Rodriguez-Arce v. The Puerto Rico Ombudsman Management Office et al

Filing 118

ORDER granting in part and denying in part 99 Motion to Alter Judgment; denying 101 Motion for Judgment as a Matter of Law; denying 108 Motion for New Trial; denying 108 Motion to Alter Judgment Signed by Judge Juan M. Perez-Gimenez on 03/31/2015. (TW)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
NOEMI RODRIGUEZ ARCE,
Plaintiff,

Civil No. 12-1200 (PG)

v.
THE
PUERTO
RICO
OMBUDSMAN
MANAGEMENT OFFICE; THE PUERTO RICO
OMBUDSMAN
OFFICE
FOR
RETIRED
PERSONS
AND
THE
ELDERLY;
THE
COMMONWEALTH OF PUERTO RICO,
Defendant.
OMNIBUS OPINION AND ORDER
The

Court

evidence

that

is
an

asked

employer

to

decide

had

whether

retaliated

there

against

was
an

sufficient

employee

for

protected conduct.
I. BACKGROUND
Noemi
Ombudsman

Rodriguez-Arce
Office

for

Retired

Office) on August 16, 2007.
Ombudsman’s

Office,

started

working

Persons

and

for

the

the

Elderly

Puerto

Rico

(Ombudsman’s

Shortly after she started working for the

Rodriguez-Arce

received

several

documents

detailing internal rules and regulations regarding sexual harassment
and

discrimination

process

by

which

sexual harassment.

in
an

the

workplace.

employee

could

The
file

an

documents
internal

outlined
complaint

the
of

Rodriguez-Arce worked as a coordinator of programs

for the elderly, assigned to the Protection and Defense Program.

In

this role, Rodriguez-Arce’s immediate supervisor was Wilma Cruz-Calo,
the program supervisor for the Ombudsman’s Office.

As an immediate

Civil No. 12-1200 (PG)

Page 2

supervisor, Cruz-Calo was charged with assigning work, approving work
schedules, and filing work performance evaluations.
But the relationship between Rodriguez-Arce and Cruz-Calo was not
entirely professional.

Starting in 2008, Rodriguez-Arce and Cruz-Calo

were

intimate

involved

in

an

relationship.

An

added

layer

of

complexity to this relationship was that Cruz-Calo was also in a longstanding relationship with another member of the Ombudsman’s Office,
Carmen

Ortiz,

the

Deputy

Ombudsman

of

the

Protection

and

Defense

Program.
Rodriguez-Arce alleges that, after she ended their relationship,
Cruz-Calo’s

workplace

behavior

dramatically

changed:

Rodriguez-Arce

became a target for harassment, intimidation, and persecution from her
former intimate.
On October 25, 2010, Cruz-Calo and Ortiz jointly sent Rossana
Lopez-Leon, the director of the Ombudman’s Office of human resources,
a recommendation for disciplinary action against Rodriguez-Arce.
On January 26, 2011, Lopez-Leon issued a letter to Rodriguez-Arce
notifying her of a possible suspension from employment and pay because
of several workplace violations.

An amended letter was sent in March,

detailing Rodriguez-Arce’s right to pursue an administrative hearing
regarding the allegations of workplace violations.
On

May

17,

2011,

Rodriguez-Arce

submitted

a

confidential

complaint to the Ombudsman’s Office detailing her relationship with
Cruz-Calo.

While the letter made no explicit references to sexual

harassment, it did detail Cruz-Calo’s changed attitude following the
end

of

her

relationship

with

Rodriguez-Arce.

Also,

in

May

2011,

Civil No. 12-1200 (PG)

Rodriguez-Arce

Page 3

filed

a

charge

of

discrimination

Employment Opportunity Commission (EEOC).

with

the

Equal

Shortly thereafter, Lopez-

Leon requested Rodriguez-Arce take a thirty-day leave of absence.
In August of 2011, Rodriguez-Arce was transferred to a different
division

of

the

Ombudsman’s

Office.

