Gonzalez-Santos et al v. Torres-Maldonado et al
Filing
271
OPINION AND ORDER DENYING 97 motion for summary judgment; GRANTING IN PART AND DENYING IN PART 154 motion for summary judgment; GRANTING 202 motion for summary judgment; ADOPTING 258 Report and Recommendation. All claims against Chartis are DISMISSED with prejudice. Plaintiffs Lugo's and Gonzalez's Law 115 claims against defendants Torres and Cruz are DISMISSED with prejudice. Gonzalez's hostile environment claims against the Hospital, Liberty and Torres remain. Signed by Judge Francisco A. Besosa on 03/14/2012. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROSA ANGELA GONZALEZ-SANTOS, et
al.,
Plaintiffs,
CIVIL NO. 09-1850 (FAB)
v.
ANGEL G. TORRES-MALDONADO, et
al.,
Defendants.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is the Report and Recommendation (“R&R”),
(Docket No. 258), regarding plaintiffs’ and defendants’ cross
motions for summary judgment (Docket Nos. 97, 154, and 202) under
Federal
Rule
of
Civil
Procedure
56.
Having
considered
the
magistrate judge’s recommendations, defendants’ objections and
response to plaintiffs’ objections (Docket Nos. 262 & 267), and
plaintiffs’ objections (Docket No. 263), the Court ADOPTS the R&R
as the opinion of the Court.
1
Elizabeth Gray, a second-year student at the University of
New Hampshire School of Law, assisted in the preparation of this
Opinion and Order.
Civil No. 09-1850 (FAB)
2
DISCUSSION
I.
Background
A.
Procedural Background
Plaintiffs Rosa Angela Gonzalez-Santos (“Gonzalez”) and
Brenda Lugo-Caraballo (“Lugo”) (collectively, “plaintiffs”) brought
a
workplace
sexual
harassment
and
retaliation
action
against
defendants Instituto Medico del Norte, Inc., d/b/a Hospital Wilma
N. Vazquez (“the Hospital”), Angel Torres-Maldonado (“Torres”) and
his conjugal partnership, Luis Cruz-Martinez (“Cruz”) and his
conjugal partnership, Aymette Garcia (“Garcia”) and her conjugal
partnership,
Jose
Pabon-Quiñones
partnership,
Eduarda
Pabon,
(“Pabon”)
Enrique
and
Vazquez,
his
Liberty
conjugal
Mutual
Insurance Corp. (“Liberty”), (collectively, “Hospital defendants”),
and Chartis Insurance Company-Puerto Rico (“Chartis”), formerly
known
as
American
International
Nos. 258, p. 1 & 108.)
Insurance
Company.
(Docket
The plaintiffs sued the defendants pursuant
to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., the Family and Medical Leave Act (“FMLA”), as
amended, 29 U.S.C.
§ 2601 et seq., and assorted Puerto Rico laws.
(Docket Nos. 108 & 258, p. 1.)
On December 21, 2010, defendants filed a motion to
dismiss pursuant to Rule 12(b)(6). (Docket No. 64.) Subsequent to
that filing, plaintiffs filed their fifth amended complaint on
March 31, 2011.
(Docket No. 108.)
Pursuant to a referral order
Civil No. 09-1850 (FAB)
3
issued by the Court, Magistrate Judge McGiverin filed an R&R which
GRANTED IN PART and DENIED IN PART the defendants’ motion to
dismiss.
(See Docket Nos. 39 & 203.)
On September 28, 2011, this
Court ADOPTED IN PART and REJECTED IN PART the magistrate judge’s
findings. (Docket No. 244, p. 37.) The following claims remained:
1)
Lugo’s
Title
VII
retaliation
claims,
2)
Lugo’s
Law
115
retaliation claims, 3) Gonzalez’s Title VII claims, 4) Gonzalez’s
claims under Puerto Rico Law, and 5) Gonzalez’s Law 115 retaliation
claims.
Id.
While
the
motion
to
dismiss
was
still
pending,
plaintiffs, the Hospital defendants, and Chartis each filed motions
for summary judgment. (Docket Nos. 97, 154, and 202.) Oppositions
have been filed for each motion.
214.)
(Docket Nos. 118, 156, 196, and
On January 20, 2012, pursuant to a referral order issued by
the Court, Magistrate Judge McGiverin filed an R&R, recommending
that defendant Chartis’s motion for summary judgment be GRANTED,
plaintiffs’ motion for summary judgment be DENIED, and the Hospital
defendants’
motion
for
summary
judgment
be
GRANTED
IN
PART.
(Docket No. 258.)
On February 9, 2012, the Hospital defendants filed an
objection to the R&R.
(Docket No. 262.)
The plaintiffs filed
their own objection on February 10, 2012.
Subsequently,
the
Hospital
defendants
filed
(Docket No. 263.)
a
reply
to
the
plaintiffs’ objections on February 23, 2012. (Docket No. 267.) On
Civil No. 09-1850 (FAB)
4
February 28, 2012, the Hospital defendants filed a motion to join
their objection to the R&R and the reply to plaintiffs’ objections.
(Docket No. 268.)
The Court granted the motion for joinder on
February 29, 2012.
(Docket No. 269.)
B.
Factual Background
1.
Gonzalez’s First Complaint
Plaintiff Gonzalez began working for the Hospital as
an Office Clerk in the Imaging Center on August 12, 2002.
Nos. 97-1, ¶ 3 & 154-1, ¶ 2.)
received
and
signed
the
(Docket
On August 13, 2002, Gonzalez
Hospital’s
sexual
harassment
policy.
(Docket Nos. 97-1, ¶ 1 & 154-1, ¶ 3.)
The policy provided a
procedure
and
for
filing,
harassment complaints.
investigating,
resolving
sexual
(Docket Nos. 97-1, ¶ 2 & 154-1, ¶ 4.)
In
October 2006, defendant Torres began working at the Hospital as the
Director of the Imaging Center.
¶ 5.)
(Docket Nos. 97-1, ¶ 4 & 154-1,
After just a month of employment, Gonzalez alleges the first
incidents of harassment occurred.
154-1, ¶ 6.)
(Docket Nos. 97-16, pp. 1-2 &
Gonzalez claims that on separate occasions around
November 16, 2006, Torres called her to his office to perform work
and then he 1) asked her to dance, 2) inquired if she was happily
married, 3) said they could escape together, 4) asked if she was
going to wear shorts to the company baseball game, and 5) said he
wanted to kiss her.
(Docket Nos. 97-16, pp. 1-2 & 154-1, ¶ 6.)
On
November 22, 2006, Gonzalez told Cruz, the Supervisor of the
Civil No. 09-1850 (FAB)
5
Radiology Department, about the alleged incident with Torres and
informed him that she had written down an account of the event.
(Docket Nos. 97-1, ¶ 5 & 154-1, ¶ 9.)
On November 30, 2006, Human
Resources (“HR”) Manager Garcia met with Cruz after she heard of
rumors about a situation involving Torres and a female employee.
(Docket Nos. 97-1, ¶ 13 & 154-1, ¶ 10.)
Also on that day,
following the meeting with Cruz, Garcia met individually with
Torres and Gonzalez.
14.)
(Docket Nos. 97-1, ¶¶ 14, 15 & 154-1, ¶¶ 11,
On November 30, 2006, Gonzalez filed a sexual harassment
complaint against Torres on a form provided by the hospital – a
“Report of Inappropriate Harassment.”
(Docket Nos. 97-1, ¶ 6 &
154-1, ¶ 12.) On December 1, 2006, Gonzalez submitted a detailed
written account of her allegations to Garcia.
(Docket No. 154-1,
¶¶ 15, 16.) Gonzalez remained in the same department with Torres
after the investigation was concluded.
(Docket Nos. 97-1, ¶ 18 &
154-1, ¶ 26.)
2.
Gonzalez’s Second Complaint
On April 8, 2008, Gonzalez sent the HR department a
memorandum alleging incidents of harassment and retaliation that
had occurred since her initial complaint in November 2006. (Docket
Nos. 97-1, ¶ 22 & 154-1, ¶ 41.)
In the memorandum, Gonzalez
claimed that Torres would shout, use improper gestures, and act in
an aggressive manner when assigning her work.
p. 1.)
(Docket No. 97-29,
She also complained that she received written and verbal
Civil No. 09-1850 (FAB)
6
warnings for mistakes which were not hers.
Id.
Gonzalez alleged
that three specific incidents of improper behavior had occurred on
February 12, 2008, February 19, 2008, and March 4, 2008.
No. 154-1, ¶ 41.)
(Docket
The HR department conducted an investigation
into all three of the alleged events.
Id. at ¶ 42.
Gonzalez
claimed that on the February dates she was unfairly singled out and
disciplined
by
Torres.
(Docket
No.
97-29,
p.
1.)
The
investigation revealed that the February 12, 2008 allegation was in
reference
to
a
memorandum
that
was
department and not just to Gonzalez.
addressed
to
the
entire
(Docket No. 154-1, ¶ 43.)
The HR department could not find evidence of the February 19, 2008
incident.
Id. at ¶ 44.
The March 4, 2008 incident allegedly occurred while
Gonzalez underwent a pituitary MRI.
Id. at ¶ 45.
Gonzalez claimed
that the MRI technician initially only requested that she remove
all metal objects from her person and allowed her to remain
clothed.
(Docket
No.
97-29,
p.
2.)
Her
letter
to
the
HR
department, however, provides that after the study had commenced,
the technologist informed Gonzalez that her shirt and underwear had
to be removed.
Id.
Furthermore, the technologist informed her
that Torres was conducting the study. Id. Gonzalez indicated that
she became “anxious, nervous [sic] anguished” when she discovered
that Torres was in the room.
Id.
Gonzalez did not leave the MRI,
however, after being notified that Torres was present.
(Docket
Civil No. 09-1850 (FAB)
No. 154-1, ¶ 46.)
7
Gonzalez is unaware if Torres actually saw her
undressed. Id. Torres explained to Gonzalez that he performed the
MRI to “make sure that [Gonzalez] was in adequate conditions for
work.”
(Docket 97-29, p. 2.)
3.
Gonzalez’s Termination
On October 13, 2010, Gonzalez was deposed by the
defendants. (Docket No. 154-1, ¶ 59.) At the deposition, Gonzalez
brought documents in support of her complaint which included the
hospital records of various patients.
Id.
Gonzalez admitted that
she had used her employee password to obtain the records which
contained confidential information.
Id. at ¶¶ 59, 60.
Gonzalez
also admitted that she had obtained personal information relating
to Torres and Cruz and had given their information to a private
investigator.
Id. at ¶ 61.
As a result of her actions, Gonzalez
was terminated on November 10, 2010.
4.
Id. at ¶ 62.
General Complaints Regarding Torres
Plaintiffs’
co-workers
have
provided
regarding Torres’s behavior in the workplace.
observed Torres using foul language at work.
¶ 33 & 154-1, ¶¶ 72, 73.)
testimony
Employees have
(Docket Nos. 97-1,
Plaintiff Lugo testified that Torres
referred to another female employee as an “asshole and fucker.”
(Docket No. 97-41, ¶ 10.)
Co-worker Joshina Gines-Bruno (“Gines”)
claimed that she observed Torres staring inappropriately at women
when they passed by, “look[ing] at them up and down.”
(Docket
Civil No. 09-1850 (FAB)
No. 97-43, ¶ 16.)
8
Gines also stated that she observed Gonzalez
leave Torres’s office in tears.
Id. at ¶ 9.
Both male and female
employees were required to notify Torres if they had to use the
bathroom.
(Docket Nos. 97-1, ¶ 34 & 154-1, ¶ 98.)
In 2006, Torres organized a holiday gift exchange
for the department involving gifts of a sexual nature.
No. 98-4, ¶ 41.)
(Docket
Co-worker Gines stated that gifts included g-
strings, cards depicting men and women dressed in their underwear,
a penis-shaped Eskimo, condoms, and whips.
¶ 16.)
(Docket No. 97-43,
In testimony taken at her deposition, Gonzalez explains
that she was out to lunch when one of her co-workers requested that
they stop at a Condom World store so he could pick up gifts for the
exchange. (Docket No. 154-16, pp. 2-3.) HR Manager Garcia ordered
Torres to cancel plans to conduct a second gift exchange which
would also have included a sexual theme.
(Docket No. 98-3, pp. 2-
3.)
5.
Incidents Involving Lugo
On June 26, 2007, Torres gave plaintiff Lugo a
written
warning
June 22, 2007.
for
an
incident
which
(Docket No. 154-1, ¶ 64.)
disciplinary memorandum.
Id.
allegedly
occurred
on
Lugo refused to sign the
Lugo wrote letters to co-defendant
Pabon, President of the Hospital, to complain of Torres’s conduct.
Id. at ¶¶ 65, 66.
Lugo first met with HR Manager Garcia on
April 10, 2008, alleging several incidents involving Torres and
Civil No. 09-1850 (FAB)
Cruz.
Id. at ¶ 67.
9
On April 11, 2008, Lugo sent a letter to the
HR department complaining of sexual harassment at the hands of
Torres.
(Docket Nos. 97-1, ¶ 23 & 154-1, ¶ 47.)
On April 18, 2008, after an investigation by the
Hospital and the HR department, Torres was fired because of various
complaints and conduct that could be considered improper.
Nos. 97-1, ¶ 25 & 154-1, ¶¶ 48, 49.)
(Docket
Nine months later, on
January 9, 2009, Lugo’s employment was terminated as a result of
the closing of the department where she worked due to a financial
decline.
(Docket No. 154-1, ¶¶ 80-81.)
Id. at ¶ 81.
During her
tenure with the Hospital, Lugo’s salary never decreased, nor was
she demoted.
Id. at ¶ 78.
complaint of retaliation.
On January 29, 2009, Lugo filed an EEOC
Id. at ¶ 82.
The complaint was based on
an incident that occurred on March 28, 2008, when Torres accused
her of working with a false medical certificate.
Id. at ¶ 83.
In
August, the Hospital informed Lugo that the department would reopen
and offered her a position.
Id. at ¶ 84.
work at the Hospital, however.
Lugo did not return to
(Docket No. 154-26, p. 21.)
She
had already found employment elsewhere receiving the same pay and
benefits as she had received at the Hospital.
(Docket No. 154-1,
¶ 84.)
6.
Facts Regarding Chartis Insurance Coverage
Chartis served as the Hospital’s insurer.
No. 202-1, ¶ 13.)
(Docket
Chartis issued a “Directors, Officers and
Civil No. 09-1850 (FAB)
10
Private Company Liability Insurance Policy, including Employment
Practices and Securities Liability” covering the Hospital over a
period spanning August 31, 2006 through August 31, 2007.
Id.
The
policy was a “claims-made” insurance policy, meaning that it only
covered claims made during the coverage period which were reported
by the insured during an appropriate period established by the
policy’s terms.
Id.; (Docket No. 202-3.)
Chartis was served with process.
