Eliezer et al v. Caribbean Petroleum Corporation et al

Filing 1377

ORDER re 1283 Motion for Sanctions. The Court GRANTS IN PART and DENIES IN PART Ms. Monserrate's motion for sanctions (Docket No. 1283). The Court rejects Ms. Monserrate's request for revocation of Mr. Salas's pro hac vice admissi on, but finds that sanctions against Mr. Salas are warranted. The Court ORDERS Mr. Salas to pay Ms. Monserrate $1,000 as reasonable attorney's fees, based upon the Court's observation and experience, for bringing the motion. If Mr. S alas objects to the amount fixed for attorney's fees, he may file a motion on or before August 31, 2015. The Court further ORDERS Mr. Salas to complete a continuing legal education course on attorney professionalism and professional conduct on or before February 1, 2016. Mr. Salas shall inform the Court when he has complied with this Order. Signed by Judge Francisco A. Besosa on 08/17/2015. (RRS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ELIEZER CRUZ-APONTE, et al.,
Plaintiffs,
Civil No. 09-2092 (FAB)

v.
CARIBBEAN PETROLEUM CORPORATION,
et al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court is attorney Dora Monserrate-Peñagarícano’s
motion for sanctions against attorney Camilo Salas for an improper
and personally

offensive

comment

Monserrate during a deposition.

that

Mr. Salas

made

(Docket No. 1283.)

to

Ms.

Mr. Salas

responded to Ms. Monserrate’s motion, acknowledging that he made
the comment and that it was improper, but imploring that sanctions
are not warranted because he did not intend to harm or embarrass
Ms. Monserrate.

(Docket No. 1302.)

After carefully considering

the attorneys’ arguments and listening to an audio recording of the
deposition, the Court finds that Mr. Salas committed professional
misconduct and that sanctions are warranted.
I.

BACKGROUND

Ms. Monserrate is counsel for co-defendant Intertek USA, Inc.
(“Intertek”) and Mr. Salas is pro hac vice counsel for plaintiffs
in this class action litigation.

On March 19, 2015, Mr. Salas

deposed former Intertek employee Orlando A. Díaz-Díaz, who Ms.

Civil No. 09-2092 (FAB)

2

Monserrate represented for purposes of the deposition.
No. 1286-1 at pp. 6, 19.

See Docket

Present at the deposition were sixteen

attorneys: Mr. Salas was one of twelve male attorneys, and Ms.
Monserrate was one of four female attorneys.

Id. at pp. 8-10.

About halfway through the day-long deposition, Mr. Salas asked
the

deponent

calculations.

a

question

that

required

him

to

make

some

While the deponent was doing so, the following

exchange took place between Mr. Salas and Ms. Monserrate:
MR. NEVARES:

The air conditioner works.

MS. MONSERRATE:

I don’t know, but it’s hot in here.

MR. SALAS: ¿Tienes calor todavía?1
menopause, I hope.
MS. MONSERRATE:

You’re not getting

That’s on the record.

MR. SALAS: No, no, no, no.
MS. MONSERRATE: You know that a lawyer here got in big
trouble for a comment just like that.
MR. SALAS: Really.
(Docket No. 1283-1 at p. 121.)2

The deponent then answered the

question, and the deposition continued.

1

2

You’re still warm?

In the official stenographic record, these comments appear as
“Discussion off the record.” See Docket No. 1286-1 at p. 146. The
stenographer kept a backup audio recording of the deposition, which
she later used to transcribe this conversation. See Docket No.
1302-1.
The audio recording was provided to the Court.
After
listening to the recording, the Court added the phrase “Tienes
calor todavía?,” which was omitted from the stenographer’s
transcript.

Civil No. 09-2092 (FAB)

3

At the end of the deposition, after the deponent left the
room, Intertek attorney Juan Skirrow made the following statement:
The note for the record I’d like to make is that I asked
the court reporter to preserve the audio that was
recorded today. The court reporter agreed that she would
review the audio and transcribe a relevant portion of the
audio related to a comment that I heard Mr. Salas make to
my co-counsel, Dora Monserrate, during the deposition
today. That comment, in substance, was in response to
Ms. Monserrate’s statement that the room was very hot.
Mr. Salas responded that maybe that was because she was
going through menopause.
(Docket No. 1286-1 at pp. 227-28.)
Mr. Salas responded to Mr. Skirrow’s comment by stating the
following, again on the record:
Let the record reflect that a comment of that nature was,
in fact, made by me.
It was not made with any bad
intent.
As soon as we took a break and I saw that
counsel had been hurt or took the comment improperly, I
tried to apologize to her. She told me that she didn’t
want to talk to me. So that’s what happened. And let me
state for the record that it was an improper comment. I
didn’t mean to harm her in any way.
I’ve tried to
apologize to her. I do apologize to her right now, and
that’s all I can do.
Id. at pp. 228-29.
II.

DISCUSSION

Ms. Monserrate contends that Mr. Salas’s comment, “You’re not
getting menopause, I hope,” was disparaging and discriminatory, and
that it “humiliated, embarrassed, and demeaned” her.
1283 at pp. 3-4.)

(Docket No.

She urges the Court to sanction Mr. Salas by

revoking his pro hac vice admission.

Id. at pp. 9-10.

Civil No. 09-2092 (FAB)

4

“In order to maintain the effective administration of justice
and the integrity of the Court,” Local Rule 83E(a) requires that
attorneys practicing before the Court3 comply with the Model Rules
of Professional Conduct (“Model Rules”), adopted by the American
Bar Association (“ABA”).

Loc. R. 83E(a).

Misconduct by an

attorney in any matter pending before the Court “may be dealt with
directly by the judge in charge of the matter.”

Loc. R. 83E(d).

An order imposing discipline may include suspension, public or
private reprimand, monetary penalties, continuing legal education,
counseling,

or

appropriate.”

“any

other

condition

[that]

the

Court

deems

Loc. R. 83E(c).

The Model Rules instruct attorneys to “demonstrate respect for
the legal system and for those who serve it, including . . . other
lawyers” and to “maintain[] a professional, courteous and civil
attitude toward all persons involved in the legal system.”
Rules of Prof’l Conduct pmbl. ¶¶ 5, 9.

Model

Model Rule 4.4 provides

that an attorney “shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person.”
Id. r. 4.4(a).
misconduct

for

Model Rule 8.4(d) provides that it is professional
an

attorney

to

“engage

in

prejudicial to the administration of justice.”

3

conduct

that

is

Id. r. 8.4(d).

Attorneys admitted pro hac vice for a particular proceeding are
deemed to have conferred disciplinary jurisdiction upon the Court
for any alleged misconduct arising in the course of or in
preparation for that proceeding. Loc. R. 83A(g).

Civil No. 09-2092 (FAB)

5

The Court first discusses whether Mr. Salas’s comment “You’re
not getting menopause, I hope,” violated Model Rule 4.4. Menopause
is “the period in a woman’s life when [permanent cessation of
menstruation] occurs, usually between the ages of 40 and 50.”
Oxford

English

Dictionary

(3d

ed.

http://www.oed.com/view/Entry/116476.

2001),

available

Menopause

is

often

at
a

personal and private subject for a woman, especially because it
implicates

issues

relating

to

a

woman’s

age,

fertility,

psychological state, sexuality, and physical condition.
Mr. Salas insists that he made the comment “out of concern
about Ms. Monserrate’s medical condition.”
22.)

(Docket No. 1302 at p.

He explains that future depositions were scheduled to take

place in the same room and that he knows “that a hot room is a
trigger for hot flashes in women who are going through menopause.”
Id. at pp. 22-23.
The

Court

explanation.

unequivocally
If

Mr. Salas

rejects
was

Mr.

genuinely

Salas’s
concerned

post

hoc

that Ms.

Monserrate had a “medical condition” triggered by the room’s
temperature, then he would have asked Ms. Monserrate in a more
private setting and in a more respectful way whether there was
anything he could do to alleviate her symptoms.

Mr. Salas instead

chose to tell Ms. Monserrate in the presence of fourteen other
attorneys, eleven of whom were male, that he hopes that she is not
menopausal.

Civil No. 09-2092 (FAB)

6

The public nature of Mr. Salas’s comment combined with the
personal and

private

nature

of

menopause

leads

the

Court to

conclude that the comment was made to embarrass Ms. Monserrate and
was not intended to serve any other purpose.

This is a clear

violation of Model Rule 4.4.
The impropriety of Ms. Salas’s remark is aggravated by the
remark’s discriminatory nature.

Because menopause occurs only in

women, and predominantly in middle-aged women, see Oxford English
Dictionary (3d ed. 2001), available at http://www.oed.com/view/
Entry/116476, a comment suggesting that a woman may be menopausal
singles her out on the basis of gender and age.
Discriminatory comments like this undoubtedly occur on a daily
basis in the legal profession and are routinely swept under the
rug.

But the concealment does not diminish the effect.

An ABA

report published this year, for example, identified “inappropriate
or stereotypical comments” directed at female attorneys by opposing
counsel as one of the causes of the marked underrepresentation of
women in lead trial attorney roles.4

Discriminatory conduct on the

part of an attorney is “palpably adverse to the goals of justice
and the

legal

profession.”

Principe v.

N.Y.S.2d 182, 185 (Sup. Ct. 1992).

4

Assay

Partners, 586

When an attorney engages in

Stephanie A. Scharf & Roberta D. Liebenberg, First Chairs at
Trial: More Women Need Seats at the Table 14-15 (2015), available
at http://www.americanbar.org/content/dam/aba/marketing/women/first
_chairs2015.authcheckdam.pdf.

Civil No. 09-2092 (FAB)

7

discriminatory behavior, it reflects not only on the attorney’s
lack of professionalism, but also tarnishes the image of the entire
legal profession and disgraces our system of justice.
Ms.

Monserrate

chose

discriminatory behavior.

to

expose

to

light

Mr.

Salas’s

Her request for sanctions is “not a

display of an inability to overlook obnoxious conduct, but an
indication of a commitment to basic concepts of justice and respect
for the mores of the profession of law.”

See id. at 186.

She has

turned to the Court “to give force to a basic professional tenet.”
Id.
Having

determined

that

Mr.

Salas

committed

professional

misconduct in a proceeding pending before the Court, the Court now
discusses whether sanctions are warranted, and if so, whether
revocation of Mr. Salas’s pro hac vice admission, as requested by
Ms. Monserrate, is appropriate.
The Court first considers whether Mr. Salas’s comment was an
isolated

incident

or

part

of

repeated

disrespectful

and

discriminatory behavior. Ms. Monserrate asserts in her motion that
Mr. Salas harassed the deponent, mocked the deponent’s answers, and
demonstrated a hostile attitude towards Ms. Monserrate during the
deposition.

(Docket No. 1283 at pp. 2-3.)

The Court listened to

the audio recording of the deposition - paying close attention to
the instances mentioned by Ms. Monserrate in her motion - and did
not observe the behavior that Ms. Monserrate describes.

Mr. Salas

Civil No. 09-2092 (FAB)

8

was always courteous with the deponent. Although Mr. Salas and Ms.
Monserrate briefly argued on a few occasions during the deposition,
each raising their voices to make a point, neither displayed a
hostile attitude or tone. Thus, Mr. Salas did not exhibit repeated
disrespectful conduct.
The fact that Mr. Salas’s improper comment was an isolated
incident mitigates his misconduct. In other cases, including those
cited

in

Ms.

Monserrate’s

motion,

where

male

attorneys

were

sanctioned for discriminatory comments made to female attorneys,
the courts found repeated misconduct that cumulatively warranted
sanctions.

See Mullaney v. Aude, 126 Md. App. 639, 644-45, 659

(1999) (affirming protective order and attorney’s fees sanction
where

male

attorney

made

sexist

remark

to

female

deponent,

addressed female attorney as “babe,” and said calling her “babe”
was better than calling her a “bimbo” during deposition); In re
Valcarcel Mulero I, 142 P.R. Dec. 41 (1996) (suspending male
attorney from practice for period of three months for referring to
female attorney as a “crazy chicken” and “girl,” repeatedly raising
his voice, and constantly interrupting the judge during a court
hearing); Principe, 586 N.Y.S.2d at 184-88, 191 (sanctioning male
attorney in the form of attorney’s fees for calling female attorney
“little lady,” “little mouse,” and “little girl” repeatedly during
deposition); cf. Laddcap Value Partners, LP v. Lowenstein Sandler
P.C., No. 600973-2007, 2007 WL 4901555, at *2-7 (N.Y. Sup. Ct. Dec.

Civil No. 09-2092 (FAB)

9

5, 2007) (ordering referee supervision of future depositions after
male attorney addressed female attorney as “dear,” “hon,” and a
“sorry girl,” said she had a “cute little thing going on,” and
asked why she was not wearing her wedding ring during deposition).
Further mitigating the misconduct are Mr. Salas’s immediate
and subsequent apologies.

Mr. Salas attempted to apologize to Ms.

Monserrate during a break in the deposition.
p. 4.)

(Docket No. 1283 at

At the conclusion of the deposition, Mr. Salas apologized

to Ms. Monserrate on the record and acknowledged that his comment
was improper.

(Docket No. 1283-1 at pp. 228-29.)

He also

apologized to the Court when he responded to Ms. Monserrate’s
motion.

(Docket No. 1302 at p. 2.)

Given these mitigating circumstances, the Court finds that the
harsh sanction of revocation of Mr. Salas’s pro hac vice admission
is not warranted.

Nonetheless, Mr. Salas’s comment intended to

humiliate Ms. Monserrate on the basis of her age and gender.

This

conduct is adverse to the goals of justice and cannot be permitted
to find a safe haven in the practice of law.

The Court therefore

finds that the following sanctions are warranted. First, to ensure
that he bears some of the burden of the costs of bringing his
discriminatory

conduct

to

light,

Mr.

Salas

should

pay

Ms.

Monserrate reasonable attorney’s fees for bringing the motion.
Second, Mr. Salas should complete a continuing legal education
course on attorney professionalism and professional conduct.

Civil No. 09-2092 (FAB)

10
III.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES
IN PART Ms. Monserrate’s motion for sanctions (Docket No. 1283).
The Court rejects Ms. Monserrate’s request for revocation of Mr.
Salas’s pro hac vice admission, but finds that sanctions against
Mr. Salas are warranted.
The Court ORDERS Mr. Salas to pay Ms. Monserrate $1,000 as
reasonable attorney’s fees, based upon the Court’s observation and
experience, for bringing the motion.

If Mr. Salas objects to the

amount fixed for attorney’s fees, he may file a motion on or before
August 31, 2015.

The Court further ORDERS Mr. Salas to complete a

continuing legal education course on attorney professionalism and
professional conduct on or before February 1, 2016.

Mr. Salas

shall inform the Court when he has complied with this Order.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 17, 2015.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE