Rivera-Rivera v. HFS Corp. et al

Filing 88

OPINION AND ORDER granting in part and denying in part 61 motion for summary judgment. Signed by Judge Jay A Garcia-Gregory on 6/12/2012. (ASJ) Modified on 6/13/2012 to add word opinion (ab).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
AIDA RIVERA
Plaintiff
CIVIL NO. 11-1116(JAG)

v.
HFS CORP., et al.,
Defendants

OPININON AND ORDER
GARCIA GREGORY, D.J.
Before
Garcia,

and

the

Court

Viviana

stands

HFS,

Candelario’s

Corp.,

Jack

Henry,

(“Defendants”)

Omayra

motion

for

summary judgment. Said motion was timely opposed by plaintiff
Aida Rivera Rivera (“Rivera”). For the reasons outlined below
the motion for summary judgment is hereby GRANTED IN PART AND
DENIED IN PART.
BACKGROUND
Rivera filed her complaint on February 1, 2011, alleging
that she suffered workplace discrimination and retaliation on
account of her gender. Rivera has advanced claims pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2.
Rivera has also advanced claims pursuant to Article II of the
Puerto Rico Constitution, Act 80 of May 30, 1976, 29 L.P.R.A. §
185a et seq., Act 69 of July 6, 1985, 29 L.P.R.A. §1321 et.

Civil Case No. 11-1116 (JAG)

2

seq., Act 100 of June 30, 1959, 29 L.P.R.A. § 146 et. seq., and
Articles

1802

and

1803

of

the

Puerto

Rico

Civil

Code,

31

L.P.R.A. §5141 and § 5142.
The following factual narrative is derived from facts that
are deemed uncontested by the Court because they were included
in the motions for summary judgment and statements of fact, as
well as oppositions, and were agreed upon or properly supported
by the evidence and not genuinely opposed.1
Rivera was hired as an employee of HFS Corp., on September
9, 2009. The parties dispute when the management team for the
Roosevelt Subway restaurant was changed, but agree that Victoria
de la Rosa was introduced as the Assistant Supervisor. Viviana
Candelario was and still is the Director of Human Resources at
HFS Corp. Omayra Garcia was and still is the Supervisor of HFS
Corp. Jack Henry was and still is the president of HFS Corp.
Rivera successfully completed the employee probationary period
at HFS Corp. Rivera was assigned to work under the supervision
of Victoria de la Rosa. The parties dispute when Victoria de la
Rosa and Rivera commenced working together. However the record
reflects that it was either on January 31, 2010 or February 2,
2011.
1

The Court is aware of Defendants’ pending motion requesting leave to withdraw or amend admissions. (Docket
No. 79). The Court is appalled that Defendants would file a motion for summary judgment misrepresenting the
admissions they have made to Rivera. The Court finds this kind of misrepresentation to be inexcusable and
forewarns counsel that this will not be tolerated in the future. Moreover, the Court shall refer the motion to amend
admissions to a Magistrate Judge. The Court further notes that its decision regarding the motion for summary
judgment would not be affected by a grant or denial of the motion to withdraw or amend admissions.

Civil Case No. 11-1116 (JAG)
Before

February

3,

3

2010

Rivera

never

complained

about

discrimination or sexual harassment. On February 3, 2010, Rivera
called Omayra Garcia and complained of her difficulties with
Victoria de la Rosa. On February 5, 2010, Rivera met with Omayra
Garcia

and

Viviana

Candelario.

During

the

meeting

Rivera

complained that Victoria de la Rosa called her a “dirty dyke.”
The parties disagree as to where the meeting was conducted as
Defendants state that the meeting took place in the office and
Rivera posits that the meeting was conducted in the back of the
Subway restaurant. Rivera also complained about Victoria de la
Rosa’s behavior and stated that Victoria de la Rosa refused to
work

with

her

or

was

not

helpful

to

her.

Rivera

further

complained that Victoria de la Rosa made her stay after the end
of her shift. Rivera’s shift ended at 10:00 PM and she had to
stay until 10:40 or 10:45 PM. According to Rivera, Victoria de
la Rosa told her that she was not going anywhere and when Rivera
inquired as to why, Victoria de la Rosa responded “because I say
so, because I feel like it.” (Docket No. 78-1, p. 41). Rivera
also

claims

that

during

her

meeting

with

Omayra

Garcia

and

Viviana Candelario, Victoria de la Rosa was making expressions
of mockery at her.
After listening to Rivera’s complaints, Omayra Garcia and
Viviana Candelario told Rivera that they needed to meet with
Victoria de la Rosa and Rivera left. The parties disagree as to

Civil Case No. 11-1116 (JAG)

4

whether or not Omayra Garcia and Viviana Candelario told Rivera
that they would call her with a decision or simply told Rivera
that they would schedule another meeting. Rivera posits that she
exited

the

Subway

restaurant

and

then

decided

to

re-enter

because she was unsure when she had to return to work.
After

meeting

with

Rivera,

Omayra

Garcia

and

Viviana

Candelario met with Victoria de la Rosa. Defendants allege that
at

the

beginning

of

the

meeting

with

Victoria

de

la

Rosa,

Cinthia Cortes, a former employee of HFS Corp., interrupted the
meeting and loudly insulted Victoria de la Rosa in an aggressive
tone. Defendants state that it was at this time that Rivera reentered the Subway. Rivera denies that Cinthia Cortes yelled at
Defendants.

Rivera

avers

that

it

was

Viviana

Candelario

who

started yelling at her when she re-entered the subway telling
her that she had to leave and that they were done with her.
Defendants

aver

that

Rivera

then

left

the

premises

and

resigned verbally. Rivera denies that she resigned. Defendants
also state that Cinthia Cortes and Rivera acted with hostility
towards Victoria de la Rosa and as a result Viviana Candelario
called the police. Rivera denies that she or Cinthia Cortes
acted with hostility. Rivera further qualifies that the police
report filed was against Cinthia Cortes.

Civil Case No. 11-1116 (JAG)

5

The parties disagree as to whether or not Rivera resigned.2
Rivera claims that she did not show up to work again because
Defendants threatened to call the police if she returned to
work.

Rivera

further

states

that

Defendants

asked

for

her

resignation on February 5, 2010, and she was terminated on that
date. Defendants reject the notion that they requested Rivera’s
resignation,

despite

the

fact

they

have

already

admitted

to

that. Rivera subsequently filed a discrimination charge with the
EEOC on November 17, 2010.
STANDARD
A motion for summary judgment is governed by Rule 56 of the
Federal Rules of Civil Procedure, which entitles a party to
judgment if “the 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.” Fed.R.Civ.P. 56(a). “A dispute is genuine
if the evidence about the fact is such that a reasonable jury
could

resolve

the

point

in

favor

of

the

nonmoving

party.”

Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008) (internal
citations omitted); Calero-Cerezo v. U.S. Dep’t of Justice, 355
F.3d 6, 19 (1st Cir. 2004) (stating that an issue is genuine if
it

could

be

resolved

in

favor

of

either

party);

see

also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986).

2

The Court again notes that there exists a disagreement regarding Defendants’ admissions. Defendants admitted that
they asked for Rivera’s resignation, however, they stated otherwise in their motion for summary judgment. Rather
than resolve the issue here, the Court will refer this matter to a Magistrate Judge.

Civil Case No. 11-1116 (JAG)

6

In order for a disputed fact to be considered material it must
have the potential “to affect the outcome of the suit under
governing law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-661
(citing Liberty Lobby, Inc., 477 U.S. at 247-248); Prescott, 538
F.3d at 40 (citing Maymi v. P.R. Ports Auth., 515 F.3d 20, 25
(1st Cir. 2008)).
The ethos of summary judgment is to “pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” DeNovellis v. Shalala, 124 F.3d 298,
306

(1st

Cir.

1997)(citing

FED.

R.

CIV.

P.

56

(e)

advisory

committee note to the 1963 Amendment). The moving party must
demonstrate the absence of a genuine issue as to any outcomedeterminative fact on the record. Shalala, 124 F.3d at 306. Upon
a showing by the moving party of an absence of a genuine issue
of material fact, the burden shifts to the nonmoving party to
demonstrate that a trier of fact could reasonably find in his
favor. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). The nonmovant may not defeat a “properly focused motion
for

summary

judgment

by

relying

upon

mere

allegations,”

but

rather through definite and competent evidence. Maldonado-Denis
v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The
nonmovant’s burden thus encompasses a showing of “at least one
fact issue which is both ‘genuine’ and ‘material’.” Garside v.
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990); see also

Civil Case No. 11-1116 (JAG)

7

Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir. 2000) (stating
that a nonmovant may shut down a summary judgment motion only
upon a showing that a trial-worthy issue exists). As a result,
the mere existence of “some alleged factual dispute between the
parties will not affect an otherwise properly supported motion
for summary judgment.” Liberty Lobby, Inc., 477 U.S. at 247-248.
Similarly, “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).
When considering a motion for summary judgment, the Court
must

examine

the

facts

in

the

light

most

favorable

to

the

nonmoving party and draw all reasonable inferences in its favor
in order to conclude whether or not there is sufficient evidence
in favor of the nonmovant for a jury to return a verdict in its
favor. Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d
32, 38 (1st Cir. 2002). The Court must review the record as a
whole and refrain from engaging in an assessment of credibility
or weigh the evidence presented. Reeves v. Sanderson Plumbing
Products,

Inc.,

omitted).

The

530
burden

U.S.

133,

placed

135

upon

(2000)(internal
the

nonmovant

citations

is

one

of

production rather than persuasion. In other words, in weighing a
nonmovant’s opposition to summary judgment the Court should not

Civil Case No. 11-1116 (JAG)

8

engage in jury-like functions related to the determination of
credibility.
ANALYSIS
A. Discrimination
Title VII does not proscribe harassment simply because of
sexual orientation. Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 259 (1st Cir. 1999). Title VII prohibits employers
from discriminating against an individual with respect to his
employment "because of such individual's race, color, religion,
sex,

or

national

origin."

42

U.S.C.

§

2000e-2(a)(1).

“The

statutory 'because of . . . sex' requirement is not met merely
because

workplace

harassment

involves

sexual

matters:

the

substance of the violation is discrimination based on sex . . .”
Higgins, 194 F.3d at 258. Thus, the critical issue in Title VII
cases

is

whether

disadvantageous

members

terms

or

of

one

conditions

sex

to

are

which

exposed

members

of

to
the

other sex are not exposed. Ayala-Sepulveda v. Municipality of
San German, 661 F. Supp. 2d 130, 139 (D.P.R. 2009)(citing Oncale
v.

Sundowner

Plaintiffs

Offshore

must

allege

Servs.,
that

523

the

U.S.

75,

discrimination

80

(1998)).

took

place

because of his/her sex.
Rivera states in her complaint that she was discriminated
against because of her sex. More specifically, Rivera claims
that

she

suffered

a

hostile

work

environment

because

her

Civil Case No. 11-1116 (JAG)

9

behavior did not conform to the stereotype of a female. Thus,
Rivera advances a claim of sex stereotyping pursuant to Price
Waterhouse v. Hopkins, 490 U.S. 228, 250-52 (1989). In Price
Waterhouse,

the

Supreme

Court

stated

that

an

individual

who

suffered an adverse employment consequence because she did not
match the social stereotypes associated with her protected group
had an actionable claim under Title VII. “[J]ust as a woman can
ground an action on a claim that men discriminated against her
because she did not meet stereotyped expectations of femininity,
a

man

can

ground

a

claim

on

evidence

that

other

men

discriminated against him because he did not meet stereotyped
expectations of masculinity.” Id. at 261 n. 4.
Rivera’s allegation of discrimination hinges upon her claim
that she suffered an adverse employment action as a result of
her

employer’s

animus

toward

her

exhibition

of

behavior

considered to be stereotypically inappropriate for her gender.
However, Rivera fails to bring forth any examples of behavior
that

her

employer

or

supervisor

found

to

be

stereotypically

inappropriate. Rivera's only claim is that she was called a
“dirty

dyke.”

Although

this

is

undoubtedly

an

ugly

and

unnecessary insult, there is no showing that the alleged animus
was premised on actual behavior. The Court agrees with other
courts that gender stereotyping claims should not be used to
bootstrap

protection

for

sexual

orientation

into

Title

VII.

Civil Case No. 11-1116 (JAG)
Dawson

v.

Bumble

&

10

Bumble,

398

F.3d

211,

218

(2d

Cir.

2005)(citing Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir.2000));
cf. Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d
1212, 1224 (D.Or. 2002) (lesbian plaintiff stated a Title VII
claim

by

alleging

discrimination

based

upon

her

failure

to

conform to supervisor's “stereotype of how a woman ought to
behave. Heller is attracted to and dates other women, whereas
Cagle believes that a woman should be attracted to and date only
men.”).
Thus,
Rivera,

taking

the

the

Court

is

facts

in

unable

the

most

favorable

conclude

to

light

that

she

to

suffered

discrimination because she did not meet stereotyped expectations
of femininity. The complaint limits itself to stating that she
was

called

employers

a

“dirty

did

expectations

of

not

dyke”

approve

femininity.

and

that

of

her

Such

a

this

evinces

failure

to

claim

is

that

meet

her

their

insufficient.

Furthermore, the Court does not have sufficient allegations to
conclude that Rivera’s claims are based on stereotyping because
there is no basis in the record to surmise that Rivera behaved
in a manner that was not stereotypically feminine. In fact,
Rivera cites as evidence of sex stereotyping that Victoria de la
Rosa called her a “dirty dyke,” refused to assist her at work,
was aggressive in her tone, forced her to complete all the daily
tasks

by

herself,

and

being

forced

to

stay

at

work

for

45

Civil Case No. 11-1116 (JAG)
minutes

after

the

11

completion

of

her

shift.

None

of

these

examples in any way suggest that Rivera suffered discrimination
that

was

the

result

of

her

failure

to

conform

to

female

stereotypes. As a result, the Court finds that Rivera’s claim of
gender

stereotyping

is

exclusively

premised

on

a

comment

relating to sexual orientation, which the Court concludes is
insufficient in order for her claim to succeed.
As a result of the foregoing, the Court GRANTS Defendants’
request that Rivera’s discrimination claim be dismissed.
B. Retaliation
A plaintiff establishes a prima facie case of
retaliation by showing that (1) he engaged in protected conduct
under Title VII; (2) he experienced an adverse employment
action; and (3) a causal connection exists between the protected
conduct and the adverse employment action. White v. N.H. Dep't
of Corr., 221 F.3d 254, 262 (1st Cir. 2000). Once a plaintiff
establishes a prima facie case of retaliation, the burden shifts
to the employer to demonstrate that there was a nondiscriminatory reason for the adverse employment action. Douglas
v. J.C. Penney Co., Inc., 474 F.3d 10, 14 (1st Cir. 2007). If
the employer demonstrates such a reason, the burden returns to
the plaintiff to show that the non-discriminatory reason was
merely a pretext for discrimination. Id.

Civil Case No. 11-1116 (JAG)

12

To establish the first of these elements - participation in
a protected activity - plaintiff need not prove that the
conditions against which she protested actually amounted to a
violation of Title VII. Fantini v. Salem State College,557 F.3d
22, 32 (1st Cir. 2009)(citing Wimmer v. Suffolk County Police
Dep't, 176 F.3d 125, 134 (2d Cir.1999), cert. denied, 528 U.S.
964(1999))(citations omitted). The plaintiff must demonstrate
only that she had a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law.
Id. Protected activity refers to action taken to protest or
oppose statutorily prohibited discrimination. Id. (citing Cruz
v. Coach Stores Inc., 202 F.3d 560, 566 (2d Cir. 2000)).
Rivera advanced a retaliation claim pursuant to Title VII.
Defendants posit that Rivera’s retaliation claim should be
dismissed because Rivera cannot show the causal relationship
between her reporting of discrimination and the subsequent
discharge. See Hoeppner v. Crotched Mountain Rehabilitation
Center, Inc., 31 F.3d 9, 14 (1st Cir. 1994). Rivera has provided
the Court with a number of specific facts that includes names,
dates, and incidents regarding what transpired on the date on
which she was fired or she resigned.
The Court must determine whether or not there is a genuine
issue of material fact regarding the existence of a causal
connection between Rivera’s complaint and her subsequent

Civil Case No. 11-1116 (JAG)

13

discharge. An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
The Court must make all reasonable inferences favorable to the
nonmoving party, but the nonmoving party may not rest upon mere
allegations and must set forth specific facts demonstrating a
genuine issue for trial. Id. (citing Liberty Lobby, 477 U.S. at
248). In discriminatory discharge cases the nonmovant must point
to specific facts detailed in affidavits and depositions that
give rise to an inference of discriminatory animus. Id. (citing
Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st
Cir.1988)). Moreover, very close temporal proximity between
protected activity and adverse employment action can satisfy a
plaintiff’s burden of showing a causal connection. SanchezRodriguez v. AT & T Mobility Puerto Rico, Inc., 673 F.3d 1, 14
(1st Cir. 2012)(citing Calero–Cerezo v. U.S. Dep't. of Justice,
355 F.3d 6, 25 (1st Cir. 2004)).
The Court understands that Rivera has demonstrated by a
preponderance of the evidence that she engaged in a protected
activity, she was subsequently discharged, and that that there
was a causal connection between the protected activity and the
discharge. In contrast, the evidence does not show, as
Defendants posit, that Rivera resigned, that the incident
occurred due to Rivera’s hostile behavior when she re-entered
the Subway restaurant, and that Rivera’s alleged hostile

Civil Case No. 11-1116 (JAG)

14

behavior was the cause for her decision to resign. Moreover,
Rivera has in fact provided names, dates, incidents, and her own
supporting testimony. In light of the applicable caselaw, Rivera
has advanced a prima facie case of retaliation.
Thus, in light of the foregoing Defendants motion for
summary judgment as to the retaliation claim is DENIED.
The
shall

Court

proceed.

has

concluded

However,

individual

liability

determined

that

the

under

employees

that

Rivera’s

Court

Title
are

notes

VII.

not

The

retaliation
that

there

First

individually

claim
is

Circuit
liable

no
has

under

Title VII for engaging in proscribed discriminatory acts. ReyCruz

v.

Forensic

Science

Institute,

794

F.Supp.2d

329,

334

(D.P.R. 2011)(citing Fantini v. Salem State Coll., 557 F.3d 22,
28–31 (1st Cir. 2009). However, the parties have not properly
briefed whether or not these employees are subject to liability
pursuant to Puerto Rico state law. See Act 69 of July 6, 1985,
29 L.P.R.A. § 1321 et. seq. Therefore, the Court understands
that

it

is

proper

to

retain

jurisdiction

over

all

named

Defendants.
C. Supplemental jurisdiction
Rivera has advanced a number of state law claims.
Defendants posit that the Court must decline supplemental
jurisdiction over the state law claims because the federal
claims should be dismissed. See Marrero–Gutiérrez v. Molina, 491

Civil Case No. 11-1116 (JAG)

15

F.3d 1, 7–8 (1st Cir.2007). However, the Court has not found
summary judgment to be proper as to Rivera’s retaliation claim.
As a result, the Court finds no need to decline jurisdiction at
this juncture.
As a result, the Court DENIES Defendants request that
supplemental jurisdiction be declined.
CONCLUSION
For the reasons outlined above, Defendants’ motion for
summary judgment is GRANTED IN PART AND DENIED IN PART. The
Court dismisses Rivera’s discrimination claim, however, Rivera’s
Title VII retaliation claim and Puerto Rico state law claims
remain.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 12th day of June, 2012.

S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge