Fontanillas-Lopez et al v. Morel Bauza Cartagena & Dapena LLC et al
Filing
94
OPINION AND ORDER granting 63 motion for summary judgment. Plaintiff's claims under Title VII are hereby DISMISSED WITH PREJUDICE. The supplemental state-law claims, however, are hereby DISMISSED WITHOUT PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 2/7/2014. (PMA)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
LOURDES DEL ROSARIO
FONTANILLAS-LOPEZ,
Plaintiff,
CIV. NO. 12-1206(PG)
v.
MOREL BAUZA CARTAGENA & DAPENA LLC,
ET AL,
Defendants.
OPINION AND ORDER
Plaintiff Lourdes del Rosario Fontanillas Lopez (hereinafter “Plaintiff”
or “Fontanillas”), along with her parents Mildred Milagros Lopez and Luis
Alfredo Fontanillas,1 filed this action pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (“Title VII”), against
Plaintiff’s former employer Morell, Bauzá, Cartagena & Dapena (“MBCD” or “the
Firm”) and individual defendants Pedro Antonio Morell (“Morell”), Antonio
Bauzá (“Bauzá”), Edgardo Cartagena (“Cartagena”), Ramon E. Dapena (“Dapena”),
and Lourdes M. Vázquez (“Vázquez”) (collectively referred to as “Defendants”)
alleging she was the victim of discrimination on the basis of gender, a
hostile work environment and retaliation for engaging in protected conduct.
See
Docket
No.
1.
In
summary,
Fontanillas
claims
that
the
Defendants
discriminated against her, subjected her to a hostile work environment in her
employment and eventually terminated her because she is a woman and in
retaliation
for
complaining
of
a
hostile
work
environment
and
sexual
harassment. See id.
The Plaintiff also invoked supplemental jurisdiction over her state law
claims under Law No. 100 of June 30, 1959 (“Law No. 100”), P.R. LAWS ANN. tit.
29, § 146, et seq.; Law No. 17 of April 22, 1988 (“Law No. 17”), P.R. LAWS ANN.
tit. 29, § 155 et seq.; Law No. 69 of July 6, 1985 (“Law No. 69”), P.R. LAWS
ANN. tit. 29, § 1321 et seq.; Law No. 80 of May 30, 1976 (“Law No. 80”), P.R.
1
Mildred Milagros Lopez and Luis Alfredo Fontanillas requested the dismissal with
prejudice of their claims and partial judgment was entered accordingly on November 9, 2012,
see Docket No. 33.
CIV. NO. 12-1206(PG)
Page 2
LAWS ANN. tit. 29, § 185, et seq.; and Article 1802 of the Puerto Rico Civil
Code (“Article 1802”), P.R. LAWS ANN. tit. 31, § 5141.
Before the court is the Defendants’ Motion for Summary Judgment (Docket
No. 63), Plaintiff’s Opposition (Docket No. 75) and Defendants’ Reply (Docket
No. 82). After a close examination of all the evidence on record and a careful
review of the applicable statutory and case law, the court GRANTS the
Defendants’ motion for the reasons explained below.
I. SUMMARY JUDGMENT STANDARD
A motion for summary judgment is governed by Rule 56(c) of the Federal
Rules of Civil Procedure, which allows disposition of a case if “the
pleadings, depositions, answers to interrogatories, and admissions 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 a judgment as
a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660 (1st Cir.2000).
A factual dispute is “genuine” if it could be resolved in favor of either
party, and “material” if it potentially affects the outcome of the case. See
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004).
To be successful in its attempt, the moving party must demonstrate the
absence of a genuine issue as to any outcome-determinative fact in the record,
see DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite
and competent evidence. See Maldonado-Denis v. Castillo Rodriguez, 23 F.3d
576, 581 (1st Cir.1994). Once the movant has averred that there is an absence
of evidence to support the non-moving party’s case, the burden shifts to the
non-movant to establish the existence of at least one fact in issue that is
both genuine and material. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48
(1st Cir.1990) (citations omitted). If the non-movant generates uncertainty
as to the true state of any material fact, the movant’s efforts should be
deemed unavailing. See Suarez v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir.2000).
Nonetheless, the mere existence of “some alleged factual dispute between the
parties will not affect an otherwise properly supported motion for summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
However, “summary judgment may be appropriate if the nonmoving party rests
merely upon conclusory allegations, improbable inferences, and unsupported
speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir.1990).
At the summary judgment juncture, the court must examine the facts in the
light most favorable to the non-movant, indulging that party with all possible
CIV. NO. 12-1206(PG)
Page 3
inferences to be derived from the facts. See Rochester Ford Sales, Inc. v.
Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The court must review the
record “taken as a whole,” and “may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 135 (2000). This is so, because credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. Id.
II. FACTUAL FINDINGS
Before setting forth the facts found by this court to be undisputed and
relevant to the matter at hand, we must first address several compliance
issues presented to the court when reviewing Plaintiff’s statements of facts.
In addition to Federal Rule of Civil Procedure 56, the local rules of
civil procedure govern the parties’ submissions of summary judgment materials.
See L.Cv.R. 56 (D.P.R.2009). Regarding the filing of opposing statements of
material facts, Local Rule 56(c) states as follows:
A party opposing a motion for summary judgment shall
submit with its opposition a separate, short, and
concise statement of material facts. The opposing
statement shall 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 material facts. Unless a fact is admitted,
the opposing statement shall support each denial or
qualification by a record citation as required by this
rule. The opposing statement may contain in a separate
section additional facts, set forth in separate
numbered paragraphs and supported by a record citation
as required by subsection (e) of this rule.
L.Cv.R. 56(c). “This separate section containing additional facts is necessary
to allow the moving party to reply to those additional facts and to allow the
court to easily determine the disputed facts. … Therefore, a party may not
include numerous additional facts within its opposition to the moving party’s
statements of uncontested facts.” Malave-Torres v. Cusido, 919 F.Supp.2d 198,
207 (D.P.R. 2013) (internal citations omitted).
In their reply, the Defendants complain that, in her attempt to
controvert the facts the Defendants proposed, Plaintiff failed to set forth
her additional facts in a separate section. See Docket No. 82 at pages 2-3.
After reviewing the Plaintiff’s objections to the Defendants’ statement of
uncontested facts (Docket No. 34-1), the court found that the Plaintiff, in
fact, did not include a separate section of additional facts. Instead, she
proposed additional facts in the same
numbered paragraphs wherein she
CIV. NO. 12-1206(PG)
Page 4
admitted, denied or qualified the Defendants’ proposed factual statements. And
while the court understands that a party asserting that a fact is genuinely
disputed must support the assertion with record citations, see FED.R.CIV.P.
56(c)(1), the Plaintiff, for the most part, incorporated her own version of
events in the paragraphs where she opposed the Defendants’, as well as in the
body of her response memorandum. The court is under no obligation to “sift
through Plaintiff’s responses to locate additional facts.” Malave-Torres, 919
F.Supp.2d at 207. Therefore, the court will “disregard any additional facts
provided by [Plaintiff] when denying or qualifying [Defendants’] statement of
uncontested facts.” Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128,
137 (1st Cir.2012).
The Defendants also complain in their reply that in her opposition, the
Plaintiff resorts to a “post-deposition, self-serving, sham affidavit,” see
Docket No. 82 at page 6, that contains speculative and conclusory statements,
id. at page 16. “It is settled that ‘[w]hen an interested witness has given
clear answers to unambiguous questions, he cannot create a conflict and resist
summary judgment with an affidavit that is clearly contradictory, but does not
give a satisfactory explanation of why the testimony is changed.’” Torres v.
E.I. Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir.2000) (citing
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir.1994)).
Nonetheless, “[e]ven a clearly self-serving affidavit constitutes evidence
which the court must consider when resolving summary judgment motions.”
Malave-Torres, 919 F.Supp.2d at 204 (citing Cadle Co. v. Hayes, 116 F.3d 957,
961 n. 5 (1st Cir.1997) (“A party’s own affidavit, containing relevant
information of which he has first-hand knowledge, may be self-serving, but it
is nonetheless competent to support or defeat summary judgment.”)). In
determining whether an affidavit is admissible, the analysis of whether the
affidavit should be stricken from a party’s opposition to a motion for summary
judgment does not simply end with a determination that the affidavit is
self-serving inasmuch as the court must determine whether it is also sham. See
id.
After carefully reviewing the testimony given in Plaintiff’s deposition
versus her statement under penalty of perjury, the court disregarded the
content of the latter only to the extent it was either incongruent with her
deposition testimony or the matter in question was the subject of extensive
questioning during deposition, yet she decided to elaborate further in her
affidavit. The court, however, considered the Plaintiff’s affidavit when it
CIV. NO. 12-1206(PG)
Page 5
properly addressed, qualified or denied the content of a statement of fact set
forth by the Defendants and, to the court’s knowledge, the matter was not
subject to questioning during her deposition. The court also considered the
content of Plaintiff’s affidavit when it properly clarified her response
during deposition.
In accordance with the foregoing, the court found the following relevant
facts were undisputed:
1.
In 2004, Fontanillas was hired by co-defendant Bauzá to work at Goldman,
Antonetti & Cordova, PSC (hereinafter “GAC”) as an associate.
2.
Bauzá was always one of Plaintiff´s supervisor while she worked at GAC.
3.
Plaintiff was promoted to basic partner at GAC in December of 2008. As
Chair for the Tax Department at GAC, it was co-defendant Bauzá who
Plaintiff identified as the one who should have recommended her to
become partner in accordance with how the firm worked.
4.
During her work at GAC, Plaintiff had an incident with attorney Roxanna
Cruz (“Cruz”), another member of GAC’s tax department, during which the
latter screamed at Plaintiff. Plaintiff described this incident as
embarrassing and not professional.
5.
Plaintiff spoke about this incident with attorney Bauzá.
6.
This incident arose because Plaintiff e-mailed attorney Carlos Nieves,
who she had briefly dated and who was also a friend of Cruz, and told
him that attorney Cruz had a document authored by him saved in her
folder in GAC’s server.
7.
While at GAC, Plaintiff also had a conflict with attorney Gloriana
Rodriguez (“Rodriguez”), another member of GAC’s tax department, after
she broke up with Rodriguez’s brother, Juan Ramón. Plaintiff thinks that
her private life became public because of attorney Rodriguez.
8.
Bauzá presented Plaintiff with an offer to join them at a new law firm
he was founding along with co-defendants Morell, Cartagena, Dapena, and
attorney Gregory Usera. In fact, Plaintiff resigned to GAC because she
received this offer from Bauzá.
9.
The offer made by Bauzá entailed a higher compensation package than the
one Plaintiff had at GAC.
10.
Plaintiff began working at Usera, Morell, Bauzá, Dapena & Cartagena
(hereinafter “UMBDC”) on January 13, 2009 at the Hato Rey offices. UMBDC
changed its name to Morell, Bauzá, Cartagena and Dapena (hereinafter
“MBCD”) on April 1, 2011.
CIV. NO. 12-1206(PG)
11.
Page 6
Bauzá was Plaintiff´s supervisor from the time he hired her to join
UMBDC until her termination from MBCD.
12.
From January until August of 2009, Plaintiff was the only attorney from
the Tax Department working at UMBDC´s Hato Rey offices.
13.
When she started at MBCD, her supervisor, Bauzá, who worked out of the
Miramar office, visited the Hato Rey office a minimum of one time per
day.
14.
The other members at MBCD´s tax department were attorneys Efraín
Irizarry (“Irizarry”) and Alexis Hernández (“Hernández”). Plaintiff was
therefore at all times pertinent to this complaint the only female
attorney in the Tax Department at MBCD.
The Dusting-Off the Office Incident
15.
On October 2009, co-defendant Lourdes Vázquez, the Firm’s Administrator,
was in charge of coordinating repairs to the offices. Specifically,
Vázquez requested that the file cabinets (that were attached to the
walls) be reinforced for security purposes. On October 26, 2009, when
the repairs to [Plaintiff’s] office were finished, Vázquez received a
call from Plaintiff. Plaintiff was upset because her desk and some of
her books had some dust that resulted from the repairs, and demanded
that Vázquez send somebody to clean her office. Vázquez asked her if she
could do it herself, like all other attorneys affected by the repairs
had done.
16.
On that same date, Plaintiff sent an e-mail to Vázquez and the Firm’s
capital partners. She stated that she found it disrespectful that the
administrator suggested to a partner at a law firm that she should clean
her office. She added that she had not been hired for that purpose and
that she did not bring cleaning supplies to the office. She then
requested “the respect that she deserved.”
17.
Attorney Cartagena concluded that Plaintiff used a harsh tone in her email. He talked to Plaintiff about this issue. He also told Plaintiff
that her e-mail did not make her look good.
18.
After Cartagena’s conversation with Plaintiff, she went to his office.
She told him that she did not know how to go about apologizing to
Vázquez. Cartagena asked her if she wanted any help drafting an e-mail,
and Plaintiff said yes.
CIV. NO. 12-1206(PG)
19.
Page 7
Plaintiff then sent an e-mail to the Firm’s capital partners, with copy
to Lourdes Vázquez, apologizing for her previous e-mail. She used the
wording provided by Cartagena at her request.
Plaintiff’s Tardiness
20.
Plaintiff participated in the Tax Department meetings.
21.
During those meetings, the members of the Tax Department discussed what
the business hours for the department would be.
22.
Plaintiff was also notified by e-mail about the hours in which she was
required to be present in the office.
23.
Despite being aware of these rules, Plaintiff believed they were all
professionals that could decide at what time they would do whatever
their responsibilities were.
24.
Plaintiff was generally the last attorney from the Tax Department to
arrive in the morning.
25.
When she came in to the office in the mornings, everybody else from the
Tax Department had already arrived.
26.
In fact, Plaintiff was the only one arriving after 9:00 a.m..
27.
On November 30, 2010, Bauzá sent an e-mail to all the members of the Tax
Department in which he stated that all attorneys had to be at the office
from 9:00a.m. to 6:00 p.m.. Plaintiff received said e-mail.
28.
The rule that attorneys notify when they were going to be absent or late
was applicable to all employees and was notified by way of an e-mail
sent by Gregory Usera to all employees on August 10, 2010.
29.
Plaintiff was late or absent from work without notifying her immediate
supervisor by 9:00a.m. in several occasions, including (but not limited
to) the following dates: September 7, 2010, November 10, 2010, January
12, 2011, January 20, 2011, February 1, 2011, February 9, 2011, May 6,
2011, and September 14, 2011.
30.
Plaintiff used her own judgment to decide when she would come in and out
of the office.
The Parking Lot Incidents
31.
MBCD also had parking rules. If someone double parked or blocked a car,
he/she had to leave the keys with the parking lot’s security guard.
Plaintiff received a document informing her of this rule.
CIV. NO. 12-1206(PG)
32.
Page 8
On November 18, 2009, Plaintiff received an e-mail stating that if
anyone did not leave the keys when double parked, they would have to
park elsewhere. This e-mail was directed to all Firm employees.
33.
If Plaintiff had come in earlier to work, she would not have had to
block her co-workers.
34.
Capital partners Bauzá, Cartagena and Dapena parked in this same parking
lot, and followed the parking rules.
35.
On November 2, 2010, the parking lot security guard, Mr. Joaquín Gonnel
(“Gonnel”), approached attorney Dapena because Fontanillas did not leave
the keys to her car despite the fact that she had blocked Liza Ruiz’s
vehicle. Ruiz had to leave from work early to take her daughter to a
medical appointment. When Ruiz arrived to the parking lot, Plaintiff’s
vehicle was blocking hers. She had to call Plaintiff and wait until she
came to the parking lot to move her vehicle.
36.
Gonnel told attorney Dapena that Plaintiff would not be welcome to the
parking lot the following day. The parking was owned and/or operated by
Omega Engineering, S.E. or an affiliate of it, and Gonnel was an
employee of the security company hired by the parking operator.
37.
After speaking with Gonnel, attorney Dapena sent an e-mail to Lourdes
Vázquez and Plaintiff. He informed them what Gonnel had told him, and
asked Vázquez to accompany Plaintiff, on the following day, to speak to
Gonnel and ask him for permission to park again in the lot. He also
restated the general parking rule in his e-mail: whoever parks blocking
another car has to leave the keys.
38.
Plaintiff did not speak to Gonnel, but instead began parking in an
adjacent lot. She was able to park there until June 13, 2011, when she
was asked to leave. Plaintiff spoke to attorney Guillermo Silva and
asked
if
he
could
intercede
on
her
behalf
with
the
building
administrator so that she could remain parking there. Silva was unable
to help and suggested that Plaintiff apologize to Gonnel.
39.
After seven months, on June 13, 2011, Plaintiff was allowed back at the
regular parking lot. Ten days after coming back, however, she once again
blocked someone else’s car without leaving the keys with the security
guard as required by the rules.
40.
On June 23, 2011, Plaintiff received an e-mail from co-defendant
Vázquez, in which Vázquez required her to go down to the parking lot and
either move her car or give the keys to the security guard. Plaintiff
CIV. NO. 12-1206(PG)
Page 9
disliked this e-mail because it required her to leave whatever she was
doing to comply with what Vázquez asked in the e-mail. She found it
disrespectful.
41.
Plaintiff was also bothered by the fact that co-defendant Vázquez copied
the Firm’s capital partners in the e-mail. Because of this, Plaintiff
replied to the e-mail and asked Vázquez to address her as “Attorney
Fontanillas” from that point forward. She also wrote that she did not
like the tone of the e-mail and demanded respect. Plaintiff copied the
Firm’s capital partners in her reply e-mail.
42.
Co-defendant Edgardo Cartagena replied to Plaintiff’s e-mail. He told
her that she had to follow the rules and that if she blocked anyone, she
had to leave the keys.
43.
Attorney Cartagena also told Plaintiff that Vázquez was only doing her
job at the capital partners’ request. He further told her that if an
exception was made for her, it then would have to be done for others.
44.
Plaintiff again replied to attorney Cartagena’s response. She wrote that
if that was the case then e-mails should be sent to others that she
understood were violating the rules. She also remarked that there was
favoritism in the Firm.
45.
Upon receiving this second e-mail, attorney Cartagena went to talk
personally to Plaintiff. Fontanillas told him that she felt “documented”
(“carpeteada”) because the capital partners had been copied in Lourdes
Vázquez’s e-mail.
46.
About an hour and a half later, Plaintiff sent attorney Cartagena yet
another e-mail regarding the parking issue. She told him that she
understood that others should not park in the adjacent parking lot and
that everyone that was violating the rules (according to her) should
receive an e-mail with copy to the capital partners. She did not
identify who she was referring to.
Plaintiff’s Issues with the Female Attorneys at the Firm
47.
On October of 2010, Plaintiff went to Vázquez’s office and told her that
she was having issues with the “female attorneys from the litigation
department.” In particular, she mentioned that attorney Grisselle
Bermúdez (“Bermúdez”) was blind-copying attorney Bauzá in e-mails that
Bermúdez had sent to her and to Bauzá’s clients.
CIV. NO. 12-1206(PG)
48.
Page 10
Plaintiff asked Vázquez not to bring these issues to the attention of
the capital partners of the Firm.
49.
During this meeting on October of 2010, Plaintiff did not mention having
any issues or concerns regarding attorney Bauzá. In fact, Plaintiff is
sure that, on this occasion, she only talked to co-defendant Vázquez
about the “females of the litigation department.”
50.
Upon finishing the meeting with Plaintiff, Vázquez met with attorneys
Briseida Delgado, Grisselle Bermúdez and Carmen Gloria Torrech to
discuss the issues raised by Plaintiff. She listened to their side of
the story, asked them to continue to maintain a cordial and courteous
relationship with Plaintiff and to greet her whenever they saw her.
Vázquez then spoke to attorney Dapena about the meetings.
51.
Plaintiff also reminded Vázquez of an issue she had with her car, but
did not bring up anything else during this meeting.
52.
Upon learning about Plaintiff’s complaint to Vázquez, Dapena undertook
an internal investigation. He first met with Plaintiff on November 1,
2010. This meeting was held in her office, behind closed doors. No one
else was present.
53.
During this meeting, Plantiff told Dapena that she sometimes felt
ignored
and
marginalized.
She
further
complained
that
attorney
Bermúdez’s e-mails to Plaintiff were evasive.
54.
During this meeting on November 1, 2010, Plaintiff also talked to
co-defendant Dapena about the blind copies of e-mails sent by attorney
Bermúdez
to
Bauzá.
She
also
told
Dapena
that
there
were
groups
(“bandos”) at the Firm, and that she was in one of the groups while the
females of the litigation department were in another.
55.
Plaintiff did not bring any personal “stuff or matters” to attorney
Dapena’s attention, and did not discuss anything else with him. In fact,
Plaintiff did not mention having any issues with either attorney Bauzá
or Efraín Irizarry. On the contrary, she said she would continue to have
lunch with both of them as none of the females were inviting her.
56.
Upon finishing this interview, Dapena asked Plaintiff how she wanted him
to proceed with the information she had just given him. Plaintiff told
him that she would consult it with her psychologist and let him know. On
the
following
day,
Plainitff
asked
Dapena
to
proceed
with
the
investigation. Plaintiff provided copies of some of the e-mails sent by
CIV. NO. 12-1206(PG)
Page 11
attorney Bermúdez that she felt proved her claims that Bermúdez was
ignoring her.
57.
As requested by Plaintiff, attorney Dapena continued his investigation.
He spoke to Gladys Fontanez, Efraín Irizarry, Alexis Hernández, Carmen
Gloria Torrech, Grisselle Bermúdez and Briseida Delgado between November
2nd and November 5th, 2010.
58.
On November 5, 2010, upon finishing his interviews, Dapena prepared a
memorandum addressed to MBCD’s capital partners regarding Plaintiff’s
claims and summarizing his interviews. MBCD’s capital partners discussed
Plaintiff’s claims during one of their meetings. Dapena then drafted a
document to compile his findings.
59.
On November 17, 2010, Dapena met with attorney Fontanillas and Vázquez
to discuss the Firm’s findings. Dapena told Plaintiff that, upon
reviewing the e-mails she provided and conducting the interviews, he had
concluded that there were personal issues between her and the other
female attorneys from the litigation department, but that they did not
rise to level of any actionable claim. Dapena encouraged Plaintiff to
try to maintain a cordial and respectful relationship with the female
attorneys in the Firm and informed her that he and Vázquez had asked the
other female attorneys to do the same.
60.
During this meeting, Plaintiff brought up the parking lot issue and
questioned how it was possible that an employee decided whether or not
she, a partner, could park in the lot. Dapena explained, again, that she
had to follow the rules like everyone else and that Gonnel was not the
Firm’s employee, but rather an employee of the parking lot’s owner.
Plaintiff stated that her perception was that she needed to put in her
resignation and look for another job. Dapena told her that such
determination was very personal, and if she decided to leave she should
discuss her decision with her supervisor, attorney Bauzá. During this
meeting, however, Plaintiff did not provide any details to co-defendants
Dapena or Vázquez of any circumstances that she felt were obligating her
to put in her resignation, other than the issues previously mentioned.
61.
Dapena further told Plaintiff that he could not force the female
attorneys from the litigation department to be her friends or get along
with her. He also asked Plaintiff to maintain confidentiality regarding
her complaint against attorneys Delgado, Bermúdez and Torrech. Finally,
CIV. NO. 12-1206(PG)
Page 12
Dapena asked her if there were any other issues she wanted to bring up
or discuss.
62.
During this meeting on November 17, 2010, Fontanillas did not bring up
any issues regarding attorneys Bauzá or Irizarry. By this time, however,
Plaintiff had already received an e-mail from attorney Irizarry, in
which he invited her to a dinner date.
63.
In fact, Plaintiff did not mention attorney Irizarry in any of the
meetings she held with co-defendants Vázquez and Dapena (collectively or
individually) in October and November of 2010.
64.
Plaintiff did not mention to Vázquez and Dapena during the meetings they
held (individually or collectively) during October and November of 2010
that she felt discriminated against by attorney Bauzá.
65.
Attorney Grisselle Bermúdez had organized Plaintiff´s February 2010
birthday party at Piropos Restaurant. Plaintiff attended the party.
Bermúdez had also planned Plaintiff’s February 2009 birthday party, for
which attorney Cartagena picked up the bill.
66.
Plaintiff visited the apartment owned by attorney Bermúdez and her
parents in Fajardo for Bermúdez´s birthday.
67.
Attorney Bermúdez introduced Plaintiff to some of her friends.
68.
Before
complaining
about
the
female
attorneys
of
the
litigation
department, Plaintiff went to a Wisin and Yandel concert with attorneys
Bermúdez and Torrech.
69.
Before
complaining
about
the
female
attorneys
of
the
litigation
department, Plaintiff had been invited by attorney Carmen Gloria Torrech
to her apartment. Plaintiff accepted the invitation.
70.
Before
complaining
about
the
female
attorneys
of
the
litigation
department, attorneys Torrech and Bermúdez invited Plaintiff to a trip
to Punta Cana. Plaintiff was not interested.
71.
Plaintiff invited Vázquez to lunch constantly.
72.
Despite alleging she received the silent treatment after November 2010,
Plaintiff invited her workers to lunch and the movies after that date.
73.
Plaintiff also received invitations to gatherings held after working
hours from her coworkers.
74.
For her birthday in February 2011, Plaintiff received congratulatory emails from the Firm Administrator, staff, and fellow attorneys.
CIV. NO. 12-1206(PG)
Page 13
Plaintiff’s Communications with Co-Worker Attorney Irizarry
75.
Plaintiff received an e-mail from attorney Efraín Irizarry at 3:24 in
the morning of October 21, 2010.
76.
Plaintiff did not find the e-mail itself “kind of improper”, but rather
the time: 3:24 a.m..
77.
Through this e-mail, Irizarry invited Plaintiff to dinner.
78.
In the e-mail, Irizarry expressly stated that he would understand it if
Plaintiff did not want to go. Irizarry also stated that he would abide
by whatever she decided.
79.
Plaintiff did not respond to this e-mail but rather decided to ignore
it.
80.
Plaintiff understood this e-mail to mean that Irizarry wanted to have a
relationship with her.
81.
Before receiving this e-mail on October 21, 2010, Plaintiff communicated
with Irizarry through text messages and e-mail.
82.
Plaintiff never told Irizarry that she was bothered by his text
messages.
83.
When Irizarry asked Plaintiff if he could call her, she replied with a
“yes”.
84.
On May 4, 2010, Plaintiff sent a text message to Irizarry, at 10:41 p.m.
to let him know she had arrived and that she would see him the following
day.
85.
Plaintiff told Irizarry that she was at Picadera (a restaurant) on May
28, 2010.
86.
At 8:49 p.m. of October 8, 2010, Plaintiff sent a text message to
Irizarry letting him know that she would be at La Concha in case he
wanted to arrive. When she sent this text message to Irizarry, she was
alone at La Concha, waiting for attorney Fontánez to arrive.
87.
On October 16, 2010, Plaintiff asked Irizarry, by way of a text message,
if there was a place for “hanging” [out] that night. She also confirmed
she had not “pitched” [ignored] his calls.
88.
Plaintiff also sent a text message to Irizarry in the early morning
hours. For example, she once texted Irizarry at 1:32 a.m..
89.
Even after receiving the e-mail on October 21, 2010, Plaintiff continued
to communicate with Irizarry by way of e-mail. On October 29, 2010, she
e-mailed him to thank him for copying her in an invitation to a party.
CIV. NO. 12-1206(PG)
90.
Page 14
Furthermore, on October 31, 2010 she replied to Irizarry via Facebook
letting him know that she had indeed gone to the party.
91.
On December 16, 2010, while recovering at home from an operation,
Plaintiff sent a text message to Irizarry to inquire about the Christmas
bonus.
92.
Plaintiff first complained about sexual harassment by Efraín Irizarry on
April of 2011, over five months after receiving the October 2010 e-mail
from him. She brought this issue up during a lunch meeting she set up
with attorney Bauzá.
93.
On April of 2011, upon receiving the sexual harassment complaint, Bauzá
informed his partners, including attorney Dapena. He specifically told
Dapena that during a lunch meeting he had with Plaintiff on April 1,
2011, she told him that she felt harassed by attorney Irizarry.
Plaintiff also told Bauzá that attorney Irizarry had asked her whether
she dreamt of co-workers and that Irizarry had sent her an e-mail on
October 21, 2010 at 3:24 in the morning. Bauzá gave Dapena a copy of the
e-mail Irizarry sent to Plaintiff.
94.
Dapena spoke to Plaintiff immediately after receiving this information
from Bauzá. Plaintiff confirmed that there had been no other similar
text messages or e-mails since that October 21st e-mail, but said there
had been previous text messages and e-mails. Dapena asked Plaintiff to
provide any other text messages, e-mails or evidence she had. She did
not provide any at that time.
95.
After speaking with Plaintiff, Dapena interviewed attorney Irizarry, who
admitted sending the e-mail on October 21, 2010 at 3:24 in the morning.
He confirmed that Plaintiff never answered his e-mail, and informed
Dapena that he had not sent any further e-mails or texts to her.
Although Plaintiff never claimed any physical contact occurred between
her and Irizarry, Dapena nonetheless inquired if any physical contact
between them had occurred. Irizarry confirmed it had not.
96.
After concluding the interview, Dapena advised Irizarry to keep himself
cordially distant from Fontanillas and not talk about the interview with
her or any other Firm employee.
97.
After interviewing Plaintiff and Irizarry, Dapena concluded that there
had been no illegal conduct by Irizarry. He then drafted a memorandum to
his partners to inform them of the situation. Dapena discussed this with
CIV. NO. 12-1206(PG)
Page 15
the other partners of the Firm during one of their meetings. All
partners agreed with Dapena’s conclusion.
98.
After
April
of
2011,
Plaintiff
did
not
talk
to
anyone
in
the
administration or any capital partner about this sexual harassment issue
until September of 2011, when she forwarded text messages to Dapena.
This was eleven months after receiving the e-mail from Irizarry and
almost six months after bringing up the issue with Bauzá.
99.
When she joined UMBDC, Plaintiff received a copy of the firm´s sexual
harassment policy.
100. Plaintiff does not know if Dapena met with other people to talk about
her sexual harassment claim. She also does not know who Dapena spoke to
when investigating her claims, what internal steps he took or if he met
with his partners to discuss the situation.
101. On September 13, 2011, Dapena again met with Plaintiff. This time,
Plaintiff went to Dapena’s office to finally provide copies of the text
messages and e-mails he had requested back in April. The text message
exchange
provided
Irizarry
and
by
attorney
Fontanillas
used
Fontanillas
to
demonstrated
exchange
text
that
messages,
both
share
information about each other.
102. During this meeting in September 2011, attorney Fontanillas stated that
she would not resign.
103. After being terminated, Plaintiff alleged, for the first time, that
Irizarry told her, while sitting in her office and moving his pelvic
area, that he received nude pictures from Facebook. She also alleged
(after being terminated) that Irizarry once told her he had a sexual
dream with a coworker. During her deposition, Plaintiff confirmed that
she had had no other incidents with attorney Irizarry.
104. Plaintiff never reported either of these two incidents to the Firm
Administrator or to Dapena.
Plaintiff’s Mother Inquires about the Christmas Bonus
105. On December of 2010, while Plaintiff was recovering from surgery in her
nose, she instructed her mother to call Bauzá to inquire about the
Christmas bonus amount she had received. Bauzá in fact spoke to
Plaintiff´s mother, and he was very kind (“amable”) to explain how the
bonuses had been awarded.
CIV. NO. 12-1206(PG)
Page 16
106. After inquiring about the bonus amounts, the information obtained by
Plaintiff revealed that, except for 2 or 3, most of her co-workers
received basically the same amount she received as a Christmas bonus.
107. Plaintiff does not know the criteria used by the Firm to determine the
amount of Christmas bonus to be awarded to each attorney.
The Medical Certificate
108. On February 9, 2011, Vázquez received an e-mail from Plaintiff in which
she indicated that she would be out of the office on said date because
of medical reasons. The following day, on February 10, 2011, at 9:30
a.m., Plaintiff submitted to Vázquez a medical certificate from Dr.
Gilberto Rodríguez. Such certificate stated that she was “released to
return to work on February 11, 2011.”
109. Despite having sent the medical certificate releasing her to return to
work on February 11, Fontanillas claims to have come to work on February
10, 2011.
110. On that day, Vázquez first saw Plaintiff during a lunch outing in which
MBCD employees were celebrating the birthday of one of its attorneys,
Sarah Delgado.
111. Vázquez sent an e-mail to Plaintiff urging her to follow her doctor’s
orders and retire for the day. She also wished Plaintiff a speedy
recovery.
112. Plaintiff found this e-mail to be improper.
The Lasagna Incident
113. On
April
of
2011,
Plaintiff
told
attorney
Carmen
Gloria
Torrech
(“Torrech”) after she failed to offer lasagna to Plaintiff: “We’ll talk
in court.”
114. Specifically, while at the pantry area on that day, Torrech had offered
lasagna she had brought from her home. Attorney Torrech did not offer
lasagna to Plaintiff, but she did offer to attorney Marisara Figueroa,
who chided Torrech for her late offering as the latter had previously
offered lasagna to attorneys Pedro Giner and Diego Agueros by way of email. Then, Plaintiff remarked as follows: “don’t complain Marisara; at
least
you
are
being
offered,
unlike
me,
ignored
all
the
time.”
Afterwards, a discussion ensued between Plaintiff and Torrech. Plaintiff
ended the conversation by saying “don’t worry, we’ll talk in court.”
CIV. NO. 12-1206(PG)
Page 17
115. Upon learning about the lasagna threat from attorney Torrech, Dapena
investigated this incident as well. As part of this investigation, he
again met with Plaintiff and all the persons present at the time this
incident took place.
116. During this interview, Plaintiff also told Dapena that other female
co-workers were ignoring her as well. She added Mrs. Liza Ruiz, Vázquez
and attorney Gladys Fontánez to the group.
117. On this meeting held on April 20, 2011, Plaintiff did not bring up
having any issues with Bauzá.
The Alleged Discrimination
118. Plaintiff felt discriminated by co-defendant Bauzá because he used to
put his feet up on his desk and showed the soles of his shoes. She,
however, does not know if this happened when he talked to other
attorneys.
119. Plaintiff stated during her deposition that co-defendant Bauzá was
reading a document leaning on his chair, he opened his legs displaying
his crotch. At the time Plaintiff claims Bauzá displayed his crotch, his
fly was not open and he was fully clothed. Plaintiff admits that she
never mentioned this alleged behavior to anyone at the Firm.
120. Plaintiff did not include any allegations regarding co-defendant Bauzá
leaning on his chair with his legs open and his crotch displayed in the
EEOC charge she filed or in the complaint filed in the above-captioned
claim. Plaintiff drafted both the EEOC charge and the complaint.
121. Plaintiff felt discriminated against by Bauzá because he would put his
hand up to stop her from talking. She did not report this to the Firm
Administrator or to Dapena.
122. Plaintiff does remember that, with a specific matter, Bauzá took away an
assignment from attorney Irizarry and gave it to her.
123. Plaintiff never reported a pattern of Bauzá screaming at her or
discriminating against her either to the Firm Administrator or to Dapena
during their meetings.
124. Plaintiff claims she was discriminated against because attorney Bauzá
disinvited her from meetings with clients. She recalls this happening
twice.
125. Plaintiff does not know whether or not attorney Bauzá disinvited her
male coworkers (Irizarry and Hernández) from meetings.
CIV. NO. 12-1206(PG)
126. In
2009
Page 18
and
2010,
Plaintiff
did
not
report
feeling
harassed
or
discriminated against by attorney Bauzá or attorney Irizarry.
127. While Plaintiff was employed by MBCD, Bauzá and attorney Gladys Fontánez
worked closely together in some matters.
Plaintiff’s Assessment of the Other Co-defendants
128. Plaintiff had no incidents with co-defendant Pedro Morell until her
termination. In fact, he always was a perfect gentleman with her.
129. Plaintiff acknowledges that co-defendant Edgardo Cartagena was a perfect
gentleman with her. Her only difference with him related to the e-mail
exchange about the parking lot rules.
130. Plaintiff acknowledges that co-defendant Dapena was a perfect gentleman
with her. Her only difference with him was during her termination
meeting.
The Performance
131. Once, Bauzá reviewed income tax returns forms and screamed at Liza Ruiz
and Plaintiff because they changed the returns after he had revised
them.
132. Ruiz changed the return that had already been reviewed by Bauzá using
the numbers Plaintiff had given her.
133. The return was filed with an error.
134. On or around the summer of 2009, Bauzá asked Plaintiff to handle a
matter
for
a
client
at
the
Puerto
Rico
Industrial
Development
Corporation.
135. Attorney Bauzá was fully aware of the fact that Plaintiff would be
visiting
PRIDCO
offices,
along
with
attorney
Esteban
R.
Bengoa,
regarding this matter. He also knew that attorney Roxanna Cruz, with
whom Plaintiff had had an incident while they both worked at GAC, was
the Director at PRIDCO’s Office of Tax and Legislative Affairs.
136. As part of this assignment, Plaintiff urgently needed to obtain a report
and preapproval from the Office of Industrial Tax Exemption to close a
transaction. This approval would have to be favorably recommended by
attorney Cruz to PRIDCO Director Javier Vázquez (“Vázquez”).
137. While at PRIDCO, Plaintiff met attorney Cruz incidentally. She asked
about the status of the report she needed. Cruz told her that it was at
the PRIDCO Director’s office and that he was out that day and would be
CIV. NO. 12-1206(PG)
Page 19
out as well the following day. Cruz also mentioned that she needed to
review it.
138. Despite having talked with Cruz, Plaintiff called the PRIDCO Director’s
secretary to inquire about the status of the document she needed from
Cruz.
139. Sometime after speaking with Plaintiff, Cruz went to Vázquez’s office.
There, Vázquez’s secretary told Cruz that Fontanillas had called the
office inquiring about the status of the document.
140. Cruz understood that Fontanillas was questioning whether or not she
would
be
doing
her
job.
Cruz
felt
completely
disrespected
by
Fontanillas’ call to her supervisor’s office.
141. Cruz had received an e-mail from Alexis Hernández, her personal friend,
in which he had politely inquired about the case status. Cruz called him
and let him know what Fontanillas had done. Cruz further told him how
she felt about it and what had been the office personnel’s reaction.
142. Cruz answered Hernández’s e-mail and told him that she would do her job,
as she always did, but stated that she deserved respect.
143. Cruz felt that Fontanillas portrayed her as a liar before her direct
supervisor’s support staff and disrespected the administrative personnel
who, at the end of the day, were the ones that kept track of the
documents
that
were
ultimately
signed
(or
not)
by
the
Executive
Director.
144. Cruz later received a call from Bauzá, who apologized for Fontanillas’
conduct.
145. After this assignment, Bauzá determined that Plaintiff would no longer
handle any issues involving PRIDCO.
146. On or around the end of 2010 and the beginning of 2011, Bauzá asked
Plaintiff to find a way for an accounting firm that was closing its
offices in Puerto Rico to maintain its license to provide auditing
services in the Island without having to have its members reside in
Puerto Rico.
147. Plaintiff researched the issue, and when she wrote the opinion for the
client, she concluded that what the client wanted was not possible. She,
in fact, understood that the client would not comply with the residency
requirements if they closed the offices as they intended to.
148. After receiving Plaintiff’s opinion, and seeing that it completely
defeated
the
client’s
intention,
Bauzá
intervened.
After
Bauzá’s
CIV. NO. 12-1206(PG)
Page 20
intervention, through which he proposed new factual possibilities, the
client ultimately obtained the authorization it needed to maintain its
license active despite closing its local offices.
149. The way in which Plaintiff handled this consultation led Bauzá to
conclude that she was unable to think outside the box and propose
creative ways to obtain client objectives. Instead, she just read and
applied the law, in a very “black and white with no shades of grey”
manner; perhaps effective at identifying legal obstacles but not so in
ways to overcome them. Her excuse for not having come up with the
solution herself is that she did not have all the relevant facts. Bauzá
believes in good faith, however, that she could have asked the questions
to elicit the necessary facts to make it work, just like he did.
150. From his perspective as a supervisor, and considering Plaintiff’s years
of experience, Bauzá thought that Plaintiff did what an associate or a
less experienced attorney would have done: find the black letter law and
leave it at that. That was not what he expected from a partner at the
Firm.
151. On or around September 2010, Bauzá asked Plaintiff to work along with
attorney Gladys Fontanez (“Fontanez”), from MBCD’s corporate department,
on some matters for another client. Bauzá asked them each to work on the
specific
areas
of
their
specialty.
Plaintiff,
however,
reviewed
contracts which pertained to the corporate area, which was beyond her
tax area of specialty.
152. The client contacted Fontanez directly and held a conference call with
her.
Plaintiff
e-mailed
the
client
directly
to
inquire
when
the
conference call would be held, and the client informed her that it had
already taken place.
153. Bauzá spoke to the client and apologized for Plaintiff’s behavior. He
found her conduct to be inappropriate.
154. Between late 2010 and early 2011, Bauzá asked Plaintiff to file a
request with the Puerto Rico Treasury Department on behalf of a client
that already had legal representation stateside. Instead of limiting the
scope
of
her
work
to
filing
the
document,
she
investigated
the
applicable federal statutes. Although the research was accurate, it had
not been requested from her.
155. On or around May of 2011, Bauzá also asked Plainitff to find out which
form had to be filed stateside to report a
donation made by a
CIV. NO. 12-1206(PG)
Page 21
non-resident alien to a U.S. citizen. Plaintiff billed nine hours to
find out this information. Bauzá had expected a partner with Plaintiff’s
years of experience and knowledge to find the answer quickly.
156. From his standpoint as a supervisor, Bauzá believed in good faith that
Plaintiff over-researched the issues he assigned. This meant that Bauzá
had to routinely write-off her time which could not be billed to the
Firm’s clients and in turn meant economic losses for the firm.
157. It was also Bauzá’s good faith belief that Fontanillas put in danger the
Firm’s relationship with its clients. Bauzá thinks Plaintiff exercised
poor judgment when dealing with them.
158. The Firm received a voice message from one of the clients whose work was
assigned
to
Plaintiff.
This
client
complained
about
the
billing
statement from the Firm. The client was further unhappy because the
Internal Revenue Service was placing a new lien on their property
despite having Plaintiff work on resolving the matter. Plaintiff heard
this voice message.
159. The Firm was only able to collect the retainer fee that was asked of
this client. They were not able to bill any of the work performed by
Plaintiff on this matter.
160. Between the end of June of 2011 and the beginning of July of 2011, Bauzá
summarized his experiences as Plaintiff’s supervisor in a memorandum
that he sent to his partners. He recommended that the Firm terminate
Plaintiff’s employment. Bauzá and his partners discussed this memorandum
at length, as well as his recommendation, during the partners’ meeting.
161. The capital partners of the Firm discussed Plaintiff’s performance and
the issues she was having with her female co-workers. They also received
a memorandum from Bauzá in which he highlighted the performance issues
that he understood Plaintiff was facing. Aside from including specific
issues
with
different
clients,
Bauzá
also
expressed
his
concern
regarding Plaintiff’s failure to adhere to the Firm’s rules. As his
immediate supervisor, Bauzá’s recommendation was that Plaintiff be
terminated.
162. By mid-August of 2011, the capital partners of the Firm discussed
Bauzá’s memorandum. After carefully considering what Bauzá considered
were Plaintiff’s performance and behavior issues, they decided to
terminate her employment. Before going on with the termination, however,
they consulted the decision with outside labor and employment counsel.
CIV. NO. 12-1206(PG)
Page 22
163. Attorney Dapena drafted a memorandum to read to Plaintiff during the
termination and exit meeting.
164. On September 28, 2011, attorneys Bauzá and Dapena met with Plaintiff to
inform her about the capital partners’ decision to terminate her
employment. Dapena read the document he had drafted to Plaintiff, who
requested a copy of it. Dapena provided the copy.
The Epilogue: Current Circumstances
165. Two months after being terminated, in December 3, 2011, Plaintiff drove
from Ponce to Bayamón to attend a gathering at a friend’s apartment to
watch the Cotto-Margarito fight.
166. Plaintiff was hired by McConnell-Valdes (hereinafter “McV”) on March 13,
2012, five months after her termination.
167. When hired at McV, Plantiff was offered a compensation package of
$120,600.00.
168. Since
joining
this
firm
[McV],
and
after
her
first
evaluation,
Plaintiff’s base salary was increased by three thousand dollars. Her
expense accounts remained the same.
169. Plaintiff has a very good relationship with her current co-workers at
McV.
170. Plaintiff´s billable hours at McV are at the top.
171. Plaintiff filed a complaint with the Equal Employment Opportunity
Commission on November 7, 2011. This document consists of fifteen
typewritten pages. Plaintiff did not mention that Bauzá sat in a way in
which she could discern his crotch. She also did not mention that Bauzá
showed her the soles of his shoes, or that he raised his hand making a
“stop” gesture when she tried to speak.
III. DISCUSSION
Plaintiff claims the Defendants discriminated against her and terminated
her employment in violation of Title VII and local laws because of her gender.
Plaintiff also asserts that she was the victim of retaliation for opposing the
Defendants’ unlawful employment practices in violation of Title VII and
various local laws.
A. Title VII Claims
1. Sex-Based Differential Treatment
Title VII, which prohibits discrimination because of sex, provides “that
‘[i]t
shall
be
an
unlawful
employment
practice
for
an
employer
…
to
CIV. NO. 12-1206(PG)
Page 23
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” Oncale v. Sundower Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998) (citing 42 U.S.C. § 2000e–2(a)(1)). “The core
inquiry in a gender-based disparate treatment case is whether the defendant
intentionally discriminated against the plaintiff because of her gender.”
Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir.2010) (citing Rathbun v. Autozone,
Inc., 361 F.3d 62, 71 (1st Cir.2004)). “[T]o successfully allege disparate
treatment, a plaintiff must show ‘that others similarly situated to [her] in
all
relevant
respects
were
treated
differently
by
the
employer.’”
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 144 (1st Cir.2012)
(quoting Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir.2003)). Adapted
to the instant case, the plaintiff must set forth proof “that males were
similarly situated and that she was treated differently, … and then that
gender was the reason for that difference … .” Rivas Rosado v. Radio Shack,
Inc., 312 F.3d 532, 534 (1st Cir.2002) (internal citation omitted); see also
Trans World Airlines v. Hardison, 432 U.S. 63, 71, 97 S.Ct. 2264, 53 L.Ed.2d
113 (1977) (“[S]imilarly situated employees are not to be treated differently
solely because they differ with respect to race, color, religion, sex, or
national origin.”).
A plaintiff is not required to adduce direct proof of discrimination and
may instead take advantage of the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to raise an inference
of disparate treatment. See Ahern, 629 F.3d at 54 (internal citations
omitted). In order to establish a prima facie case under Title VII, a
plaintiff must show that: “(1) she is a member of a protected class; (2) her
employer took an adverse employment action against her; (3) she was otherwise
qualified; and (4) her position remained open or was filled by a person with
qualifications similar to hers.” Johnson v. University of Puerto Rico, 714
F.3d 48, 53 n. 6 (1st Cir.2013) (citing García v. Bristol–Myers Squibb Co.,
535 F.3d 23, 30 n. 2 (1st Cir.2008); Rodriguez–Cuervos v. Wal–Mart Stores,
Inc., 181 F.3d 15, 19 (1st Cir.1999)). “If the plaintiff establishes this
prima facie case, the burden of production — but not the burden of persuasion
— shifts to the employer, who must articulate a legitimate, non-discriminatory
reason for the adverse employment action.” Lockridge v. The University Of
Maine System, 597 F.3d 464, 470 (1st Cir.2010). “If the employer provides such
a reason, the plaintiff has to show by a preponderance of the evidence that
CIV. NO. 12-1206(PG)
Page 24
the employer’s proffered reason is pretextual and that the actual reason for
the adverse employment action is discriminatory.” Johnson, 714 F.3d at 54
(citations omitted).
In her complaint, the Plaintiff raises a claim of disparate treatment to
the extent her former employer MBCD and the individual defendants engaged in
a pro-male pattern of work assignment. See Docket No. 1. In summary, the
allegations related to her claim of disparate treatment are that attorney
Alexis Hernández, a co-worker at MBCD’s Tax Department, failed to give her
credit for her tax expertise in a meeting with other MBCD attorneys, belittled
Plaintiff’s involvement in some work during a meeting with partners and
suggested several changes be made to her work. See Docket No. 1.
Plaintiff
also complained Hernández acted as if he were her boss. Id. Fontanillas also
alleged that the male attorneys in the office promoted each other instead of
Plaintiff with the other departments at MBCD when it came to matters of
taxation, her area of expertise. She also claimed that MBCD was like a “boys
club” where men-only meetings were held and she was expressly excluded. Id.
With regards to co-defendant Bauzá, the Plaintiff alleged that he left for
meetings without her and disinvited her from meetings and conference calls
with clients; used her research so that another male member of the Firm write
the position letters; assigned work to Hernández instead of her; removed her
from projects she had worked on and minimized contact between her and clients.
Id.
In
their
motion
for
summary
judgment,
the
Defendants
state
that
“[a]lthough Plaintiff makes a general claim of gender discrimination, she sets
out no facts that could give rise to a claim of disparate treatment.” Docket
No. 63 at page 30 n. 35. According to Defendants, Fontanillas has no evidence
that Bauzá treated her and her male peers in a disparate fashion, or that he
acted the way he did because of her gender. See Docket No. 63 at page 24. The
court notes that the Plaintiff in fact makes no reference to her disparate
treatment claim in her opposition memorandum and she completely abandoned all
allegations related to the conduct of her co-worker Hernández.
At any rate, assuming the Plaintiff is able to make out a prime facie
case of discrimination, see Fennell v. First Step Designs, Ltd., 83 F.3d 526,
535 (1st Cir.1996) (“On summary judgment, the need to order the presentation
of proof is largely obviated, and a court may often dispense with strict
attention to the burden-shifting framework, focusing instead on whether the
evidence as a whole is sufficient to make out a jury question as to pretext
CIV. NO. 12-1206(PG)
Page 25
and discriminatory animus.”), the court finds that the Defendants have
properly articulated a legitimate, non-discriminatory reason for the adverse
employment actions the Plaintiff alleged. The Defendants set forth proof
evincing that the Plaintiff was terminated
because of her performance
deficiencies, her failure to adhere to the Firm’s rules and her poor personal
relationships with her co-workers at MBCD.2 See Factual Findings No. 131-162.
At this final stage then, the inference of discrimination disappears. The
Plaintiff is thus required to show that the Defendants’ explanations are a
pretext and that a motivating factor for the unequal terms and conditions of
her employment and her termination was her gender. “[I]n disparate treatment
cases, comparative evidence is to be treated as part of the pretext analysis
… .” Kosereis v. Rhode Island, 331 F.3d 207 (1st Cir.2003) (citing Conward v.
Cambridge School Committee, 171 F.3d 12, 19 (1st Cir.1999)). The court will
thus address the merits of her disparate treatment claim in light of the
factual findings set forth supra.
The first instance on record in which it stems that the Plaintiff
complained of differential treatment was when Lourdes Vázquez sent Plaintiff
an e-mail on June 23, 2011 copying all capital partners at MBCD. In this email, Vázquez asked Fontanillas to move her car or give the car keys to the
parking lot’s security guard, Mr. Gonnel, as per the parking lot rules,
because she had not. Fontanillas responded to all recipients in disgust of
Vázquez’s message and an MBCD partner replied ordering her to follow the
parking lot rules. The Plaintiff then sur-replied stating that similar
reprimands should be given to others that she understood were violating rules
and complained that there was favoritism at MBCD. See Factual Finding No. 44.
Despite making this generalized complaint in this e-mail, however, the
Plaintiff has set forth no proof showing that her male counterparts received
less stringent sanctions for similar conduct or for failure to abide by rules.
In addition, it is a fact on record that on November 17, 2010, seven months
before this incident, attorney Dapena had met with Fontanillas and told her
2
Fontanillas’ poor interpersonal relationships with her co-workers, or lack thereof,
and her failure to adhere to rules with regards to the parking lot and her tardiness, inter
alia, are well documented; her performance shortcomings are less so and are only evinced by
her supervisor Bauzá’s review and perception of her work, with which the Plaintiff
disagrees. Notwithstanding, the court is mindful that its role is not to “second-guess the
business decisions of an employer, nor to impose [its] subjective judgments of which person
would best fulfill the responsibilities of a certain job.” Petitti v. New England Tel. &
Tel. Co., 909 F.2d 28, 31 (1st Cir.1990). “Courts may not sit as super personnel
departments, assessing the merits -or even the rationality- of employers’ nondiscriminatory
business decisions.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir.1991).
CIV. NO. 12-1206(PG)
Page 26
[verbally] that she had to follow the parking lot rules like everyone else,
and explained to her that Mr. Gonnel was not the Firm’s employee, but rather
an employee of the parking lot’s owner. See Factual Finding No. 59-60.
Therefore, the Plaintiff was fully aware of the rule in question and of her
deviation therefrom by not leaving the car keys with Mr. Gonnel as it had
previously been a matter of discussion between the partners at MBDC and the
Plaintiff. What is more, she had been previously thrown out of the parking lot
for violating this very rule. See Factual Finding No. 36. Additionally, there
is no evidence that the reprimand she received was based on her gender as
opposed to, once again, not leaving her car keys with the security guard.
Now, with regards to co-defendant Bauzá, her immediate supervisor, the
Plaintiff complained during her deposition that she felt discriminated by him
because: he used to put his feet up on his desk thereby showing the soles of
his shoes; he would put his hand up to stop her from talking; and, he
disinvited her from meetings with clients twice in a span of two and a half
years of employment.3 See Factual Fidnings No. 118, 121, 124. In her complaint
and her opposition, the Plaintiff also claims that Bauzá yelled at her,
although its frequency is uncertain because the Plaintiff has failed to place
the court in a position to judge its severity. Nevertheless, Plaintiff
admittedly does not know if any of this happened when Bauzá talked to or
addressed the other attorneys or whether or not attorney Bauzá disinvited her
male co-workers (Irizarry and Hernández) from meetings. See Factual Findings
No. 118, 125. In fact, the Plaintiff never reported a pattern of co-defendant
Bauzá screaming at her to the Firm Administrator or to co-defendant Dapena
during their many meetings.4 See Factual Findings No. 123. As a result, there
is no comparative evidence before the court as to whether or not Bauzá treated
similarly-situated male employees more favorably.
3
According to the Plaintiff’s allegations in the complaint, one of the instances in
which co-defendant Bauzá disinvited her from a meeting with a client took place on August
24, 2011. See Docket No. 92 at ¶ 92. Even if the court were to take this allegation as true
at this stage of the proceedings, the court is now aware that by this date, Bauzá had
already recommended that the Plaintiff be terminated for the reasons Defendants have set
forth herein. See Factual Finding No. 162.
4
Among her allegations of gender-based discrimination, the Plaintiff also claimed in
her complaint that Bauzá “avoided communicating in person with Plaintiff, leaving his
written comments to the documents Fontanillas had drafted with the legal assistant or on her
chair when she was momentarily away from her office.” See Docket No. 1 at ¶ 115. The court
finds that the Plaintiff’s complaints towards attorney Bauzá present a type of “damned if
you do, damned if you don’t” scenario, where if Bauzá talked to her, she complained about
the way in which he did, and if he did not talk to her, she complained of being the victim
of the “silent treatment,” see Docket No. 1 at ¶ 116.
CIV. NO. 12-1206(PG)
Page 27
Additionally, despite alleging in her complaint that Bauzá reassigned
tasks to her male co-worker (Hernández) that were originally assigned to her,
see Docket No. 1 at ¶ 44, 70-71, she also complains that Bauzá assigned her
work to Liza Ruiz, a female. See Docket No. 1 ¶ 91. So, in essence, as per
Plaintiff’s own allegations, Bauzá reassigned work to both her male and female
co-workers. What is more, the Plaintiff admitted in her deposition that at one
point, Bauzá took away an assignment from attorney Irizarry, a male, and gave
it to her, a female. See Factual Finding No. 122. This allegation is thus
meritless.
The only other instance on record where Bauzá removed her from a project
and/or minimized contact between her and a client was when he decided that
Plaintiff would no longer handle any matters involving PRIDCO. See Factual
Finding No. 145. The justification behind such a determination, as explained
by the Defendants, was that on or around the summer of 2009, Fontanillas
attended a meeting at PRIDCO where she met attorney Roxanna Cruz, with whom
Plaintiff had had a confrontation of some sort while they both worked at GAC.
At the time of this meeting, attorney Cruz was the Director at PRIDCO’s Office
of Tax and Legislative Affairs. See Factual Finding No. 145. The events that
transpired during and shortly after the meeting in question resulted in
attorney Cruz perceiving that the Plaintiff had disrespected her, see Factual
Finding No. 140, and Bauzá ended up having to call Cruz to apologize for the
Plaintiff’s conduct, see Factual Finding No. 144. In fact, in her opposition,
the Plaintiff admits that her situation at worked changed, in part, because
she “did not ‘play nice’ with
Roxana [sic] Cruz,” see Docket No. 75 at page
74. Therefore, Fontanillas was admittedly not removed from assignments
involving PRIDCO because she was a woman, but because of her behavior towards
a PRIDCO officer, namely, Roxanna Cruz.
In her complaint, the Plaintiff alleged that on February 9, 2011, Bauzá
reprimanded her for arriving to work at 9:40a.m., and therefore, late. See
Docket No. 1 at ¶ 55. Once again, no comparative evidence exists as to whether
the male attorneys were not reprimanded for being late. At any rate, even if
she was censured for being late, it is a fact on record that on November 30,
2010, over two months prior to the alleged reprimand, Bauzá notified all
attorneys in the Tax Department via e-mail that they had to be in the office
from 9:00a.m. to 6:00p.m.. See Factual Finding No. 27. Notwithstanding, the
Plaintiff even admits deviating from this rule. According to her, “[she] often
worked until late hours in the night and would, therefore, come in later the
CIV. NO. 12-1206(PG)
Page 28
following morning.” See Docket No. 75 at page 11. Her excuses, however, are
unavailing. The Defendants have set forth a clear-cut rule of the workplace
that applied to all attorneys in her department, male and female, that the
Plaintiff admits violating based on her own judgment, see Factual Finding
No. 30, and thus, the Plaintiff has failed to show that any adverse employment
action taken against her for her tardiness was motivated by her gender.
Plaintiff also alleged in her complaint that the Christmas bonuses paid
to the other male tax attorneys were higher than the amount paid to Plaintiff
for the years 2010 and 2011. See Docket No. 1 ¶ 108. Notwithstanding, in her
deposition, the Plaintiff admitted that on December of 2010, after inquiring
about the bonus amounts, she obtained information that revealed that, except
for a couple, most of her co-workers received basically the same amount she
received as a Christmas Bonus. See Factual Finding 105-106. The court notes,
however, that Plaintiff was no longer an employee in December of 2011, and had
not been since September of 2011. At any rate, the Plaintiff failed to provide
any comparative data with regards to the amounts MBCD awarded as Christmas
bonuses in December of 2011. Therefore, this allegation is also meritless.
Having addressed the Plaintiff’s complaints with regards to the workplace
while at MBCD, the court notes that “[t]he critical issue, Title VII’s text
indicates, is whether members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other sex are not
exposed.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)
(citations omitted). Here, Fontanillas has not “even produced a scintilla of
probative evidence, either direct or circumstantial, of disparate treatment
between male and female [employees],” Ayala-Gonzalez v. Toledo-Davila, 899
F.Supp.2d 139, 141 (D.P.R. 2012), and has thus failed to carry her burden. On
the contrary, in her opposition, she admittedly attributes Bauzá’s change in
attitude towards her two events that have nothing to do with her gender: (1)
the incident at PRIDCO with attorney Roxanna Cruz, and (2) the incident in
which Bauzá reprimanded her and her co-worker Liza Ruiz for making changes to
a tax form that he had already reviewed and approved. See Docket No. 75 at
pages 7-8, 10.
Not only has Fontanillas failed to show that her male co-workers were
similarly situated and that she was treated differently, but“[t]here is also
no evidence that the decision makers were motivated by gender discrimination.
The mere fact that the decision makers were male does not alone, absent other
evidence, create an inference that they engaged in gender discrimination.”
CIV. NO. 12-1206(PG)
Page 29
Rivas Rosado, 312 F.3d at 534. In fact, the record shows that, although codefendant Bauzá recommended she be fired from MBCD, he had in 2004 hired the
Plaintiff to work at GAC and recommended her for promotion to basic partner
in 2008 as the Chair for the Tax Department at GAC. See Factual Findings
No. 1-3. Moreover, shortly after her promotion, he extended her an offer to
join him in his new firm after he left GAC, and succeeded in recruiting her
with a better compensation package than the one she was earning. See Factual
Finding No. 8. As far as the court knows, the Plaintiff was always a woman
between 2004 and 2009, when she was hired, promoted and recruited by Bauzá.
The First Circuit has recognized that a strong inference of nondiscrimination
exists where, as here, the hirer and firer are the same person. See Jacques
v. Clean-Up Group, Inc., 96 F.3d 506, 512 (1st Cir.1996) (citing Tyndall v.
National Educ. Centers, Inc. of California, 31 F.3d 209, 214 (4th Cir.1994)).
Beyond the mere fact that Fontanillas is a woman and Bauzá is a man,
there were no statements or behaviors by the males involved in terminating
Plaintiff from which an inference of discrimination could be drawn. “[T]here
is no evidence that any difference in how she was treated was based on gender,
and ample evidence of legitimate reasons for her differential treatment.”
Alvarado-Santos v. Department Of Health Of The Commonwealth Of Puerto Rico,
619
F.3d
126,
134
(1st
Cir.2010).
Consequently,
the
court
GRANTS
the
Defendants’ motion for summary judgment with respect to the Plaintiff’s claims
of sex-based disparate treatment under Title VII.
2. Sexual Harassment
“[S]exual harassment is a form of sex discrimination, the Supreme Court
tells us — by committing or tolerating sexual harassment against an employee,
an employer has effectively altered the terms or conditions of the victim’s
job.” Medina-Rivera v. MVM, Inc., 713 F.3d 132, 136 (1st Cir.2013) (citing
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751–54, 118 S.Ct. 2257, 141
L.Ed.2d 633 (1998)). “There are various types of actionable sexual harassment
claims under Title VII: hostile work environment claims, quid pro quo
harassment claims and retaliation claims.” Perez v. Developers Diversified
Realty Corp., 904
F.Supp.2d 156, 163 (D.P.R. 2012) (citing Valentin–Almeyda
v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir.2006)).
In the case
at
hand, the Plaintiff complains of a hostile work
environment in the workplace. In their motion for summary judgment, the
Defendants contend that the Plaintiff fails to establish all elements of the
prima facie case, except for the first, to wit, that she is a member of a
CIV. NO. 12-1206(PG)
Page 30
protected class. See Docket No. 63 at page 14. After careful review of the
allegations and the factual findings, the court finds that the Plaintiff’s
claim of hostile work environment is three-fold because it’s based on:
(1) Irizarry’s comments and messages; (2) Bauzá’s alleged conduct; and,
(3) her co-workers’ behavior towards her. Each shall be analyzed in turn.
a. Hostile Work Environment
We begin our analysis with the hostile work environment framework in the
context of a sexual harassment claim under Title VII. The key elements of a
hostile-work-environment claim are as follows:
(1) the plaintiff belongs to a protected group; (2)
was subject to unwelcome sexual harassment; (3)
harassment was based on her sex; (4) the harassment
sufficiently severe or pervasive to alter
conditions
of
employment
and
create
discriminatorily-abusive work environment; (5)
complained-of conduct was both objectively
subjectively offensive; and (6) there is a basis
employer liability.
Medina-Rivera, 713 F.3d at 137 n. 2.
she
the
was
the
a
the
and
for
In their motion for summary judgment, the Defendants argue that Irizarry
and Bauzá’s conduct was not severe or pervasive enough to create a hostile
work environment.
Her most obvious claims of sexual harassments stem from her relationship
with fellow attorney and co-worker, Mr. Irizarry. It stems from the record
that on October 21, 2010 at 3:24a.m. she received an e-mail from him inviting
her out to dinner. Fontanillas admits that, for the most part, the time in
which the e-mail was sent, as opposed to the content, made her think it was
improper. See Factual Finding No. 75-76. Plaintiff never complained to
Irizarry himself about how uncomfortable this message made her feel, and in
fact, continued to occasionally communicate with him thereafter via e-mail,
Facebook or text. See Factual Findings No. 89-91. Notwithstanding, six months
after Irizarry sent this e-mail, the Plaintiff complained about it to Bauzá
during a meeting on April 1, 2011, and also told him that Irizarry had made
a comment regarding a sexual dream with a co-worker. Then, after her
termination, Fontanillas also complained for the first time to her employer
that Irizarry had made a comment about receiving nude pictures in Facebook,
all this while moving his pelvic area. So in total, the Plaintiff alleged
three incidents of what she perceived was sexual harassment on the part of
Irizarry, of which only two she complained about during her employment.
CIV. NO. 12-1206(PG)
Page 31
“Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature constitute sexual harassment … .” 29
C.F.R. § 1604.11 (2010). “One type of sexual harassment … involves ‘bothersome
attentions or sexual remarks’ so ‘severe or pervasive’ that they create a
‘hostile
work
environment.’”
citations omitted).
Medina-Rivera,
713
F.3d
at
136
(internal
Assuming that Irizarry’s conduct satisfies the first
three elements of the applicable test, the court must determine whether or not
the harassing treatment meets the “severe or pervasive” standard. To that
effect, the First Circuit Court of Appeals has held that a court must consider
several
relevant
factors
including
“the
severity
of
the
conduct,
its
frequency, whether it is physically threatening or not, and whether it
interfered with the victim’s work performance.” Gerald v. Univ. of P.R., 707
F.3d 7, 18 (1st Cir.2013). Notwithstanding, “a single act of harassment may,
if egregious enough, suffice to evince a hostile work environment.” Noviello
v. City of Boston, 398 F.3d 76, 84 (1st Cir.2005).
The events chronicled by the Plaintiff fail to evince that “her contact
with [Irizarry]… was egregious, or so egregious as to evince a hostile work
environment. … On the scale of what has been recognized as egregious conduct
rising to the required level, this was not close.” Ponte v. Steelcase Inc.,
--- F.3d ----, No. 13–2011, 2014 WL 341166 at *8 (1st Cir. January 31, 2014)
(citations omitted). In fact, with regards to Irizarry’s comments or messages,
the Plaintiff states in her opposition that she “felt uncomfortable and
reacted by ignoring Irizarry and his propositions.” Docket No. 75 at page 9.
However, “discomfort is not the test.” Ponte, 2014 WL 341166 at *7 (citing
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (noting that
Title
VII
was
not
intended
to
be
a
“general
workplace)). In addition, Irizarry’s conduct
civility
code”
for
the
could not even have been
subjectively offensive if she was able to ignore it. See Cordero-Suarez v.
Rodriguez, 689 F.3d 77, 83 (1st Cir.2012) (finding that the alleged instances
in which supervisor harassed and threatened plaintiff-employee, which she
admittedly ignored without consequence, fall short of the type of conduct the
court has found “severe and pervasive” in the past).
The same is the case with some of the allegations of sexual harassment
attributed to co-defendant Bauzá. Plaintiff, in an attempt to bolster her
claim of sexual harassment, asserted during her deposition for the first time
in these proceedings that Bauzá was reading a document leaning on his chair
and opened his legs, thereby displaying his crotch. Notwithstanding, Plaintiff
CIV. NO. 12-1206(PG)
Page 32
admits that his pants’ zipper was closed and he was fully clothed at all
relevant times. Fontanillas also acknowledges that she never mentioned this
alleged behavior to anyone at the Firm or included any allegations of sexual
harassment regarding co-defendant Bauzá in the EEOC charge she filed or in the
complaint. See Factual Findings No. 119-120. But while the court speculates
that Plaintiff may have felt uncomfortable while sitting in front of Bauzá,
once again, “discomfort is not the test,” Ponte, 2014 WL 341166 at *7, and her
allegations as to the way Bauzá simply sat in his chair could not have either
altered the conditions of her employment or created a discriminatorily-abusive
work environment.
The court will now move on to discuss a different set of allegations
pertaining to her hostile work environment claim, which relate to the way
Bauzá treated her as her supervisor and her relationships, or lack thereof,
with her co-workers, including co-defendant Vázquez.
A Title VII hostile work environment claim also exists where a “workplace
is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift
Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49
(1986)). Plaintiff may establish a violation of Title VII by proving that
discrimination based on sex has created a hostile or abusive work environment.
See Forrest v. Brinker Intern. Payroll Co., LP, 511 F.3d 225, 228 (1st
Cir.2007) (internal citations and quotations omitted).
[A]ctions of informal harassment, as opposed to formal
employment actions like transfers or demotions,
amounting to a hostile work environment can rise to the
level of a challengeable employment action, … but only
if the discriminatory acts are sufficiently severe … .
Cordero-Suarez, 689 F.3d at 82 (internal citations and quotation marks
omitted).
As to Bauzá, the Plaintiff also complains that he screamed at her. The
factual record before the court shows that the only instance in which he did
was when he yelled at Fontanillas and Liza Ruiz after discovering some income
tax return forms were filed with an error and they both had made changes to
these forms after he had revised and approved them. See Factual Findings
No. 131-133. However, in her complaint she describes two more incidents in
which he did: (1) on November 17, 2010, in reference to an e-mail she sent a
client, see Docket No. 1 at ¶ 46; (2) on June 30, 2011, during the course of
CIV. NO. 12-1206(PG)
Page 33
a telephone call with regards to the filing of a closing agreement, id. at
¶ 80. The Plaintiff also complained that he used to put his feet up on his
desk showing the soles of his shoes and put his hand up to stop her from
talking, yet she never reported any of this to the Firm Administrator or to
co-defendant Dapena. See Factual Findings No. 121-123. In her complaint,
Plaintiff also recounts that Bauzá opened her office’s locked door while she
was away from her office, took some books and then questioned whether the
books belonged to her, see Docket No. 1 at ¶¶ 49-52; that on February 9, 2011
and June 27, 2011, respectively, he sent her an e-mail reprimanding her for
violating the Firm’s rules by being late or absent without notification, id.
at ¶¶ 55, 77; that on March 28, 2011, Bauzá ordered her to help their legal
assistant bind some documents for a seminar, id. at ¶¶ 56-62; that on July 7,
2011, Bauzá mockingly asked her if she wasn’t a partner with an L.L.M., id.
at ¶ 81.
Even construing these events in the light most favorable to the
Plaintiff, the court finds that none of them qualifies as an act of sexual
harassment under Title VII. The Plaintiff simply fails to establish that the
harassment that she claims created a hostile work environment was based on her
sex. See Medina-Rivera, 713 F.3d at 137 n. 2; Forrest, 511 F.3d at 228. In
fact, the instances in which she alleges that Bauzá yelled at her were all
prompted by some sort of work-related disagreement, not her sex. Therefore,
they have not even been traced to any discriminatory animus. And although
Bauzá’s conduct may have at times been arguably unpleasant or brusque or
uncivil, “we note that ‘a supervisor’s unprofessional managerial approach and
accompanying efforts to assert [his] authority are not the focus of the
discrimination laws.’” Colon-Fontanez v. Municipality of San Juan, 660 F.3d
17, 44 (1st Cir.2011) (quoting Lee–Crespo v. Schering–Plough Del Caribe, Inc.,
354 F.3d 34, 46–47 (1st Cir.2003)) (holding appellant could not show hostile
or abusive work environment where supervisor regularly refused to meet with
appellant, yelled at her in front of co-workers, failed to act to prevent or
deter other employees from making derogatory comments regarding appellant, and
limited appellant’s movements around workplace, inter alia). Moreover, “the
evidence does not support a hostile work environment claim. The incidents
described are episodic, but not frequent, in nature; upsetting, but not
severe; mildly humiliating, but not physically threatening.” Colon-Fontanez,
660 F.3d at 44-45.
CIV. NO. 12-1206(PG)
Page 34
Moving on to the claims against her co-workers, in particular, her female
ones, Fontanillas points out the following incidents as indicative of a
hostile work environment: (1) that Lourdes Vázquez told her to clean her
office herself after the Plaintiff complained to her of dust in her office
following some repairs; (2) that Vázquez sent her an e-mail copying the
capital partners at MBCD ordering her to give her car keys to the parking
lot’s security guard because Fontanillas had thereby violated parking lot
rules; (3) that on February 10, 2011, Vázquez sent her an e-mail asking her
to leave during a lunch outing with coworkers because according to a medical
certificate Fontanilla had turned in to justify her absence, the latter was
supposed to be resting until the next day;5 (4) that the female attorneys at
MBCD, Liza Ruiz and co-defendant Vázquez ignored her, making her feel
marginalized; (5) that fellow attorney Grisselle Bermúdez blind-copied Bauzá
in some e-mails; (6) that Torrech failed to offer Plaintiff a piece of her
lasagna
during
lunch
and
a
discussion
ensued.
However,
despite
these
incidents, the Plaintiff admits inviting Vázquez to lunch constantly and even
inviting her coworkers to movies or lunch after complaining of being the
victim of the “silent treatment” on their part. See Factual Findings No. 7172.
While these facts certainly indicate an uncomfortable and tense working
relationship between Plaintiff and her female colleagues, again, “they are not
sufficiently severe or pervasive to constitute a hostile work environment.”
Colon-Fontanez, 660 F.3d at 44. In fact, they are not even based on her sex,
but more likely, on the type of person she was. “The workplace is not a
cocoon, and those who labor in it are expected to have reasonably thick skins
… to survive the ordinary slings and arrows that workers routinely encounter
in a hard, cold world.” Suárez v. Pueblo Int’l, Inc., 229 F.3d 49, 54 (1st
Cir.2000). “Not fitting into the clique hardly arises to the intentional
discrimination that is prohibited by Title VII, which ‘is not a code of
civility.’” Wilson v. Kautex, Inc., No. 1:07-CV-60-TS, 2009 WL 1657463 at *34
(N.D.Ind. June 10, 2009) (quoting Yuknis v. First Student, Inc., 481 F.3d 552,
556 (7th Cir.2007)).
5
The court notes that the record reflects that the Plaintiff alleges to have been
reprimanded by Bauzá for her tardiness on February 9, 2011, day on which she later leaves
for “medical reasons” and turns in a medical certificate releasing her to return to work two
days later on February 11th , see Factual Finding No. 108. Yet, on the following day,
Fontanillas is well and able to attend a birthday lunch with her co-workers, see Factual
Finding No. 110.
CIV. NO. 12-1206(PG)
Page 35
Alternatively, under Title VII, when “the harassing employee is the
victim’s co-worker, the employer is liable only if it was negligent in
controlling working conditions.” Vance v. Ball State University, 133 S.Ct.
2434, 2439 (2013). “Typically, this involves a showing that the employer knew
or should have known about the harassment, yet failed to take prompt action
to stop it.” Noviello, 398 F.3d at 95.
The evidence on record at this stage reflects that when the Plaintiff
complained about her female co-workers attitude towards her, as well as
Irizarry’s
alleged
sexual
harassment,
the
Defendants
undertook
an
investigation of her complaints, interviewed all involved, and after reaching
their conclusions, encouraged the female attorneys to maintain a cordial
relationship with Fontanillas, see Factual Finding No. 60, and instructed
Irizarry to keep his distance from Plaintiff, see Factual Finding No. 96.
Therefore, the court finds that MBCD and the Plaintiff’s supervisors took
prompt remedial action with regards to the two instances of harassment and
hostile work environment that the Plaintiff brought to her employer’s
attention, and thus, no negligence can be attributed to the Plaintiff’s former
employer on account of her co-worker’s actions.
As per the foregoing, the Defendants’ request that the Plaintiff’s
hostile work environment claim under Title VII be dismissed is hereby GRANTED.
3. Retaliation
In her complaint, the Plaintiff alleged that she was terminated in
retaliation for protesting about
sexual harassment and a hostile work
environment. See Docket No. 1 at ¶ 141.
Title VII makes it unlawful for an employer to retaliate against a person
who complains about discriminatory employment practices. See 42 U.S.C.
§ 2000e–3(a). Title VII’s anti-retaliation provision provides 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). In Univ. of Texas Sw. Med. Ctr. v. Nassar, –––U.S.
––––, 133 S.Ct. 2517 (2013), the Supreme Court recently held as to Title VII
retaliation claims that “[t]he text, structure, and history of Title VII
demonstrate that a plaintiff making a retaliation claim under § 2000e–3(a)
must establish that his or her protected activity was a but-for cause of the
CIV. NO. 12-1206(PG)
Page 36
alleged adverse action by the employer.” Id. at 2534 (emphasis ours).
Therefore, “[i]t rejected the less stringent standard that the plaintiff must
show only that retaliation was a ‘motivating’ factor.” Ponte, 2014 WL 341166
at *9.
“Retaliatory termination claims based on circumstantial evidence are
evaluated
using
the
McDonnell
Douglas
burden-shifting
framework.”
Id.
(citations omitted). To succeed on a retaliation claim, a plaintiff must first
prove these elements: (1) that she undertook protected conduct; (2) that her
employer took a material adverse action against her; and, (3) that a causal
nexus exists between elements one and two. See Medina-Rivera, 713 F.3d at 139
(internal citations omitted).
There is no question that Fontanillas was discharged on September 28,
2011, and thus suffered an adverse employment action. We shall thus address
the other requirements in turn.
In their motion for summary judgment, the Defendants contend that the
Plaintiff does not meet the first prong of the applicable test. See Docket
No. 63 at page 31. In essence, the Defendants’ position is that these
complaints do not amount to “protected activity” as required by Title VII
because she could not have reasonably believed in good faith that she was
opposing an unlawful practice that had taken place six months prior to her
internal complaint, especially when the alleged sexual harassment had ceased.
See id.
“[P]rotected conduct under Title VII’s anti-retaliation provision is not
limited to filing an administrative charge of discrimination. It expressly
prohibits retaliation for ‘oppos[ing] any practice made an unlawful practice’
by Title VII.” Petrarca v. Southern Union Co., No. 04–310S, 2007 WL 547690 at
*12 (D.R.I. 2007) (citing 42 U.S.C. § 2000e–3(a)). See also Perez-Cordero v.
Wal-Mart
Puerto
Rico,
Inc.,
656
F.3d
19,
31
(1st
Cir.2011)
(finding
plaintiff’s reporting of complaints to his superiors about the harassment to
which he was subjected suffice to show his “opposition” to that harassment,
within the meaning of Title VII); Matima v. Celli, 228 F.3d 68, 78-79 (2d
Cir.2000) (“The law protects employees in the filing of formal charges of
discrimination
as
well
as
in
the
making
of
informal
protests
of
discrimination, ‘including making complaints to management, writing critical
letters to customers, protesting against discrimination by industry or society
in general, and expressing support of co-workers who have filed formal
charges.’”). In accordance with the applicable caselaw, the court finds that
CIV. NO. 12-1206(PG)
Page 37
the Plaintiff’s complaint to Bauzá regarding what she perceived was Irizarry’s
sexual harassment is sufficient to meet the protected conduct element of her
Title VII retaliation claim.
The Defendants alternatively argue that Fontanillas does not make out a
prima facie case of retaliation under Title VII on the grounds that her
termination in September of 2011 is not causally linked to her complaint of
sexual harassment. According to the Defendants, the Plaintiff fails to meet
the newly-set “but-for” causation standard set forth in Nassar. See Docket
No. 63 at pages 32-33. With regards to this argument, the court is forced to
set forth that “it is not entirely clear where the analysis of causation fits
into the McDonnell Douglas framework as applied to Title VII retaliation
claims,” Hubbard v. Tyco Integrated Cable Systems, Inc., No. 10–cv–365–LM,
2013 WL 6234623 at *23 (D.N.H. December 03, 2013), either when considering the
third element of the prima facie case or at the final stage of the framework
as a part of a plaintiff’s ultimate burden, see id.. In fact, in Ponte, the
First Circuit Court of Appeals avoided the question by engaging into a “larger
picture” analysis when reaching this stage of the discussion of the prima
facie case. See Ponte, 2014 WL 341166 at *9 (rejecting plaintiff’s contention
that chronological proximity supported inference of causation at prima facie
stage because “larger
picture” undermined his claim). Because of this
uncertainty, the court shall be particularly mindful that it has been
consistenly held that “[m]eeting the initial prima facie requirement is ‘not
especially burdensome.’” Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 12 (1st
Cir.2011) (citing Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st
Cir.1995); Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir.2003)
(describing the prima facie burden under the McDonnell Douglas framework as
“not onerous,” “easily made,” and a “small showing”)).
Therefore, applying the traditional standard of causation at this stage,
the court finds that Plaintiff’s termination in September 28, 2011 was not
sufficiently close to her complaint in April 1, 2011, which the court has
deemed to be protected conduct on the Plaintiff’s part. The First Circuit
Court of Appeals had held that temporal proximity of an employee’s protected
activity to an employer’s adverse action is a source of circumstantial
evidence that, theoretically, can demonstrate retaliation in a way sufficient
to leap the summary judgment hurdle. See Mesnick v. General Electric Co., 950
F.2d 816, 828 (1st Cir.1991). “Where the evidence shows only that the
decisionmaker knew of the complainant’s protected conduct at the time the
CIV. NO. 12-1206(PG)
Page 38
adverse employment action was taken, causation may be inferred from a very
close temporal relationship between the protected activity and the adverse
action.” Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir.2011) (citations
omitted) (emphasis ours). However, “[p]eriods of three or four months have
been held to be insufficient to support such an inference.” Id. (citing
Calero–Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir.2004)). In the
case at hand, the Plaintiff’s termination became effective three days shy of
six months after she lodged her complaints. Because of a lack of chronological
proximity, and even taking the “larger picture” into account, the Plaintiff
fails to establish the element of causation of her prima facie case of
retaliation under Title VII with regards to her termination.
Alternatively, “[i]f a plaintiff makes out a prima facie case of
retaliation … , a rebuttable presumption of unlawful retaliation arises and
‘the
burden
shifts
to
the
employer
to
articulate
a
legitimate,
nondiscriminatory reason for its employment decision.’” Vera v. McHugh, 622
F.3d 17, 32 (1st Cir.2010) (citing Wright v. CompUSA, Inc., 352 F.3d 472, 478
(1st Cir.2003)). “In order to rebut that presumption, the employer does not
have the burden of persuasion, but must simply produce evidence of a
legitimate, nondiscriminatory reason for the employment action.” Vera, 622
F.3d at 32 (citing Reeves, 530 U.S. at 142). As previously stated, this court
has found that the Defendants successfully set forth legitimate, nonretaliatory, business reasons for her termination, to wit: her performance
deficiencies, her failure to adhere to the Firm’s rules and her poor personal
relationships with her co-workers at MBCD, all of which stem from the factual
findings herein.
“If the defendant meets the burden, the plaintiff must then ‘show that
the proffered legitimate reason is in fact a pretext and that the job action
was the result of the defendant’s retaliatory animus.’” Rios v. Municipality
of Guaynabo, 938 F.Supp.2d 235, 248 (D.P.R. 2013) (citing Roman v. Potter, 604
F.3d 34, 39 (1st Cir.2010)). “Pretext can be shown by such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and hence infer
that the employer did not act for the asserted non-discriminatory reasons.”
Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662-663 (1st
Cir.2010) (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)).
In her opposition to the Defendants’ motion, the Plaintiff only conclusively
CIV. NO. 12-1206(PG)
Page 39
states, without more, that the proffered reasons for her termination were
pretextual. See Docket No. 75 at page 18.
As per the foregoing, the court finds that, “[e]ven if she had made a
prima facie case of retaliation, which she did not, [Defendants] met [their]
burden
to
establish
a
‘legitimate,
non-retaliatory’
reason
for
the
termination, so the final burden rests with [Plaintiff] to show that this
proffered reason was mere pretext.” Ponte, 2014 WL 341166 at *10 (citations
omitted). Even viewing the evidence in the light most agreeable to the
Plaintiff and giving her the benefit of any and all reasonable inferences, the
court finds that she has not met this burden. Consequently, the Defendants’
motion for summary judgment is GRANTED as to the Plaintiff’s retaliation claim
under Title VII.
B. Supplemental State Law Claims
The remainder of Plaintiff’s claims are grounded on Puerto Rico law.
Since the federal claims have been dismissed and no other grounds for
jurisdiction exist, the court declines to exercise supplemental jurisdiction
over the Plaintiff’s remaining state-law claims. See Carnegie–Mellon Univ. v.
Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (explaining
that the exercise of pendent jurisdiction is a matter of the federal court’s
discretion and not one of plaintiff’s rights); United Mine Workers v. Gibbs,
383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (stating “if the
federal claims are dismissed before trial, … the state law claims should be
dismissed as well.”). Accordingly, the Plaintiff’s claims brought pursuant to
Commonwealth law are hereby DISMISSED WITHOUT PREJUDICE.
IV. CONCLUSION
For
the
reasons
stated
above,
this
Court
hereby
GRANTS
IN
PART
Defendants’ motion for summary judgment and thus, Plaintiff’s claims under
Title VII are hereby DISMISSED WITH PREJUDICE. The supplemental state-law
claims, however, are hereby DISMISSED WITHOUT PREJUDICE. Judgment shall be
entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, February 7, 2014.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
U.S. DISTRICT JUDGE
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