing series of discriminatory acts

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and there is some violation within the statute of limitations period that anchors the earlier claims.”

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O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (internal quotations omitted).

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Thus, Plaintiff’s filing of her administrative charge would be timely if she is able to establish a

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continuing violation.

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To support its first argument, the Municipality contends that there is no evidence of acts of

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sexual harassment between the dates of June 2007 and January 2008, and thus no grounds to allege

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a continuing violation. However, after considering the evidence, the court disagrees with the

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Municipality’s conclusion. In general, a plaintiff may recover on a theory of hostile work

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environment when “the workplace is permeated with discriminatory intimidation, ridicule, and insult

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that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create

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an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Thus, the

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comments and acts constituting the hostile working environment need not be directed at Plaintiff to

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establish such an environment. See Vinson v. Taylor, 753 F.2d 141, 146 (D. C. Cir. 1985) (stating

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that “evidence tending to show [defendant's] harassment of other women working alongside

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[plaintiff] is directly relevant to the question whether he created an environment violative of Title

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Civil No. 09-1720 (GAG)
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VII.”); see also Hall v. Gus Constr. Co., Inc., 842 F.2d 1010, 1014-15 (8th Cir. 1988) (holding that

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“evidence of sexual harassment directed at employees other than the plaintiff is relevant to show a

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hostile work environment.”). The Municipality’s investigation resulted in findings that Yambo made

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inappropriate sexual remarks to both Plaintiff as well as other employees in June, July, September,

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and October of 2007. (See Docket No. 66-25 at 2.) Furthermore, deposition testimony of other

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witnesses describes an environment permeated by comments of a sexual nature throughout the

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relevant period. (See Docket Nos. 60-14 at 4; 69-3 at 12-14.) In light of these showings, Plaintiff

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has presented sufficient evidence for a jury to conclude that the alleged hostile work environment

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persisted during this period, and thus, could establish a continuing violation.

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The Municipality also contends that it cannot be vicariously liable for Yambo’s actions as

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it acted in a timely manner to prevent further harassment from occurring. In Burlington Industries,

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Inc., v. Ellerth, 524 U.S. 742, 745 (1998), the Supreme Court held that an employer is subject to

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vicarious liability for its employee’s actions unless it can prove that: (1) it exercised reasonable care

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to prevent and correct promptly any harassing behavior; and (2) the employee unreasonably failed

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to take advantage of any preventive or corrective opportunities provided or to avoid harm otherwise.

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In light of Plaintiff’s evidence, the court finds that a genuine issue of material fact precludes

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summary judgment as to this issue as well. According to the evidence presented, Plaintiff complied

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with the stated policy by reporting the incidents of sexual harassment in June 2007 to Gloria Ortiz,

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and in January of 2008 to Carmen Perez Texidor. There is also evidence that Maria Teresa Diaz and

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Maria Luisa Echevarria were aware of other incidents of sexual harassment committed by Yambo

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prior to February 8, 2008, but failed to take the required actions to prevent further harassment from

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occurring. (See Docket Nos. 69-5 at 25-27; 69-2 at 13, L. 2-19.) The corrective actions, which

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included transferring Yambo and ultimately terminating his employment, were not implemented

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until February 8, 2008. As conflicting evidence has been presented regarding Plaintiff’s efforts to

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report the incidents and the reasonableness of the Municipality’s actions, the court is unable to rule

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as a matter of law that the Ellerth defense applies in this case. Accordingly, the court DENIES the

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Civil No. 09-1720 (GAG)
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Municipality’s motion for summary judgment on Plaintiff’s Title VII claim.

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III.

Plaintiff’s Local Law Claims

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The Municipality also moved for summary judgment on Plaintiff’s local law discrimination

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claims. With regard to Plaintiffs claim under Law 17, the same genuine issues of material fact as

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previously discussed precludes the court from granting summary judgment as to this claim. The

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court also finds Plaintiff’s Law 69 claim to be applicable to the claims alleged in this case. Law 69

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prohibits discrimination with respect to an employee’s terms or working conditions. P.R. Laws

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Ann. tit. 29, § 146. The alleged existence of a hostile work environment is considered such a form

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of discrimination. See Harris, 510 U.S. at 21 (A hostile work environment claim exists where a

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“workplace is permeated with ‘discriminatory intimidation, ridicule, and insult that is sufficiently

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severe or pervasive to alter the conditions of the victim's employment. . . .”) (internal quotations

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omitted). Accordingly the court DENIES the Municipality’s motion for summary judgment with

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respect to these local law claims.

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As to Plaintiff’s claims for punitive damages against the Municipality and its liability under

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Law 100, the same are DISMISSED as said claims are not applicable to municipalities. See 42

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U.S.C. § 1981a (b)(1); Perez Gonzalez v. Municiaplity of Anasco, 769 F. Supp. 2d 52, 65 (D.P.R.

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2010).

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SO ORDERED.

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In San Juan, Puerto Rico this 26th day of September, 2011.

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s/ Gustavo A. Gelpí

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GUSTAVO A. GELPI

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United States District Judge

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