This

transfer

was

not

a

disciplinary action.
In February of 2012, the Ombudsman’s Office received a written
complaint

from

a

performance.

medical

Following

provider
an

about

Rodriguez-Arce’s

investigation

into

Rodriguez-Arce was suspended for thirty days.

the

poor

complaint,

In March of 2012, the

president of the Puerto Rico Telecommunications Regulatory Board sent
a complaint to the Ombudsman’s Office complaining about a visit that
Rodriguez-Arce

had

made

to

the

Telecommunications

Board’s

office.

During her visit, Rodriguez-Arce displayed erratic and unprofessional
behavior.
resulted

A
in

terminated.

subsequent

the

investigation

recommendation

that

by

the

Ombudsman’s

Rodriguez-Arce’s

Office

employment

be

On March 16, 2012, Rodriguez-Arce was notified of her

termination.
On March 21, 2012, Rodriguez-Arce filed a complaint (Docket No.
1) against the Puerto Rico Ombudsman Management Office, Puerto Rico
Ombudsman

for

the

Retired

Commonwealth of Puerto Rico.

Persons

and

the

Elderly,

and

the

Shortly thereafter, Rodriguez-Arce filed

a first (Docket No. 5) and then a second (Docket No. 8) amended
complaint. Finally, on May 25, 2012, Rodriguez-Arce filed a third
amended complaint.

(Docket No. 12.)

dismiss on August 14, 2012.

The defendants filed a motion to

(Docket No. 18.)

The Court issued an

Civil No. 12-1200 (PG)

opinion

and

Page 4

order

denying

the

motion

to

dismiss

but

granting

the

Rodrigues-Arce’s request to dismiss the supplemental commonwealth law
claims.

(Docket No. 24.)

On January 22, 2014, the defendants filed a

motion for summary judgment.
defendants’ motion.
with

the

jury

(Docket No. 40).

(Docket No. 72.)

ultimately

Rodriguez-Arce

on

her

Rodriguez-Arce

moved

returning

claim
to

for

alter

The Court denied the

The case was heard at trial,
a

$115,000

retaliation.

the

judgment

in

favor

(Docket

No.

93.)

to

request

(Docket No. 99).

equitable relief and pre-judgment interest.

in

verdict

order

Shortly

thereafter, in June of 2014, the defendants’ moved for judgment as a
matter of law.

(Docket No. 101.)

an

motion

alternative

for

a

new

Subsequently, the defendants’ filed
trial

Rodriguez-Arce’s claim of retaliation.

on

the

discrete

issue

of

(Docket No. 108).

II. LEGAL STANDARD
Rule 50(a)(1)
Judgment as a matter of law is granted only after the Court
examines the evidence, as well as all permissible inferences, in the
light most favorable to the non-movant and finds a result with which
reasonable

minds

could

not

disagree.

Martinez-Serrano

v.

Quality

Health Services of Puerto Rico, Inc., 568 F.3d 278, 285 (1st Cir.
2009).

The

Court

may

not

take

into

account

the

credibility

of

witnesses, resolve evidentiary conflicts, nor ponder the weight of the
evidence introduced at trial.

Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150, (2000).

While the Court reviews the record

as a whole, it disregards all evidence favorable to the moving party
that the jury is not required to believe.

Id. at 151.

Civil No. 12-1200 (PG)

Page 5

Rule 59(a)
Rule 59(a) provides that motions for a new trial may be granted,
in an action involving a trial by jury, “for any reason for which a
new trial has heretofore been granted in an action at law in federal
court.”

Fed.R.Civ.P.

59(a).

The

First

Circuit

has

generally

interpreted this provision to mean that a district court should grant
a motion for a new trial only when a jury has reached a seriously
erroneous result as evidenced by either the verdict being against the
weight of the evidence or to prevent manifest injustice.

Jennings v.

Jones, 587 F.3d 430, 436 (1st Cir. 2009).
Rule 59(e)
Federal Rule of Civil Procedure 59(e) allows a party to move the
court to amend its judgment within twenty-eight days after entry of
the judgment.

Rule 59(e) relief is granted sparingly.

In general,

there are four basic grounds upon which a Rule 59(e) motion may be
granted: (1) if such motion is necessary to correct manifest errors of
law or fact upon which the judgment rests; (2) if such motion is
necessary

to

present

newly

discovered

or

previously

unavailable

evidence; or (3) in certain other situations, such as an intervening
change in controlling law.

Biltcliffe v. CitiMortgage, Inc., 772 F.3d

925, 930 (1st Cir. 2014)(quoting Global Naps, Inc. v. Verizon New
England, Inc., 489 F.3d 13, 25 (1st Cir. 2007)).
III. DISCUSSION
The defendants move for judgment as a matter of law, or, in the
alternative, a new trial.

The Court denies their motions.

Civil No. 12-1200 (PG)

A.

Page 6

The defendants are not entitled to judgment as a matter of law on

Rodriguez-Arce’s claim of retaliation
The defendants argue that a reasonable jury could not find for
Rodriguez-Arce.

The Court disagrees.

A Rule 50 motion may be granted when, after viewing the evidence
in the light most favorable to the nonmoving party, “there is no
legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue.”

Fed.R.Civ.P. 50(a); see also, Malone v.

Lockheed Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010)(holding that a
court

may

only

overwhelmingly

disturb
points

a

in

jury’s

favor

determination

of

the

moving

when
party

the

evidence

such

that

no

reasonable jury could have returned a verdict adverse to that party).
Whether
employment

judgment

context

as

a

depends

matter
on

a

of

law

number

is

of

appropriate

factors,

in

the

including

the

“strength of the plaintiff’s prima facie case, the probative value of
the proof that the employer’s explanation is false, and any other
evidence that supports the employer’s case and that properly may be
considered on a motion for judgment as a matter of law.”

Reeves, 530

U.S. at 148-49.
Here, the defendants argue that Rodriguez-Arce failed to present
sufficient evidence to take her retaliation claim to a jury.
establish
Fourteenth

a

prima

facie

Amendments,

claim

of

retaliation

Rodriguez-Arce

had

the

under
burden

the
of

First

To
and

producing

evidence from which a jury could reasonably conclude that: (1) she was
engaged in protected activity; (2) the defendants committed an adverse
action

against

her;

and

(3)

the

adverse

action

was

motivated

in

Civil No. 12-1200 (PG)

substantial

Page 7

part

by

her

constitutionally-protected

activity.

Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 24 (1st Cir.
2014).
Rodriguez-Arce has satisfied the first two prongs of this claim.
As the defendants concede in their motion, Rodriguez-Arce was engaged
in

protected

conduct

when

she

filed

her

letter

detailing

her

relationship with Cruz-Calo with the human resources office.
Jackson

v.

(holding

Birmingham

that

Bd.

Of

“retaliation

Ed.,
in

544

U.S.

response

167,

to

[proscribed] discrimination is discrimination”).

n.3

(2005)

complaint

a

179

See

about

A jury could also

reasonably conclude that Rodriguez-Arce’s suspension and subsequent
termination in this instance amounted to an adverse employment action.
See Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 240 (1st Cir. 2010).
The

debatable

Rodriguez-Arce
activity.

was

point

is

motivated

whether
in

the

substantial

adverse
part

action

by

her

against
protected

The jury concluded that Rodriguez-Arce presented adequate

evidence to support a finding that defendants suspended and terminated
Rodriguez-Arce for improper reasons, a conclusion with which the Court
agrees.
The

record,

Rodriguez-Arce

and

testimony

maintained

that

at
she

trial,

clearly

verbally

indicates

notified

the

that
human

resources department of sexual harassment well before receiving the
letters notifying her of her suspension — and therefore her suspension
was

merely

pretextual.

The

defendants

urge

the

Court

to

review

testimony at trial that indicated Rodriguez-Arce did not notify human
resources

of

her

relationship

with

Cruz-Calo

until

she

sent

her

Civil No. 12-1200 (PG)

Page 8

confidential letter in May of 2011 – a letter that did not detail
sexual

harassment

but,

instead,

allegations of domestic abuse.

asked

for

an

investigation

into

But to measure the persuasive value of

the testimony at trial from human resources officers Damarys Velázquez
and Lissette Hernández, the former director of the Ombudsman’s human
resources

department,

would

credibility determination.

require

the

Court

to

engage

in

a

A jury has already taken the measure of

the testimony offered from Velazquez and Hernáandez — and RodriguezArce.

The

notified

jury

the

found

human

Rodriguez-Arce’s

resources

office

of

claim
her

that

she

complaint

verbally

of

sexual

harassment persuasive.
Next,

the

unprofessional
ultimate

defendants
behavior

in

termination.

point

to

early

First,

Rodriguez-Arce’s

2012

the

as

erratic

justification

Ombudsman’s

Office

and

for

her

received

a

written complaint from a medical care provider who had encountered
difficulties

with

Rodriguez-Arce’s

abusive behavior.

performance

and

allegations

Following the receipt of the letter, a written

reprimand was inserted into Rodriguez-Arce’s personnel file.
thereafter,

Rodriguez-Arce

Telecommunications Board.
visited

the

office

Telecommunications
erratic.
Ombudsman’s

After

of

in

Office

the

office

of

the

Puerto

Rico

At trial, Rodriguez-Arce testified that she
her

Office
an

visited

Shortly

personal

said

internal
terminated

that
review

capacity.

Employees

Rodriguez-Arce
of

these

Rodriguez-Arce’s

two

of

the

abusive

and

incidents,

the

was

employment

–

nine

months after the receipt of Rodriguez-Arce’s letter in May of 2011.
But emphasizing these two incidents ignores the fact that Rodriguez-

Civil No. 12-1200 (PG)

Page 9

Arce’s theory of the case was that she had already been retaliated
against.

Rodriguez-Arce argued at trial that the letters sent in

early 2011 detailing her suspension constitute an adverse employment
action.
That the defendants are displeased with the jury’s verdict is
understandable.

Both

parties

to

refused to settle their dispute.

this

litigation

took

risks

and

But the defendants have presented no

grounds for disturbing the jury’s verdict.

As such, we decline to do

so here.
B.

The defendants are not entitled to a new trial on the discrete

issue of Title VII retaliation or to alter the judgment.
In the alternative to their motion for a judgment as a matter of
law, the defendants request an alteration to the judgment or a new
trial pursuant to Federal Rule of Civil Procedure 59(a).

Rule 59(b)

of the Federal Rules of Civil Procedure provides that a motion for new
a trial must be filed no later than 28 days after the entry of the
judgment.

Fed.R.Civ.P. 59(b).

Because the Court entered its order on

May 21, 2014, and the defendants filed their motion for a new trial on
June 18, 2014, the motion to for a new trial is timely under Rule
59(b).
The defendants request for a new trial on the discrete issue of
retaliation
against

the

is

predicated

jury

verdict;

on
and

(1)

the

(2)

confused by an erroneous instruction.

the

weight

of

jury

was

the

evidence

likely

misled

was
or

The Court disagrees.

The defendants take issue with the fact that despite supposedly
“uncontroverted evidence” proving that there were permissible reasons

Civil No. 12-1200 (PG)

Page 10

for Rodriguez-Arce’s suspension and termination, the jury nonetheless
found

that

the

defendants

retaliated

against

raised allegations of sexual harassment.

plaintiff

after

she

According to defendants,

this means that the jury's verdict went against the great weight of
the evidence, and therefore represents a miscarriage of justice.

But

it is simply inaccurate for the defendants to claim that these issues
were

established

by

uncontroverted

evidence.

To

the

contrary:

conflicting evidence was presented on these issues by both sides.

It

was entirely proper for a reasonable jury, as the trier of fact, to
weigh the evidence and arrive at its conclusion.
Next,

the

defendants

charge

that

the

Court

erred

in

an

instruction to the jury regarding one of the defendants’ exhibits.
However, even if this Court indulged the defendant’s argument that it
erred in instructing the jury on one of the exhibits, any such error
seems

harmless

under

the

circumstances

because

the

defendant

has

failed to show that the outcome of the case would have changed.
The Court does not find merit in the defendant’s other attacks on
the

judgment.

Viewing

the

contested

evidence

in

the

light

most

favorable to Rodriguez-Arce and making all credibility determinations
and drawing all inferences in her favor, we cannot say there was no
legally sufficient evidentiary basis for a reasonable jury to find
that the defendants retaliated against Rodriguez-Arce.
C.

The plaintiff is not entitled to back pay, reinstatement, or pre-

and post-judgment interest.
Rodriguez-Arce moves to alter or amend the judgment.

