Rivera-Garca et al v. Sprint PCS Caribe et al
Filing
140
OPINION AND ORDER granting in part and denying in part 83 Motion for Summary Judgment; granting in part and denying in part 103 First Motion in Limine; granting in part and denying in part 117 Motion to Strike Plaintiff's Sham Unsworn Statement; and denying 121 Motion to Strike Log of Events. Signed by Judge Juan M Perez-Gimenez on 1/5/2012. (JG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA RIVERA GARCÍA,
Plaintiff
v.
CIV. NO. 09-1813 (PG)
SPRINT PCS CARIBE, PATRICIA EAVES,
JUAN O. RODRÍGUEZ, and EVELYN
DÁVILA,
Defendants.
OPINION AND ORDER
Plaintiff Wanda Rivera-García (“Rivera” or “Plaintiff”) has brought
this action under Title VII of the Civil Rights Act against her employer,
Sprint PCS Caribe (“Sprint”) as well as several of her supervisors,
namely Patricia Eaves, Juan Rodríguez, and Evelyn Dávila (hereinafter
collectively referred to as “Defendants”).1
In her
complaint, Rivera
states that Defendants discriminated against her because of her gender,
sexually harassed her, subjected her to a hostile work environment, and
unlawfully terminated her employment in retaliation for her opposition to
said conduct. Docket No. 1. Defendants now move for summary judgment,
arguing that the allegations set forth by Rivera, as well as the evidence
on the record, do not sustain any of her claims. Docket No. 83. Rivera
has opposed Defendants’ request, Defendants have filed their reply and
Rivera has responded with a sur-reply. Dockets No. 100, 130 and 138,
respectively. For the reasons set forth below, the Court GRANTS IN PART
AND DENIES IN PART Defendants’ request for summary judgment.
I.
Background
A. Procedural Background
On August 17, 2009 Rivera filed the instant action pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
1
Rivera also brings claims under Puerto Rico Laws Nos. 17 of April 22,
1988 (sexual harassment); No. 100 of June 30, 1959 (discrimination); No. 69 of
June 6, 1985 (gender discrimination); No. 115 of December 20, 1991
(retaliation); No. 80 (wrongful termination) and article 1802 of the Puerto Rico
Civil Code. The Court previously dismissed Rivera’s art. 1802 claim with
prejudice. Docket No. 36.
Civil No. 09-1813 (PG)
Page 2
(Title VII); the Civil Rights Act of 1991, 42 U.S.C. §§ 1981a and 1988;
Puerto Rico Law No. 17 of April 22, 1988, P.R. LAWS ANN. tit. 29, § 155,
et seq. (“Law 17”); Puerto Rico Law No. 100 of June 30, 1959, P.R. LAWS
ANN. tit. 29, § 146, et seq. (“Law 100”); Puerto Rico Law No. 69 of July
6, 1985, P.R. LAWS ANN. tit. 29, § 1321, et seq. (“Law 69”); Puerto Rico
Law No. 115 of December 20, 1991, P.R. LAWS ANN. tit. 29, § 194, et seq.
(“Law 115"); Puerto Rico Law No. 80 of May 30, 1976, P.R. LAWS ANN. tit.
29, § 185a, et seq. (“Law 80”); and Article 1802 of the Puerto Rico Civil
Code. See Compl., Docket No. 1. In her complaint, Rivera states that
Defendants discriminated against her because of her gender, sexually
harassed her, subjected her to a hostile work environment, and unlawfully
terminated
her
employment
in
retaliation
for
her
opposition
to
the
alleged misconduct.
Defendants answered the complaint on October 16, 2009 and basically
denied most of Rivera’s averments. Docket No. 6. They subsequently filed
several motions to dismiss and motions for judgment on the pleadings
seeking dismissal of several of Rivera’s claims. See Dockets No. 11, 19
and 24. Rivera also entered a motion requesting the voluntary dismissal
of the claims against certain co-defendants, as well as a motion for
partial voluntary dismissal without prejudice. See Dockets No. 12 and 22,
respectively. On August 9, 2010 the Court issued an amended opinion and
order whereby it: (1) dismissed with prejudice Rivera’s claims against
co-defendant
Efrén
Pagán
and
Conjugal
Partnership
Pagán-Eaves;
(2)
dismissed with prejudice Rivera’s Title VII and Law 80 claims against codefendants Eaves, Dávila and Rodríguez; (3) dismissed with prejudice
Rivera’s article 1802 claim; and (4) dismissed without prejudice Rivera’s
claims against co-defendants Conjugal Partnerships Rodríguez-Castillo and
Vélez-Dávila. Docket No. 36. Consequently, Rivera’s claims under Title
VII and Puerto Rico Laws No. 17, 69, 80, 100 and 115 against Sprint and
her claims under Puerto Rico Laws No. 17, 69, 100 and 115 against Eaves,
Rodríguez and Dávila remained before the Court.
On April 15, 2011 Sprint filed the motion for summary judgment
currently before the Court. Docket No. 83. Rivera followed by filing her
opposition, to which Defendants replied, and Rivera then sur-replied.
Dockets No. 100, 130 and 138, respectively. The parties have also filed a
number of ancillary motions to the motion for summary judgment. The first
Civil No. 09-1813 (PG)
Page 3
motion is a motion in limine filed by Rivera, which seeks to strike
several of Defendants’ statements of uncontested material facts as they
are
allegedly
supported
by
unauthenticated
attachments
that
contain
inadmissible hearsay statements. Docket No. 103. Defendants opposed her
request, arguing that the attachments in question are admissible as an
exception
to
the
hearsay
exclusionary
rule
via
the
“records
of
a
regularly conducted activity” exception. Docket. No. 118.
The second motion is one filed by Defendants entitled “Motion to
Strike Plaintiff’s Sham Unsworn Statement Under Penalty of Perjury,”
which seeks to strike a statement filed by Rivera under the argument that
it contradicts Rivera’s earlier deposition testimony and is merely a
“sham” to defeat Defendants’ motion for summary judgment. Docket No. 117.
Rivera signed the
statement after
Defendants filed
their motion for
summary judgment, and has employed it to oppose Defendants’ statement of
uncontested material facts. Rivera now opposes Defendants’ motion to
strike and Defendants have replied. Dockets No. 121 and 128.
The last motion is a motion to strike a Log of Events, whereby
Rivera requests this Court to strike a compilation of notes prepared by
her during her tenure with Sprint, under the argument that Defendants’
did not timely include them in the record. See Docket No. 121.
The Court will proceed to briefly discuss and dispose of these
motions below.
i.
Rivera’s Motion in Limine (Docket No. 103)
Rivera claims that several of Defendants’ statements of uncontested
material facts are unsupported by admissible evidence. According to her,
several
of
the
documents
employed
by
Defendants
to
sustain
said
statements are inadmissible under the Federal Rules of Evidence as they
are either hearsay, unauthenticated, unsigned, not backed by an affidavit
of
the
alleged
Specifically,
declarant,
Rivera
or
requests
in
some
the
Court
cases,
to
all
exclude
of
the
the
above.
following
statements from Defendants’ statement of uncontested material facts: 40,
41, 46, 49, 51, 67, 69, 89, 90, 91 and 106. These are supported by
documents classified as: attachments 13 to 20, 24 and 25, 27 to 37, 44
and 53 to 59 to Exhibit A of Defendants’ statement. Docket No. 82.
Defendants note that all of these documents are either summaries of
Civil No. 09-1813 (PG)
interviews
complaints
obtained
Page 4
conducted
against
by
with
Rivera
Sprint
of
the
employees
sent
by
under
Sprint
employees
Rivera’s
customers,
under
supervision,
or
Rodríguez’s
declarations
(the
alleged
harasser’s) supervision regarding the investigation that ensued after
Rivera’s sexual harassment complaint.
Upon browsing the relevant documents, it appears to the Court that
many of them are indeed hearsay. Hearsay is defined as any statement
that: “(1) the declarant does not make while testifying at the current
trial or hearing; and (2) a party offers in evidence to prove the truth
of the matter asserted in the statement.” Fed. R. Evid. 801(c). The wellknown exclusionary rule deems hearsay to be inadmissible unless one of
the prescribed exceptions applies. Fed. R. Evid. 802. At first glance, it
would appear that many of the challenged documents constitute hearsay
within hearsay because they contain multiple statements. Taking as an
example the notes prepared by Dávila (Sprint’s Human Resources Manager)
during her interviews with Sprint employees, those notes contain: (1)
statements by the interviewed employee given in response to Dávila’s
questions; and (2) Dávila’s own statement as engendered in the notes
themselves, which purport to assert that their content is a truthful
reflection of what was indeed said during those interviews. The Court
concludes, however, that only the second statement is hearsay, while the
first one is not, as it is not being brought to prove the truth of its
contents.
In cases such as this one, where an employer seeks to justify an
employee’s
dismissal
by
alluding
to
the
employee’s
abusive
behavior
towards her subordinates, the issue is not whether such behavior actually
took place, but rather whether the employer’s decisionmakers reasonably
believed that it took place. Mulero-Rodríguez v. Ponte, Inc., 98 F.3d
670, 674 (1st Cir. 1996). It is to this end that Sprint brings the
statements made against Rivera by her subordinates and customers. These
statements,
Sprint
argues,
are
not
being
brought
to
establish
the
veracity of such, but rather to document that as part of its disciplinary
procedures,
its
management
and
investigations, gathered relevant
Human
Resources
Department
performed
information and made determinations
based on the evaluation of the information collected. Interview notes
such as the ones being impugned by Rivera are not hearsay because their
Civil No. 09-1813 (PG)
Page 5
real purpose is to establish that Sprint had a reasonable basis for
taking the disciplinary measures it took against Rivera, measures which
eventually led to her termination. As such, those statements are not
subject to the hearsay exclusionary rule and this Court may consider
them.
As to the second statement which is comprised of the interview
notes taken by Dávila, the Court is of the opinion that the same squarely
fall within the “records of a regularly conducted activity” exception.
Fed. R. Evid. 803(6). Under this exception, the records are admissible if
they:
(1)
were
made
at
or
near
the
time
by
(or
from
information
transmitted by) someone with knowledge; (2) were kept in the course of a
regularly conducted activity of a business; (3) making the records was a
regular practice of that activity; (4) all these conditions are shown by
the
testimony
of
the
custodian;
and
(5)
neither
the
source
of
the
information nor the methods or circumstances of preparation indicate a
lack of trustworthiness. Sprint has provided an unsworn statement under
penalty of perjury by the custodian of the challenged records, Dávila,
who also happens to be the person who authored most of them. Docket No.
118, Exh. A. The unsworn statement clearly indicates that all of the
conditions prescribed by Rule 803(6) have been met, and it stresses that
Sprint’s
Human
Resources
Department
regularly
and
continuously
investigates and collects pertinent information related to the labor
history and performance of its personnel, including Rivera. Thus, the
documents being attacked by Rivera’s motion in limine are admissible.
Rivera
does,
however,
advance
a
valid
point
as
to
the
authentication of several of the documents being proffered by Sprint. The
Court observes that several of these are unsigned, and as such cannot be
authenticated under Fed. R. Evid. 901(a). Said Rule states that in order
to “satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Several of the
documents presented by Sprint exhibit no signature, either by Dávila or
by the person who made the underlying statement. As such, Sprint has not
met its burden of proving that those documents are what it claims they
are. Accordingly, the following documents are stricken from the record:
attachments 13, 31, 32, 34, 37, 54(b), 56, 58 and 59 of Exhibit A of
Civil No. 09-1813 (PG)
Page 6
Sprint's statement.
Finally, Rivera also requests this Court strike several extracts
from the results of a personality test administered to her by her own
expert witness, under the argument that the same have not been properly
authenticated by such psychologist. The Court rejects this claim as it is
apparent that psychologist Ramos Duchateau, who conducted said test,
certified
the
Accordingly,
authenticity
the
Court
of
the
declines
same
Rivera’s
during
her
invitation
to
deposition.
strike
said
extracts at this stage of the proceedings.
Rivera’s motion in limine is therefore GRANTED in part and DENIED
in part.
ii.
Sprint’s Motion to Strike Sham Statement (Docket No. 117)
As part of her opposition to Sprint’s motion for summary judgment,
Rivera
included
an
unsworn
declaration
under
penalty
of
perjury
(“Rivera’s Statement”). Docket No. 101, Exh. 1. Defendants call for this
statement be stricken as it includes averments that “directly contradict
or are clearly inconsistent with previous statements given under oath by
Plaintiff or reaffirmed as true and correct by her under oath without any
justification
for
said
changes.”
Specifically,
Sprint
requests
that
paragraphs 8, 11, 19, 23, 24, 28, 29, 35, 37, 47 and 65 of Rivera’s
Statement
be
stricken
by
this
Court,
based
on
the
“sham
affidavit
doctrine.”
At the outset, the Court notes that Rivera’s Statement was signed
after the Defendants’ motion for summary judgment had been filed, which
itself suggests to the Court “that the Statement was made solely to
create an issue of fact for the purpose of surviving summary judgment.”
Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 110
(1st Cir. 2006) (holding district court did not abuse discretion in
disregarding affidavit submitted in support of plaintiff’s opposition to
summary
judgment,
since
statements
therein
conflicted
with
answers
plaintiff had given in her deposition, and plaintiff failed to provide
satisfactory explanation for subsequent change in testimony). “It is
settled that ‘[w]hen an interested witness has given clear answers to
unambiguous questions, he cannot create a conflict and resist summary
judgment with an affidavit that is clearly contradictory, but does not
give a satisfactory explanation of why the testimony is changed.’” Torres
Civil No. 09-1813 (PG)
Page 7
v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000) (citing
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.
1994)).
The Court is forced to agree with Defendants that several of the
averments contained in Rivera’s Statement are contradictory, incongruent
and simply cannot be sustained by the available evidence situated on the
record. In particular, in her Statement Rivera alleges that Rodríguez’s
sexually-charged conduct towards her can be traced as far back as 2004,
and
that
she
began
informing
Human
Resources
of
the
same
in
2005.
However, unblemished evidence from the record points to the contrary. In
documents authored by Rivera herself, including a “Log of Events”2 and a
report
written
by
her
in
2007
as
per
Sprint’s
request,
Rivera
categorically stated that Rodríguez’s lewd comments began for the first
time on July 2007, and that it was in the following months that she began
attempting
to
inform
Sprint
of
the
same.
Taking
into
account
that
Rivera’s Statement was executed on June 15, 2011, that is after Sprint
filed its motion for summary judgment, the Court must conclude that the
same was an attempt by Rivera shore up her hostile work environment case
and
concoct
issues
of
material
facts
where
none
exist.
Hence,
any
references in the Statement that portray Rodríguez as having sexually
harassed Rivera before July 2007 merit being stricken from the record.
Moreover, even if the Court were to allow those statements to stand, the
same are generic and conclusory and cannot survive a properly-supported
motion for summary judgment.3 See Higgins v. New Balance Athletic Shoe,
Inc., 194 F.3d 252, 261 (1st Cir. 1999).
As
a
result,
the
Court
hereby
strikes
from
Rivera’s
Statement
paragraphs no. 8, 19, 23, 24, 28 (first sentence only) and 65. Sprint’s
motion to strike Rivera’s “sham” statement is therefore GRANTED in part
and DENIED in part.
iii. Rivera’s Motion to Strike Log of Events (Docket No. 121)
2
The “Log of Events” was a document prepared by Rivera during her tenure
with Sprint, where she (sometimes contemporaneously) describes many of the
events related in her Complaint. See Docket No. 117, Exh. A, Attachment 1.
During one of her depositions, Rivera, under oath, ratified as true the contents
of said Log. See id.
3
A statement such as “[a]lthough Rodríguez was married he began a pattern
of sexual harassment consisting of sexual advances and innuendos” without
further elaboration, is clearly generic and conclusory.
Civil No. 09-1813 (PG)
Page 8
Rivera has also filed a motion requesting this Court to strike the
aforementioned Log of Events, under the argument that Defendants did not
refer to it in support of their motion for summary judgment. Docket No.
121. Defendants had referred to the Log of Events in their Reply to
Rivera’s
opposition
to
their
motion
for
summary
judgment,
prompting
Rivera’s objection that the same was being brought “through the back
door.” Rivera argues that said Log of Events is “nothing more than raw
notes
prepared
by
her
pursuant
to
her
attorney’s
instructions,
in
anticipation of the instant litigation.” Defendants counter that this
Court should nevertheless consider the Log of Events as it reveals that
Rivera´s Statement contains “serious inconsistencies,” which they argue
requires several of the statements contained therein to be defenestrated.
See Docket No. 126.
The Court is inclined to agree with Defendants, who point out that
while Local Rule 7(c) states that a reply should only address new matters
brought up in the opposition by the non-movant, it clearly does not
inhibit a movant from referencing any admissible evidence in their reply,
as long as it is necessary to respond to a new matter raised in the
opposition. The Court notes that Rivera’s Statement was signed on June
15, 2011, that is two months after Defendants filed their motion for
summary judgment. Rivera’s opposition to that motion extensively relies
on said Statement in an attempt to establish a genuine dispute as to
several material facts. Thus, Defendants have proffered a legitimate
basis for referencing the Log of Events in their Reply to Rivera’s
opposition, and the Court is entitled to consider it.
Accordingly, Rivera’s motion to strike the Log of Events is DENIED.
B. Findings of Fact
The Court makes the following relevant findings of fact based on
the Defendants’ statement of uncontested material facts and Plaintiff’s
opposition
thereto
(Dockets
No.
82
and
101)
as
well
as
Plaintiff’s
counterstatement of material facts and Defendants’ opposition thereto
(Docket No. 102 and 115). In addition, the Court includes herein any
material facts which have not been genuinely opposed.
Rivera began working for Sprint on September 17, 2001 as a Retail
Store Supervisor. When she began working there she was provided with a
Civil No. 09-1813 (PG)
Page 9
copy of several of Sprint’s employment policies, including a copy of
Sprint’s Anti Sexual Harassment Policy, which she acknowledged receiving.
On June 16, 2002 Rivera was promoted to the position of Store
Manager, and remained at such position until the time of her dismissal.
As a store manager, she had direct responsibility for the operation of
the particular Sprint stores to which she was assigned from time to time.
Her duties included managing and training store personnel, guaranteeing
compliance with all of Sprint’s policies and procedures, as well as
maintaining the overall quality of the services provided by the store to
its customers.
According to Rivera, she always performed her duties above target,
and
was
the
recipient
of
several
awards
and
commendations
for
her
performance while working as a Store Manager.
During
her
employment
with
Sprint,
Rivera
received
several
trainings regarding Sprint’s anti-harassment policies and procedures, as
well as the Employee Guidelines and Ethics Code, although the parties are
in dispute as to the frequency of these trainings.
As
a
Store
Manager,
Rivera
had
to
implement
and
subordinates about Sprint’s anti-sexual harassment policy.
advise
4
her
Rivera was
also duly trained by Sprint to handle sexual harassment complaints, and
was responsible for channeling to the Human Resources Department any such
grievances pursuant to the aforementioned policies. She admits to having
knowledge about all of Sprint’s policies, including the “zero tolerance
policy” towards sexual harassment, which was in force at all pertinent
times related to Rivera’s complaint.5
Sprint has a Code of Conduct where it emphasizes the need for
employees to treat each other with dignity and respect. This Code also
states the following in its Harassment and Related Issues Section:
Every employee has a right to a work environment which is free from
harassment regardless of whether the harasser is a co-worker,
4
Plaintiff argues that the fact that Sprint had these policies in place
does not necessarily mean that Defendants followed them.
5
This policy prohibits employees from engaging in any kind of offensive,
sexually charged conduct and requires employees to immediately notify said
behavior if indeed suffered or witnessed by them. It also provides several
alternatives for employees to inform or complain about prohibited conduct,
including an open door policy and a 24 hour confidential telephone line known as
the Ethics Helpline. Although she knew of the Helpline, Rivera claims she was
reluctant to use it as she thought her complaints would eventually reach her
supervisors.
Civil No. 09-1813 (PG)
Page 10
supervisor, manager, customer or visitor. Harassment can include any
behavior (verbal, visual, or physical) that creates an intimidating,
offensive, abusive or hostile work environment.
Docket
No.
82,
Exh.
A,
Attachment
6.
In
its
section
regarding
"Expectations of Sprint Associates and Management," Sprint’s Customer
Satisfaction
Principles
requires
employees
to
treat
customers
professionally and establishes that being rude or discourteous is never
allowed and the company's primary competitive strategy is to listen and
solve the customer's problem. Docket No. 82, Exh. A, Attachment 7.
On
August
19,
2002
Sprint
received
a
letter
from
one
of
its
corporate clients complaining about the treatment received from Rivera
when said client arrived at the Sprint store where Rivera worked and
requested a replacement phone. The letter stated that Rivera kept the
client waiting for an hour and a half, refused to furnish the replacement
phone, and told the client that she could not waste any more time with
him.6
On October 30, 2003 Rivera received a letter detailing several
policy violations discovered by an audit carried out at the Sprint store
where she worked at the time.7 Sprint claims that Rivera was placed on a
six month written warning as a result, although the record contains no
evidence of this other than an unsworn statement under penalty of perjury
by Dávila. In a later interview, though, Rivera seemed to admit that she
had a warning for an audit.8
On or about January 2004, co-defendant Juan Rodríguez became Retail
Sales Manager for Sprint Caribe and Rivera’s direct supervisor.
On
February
17,
2004
Rivera
received
a
“Written
Warning”
from
Rodríguez, describing an incident where Rivera left her store without the
proper
and
authorized
management
personnel
in
charge,
and
breached
Sprint’s security policy by sharing one of her passwords with another
employee.
Rodríguez
6
sent
another
letter
to
Rivera
on
March
29,
2004
Sprint did not submit any evidence reflecting Rivera’s receipt of this
complaint, and Rivera claims that the complaint is too far removed from her
dismissal in 2008 to be taken into account as a reason for said dismissal.
7
The Plaza Escorial Store.
8
See Dkt. 82, Exh. A. Attachment 22, p. 2. Rivera alleges that this was
the first audit she participated in while employed at Sprint, and that the audit
revealed several deficiencies that had not been addressed for years prior to her
working with Sprint.
Civil No. 09-1813 (PG)
indicating
that
the
Page 11
Human
Resources
Department
and
he
had
received
several complaints from Rivera’s subordinates alleging mistreatment by
Rivera.
As
a
investigation
result
was
of
carried
the
out,
complaints,
which
the
concluded
letter
that
states,
the
an
complaining
employees were not treated in a professional manner by Rivera, that
customers were also not treated in a professional manner, that Rivera
lacked understanding regarding the employee’s personal issues, and that
there existed a communication barrier between the employees and her.
Consequently, Rodríguez placed Rivera on a six month written warning.
On
June
6,
2004,
Rivera
acknowledged
receipt
of
the
Employee
Resources Guide, a revised document that provides employees information
about Human Resource policies, practices, programs and benefits as well
as the Customer Satisfaction Policy at Sprint.
By August, 2004 Rivera claims that she called Dávila to request an
appointment
regarding
Rodríguez’s
behavior
towards
her.
During
this
telephone call, Dávila told her that she was unable to meet with her in
person, but that Rivera should let her know what the problem was. Rivera
confided in Dávila, who told her not to pay any attention to Rodríguez
and just focus on doing her job well.9
Rodríguez was apparently informed about Rivera’s complaint against
him, berated her for it, and ordered her to take two weeks’ vacation
time. Afterwards, Rodríguez transferred Rivera to the Fajardo Store,
which was further away from her home. The Fajardo Store apparently had no
running water or electricity, and the employees were required to gather
water from the parking lot in buckets to flush the toilets. The store
also had very little security and was apparently almost broken into by an
unidentified man at some point.
On March 9, 2005, after Rivera began her work at the Fajardo Store,
several of the employees there sent an e-mail to Dávila complaining about
certain “irregularities” surrounding Rivera’s conduct and expressing that
as a result, they felt harassed and cohibited from carrying out their
affairs. Rivera claims that neither Dávila nor Rodríguez ever informed
her about the exact nature of the complaints, and therefore she never had
an opportunity to address them.
9
It is
conversation.
unclear
to
the
Court
exactly
what
was
said
during
said
Civil No. 09-1813 (PG)
Page 12
Several days later, on March 16 and 17, 2005 Rivera was interviewed
by Dávila and asked about the complaints that had been filed against her.
Although she acknowledged that some of her employees had complained about
her, she denied their allegations and mentioned that the real cause of
their grievances were the precarious conditions present at the Fajardo
store.10
Rivera was interviewed a second time on March 17, 2005 where she
alleged being subjected to heavy work pressure by Rodríguez. A transcript
of the interview does not mention that Rivera ever complained of any
sexually inappropriate conduct by Rodríguez. See Docket No. 82, Exh. A,
Attachment 21. Sprint claims that Rivera only mentioned that Rodríguez
had relocated her to the Fajardo store because she had called Human
Resources to “notify his lack of respect towards [her] and the lack of
help.”11
At this time, Rivera claims that her stress levels were so high
that she developed cervical spasms and costochondritis, which required
staying at home to rest, but that Rodríguez barred her from taking sick
leave.
As a result of the investigation brought on by the complaints filed
by the Fajardo Store employees, on March 29, 2005 Rivera was given a
Final Written Warning by Rodríguez. The letter stated that:
Specifically an investigation of your management practices revealed
numerous issues with your team interactions, management style, and time
keeping practices of your store. In addition, there is an overwhelming
perception that you would retaliate against your team members for sharing
their concerns… it is Sprint’s expectation that you will no longer engage
in behavior that violates Sprint policy.
Docket No. 82, Exh. A, Attachment 23.
Rivera was given another written final warning on November 2, 2005
and was handed a copy of Sprint’s Equal Employment Opportunity Policy by
Rodríguez.
The
letter
stated
that
Sprint
had
received
a
claim
by
Guardsmark (a company that provided Sprint with security guards for their
stores) indicating that Rivera had made sexually discriminatory comments
10
Plaintiff mentioned in the interview that the employees were upset
because they had been working for the past seven months without electricity or
water at the Fajardo store, and that this was impinging on their ability to meet
their sales quotas and receive their commissions.
11
Rivera claims that Dávila failed to include her sexual harassment claims
in the transcript of the interview, and that she signed the transcript of the
interview out of fear.
Civil No. 09-1813 (PG)
Page 13
about their female guards. The letter also accused Rivera of threatening
a Mr. Enrique Parés with contacting Guardsmark’s General Manager if he
did not replace certain guards.
On April 1, 2005, Sprint received a complaint against Rivera from a
customer who alleged that he was mistreated by Rivera and that she made
unauthorized transactions with said customers credit card. Rivera admits
that Sprint received the letter and that the same was directed to her as
a
manager,
but
that
the
transaction
in
question
was
effectuated
by
another employee.12
On June 6, 2005 another customer who was allegedly mistreated by
Rivera formally complained against her for her “rude, curt, evasive, and
arrogant” behavior.
On or about July 2005, Rivera was transferred to the San Patricio
Store. By the end of November 2005, a couple of the employees working
there also complained about Rivera’s hostile behavior towards them and
other employees. See Docket No. 82, Exh. A, Attachments 33 and 36.
Rivera met with Dávila on December 8, 2005 regarding the complaints
received
from
the
San
Patricio
Store
employees,
and
denied
having
mistreated her subordinates.
Dávila
memorandum
addressed
dated
Rivera’s
January
12,
purported
2006.
In
attitude
said
problems
memorandum
in
Rivera
a
was
admonished and advised of the possibility of being dismissed if such
conduct was not permanently corrected. Rivera was admonished because of
her attitude during an interview held on December 8, 2005, in which she
allegedly did not offer a constructive disposition towards improving her
management style, but rather expressed resentment over the comments made
against her by her subordinates. Rivera was also informed about the
importance of treating others courteously and with human dignity and the
hostile environment her subordinates felt she had subjected them to.
Dávila
sent
Rivera
a
follow
up
communication
on
December
29,
2005
regarding the corrective action plan requested in the memorandum. Rivera
sent her corrective action plan on January 16, 2006.
In 2007, Rivera was transferred to the Sprint Store at the Escorial
Plaza Shopping Center. Shortly thereafter, Raul Franco, an employee at
12
However, the letter by the customer specifically states that Rivera
carried out the referenced transactions. Rivera also does not deny the part of
the letter where the customer complains of mistreatment by her.
Civil No. 09-1813 (PG)
Page 14
the store, complained to the Sprint Ethics Helpline13 about mistreatment
by Rivera, indicating that Rivera “yells and screams” at the employees in
a rude manner.
Another
complaint
employee
before
the
at
the
store,
Alivette
Anti-Discrimination
Unit
Hernández,
of
the
filed
Puerto
a
Rico
Department of Labor for alleged discrimination by Rivera based on race,
although she later withdrew her complaint and no disciplinary action was
taken against Rivera as a result of that complaint.
During
such
period
of
time,
Sprint’s
General
Manager,
Patricia
Eaves, personally met with several employees of the Escorial Store, to
investigate, among other things, Rivera’s performance as a manager.
On July 3, 2007 Rivera returned to work after taking a vacation at
the Dominican Republic. At some point during the day, Rivera was on the
phone with Rodríguez talking about work-related matters, when Rodríguez
told her laughing that she was “crazy” to go to Santo Domingo to pay for
a “dick without social security,” and asked her why she was “in such a
need”.14 Rivera allegedly felt humiliated by the incident, but failed to
report it out of fear for her job. She does claim that she commented the
occurrence with the Store Manager at the time, Paul Squitierri, and also
with Ana Franco, who was another District Regional Manager, although they
both have filed unsworn declarations under penalty of perjury denying
ever having knowledge of this incident.
On August 16, 2007 Rodríguez visited the El Escorial Store, and
repeated the above comments to Rivera. He also used offensive language to
ask Rivera to find him a woman who would have a one night stand with
him.15 Rivera was again humiliated and rebuffed Rodríguez, but he just
laughed. Rivera again told Franco about this new incident.
A month later, on September 7, 2007 Rodríguez took his corporate
cellphone and told Rivera: “See how beautiful?” Thinking that Rodríguez
was
going
to
show
her
something
work
related,
Rivera
looked
at
13
The Sprint Ethics Helpline is a toll-free telephone number available 24
hours a day, seven days a week, that any Sprint employee can call when they are
faced with any ethics issue.
14
From the record the Court gathers that Rivera may have had a
relationship with someone from the Dominican Republic, and that Rodríguez’s
comment was meant to ridicule her for it.
15
Rodríguez´s words were more offensive, he allegedly asked Rivera to
“find him a magician who would fuck him and then disappear to hell”
(“encontrarme una maga que eche un polvo y se desaparezca pa’l carajo”).
Civil No. 09-1813 (PG)
Page 15
Rodríguez’s phone and saw a woman wearing a “white baby doll”. Rodríguez
then asked Rivera if she had any pictures like that or without any
clothes, or whether she had any videos of her having sexual relations.
Rivera told him that his conduct was unacceptable and that it had to
stop. Rodríguez responded by shouting to all of the employees and issued
all
of
them
a
verbal
“written”
warning,
which
would
stay
in
the
employee’s records for six months.
On
September
29,
2007
Rivera
called
Eaves
at
her
corporate
cellphone to report Rodríguez’s conduct, but was only able to leave a
message.16 Eaves apparently forwarded the message to Rodríguez who called
Rivera and asked her why she wanted to speak with Eaves and not with him,
and
also
mentioned
that
he
counted
on
Eaves’
support.
Rivera
told
Rodríguez that she was not feeling well and that she did not want to talk
with him, and hung up.
Rodríguez
then
decided
to
transfer
Rivera
back
to
the
Fajardo
store, effective October 1, 2007. Rivera claims this was in retaliation
for opposing his inappropriate remarks.
On Thursday, October 5, 2007 Rodríguez called Rivera to a meeting
at “El Mesón” Restaurant to which he indicated in a threatening manner
that he was “disappointed” in her, that he never would have believed that
she would dare call Eaves. He boasted that Eaves was aware and had signed
off on Rivera’s transfer to the Fajardo store, and that he had free reign
to
make
any
personnel
changes
he
wanted.
Rivera
asked
why
he
was
punishing her because there was no valid reason for the transfer to the
Fajardo store, to which Rodríguez told her that he was going to be a “son
of a bitch” (“hijo de puta”) and whoever did not like it that they knew
what to do (implying they resign).
As a result, Rivera attempted to avoid being alone with Rodríguez
as much as possible, but in each of the few encounters he was extremely
hostile to her.
By the end of November 2007, Dávila and Rodríguez conducted several
interviews of Fajardo Store employees Melvin Suárez, Laurie Iglesias,
Omar Cotto and Sheila Rivera regarding Rivera’s conduct. Most of the
employees thought that Rivera was a strict manager, but clarified that
they had not felt offended by her. One of the employees interviewed,
16
It is unclear to the Court exactly what Rivera said on the message.
Civil No. 09-1813 (PG)
Page 16
Suárez, did complain and expressed feeling offended and disrespected by
Rivera, as well as being subjected to a hostile work environment.
Assistant
Store
Manager
Ahiram
Aponte
sent
Eaves
and
Dávila
a
memorandum alleging that after Rivera learned about the interviews of the
Fajardo Store employees, she met with Aponte and threatened to retaliate
against him as well as the employee that had complained against her via
an anonymous text message sent to Eaves.
In an e-mail dated November 29,
2007 Dávila requested a legal
opinion from Cameron Rostrón,17 concerning the risks that a possible
dismissal of Rivera would entail. The e-mail mentioned that Rivera lacked
management skills when interacting with her team, and that employees had
complained
about
her
mood
swings,
lack
of
professionalism,
poor
communication skills and compulsive behavior, yelling and screaming at
employees and customers.
On December 4, 2007 Rivera requested a meeting with Dávila. Dávila
told her that she was unavailable that day, but that they would meet
without delay the following day.
Later that day, Eaves summoned Rivera and Aponte to a meeting to be
held on December 7, 2007. In an e-mail sent to both of them, Eaves
claimed
that
Aponte’s
the
handling
purpose
of
of
their
the
meeting
employees
was
in
to
discuss
accordance
Rivera
with
and
Sprint’s
established guidelines.
The following day, on December 5, 2007 at a meeting in Sprint
Caribe’s
headquarters,
Rodríguez
confronted
Rivera
with
the
call
to
Dávila and told her that he knew about it and in a threatening manner
told Rivera that “she never learns.” Later that same day, Rivera filed a
formal sexual harassment complaint against Rodríguez through Sprint’s
Ethics Helpline.
Also on that date, Dávila told Rivera that she would not be able to
meet with her because she was too busy. On December 6, 2007, Rivera sent
an e-mail to Dávila informing her about the grievance she filed via the
Ethics
Helpline.
Dávila
replied
and
Rivera
was
again
summoned
to
a
meeting with her and Eaves to be held on the following day.
On December 7, 2007 Rivera finally met with Eaves and Dávila, as
17
The Court assumes that Rostrón was a lawyer working at Sprint’s legal
department.
Civil No. 09-1813 (PG)
Page 17
summoned by both of them. At this meeting, the parties discussed Rivera’s
sexual harassment complaint against Rodríguez, although the parties are
in dispute as to the manner in which this discussion was carried out.18
Rivera also claims that Eaves began shouting at her and in a very hostile
manner demanded to know what Rivera “wanted to get out of this”. Rivera
answered
that
all
she
wanted
was
to
work
in
peace,
without
sexual
harassment or reprisals and that she wanted to return to work in the
metropolitan area, since the Fajardo store was far from Rivera’s home and
sometimes she was working until after 10:00 p.m.
At
the
meeting,
Dávila
also
asked
Rivera
to
draft
a
report
detailing Rodríguez’s alleged acts in order to commence an investigation.
Dávila and Eaves also discussed with Rivera the ongoing investigation
regarding the Fajardo Store employees complaints against her.
Sprint, as a remedial measure to protect Rivera, transferred the
supervision of the Fajardo Store away from Rodríguez to District Manager
Ana Franco. Rodríguez also received a verbal “coaching” from Eaves,
apparently as a result of Rivera’s complaints against him.
On
December
13,
2007
Rivera
submitted
her
memorandum
about
Rodríguez’s alleged sexual harassment conduct, and immediately thereafter
Sprint
allegedly
misconduct.
In
began
her
an
investigation
memorandum,
regarding
Rivera
stated
Rodríguez
that
alleged
Rodríguez’s
inappropriate comments began on July 2007, specifically July 3, 2007.
Meanwhile, Sprint continued with its investigation regarding the
complaints made by Fajardo Store employees against Rivera, and once such
investigation was concluded, a meeting was held on January 10, 2008
between Eaves, Dávila and Rivera. Rivera was under the impression that
the meeting would be about her grievance against Rodríguez, as she had
previously sent an e-mail to Dávila inquiring about its status, and
Dávila had apparently responded by saying that the company would be
taking action “soon”.
At the meeting, Eaves informed Rivera that the topic of discussion
would be the employee complaints filed against her and that she was going
to be placed on a Final Warning, which would be active in her personnel
file
for
12
months.
Eaves
would
also
be
personally
overseeing
her
18
At the meeting, Rivera claims Eaves questioned the timing of her
grievance against Rodríguez, and demanded to know why she had waited so long to
complain.
Civil No. 09-1813 (PG)
Page 18
performance and warned Rivera that she would be fired if Sprint were to
receive one more complaint against her. Eaves also refused to say which
employees had complained about Rivera, and so she was unable to refute
any of the grievances made against her. Rivera then signed the written
warning, although she claims to have done so under duress.
Rivera was transferred to the Catalinas Mall Store in Caguas, under
the direct supervision of District Manager Franco, effective February 1,
2008.
On February 23, 2008, Eaves received an electronic mail from Sprint
customer
Mr.
Edil
Rodríguez
complaining
against
Rivera
because
she
allegedly mistreated his wife at the Catalinas Mall Store to which she
had just been transferred.
The other Sprint employee who witnessed the situation, Myrna Ayala,
also confirmed Rivera's unprofessional behavior towards Mr. Rodríguez's
wife and declared that similar behavior had been displayed by Rivera in a
previous situation.
On February 28,
2008 Franco sent Rivera an e-mail stating her
intention to work on a corrective action plan with Rivera. Rivera claims
this corrective action plan was originally requested by Eaves.
Sprint concluded its investigation about Rodríguez’s alleged sexual
harassment and determined that the complaint was unsubstantiated and that
Rodríguez had not sexually harassed Rivera.
Around this time, Rivera received a call ordering her to report to
Sprint Caribe’s headquarters to sign an affidavit on behalf of Sprint
Caribe in a racial discrimination case filed by Alivette Hernández. She
did so on February 29, 2008 and, after signing the affidavit, was told to
go to another conference room and wait for Eaves. Eaves then arrived with
Franco and informed Rivera that she was terminating Rivera’s employment.
Eaves told Rivera that she was being fired because Sprint had received
another complaint against her (the complaint by Edil Rodríguez and his
wife).
The Court will now proceed to outline the applicable standard of
review for a motion seeking summary judgment.
II.
Standard of Review
A motion for summary judgment is governed by Rule 56(c) of the
Civil No. 09-1813 (PG)
Page 19
Federal Rules of Civil Procedure, which allows disposition of a case if
“the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” See Sands v. Ridlefilm Corp.,
212 F.3d 657, 660 (1st Cir. 2000). A factual dispute is “genuine” if it
could
be
resolved
in
favor
of
either
party,
and
“material”
if
it
potentially affects the outcome of the case. See Calero-Cerezo v. U.S.
Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
To be successful in its attempt, the moving party must demonstrate
the absence of a genuine issue as to any outcome-determinative fact in the
record, see DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997),
through definite and competent evidence. See Maldonado-Denis v. Castillo
Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). Once the movant has averred
that there is an absence of evidence to support the non-moving party’s
case, the burden shifts to the non-movant to establish the existence of at
least one fact in issue that is both genuine and material. See Garside v.
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). If
the non-movant generates uncertainty as to the true state of any material
fact, the movant’s efforts should be deemed unavailing. See Suarez v.
Pueblo Int’l, 229 F.3d 49, 53 (1st Cir. 2000). Nonetheless, the mere
existence of “some alleged factual dispute between the parties will not
affect
an
otherwise
properly
supported
motion
for
summary
judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). However,
“summary judgment may be appropriate if the nonmoving party rests merely
upon
conclusory
allegations,
improbable
inferences,
and
unsupported
speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir. 1990).
At the summary judgment juncture, the Court must examine the facts
in the light most favorable to the non-movant, indulging that party with
all possible inferences to be derived from the facts. See Rochester Ford
Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The Court
must review the record “taken as a whole,” and “may not make credibility
determinations
or
weigh
the
evidence.”
Reeves
v.
Sanderson
Plumbing
Products, Inc., 530 U.S. 133, 150 (2000). This is so, because credibility
determinations,
the
weighing
of
the
evidence,
and
the
drawing
of
Civil No. 09-1813 (PG)
Page 20
legitimate inferences from the facts are jury functions, not those of a
judge. Id.
III. Discussion
The following is a discussion of Rivera’s claims, in the following
manner. First, the Court will discuss her federal law claims under Title
VII,
namely
her
hostile
work
environment
and
retaliation
claims.
Afterwards, the Court will discuss Rivera’s claims arising under state
law, including her claims under Puerto Rico Laws No. 17, 69, 100, 80 and
115.
A. Title VII Hostile Work Environment
Title VII makes it unlawful for an employer to "discriminate against
any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's ... sex." 42 U.S.C.
§ 2000e-2(a)(1). The Supreme Court has interpreted the phrase "terms,
conditions, or privileges of employment" as manifesting "a congressional
intent 'to strike at the entire spectrum of disparate treatment of men and
women' in employment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986) (quoting L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 707
n.13 (1978)).
Among the discriminatory conducts prohibited by Title VII in the
workplace is sexual harassment. See Faragher v. City of Boca Raton, 524
U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). The Equal
Employment Opportunity Commission ("EEOC") has clarified that:
Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitutes sexual
harassment when (1) submission to such conduct is made either
explicitly or implicitly a term or condition of an individual's
employment, (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting
such an individual, or (3) such conduct has the purpose or effect of
unreasonably interfering with an individual's work performance or
creating an intimidating, hostile or offensive working environment.
29 C.F.R. § 1604.11(a).
There exist two general alternative approaches towards proving sexbased employment discrimination under Title VII. The first is quid pro quo
harassment, in which “a supervisor uses employer processes to punish a
subordinate for refusing to comply with sexual demands.” Hernández-Loring
Civil No. 09-1813 (PG)
Page 21
v. Universidad Metropolitana, 233
conduct
is
actionable
because
F.3d 49, 52 (1st Cir. 2000). Such
it
involves
explicit
and
tangible
alterations in the terms or conditions of employment. See Ellerth, supra.
Secondly, harassment that creates a sexually hostile and abusive work
environment is actionable when it is sufficiently severe or pervasive to
effect constructive alterations in the terms or conditions of employment.
See Lipsett v. University of Puerto Rico, 864 F.2d 881, 897-898 (1st Cir.
1988).
In this case, Rivera alleges in her opposition to Sprint’s motion
for
summary
harassment
judgment
that
that
generated
Rodríguez’s
a
hostile
conduct
work
constituted
environment.
In
a
form
of
determining
whether a Title VII hostile work environment claim exists, the Court must
look
to
all
the
circumstances,
including
the
frequency
of
the
discriminatory conduct, its severity, whether it is physically threatening
or humiliating or a mere offensive utterance, and whether it unreasonably
interferes with the employee's work performance. National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115-116 (2002). A hostile work environment
claim is based upon the cumulative effect of individual acts that may not
by themselves be actionable. Id. The Court also notes that the instances
of harassment need not be related in time or type. See Davis v. Monsanto
Chemical Co., 858 F.2d 345, 349 (6th Cir. 1988).
To succeed
Rivera
must
protected
on
a
establish
class;
(2)
hostile work
six
environment claim
elements:
that
she
(1)
was
that
she
subjected
to
against
is
a
Sprint,
member
unwelcome
of
a
sexual
harassment; (3) that the harassment was based upon sex; (4) that the
harassment
was
sufficiently
severe
or
pervasive
so
as
to
alter
the
conditions of her employment and create an abusive work environment; (5)
that sexually objectionable conduct was both objectively and subjectively
offensive, such that a reasonable person would find it hostile or abusive
and that she in fact did perceive it to be so; and (6) that some basis for
employer liability has been demonstrated. Agusty-Reyes v. Dep’t. of Educ.
Of P.R., 601 F.3d 45, 53, n.6 (1st Cir. 2010).
Proceeding to apply this six-element test, there can be no doubt
that Rivera is a member of a protected class, as she is a woman. Secondly,
Rivera
has
alleged,
and
Sprint
does
not
seem
to
dispute,
that
the
purported sexual harassment was unwelcomed. Rodríguez’s first documented
Civil No. 09-1813 (PG)
act
of
harassment
Page 22
allegedly
took
place
in
early
July
2007,
when
he
apparently ridiculed Rivera on the phone for having a foreign boyfriend.
Rivera claims that she felt humiliated as a result of his comments. When
Rodríguez visited Rivera’s store on August 16, 2007, he again repeated the
referenced comments and asked Rivera, using obscene language, to find him
a “magician” who would have a one night stand with him and then disappear.
Rivera claims that she rebuffed Rodríguez, but that he just laughed it
off. The next month, when Rodríguez returned to Rivera’s store and showed
her a picture of a woman in a white baby doll, and then asked Rivera
whether she had any pictures like that or any videos of her having sexual
relations, Rivera told him his conduct was unacceptable and that he had to
stop.
Rivera’s
response
to
Rodríguez’s
comments,
coupled
with
her
allegations that she tried to report his conduct to Eaves and Dávila on
several occasions, is enough for a reasonable jury to conclude that that
Rodríguez’s conduct was unwelcome.
As to the third element, that the harassment was based upon sex,
courts have noted that a plaintiff is not required to demonstrate that the
harasser’s acts were motivated by sexual desire, Oncale, 523 U.S. at 80,
but merely that the harassment was gender-specific. Forrest v. Brinker
Intern. Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007). Furthermore, the
First Circuit has noted that evidence of sexually-charged or salacious
behavior is often sufficient, but not necessary, to prove that a work
environment was sufficiently hostile or abusive to a female employee to
amount to discrimination on the basis of sex. Gorski v. N.H. Dep’t of
Corrections, 290 F.3d 466, 472 (1st Cir. 2002). Here, a reasonable jury
could conclude that Rodríguez’s harassment was based upon sex, as his
comments were overtly sexual and lascivious in nature, referencing both
Rivera and Rodríguez’s respective sex lives.
The fourth element of the test requires Rivera to establish that the
harassment was either severe or pervasive. Sprint claims that the comments
allegedly made by Rodríguez to Rivera are insufficient to create a severe
and pervasive pattern of harassment as they merely constituted three
comments occurring over a three month period. The Court disagrees, and
notes that the test to be applied is in the disjunctive: the conduct must
be sufficiently severe or pervasive so as to alter the conditions of
employment. Rivera alleges that there were four comments, namely the
Civil No. 09-1813 (PG)
Page 23
following: (1) “Are you crazy? I can’t believe you paid to go to Santo
Domingo to get a dick without social security!” (made twice to Rivera on
two different occasions); (2) “How would you look in one of these slips”
(while showing Rivera a picture of a woman in a white “baby doll”); (3) “I
am so bored, find me a magician who would fuck me and then disappear to
hell;” and (4) Rodríguez allegedly asked Rivera whether she had any videos
on her phone depicting her having sexual relations.
Sexually discriminatory verbal intimidation, ridicule, and insults
may be sufficiently severe or pervasive so as to alter the conditions of
the victim's employment and create an abusive working environment that
violates Title VII. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)(citing Meritor, 477 U.S. at 65, 67). The Court finds that, were
Rivera to convince a jury that the comments were in fact made, the same
are sufficiently severe to sustain a colorable claim of harassment under
Title VII. Although the comments were spaced out over a three month
period, and Rodríguez and Rivera did not work together every day, the
comments are so infused with sexual overtones that a reasonable juror
could find them sufficiently offensive, humiliating and ridiculing to be
classified as “severe” under the six-element test.
Rivera also complains of hostile treatment by Rodríguez that was not
overtly related to her gender. She claims that after the third incident,
when he showed her the picture on his phone and she chastised him for it,
he became irate and proceeded to shout to all of the employees at the
store that he was issuing all of them a verbal warning. Also, when Rivera
tried to complain to Eaves via phone, it was Rodríguez who returned her
phone call and let Rivera know that he counted with Eaves support and
asked her why she wanted to talk with Eaves and not with him. Rivera also
alleges that Rodríguez threatened her at a restaurant, and expressed
disappointment in her for daring to call Eaves. These incidents, along
with the supposed comments made by Rodríguez, are enough to allow a
reasonable
jury
to
conclude
that
Rivera’s
working
conditions
were
both
objectively
and
materially altered.
As
a
result,
Rodríguez’s
conduct
is
subjectively offensive; if in fact made, a reasonable person would find
his comments to be abusive, and Rivera has stated that she found them to
be humiliating. Thus, the fifth element of the test is also met.
Civil No. 09-1813 (PG)
Page 24
The last element of the test, whether there is some basis for
employer liability, is more challenging. The First Circuit has outlined
the applicable Supreme Court jurisprudence concerning employer liability
for a supervisor’s alleged harassment in Arrieta-Colón v. Wal-Mart, 434
F.3d 75 (2006), as follows:
(1) “An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a supervisor
with immediate (or successively higher) authority over the employee.”
Faragher, 524 U.S. at 807.
(2) Where
“no
tangible
employment
action is
taken, a defending
employer may raise an affirmative defense to liability or damages, subject
to proof by a preponderance of the evidence.” Id.
(3) “No affirmative defense is available ... when the supervisor's
harassment culminates in a tangible employment action, such as discharge,
demotion, or undesirable reassignment.” Id. at 808.
(4)
The
affirmative
defense,
when
available,
“comprises
two
necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any ... harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer or to avoid harm
otherwise.” Id. at 807. The employer bears the burden of proof as to both
elements. Id. at 807-08.
(5) As to the first element of the defense, proof of an antiharassment policy with a complaint procedure available to employees, while
not necessarily dispositive, is relevant. Id. at 807.
(6) As to the second element of the defense, proof that the employee
failed to meet his obligation of using reasonable care is not limited to
an unreasonable failure to use such a procedure, although such proof will
normally suffice to meet the employer's burden. Id. at 807-08. See also
Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 32 (1st Cir. 2003); Marrero v.
Goya of P.R., Inc., 304 F.3d 7, 20 (1st Cir. 2002).
At the outset, Rivera claims that Sprint is precluded from raising
the
Faragher-Ellerth
culminated
in
a
defense
tangible
as
Rodríguez’s
employment
action
harassment
against
her,
towards
her
namely
her
dismissal on February of 2008. The Court disagrees, and as it will explain
Civil No. 09-1813 (PG)
Page 25
infra, it considers Sprint’s dismissal of Rivera to be for legitimate and
non-discriminatory reasons.
However, Rivera also alleges that around September 2007, following
some of the incidents with Rodríguez, the following took place:
Rodríguez became increasingly hostile to Rivera when she refused to
welcome his advances. A few days later, on September 28, 2007
Rodríguez, in retaliation for not accepting his unwelcome sexual
advances, transferred her again to the Fajardo store. Rivera became
physically ill due to the nervous state Rodríguez put her in and had
to call in sick.
See Plaintiff’s Counterstatement of Material Facts, ¶ 32, Docket No. 102.
Rivera’s transfer may amount to a tangible employment action as
Rivera considered it to be an undesirable reassignment, being outside the
San Juan Metropolitan Area and still within Rodríguez’s jurisdiction. See
Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 44 (1st Cir.
2003)(holding
that
a
reassignment
of
an
employee
could
constitute
a
tangible employment action, supporting finding of vicarious liability of
employer, particularly if it caused a loss of income, as long as there is
a causal link between the reassignment and the alleged harassment and
harasser). Although there is no evidence on the record that Rivera’s
transfer to the Fajardo Store resulted in a loss of income, there is
evidence to support a finding that said transfer could be seen as a form
of punishment, given all the operational deficiencies present at that
location, and it being further away from Rivera’s home. Moreover, Rivera
claims that on October 5, 2007 she received a phone call from Rodríguez,
who told her that Eaves was aware of her transfer to Fajardo and signed
off on it. The Court also takes into account that Defendants, in their
opposition to plaintiff’s counterstatement of material facts, failed to
proffer a legitimate reason for Rivera’s transfer there, despite her
allegation that the same was in retaliation for refusing Rodríguez’s
advances. Thus, the Court finds that Sprint’s assertion of the FaragherEllerth defense is inapposite.
In any event, Sprint would face difficulty satisfying the second
prong of the Faragher-Ellerth defense. The Court recognizes that Sprint
had a comprehensive anti-harassment policy in place, and that Rivera was
well
aware
of
its
provisions.
Nevertheless,
Rivera
argues
that
the
presence of such policy does not necessarily mean that Sprint followed it.
Reading the facts under the light most favorable to her, she did complain
Civil No. 09-1813 (PG)
Page 26
to Ms. Franco (another Retail Sales Manager, the same position Rodríguez
held) about Rodríguez’s inappropriate comments on August 2007. Ms. Franco
allegedly responded to Rivera that Rodríguez’s behavior was unacceptable
and that she was right in stopping him. The “Employee Complaint and Remedy
Procedure” section of Sprint’s policy directs victimized employees to
report acts of harassment in the following manner:
Step 1
Report the incident to your supervisor, the next level of
management, a Human Resources representative or to another member
of management with whom you are comfortable. If your supervisor or
a higher level management employee is the person engaging in the
offending behavior, you should report the matter to another member
of management or to a Human Resources representative, who will
ensure that there will be no retaliation or reprisal against you
for reporting the conduct. You may also use the Ethics Helpline.
Step 2
The individual informed of the occurrence will notify a Human
Resources representative so that a comprehensive and confidential
investigation may be undertaken.
...
See Sprint Policy brochure: “Not Ever!”, Docket No. 82-1, Attachment 5.
The Court finds that Sprint is unable to prove by a preponderance of
the evidence that Rivera failed to comply with its anti-harassment policy.
Rivera’s decision to contact Ms. Franco to inform her about Rodríguez’s
transgressions is within the prescribed procedures, as Ms. Franco was a
member of management, equal in hierarchy to Rodríguez. Although the record
reveals several inconsistencies in Rivera’s story as it relates to the
incidents with Rodríguez and when she opposed them, the Court believes
such issues are better suited for a jury than for disposition via summary
judgment. As such, the Court finds that Rivera has satisfied the sixth
element of the test, thereby evincing some basis for employer liability.
Sprint may still raise the Faragher-Ellerth defense before the jury,
depending on what facts Rivera is able to establish at trial.
Given that Rivera has satisfied the six-element test to support her
claim of a hostile work environment under Title VII, the Court DENIES
Sprint’s request for dismissal of such claim.
B. Title VII Retaliation and Employment Termination
Rivera
opposition
argues
to
that
her
Rodríguez’s
termination
was
sexually-infused
a
direct
comments
as
result
of
her
well
as
her
grievance via the Ethics Helpline, in violation of Title VII’s anti-
Civil No. 09-1813 (PG)
Page 27
retaliation provision. Sprint retorts that this claim should be dismissed
because Rivera’s termination was instead a result of her cantankerous
attitude towards her subordinates and customers.
Title VII makes it an unlawful employment practice for an employer
to discriminate against any of his employees because they have “opposed
any practice made an unlawful employment practice by [Title VII], or
because [they have] made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding or hearing under [Title VII].”
42 U.S.C. § 2000e-3(a).
To make out a prima facie case of retaliation under the familiar
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 801-03 (1973), Rivera must prove that: (1) she engaged in
protected activity under Title VII; (2) she suffered an adverse employment
action; and (3) the adverse employment action was causally connected to
the protected activity. Fantini v. Salem State College, 557 F.3d 22, 32
(1st Cir. 2009); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39,
46 (1st Cir. 2010)
If Rivera is able to establish a prima facie case of retaliation,
the burden will then shift to Defendants to articulate a legitimate, nonretaliatory reason for their employment decision. Román v. Potter, 604
F.3d 34, 39 (1st Cir. 2010). If the Defendants meet their burden of
production, “the burden shifts back to [Rivera] to show that the proffered
legitimate reason is in fact a pretext and that the job action was the
result of the defendant's retaliatory animus.” Id. (internal quotation
marks and citation omitted).
i.
Prima Facie Case
Sprint does not seem to contest the point that Rivera’s grievance
through the Ethics Helpline constituted a protected activity under Title
VII. Also, it is well settled that Rivera suffered an adverse employment
action as a result of her termination. Sprint’s argument, rather, focuses
on
the
lack
of
causality
between
her
grievance
and
her
subsequent
dismissal. Rivera counters that the close temporal proximity between her
protected activity and her ultimate dismissal is enough to establish a
prima facie case of retaliation. The Court agrees.
Civil No. 09-1813 (PG)
Page 28
The First Circuit has held that the burden of establishing a prima
facie case of retaliation is a relatively light one, and that temporal
proximity alone can suffice to meet it. See DeCaire v. Mukasey, 530 F.3d
1, 19 (1st Cir. 2008); and Mariani-Colón v. Dep't of Homeland Sec. ex rel.
Chertoff,
511
F.3d
216,
224
(1st
Cir.
2007)
(holding
that
temporal
proximity between June 2002 complaint of discrimination and August 2002
termination was sufficient to make prima facie showing of causation). As
Rivera filed her grievance before the Sprint Ethics Helpline on December
7, 2007 and was shortly thereafter discharged on February 29, 2008,
temporal proximity between the two events is clear, and thus Rivera has
met
her
burden
of
establishing
a
prima
facie
case
Consequently, the Court now proceeds to determine
articulated
a
legitimate,
non-retaliatory
reason
of
retaliation.
whether Sprint has
for
its
decision
to
terminate Rivera’s employment.
ii.
Sprint’s
Rivera
Sprint
Legitimate,
Non-Retaliatory
argues that Rivera’s
Reason
for
Discharging
dismissal was the culmination
of
a
myriad of complaints made against her by her subordinates and customers,
for her repeated attitude problems towards them and her lack of tact. In
support thereof, Sprint has abounded the record with evidence attesting to
the multiple disciplinary measures taken against Rivera, as well as with
testimony from fellow employees and complaints by customers against her.
Perusing the record, it becomes clear that Rivera had a long history
of
employment
problems
with
Sprint.
As
early
as
2002,
Sprint
began
receiving complaints addressing Rivera’s behavior. In particular, the
first blunder concerned an incident where a customer from a non-profit
entity dedicated to assisting handicapped individuals felt mistreated by
Rivera when she denied him a replacement phone and told him that she could
not waste any more time with him. Action was later taken against Rivera on
March, 2004, when she was placed on a six month written warning by
Rodríguez, due to the Human Resources Department having received several
complaints from her subordinates complaining of mistreatment by her. It is
noteworthy that Rivera was only given a written warning after an internal
investigation was carried out by Sprint which concluded that employees and
customers were not treated in a professional manner by Rivera.
Civil No. 09-1813 (PG)
Page 29
In 2005, when Rivera was first transferred to the Fajardo Store,
Dávila
received
an
e-mail
from
several
of
the
employees
there,
who
mentioned that they felt harassed by Rivera. Another investigation was
carried out, which found numerous issues with Rivera’s management style
and team interactions. As a result, Rivera was subsequently given a final
written warning by Rodríguez, but it seemed to be of no avail. Sprint kept
receiving
complaints
from
employees,
customers
and
even
the
security
company which provided guards for Sprint’s stores, slating Sprint for
Rivera’s
purported
acts
of
mistreatment
and
her
failure
to
work
harmoniously with others.
It seems that
wherever
Rivera went, the
complaints
against her
followed. In 2007, when Rivera was transferred to the Sprint Store at the
Escorial
Plaza
Hernandez
filed
Shopping
Center,
grievances
employees
against
Rivera
Raul
for
Franco
rude
and
Alivette
behavior
and
discrimination. When she was transferred back to the Fajardo store later
that year, one of the employees apparently complained anonymously to Eaves
about Rivera’s conduct. Rivera allegedly threatened to retaliate against
said employee as well as against Assistant Store Manager Aponte, who put
the incident in writing via a memorandum sent to both Eaves and Dávila.
As a result of the Fajardo Store complaints against Rivera, Sprint
conducted an investigation and Rivera was subsequently given a final
written warning by Eaves, who warned her that she was not going to
tolerate any further unprofessional behavior. The Final Warning document
also warned Rivera that she would be terminated in the event of any future
violations.
The
final
straw
came
in
late
February
2008,
when
Eaves
received an e-mail from a customer who complained that Rivera mistreated
his wife. Sprint interviewed the wife and confirmed that Rivera had indeed
acted inappropriately. Based on this new complaint against Rivera, Sprint
finally terminated her employment on February 29, 2008.
It
is
simply
beyond
a
doubt
that
Sprint
had
a
legitimate,
nondiscriminatory reason for discharging Rivera, as she exhibited numerous
behavioral problems which she ultimately failed to correct. Sprint claims
that her rude and inimical conduct constituted a violation of Sprint’s
Customer Satisfaction Policy and Ethics Code, and upon reviewing the
record as a whole, the Court determines that this assessment is indeed
reasonable. Accordingly, it needs go no further in assessing the merits of
Civil No. 09-1813 (PG)
Page 30
Sprint’s decision against Rivera. See Furnco Const. Corp. v. Waters, 438
U.S. 567, 578 (1978); and Mesnick v. General Electric Co., 950 F.2d 816,
825 (1st Cir. 1991)(“Courts may not sit as super personnel departments,
assessing
the
merits-or
even
the
rationality-of
employers’
nondiscriminatory business decisions”).
As Sprint has provided a legitimate, non-discriminatory reason for
terminating Rivera’s employment, her prima facie inference of retaliation
crumbles,
and
she
must
now
establish
that
Sprint’s
motives
were
pretextual. Medina-Muñoz, 896 F.2d at 9.
iii. Pretext
In evaluating Rivera’s claim of pretext, the Court must “weigh all
the circumstantial evidence of discrimination, including the strength of
the plaintiff's prima facie case and the employer's proffered reasons for
its
action,
mindful
that
everything
depends
on
individual
facts.”
Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d
1, 7 (1st Cir. 2000)(internal quotation marks omitted).
While Rivera is correct that temporal proximity may give rise to a
suggestion of retaliation, that suggestion is not necessarily conclusive.
An employee ultimately bears the burden of showing pretext, sufficient to
survive summary judgment. See Hodgens v. General Dynamics Corp., 144 F.3d
151, 170 (1st Cir. 1998). Here,
the circumstantial fact of temporal
proximity is weakened considerably by Rivera’s history of crude behavior
and the multiple disciplinary measures that Sprint took against her. It is
pertinent to note that Sprint began to receive complaints about Rivera
from as early as 2002, five years before Rodríguez started uttering the
alleged lewd comments to Rivera. While several of the warnings present in
her file were issued by her alleged harasser, Sprint has propped up the
record with abundant evidence reflecting that such actions were justified.
Furthermore, Sprint has provided an internal company e-mail dated November
27, 2007 evincing that it was already considering firing Rivera for her
behavior
before
she
filed
her
grievance
via
the
Ethics
Helpline.
Accordingly, the Court finds that in the instant case temporal proximity
alone is not probative of retaliation by Sprint.
Another
weaknesses,
avenue
for
Rivera
implausibilities,
to
show
pretext
inconsistencies,
is
through
incoherencies,
“such
or
Civil No. 09-1813 (PG)
Page 31
contradictions in the employer's proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of
credence and [with or without the additional evidence and inferences
properly drawn therefrom] infer that the employer did not act for the
asserted non-discriminatory reasons.” Billings v. Town of Grafton, 515
F.3d 39, 55-56 (1st Cir. 2008).
Rivera attempts to do so by claiming that Eaves and Dávila proffered
contradicting reasons for terminating her employment. She maintains that
on February 29, 2008, when she was dismissed, Eaves told her that it was
due to her alleged mistreatment of a customer’s wife. Later, Rivera argues
Eaves changed her story and claimed that she was dismissed for having
mistreated an employee. In support of her assertion, Rivera cites to
deposition testimony from Eaves where she allegedly stumbled and switched
stories. However, upon review of the deposition’s transcript, it becomes
clear that Eaves testified that she took into account both incidents in
her decision to dismiss Rivera. Thus, Rivera’s attempt to demonstrate
pretext through Eaves’ testimony fails.
Next, Rivera engages in a broad reaching attack challenging the
credibility
of
the
complaints
made
against
her,
classifying
them
as
frivolous and fabricated by Sprint to protect Rodríguez and justify her
dismissal. In weighing whether her allegations are sufficient to establish
a finding of pretext, the Court notes that the issue is not whether
Sprint’s
reasons
to
decisionmakers-Eaves
fire
and
Rivera
were
real,
Dávila—reasonably
but
believed
merely
them
whether
to
be
the
real.
Mulero-Rodríguez, 98 F.3d at 674. In this case, Sprint’s proffered reasons
for terminating Rivera find ample support on the record, via deposition
testimony, affidavits and records of interviews of Sprint employees who
worked with Rivera. Moreover, much of the evidence present in the record
is the product of investigations carried out by Sprint which determined
that Rivera had indeed mistreated employees and customers. Rivera has
countered this overwhelming evidence by challenging the veracity of many
of the statements made by her fellow employees and customers against her,
but
she
has
provided
little
evidence
that
Eaves
and
Dávila
did
not
actually find them to be truthful. Other than her self-serving assertions
present in an unsworn statement executed after the filing of Sprint’s
motion for summary judgment, the record is entirely devoid of evidence
Civil No. 09-1813 (PG)
Page 32
supporting Rivera’s claim of fabrication. See Medina-Muñoz, 896 F.2d at 8
(Even in employment discrimination cases where elusive concepts such as
motive or intent are at issue, summary judgment is compelled if the nonmoving
party
inferences,
rests
and
merely
upon
unsupported
conclusory
speculation);
allegations,
and
Román,
604
improbable
F.3d
at
40
(Courts need not credit inferences that rely on tenuous insinuation).
Accordingly, the Court finds that Rivera has not met her burden in
establishing pretext, and thus her retaliation claim stemming from her
dismissal must be DISMISSED with PREJUDICE. However, inasmuch as Rivera
has made a plausible claim of retaliation arising from her transfer to
Fajardo in 2007, and given that Sprint has not addressed this claim, the
same is left undisturbed by this opinion and order.
C. State Law Claims
i.
Laws No. 100, 69 and 17
In its motion for summary judgment, Sprint invites the Court to
dismiss the state law claims advanced by Rivera. As the Court has only
partially
dismissed
Rivera’s
claims
under
federal
law,
it
declines
Sprint’s request and only dismisses these claims in part, as outlined
below.
Laws No. 100, 69 and 17 serve “virtually identical purposes and
outlaw
virtually
identical
behaviors.”
Miró
Martínez
v.
Blanco
Vélez
Store, Inc., 393 F.Supp.2d 108, 114 (D.P.R. 2005). Law 100 prohibits
general discrimination in the workplace by reason of age, race, color,
sex, social or national origin, social status, and political or religious
beliefs. Delgado Zayas v. Hosp. Int. Med. Avanzada, 137 P.R. Dec. 643
(1994). The Supreme Court of Puerto Rico has held that sexual harassment
constitutes a kind of sexual discrimination shunned by Law 100. Id.
Law 17 and Law 69 represent more specific prohibitions on conduct
already
proscribed
legislative
scheme
by
Law
to
100
further
and
all
the
three
statutes
public
policy
form
a
against
single
gender
discrimination. See Suárez Ruiz v. Figueroa Colón, 145 P.R. Dec 142, 14849 (1998). Law 69, on its part, specifically prohibits discrimination on
the
basis
of
gender,
and
this
Court
has
held
that
this
prohibition
overlaps with Law 17’s specific prohibition against sexual harassment in
the workplace. Miró Martínez, 393 F.Supp.2d at 114. Courts have also held
Civil No. 09-1813 (PG)
Page 33
that Law 17 conforms to the hostile work environment requirements of Title
VII. See García v. V. Suárez & Co., 288 F.Supp.2d 148, 161 (D.P.R. 2003);
and Afanador Irizarry v. Roger Electric Co., Inc., 2002 TSPR 56, 156
D.P.R. 651. The statute holds employers accountable for their own acts of
sexual harassment and for those of their agents or supervisors, regardless
of whether the acts that gave rise to the claim were authorized or
prohibited by the employers. Id.
In the present case, Rivera's Title VII hostile work environment
claim survives Sprint’s motion for summary judgment. Consequently, the
Court concludes that her hostile work environment-based claims under Laws
17, 69, and 100 also withstand summary disposition. The Court, therefore,
DENIES Sprint’s motion for summary judgment on Rivera's hostile work
environment claim under Puerto Rico law.
Conversely, Rivera’s state law retaliation claims stemming from her
dismissal do not withstand summary judgment. Law 17 protects an employee
against
retaliatory
action
by
an
employer
due
to
an
employee's
participation in the lodging or investigation of a sexual harassment
complaint. See P.R. LAWS ANN. tit. 29, § 155h; Campos-Orrego v. Rivera, 175
F.3d
89,
95,
n.5
(1st
Cir.
1999);
Matos
Ortiz
v.
Puerto
Rico,
103
F.Supp.2d 59, 63 (D.P.R. 2000) (noting Law 17 supports sexual harassment
and retaliation claims). Law 69 makes it unlawful for an employer “to
dismiss or discriminate against any employee or participant who files a
complaint
or
charge,
or
is
opposed
to
discriminatory
practices,
or
participates in an investigation or suit for discriminatory practices
against the employer.” P.R. LAWS ANN. tit. 29, § 1340; Rivera v. Johnson &
Johnson, 436 F.Supp.2d 316, 326 (D.P.R. 2006). In this case, the Court
concluded that Rivera was unable to create a triable issue surrounding the
pretext element of her retaliation claim under Title VII, stemming from
her dismissal from Sprint. Likewise, her analogous claims under Puerto
Rico law must also be DISMISSED with PREJUDICE.
However, her claim of retaliation due to her transfer to the Fajardo
Store survives summary disposition. As such, the analogous claims under
Puerto Rico Laws No. 69 and 17 survive summary judgment as well.
Accordingly, the Court GRANTS in part and DENIES in part Sprint’s
request to dismiss Rivera’s claims under Laws 100, 69 and 17.
ii.
Law 80
Civil No. 09-1813 (PG)
Law
80
provides
Page 34
a
remedy
in
the
event
of
employee
termination
without just cause. See Hoyos v. Telecorp Communications, Inc., 488 F.3d
1, 6 (1st Cir. 2007); Álvarez–Fonseca v. Pepsi Cola of P.R. Bottling, Co.,
152 F.3d 17, 28 (1st Cir. 1998). Under Law 80, once an employee proves
that he or she was discharged and alleges that his or her dismissal was
unjustified, his or her employer must establish by a preponderance of the
evidence that the discharge was for good cause. Good cause may include an
employee's improper and disorderly conduct, negligent attitudes toward her
work, and violations of the employer's policies. Id. The employer bears
the ultimate burden to prove that it had just cause to terminate the
employee. See P.R. LAWS ANN. tit. 29, § 185k; Álvarez-Fonseca, 152 F.3d at
28.
In
this
case,
Sprint
was
able
to
establish
a
legitimate,
non-
discriminatory reason for terminating Rivera’s employment. Rivera was not
able to create a triable issue of fact regarding whether the multiple
disciplinary measures taken against her were a pretext designed to mask
Sprint’s retaliatory animus. Sprint has therefore demonstrated just cause
under Law 80. Consequently, Rivera’s claims arising therefrom are hereby
DISMISSED with PREJUDICE.
iii. Law 115
Law 115 states that an employer may not “discharge, threaten, or
discriminate
against
an
employee
regarding
the
terms,
conditions,
compensation, location, benefits or privileges of the employment should
the employee offer or attempt to offer, verbally or in writing, any
testimony, expression or information before a legislative, administrative
or judicial forum in Puerto Rico.” P.R. LAWS. ANN. tit. 29, § 194a(a).
Rivera
has
failed
to
produce
any
evidence
that
she
offered
or
attempted to offer testimony or information either to a legislative,
administrative or judicial forum in Puerto Rico, before her dismissal.
Hence, Sprint is entitled to summary judgment on Rivera’s Law 115 claims,
which are hereby DISMISSED with PREJUDICE.
IV.
Conclusion
For the reasons expounded above, the Court reaches the following
conclusions. First, Sprint’s motion for summary judgment as to Rivera’s
Civil No. 09-1813 (PG)
Page 35
hostile work environment claims under Title VII and related Puerto Rico
laws is DENIED.
Second, Sprint’s
request for summary judgment as to
Rivera’s claim of retaliation stemming from her dismissal under Title VII
and related Puerto Rico laws is GRANTED. However, said request is DENIED
as it concerns Rivera’s claim of retaliation arising from her transfer to
Fajardo, under both Title VII and related Puerto
Rico laws.
Rivera’s
are
claims
under
both
Law
80
and
Law
115
Lastly,
DISMISSED
PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, January 5, 2012.
s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
with
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