Miranda v. Deloitte LLP et al
Filing
348
OPINION AND ORDER GRANTING 176 Motion in Limine; GRANTING 182 Motion in Limine; granting in part and denying in part 225 Motion for Summary Judgment; denying 227 Motion for Summary Judgment; denying 230 Motion for Summary Judgment; dismissing 321 Motion to Strike; denying 323 Motion for Leave to File; denying 325 Motion for Leave to File; and denying 347 Motion to Strike. Signed by Judge Francisco A. Besosa on 11/05/2013. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA G. MIRANDA,
Plaintiff,
v.
CIVIL NO. 12-1271 (FAB)
DELOITTE LLP, DELOITTE TAX LLP,
DELOITTE & TOUCHE LLP, DELOITTE
SERVICES
LLP,
FRANCISCO
A.
CASTILLO-PENNE, RICARDO VILLATEPRIETO,
MICHELLE
CORRETJERCATALAN, JOHN DOE, RICHARD DOE,
ABC, DEF INSURANCE COMPANIES,
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court are:
1.
Plaintiff Wanda G. Miranda’s motion for partial summary
judgment, statement of uncontested facts, and amended supporting
memorandum,
(Dockets
230,
230-1
&
248);
the
memorandum
in
opposition filed by defendants Deloitte Tax LLP (“Deloitte Tax”),
Deloitte Services LP (“Deloitte Services”), Deloitte LLP, Deloitte
& Touche LLP (“Deloitte & Touche”), and Francisco Castillo-Penne
(“Castillo”), Michelle Corretjer-Catalan (“Corretjer”), and Ricardo
Villate-Prieto
(“Villate”)
in
their
official
capacities,
(Docket 284); and plaintiff’s reply, (Docket 313);
2.
the motion for summary judgment, supporting memorandum of
law, and statement of uncontested facts filed by Deloitte Tax,
defendants Castillo, Villate, and Corretjer in their official
Civil No. 12-1271 (FAB)
2
capacities, (Dockets 225, 225-1, & 226); plaintiff’s opposition
memorandum and opposing statement of facts, (Dockets 294 & 294-1);
and defendants’ reply, (Docket 318);
3.
the motion for summary judgment, supporting memorandum of
law, and statement of uncontested facts filed by Deloitte Services,
Deloitte LLP, and Deloitte & Touche, (Dockets 227, 227-1 & 228);
plaintiff’s
opposition,
(Docket
293);
and
defendants’
reply,
(Docket 316); and
4.
the motions in limine in connection with the testimony
and sworn statements of Maria I. Silva-Silva, (Docket 182), and
Edileen Soto-Salicrup, (Docket 176).
I.
Summary Judgment Standard
The Court may grant a motion for summary judgment “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a).
The party moving for summary judgment has the
initial burden of “demonstrat[ing] the absence of a genuine issue
of material fact.”
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323
The party must demonstrate this absence with definite and
competent evidence.
See Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 581 (1st Cir. 1994).
It must identify “portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any’” which support its
motion.
Id.
(citing Fed.R.Civ.P. 56(c)).
Once a properly
Civil No. 12-1271 (FAB)
3
supported motion has been presented, the burden shifts to the nonmoving party “to demonstrate that a trier of fact reasonably could
find in [its] favor.”
Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000) (internal citation omitted).
If the non-moving party establishes uncertainty as to the
“true state of any material fact, the movant’s efforts should be
deemed unavailing.”
See Lopez & Medina Corp. v. Marsh USA, Inc.,
694 F. Supp. 2d 119, 123 (D.P.R. 2010) (citing Suarez v. Pueblo
Int’l., 229 F.3d 49, 53 (1st Cir. 2000)).
It is well-settled that
“[t]he mere existence of a scintilla of evidence” is insufficient
to
defeat
a
properly
supported
motion
for
summary
judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
It is
therefore necessary that “a party opposing summary judgment must
‘present
definite,
competent
evidence
to
rebut
the
motion.’”
Maldonado-Denis, 23 F.3d at 581 (internal citation omitted).
In
making this assessment, a court must take the entire record in the
light most favorable to the nonmoving party and draw all reasonable
inferences in its favor.
Farmers Ins. Exch. v. RNK, Inc., 632 F.3d
777, 779-80 (1st Cir. 2011).
II.
ADEA Age Discrimination Claim
Both
plaintiff
and
defendants
seek
summary
plaintiff’s ADEA age discrimination claim.
judgment
of
When, as here, the
employee offers no direct evidence of discrimination, a three-step
burden-shifting
framework
applies
in
ADEA
claims.
Civil No. 12-1271 (FAB)
4
Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir.
2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973)).
The employee must first show:
(1) that she was at
least forty years old when the adverse employment action was taken
against her; (2) that her job performance met the employer’s
legitimate
expectations;
(3)
that
she
suffered
an
adverse
employment action; and (4) that the employer filled the position,
thereby showing a continuing need for the services that she had
been rendering.
Melendez v. Autogermana, Inc., 622 F.3d 46, 50
(1st Cir. 2010).
Once established, the prima facie showing “gives
rise to a rebuttable presumption that the employer engaged in
intentional age-based discrimination.”
Woodman v. Haemonetics
Corp., 51 F.3d 1087, 1091 (1st Cir. 1995) (citations omitted). The
burden of production then shifts to the employer “to produce
sufficient competent evidence to allow a rational fact-finder to
conclude that a legitimate non-discriminatory reason existed for
the termination.”
Melendez, 622 F.3d at 50.
If the employer meets
its burden, the employee must then prove that the employer’s reason
is
pretextual,
and
that
“the
record
evidence
would
permit a
reasonable jury to infer that the real reason was discriminatory
animus” based on an impermissible consideration.
quotations and citation omitted).
Id. (internal
Civil No. 12-1271 (FAB)
A.
5
Prima Facie Case
None of the parties disputes that the first, third, and
fourth prima facie elements are met in this case.
Plaintiff was 42
years old when she was discharged on May 25, 2011, and her position
was subsequently filled by two other employees at Deloitte Tax.
(Dockets 230-1 at pp. 35–36; 284-1 at pp. 53–56.)
Defendants
argue, however, that plaintiff fails to satisfy the second element
of the prima facie case, that she was performing her job up to her
employer’s legitimate expectations.
(Docket 284 at p. 6.)
The Court finds unavailing defendants’ argument that
plaintiff’s job performance was inadequate because she was placed
on a Performance Improvement Plan (“PIP”) before being terminated;
she had received ratings of 3s and 4s in her evaluations for fiscal
year 2010; and she had been expressly told that her performance was
below expectations.
advised,
a
court
As the First Circuit Court of Appeals has
“cannot
consider
the
employer’s
alleged
nondiscriminatory reason for taking an adverse employment action
when analyzing the prima facie case.”
Melendez, 622 F.3d at 51
(internal quotations and citation omitted).
Accordingly, because
defendants invoke plaintiff’s allegedly poor performance as a tax
manager in arguing that she was dismissed for non-discriminatory
reasons, the Court cannot rely on that performance in assessing
whether
she
expectations
satisfied
prong.
See
the
id.
prima
(“If
facie
we
were
case’s
to
legitimate
consider
[the
Civil No. 12-1271 (FAB)
6
defendant’s] stated reason for firing [the plaintiff] as evidence
that [the plaintiff] was not meeting the company’s expectations, we
would bypass the burden-shifting analysis and deprive the plaintiff
of the opportunity to show that the nondiscriminatory reason was in
actuality a pretext designed to mask discrimination.”) (internal
quotations and citation omitted).
To establish that she was indeed meeting Deloitte Tax’s
legitimate expectations at the time of her dismissal, plaintiff
points to her 17-year career beginning at Deloitte & Touche in
1990; relies on her position as the manager chosen to complete the
tax preparations of the San Juan office’s partners in 2010; and
claims that her personnel file is devoid of any documentation that
supports the issuance of the PIP.
(Docket 248 at p. 5.)
The Court
agrees with defendants that simply because plaintiff allegedly had
the necessary qualifications for the tax manager position does not
automatically
mean
that
she
established
a
sufficient
job
performance. “Mindful that an employee’s burden at the prima facie
stage is not particularly onerous,” however, the Court finds that
the evidence is minimally sufficient to show that a triable issue
exists
as
to
expectations.
agree:
her
ability
to
meet
Deloitte’s
See Melendez, 622 F.3d at 51.
legitimate
Defendants seem to
“It is disingenuous, to say the least, for plaintiff to
suggest there are no issues of material fact with respect to her
Civil No. 12-1271 (FAB)
7
meeting [the second] element of her prima facie case.” (Docket 284
at p. 7.)
B.
Legitimate and Non-Discriminatory Reason for Dismissal
Even if plaintiff were able to meet all four elements of
a prima facie case, defendants contend that a legitimate and nondiscriminatory reason exists for firing plaintiff:
performance.
(Docket 226 at p. 33.)
her poor
They claim that as early as
May 2010, defendants informed plaintiff that she needed to improve
her performance; that due to her deficiencies she was put on a PIP
on February 15, 2011; and that she was ultimately terminated on
May 25, 2011 because she had failed to comply with the PIP and
improve her performance.
(Docket 226 at p. 33.)
This is enough
“to enable a rational factfinder to conclude that there existed a
nondiscriminatory reason” for plaintiff’s dismissal.
Ruiz v.
Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997); see
also Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir.
2008) (employer’s assertion that employee’s discharge was due to
deficient performance satisfied employer’s burden of providing a
legitimate, non-discriminatory reason).
C.
Pretext and Discriminatory Animus
At the final stage, the burden shifts to plaintiff to put
forth sufficient facts for a reasonable fact-finder to conclude
that defendants’ proffered reason for discharging her is a pretext,
and that the true reason behind the firing was a discriminatory
Civil No. 12-1271 (FAB)
animus.
8
See Melendez, 622 F.3d at 52.
The First Circuit Court of
Appeals has noted that a plaintiff may not merely dispute the
truthfulness of the employer’s justification.
Instead, he or she
must “elucidate specific facts which would enable a jury to find
that the reason given is not only a sham, but a sham intended to
cover up the employer’s real motive:
(internal
quotations
and
citation
age discrimination.”
omitted).
The
Court
Id.
thus
addresses plaintiff’s allegation that the true reason behind her
firing was age discrimination.
The Court finds absolutely no evidence in the record
pertaining to plaintiff’s allegation of age-based discrimination in
violation
of
the
ADEA.
None
of
plaintiff’s
statements
of
uncontested facts supports any inference that any defendant so much
as
considered
plaintiff’s
employment decision on it.
age,
let
alone
based
any
adverse
The only statement called to the
Court’s attention has been plaintiff’s deposition testimony that
“basically the age discrimination claim is that I’m over 40 years
old when I was terminated, and basically my termination was unfair,
unjust.”
(Docket 226-1 p. 368.)
In the absence of any other
evidence, the record is insufficient to enable a jury to find that
the real reason behind defendant’s dismissal of plaintiff was a
discriminatory animus based on her age.
ADEA claim is DISMISSED WITH PREJUDICE.
Accordingly, plaintiff’s
Civil No. 12-1271 (FAB)
9
III. Title VII Sex Discrimination Claim
Title VII prohibits employers from discriminating against
employees on the basis of race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a).
sex-based discrimination.
Cir. 2010).
Sexual harassment is a form of
Vera v. McHugh, 622 F.3d 17, 26 (1st
If an employer requires an employee “to work in a
discriminatorily hostile or abusive environment,” it violates Title
VII.
Gerald v. Univ. of P.R., 707 F.3d 7, 17 (1st Cir. 2013).
In
order to prevail on a hostile work environment sexual harassment
claim, a plaintiff must establish:
(1) membership in a protected
class; (2) some basis for employer liability; and (3) unwelcome
sexual harassment, which (a) was based on sex, (b) was sufficiently
severe or pervasive, and (c) was objectively and subjectively
offensive.
Id.
The Court discusses each element in turn.
There is no doubt (and no dispute from the defendants) that
plaintiff, as a woman, is a member of a protected class.
The Court
also finds a basis for employer liability because a supervisor —
defendant Castillo — allegedly created the actionable hostile work
environment, thus creating vicarious liability for the employer.
Civil No. 12-1271 (FAB)
10
Gerald, 707 F.3d at 19–20.1
Accordingly, the first and second
elements of a Title VII hostile work environment sexual harassment
claim are satisfied.
Whether
defendant
Castillo’s
conduct
present a factual question for the jury.2
was
unwelcome
would
The evidence indicates
that plaintiff was turned off and bothered by defendant Castillo’s
statements and behavior.
She classified his jokes as “indecent”
and “lewd,” and felt that defendant Castillo “went over the line”
with his behavior towards her.
(Docket 200-4 at p. 3.)
She claims
to have told Castillo directly that she didn’t like his jokes, id.
at pp. 9–10, and she also spoke to Ms. Tere Pascual — HR senior
manager of Deloitte Services — on several occasions about the
inappropriateness
of
Castillo’s
behavior.
Id.
at
pp.
4–9.
Plaintiff reported her “concern about the jokes” to Ms. Pascual and
“made her aware of what was happening to [plaintiff].”
p. 4.
Id. at
That plaintiff had known defendant Castillo for 20 years,
1
Defendants argue that they are entitled to the FaragherEllerth defense because Deloitte Tax has a well - established antiharassment policy in place, and it took steps to correct any
harassment on defendant Castillo’s part.
(Docket 226 at
pp. 13–19.)
As the First Circuit Court of Appeals recently
clarified, however, “[t]he Faragher-Ellerth defense, which shields
an employer from liability for a supervisor-created hostile work
environment, can only be raised if no tangible employment action is
taken against the employee.” Gerald, 707 F.3d at 20 n.5. In this
case, a tangible employment action was taken because, at the very
least, plaintiff was terminated. Accordingly, the Faragher-Ellerth
defense is inapplicable.
2
As discussed below, the Court dismisses plaintiff’s Title
VII sexual discrimination claim for another reason.
Civil No. 12-1271 (FAB)
11
heard his jokes frequently, and failed firmly to communicate her
feelings about his jokes head on with him until after she had filed
a
complaint
unwelcome.
does
not
conclusively
mean
that
the
jokes
were
At the very least, that evidence would raise a factual
question as to whether defendant Castillo’s conduct was unwelcome
— a question for the jury to decide.
See Gerald, 707 F.3d at 17
(“In the context of sexual harassment claims, the question of
‘whether particular conduct was indeed unwelcome presents difficult
problems of proof and turns largely on credibility determinations
committed to the trier of fact,’ and this case is no exception.”)
(citing Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986).
Defendants next argue that plaintiff fails to show that her
alleged
discrimination
occurred
“because
of
her
sex.”
The
discriminatory incidents plaintiff relies upon, they argue, “are
not gender specific[,] and there is no evidence that they affected
women more than they did men.”
unpersuaded.
(Docket 226 at p. 9.)
The Court is
For harassment to be “based on sex,” it must be
gender specific, but not necessarily motivated by sexual desire.
Gerald, 707 F.3d at 17.
Here, the record is sufficient for a
reasonably jury to conclude that Castillo’s actions were triggered
by plaintiff’s female gender. When plaintiff went to receive a flu
shot at work, Castillo allegedly told the nurse to put the shot in
plaintiff’s buttocks, and imitated physical conduct of a sexual
nature. (Docket 225-3 at pp. 55, 60.)
When telling an off-colored
Civil No. 12-1271 (FAB)
12
joke at the office, Castillo allegedly asked plaintiff and two of
her female co-workers if they had touched their husbands’ “wichu”
— which resembles the word “bicho,” a Puerto Rican vulgar term for
penis.
Id. at p. 55.
These two incidents alone are sufficient to
suggest both that Castillo’s jokes were directed at the female
gender and that his actions towards plaintiff occurred because of
her sex.
Because Title VII does not cover all harassing conduct, the
alleged sexual harassment “must be sufficiently severe or pervasive
to alter the conditions of the victim’s employment and create an
abusive working environment” in order to be actionable.
Vera, 622
F.3d at 26 (internal punctuation and citation omitted). “‘There is
no mathematically precise test to determine whether a plaintiff
presented sufficient evidence’ that he or she was subjected to a
severely or pervasively hostile work environment.”
Pomales v.
Celulares
Cir.
Telefonica, Inc.,
447
F.3d
79,
83
(1st
(internal punctuation and citation omitted).
2006)
The Court must
consider all the circumstances, including (1) the frequency of the
harassing conduct, (2) its severity, (3) whether it was physically
threatening
or
utterance,
(4)
humiliating
whether
it
as
opposed
to
unreasonably
a
mere
interfered
offensive
with
an
employee’s work performance, and (5) the effect of the conduct on
the employee’s psychological well-being.
Vera, 622 F.3d at 26.
A
hostile work environment claim is thus based upon the cumulative
Civil No. 12-1271 (FAB)
13
effect of individual acts that may not by themselves be actionable.
Rivera-Garcia v. Sprint PCS Caribe, 841 F. Supp. 2d 538, 556
(D.P.R. 2012) (Perez-Gimenez, J.) (citing Nat’l. R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115-116 (2002)).
Courts are tasked
with distinguishing:
facts that merely add up to the ordinary tribulations of
the workplace, such as sporadic use of abusive language,
gender-related jokes, and occasional teasing, which can
never support a Title VII claim, from those suggesting
sexual remarks, innuendoes, ridicule, and intimidation[,]
which may be sufficient to support a jury verdict for a
hostile work environment.
Vera, 622 F.3d at 27.
Because this examination is fact specific,
it is normally best for the jury to decide, but “summary judgment
is an appropriate vehicle for policing the baseline for hostile
environment claims.”
O’Rourke v. Providence, 235 F.3d 713, 729
(1st Cir. 2001) (internal citations omitted).
Undoubtedly, defendant Castillo’s off-colored sexual jokes and
gestures constitute offensive and reprehensible conduct that is
inappropriate
professional
at
any
place
institution
behavior rises
to
the
like
level
of
employment,
Deloitte.3
of being
especially
Whether
sufficiently
at
a
Castillo’s
severe
or
pervasive pursuant to Title VII’s standard would be a factual
3
The Court is compelled by plaintiff’s belief that her
incident report did not help curb Castillo’s behavior and agrees
that “either nobody [at any of the Deloitte entities] did an
investigation[,] or [Castillo] just didn’t care and kept doing the
same conduct that he was used to do[ing].”
(Docket 225-3 at
p. 61.)
Civil No. 12-1271 (FAB)
14
question best left to the jury.4
For the reason discussed below,
however, the Court finds a fatal deficiency in plaintiff’s case and
must dismiss
her
Title VII
sexual
harassment claim
on other
grounds.
Plaintiff has failed to put forth sufficient evidence from
which a reasonable jury could find that Castillo’s harassment
altered the conditions of plaintiff’s employment.
Nowhere in her
statement of uncontested facts does plaintiff include information
regarding the effects of Castillo’s statements, jokes, gestures, or
behavior on her employment.
Instead, she merely claims that she
“felt intimidated, humiliated, and embarrassed over Mr. Castillo’s
offensive
conduct.”
(Docket
230-1
at
p.
32.)
Plaintiff’s
deposition likewise indicates that she found Castillo’s jokes to be
off-colored, lewd, and inappropriate, but the only effect on her
that the Court can glean is that they bothered her and made her
blush.
(Docket 225-3 at p. 29.)
She does not testify that the
ramifications of Castillo’s behavior rose to a level even close to
4
The First Circuit Court of Appeals has identified “behavior
like fondling, come-ons, and lewd remarks [as] often the stuff of
hostile environment claims.” Billings, 515 F.3d at 48. It has
also made clear, however, that there is no single type of behavior
essential to a successful hostile environment sexual harassment
claim.
Id. (“A worker need not be propositioned, touched
offensively, or harassed by sexual innuendo in order to have been
sexually harassed.”) (internal citation omitted). Given the range
of sexual jokes and physical gestures by defendant Castillo in this
case, it is beyond the Court’s “policing” power to determine
whether Castillo’s behavior was in fact severe or pervasive enough
to meet Title VII’s standard.
Civil No. 12-1271 (FAB)
interfering
with
15
plaintiff’s
work
performance.
Without
any
evidence in the record demonstrating that Castillo’s harassment was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive working environment, plaintiff’s
Title VII sex discrimination claim for sexual harassment must
fail.5 Accordingly, the Court DISMISSES WITH PREJUDICE plaintiff’s
Title VII sex discrimination claim.
IV.
Title VII Retaliation Claim
When an employer discriminates against its employee because
the
employee
has
“made
a
charge,
testified,
assisted,
or
participated in any manner in an investigation, proceeding, or
hearing,”
the
employer
violates
Title
VII’s
anti-retaliation
statute.
42 U.S.C. § 2000e-3(a); Vera, 622 F.3d at 32.
A
plaintiff must first make out a prima facie claim of retaliation by
showing (1) that she engaged in protected conduct, (2) that she
suffered an adverse employment action, and (3) that there was a
causal connection between the protected conduct and the adverse
employment action.
16
(1st
Cir.
Soileau v. Guilford of Me., Inc., 105 F.3d 12,
1997).
A
rebuttable
presumption
of
unlawful
retaliation then arises, and “the burden shifts to the employer to
articulate
5
a
legitimate,
non-discriminatory
reason
for
its
Because the Court finds that plaintiff has failed to
establish that defendant Castillo’s conduct was sufficiently severe
or persuasive so as to alter the conditions of her employment, it
need not address the last element of a Title VII claim — whether
the behavior was objectively and subjectively offensive.
Civil No. 12-1271 (FAB)
employment decision.”
16
Wright v. CompUSA, Inc., 352 F.3d 472, 478
(1st Cir. 2003) (citation and quotation marks omitted).
If the
employer presents evidence of a non-discriminatory reason for
firing the employee, “the presumption drops from the case and the
court must focus on the ‘ultimate factual issue.’”
Vera, 622 F.3d
at 32-33 (citing U.S. Postal Serv. Bd. of Governors v. Aiken, 460
U.S. 711, 715 (1983)).
In this case, the ultimate factual issue is
whether plaintiff has cited facts in the record from which a
reasonable jury could conclude that she experienced an adverse
employment action because she filed a sexual harassment complaint
against defendant Castillo.
See id. at 33.
The parties do not dispute that the first and second prima
facie elements of a Title VII retaliation claim are satisfied here:
plaintiff filed an internal grievance of sexual harassment on
October 6, 2010, which constitutes protected activity, and she was
terminated on May 25, 2011.
pp. 2 & 50.)
(Dockets 230-1 at pp. 2 & 32; 284-1 at
Defendants dispute only that plaintiff has met the
third element; they argue that the evidence does not show a causal
Civil No. 12-1271 (FAB)
17
link between plaintiff’s protected activity and the one6 adverse
employment action taken against her — termination.
(Docket 226 at
p. 26.)
Many
sources
of
circumstantial
demonstrating retaliation.
816, 828 (1st Cir. 1991).
evidence
are
capable
of
Mesnick v. Gen. Elec. Co., 950 F.2d
A plaintiff may demonstrate causation,
for example, “by establishing that the employer’s knowledge of the
protected activity was close in time to the employer’s adverse
6
In accordance with a majority of other circuit courts of
appeals, the Court finds that PIPs are not adverse employment
actions. See Reynolds v. Dep’t of the Army, 439 Fed. Appx. 150,
153 (3d Cir. 2011); Cole v. Illinois, 562 F.3d 812, 816-17 (7th
Cir. 2009); Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224
(10th Cir. 2006) (citing cases); Givens v. Cingular Wireless, 396
F.3d 998, 998 (8th Cir. 2005); But see Cancel de Rugg v. West, 106
F. Supp. 2d 289, 297 (D.P.R. 2000) (Fuste, J.) (finding that an
unsatisfactory performance evaluation and accompanying memorandum
informing an employee that she was being placed on a PIP
constituted adverse employment actions).
The Court does not,
however, subscribe to defendants’ rationale that plaintiff’s
negative employment reviews — issued two months after her internal
complaint was filed — cannot constitute adverse employment actions.
In Gu v. Boston Police Dept., the First Circuit Court of Appeals
explained that an employment action must “materially change” the
conditions of the plaintiff’s employment, and that such material
changes include “unwarranted negative job evaluations.” 312 F.3d
6, 14 (1st Cir. 2002) (quoting Hernandez-Torres v. Intercontinental
Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)). Moreover, the
Supreme Court has explained that an adverse action in a retaliation
claim need not affect the terms or conditions of employment, but
must be the type of action that would discourage a reasonable
employee from engaging in protected activity.
Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-63 (2006). Especially
in a case like this, where a supervisor exercises dominant control
over the employee’s corporate reviews, the Court finds that a
reasonable employee would be discouraged from engaging in protected
activity against that supervisor precisely because of the
supervisor’s power to affect her employment file negatively.
Civil No. 12-1271 (FAB)
action.”
18
Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir. 1994)
(per curiam).
In this case, plaintiff submitted her internal
grievance on October 6, 2010.
p. 50.)
(Dockets 230-1 at p. 32 & 284-1 at
Defendant Castillo spoke directly to her about that
grievance on October 13, indicating his knowledge of it shortly
after it was filed.
(Docket 225-3 at p. 37.)
Defendants admit
that “in a little more than four months,” plaintiff was given
negative employment evaluations and placed on a PIP.
at p. 27.)
(Docket 226
The Court questions defendants’ four-month timeline,
however,
in
light
of
negative
evaluations
defendant
and
Castillo’s
decision
to
estimate
issue
a
PIP
that
the
occurred
approximately two months later at the mid-December 2010 consensus
meeting — a meeting in which Mr. Horst considered the input,
feedback,
and
recommendations
from
Mr.
Castillo
regarding
plaintiff.
(Docket 229-3 at pp. 9–10.) Especially in light of the
fact that the consensus meetings occurred only twice a year, the
temporal proximity in this case supports the prima facie element of
causation.
Mesnick, 950 F.2d at 828 (citing case law upholding a
one-year time period as well as a 9-month lapse between employees’
filing of a discrimination complaints and subsequent terminations);
see also Bibiloni Del Valle v. Puerto Rico, 661 F. Supp. 2d 155,
170 (D.P.R. 2009) (Acosta, J.) (“Depending on the particular set of
facts at hand, ‘temporal proximity alone can suffice to meet the
relatively light burden of establishing a prima facie case of
Civil No. 12-1271 (FAB)
19
retaliation.’”) (quoting DeCaire v. Mukasey, 530 F.3d 1, 19 (1st
Cir. 2008)).
Temporal proximity is just one method of proving retaliation,
Wyatt, 35 F.3d at 16, however, and “comments by the employer which
intimate
a
retaliatory
mindset”
also
constitute
the
type
of
evidence “sufficient to leap the summary judgment . . . hurdle[].”
Mesnick, 950 F.2d at 828.
Furthermore, evidence of discriminatory
or disparate treatment in the time period between the protected
activity and the adverse employment action also can suffice.
Chungchi Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir.
2003); see also Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,
177 (3d Cir. 1997) (“[W]here there is a lack of temporal proximity,
circumstantial evidence of a ‘pattern of antagonism’ following the
protected conduct can also give rise to the inference” that a
causal connection exists); Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990) (“[T]he causal connection between
the protected activity and the adverse employment action can be
established indirectly with circumstantial evidence, for example,
by
showing
that
the
protected
activity
was
followed
by
discriminatory treatment or through evidence of disparate treatment
of employees who engaged in similar conduct . . . .”).
Just days
after plaintiff filed her grievance against defendant Castillo, he
called her into his office and questioned her as to why, “after 20
years of friendship, why did you go to the Integrity [Help Line]?”
Civil No. 12-1271 (FAB)
20
(Docket 235-1 at pp. 38–39.)
Additionally, plaintiff testified
that Castillo indicated that she had “tainted his record” by
reporting his behavior.
(Docket 235-1 at p. 11.)
Inferences may
be drawn from defendant’s statements (1) that he resented plaintiff
for filing
her
grievance,
and
(2)
that his
participation
in
plaintiff’s negative reviews just two months later, his support for
issuing a PIP against plaintiff four months later, as well as his
participation in the decision to fire plaintiff seven months later,
were causally related to the sexual harassment grievance plaintiff
had filed against him.
Defendants’ contention that plaintiff
received negative reviews in May 2010 — even before her complaint
was filed — does not conclusively rule out the possibility that her
year-end 2010 review, her PIP, and her termination in May 2011 were
causally related to the grievance.
Keeping in mind that the prima facie case is “a small showing
that is not onerous and is easily made,” Che, 342 F.3d at 39
(citation omitted), the Court finds that plaintiff has set forth
sufficient circumstantial evidence to meet all elements of a prima
facie retaliation claim.
Furthermore, the First Circuit Court of
Appeals recognizes summary judgment as appropriate where parties
dispute “elusive concepts” like motive or intent, but “where a
plaintiff . . . makes out a prima facie case and the issue becomes
whether the employer’s stated nondiscriminatory reason is a pretext
for discrimination, courts must be ‘particularly cautious about
Civil No. 12-1271 (FAB)
21
granting the employer’s motion for summary judgment.’”
Corr. Med. Servs., 707 F.3d 108, 115–16 (1st Cir. 2013).
issues
of
fact
clearly
exist
regarding
whether
Kelley v.
Material
plaintiff
experienced an adverse employment action because she filed a sexual
harassment complaint.
Accordingly, the Court DENIES defendants’
motion for summary judgment of plaintiff’s Title VII retaliation
claim.
V.
Single or Joint Employer
A “strong presumption” exists that a parent corporation is not
the employer of its subsidiary’s employees, and it is therefore
deemed a separate employer unless it meets the “joint employment”
test or
the
“integrated employer”
test.
Engelhardt
Richards Co., 472 F.3d 1, 4 (1st Cir. 2006).
v.
S.P.
In her motion for
partial summary adjudication, plaintiff claims that all of the
corporate Deloitte entities are a single, or “integrated” employer
for the purpose of Title VII liability.
(Docket 248 at p. 12.)
She then hastily relies on the joint employer theory to hold the
Deloitte
7
entities
liable
under
Title
VII.7
Id.
at
p.
13.
The Court chastises plaintiff for her undeveloped argument
regarding the single and joint employer theories. Although she
cites case precedent setting the standards behind the theories, she
fails to apply the law to the facts of her case. Instead, she
merely argues that the evidence demonstrates that the Deloitte
entities were “an integrated or single employer,” and that “[a]ll
the corporate defendants had control over the conditions of [her]
employment.” (Docket 248 at p. 12.) The Court reminds plaintiff
that “a litigant has an obligation to spell out its arguments
squarely and distinctly,” Aguiar-Serrano v. P.R. Hwys. & Transp.
Auth., 916 F. Supp. 2d 223, 234 (D.P.R. 2013).
Civil No. 12-1271 (FAB)
22
Defendants argue that they cannot be held liable under either
theory, and that plaintiff’s only employer was Deloitte Tax.
(Dockets 228 & 284.) The Court sets forth material facts pertinent
to the tests and addresses each in turn.
A.
Material Uncontested Facts
Deloitte Tax, Deloitte Services, and Deloitte & Touche
are subsidiaries of Deloitte LLP.
p. 4.)
(Dockets 227-1 at p. 2; 293-1 at
Deloitte LLP has ownership interests in the other Deloitte
entities, and its policies apply to its subsidiaries, including
Deloitte Tax and Deloitte & Touche.
(Dockets 230-1 at p. 24; 284-1
at p. 29; 227-1 at pp. 2–3; 293-1 at pp. 4–5.)
Deloitte Services
provides support for the function-specific subsidiaries of Deloitte
LLP, such as Deloitte Tax and Deloitte & Touche.
p. 3.)
(Docket 227-8 at
Deloitte LLP’s Administrative Policy Release (“APR”)
applies and dictates the human resources policies on harassment and
equal opportunity employment to each of its subsidiaries.
227-15.)
(Docket
Mr. Geoffrey Horst, the managing partner of Florida and
Puerto Rico for Deloitte Tax, explained that the human resources
department set the process of providing feedback to Deloitte Tax
employees
after
their
consensus meetings.
evaluations
occurred
at
(Docket 294-8 at pp. 19–20.)
the
bi-annual
The APR also
dictates the complaint procedure for an individual to follow to
report any harassment complaint.
11–17.)
(Docket 227-15 at pp. 2–3,
Pursuant to the APR, however, each subsidiary “reserves
Civil No. 12-1271 (FAB)
23
the right to adopt, amend, or discontinue this APR as it may deem
appropriate, at any time, in whole or in part, for any reason or in
the absence of a particular reason, and without prior notice,
consent, or approval.”
Id. at pp. 1, 4, 8, 11, 14, 18, 22.
A
Service & Access Agreement (“SAA”) also exists between, inter alia,
Deloitte LLP, Deloitte & Touche, Deloitte Services, and Deloitte
Tax in which Deloitte Services receives a fee in exchange for
providing services to any recipient firm or its subsidiaries.
(Docket 227-10.)
Pursuant to the SAA, all employees of Deloitte
Services who provide services to subsidiaries like Deloitte Tax are
“deemed for all purposes in connection with such Services . . . to
be employees . . . of Deloitte Services and not employees . . . of
any Recipient Firm or its Subsidiaries.”
(Docket 227-10 at p. 8.)
Section 9.12 of the SAA voices the proposed relationship of the
parties:
Nothing in this Agreement shall be deemed or construed by
the Parties, or by any third party, to create the
relationship of a partnership, joint venture or similar
relationship among the Parties hereto and/or any of their
respective Subsidiaries, and no Party or Subsidiary
thereof shall be deemed to be the agent of any other
Party or Subsidiary thereof by virtue of this Agreement,
it being understood and agreed that neither the method of
computing compensation or any other provision contained
herein shall be deemed to create any relationship among
the Parties hereto and/or any of their respective
Subsidiaries other than the relationship of independent
parties contracting for services.
(Docket 227-10 at p. 25.)
Civil No. 12-1271 (FAB)
24
Plaintiff was originally hired by Deloitte & Touche in
1990, resigned in 1996 and after being out of Deloitte until 1999,
accepted the position of tax manager at Deloitte & Touche on
January 24, 2000.
(Dockets 1 at p. 5; 119 at p. 5.)
On or about
June 3, 2007, Deloitte Tax issued a memo to plaintiff stating that
it
was
becoming
reorganization.
plaintiff’s
employer,
by
virtue
(Dockets 1 at p. 5; 119 at p. 5; 227-5.)
of
a
Deloitte
& Touche “created multiple entities, one of which was Deloitte
Tax.” (Docket 236-2 at pp. 8–9.)
Plaintiff’s base salary was paid
by
Tax
Deloitte
Tax,
and Deloitte
paid monthly
premiums
for
plaintiff’s medical, dental, and basic life insurance, as well as
her long term disability coverage and pension plan contribution.
(Dockets 227-1 at p. 2; 293-1 at p. 3; 229-16 at pp. 3–4.)
Ms. Teresita (“Tere”) Pascual, however, signed a verification of
present
employment
on
September
2,
2010,
representing
that
plaintiff was a tax manager for Deloitte & Touche. (Docket 293-5.)
Mr. Horst testified that Deloitte Services provides Deloitte Tax
with administrative assistants and secretarial services in San
Juan; a financial team that produces internal financial statements
of the practice; and a real estate team that performs “facilities
type” duties like lease negotiations.
(Docket 294-8 at p. 23.)
He
testified that “most all internal services — services not to our
clients, but administrative type things, operational type things in
Civil No. 12-1271 (FAB)
25
terms of running our business — are housed within Deloitte Services
LLP.”
Id.
Mr.
Horst
did
not
have
day-to-day
dealings
with
plaintiff, and he relied upon defendants Castillo, Villate and
Corretjer as partners and directors in the Deloitte Tax San Juan
office to provide feedback regarding day-to-day practices. (Docket
294-8 at pp. 2–3.) He speaks with defendants Castillo, Villate and
Corretjer several times per month to discuss financial operations,
marketplace strategy, and any significant decisions with respect to
the practice.
(Docket 236-2 at p. 10.)
Mr. Horst “would not have
made a decision to terminate [plaintiff] without consulting Paco
[Castillo], Ricky [Villate] and Michelle [Corretjer].”
(Docket
294-8 at p. 3.)
Mr. Horst was not involved in reviewing or preparing the
performance evaluations of the employees at Deloitte Tax in San
Juan;
the
managers,
partners,
and
directors
prepared
the
evaluations of the employees below them, and they would meet twice
a year at a consensus meeting with Mr. Horst to discuss the
evaluations.
(Docket 236-2 at pp. 10–11.)
At the consensus
meeting, a human resources representative from Deloitte Services —
Maria Vilorio — took notes and prepared a summary of the results
for
Mr.
Horst’s
Directors (“PPD”).
later
review
with
Id. at pp. 10–14.
Partners,
Principals
and
Ms. Vilorio oversaw and was
consulted on human resource matters, compensation matters, and goal
Civil No. 12-1271 (FAB)
26
setting matters in the San Juan Deloitte Tax office.
Id. at p. 21.
Ms. Pascual, also from Deloitte Services, assisted Ms. Vilorio on
day-to-day matters as well.
Id. at pp. 21–22.
Mr. Horst spoke
with Ms. Vilorio about people at Deloitte Tax in San Juan who were
performing below expectations.
Id. at pp. 33–34.
E-mails exist
demonstrating that Ms. Vilorio communicated with Mr. Horst and
defendants Castillo and Villate regarding plaintiff’s performance.
Id. at p. 36; Docket 295-4.
plaintiff
was a
joint
The decision to issue the PIP to
decision
Castillo, and Ms. Vilorio.
made
by
Mr.
Horst,
defendant
(Docket 236-2 at pp. 31, 40–41.)
At
Mr. Horst’s direction, Ms. Vilorio drafted the PIP, using input
from
plaintiff’s
evaluations.
(Docket
229-9
at
pp.
11–12.)
Mr. Horst, defendant Villate, and defendant Castillo then issued
the PIP to plaintiff in a meeting.
B.
(Docket 294-8 at p. 6.)
Single, Integrated Employer Test
Pursuant
to
the
“single
employer”
or
“integrated
employer” doctrine, two nominally separate companies may be so
interrelated that they constitute a single employer subject to
liability under Title VII. Torres-Negron v. Merck & Co., Inc., 488
F.3d 34 (1st Cir. 2007) (relying on NLRB v. Browning-Ferris Indus.,
Inc., 691 F.2d 1117, 1122 (3d Cir. 1982)).
“single
employer”
situation
may
be
A classic example of a
parent
and
wholly-owned
subsidiary corporations, or separate corporations under common
ownership and management.
Arculeo v. On-Site Sales & Mktg.,
Civil No. 12-1271 (FAB)
27
L.L.C., 425 F.3d 193, 198 (2d Cir. 2005).
To determine whether a
single employer exists, Courts consider the four factors of the
test”:8
“integrated-enterprise
(1)
common
management;
(2) interrelation between operations; (3) centralized control over
labor relations; and (4) common ownership. Torres-Negron, 488 F.3d
at 42 (citing Romano, 233 F.3d at 662).
Keeping in mind that all
four factors are not necessary for single-employer status, courts
apply the test flexibly, placing special emphasis on the control of
employment decisions.
Id.
Applying the four-factor single employer test, the Court
finds that there is enough evidence in the record to survive
summary judgment.
Deloitte Tax, Deloitte & Touche, and Deloitte
Services are subsidiaries of Deloitte LLP, and as such they share
common
ownership.
No
evidence
has
been
presented,
however,
regarding the first factor of management of the companies.
With
respect to the “interrelation between operations” factor, there is
ample evidence of a reciprocal relationship between Deloitte Tax,
8
The “integrated-enterprise test” is the standard adopted by
most circuits. Torres-Negron, 488 F.3d at 42; Romano v. U-Haul
Int’l., 233 F.3d 655 (1st Cir. 2000). Although the First Circuit
Court of Appeals has not explicitly decided which of the tests is
appropriate, the Court joins numerous other district courts within
the First Circuit which interpret Torres-Negron to indicate that
the “integrated-enterprise” test should be followed. See, e.g.
Melendez-Fernandez v. Special Care Pharm. Servs., 2012 U.S. Dist.
LEXIS 146705, 10 (D.P.R. 2012) (Casellas, J.); Masso v. City of
Manchester, 2012 U.S. Dist. LEXIS 42457, 7-8 (D.N.H. 2012);
Anderson v. Theriault Tree Harvesting, Inc., 2010 U.S. Dist. LEXIS
4538, 25-28 (D. Me. 2010).
Civil No. 12-1271 (FAB)
28
Deloitte & Touche, Deloitte Services, and Deloitte LLP.
Although
the nature of each corporation’s business may be distinct, there is
evidence of an interchange between Deloitte Services and Deloitte
Tax employees, as Ms. Pascual and Ms. Vilorio — who are Deloitte
Services employees — managed human resources in the Deloitte Tax
San Juan office.
A centralized system of administrative and human
resources functions, therefore, appears to exist.
A significant
amount of evidence weighing in favor of the control of labor
relations element has also been presented.
The Deloitte LLP-
established, company-wide human resources and personnel policies
are applicable to all of its subsidiaries, including Deloitte Tax.
Moreover, at least one Deloitte Services employee — Ms. Vilorio —
directly
participated
in
Deloitte
Tax’s
consensus
meetings,
followed up on plaintiff’s employment evaluations and performance,
and drafted plaintiff’s PIP, which allegedly led to her dismissal.
Although Deloitte Tax paid plaintiff, provided her benefits and
retained the power to terminate her, a Deloitte Services employee
— Ms. Pascual — represented that Deloitte & Touche was plaintiff’s
employer.
At the very least, the evidence in the record creates an
issue of
material
fact
as
to
whether Deloitte
Tax, Deloitte
Services, Deloitte & Touche, and Deloitte LLP are one single
employer for purposes of Title VII retaliation liability.
It is
plaintiff’s burden at trial to demonstrate, however, that each
company or entity had an active participation concerning the
Civil No. 12-1271 (FAB)
29
conditions of plaintiff’s employment. Romano v. U-Haul Int’l., 233
F.3d 655, 665-68 (1st Cir. 2000).
Defendants’ motion for summary
judgment, therefore, is DENIED.
C.
The Joint Employer Test
“In contrast to the single employer inquiry — where the
question is whether two allegedly separate entities comprise a
single enterprise — the joint employer inquiry focuses on which of
two, or whether both, defendants control, in the capacity of
employer[,] the labor relations of a given group of workers.”
Polo-Echevarria v. Centro Medico del Turabo, Inc., 2013 U.S. Dist.
LEXIS 84002, 10-11 (D.P.R. June 13, 2013) (Besosa, J.) (citing
Rivas, 929 F.2d at 820, n.16) (internal quotations and citations
omitted).
“A joint employer relationship exists where two or more
employers exert significant control over the same employees and
share or co-determine those matters governing essential terms and
conditions of employment.”
Rivera-Vega v. Conagra Inc., 70 F.3d
153, 163 (1st Cir. 1995) (citations omitted).
“Whether joint
employer status exists is essentially a factual question.”
at 163.
Id.
To determine whether a joint employer status exists, the
Court considers a host of factors, including: supervision of the
employee’s day-to-day activities; authority to hire, fire, or
discipline
the
employee;
authority
to
promulgate
work
rules,
conditions of employment, and work assignments; participation in
the collective bargaining process; ultimate power over changes in
Civil No. 12-1271 (FAB)
30
employer compensation, benefits and overtime; and authority over
the number of employees.
Id.
The Court does not find sufficient evidence from which a
reasonable jury could conclude that Deloitte & Touche, Deloitte
Services, and/or Deloitte LLP was a joint employer of plaintiff’s
with
Deloitte
defendants
Tax.
Castillo,
Deposition
Villate,
testimony
and
of
Corretjer
Mr.
Horst
demonstrate
and
that
Deloitte Tax’s partners and directors were the only actors with
significant power over the conditions of plaintiff’s employment.
As partners and directors of Deloitte Tax, defendants Castillo,
Villate,
and
Corretjer
controlled
plaintiff’s
day-to-day
operations; promulgated work rules like plaintiff’s schedule; set
conditions of her employment; and gave her work assignments.
generally
oversaw
her
work
at
the
office
and
evaluated
They
her
performance in order to provide Mr. Horst with monthly updates as
to the office’s tax practice. At the bi-annual consensus meetings,
the only people with the authority to discuss plaintiff’s progress
and performance with Mr. Horst were defendants Castillo, Villate,
and Corretjer, because they were the highest ranking employees left
in the room.
(Docket 236-2 at pp. 12–14.)
Moreover, they had
ultimate power over firing plaintiff; Mr. Horst explained that he
never would have fired plaintiff without first having consulted
them.
Although Ms. Vilorio also attended the consensus meetings
and played a role in drafting the PIP, the record does not indicate
Civil No. 12-1271 (FAB)
that anyone
plaintiff’s
her.
at
Deloitte
31
Services
had the
power
to
supervise
day-to-day activities or to hire, fire, or discipline
Ultimately, that authority rested in the hands of Deloitte
Tax’s partners and directors — Mr. Horst, defendant Castillo,
defendant Villate, and defendant Corretjer. Accordingly, the Court
rejects plaintiff’s contention that Deloitte Services, Deloitte &
Touche, Deloitte LLP and Deloitte Tax exercised sufficient control
over the essential terms of plaintiff’s employment to constitute
joint employers under Title VII.
VI.
Commonwealth Claims
Plaintiff’s
Commonwealth
claims
for
sex
discrimination
pursuant to Laws 100, 17, and 69, as well as her age discrimination
claim pursuant to Law 100, are virtually identical to her Title VII
and ADEA claims.
Thus, the success of plaintiff’s Commonwealth
claims hinge on the success of her Title VII and ADEA claims.
Because
her
Title
VII
sex
discrimination
and
ADEA
age
discrimination claims fail to survive summary judgment, the Court
also concludes that no reasonable jury would be able to find for
plaintiff
on
the
Commonwealth
claims
for
the
same
reasons.
Accordingly, defendants’ motion for summary judgment on plaintiff’s
Commonwealth claims for sex and age discrimination pursuant to
Law
100,
sexual
harassment
pursuant
to
discrimination pursuant to Law 69, is GRANTED.
Law
17,
and
sex
Civil No. 12-1271 (FAB)
32
VII. Article 1802 Claim
Article
1802
is
Puerto
Rico’s
general
tort
statute;
it
provides that a person who “causes damages to another through fault
or negligence” shall be liable in damages. P.R. Laws Ann. tit. 31,
§ 5141.
Defendants argue that the provisions of the Puerto Rico
Civil Code are supplementary to special legislation like Laws 100,
17 and 69, and that a special law prevails over a general law like
article 1802.
(Docket 226 at p. 37–38.)
Several courts within the
District of Puerto Rico have spoken on this issue and support
defendants’ position. See, e.g., Medina v. Adecco, 561 F. Supp. 2d
162, 175 (D.P.R. 2008) (Gelpi, J.); Denis Rosario v. McConnell
Valdes, 2008 U.S. Dist. LEXIS 13113, at *3-6 (D.P.R. Feb. 21, 2008)
(Cerezo, J.).
The
Puerto
Rico
Supreme
Court
has
explicitly
addressed the interplay between causes of action arising under
article 1802 and special employment statutes.
See
Santini Rivera
v. Serv. Air, Inc., 137 D.P.R. 1, 1994 Juris P.R. 121 P.R.-Eng.
909,527
(1994).
Because
the
Puerto
Rico
Supreme
Court
has
clarified that “[a]s a general rule, in the face of conduct by an
employer that has been typified and penalized by special labor
legislation, the employee only has recourse to the relief of said
Act, and is barred from seeking additional compensation under
[article 1802],” Santini Rivera, 137 D.P.R at 16 (Hernandez-Denton,
C.J., concurring), the Court therefore finds that plaintiff’s
article 1802 claim in this case must be DISMISSED.
Civil No. 12-1271 (FAB)
33
VIII. Motions in Limine
In light of the Court’s conclusions above, defendants Deloitte
LLP, Deloitte Tax LLP, Deloitte & Touche LLP, Deloitte Services,
LP,
Castillo,
Villate,
and
Corretjer’s
motions
in
limine
in
connection with testimony and sworn statements of Maria I. SilvaSilva, (Docket 182), and Edileen Soto-Salicrup, (Docket 176), are
GRANTED.
Plaintiff explains that Ms. Silva’s testimony would
pertain to the “busy season” that Deloitte Tax undergoes from midFebruary to mid-July, as well as plaintiff’s performance on the
job, office presence, and timely billing.
(Docket 182-1 at p. 4.)
Ms. Silva’s sworn statement, however, reveals that she left her
employment with Deloitte & Touche’s tax department on August 31,
2009.
of
(Docket 284-15 at p. 1.)
employment
before
the
Because Ms. Silva left her place
events
giving
rise
to
plaintiff’s
retaliation and wrongful discharge claims, Ms. Silva’s testimony is
irrelevant to this case.
Similarly, plaintiff seeks to present
Ms. Soto’s testimony to demonstrate that defendant Castillo made
disrespectful comments and jokes in the San Juan office during her
tenure.
(Docket
284-14.)
The
Court
finds
that
Ms.
Soto’s
testimony also would not pertain to plaintiff’s retaliation or
wrongful discharge claims, however, because Ms. Soto left Deloitte
& Touche in February 1992.
(Docket 284-14.)
Court GRANTS defendants’ motions in limine.
Accordingly, the
Civil No. 12-1271 (FAB)
IX.
34
Motions For Leave and Motions to Strike
The Court notes plaintiff’s motions for leave to file sur-
replies, (Dockets 323 and 325), plaintiff’s supplemental motion to
plaintiff’s
statements
at
Docket
294-1,
(Docket
328),
defendants’ motions to strike, (Dockets 321 & 347).
and
Because the
Court is able to decide the motions for summary judgment based on
the numerous and extensive briefs and evidence already submitted,
plaintiff’s motions for leave are DENIED.
The Court chastises
plaintiff for submitting an eleventh-hour supplemental motion —
which contained 17 revised exhibits constituting over 300 pages.
It finds, however, that the submission and plaintiff’s reply at
Docket 313 neither prejudice defendants nor create any issue of
material
fact
weighing
in
favor
of
plaintiff’s
position.
Accordingly, defendants’ motions to strike are also DENIED.
X.
Conclusion
For
partial
the
reasons
discussed
adjudication,
(Docket
above,
230),
plaintiff’s
is
DENIED.
motion
for
Defendants’
Deloitte & Touche, Deloitte LLP, and Deloitte Services’ motion for
summary judgment, (Docket 227), is DENIED.
The Court GRANTS IN
PART AND DENIES IN PART defendants Deloitte Tax LLP, Castillo,
Villate, and Corretjer’s motion for summary judgment, (Docket 225).
It
GRANTS
summary
judgment
of
plaintiff’s
Title
discrimination and ADEA age discrimination claims.
those claims are DISMISSED WITH PREJUDICE.
VII
sex
Accordingly,
The Court DENIES
summary judgment of plaintiff’s Title VII retaliation claim and
Civil No. 12-1271 (FAB)
35
plaintiff’s Commonwealth wrongful termination claim pursuant to
Law 80.
Those causes of action remain.
Summary judgment on plaintiff’s Commonwealth claims for sex
and age discrimination pursuant to Law 100, sexual harassment
pursuant to Law 17, sex discrimination pursuant to Law 69, and for
a general tort pursuant to article 1802 is also GRANTED.
Those
claims are DISMISSED WITH PREJUDICE.
Defendants’ motions in limine in connection with testimony and
sworn statement of Maria I. Silva-Silva, (Docket 182), and Edileen
Soto-Salicrup, (Docket 176), are GRANTED.
Finally, plaintiff’s motions for leave, (Dockets 323 & 325),
are DENIED.
Defendants’ motions to strike, (Dockets 321 & 347),
are also DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, November 5, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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