Rule 59(e)

of the Federal Rules of Civil Procedure provides that a motion to

Civil No. 12-1200 (PG)

Page 11

alter or amend a judgment must be filed no later than 28 days after
the entry of the judgment.

Fed.R.Civ.P. 59(e).

Because the Court

entered its order on May 21, 2014, and Rodriguez-Arce filed her motion
to reconsider two days later, the motion to amend is timely under Rule
59(e).
A district court has wide discretion to award equitable relief
but must act consistently with the underlying goals of Title VII to
eliminate discrimination throughout the economy.

Che v. Massachusetts

Bay Transp. Authority, 342 F.3d 31, 43 (1st Cir. 2003).

Additionally,

the Court assesses equitable relief in light of “the entire remedial
fabric.”

Id.

Rodriguez-Arce
reinstatement

and

contends
award

that

the

back-pay.

Court

should

Reinstatement

is

order
an

her

equitable

remedy but falls within the discretionary authority of the Court.
Velazquez

v.

Figueroa-Gomez,

996

F.2d

425,

428

(1st

Cir.

1993).

Several prudential matters counsel against reinstating Rodriguez-Arce:
(1)

Rodriguez-Arce

has

found

alternative

work;

(2)

Rodriguez-Arce

engaged in a consensual workplace relationship that eventually turned
sour,

leading

supervisors

of

her

to

sexual

unsuccessfully
harassment;

accuse
(3)

two

while

Ombudsman’s
tension

or

Office
ongoing

hostility between parties is usually insufficient grounds for denying
reinstatement, see Velazquez, 996 F.2d at 428, here Rodriguez-Arce
alleged that retaliatory conduct permeated the office such that even
members of the human resources office failed to act on her allegations
of sexual harassment.
Arce’s reinstatement.

As such, the Court declines to order Rodriguez-

Civil No. 12-1200 (PG)

In

the

Page 12

First

Circuit,

“juries

are

generally

entrusted

with

decisions on back pay when the jurors are already resolving issues of
liability and compensatory damages.”

Johnson v. Spencer Press of

Maine, Inc., 364 F.3d 368, 380 (1st Cir. 2004).

Because the issue of

back-pay was not presented to the jury, the Court declines to do so
here.

See also, Santiago-Negron v. Castro-Davila, 865 F.2d 431, 441

(1st Cir. 1989)(holding that practical reason suggests back pay be
considered by the jury as one of the items of compensatory damages).
Next, the Court turns to Rodriguez-Arce’s request for pre- and
post-judgment

interest.

Because

Rodriguez-Arce

never

presented

a

request for pre-judgment interest to the jury, the Court is precluded
from issuing it now.

Kolb v. Goldring, Inc., 694 F.2d 869, 875 (1st

Cir. 1982); see also Cordero v. De Jesus-Martinez, 922 F.2d 11, 13
(1st

Cir.

1990)

(holding

that

the

decision

to

award

prejudgment

interest in a federal question case lies within the sole province and
discretion of the jury).
It is well established that federal law governs the entitlement
to

postjudgment

interest

in

any

federal

civil

suit.

Vazquez-

Fillippetti v. Cooperative de Seguros Multiples de Puerto Rico, 723
F.3d 24, 28 (1st Cir. 2013).

The prevailing party in federal court is

entitled to postjudgment interest “from the date of the entry of the
judgment” at the rate fixed in the statute.

28 U.S.C. § 1961(a).

such, Rodriguez-Arce is entitled to post-judgment interest.
IV.

CONCLUSION

As

Civil No. 12-1200 (PG)

Page 13

Accordingly:
The defendants’ motion for judgment as a matter of law, (Docket No.
101), is DENIED; the defendants’ motions for a new trial and to alter
the judgment, (Docket No. 108), are DENIED; the defendants’ motion to
alter

the

judgment,

(Docket

No.

108),

is

DENIED;

the

plaintiff’s

motion to alter judgment, (Docket No. 99), is DENIED in part and
GRANTED in part: the Court GRANTS the plaintiff’s request for postjudgment interest but DENIES her request for reinstatement, back pay,
and pre-judgment interest.
IT SO ORDERED.
In San Juan, Puerto Rico, March 31st, 2015.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE