Rodriguez-Vega v. Policlinica la Familia de Toa Alta, Inc.
Filing
44
OPINION AND ORDER re 21 motion for summary judgment; and 22 motion for summary judgment. Plaintiffs fail to present sufficient evidence to establish issues of material fact to rebut defendants' motions for summary judgment, therefore, defendants' motions for summary judgment are GRANTED. Both cases, 11-2235 and 11-2236 are DISMISSED WITH PREJUDICE. Judgments shall be entered accordingly. Signed by Judge Francisco A. Besosa on 04/29/2013. (brc)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
GILBERTO RODRIGUEZ-VEGA,
Plaintiff,
v.
Civil No. 11-2235 (FAB)
POLICLINICA LA FAMILIA DE TOA
ALTA, INC.,
Defendant.
LUZ COLON-RIVERA,
Plaintiff,
v.
Civil No. 11-2236 (FAB)
POLICLINICA LA FAMILIA DE TOA
ALTA, INC.,
Defendant.
OPINION AND ORDER1
BESOSA, District Judge
Plaintiff Gilberto Rodriguez-Vega (“plaintiff Rodriguez”) and
plaintiff Luz Colon-Rivera (“plaintiff Colon”) bring claims against
defendant Policlinica la Familia de Toa Alta, Inc. (“defendant” or
“Policlinica”) pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Docket No. 1.)
Plaintiff Rodriguez brings a claim of sexual harassment and a claim
1
Katherine Hedges, a second-year student at the University of
New Hampshire School of Law, assisted in the preparation of this
Opinion and Order.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
of third-party retaliation.
2
(Docket No. 30 at p. 2.)
Plaintiff
Colon brings a claim of a retaliatory hostile work environment,
constructive discharge, and a claim of third-party retaliation.
Id.
Both plaintiffs also bring supplemental Commonwealth claims
pursuant to Law 69, P.R. Laws Ann. tit 29, § 1321; Law 100, P.R.
Laws Ann. tit 29, § 146; and Law 115, P.R. Laws Ann. tit 29, § 149149b.
Id.
at
pp.
2-3.
Plaintiff
Rodriguez
also
brings
a
supplemental claim pursuant to Law 17, P.R. Laws Ann. tit 29,
§ 155.
Id. at p. 3.
Pending before the Court are both defendants’ motions for
summary judgment.
(Docket Nos. 21 & 22.)
For the reasons set
forth below, both defendants’ motions for summary judgment are
GRANTED.
I.
Procedural History
On December 20, 2011, plaintiff Rodriguez filed a complaint
against defendant Policlinica alleging sexual harassment and thirdparty retaliation pursuant to Title VII and various Commonwealth
laws.
(Docket No. 1.)
On that same day, plaintiff Colon filed a
complaint against the defendant alleging a retaliatory hostile work
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
3
environment, constructive discharge, and third-party retaliation.2
Complaint, Colon-Rivera v. Policlinica la Familia de Toa Alta,
Inc., No. 11-2236 (D.P.R. filed December 20, 2011).3
On March 12,
2012, defendant filed a motion to consolidate the cases, which the
Court granted on March 13, 2012.
(Docket No. 6.)
On January 28, 2013, following discovery, defendant moved for
summary judgment on each of plaintiffs’ claims.
22.)
On
(Docket
February
No.
30.)
21, 2013,
plaintiffs
filed
On
11,
defendant
plaintiffs’ opposition.
II.
(Docket Nos. 21 &
March
2013,
an
opposition.
replied
to
(Docket No. 39.)
Summary Judgment Standard
The Court may grant a motion for summary judgment only if “the
pleadings, depositions, answers to interrogatories, and admissions
2
The Court notes that plaintiffs’ complaints seem to include
claims other than the ones listed here. (See Docket No. 1 & Civil
Case No. 11-2236 at Docket No. 1.)
In plaintiffs’ response to
defendant’s motion for summary judgment, however, plaintiffs only
defend the causes of action listed here. (Docket No. 30.) Because
plaintiffs failed to defend any other cause of action in their
summary judgment briefs, any other claim has been waived.
See
Leavitt v. Wal-Mart Stores, Inc., 74 Fed.Appx. 66, 71 (1st Cir.
2003) (finding that claims were not waived when a plaintiff
continued to defend them in her summary judgment briefs, even
though a footnote could be read to state that there were no other
claims); see also Ramírez de Arellano v. Sandrine Corp., Civil
No. 11-1289 (JAF), 2012 WL 899261, at *3 (D.P.R. Mar. 15, 2012)
(quoting U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.”).
3
Hereinafter “Civil Case No. 11-2236.”
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
4
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 judgment as a matter of law.”
Fed.R.Civ.P. 56(c).
A fact is “material” if it has the potential to “affect the outcome
of the suit under the governing law.”
Id.
A dispute is “genuine”
when it “could be resolved in favor of either party.”
Calero-
Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
The party moving for summary judgment bears the burden of
showing the absence of a genuine issue of material fact.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party must
demonstrate it through definite and competent evidence.
See
Maldonado-Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir.
1994).
It 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. (citing
Fed.R.Civ.P. 56(c)).
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).
For issues where the opposing party
bears the ultimate burden of proof, that party cannot merely rely
on the absence of competent evidence, but must affirmatively point
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
5
to specific facts that demonstrate the existence of an authentic
dispute.
See Suarez v. Pueblo Int’l., Inc., 229 F.3d 49 (1st Cir.
2000).
If the non-moving party establishes uncertainty as to the
“true state of any material fact, the movant’s efforts should be
deemed unavailing.”
See Lopez & Medina Corp. v. Marsh USA, Inc.,
694 F.Supp.2d 119, 123 (D.P.R. 2010) (citing Suarez, 229 F.3d at
53).
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.
242, 252 (1986).
opposing
summary
Anderson v. Liberty Lobby, Inc., 477 U.S.
It is necessary, therefore, that “a party
judgment
must
evidence to rebut the motion.’”
‘present
definite,
competent
Maldonado-Denis v. Castillo-
Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (internal citation
omitted).
In making this assessment, the Court must take the
entire record in the light most favorable to the non-moving party
and draw all reasonable inferences in his or her favor.
Farmers
Ins. Exch. v. RNK, Inc., 632 F.3d 77, 779-80 (1st Cir. 2011).
The
Court does not, however, “make credibility determinations or weigh
the evidence.”
Anderson, 477 U.S. at 255.
The Court may safely
ignore, however, “conclusory allegations, improbable inferences,
acrimonious invective, or rank speculation.”
629 F.3d 49, 54 (1st Cir. 2010).
Ahern v. Shinseki,
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
6
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
controverted.’”
what is - and what is not - genuinely
Id. (quoting Calvi v. Knox County, 470 F.3d 422,
427 (1st Cir. 2006)).
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 “by record
citations as required by this rule, shall be deemed admitted unless
properly controverted.” Loc. Rule 56(e). The Court, may, however,
“disregard any statement of fact not supported by a specific
citation
judgment.”
to
search
or
record
Id.
material
properly
considered
on
summary
“The court shall have no independent duty to
consider
any
part
of
the
record
not
specifically
referenced in the parties’ separate statement of facts.”
Id.
Due
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
7
to the importance of this function to the summary judgment process,
“litigants ignore [those rules] at their peril.”
Hernandez, 486
F.3d at 7.
III. Factual Background
A.
Statement of Uncontested Facts
Dr.
Itza
Chevres
(“Dr.
Chevres”)
is
defendant
Policlinica’s owner and president. (Docket No. 21-1 at ¶ 3; Docket
No. 30-1 at p. 2, ¶ 3.)
Plaintiff Colon began working as a
licensed practical nurse for the Policlinica in June or July 1998.
(Docket No. 22-1 at ¶ 1; Docket No. 30-2 at p. 2, ¶ 1.)
Although
Dr. Chevres hired her as a nurse, plaintiff Colon also worked as a
secretary and Dr. Chevres promoted her to serve as the secretaries’
supervisor about four years later.
(Docket No. 22-1 at ¶¶ 3-4;
Docket No. 30-2 at p. 2, ¶¶ 3-4.)
Plaintiff Colon’s duties
remained unchanged until she stopped working for the Policlinica.
(Docket No. 22-1 at ¶ 6; Docket No. 30-2 at p. 2, ¶ 6.)
In 2004, Dr. Chevres’ then husband, Jose Gonzalez-Amoros,
wrote plaintiff Colon a note asking her to be his “secret friend.”
(Docket No. 30-2 at p. 6, ¶ 1; Docket No. 39-4 at p. 5, ¶ 1.)
Plaintiff Colon complained to Dr. Chevres and said that GonzalezAmoros was sexually harassing her.
(Docket No. 30-2 at pp. 6-7,
¶¶ 2-4 & 6-7; Docket No. 39-4 at p. 5, ¶¶ 2-4 & 6-7.)
Plaintiff
Colon then offered her resignation, which led Dr. Chevres to meet
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
with her about the matter.
8
(Docket No. 22-1 at ¶ 12; Docket
No. 30-2 at p. 3, ¶ 12; Docket No. 30-8 at p. 35.)
They talked
about the situation with Dr. Chevres’ husband and Dr. Chevres told
plaintiff Colon that “it was not her fault” and asked her to
continue to work there.
(Docket No. 22-1 at ¶ 12; Docket No. 30-2
at p. 3, ¶ 12; Docket No. 30-8 at p. 35.)
Plaintiff Rodriguez was hired on November 6, 2007 to work
at the Policlinica as an accountant.
(Docket No. 21-1 at ¶¶ 1 & 8;
Docket No. 30-1 at pp. 1-3, ¶¶ 1 & 8 & p. 8, ¶ 2; Docket No. 39-1
at p. 8, ¶ 2.)
Plaintiff Rodriguez lived with his mother, next
door to Dr. Chevres, until August 2010.
Docket No. 30-1 at pp. 2, ¶ 2.)
(Docket No. 21-1 at ¶ 2;
He used to visit Dr. Chevres’
house once or twice a week; because their families were related,
the two families spent time together outside of work.
(Docket
No. 21-1 at ¶¶ 4-5; Docket No. 30-1 at pp. 2-3, ¶¶ 4-5; Docket
No. 21-2 at p. 25; Docket No. 39-3 at p. 57.)
referred to plaintiff Rodriguez as her “son.”
¶ 28; Docket No. 30-1 at p. 6, ¶ 28.)
Dr. Chevres even
(Docket No. 21-1 at
Plaintiff Rodriguez had
visited Dr. Chevres’ house with a previous girlfriend.
No. 21-1 at ¶ 35; Docket No. 30-1 at p. 7, ¶ 35.)
(Docket
He felt that he
could speak to Dr. Chevres about anything related to work. (Docket
No. 21-1 at ¶ 28; Docket No. 30-1 at p. 6, ¶ 28.)
Plaintiff
Rodriguez also stated that “[a]ll employees at the office spent
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
time jesting.”
9
(Docket No. 21-1 at ¶ 30; Docket No. 30-1 at p. 7,
¶ 30.)
Plaintiff Colon’s and plaintiff Rodriguez’s duties were
indirectly related.
p. 4, ¶ 12.)
(Docket No. 21-1 at ¶ 12; Docket No. 30-1 at
Sometimes when plaintiff Rodriguez prepared payroll,
both plaintiffs reconciled payroll in his office, without anyone
else present.
(Docket No. 22-1 at ¶ 14; Docket No. 30-2 at p. 3,
¶ 14; Docket No. 22-2 at pp. 36-38.)
Prior
to
Dr. Chevres a friend.
p. 2, ¶ 10.)
November
2010,
plaintiff
Colon
considered
(Docket No. 22-1 at ¶ 10; Docket No. 30-2 at
On October 30, 2010, Dr. Chevres saw plaintiffs
return to plaintiff Rodriguez’s mother’s house, where plaintiff
Colon had left her car while they attended a Halloween party.
(Docket No. 22-1 at ¶ 9; Docket No. 30-2 at p. 2, ¶ 9.)
Plaintiff Colon’s “nervousness” with Dr. Chevres began in
November 2010.
¶ 11.)
(Docket No. 22-1 at ¶ 11; Docket No. 30-2 at p. 3,
On November 1, 2010, when she went to look for a file in
Dr. Chevres’ office, Dr. Chevres interrogated plaintiff Colon about
her relationship with plaintiff Rodriguez.
(Docket No. 22-1 at
¶ 19; Docket No. 30-2 at p. 3, ¶ 19; Docket No. 22-2 at p. 48.)
On
another day, Dr. Chevres called plaintiff Colon on her cell phone
to ask if everything was in order, but plaintiff Colon believed
that Dr. Chevres was really checking to make sure plaintiff Colon
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
was not contacting plaintiff Rodriguez.
10
(Docket No. 22-1 at ¶ 21;
Docket No. 30-2 at p. 4, ¶ 21; Docket No. 30-8 at p. 56.)
Dr. Chevres developed an eye condition after having
surgery on
her
eyelids,
and
she had
trouble
seeing
clearly.
(Docket No. 22-1 at ¶ 32; Docket No. 30-2 at p. 4, ¶ 32.)
Dr. Chevres also had hearing problems.
Docket No. 30-1 at p. 6, ¶ 25.)
(Docket No. 21-1 at ¶ 25;
Plaintiff Rodriguez “felt
uncomfortable around Dr. Chevres during the last three months of
employment.”
(Docket No. 21-1 at ¶ 31; Docket No. 30-1 at p. 7,
¶ 31 & p. 14, ¶ 44.)
He claims that Dr. Chevres sexually harassed
him “because when they were working at the computer and he would be
showing something to her on the monitor, she could not see well so
she would approach and brush against him.”
(Docket No. 21-1
at ¶ 24; Docket No. 30-1 at p. 6, ¶ 24.)
“On one occasion
[plaintiff
please
distance.”
Rodriguez]
told
[Dr.
Chevres]
to
keep
her
(Docket No. 21-1 at ¶ 26; Docket No. 30-1 at p. 6,
¶ 26; Docket No. 21-2 at p. 107.)
“At the time she understood, but
later, since [they] kept on working side by side, sometimes she
would forget and [they] would go back to the same.”
(Docket
No. 21-1 at ¶ 26; Docket No. 30-1 at p. 6, ¶ 26; Docket No. 21-2 at
p. 107.) Dr. Chevres never told plaintiff Rodriguez that he had to
consent to the harassment in order to remain employed.
(Docket
No. 21-1 at ¶ 32; Docket No. 30-1 at p. 7, ¶ 32; Docket No. 21-2 at
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
p. 129.)
11
Until his employment was terminated, the terms and
conditions of his employment were never changed.
(Docket No. 21-1
at ¶ 34; Docket No. 30-1 at p. 7, ¶ 34; Docket No. 21-2 at p. 128.)
Plaintiff Rodriguez said he did not know “whether an employer has
to take measures when two employees that somehow work together
engage in a personal relationship” because there was no one from
Human Resources to guide him.
No. 30-1 at p. 8, ¶ 40.)
(Docket No. 21-1 at ¶ 40; Docket
Plaintiff Rodriguez never complained to
anyone at defendant Policlinica about the harassment and only asked
how he was performing his work.
(Docket No. 21-1 at ¶ 29; Docket
No. 30-1 at p. 7, ¶ 29.)
Plaintiff Colon reported to the State Insurance Fund
(“SIF”) on December 2, 2010.4
No. 30-2 at p. 4, ¶ 22.)
treatment
for
subjected her.
the
(Docket No. 22-1 at ¶ 22; Docket
She previously had received psychiatric
sexual
harassment
to
which
Gonzalez-Amoros
(Docket No. 30-2 at p. 7, ¶ 10; Docket No. 39-4 at
p. 7, ¶ 10; Docket 30-8 at p. 111.)
with Major Depression.
No. 39-4 at p. 19, ¶ 55.)
A doctor at SIF diagnosed her
(Docket No. 30-2 at p. 14, ¶ 55; Docket
The SIF discharged her, however, because
it determined that her emotional condition was not related to her
employment.
4
(Docket No. 22-1 at ¶ 25; Docket No. 30-2 at p. 4,
Plaintiff Colon does not explain what SIF is and what are
its functions. Her allegations, however, suggest that SIF provides
diagnoses and treatment for work-related conditions.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
12
¶ 25.) Plaintiff Colon appealed SIF’s decision, but SIF denied her
appeal because it again determined that her depression was not
related to her employment, but to the harassment by GonzalezAmoros.
(Docket No. 30-2 at p. 14, ¶¶ 56-60; Docket No. 39-4 at
pp. 19-20, ¶¶ 56-60.)
August 18, 2011.
She resigned from the Policlinica on
(Docket No. 22-1 at ¶ 28; Docket No. 30-2 at
p. 4, ¶ 28; p. 17, ¶ 81; Docket No. 39-4 at p. 25, ¶ 81.)
The
letter of resignation, which she wrote months after filing her
administrative complaint, stated that she was “forced to resign due
to
the
oppressive
conditions
of
employment,
the
continuous
humiliations, yelling, threats, disrespectful conduct and having to
submit to intense interrogatories regarding her personal life.”
(Docket No. 30-2 at pp. 17-18, ¶ 82; Docket No. 39-4 at p. 25,
¶ 84; Docket No. 42-5.)
Plaintiff Colon never requested that she
be reinstated to her job at the Policlinica.
(Docket No. 22-1 at
¶ 26; Docket No. 30-2 at p. 4, ¶ 26.)
On
defendant
December
31,
2010,
Policlinica terminated
while
he was
plaintiff
on
sick
Rodriguez
leave,
from his
position, indicating that it had eliminated the position because it
had outsourced the accounting functions.
(Docket No. 30-1 at
p. 14, ¶ 46; Docket No. 39-1 at p. 20, ¶ 46; Docket No. 42-1.)
The
dismissal letter, however, does not reference any reorganization
plan.
(Docket No. 30-1 at p. 15, ¶ 55; Docket No. 39-1 at p. 22,
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
¶ 55.)
13
The decision to eliminate plaintiff Rodriguez’s position
was made on the same day he received the termination letter; his
position was the only one considered for elimination at that time.
(Docket No. 30-1 at p. 15, ¶¶ 52-53; Docket No. 39-1 at p. 21,
¶¶ 52-53.)
Plaintiff Rodriguez was aware that the Policlinica had
financial difficulties and that it was looking into restructuring.
(Docket No. 21-2 at ¶ 20; Docket No. 30-1 at p. 5, ¶ 20; Docket
No. 21-2 at p. 99.)
The rest of defendant’s employees were not
notified of the reorganization plan until after Three King’s Day,
after plaintiff Rodriguez’s position had been eliminated.
(Docket
No. 30-1 at p. 15, ¶ 54; Docket No. 39-1 at p. 22, ¶ 54.)
David Lopez5 e-mailed Dr. Chevres on February 4, 2011,
saying:
It is important to stress that the suspension of
[plaintiff Rodriguez] was due to reasons of the
elimination of his position because it was understood
that there was no need for a full-time [sic] and not for
poor performance. We shall be careful in regards to the
allegations that are made regarding this because this is
secondary and was not the basis for the decision.
(Docket No. 30-1 at p. 16, ¶ 57; Docket No. 39-1 at p. 22, ¶ 57.)
5
It appears from Dr. Chevres’ deposition that David Lopez
participated in an analysis of changes in the administrative
processes at defendant Policlinica, but his relationship to the
Policlinica is unclear. (Docket No. 30-4 at p. 102.)
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
14
Carlos Arguinzoni, who had previously performed some work
for
the
Policlinica
in
December
2010,
signed
a
professional
services contract with defendant on January 10, 2011 and assumed
some of plaintiff Rodriguez’s former duties.
(Docket No. 30-1 at
pp. 14-15, ¶¶ 47, 49 & 50; Docket No. 30-7; Docket No. 39-1 at
p. 21, ¶ 50.)
Plaintiff
Rodriguez
and
plaintiff
Colon
became
romantically involved in the middle or end of December 2010, after
plaintiff Colon had stopped working at the Policlinica because she
had reported to the SIF.
(Docket No. 21-1 at ¶ 15; Docket No. 22-1
at ¶ 29; Docket No. 30-1 at p. 5, ¶ 15; Docket No. 30-2 at p. 4,
¶ 29.)
Neither plaintiff ever informed Dr. Chevres of plaintiff
Colon’s romantic involvement with plaintiff Rodriguez.
(Docket
No. 21-1 at ¶ 16; Docket No. 22-1 at ¶ 33; Docket No. 31-1 at p. 5,
¶ 16; Docket No. 30-2 at p. 4, ¶ 33.)
On January 25, 2011, plaintiff Rodriguez and plaintiff
Colon
went
together
to
file
their
administrative
anti-
discrimination claims with the Anti-discrimination Unit of the
Department of Labor of Puerto Rico.
(Docket No. 21-1 at ¶¶ 36-37;
Docket No. 30-1 at p. 7, ¶¶ 36-37; Docket No. 22-1 at ¶ 36; Docket
No. 30-2 at p. 5, ¶ 36.)
Plaintiff Rodriguez did not file any
sexual harassment complaint prior to his dismissal.
No. 21-1 at ¶ 38; Docket No. 30-1 at p. 8, ¶ 38.)
(Docket
Plaintiff
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
15
Rodriguez did not have anything to do with plaintiff Colon’s
reporting to the State Insurance Fund.
(Docket No. 21-1 at ¶ 39;
Docket No. 30-1 at p. 8, ¶ 39.)
B.
Statement of Contested Facts
Plaintiff Rodriguez alleges that when Dr. Chevres found
out that he was the coach of “The Killers” volleyball team, she
questioned him about “why had he not told her that he was ‘Colon’s
coach.’”6
(Docket No. 30-1 at p. 9, ¶ 8.)
Plaintiff Rodriguez
said that he “was not only [plaintiff Colon]’s coach but that [he]
was the coach to an entire team,” that the former team owner had
asked him to coach the team, and that it had nothing to do with his
job. (Docket No. 30-1 at p. 9, ¶ 9.)
Dr. Chevres then allegedly
asked if plaintiff Rodriguez had “anything going on with” plaintiff
Colon, which he denied.
(Docket No. 30-1 at p. 9, ¶ 10.)
When Dr. Chevres was not in the office, she repeatedly
called plaintiff Rodriguez after working hours to find out how
things were at the Policlinica.
(Docket No. 30-1 at p. 11, ¶¶ 23-
24.) During October 2010, after overhearing plaintiff Rodriguez’s
6
It is uncontested that plaintiff Colon played for a
volleyball team called “The Killers.” (Docket No. 22-1 at ¶ 7;
Docket No. 30-2 at p. 2, ¶ 7.) Plaintiff Rodriguez became the
coach of “The Killers” when he was working for defendant. (Docket
No. 22-1 at ¶ 8; Docket No. 30-2 at p. 2, ¶ 8.) During a lunch
between Dr. Chevres, plaintiff Rodriguez, plaintiff Colon, and an
unknown employee, plaintiff Rodriguez mentioned that he was
coaching “The Killers.” (Docket No. 30-1 at p. 8, ¶¶ 4-5; Docket
No. 39-1 at p. 9, ¶¶ 4-5.)
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
telephone
call
while
they
were
riding
in
16
the
car
together,
Dr. Chevres asked why plaintiff Rodriguez had not told her that he
had moved.
(Docket No. 30-1 at p. 11, ¶ 25.)
Plaintiff “told
[Dr.] Chevres that he saw no need to discuss the matter of his
move” with her.
(Docket No. 30-1 at p. 11, ¶ 26.)
Plaintiff
Rodriguez alleges that Dr. Chevres’ romantic partner, Rafael Fabre,
noticed that Dr. Chevres had been keeping track of plaintiff
Rodriguez, even on the weekends.
(Docket No. 30-1 at p. 11, ¶ 27.)
It was not unusual for Dr. Chevres to ask plaintiff Rodriguez about
his weekend, especially when she had not seen him.
(Docket No. 30-
1 at p. 11, ¶ 28.)
Dr. Chevres always spoke to plaintiff Rodriguez alone,
either at her office or his office.
¶ 11.)
(Docket No. 30-1 at p. 9,
Plaintiff Colon shared an office with Dr. Chevres, and
whenever Dr. Chevres finished “questioning [plaintiff] Rodriguez
about personal matters she locked herself in with [plaintiff Colon]
in their office.”
(Docket No. 30-1 at p. 10, ¶¶ 12-13.)
Plaintiff
Rodriguez stated that he saw plaintiff Colon crying on several
occasions, which plaintiff Colon and Dr. Chevres told him was a
result of Dr. Chevres inquiring about the plaintiffs’ relationship.
(Docket No. 30-1 at p. 10, ¶¶ 14-16; Docket No. 30-2 at p. 10,
¶ 31.)
Plaintiff Rodriguez said that he was present for some
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
17
conversations, but never the ones where plaintiff Colon left
crying.
(Docket No. 30-1 at p. 10, ¶¶ 17-18.)
Plaintiff Colon alleges that on November 1, 2010, she
went to look for a file in Dr. Chevres’ office and Dr. Chevres
begged to be told “what was [her] relationship with [plaintiff
Rodriguez]” and told plaintiff Colon “that it was very harmful for
her.”
(Docket No. 30-2 at pp. 7-8, ¶¶ 12-13.)
Plaintiff Colon
said it made her very embarrassed and “it was as if she was
‘claiming
something.’” (Docket
No. 30-2
at
p.
8,
¶¶
14-15.)
Plaintiff Colon said she and plaintiff Rodriguez were only friends
and asked to have her personal life respected.
p. 8, ¶ 7.)
(Docket No. 30-2 at
Dr. Chevres responded, “Even if I don’t like it, I
have to swallow it.”
Id.
Plaintiff Rodriguez alleges that he saw
plaintiff Colon leaving the office, crying. (Docket No. 30-1 at p.
12, ¶ 34.) Plaintiff Rodriguez alleges that Dr. Chevres also asked
him about his weekend, and the inquiry shocked him “‘on account of
the manner in which she asked’ him, ‘such as to extract information
about something.’”
(Docket No. 30-1 at p. 12, ¶ 30.)
Plaintiff Rodriguez also alleges that Dr. Chevres
wore
tight, low-cut dresses and would not wear underwear to work, which
he knew because she “would talk to him about things that she had to
speak to (him) about and about things she didn’t have to speak to
(him) about.”
(Docket No. 30-1 at p. 13, ¶ 38.)
One time,
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
18
plaintiff Rodriguez watched Dr. Chevres pick up a slip of paper in
his office and, as he watched her, he noticed she was not wearing
underwear.
Id.
He said it made him very uncomfortable.
Plaintiff
Rodriguez
alleges
that
he
Id.
spoke
with
Dr. Chevres about the environment at work on several occasions and
asked if she had any complaints about his work.
p. 14, ¶ 41.)
(Docket No. 30- at
She said that she did not have any complaints about
his work and that his work was excellent.
Id.
He alleges that
there was no one else to which to complain because defendant did
not have a Human Resources chief and Dr. Chevres was the boss.
(Docket No. 30-1 at p. 14, ¶ 42.)
Plaintiff Rodriguez states that
he considered his work environment in November and December 2010 a
“martyrdom” and he began to take medication because his work
anxiety was making it hard for him to sleep.
(Docket No. 30-1 at
p. 14, ¶ 45.)
On another occasion, Dr. Chevres allegedly addressed
plaintiff Colon in a loud tone of voice and repeatedly said,
“Everything Ok?, Everything Ok?
be.”
Well, that’s the way it should
(Docket No. 30-2 at p. 9, ¶ 20; p. 11, ¶ 39.)
Dr. Chevres
also allegedly warned her, saying, “Do not make me act as another
type of boss.”
(Docket No. 30-2 at p. 12, ¶ 42.)
Plaintiff Colon
said she took that to mean Dr. Chevres would not talk to her or
would fire her.
Id.
Plaintiff Colon contends that Dr. Chevres’
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
19
tone of voice made her know that Dr. Chevres was threatening her to
stay away from plaintiff Rodriguez.
¶ 22.)
(Docket No. 30-2 at p. 9,
Dr. Chevres allegedly warned plaintiff Colon that her
children would be grateful if she stayed away from plaintiff
Rodriguez.
(Docket No. 30-2 at p. 12, ¶ 44.)
Plaintiff Colon said that the confrontations made her
nervous and “she could not control her sphincters.”
No. 30-2 at p. 9, ¶¶ 21 & 24-25.)
Dr.
Chevres
addressed
her
in
a
(Docket
Plaintiff Colon claims that
changed
tone
of
voice
after
November 1, 2010 and mistreated her whenever they crossed paths.
(Docket No. 30-2 at pp. 9-10, ¶¶ 26 & 28.)
Plaintiff Colon said
she was afraid that Dr. Chevres would attack her, even though
Dr. Chevres never physically assaulted her.
(Docket No. 30-2 at
p. 10, ¶¶ 29-30.)
One day, Dr. Chevres had swollen eyes and told plaintiff
Rodriguez that she “had spent the entire night crying because she
felt betrayed by some people.”
(Docket No. 30-1 at p. 13, ¶ 36; 33
Docket No. 30-2 at p. 10, ¶ 33.)
Plaintiff Colon also asked
Dr. Chevres what was wrong, and she admitted she had been crying.
(Docket No. 30-2 at p. 10, ¶ 34.)
Plaintiff Colon claims that
Dr. Chevres told her she felt betrayed because of the perceived
relationship between plaintiffs due to the Gonzalez-Amoros incident
years earlier.
(Docket No. 30-2 at p. 10, ¶ 37.)
On another
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
occasion,
plaintiff
Rodriguez
“had
a
20
friendly
exchange”
with
Dr. Joann Padilla, another doctor at the Policlinica, in the
presence of Dr. Chevres.
(Docket No. 30-1 at p. 13, ¶ 37.)
Dr. Chevres asked plaintiff Rodriguez “if (he) was also dating
(Padilla) during off-duty hours.”
Id.
One day, after speaking to Dr. Chevres on the phone,
plaintiff Colon felt sick to her stomach and asked one of the
Policlinica’s doctors for a referral to a psychiatrist.
No. 30-2 at p. 12, ¶ 46.)
(Docket
Plaintiff Colon states that Dr. Chevres
called her the next day and asked if everything was in order.
(Docket
No.
30-2
at
p.
13,
¶
48.)
When
she
Dr. Chevres said, “That is the way it has to be.”
said
Id.
it
was,
Defendant
Policlinica denies all of these allegations and says that they are
unsupported. (Docket No. 39-4 at pp. 8-19.)
Plaintiff Colon additionally states that she believes
Dr. Chevres mistreated her during this time because of “the sexual
harassment perpetrated by Gonzalez-Amoros.”
p. 15, ¶ 61.)
(Docket No. 30-2 at
Defendant Policlinica denies this allegation and
notes that events related to harassment by Gonzalez-Amoros are
time-barred.
(Docket No. 39-4 at p. 20, ¶ 61.)
Plaintiff Colon
said that after she was released from SIF, she “had two options,
either quit or be submitted to the pressure, harassment, and
emotionally (she) could not work with the doctor.” (Docket No. 30-
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
2 at p. 16, ¶ 69.)
21
When plaintiff Colon was asked to identify the
hostility of her work environment, she said “she was forced to work
in an environment where she was constantly scolded, yelled at and
talked to in a loud voice for matters that were not related to job
performance.”
(Docket No. 30-2 at p. 16, ¶ 70.)
She further
stated that Dr. Chevres “insisted that [plaintiff] Colon was
accustoming [plaintiff Rodriguez] to ‘something else,’” which she
understood to refer to “something sexual.”
Id.
She also alleges
that Dr. Chevres told plaintiff Rodriguez that plaintiff Colon was
“a woman with experience” and “would sleep around with different
men, [] liked to take their money, among other things.”
(Docket
No. 30-1 at p. 10, ¶ 21; Docket No. 30-2 at p. 16, ¶¶ 70-71.)
Dr. Chevres also warned plaintiff Rodriguez “to not approach
[plaintiff Colon], that she was a woman with children . . . with
vast experience.” (Docket No. 30-1 at p. 11, ¶ 22.0)
Plaintiff
Colon
states
retaliation to Dr. Chevres.
Defendant
Policlinica
denies
that
she
complained
of
the
(Docket No. 30-2 at p. 17, ¶ 75.)
this
(Docket No. 39-4 at p. 24, ¶ 75.)
allegation
as
unsupported.
Plaintiff Colon also states that
she developed ulcers due to the stress from work and feels as if
she will get a panic attack when in front of an authority figure.
(Docket No. 30-2 at p. 17, ¶¶ 79-80.)
Defendant says this is
unsupported and that plaintiff Colon never attempted to return to
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
22
defendant after reporting to SIF on December 2, 2010.
(Docket
No. 39-4 at p. 25, ¶¶ 79-80.)
Plaintiff Rodriguez alleges that Dr. Chevres fired him
because when he went on sick leave, defendant needed to get the
payroll out, so they urgently brought in someone for “a specific
period of time and since they were reorganizing she realized they
could manage the payroll without having somebody on a full-time
basis.”
(Docket No. 30-1 at p. 15, ¶ 51.)
terminated
“because
he
could
not
work
He also believes he was
well
in
the
hostile
environment [Dr.] Chevres created as a revenge for his expressed
disagreement with [her] attempts to meddle into his private life,
particularly his relationship with [plaintiff Colon].”
No. 30-1 at p. 16, ¶ 56.)
(Docket
After his position was eliminated,
plaintiff Rodriguez “felt discouraged, depressed . . . had to go
through a lot before (he) went back to being the same person,” and
he remained unemployed for three to five months.
(Docket No. 30-1
at p. 16, ¶ 58.)
Defendant denies all of these allegations. (Docket 39-1;
Docket No. 39-4.)
IV.
DISCUSSION
Defendant
Policlinica
following grounds:
moves
for
summary
judgment
on
the
(1) the Policlinica did not have fifteen
employees in 2009 or 2010 and, therefore, is not an employer
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
pursuant
to
Title
VII;
(2)
neither
23
plaintiff
Rodriguez
nor
plaintiff Colon can establish that they were retaliated against or
subject to third-party retaliation; (3) plaintiff Rodriguez cannot
show evidence from which a jury could reasonable infer he was
sexually harassed; (4) plaintiff Colon cannot establish a gender
discrimination claim; (5) a jury cannot reasonably infer that
plaintiff Colon was constructively discharged; and (6) plaintiffs
also fail to establish claims pursuant to Commonwealth antidiscrimination and retaliation law or, alternatively, that the
Court should decline to exercise supplemental jurisdiction over the
Commonwealth
claims.
(Docket
Nos.
21-22
&
39.)
The
Court
addresses each argument in turn.
A.
Whether Defendant Policlinica Constitutes an “Employer”
Under Title VII
Defendant Policlinica first asks the Court to grant
summary judgment in its favor on all claims in the consolidated
cases because it should not be considered an employer pursuant to
Title VII because it had less than fifteen employees during the
alleged discrimination.
at pp. 7-10.)
(Docket No. 21 at pp. 7-10; Docket No. 22
To support this contention, defendant Policlinica
cites to a list of employees who received Christmas bonuses in 2009
and another spreadsheet titled “Policlinica la Familia Toa Alta,
Inc. - List of Employees During Year 2010.”
(Docket Nos. 21-3, 21-
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
4, 26-1 & 26-2.)
24
Plaintiffs argue that these documents fail to
comply with the admissibility requirements of the Federal Rules of
Evidence7 and, additionally, that the Policlinica failed to list at
least six physicians who they argue should be counted as employees.
(Docket
No.
30
at
pp.
12-14.)
To
support
their
argument,
plaintiffs cite to the doctors’ professional services contracts,
which
plaintiffs
argue
proves
the
doctors
employees and not independent contractors.
35-2 & 42-4.
in
question
were
Id.; Docket Nos. 30-9,
Additionally, plaintiffs argue that Dr. Chevres
should be counted as an employee.
(Docket No. 30 at pp. 12-14.)
Defendant Policlinica responds that its documents supporting its
position are admissible, that the doctors’ professional services
contracts prove that the doctors are independent contractors, that
Dr. Chevres cannot be counted as an employee because she is
defendant’s owner, and, therefore, that it is entitled to summary
judgment on the Title VII claims.
(Docket No. 39 at pp. 7-10.)
Generally, Title VII of the Civil Rights Act of 1964
prohibits
7
discrimination
against
employees
“because
of
such
The Court finds that the documents are admissible because
defendant provided an affidavit, (Docket No. 22-7), from
defendant’s
custodian
of
business
records,
verifying the
authenticity of the documents under penalty of perjury.
See
Fed.R.Evid. 803(6) & 902; see also Colon-Fontanez v. Municipality
of San Juan, 660 F.3d 17, 30 n.13 (1st Cir. 2011)(noting that there
was no error in considering statements for a motion for summary
judgment when the custodian of the records submitted an affidavit
confirming the reliability of the records).
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
25
individual’s race, color, religion, sex, or national origin.”
42
U.S.C. § 2000e-2.
Title VII only applies to an “employer,” which
the statute defines as “a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding
calendar year . . .”
42 U.S.C. § 2000e(b).
Title VII defines an
“employee” as “an individual employed by an employer . . .”
U.S.C. § 2000e(f).
42
The Supreme Court addressed the circular
definition of “employee” in federal anti-discrimination laws in
several cases, De Jesus v. LTT Card Serv., Inc., 474 F.3d 16, 21
(1st Cir. 2007), creating a standard to determine who is considered
an employee pursuant to Title VII.
1.
Whether Defendant Policlinica Had Less Than Fifteen
Employees on Payroll During 2010
To be considered an employee that an employer “has,”
an
employer
individual
at
must
that
have
an
time,
employment
regardless
of
individual worked on the day in question.
relationship
whether
or
with
the
not
that
Walters v. Metro. Educ.
Enter., Inc., 519 U.S. 202, 204 (1997). The First Circuit Court of
Appeals has stated that “the 15-employee question will frequently,
but not necessarily, be addressed in two parts: application of the
“payroll method,” followed by application of traditional agency law
principles for defining employer and employee, if the individual is
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
on the payroll.”
26
De Jesus, 474 F.3d at 21.
According to the
documents that the Policlinica submitted, it had fifteen or more
employees on its payroll for only seventeen weeks during 2010. See
Docket Nos. 21-4 & 26-2.
2.
Whether Dr. Chevres is an Employee
Plaintiffs argue that because Dr. Chevres is listed
on the 2010 payroll list, she should be counted as an employee as
well.
(Docket No. 30 at pp. 12-13.)
Plaintiffs admit, however,
that Dr. Chevres “is the [Policlinica’s] Owner, President and VicePresident.”
(Docket No. 30-1 at p. 2.)
“[A]n employer is the
person, or group of persons, who owns and manages the enterprise.”
Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 450
(2003).
While the individual’s title is not determinative when
determining if an individual is an employee or proprietor, “[t]he
employer can hire and fire employees, can assign tasks to employees
and supervise their performance, and can decide how the profits and
losses of the business are to be distributed.”
Id.
Other than
pointing to her presence on payroll, plaintiffs fail to present any
other reason why Dr. Chevres can be considered an employee.
Docket No. 30.
See
Plaintiff Rodriguez stated that “[n]o one had
higher authority than [Dr.] Chevres at [defendant].”
No. 30-1 at p. 14.)
(Docket
Even taking all reasonable inferences in favor
of plaintiffs, Farmers Ins. Exch., 632 F.3d at 79-80, there is no
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
27
evidence in the record to suggest that Dr. Chevres is an employee
rather than an employer because she is in charge of hiring and
firing employees and assigning tasks. Furthermore, she is the sole
owner of defendant Policlinica.
Thus, her presence on defendant’s
payroll list fails to bring the number of employees above the
threshold for defendant to be considered an employer pursuant to
Title VII.
3.
Whether
Defendant
Policlinica’s
Doctors
Employees or Independent Contractors
are
Plaintiffs also argue that there were at least seven
additional employees during 2010 because defendant Policlinica
failed to list the doctors it employed on the employee list.
(Docket No. 30 at pp. 13-14.)
In support of this contention, it
submitted a copy of a doctor’s contract with the Policlinica.
(Docket Nos. 30-9, 35-2, 42-3 & 42-4.)
length
contract
submitted
was
for
Dr.
Although the only full
Edna
Robles
Rivera,
plaintiffs state that the remaining physicians’ contracts were
identical to hers. (Docket Nos. 30-9, 42-3; Docket No. 30 at
p. 13.)
Defendant Policlinica points to the same contracts to
support their position that these physicians were independent
contractors rather than employees and, therefore, should not be
counted towards the fifteen employee requirement.
at pp. 9-10.)
(Docket No. 39
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
28
The First Circuit Court of Appeals found that the
common law agency test should be used to determine whether an
individual is an employee or an independent contractor pursuant to
Title VII.
Alberty-Velez v. Corporacion de Puerto Rico para la
Difusion Publica, 361 F.3d 1, 6 (1st Cir. 2004).
In applying the
common law test, the court must weigh:
the hiring party’s right to control the manner and means
by which the product is accomplished.
Among other
factors relevant to this inquiry are the skills required;
the source of the instrumentalities and tools; the
location of the work; the duration of the relationship
between the parties; whether the hiring party has the
right to assign additional projects to the hired party;
the extent of the hired party’s discretion over when and
how long to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired
party.
Id. at 7 (quoting Dykes v. DePuy, Inc., 140 F.3d 31, 37-38 (1st
Cir.
1998)).
While
no
factor
is
determinative,
“in
most
situations, the extent to which the hiring party controls ‘the
manner and means’ by which the worker completes her task will be
the most important factor in the analysis.”
Id. (citing Eisenberg
v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114 (2nd Cir.
2000)).
The contract that plaintiffs submitted indicates
many factors supporting the Policlinica’s contention that the
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
29
doctors are independent contractors. The doctors work according to
mutually agreed upon hours; the contract labels the doctors as
independent contractors; the doctors are responsible for their own
medical malpractice insurance; and the doctors are not eligible for
“vacation leave, sick leave, retirement, professional liability
policy,
Social
Security,
(Docket No. 42-3.)
and
State
Insurance
Fund
payments.”
There are, however, a few factors weighing in
favor of the doctors being considered employees.
For instance,
defendant Policlinica pays the doctors a salary and the doctors are
eligible for ten days of vacation.
Id.
The contract also provides
that the Social Security contribution will be paid out of the
doctor’s salary. Id. Whether the Social Security payment supports
the position that the doctors are independent contractors or not is
inconclusive because it is unclear if the doctors are paying the
Social Security payment that an independent contractor would do, or
the reduced amount that an employee would pay in addition to the
employer’s contribution.
Most importantly, the contract fails to
provide sufficient evidence of how much control the Policlinica has
over the “manner and means” of the doctors’ work.
Policlinica
failed
to
submit
any
additional
Defendant
evidence
of
the
employment relationship between the doctors and it.
Without further evidence of how the doctors are
treated for Social Security and the amount of control defendant
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
30
Policlinica has over how the doctors carry out their work, a
genuine dispute of material fact remains about whether the doctors
constitute employees or independent contractors.
If the doctors
are employees pursuant to Title VII, then the Policlinica would
have more
than
fifteen
employees
employer pursuant to Title VII.
and would
be
considered an
Thus, the Court DENIES defendant
Policlinica’s request for summary judgment on the grounds that it
is not an employer pursuant to Title VII.
B.
Plaintiffs’ Third-Party Retaliation Claims
Defendant Policlinica next requests summary judgment on
plaintiffs’ third-party retaliation claims.
pp. 20-21; Docket No. 22 at pp. 18-20.)
(Docket No. 21 at
Title VII states that:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees .
. . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a).
because
“Title
VII’s
The Supreme Court recently held that
antiretaliation
provision
prohibits
any
employer action that ‘well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination,’” a woman’s
fiancé had standing to file a Title VII claim when he was fired
after she filed a sexual harassment charge.
Thompson v. N. Am.
Stainless, L.P., 131 S.Ct. 863, 870 (2011).
The Court, however,
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
31
declined to identify the types of relationships that are protected
from third-party retaliation. Id. at 868. The Court instead noted
that firing a close family member would almost always be protected,
but “inflicting a milder reprisal on a mere acquaintance will
almost never” be protected.
Id.
Thus, a plaintiff can establish
a third-party retaliation claim by demonstrating: (1) that someone
closely related engaged in an activity protected by Title VII,
(2) that the plaintiff suffered an adverse employment action after
or contemporaneously to the protected activity, and (3) that there
is a causal link between the protected activity and the adverse
employment action.
See id. at 868-69.
An employee has engaged in a protected activity pursuant
to Title VII if he or “she has either (1) ‘opposed any practice
made an unlawful employment practice’ by Title VII or (2) ‘made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding or hearing’ under Title VII.” Fantini v.
Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009) (quoting Long v.
Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)).
The practice
opposed does not actually have to be a violation of Title VII,
because the plaintiff must “demonstrate only that [he or she] had
a ‘good faith, reasonable belief that the underlying challenged
actions of the employer violated the law.’” Id. (quoting Wimmer v.
Suffolk Cnty. Police Dept., 176 F.3d 125, 134 (2nd Cir. 1999)).
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
32
The opposition clause protects “informal protests of discriminatory
employment practices, including making complaints to management,
writing
critical
letters
to
customers,
protesting
against
discrimination by industry or by society in general, and expressing
support
of
co-workers
who
have
filed
formal
charges.”
Id.
(internal citations omitted).
Defendant Policlinica states that both plaintiffs’ thirdparty
retaliation
claims
fail
because
they
filed
their
discrimination claims only after plaintiff Rodriguez was fired and
plaintiff Colon resigned, so there was no retaliation for an action
protected by Title VII. Id. Plaintiffs respond that the protected
action
plaintiff
Rodriguez
took
was
that
he
“objected
and
repudiated the unlawful conduct” of Dr. Chevres and that plaintiff
Colon was subjected to a hostile work environment as a result.
(Docket No. 30 at p. 35.)
Plaintiffs fail to argue what protected
action plaintiff Colon took.
See id.
The only matter that
plaintiff Colon can argue is a protected action is her statement
that she was retaliated against when she told Dr. Chevres that “she
could not continue paying for what had happened years earlier with
Gonzalez-Amoros.”
the non-moving
Id. at p. 29.
party’s
favor,
Taking reasonable inferences in
the
Court
assumes
this
is
the
protected conduct for which plaintiff Rodriguez argues he was
subjected to third-party retaliation.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
33
First, the Court finds that plaintiffs did not have the
kind of relationship protected in third-party retaliation claims.
Plaintiffs did not even start their romantic relationship until
after plaintiff Colon ceased working at the Policlinica.
(Docket
No. 21-1 at ¶ 15; Docket No. 22-1 at ¶ 29; Docket No. 30-1 at p. 5,
¶ 15; Docket No. 30-2 at p. 4, ¶ 29.)
Furthermore, plaintiffs both
say that they told Dr. Chevres they were only friends and never
admitted to having a romantic relationship.
(Docket No. 21-1 at
¶ 16; Docket No. 22-1 at ¶ 33; Docket No. 31-1 at p. 5, ¶ 16;
Docket No. 30-2 at p. 4, ¶ 33.)
Plaintiffs also allege that
Dr. Chevres asked plaintiff Rodriguez if he was dating another
doctor around the same time she asked about plaintiff Colon.
(Docket No. 30-1 at p. 13, ¶ 37.)
The Court finds that people that
have been suspected of dating each other do not have the type of
close relationship that third-party retaliation claims are designed
to protect because taking action against a suspected romantic
partner
is
reporting
not
likely
harassment.
to
dissuade
See
a
Thompson,
reasonable
131
S.
Ct.
worker
at
from
868-69.
Additionally, as discussed below, the Court finds that plaintiffs
fail to show they engaged in any action protected by Title VII and,
therefore, cannot show a connection between a protected action and
any adverse employment action.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
1.
34
Plaintiff Rodriguez’s Third-Party Retaliation Claim
Plaintiff Rodriguez claims that he was fired as
retaliation for having a romantic relationship with plaintiff
Colon.
(Docket No. 30 at p. 35.)
Plaintiffs present no argument
that having a romantic relationship with a co-worker is an activity
that Title VII protects.
Alternatively, plaintiff Colon states
that she opposed Dr. Chevres’s behavior when she told Dr. Chevres
that she could no longer be held responsible for something that
happened eight years ago.
Id. at p. 29.
No reasonable jury could conclude, however, that
having a romantic relationship is an opposition to conduct that is
unlawful
pursuant
to
Title
VII
because
having
a
relationship does not oppose discriminatory conduct.
romantic
Therefore,
plaintiff Rodriguez’s first argument for third-party retaliation
fails. Plaintiffs do allege, however, that plaintiff Colon opposed
what she believed to be Dr. Chevres’ unlawful conduct when she told
her that she could no longer be held responsible for the previous
sexual
harassment
she
suffered
from
Dr.
Chevres’
husband.
Plaintiffs fail, however, to provide any support for this argument,
other than references their own complaints.
p. 29.
See Docket No. 30 at
The Court may “disregard any statement
of fact not
supported by a specific citation to record material properly
considered on summary judgment.”
Loc. Rule 56(e).
The complaint
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
35
is not a part of the record considered for summary judgment.
See
Fed.R.Civ.P. 56(c). Therefore, taking all reasonable inferences in
favor of the non-moving party, Farmers Ins. Exch., 632 F.3d at 7980, no reasonable juror could find that plaintiff Colon engaged in
conducted protected by Title VII or that plaintiff Rodriguez was
retaliated against for such conduct.
Thus, the Court GRANTS
defendant’s motion for summary judgment on plaintiff Rodriguez’s
third party retaliation claim.
2.
Plaintiff Colon’s Third-Party Retaliation Claim
Plaintiff Colon contends that she was retaliated
against because Dr. Chevres perceived her to be in a relationship
with plaintiff Rodriguez.
(Docket No. 30 at pp. 35-36.)
Taking
reasonable inferences in her favor, the Court concludes that
plaintiff Colon’s third party retaliation claim could be based on
some
action
plaintiff
Rodriguez
took
to
oppose
Dr.
Chevres’
unlawful conduct. Plaintiffs simply state that plaintiff Rodriguez
“objected and repudiated the unlawful conduct” of Dr. Chevres. Id.
at p. 35.
The properly supported facts that plaintiffs provide
show
that
plaintiff
Rodriguez
never
complained
of
harassment; he only asked how he was performing at work.
No. 21-1 at ¶ 29; Docket No. 30-1 at p. 7, ¶ 29.)
sexual
(Docket
Additionally,
when he was uncomfortable with Dr. Chevres standing so close to him
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
36
that she “brushed against him,” he asked her to stop and she
complied, although she “forgot” later.
(Docket No. 21-1 at ¶ 26;
Docket No. 30-1 at p. 6, ¶ 26; Docket No. 21-2 at p. 107.)
Judging
these facts in the light most favorable to plaintiff Rodriguez, the
Court assumes for the purpose of this claim that he believed that
Dr. Chevres was violating Title VII when she brushed against him.
He also indicates, however, that she stopped when he asked her to
do so.
Plaintiff Rodriguez’s actions do not rise to the level of
actions previously protected through the opposition clause of Title
VII.
Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)
(listing “informal protests of discriminatory employment practices,
including making complaints to management, writing critical letters
to customers, protesting against discrimination by industry or by
society in general, and expressing support of co-workers who have
filed formal charges as examples of activity protected pursuant to
Title VII).
Plaintiffs also fail to argue any factual link
between plaintiff Rodriguez’s request for Dr. Chevres to stop
brushing up against him and any adverse employment action taken
against
plaintiff
Colon.
See
Docket
No.
30
at
pp.
34-36.
Furthermore, in her statement of uncontested facts, plaintiff Colon
states that she believes Dr. Chevres mistreated her during this
time because of “the sexual harassment perpetrated by Gonzalez-
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
Amoros.”
37
(Docket No. 30-2 at p. 15, ¶ 61.)
Because plaintiff
Colon cannot provide support for her contention that adverse
employment actions were taken against her because of plaintiff
Rodriguez’s actions, no reasonable jury would find such a link.
Therefore, the Court GRANTS defendant’s motion for summary judgment
on plaintiff Colon’s third-party retaliation claim.
C.
Plaintiff Rodriguez’s Sexual Harassment Claim
Defendant Policlinica next argues that summary judgment
should be granted in its favor on plaintiff Rodriguez’s sexual
harassment claim.
(Docket No. 21 at pp. 10-18.)
Plaintiff
Rodriguez argues that he can make out a quid pro quo harassment
claim and a hostile work environment claim.
pp. 14-26.)
(Docket No. 30 at
The Court finds plaintiff Rodriguez’s arguments
unconvincing.
Title VII prohibits employers from discriminating against
employees on the basis of race, color, religion, sex, or national
origin.
42 U.S.C. § 200e-2(a).
sex-based discrimination.
Sexual harassment is a form of
Quiñones v. Puerto Rico Hosp. Supply,
Inc., 307 F.Supp.2d 352, 357 (D.P.R. 2004).
Sexual harassment can
be proven under a quid pro quo claim or a hostile work environment
claim.
Id.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
1.
38
Quid Pro Quo Sexual Harassment
“[Q]uid pro quo harassment occurs when a supervisor
conditions the granting of job benefits upon the receipt of sexual
favors
from
a
subordinate,
or
punishes
that
subordinate
for
refusing to comply with his/her sexual requests.” Hernandez Loring
v. Universidad Metropolitana, 186 F.Supp.2d 81, 86 (D.P.R. 2002).
To prove a claim for quid pro quo sexual harassment, a plaintiff
“must prove:
(1) that [he or] she was a member of a protected
class; (2) that [he or] she was subject to unwelcome sexual
harassment in the form of sexual advances or requests for sexual
favors; (3)
that
harassment complained
of
was
based
on
sex;
(4) that submission to the unwelcome advances was an express or
implied condition for receiving job benefits, or that refusal to
submit to a supervisor’s sexual demands resulted in a tangible job
detriment; and (5) the existence of respondeat superior liability.”
Id.
“Title VII’s prohibition of discrimination because
of sex protects men as well as women.”
Oncale v. Sundowner
Offshore Serv., Inc., 523 U.S. 75, 78 (1998) (internal quotation
omitted).
Defendant Policlinica does not dispute that plaintiff
Rodriguez is a member of a protected class.
See Docket No. 39.
Rather, it focuses its arguments against quid pro quo harassment on
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
39
the second, third, and fourth elements of the claim. (Docket No. 39
at pp. 11-12.)
In order to prove elements two and three, plaintiff
Rodriguez
argues
that
Dr.
Chevres’
constant
meddling
in
his
personal life was motivated by his gender, and that her “stalking
behavior was further supplemented by ‘explicit sexual conduct.’”
(Docket No. 30 at pp. 19-20.)
The Policlinica counters that
plaintiff Rodriguez has admitted that Dr. Chevres brushed her
breast against him when he tried to show her something on his
computer because she could not see well and that her interest in
his personal life does not constitute sexual harassment.
No. 21 at pp. 15-17; Docket No. 39 at pp. 11-12.)
(Docket
Plaintiff
Rodriguez was often shocked because Dr. Chevres would inquire
whether he was dating plaintiff Colon or a doctor, inquired why he
failed to tell her that he had moved, and “would talk to him about
things that she had to speak to [him] about and about things she
didn’t have to speak to [him] about.”
(Docket No. 30-1 at p. 9,
¶ 10; p. 11, ¶¶ 23-28; p. 12, ¶ 30; p. 13, ¶¶ 36-40.)
Plaintiff
Rodriguez states that the sexual harassment he suffered was when
“he would be showing something to [Dr. Chevres] on the monitor, she
could not see well so she would approach and brush against him.”
(Docket No. 21-1 at ¶ 24; Docket No. 30-1 at p. 6, ¶ 24.)
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
When
considering
both
40
plaintiffs’
statement
of
facts, a reasonable jury may or may not find that Dr. Chevres
inquired
into
both
plaintiffs’
personal
inquiries made them uncomfortable.
lives
and
that
her
While the facts surrounding
Dr. Chevres’ questioning remain disputed, the Court finds that they
are not material and are irrelevant as a matter of law.
The First
Circuit Court of Appeals has noted that anti-discrimination laws
are not designed to address a supervisors’ lack of professionalism.
Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 46-47
(1st Cir. 2003). In Lee-Crespo, the First Circuit Court of Appeals
reviewed the grant of summary judgment on a sexual harassment claim
that a saleswoman brought against her female manager.
Id. at 37.
The saleswoman alleged that the manager discussed the private lives
and sexual preferences of other employees at the company; made
comments that the saleswoman was assigned her territory and did
well because of her good looks; spread a rumor that the saleswoman
was “crawling drunk” at a wedding; and made many inquiries into the
saleswoman’s life that made her feel uncomfortable.
Id. at 38-41.
Similarly,
a
plaintiff
Rodriguez
has
experienced
supervisor
inquiring into his personal life and commenting on the personal
lives of co-workers.
unprofessional
harassment.
and
While these types of inquiries are likely
intrusive,
they
do
not
constitute
sexual
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
Taking
reasonable
41
inferences
in
plaintiff
Rodriguez’s favor and assuming that Dr. Chevres wore tight, low-cut
dresses to work and would not wear underwear, the Court finds such
behavior does not support a quid pro quo claim because it is not
gender-based harassment.
Rodriguez]
was
exposed
“It does not appear that [plaintiff
to
any
disadvantageous
condition
of
employment to which a female co-worker would not be exposed.”
Garcia v. V. Suarez & Co., 288 F.Supp.2d 148, 160 (D.P.R. 2003)
(finding that male employees grabbing each others buttocks and
talking about females, females’ appearances, and what the males did
with the females failed to constitute gender-based harassment
because women were just as likely to be exposed to these conditions
as men).
Plaintiff
Rodriguez’s
only
remaining
sexual
harassment allegation is that Dr. Chevres brushed her breasts
against him while she was looking at his computer screen.
Even
assuming that a reasonable jury could find that there was a sexual
advance based on gender, the Court finds that no reasonable jury
could find it is a basis for a quid pro quo claim.
Dr. Chevres
never told plaintiff Rodriguez that he had to consent to the
harassment in order to remain employed.
(Docket No. 21-1 at ¶ 32;
Docket No. 30-1 at p. 7, ¶ 32; Docket No. 21-2 at p. 129.)
In
fact, when he was bothered by it, he asked her to stop and she
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
complied.
42
(Docket No. 21-1 at ¶ 26; Docket No. 30-1 at p. 6, ¶ 26;
Docket No. 21-2 at p. 107.)
While plaintiff Rodriguez contends
that sometimes she would forget and it would happen again, he does
not allege that Dr. Chevres even implicitly insinuated he had to
allow her to continue to brush her breasts against him in order to
stay employed. Because plaintiff Rodriguez fails to establish that
Dr. Chevres ever insinuated that the maintenance of his employment
hinged on whether she could continue to brush against him, no
reasonable jury could find that he established a quid pro quo
claim.
See Rivera-Abella v. Puerto Rico Tel. Co., 470 F.Supp.2d
86, 108 (D.P.R. 2007) (finding that summary judgment should be
granted when the record did not contain any request for sexual
favors, the plaintiff only used conclusory statements to support
her claim, and that there was no connection made between the
plaintiff’s rejection of such advances and “a tangible aspect of
her employment”).
Thus, the Court GRANTS defendant Policlinica’s
motion for summary judgment on plaintiff Rodriguez’s quid pro quo
claim.
2.
Hostile Work Environment Sexual Harassment
Defendant
Policlinica
asks
the
Court
to
grant
summary judgment on plaintiff Rodriguez’s hostile work environment
claim because even if the alleged events took place, “the isolated
events . . . were not severe or pervasive enough to create a
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
sexually
hostile
environment.”
(Docket
43
No.
21
at
p.
18.)
Plaintiff Rodriguez argues that even though he was able to get his
work done, Dr. Chevres’ constant inquiries into his life, brushing
against him, and choice of revealing outfits amounted to a hostile
work environment.
(Docket No. 30 at pp. 19-22.)
A plaintiff can establish a hostile work environment
claim by showing “that the complained-of conduct was so severe or
pervasive that it altered the terms or conditions of [his or] her
employment.”
Pomales v. Celulares Telefonica, Inc., 447 F.3d 79,
83 (1st Cir. 2006).
“‘There is no mathematically precise test to
determine whether [a plaintiff] presented sufficient evidence’ that
[he or] she was subjected to a severely or pervasively hostile work
environment.” Id. (quoting Kosereis v. Rhode Island, 331 F.3d 207,
216 (1st Cir. 2003)).
circumstances,
including
The Court examines “all the attendant
the
frequency
of
the
discriminatory
conduct; its severity; whether it was physically threatening or
humiliating,
or
a
mere
offensive
utterance;
and
whether
unreasonably interfered with an employee’s work performance.”
it
Id.
(citing O’Rourke v. Providence, 235 F.3d 713, 729 (1st Cir. 2001)).
Because this examination is fact specific, it is normally best for
the jury to decide, but “summary judgment is an appropriate vehicle
for ‘policing the baseline for hostile environment claims.’”
Id.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
44
(quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir.
1999) (en banc) (internal citations omitted)).
Plaintiff
Rodriguez’s
main
complaint
is
that
Dr. Chevres asked him many questions about his personal life,
including his dating choices and where he was living. As discussed
earlier, while these inquires were likely unprofessional and made
plaintiff Rodriguez uncomfortable, this is not the kind of conduct
anti-discrimination laws are designed to prevent.
354 F.3d at 46-47.
revealing
See Lee-Crespo,
As stated previously, Dr. Chevres’ choice of
outfits
is
not
the
type
of
gender-motivated
discrimination that Title VII protects because both male and female
employees are subjected to the conduct.
Co., 288 F.Supp.2d at 160.
Dr.
Chevres
brushed
against
See Garcia v. V. Suarez &
This leaves the incidents where
plaintiff
Rodriguez
as
the
only
supported allegation of sexual harassment that could be considered
as contributing to a hostile work environment.
“Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environment — an
environment that a reasonable person would find hostile or abusive
— is beyond Title VII’s purview.”
Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citing Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 67 (1986)).
“The workplace is not a cocoon, and those
who labor in it are expected to have reasonably thick skins – thick
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
45
enough, at least, to survive the ordinary slings and arrows that
workers routinely encounter in a hard, cold world.”
Suarez v.
Pueblo Intern., Inc., 229 F.3d 49, 54 (1st Cir. 2000).
Plaintiff
Rodriguez
states
that
he
was
only
uncomfortable around Dr. Chevres during the last three months of
his employment.
(Docket No. 21-1 at ¶ 31; Docket No. 30-1 at p. 7,
¶ 31; p. 14, ¶ 44.)
While he does not state how often it happened,
plaintiff Rodriguez claims that Dr. Chevres sexually harassed him
when she brushed her breasts against him when she was looking at
what he was showing her on the computer screen.
at ¶ 24; Docket No. 30-1 at p. 6, ¶ 24.)
(Docket No. 21-1
One time, when it
bothered him, he asked her to keep her distance and she complied
for some time.
(Docket No. 21-1 at ¶ 26; Docket No. 30-1 at p. 6,
¶ 26; Docket No. 21-2 at p. 107.)
awhile and did it again.
He stated that she forgot after
(Docket No. 21-1 at ¶ 26; Docket No. 30-1
at p. 6, ¶ 26; Docket No. 21-2 at p. 107.)
While plaintiff
Rodriguez says he felt humiliated about the situation, he never
complained to anyone about the harassment.
¶ 29; Docket No. 30-1 at p. 7, ¶ 29.)
(Docket No. 21-1 at
Additionally, when he asked
about his work performance, Dr. Chevres told plaintiff Rodriguez
that he was doing excellent work.
¶ 41.)
(Docket No. 30-1 at p. 14,
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
46
The Court finds that plaintiff Rodriguez has not
established an actionable hostile work environment claim.
allegations
are
that
Dr.
Chevres
brushed
against
him
His
on
an
unidentified number of occasions, but when he asked her to stop,
she did.
He says that she forgot after awhile, but fails to say
whether he asked her to stop again.
He also states that he was
able to get his work done without any complaints from Dr. Chevres.
He was only bothered for three months.
This is clearly within the
realm of conduct that courts have found are not actionable pursuant
to Title VII.
See Morgan v. Massachusetts Gen. Hosp., 901 F.2d
186, 192-93 (1st Cir. 1990) (finding that a male co-worker standing
behind the plaintiff to cause physical contact; looking at the
plaintiff’s privates in the restroom; and engaging in unwanted
touching over a two week period was not sufficiently severe or
persuasive to be actionable pursuant to Title VII); Chamberlin v.
101 Realty, Inc., 915 F.2d 777, 782-83 (1st Cir. 1990) (commenting
that
it
is
highly
doubtful
that
five
sexual
advances
by
a
supervisor “[c]ould be considered sufficiently severe or pervasive
to support” a hostile work environment claim pursuant to Title
VII).
Because a supervisor brushing up against an employee as she
is looking over his shoulder to view something on a screen is not
“severe or pervasive” enough to support a hostile work environment
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
47
claim, the Court GRANTS defendant’s motion for summary judgment on
plaintiff Rodriguez’s hostile work environment claim.
D.
Plaintiff Colon’s Retaliatory Hostile Work Environment
Defendant
Policlinica
next
asks
the
Court
to
grant
summary judgment on plaintiff Colon’s retaliatory hostile work
environment claim because her arguments fail to support her claim.
(Docket No. 39 at pp. 16-17.)
To establish a claim for retaliation
pursuant to Title VII, “a plaintiff must show (1) that he or she
engaged in protected conduct; (2) that he or she suffered an
adverse employment action’ and (3) that the adverse employment
action was causally connected to the protected conduct.”
Moreno-
Rivera v. DHL Global Forwarding, 762 F.Supp.2d 397, 404 (D.P.R.
2011).
hostile
Pursuant to Title VII, “the creation and perpetuation of a
work
environment
can
comprise
a
retaliatory
employment action under 42 U.S.C. § 2000e-3(a).”
of Boston, 398 F.3d 76, 89 (1st Cir. 2005).
adverse
Noviello v. City
In order to show that
she was subject to a hostile work environment, a plaintiff must
show: “(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
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
48
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
Moreno-Rivera,
citations omitted).
employer
762
liability
F.Supp.2d
at
405
has
been
(internal
Because this inquiry is fact specific, it is
normally left for a jury to decide, but “summary judgment is an
appropriate
vehicle
for
policing
the
baseline
for
hostile
environment claims.” Id. (quoting Pomales v. Celulares Telefonica,
Inc., 447 F.3d 79, 83 (1st Cir. 2006)).
1.
Protected Conduct
Outside of participating in a formal proceeding
opposing sexual harassment, an employee has engaged in a protected
activity pursuant to Title VII if he or she “opposed any practice
made an unlawful employment practice by Title VII.”
F.3d at 32 (internal citations omitted).
Fantini, 557
The opposition clause
protects “informal protests of discriminatory employment practices,
including making complaints to management, writing critical letters
to customers, protesting against discrimination by industry or by
society in general, and expressing support of co-workers who have
filed formal charges. Id. (internal citations omitted). Plaintiff
Colon alleges that she opposed what she believed to be Dr. Chevres’
unlawful conduct when she told Dr. Chevres that she could no longer
be held responsible for the previous sexual harassment she suffered
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
at the hands of Dr. Chevres’ husband.
complaint in support of this argument.
49
She referenced her own
See Docket No. 30 at p. 29.
The Court may “disregard any statement of fact not supported by a
specific citation to record material properly considered on summary
judgment.”
Loc. Rule 56(e).
The complaint is not a part of the
record considered for summary judgment.
See Fed.R.Civ.P. 56(c).
Additionally, this argument is circular because plaintiff Colon
seems to allege she was subjected to a hostile work environment for
opposing the hostile work environment.
Alternatively, plaintiff Colon seems to allege she
was retaliated against because she reported Dr. Chevres’ husband’s
harassment
years
earlier.
Plaintiff
Colon
also
states
that
Dr. Chevres asked her to stay following the harassment, promoted
her, and they became friends in the years between.
(Docket No. 22-
1 at ¶¶ 10 & 12; Docket No. 30-2 at p. 2, ¶ 10; p. 3, ¶ 12; Docket
No. 30-8 at p. 35.)
No reasonable jury would find that there is a
connection between plaintiff Colon reporting this earlier sexual
harassment and Dr. Chevres’ later treatment of her because of the
great length of time and friendship that developed between the two
in the years between. Even if plaintiff Colon could establish some
connection,
however,
the
statute
of
limitations
has
run.
Therefore, taking all reasonable inferences in favor of the non-
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
50
moving party, no reasonable jury could find that plaintiff Colon
engaged in conduct protected by Title VII.
2.
Hostile Work Environment Claim
Plaintiff Colon has established that she is a member
of a protected class because of her gender.
contends
that
the
harassment
she
suffered
Plaintiff Colon
was
Dr.
Chevres’
interrogations about her relationship with plaintiff Rodriguez and
the loud tone of voice Dr. Chevres used when speaking to her.
(Docket No. 30 at pp. 30-32.)
Plaintiff provides examples of the interrogation:
Dr. Chevres addressed plaintiff Colon in a loud tone of voice and
repeatedly said, “Everything Ok?, Everything Ok? Well, that’s the
way it should be.”
(Docket No. 30-2 at p. 9, ¶ 20; p. 11, ¶ 39.)
Dr. Chevres also warned her, saying, “Do not make me act as another
type of boss.”
Dr.
Chevres
Dr. Chevres
Rodriguez.
(Docket No. 30-2 at p. 12, ¶ 42.)
used
was
a
tone
of
threatening
voice
her
to
She alleges that
that
made
her
stay
away
from
(Docket No. 30-2 at p. 9, ¶ 22.)
know
that
plaintiff
Plaintiff Colon also
alleges that Dr. Chevres warned her to stay away from plaintiff
Rodriguez and that plaintiff Colon’s children would be grateful if
she did.
(Docket No. 30-2 at p. 12, ¶ 44.)
She also alleges that
Dr. Chevres said negative things about her to plaintiff Rodriguez
and other people.
(Docket No. 30-1 at p. 11, ¶ 22.)
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
51
Plaintiff Colon fails to establish that Dr. Chevres’
inquiries were motivated by gender because plaintiff Rodriguez, a
male, was subjected to the same inquiries.
Additionally, no
reasonable jury could reasonably find that the questions and loud
tone of voice Dr. Chevres used over approximately a month (between
November 1, 2010 and December 2, 2010 when she reported to the SIF)
constituted an objectively hostile work environment.
See Lee-
Crespo, 354 F.3d at 46-47 (finding that a manager discussing the
private lives and sexual preferences of other employees at the
company; making comments that the saleswomen was assigned her
territory and did well because of her good looks; spread a rumor
that the saleswomen was “crawling drunk” at a wedding; and made
many inquiries into the saleswomen’s life that made her feel
uncomfortable was not the type of conduct that Title VII was
designed to combat).
Because plaintiff Colon cannot establish that she
engaged in protected conduct or suffered from a hostile work
environment, the Court declines to address the third element of
whether
there
elements.
is
a
causal
connection
between
the
first
two
Accordingly, the Court GRANTS defendant’s motion for
summary judgment on plaintiff Colon’s retaliatory hostile work
environment claim.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
E.
52
Plaintiff Colon’s Constructive Discharge Claim
Defendant Policlinica requests the Court to grant its
motion for summary judgment on plaintiff Colon’s constructive
discharge claim because plaintiff Colon was discharged from SIF and
told she could return to work, but she refused and resigned without
attempting to return.
(Docket No. 39 at p. 18.)
Plaintiff Colon
argues that the fact that she resigned so quickly after her release
from SIF supports her contention that she was constructively
discharged.
(Docket No. 30 at pp. 36-37.)
She also states that
she became depressed because she was subjected to an objectively
hostile and aggressive work environment.
Id.
To establish a constructive discharge claim, “a plaintiff
must show working conditions so intolerable that a reasonable
person would feel compelled to forsake his job rather than to
submit to looming indignities.”
Serrano-Nova v. Banco Popular de
Puerto Rico, Inc., 254 F.Supp.2d 251, 262 (D.P.R. 2003) (internal
quotations omitted).
A prima facie constructive discharge claim
requires a plaintiff to establish that he or she:
(1) was within
a protected class; (2) met the employer’s legitimate performance
expectations; (3) was actually or constructively discharged; and
(4) was replaced by another with similar skills and qualifications.
Id. at 262-63.
The standard for showing that his or her working
conditions were so difficult that he or she was compelled to resign
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
is
an
objective
one;
it
“cannot
be
53
triggered
solely
by
the
employee’s subjective beliefs, no matter how sincerely held.”
Suarez, 229 F.3d at 54. “Creation of a hostile work environment is
a
necessary
predicate
to
a
hostile-environment
constructive
discharge case . . . [T]he only variation between the two claims is
the severity of the hostile working conditions.”
Acosta v. Harbor
Holdings & Operations, Inc., 674 F.Supp.2d 351, 362 (D.P.R. 2009)
(quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 149
(2004)).
“The mere existence of a hostile work environment,
however, is often not enough to support a finding of a constructive
discharge.”
Serrano-Nova,
254
F.Supp.2d
at
263
(internal
quotations omitted). As noted previously, plaintiff Colon fails to
establish that she was subjected to a hostile work environment.
Because plaintiff Colon would have to establish, at a minimum, that
she was subject to a hostile work environment before she could
begin to establish a constructive discharge claim, the Court GRANTS
defendant’s motion for summary judgment on this claim.
F.
Plaintiffs’ Puerto Rico Commonwealth Claims
Plaintiffs and defendant Policlinica both acknowledge
that
the
Commonwealth
claims
plaintiffs
identical to the Title VII claims.
bring
are
virtually
(Docket No. 21 at pp. 21-23;
Docket No. 22 at pp. 20-22; Docket No. 30 at p. 38.)
plaintiffs
and
the
Policlinica
agree
that
the
success
Both
of
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
54
plaintiffs’ Commonwealth claims hinge on the success of plaintiffs’
Title VII claims; they also agree that if plaintiffs’ Title VII
claims do not survive then their Commonwealth claims fail as well.
See id.
Defendant Policlinica asks the Court to grant summary
judgment
on
plaintiffs’
Commonwealth
claims,
arguing
that
no
reasonable jury would be able to find for plaintiffs on their
Commonwealth claims for the same reasons as the Title VII claims.
Alternatively, they request that the Court decline to exercise its
jurisdiction over their Commonwealth claims.
pp. 21-23; Docket No. 22 at pp. 20-22.)
(Docket No. 21 at
Plaintiffs argue that
summary judgment should not be granted because they can establish
the Title VII claims and, therefore, can establish the Commonwealth
claims as well.
(Docket No. 30 at p. 38.)
Because the Court has
found that plaintiffs’ Title VII claims fail to survive summary
judgment, the Court also GRANTS defendant’s motion for summary
judgment on plaintiffs’ Commonwealth claims.
V.
CONCLUSION
Plaintiffs fail to present sufficient evidence to establish
issues of material fact to rebut defendants’ motions for summary
judgment.
For the reasons stated above, defendants’ motions for
summary judgment are GRANTED.
Both cases, 11-2235 and 11-2236 are
DISMISSED WITH PREJUDICE.
Judgments shall be entered accordingly.
Civil No. 11-2235 & Civil No. 11-2236 (FAB)
IT IS SO ORDERED.
San Juan, Puerto Rico, April 29, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
55
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