On April 1, 2011,
(Docket No. 202-1, ¶ 3.)
That
was the first time that Chartis was notified that there was a claim
against the Hospital.
II.
Id. at ¶¶ 22, 23.
Standards
A.
Standard Under 28 U.S.C. § 636(b)(1)
A district court may refer, inter alia, “motions for
summary
judgment”
recommendation.
to
a
magistrate
judge
for
a
report
and
Loc. Rule 72(a)(9); see 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). Any party adversely affected by the report and
recommendation may file written objections within fourteen days of
being served with the magistrate judge’s report.
§ 636(b)(1)(C); Loc. Rule 72(d).
See 28 U.S.C.
A party that files a timely
objection is entitled to a de novo determination of “those portions
of the report or specified proposed findings or recommendations to
which specific objection is made.” Sylva v. Culebra Dive Shop, 389
F.Supp.2d 189, 191 (D.P.R. 2005) (citing United States v. Raddatz,
447 U.S. 667, 673 (1980)).
Failure to comply with this rule
Civil No. 09-1850 (FAB)
11
precludes further review. See Davet v. Maccarone, 973 F.2d 22, 3031 (1st Cir. 1992) (“Failure to raise objections to the Report and
Recommendation waives the party’s right to review in the district
court . . . .”).
In conducting its review, the court is free to
“accept, reject, or modify, in whole or in part, the findings or
recommendations
made
by
the
magistrate
judge.”
28
U.S.C.
§ 636(b)(1)(C); Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 3334 (1st Cir. 2008).
Furthermore, a court may accept those parts of
the report and recommendation to which the parties do not object.
See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R.
2005) (citing
Lacedra
v. Donald
W.
Wyatt
Det.
Facility, 334
F.Supp.2d 114, 126 (D.R.I. 2004)).
B.
Federal Rule of Civil Procedure 56 Standard and Local
Rule 56
Summary judgment is appropriate when a “movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Loc. Rule 56.
Fed.R.Civ.P. 56(a);
In order for a factual controversy to prevent
summary judgment, the contested facts must be “material” and the
dispute must be “genuine.”
U.S. 242, 248 (1986).
the
potential
governing law.”
to
“Material” means that a contested fact has
“affect
Id.
Anderson v. Liberty Lobby, Inc., 477
the
outcome
of
the
suit
under
the
The dispute is “genuine” when a reasonable
jury could return a verdict for the nonmoving party based on the
evidence.
See id.
The party moving for summary judgment has the
Civil No. 09-1850 (FAB)
12
initial burden of “demonstrat[ing] the absence of a genuine issue
of material fact.”
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323
The party must identify “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any’” which support its motion.
Id.
Once a properly supported motion has been presented, the
burden shifts to the non-moving party “to demonstrate that a trier
of fact reasonably could find in [its] favor.”
Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(internal citation omitted).
It is well settled that “[t]he mere
existence of a scintilla of evidence” is insufficient to defeat a
properly supported motion for summary judgment. Anderson, 477 U.S.
at 252.
It is therefore necessary that “a party opposing summary
judgment must ‘present definite, competent evidence to rebut the
motion.’”
Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581
(1st Cir. 1994) (internal citation omitted).
In making this assessment, the Court “must view the
entire record in the light most hospitable to the party opposing
summary judgment, indulging in all reasonable inferences in that
party’s favor.”
1990).
The
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
Court
does
not,
however,
determinations or weigh the evidence.”
“make
credibility
Talavera-Ibarrondo v.
Municipality of San Sebastian, No. 09-1942, 2011 U.S. Dist. LEXIS
Civil No. 09-1850 (FAB)
13
63929, at *9 (D.P.R. June 16, 2011) (citing Anderson, 477 U.S.
at
255).
The
Court
may
safely
ignore,
however,
“conclusory
allegations, improbable inferences, and unsupported speculation.”
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).
The First Circuit Court of Appeals has “repeatedly . . .
emphasized the importance of local rules similar to Local Rule 56
[of the District of Puerto Rico].”
Hernandez v. Phillip Morris
USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007).
Rules such as Local
Rule 56 “are designed to function as a means of ‘focusing a
district court’s attention on what is - and what is not - genuinely
controverted.’”
Id.
427 (1st Cir. 2006)).
(quoting Calvi v. Knox County, 470 F.3d 422,
Local Rule 56 imposes guidelines for both
the movant and the party opposing summary judgment.
Loc. Rule 56.
A party moving for summary judgment must submit factual assertions
in “a separate, short, and concise statement of material facts, set
forth in numbered paragraphs.”
Loc. Rule 56(b).
A party opposing
a motion for summary judgment must “admit, deny, or qualify the
facts supporting the motion for summary judgment by reference to
each numbered paragraph of the moving party’s statement of facts.”
Loc. Rule 56(c).
Facts which are properly supported “shall be
deemed admitted unless properly controverted.”
Loc. Rule 56(e);
P.R. Am. Ins. Co. v. Rivera-Vazquez, 603 F.3d 125, 130 (1st Cir.
2010).
Due to the importance of this function to the summary
Civil No. 09-1850 (FAB)
14
judgment process, “litigants ignore [those rules] at their peril.”
Hernandez, 486 F.3d at 7.
C.
R&R Findings
Defendant Chartis moved for summary judgment on all
claims.
(Docket No. 202.)
The magistrate judge determined that
the Hospital defendants had a “claims-made” insurance policy with
the company.
(Docket No. 258, p. 12.)
The policy only covered
claims made during the coverage period which were reported by the
insured during an appropriate period established by the policy’s
terms.
Id. at 12-13.
The magistrate judge determined that the
Hospital defendants did not notify Chartis of the plaintiffs’
claims during the designated time period.
Id. at 13.
Thus, the
magistrate judge held that Chartis is not liable for the claims and
he
recommended
GRANTED.
that
Chartis’
motion
for
summary
judgment
be
Id.
Co-plaintiff Gonzalez moved for partial summary judgment
for her discrimination claims under Title VII and Puerto Rico law.
(Docket No. 97.)
estopped
from
Gonzalez argued that:
arguing
that
Torres’s
1) the Hospital was
conduct
was
not
sexual
harassment, 2) summary judgment was appropriate on her hostile work
environment claims, and 3) summary judgment was appropriate on a
claim that the Hospital breached its Puerto Rico Law 17 duties.
(Docket No. 258, pp. 13-14.)
The magistrate judge found that
judicial estoppel was not implicated by the legal proceedings. Id.
Civil No. 09-1850 (FAB)
at 14.
15
The magistrate judge also found that there were genuine
disputes of material facts relating to Gonzalez’s Title VII and
Puerto Rico law hostile work environment claims.
Id. at 18.
Lastly, the magistrate judge found that there was a genuine dispute
of material fact as to whether Gonzalez was subjected to sexual
harassment, and therefore, a jury could find that the Hospital did
not breach its duty under Law 17.
Id.
Thus, the magistrate judge
recommended that Gonzalez’s motion for summary judgment be DENIED.
Id.
The Hospital defendants moved for summary judgment on all
of the plaintiffs’ claims.
(Docket No. 154, p. 2.)
The Hospital
defendants argued that: 1) Gonzalez was unable to establish a prima
facie claim of hostile work environment, 2) they were not liable
based upon the Faragher/Ellerth defense, and 3) the factual record
did not support Gonzalez’s nor Lugo’s retaliation claims.
No. 154.)
(Docket
The magistrate judge found that there was a genuine
dispute of material fact as to whether Gonzalez established a prima
facie hostile work environment claim.
(Docket No. 258, p. 19.)
The magistrate judge also found that there was a genuine dispute of
material fact as to whether both elements of the Faragher/Ellerth
defense were satisfied.
Id. at 20.
The magistrate judge found,
however, that Gonzalez had not established that she suffered an
adverse employment action for her Title VII and Law 115 retaliation
claims.
Id. at 23.
The magistrate judge also found that Lugo had
Civil No. 09-1850 (FAB)
16
not established a prima facie case of retaliation.
Id.
Thus, the
magistrate judge recommended that summary judgment on Gonzalez’s
and Lugo’s Title VII retaliation claims and Gonzalez’s Law 115
claims
GRANTED.
be
recommended
that
Id.
summary
Conversely,
judgment
environment claims be DENIED.
on
the
magistrate
Gonzalez’s
judge
hostile
work
Id.
III. Legal Analysis
A.
Defendants’ Objections
The Hospital defendants object to the magistrate judge’s
recommendation
denying
their
1)
hostile
work
Gonzalez’s
Faragher/Ellerth defense.
motion
for
environment
summary
claims
judgment
and
2)
on
their
(Docket No. 262, pp. 5, 20.)
The
Hospital defendants also object to certain factual determinations
made
by
the
magistrate
judge
in
his
recommendation
plaintiff Gonzalez’s hostile environment claim.
to
Id. at 8-14.
deny
The
Court addresses each in turn.
1.
Gonzalez’s Hostile Work Environment Claims
The Hospital defendants specifically object to the
magistrate judge’s finding that Gonzalez was able to establish a
prima facie case of hostile work environment.
pp. 2, 5.)
(Docket No. 262,
The Hospital defendants also argue that 1) any alleged
harassment was not based on sex and 2) the alleged harassment was
not sufficiently severe or pervasive so as to alter the conditions
of Gonzalez’s employment.
(Docket No. 262.)
Civil No. 09-1850 (FAB)
17
In order to state a prima facie case of hostile work
environment under Title VII, a plaintiff must prove the following:
“(1) that she (or he) is a member of a protected class; (2) that
she (or he) was subjected to unwelcome 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
plaintiff’s 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 the victim in fact did perceive it to be so;
and
(6)
that
established.”
some
basis
for
employer
liability
has
been
Agusty-Reyes v. Dep’t. of Educ. of P.R., 601 F.3d
45, 53 n.6 (1st Cir. 2010) (internal citations omitted).
The First Circuit Court of Appeals has explained
that the finding of a hostile work environment “does not depend on
any particular kind of conduct” and “that [t]here is no precise
formula
for
establishing
sufficiently
egregious
conditions.”
Perez-Cordero v. Wal-Mart Puerto Rico, 656 F. 3d 19, 29 (1st Cir.
2011).
establish
“When harassment is motivated by a failed attempt to
a
romantic
relationship,
‘the
victim’s
sex
inextricably linked to the harasser’s decision to harass.’”
is
Id.
at 28 (quoting Forrest v. Brinker Int’l. Payroll Co., 511 F.3d 225,
229 (1st Cir. 2007).
circumstances,
A court must look at the “totality of the
including ‘the frequency
of
the discriminatory
Civil No. 09-1850 (FAB)
18
conduct; its severity; whether it is physically threatening or
humiliating,
or
a
mere
offensive
utterance;
and
whether
it
unreasonably interferes with an employee’s work performance.’”
Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st
Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)); see also O’Rourke v. City of Providence, 235 F.3d 713, 729
(1st
Cir.
humiliating,
2001)
(“The
offensive
accumulated
comments
effect
directed
at
of
incidents
women
and
of
work-
sabotaging pranks, taken together, can constitute a hostile work
environment.”).
i.
There is a Genuine Dispute as to Whether
Gonzalez has Established a Prima Facie Case of
Hostile Work Environment
The Court examines the first five elements of
the test together, because the facts taken as a whole indicate that
there was a genuine dispute of material fact as to whether Gonzalez
has established a prima facie case of hostile work environment.
Gonzalez, a member of a protected class as a woman, claims that
around November 16, 2006,2 Torres called her to his office to
2
The Hospital defendants have once again urged the Court not
to consider the alleged discriminatory acts that took place in
November 2006, claiming they are time-barred. (Docket No. 262,
p. 5, fn. 5 & p. 13, fn. 7.) The Court rejected this argument
earlier, finding that it may consider those events because
“[p]rovided that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile environment
may be considered by a court for the purposes of determining
liability.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
117 (2002); (see Docket No. 244.)
Civil No. 09-1850 (FAB)
19
perform work and then he 1) asked her to dance, 2) inquired if she
was happily married, 3) said they could escape together, 4) asked
if she was going to wear shorts to the company baseball game, and
5) said he wanted to kiss her.
1, ¶ 6.)
(Docket Nos. 97-16, pp. 1-2 & 154-
Gonzalez’s written account of the November 2006 incident
indicates that 1) when Torres requested a dance, she replied, “you
are crazy,” and denied his request, 2) on another occasion when
Torres asked her about taking an escapade, she responded that “I am
a married person,” and 3) when Torres asked her for a kiss, she ran
away crying.
(Docket No. 97-16, p. 2.)
Thus, a jury could
rationally find that the alleged harassment was based upon sex
because of Torres’s romantic advances.
See Forrest, 511 F.3d
at 229 (“the prior [failed] relationship would never have occurred
if the victim were not a member of the sex preferred by the
harasser”). Furthermore, Gonzalez’s rejection of Torres’s advances
demonstrates his attention was not welcomed.
See Perez-Cordero,
656 F.3d at 28 (evidence that victim avoided supervisor’s unwanted
attention and “clear and unequivocal rejection” indicated that
harassment was unwarranted).
At least one of the November 2006
advances allegedly occurred in Torres’s office with the door closed
and only he and Gonzalez present.
(Docket No. 97-16, p. 1.)
A co-
worker also stated that she observed Gonzalez leave Torres’s office
in
tears
on
Additionally,
several
Torres
occasions.
organized
(Docket
No.
a sexually-themed
97-43,
¶
holiday
9.)
gift
Civil No. 09-1850 (FAB)
20
exchange for the department where gifts included g-strings, cards
depicting men and women dressed in their underwear, a penis-shaped
Eskimo, condoms, and whips.
¶ 41.)
(Docket Nos. 97-43, ¶ 16 & 98-4,
A jury could rationally find that the harassment was both
severe and pervasive, as well as offensive.
See White v. New
Hampshire Dep’t. of Corrections, 221 F.3d 254, 262 (1st Cir. 2000)
(finding
that
evidence
which
alleged
that
supervisors
“read
pornography in the office [and] . . . used foul language and/or
made sexual jokes or comments in her presence” was relevant to the
plaintiff’s hostile work environment claim).
The
Hospital
defendants
object
to
certain
factual determinations made by the magistrate judge in his R&R
regarding plaintiff Gonzalez’s hostile environment claims. (Docket
No. 262.)
The Hospital defendants object to facts relating to:
1) the gift exchange, 2) the MRI study, 3) allegations of excessive
discipline, and 4) Torres’s use of sexual language.
No.
262,
at
pp.
8-14.)
Specifically,
they
claim
(Docket
that
determinations are not supported by the factual record.
Additionally, they argue that:
department
gift
exchange
the
Id.
1) Gonzalez did not allege the
constituted
sexual
harassment,
and
2) Plaintiff Lugo, and not Gonzalez, made allegations regarding
Torres’s use of vulgar language.
(Docket No. 262, pp. 8, 10.)
At the summary judgment phase, the Court need
not weigh the evidence, because the ultimate determination of the
Civil No. 09-1850 (FAB)
21
issues requires credibility determinations that must be resolved by
a jury at trial.
See Anderson, 477 U.S. at 255 (explaining
“[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge . . . .”); Simas v. First Citizens’
Fed. Credit Union, 170 F.3d 37, 49 (1st Cir. 1999) (noting that
“credibility determinations are for the factfinder at trial, not
for the court at summary judgment”).
While a court is only
required to examine the materials cited by the moving party, “it
may
consider
other
materials
on
the
record.”
Fed.R.Civ.P.
56(c)(3); Loc. Rule 56(e).
Evidence for all four issues is documented on
the record.
(See, e.g., Docket No. 154- 1, ¶¶ 31, 39, 45, 72, 73.)
The Court is free to consider evidence from any part of the record,
including testimony from depositions.
Loc. Rule 56(e).
See Fed.R.Civ.P. 56(c)(3);
Looking at the evidence “in the light most
hospitable to the party opposing summary judgment . . .”, a jury
could rationally find that the aforementioned evidence supports a
finding of a hostile work environment.
See O’Rourke, 235 F.3d
at 729 (“As part of its evaluation, a jury may consider a broad
range of conduct that can contribute to the creation of a hostile
work environment.”).
Civil No. 09-1850 (FAB)
ii.
22
Employer Liability is Established
The
last
element
of
the
hostile
work
environment claim establishes the basis for employer liability.
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
An
employer is liable when the hostile work environment is created by
the victim’s “supervisor with immediate (or successively higher)
authority over the employee.”
Id.
It is undisputed that Torres
was the Director of the department where Gonzalez worked.
(Docket
Nos. 97-1, ¶ 4 & 154-1, ¶ 5.)
Thus, there is a basis of liability
for the Hospital defendants.
See Faragher, 524 U.S. at 807.
Based upon these facts, the Court ADOPTS the
magistrate judge’s finding that there is a genuine dispute as to
whether Gonzalez has established a prima facie case of hostile work
environment, and as a result, the Hospital defendants’ motion for
summary judgment is DENIED.
2.
Faragher/Ellerth Defense
An employer is subject to vicarious liability when
a plaintiff alleges that a supervisor created a hostile work
environment.
Id.
The defendant employer may raise an affirmative
defense to the liability. Id. Under the Faragher/Ellerth defense,
an employer must prove, by a preponderance of the evidence, the
following
two
elements:
“(1)
that
the
employer
exercised
reasonable care to prevent and correct promptly any sexually
harassing
behavior,
and
(2)
that
the
plaintiff
employee
Civil No. 09-1850 (FAB)
unreasonably
failed
to
23
take
advantage
of
any
preventive
or
corrective opportunities provided by the employer or to avoid harm
otherwise.”
Id.
The affirmative defense is only available “when
no tangible employment action is taken . . . .”
Id.
The Supreme
Court has identified “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits” as examples of tangible employment
actions. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761
(1998).
The record does not indicate that a tangible employment
action occurred, so the Hospital defendants are not barred from
raising the defense.
The Court will now determine if there exists
a “genuine dispute as to any material fact” regarding the Hospital
defendants’ Faragher/Ellerth defense.
i.
Fed.R.Civ.P. 56(a).
The Hospital had a Sexual Harassment Policy
In support of the first prong of the defense,
it is uncontested that the Hospital had a sexual harassment policy.
(Docket Nos. 97-1, ¶ 1 & 154-1, ¶ 3.)
The policy provided a
procedure
and
for
filing,
harassment complaints.
investigating,
resolving
sexual
(Docket Nos. 97-1, ¶ 2 & 154-1, ¶ 4.)
Furthermore, both parties agree that Gonzalez was provided with a
copy of the sexual harassment policy, and that she read and signed
the policy.
(Docket Nos. 97-1, ¶ 1 & 154-1, ¶ 3.)
Thus, a jury
could rationally find that the Hospital defendants have satisfied
Civil No. 09-1850 (FAB)
24
the first prong of the affirmative defense as a matter of law.
See
Landrau Romero v. Caribbean Restaurants, Inc., 14 F.Supp.2d 185,
192 (1998) (first prong satisfied where there was no genuine issue
of material fact regarding the fact that defendant had an antiharassment policy); see also Reed v. MBNA Mktg. Sys., 333 F.3d 27,
35 (1st Cir 2003) (employer’s decision to discipline an offending
supervisor
lightly
did
not
show
that
the
employer
“lacked
a
substantial anti-harassment program”).
ii.
There is a Genuine Dispute as to Whether
Gonzalez Unreasonably Failed to Take Advantage
of the Hospital’s Sexual Harassment Policy
In support of the second prong of the defense,
the Hospital defendants claim that Gonzalez failed to file an
official report following each alleged incident subsequent to the
November 2006 incidents.
¶ 41.)
(See Docket Nos. 97-1, ¶ 22 & 154-1,
It is undisputed that in November 2006, Gonzalez filed an
official complaint to the Hospital’s HR department regarding the
first alleged incidents.
The record
also
(Docket Nos. 97-1, ¶ 6 & 154-1, ¶ 12.)
indicates
that
despite
failing to
submit
an
official “Report of Inappropriate Harassment,” Gonzalez wrote a
memorandum to the HR department on April 8, 2008, complaining of
incidents which occurred in the previous two months.
No. 97-29, p. 1.)
(Docket
Thus, a jury could rationally conclude that
Gonzalez was not unreasonable because she made attempts to document
the alleged conduct and report it to the HR department.
See
Civil No. 09-1850 (FAB)
25
Agusty-Reyes, 601 F.3d at 56 (finding that a plaintiff’s efforts to
report her supervisor’s behavior constituted a reasonable attempt
to avoid further harm, despite failing to comply with the formal
complaint procedure).
Based upon these facts, the Court ADOPTS the
magistrate judge’s finding that there is a genuine dispute as to
whether both elements of the Fargher/Ellerth defense are satisfied,
and as a result, the Hospital defendants’ motion for summary
judgment is DENIED.
B.
Plaintiffs’ Objections
The plaintiffs object to the magistrate judge’s use of
the record.
(Docket No. 263.)
The Hospital defendants have filed
a reply to the plaintiffs’ objections, claiming that the plaintiffs
fail to make specific objections to the magistrate judge’s findings
or supply legal reasoning to their arguments, as required under
Federal Rule
of
Civil
Procedure
72(b)
and
Local
Rule
72(d).
(Docket No. 267.)
1.
General Objection
First, the plaintiffs generally object that the
magistrate judge failed to reference certain documents and exhibits
relevant to their claims, and thus relied upon an incomplete source
of facts.
(Docket No. 263, pp. 3-6.)
A party that files a timely
objection is entitled to a de novo determination of “those portions
of the [magistrate judge’s] report or specified proposed findings
Civil No. 09-1850 (FAB)
26
or recommendations to which specific objection is made.”
Sylva,
389 F.Supp.2d at 191 (internal citation omitted) (emphasis added);
see Loc. Rule 72(d); see also Miguelachuli v. FDIC, 799 F.Supp.2d
141, 144 (D.P.R. 2011) (“Hence, the standard of review of a report
and recommendation to which an objection has been filed is de novo
review of those matters properly objected.”) (internal citations
omitted) (emphasis added). When a party fails to object to an R&R
properly, “the district court ha[s] a right to assume that [the
party] agreed to the magistrate judge’s recommendation.” Templeman
v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985).
The
plaintiffs make a general objection to the magistrate judge’s use
of the record, failing to specify what portions of the R&R are
affected.
(Docket No. 263, pp. 3-6.)
Because the plaintiffs fail
to object to the R&R properly, they are not entitled to a review of
the objection.
See
Templeman,
770
F.2d
at 247
(Finding that
district court had right to accept R&R when the plaintiff failed to
raise an objection properly).
2.
Specific Objections
Second, the plaintiffs specifically object to the
magistrate judge’s application of Local Rule 56.
(Docket No. 263,
pp.
that:
10-12.)
The
plaintiffs
expressly
argue
1)
the
magistrate judge failed to identify and clarify which of the
Hospital defendants’ opposing statements (Docket No. 118-1) were
disregarded,
2)
the
plaintiffs
were
prejudiced
because
the
Civil No. 09-1850 (FAB)
27
magistrate judge disregarded the facts included within their reply
motion (Docket No. 133), and 3) the magistrate judge failed to
identify if additional facts proposed by the Hospital defendants in
their reply statement of facts (Docket No. 205-2) were disregarded.
(Docket No. 263, pp. 10-12.)
Parties
must
present
arguments
in
more
than
a
“perfunctory manner, unaccompanied by some effort at developed
argumentation, [or they] are deemed waived.”
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
develop
their
arguments,
merely
stating
without citing any legal authority.
United States v.
Plaintiffs failed to
the
three
objections
(See Docket No. 263, 10-12.)
As a result, the Court considers the plaintiffs’ three specific
objections waived.
See Zannino, 895 F.2d at 17 (“It is not enough
merely to mention a possible argument in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for the
argument, and put flesh on its bones.”).
III. Conclusion
The Court has made an independent examination of the entire
record
in
this
case,
including
the
magistrate
judge’s
recommendations, defendants’ objections and response to plaintiffs’
objections (Docket Nos. 262 & 267), and plaintiffs’ objections
(Docket No. 263), and ADOPTS the magistrate judge’s findings and
recommendations
defendant
as
Chartis’s
the
opinion
motion
for
of
this
summary
Court.
Accordingly,
judgment
is
GRANTED,
Civil No. 09-1850 (FAB)
28
plaintiffs’ motion for partial summary judgment is DENIED, and the
Hospital Defendants’ motion for summary judgment is GRANTED IN PART
AND DENIED IN PART.
All claims against Chartis are DISMISSED with prejudice.
Plaintiffs Lugo’s and Gonzalez’s Law 115 claims against defendants
Torres and Cruz are DISMISSED with prejudice.
Gonzalez’s hostile
environment claims against the Hospital, Liberty and Torres remain.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 14, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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