Miranda v. Deloitte LLP et al
Filing
359
MEMORANDUM AND ORDER re 351 Motion for Reconsideration; re 348 Opinion and Order on Motion in Limine, Order on Motion for Summary Judgment, Order on Motion to Strike, Order on Motion for Leave to File; and re 352 Motion for Reconsideration. Pl aintiff's motion for reconsideration, (Docket No. 351), is GRANTED IN PART AND DENIED IN PART. The Court's dismissal of plaintiff's sex discrimination claims in its opinion, (Docket No. 348), is VACATED. Defendant's motion for reconsideration, (Docket No. 352), is DENIED. Signed by Judge Francisco A. Besosa on 12/05/2013. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WANDA G. MIRANDA,
Plaintiff,
CIVIL NO. 12-1271 (FAB)
v.
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.
MEMORANDUM AND ORDER
BESOSA, District Judge.
On November 5, 2013, the Court entered an Opinion and Order
that dismissed plaintiff’s sex discrimination claims pursuant to
Title
VII
and
Commonwealth
Laws
100,
17,
and
69;
dismissed
plaintiff’s ADEA and Title VII age discrimination claims; granted
two motions in limine; and denied summary judgment of plaintiff’s
retaliation claims pursuant to both Title VII and Puerto Rico law.
On November 26, 2013, plaintiff filed a motion for reconsideration,
(Docket No. 351), and the next day defendants filed their own
motion for reconsideration, (Docket No. 352).
For the reasons
discussed below, the Court GRANTS IN PART AND DENIES IN PART
plaintiff’s motion and DENIES defendants’ motion.
Civil No. 12-1271 (FAB)
I.
2
Standard
“A motion for reconsideration is treated as a motion under
Rule 59(e) of the Federal Rules of Civil Procedure.”
Rosario
Rivera v. PS Group of P.R., Inc., 186 F. Supp. 2d 63, 65 (D.P.R.
2002).
Pursuant to Rule 59(e), “the moving party ‘must either
clearly establish a manifest error of law or must present newly
discovered evidence’” in order to prevail.
Markel Am. Ins. Co. v.
Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012) (quoting F.D.I.C. v.
World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)); see also Marie
v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n. 2 (1st Cir. 2005)
(recognizing that four reasons for granting a Rule 59(e) motion
are:
“manifest
previously
errors
unavailable
in
of
law
or
evidence,
controlling
fact,
manifest
law.”)
newly
discovered
injustice,
(internal
and
or
an
intervening
change
omitted)).
It is inappropriate to use a Rule 59(e) motion “to
repeat old arguments previously considered and rejected.”
citation
Hoffman
v. Mercado, 2006 U.S. Dist. LEXIS 18591, 2006 WL 940682, at *1
(D.P.R.
2006)
(quoting
Nat’l.
Metal
Finishing
Co.
v.
BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 123 (1st Cir.
1990)).
It is also inappropriate to raise new arguments, “if such
arguments ‘could, and should, have been made before judgment
issued.’”
Markel Am. Ins. Co., 674 F.3d at 32 (quoting ACA Fin.
Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008)).
Civil No. 12-1271 (FAB)
II.
3
Plaintiff’s Motion for Reconsideration
A.
Retaliation Claims
Plaintiff
first
seeks
clarification
of
the
Court’s
conclusion that plaintiff’s Title VII retaliation and Law 80
Commonwealth wrongful termination claim “remain.”
No. 348 at p. 35.)
(See Docket
Having dismissed plaintiff’s Title VII sex and
age discrimination claims, and noting that her Commonwealth claims
hinge
upon
the
success
of
her
Title
VII
claims,
the
Court
necessarily dismissed plaintiff’s sex and age discrimination claims
pursuant to Law 100, sexual harassment claim pursuant to Law 17,
and sex discrimination claim pursuant to Law 69.
Id. at 31.
It
did not, however, dismiss any retaliation claims — either under
Title VII or Puerto Rico law.
(See Docket No. 348 at pp. 21 & 35.)
Because the Court did not grant summary judgment on any retaliation
claims, plaintiff’s retaliation claims pursuant to Laws 17 and 69
indeed remain, along with her Law 80 and Title VII claims.
B.
Title VII Sex Discrimination Claim
1.
Grounds for Reconsideration
Plaintiff
dismissal
of
her
seeks
Title
discrimination claim.
VII
reconsideration
hostile
work
of
the
Court’s
environment
sex
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
Civil No. 12-1271 (FAB)
4
on sex, (b) was objectively and subjectively offensive, and (c) was
sufficiently severe or pervasive.
Id.
Plaintiff Miranda takes
issue with the Court’s analysis of the “severe or pervasive”
element and its finding that summary judgment was warranted because
no evidence of an alteration of her work conditions occurred.
(Docket No. 351 at p. 4.)
Plaintiff’s first argument that the Court granted
summary judgment sua sponte is disingenuous.
Defendants directly
challenged the “severe or pervasive” element of plaintiff’s claim
in
their
motion
pp. 10–13.)
for
summary
judgment.1
(Docket
No.
226
at
Given that Title VII does not cover all harassing
conduct and 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), the Court properly considered the sufficiency of
the
evidence
as
to
the
consideration
of
altered
employment
conditions.
See Gerard v. Univ. of P.R., 707 F.3d 7, 18–19 (1st
Cir.
(analyzing
2013)
incidents
interfered
the
with
“question
[of]
[plaintiff’s]
whether
work
the
three
performance”
in
deciding the “severe or pervasive” element). In light of the First
1
As discussed below, plaintiff had a duty pursuant to the
Federal Rules of Civil Procedure as well as the District Court of
Puerto Rico’s local rules to present evidence to rebut defendants’
argument.
Civil No. 12-1271 (FAB)
5
Circuit Court of Appeals’ analysis in Gerald, however, the Court
acknowledges the impropriety of automatically dismissing a hostile
work environment claim simply because one factor relevant to the
“severe or pervasive” element is lacking.
It thus now turns to a
comprehensive view of the factors to determine whether plaintiff’s
claim can indeed survive summary judgment.
2.
A Word of Caution to the Plaintiff
Before engaging in its analysis, the Court reminds
plaintiff Miranda of the well-settled principles that “a party
opposing
summary
evidence
to
rebut
judgment
the
must
motion,’”
‘present
definite,
Maldonado-Denis
v.
competent
Castillo-
Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (internal citation
omitted), and risks waiver when submitting “woefully undeveloped”
arguments.
2012).
McDonough v. Donahoe, 673 F.3d 41, 49 n.14 (1st Cir.
Plaintiff engaged in absolutely no legal analysis when
applying the “severe or pervasive” standard to the facts of her
case in her response to defendants’ motion for summary judgment.
Instead,
she
merely
listed
alleged
factual
occurrences
and
generally cited 689 pages of exhibits to support those factual
contentions.
(See Docket Nos. 294–300.)
The only place where
plaintiff arguably even addressed the “severe or pervasive” element
was in her own motion for partial summary adjudication, where she
merely recited the legal standard numerous times and stated:
Civil No. 12-1271 (FAB)
6
In the case at bar, Mrs. Miranda has established the six
elements necessary to show that Mr. Castillo’s action
created a hostile work environment for Mrs. Miranda: .
. . . (4) The harassment was severe and pervasive (SUF
267-292) . . . . Mr. Castillo did not stop making jokes
of sexual nature, humiliating Mrs. Miranda, and
excessively disciplining and threatening her with the
assistance of Mrs. Corretjer. (See Exhibit 42 to the
SUF.) . . . . Her termination was wrong, illegal and
abusive. (See SUF 329-331).
(Docket No. 248 at pp. 6, 9–12.)
Plaintiff has done nothing more
than “mention a possible argument in the most skeletal way, leaving
the Court to do counsel’s work, create the ossature for the
argument, and put flesh on its bones.”
895 F.2d 1, 17 (1st Cir. 1990).
United States v. Zannino,
Despite plaintiff’s woefully
undeveloped argument,2 the Court in its opinion engaged the “severe
or pervasive” element in order to analyze defendants’ request for
2
In a last-ditch effort, plaintiff now dedicates ten pages of
her motion to “discussing the evidence” supporting the “severe or
pervasive” factor that plaintiff’s conditions of employment were
altered. (See Docket No. 351 at pp. 12–22.) Given defendants’
challenge to the “severe or pervasive” element in their motion for
summary judgment, it is inappropriate for plaintiff now to advance
that argument, which “could, and should, have been made” in her
response. See Markel Am. Ins. Co., 674 F.3d at 32 (quoting ACA
Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008)).
The Court was under no obligation to search or consider any part of
the record not specifically referenced in the parties’ statement of
facts, and it declines to consider evidence offered for the first
time in plaintiff’s motion for reconsideration. See Local Rule
56(e).
Civil No. 12-1271 (FAB)
7
summary judgment of the sexual harassment claim.3
Accordingly, it
reviews that analysis for manifest error of law and concludes that
plaintiff’s hostile work environment sexual harassment claim indeed
survives summary judgment.
3.
Sufficiency of “Severe or Pervasive” Evidence
“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 Telefonica, Inc., 447 F.3d 79,
83 (1st Cir. 2006) (internal punctuation and citation omitted).
A
Court must consider all the circumstances, including (1) the
frequency of the harassing conduct, (2) its severity, (3) whether
it was physically threatening or humiliating as opposed to a mere
offensive utterance, (4) whether it unreasonably interfered 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.
The First Circuit Court of Appeals has noted that no single
3
Given the range of defendant Castillo’s sexual jokes and
physical gestures, the Court initially found that it would be
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. (Docket No. 348 at p. 14 n.4.) It dismissed the claim,
however, for a lack of evidence regarding how defendant Castillo’s
behavior affected plaintiff’s work conditions.
The Court now
evaluates and balances the “severe or pervasive” factors described
in Gerald as a whole and concludes that a triable issue of material
fact exists.
Civil No. 12-1271 (FAB)
8
consideration pertaining to the “severe or pervasive” inquiry is
individually determinative.
Gerald, 707 F.3d at 18.
Taking the evidence in the light most favorable to
plaintiff Miranda, a reasonable jury could determine that defendant
Castillo’s actions were “severe or pervasive.”
First, evidence of
frequent harassing conduct exists in the record. Plaintiff alleges
that defendant Castillo “constantly” made lewd jokes, (Docket
No. 235-1 at pp. 21–22), and she offers details of three separate
incidents: the “wichu” joke, the “handyman” joke, and the “flu
shot” incident.
3.)
(See Docket Nos. 225-3 at pp. 55–58; 235-1; 243-
Even “[a] single act of harassment may, if egregious enough,
suffice to evince a hostile work environment.”
at 18.
Gerald, 707 F.3d
As the Court noted in its opinion, defendant Castillo’s
off-colored sexual jokes and gestures at the very least constitute
offensive and inappropriate conduct that also easily qualifies as
egregious in Deloitte’s professional environment. Second, although
defendant Castillo’s behavior does not appear to have risen to the
level of physical grabbing or sexual propositioning, it consists of
lewd sexual jokes, remarks, and gestures, which are “often the
stuff of hostile work environment claims.” See Billings v. Town of
Grafton, 515 F.3d 39, 48 (1st Cir. 2008).
Castillo’s
behavior
in
the
flu
shot
incident
Third, defendant
—
although
not
physically threatening — easily rises to a physically humiliating
level.
Interpreting in the light most favorable to plaintiff
Civil No. 12-1271 (FAB)
defendant
Castillo’s
9
body
language
of
separating
his
legs,
reclining over the back of a chair, lifting his buttocks, and
pretending to pull down his pants, (Docket No. 243-3), the Court
finds sufficient evidence that defendant Castillo’s behavior was
physically humiliating.
The question most concerning to the Court was the
lack
of
evidence
as
to
how
defendant
Castillo’s
conduct
unreasonably interfered with plaintiff’s work performance — the
fourth factor in a “severe or pervasive” analysis. In its opinion,
the Court found the dearth of evidence of this factor to be
necessarily fatal to plaintiff’s claim.
Gerald,
however,
demonstrates
that
such
A closer reading of
a
conclusion
is
not
consistent with First Circuit Court of Appeals precedent, because
a plaintiff’s claim may survive summary judgment without evidence
of the fourth factor.
Like in Gerald, plaintiff Miranda “for her
part, does not give us much more as to how the incidents affected
her work performance.”
707 F.3d at 19.
Neither plaintiff’s
complaint in this lawsuit nor her formalized sexual harassment
complaint, for example, reference an inability to work effectively
Civil No. 12-1271 (FAB)
10
or an otherwise negative effect on her work productivity.4
Docket Nos. 1 & 243-3.)
(See
Plaintiff also presented limited evidence
at her deposition regarding the effect of defendant Castillo’s
conduct
on
her
psychological
well-being,
claiming
only
that
defendant Castillo intimidated, humiliated, and embarrassed her,
(Docket No. 230-1 at p. 32); made her blush, (Docket Nos. 225-3 at
p. 29; 235-1 at p. 18); and made her uncomfortable, (Docket
Nos. 225-3 at pp. 30–32; 235-1 at p. 14).
A plaintiff’s ability to get work done despite an
employer’s actions, however, does not automatically preclude a
hostile work environment claim in the First Circuit.
Gerald, 707
F.3d at 18. Even when a plaintiff seeks psychiatric counseling for
resulting depression and “no evidence” demonstrates that her work
performance has suffered, the First Circuit Court of Appeals has
indicated that “in the end, subject to some policing on our part,
it is for the jury to decide whether the harassment was of a kind
or to a degree that a reasonable person would have felt that it
affected the conditions of her employment.”
Id. at 19 (internal
punctuation and citation omitted). Although plaintiff did not give
4
To the contrary, plaintiff repeatedly emphasizes that her
work performance was satisfactory.
As the Court noted in its
opinion, “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
presents her personnel file . . . .” (Docket No. 348 at p. 6.)
Civil No. 12-1271 (FAB)
11
the Court “much to go on” as to the effects of defendant Castillo’s
behavior on her work performance or psychological well-being,
policing is not warranted here because of sufficient evidence as to
the other “severe or pervasive” factors.
at
19.
Accordingly,
the
Court
turns
See Gerald, 707 F.3d
to
the
objective
and
subjective offensiveness of defendant Castillo’s conduct in order
to complete its hostile work environment analysis.5
4.
Sufficiency of the Evidence Regarding Objectively
and Subjectively Offensive Conduct
The final inquiry is whether defendant Castillo’s
conduct was both objectively and subjectively offensive.
“Said
another way, would a reasonable person find the conduct hostile and
abusive and did the complainant in fact perceive it to be so.”
Gerald, 707 F.3d at 19. Plaintiff has offered adequate evidence of
subjective offense:
as recited above, defendants’ behavior made
her feel intimidated, humiliated, embarrassed, and uncomfortable.
Reiterating its position that “defendant Castillo’s off-colored
sexual jokes and gestures constitute offensive and reprehensible
conduct that is inappropriate at any place of employment,” (Docket
No. 348 at p. 13), the Court finds the alleged conduct to fall
sufficiently within the realm of what a reasonable person might
5
Because the Court found in its opinion that plaintiff had
failed to meet the severe or pervasive element, it declined to
address the last element of a Title VII claim — whether the
behavior complained of was objectively and subjectively offensive.
(Docket No. 348 at p. 15 n. 5.)
Civil No. 12-1271 (FAB)
find offensive.
12
Because plaintiff offers enough evidence on this
element, therefore, her sexual harassment hostile work environment
claim
pursuant
to
Title
VII
withstands
summary
judgment.
Accordingly, plaintiff’s sex discrimination claims pursuant to
Title VII and Commonwealth Laws 100, 17, and 69 are REINSTATED.
C.
Motions in Limine
Finally, plaintiff seeks reconsideration of the Court’s
decision
to
inadmissibility
Ms.
grant
of
Soto-Salicrup’s
two
two
motions
witnesses’
statements,
in
limine
testimony.
however,
are
regarding
the
Ms.
and
Silva
irrelevant
to
plaintiff’s Title VII and Commonwealth sexual harassment claims as
well as to her retaliation claims.
(See Docket No. 348 at p. 33.)
Both Ms. Silva and Ms. Soto left their employment with the Deloitte
entities well before6 the events giving rise to plaintiff’s sex
discrimination claim for sexual harassment.
The relevant time at
issue for plaintiff’s sexual harassment claims does not include any
periods before August 2009, let alone before February 1992.
The
Court agrees with the defendants that Ms. Silva’s and Ms. Soto’s
testimony
is
irrelevant
to
the
sexual
harassment
plaintiff
allegedly suffered, and that it is also inadmissible as “pattern or
6
Ms. Soto left her employment in February 1992, and Ms. Soto
ended her employment in August 2009.
Civil No. 12-1271 (FAB)
practice” evidence.7
13
Moreover, the question in an individual
sexual harassment claim like plaintiff’s is whether the conduct in
question created a hostile work environment for the individual, not
whether the harassment was “pervasive” throughout the workplace or
part of a “pattern” of discrimination by the defendant.
See
Marquis v. Tecumseh Prods. Co., 206 F.R.D. 132, 158 (E.D. Mich.
2002).
Accordingly, the testimonies of Ms. Soto and Ms. Silva are
irrelevant
to
plaintiff’s
plaintiff’s
motion
to
sex
reconsider
discrimination
the
granting
claims,
of
and
defendants’
motions in limine is DENIED.
IV.
Defendants’ Motion for Reconsideration
Defendants argue that plaintiff’s retaliation claim must be
dismissed because the Supreme Court in University of Texas S.W.
Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) officially adopted the
stringent “but-for” causation standard for Title VII retaliation
claims. Defendants reiterate their argument that plaintiff has the
burden of proving that “but for” her filing of the internal sexual
harassment complaint on October 6, 2010, she would not have been
subject to the alleged adverse employment actions. (Docket No. 352
7
As this Court has noted, “The Supreme Court has yet to
extend the pattern or practice approach to private, non-class
suits.
However, because of its particular nature we find
application of this evidentiary method to actions brought by
individual plaintiffs seeking personal relief in individual claims
of disparate treatment unsuitable.” Velez v. Marriott PR Mgmt.,
590 F. Supp. 2d 235, 244–45 (D.P.R. Dec. 22, 2008) (Acosta, J.)
(citing extensive authority supporting that conclusion).
Civil No. 12-1271 (FAB)
14
at p. 4.) Although the Court agrees with defendants’ recitation of
the proper causation standard, it remains unpersuaded that the
facts “clearly show” that plaintiff’s October 2010 complaint was
not the but-for cause of her alleged adverse employment actions.
The Court explicitly rejected that argument in defendants’ motion
for summary judgment,8 (see Docket No. 226 at p. 26), due to the
clear
issues
of
material
fact
“regarding
whether
plaintiff
experienced an adverse employment action because she filed a sexual
harassment complaint.”
(Docket No. 348 at p. 20.)
In other words,
the Court found that sufficient evidence exists to create a triable
issue of fact as to whether plaintiff’s October 2010 complaint was
the “but-for” cause of the alleged adverse employment actions.
Similarly, questions of material fact exist as to whether the
employer’s stated nondiscriminatory reason is a pretext.
Id.
at 20–21. Once again, that plaintiff received an employment rating
of “4” in May 2010 does not conclusively rule out the possibility
that her October 2010 complaint was the “but-for” cause of her
subsequent
8
negative
reviews
and
termination.
Id.
at
20.
Consequently, defendants inappropriately use their motion
for reconsideration “to repeat old arguments previously considered
and rejected” by the Court. Nat’l. Metal Finishing Co., 899 F.2d
at 123. Defendants have also failed to meet Rule 59(e)’s
requirement of either clearly establishing a manifest error of law
or presenting newly discovered evidence in order to prevail in
their motion for reconsideration.
See Markel Am. Ins. Co. v.
Diaz-Santiago, 674 F.3d 21, 32 (1st Cir. 2012). On those grounds
alone, their motion for reconsideration is DENIED.
Civil No. 12-1271 (FAB)
15
Accordingly, summary judgment is not appropriate, and defendants’
motion for reconsideration is DENIED.
V.
Conclusion
Plaintiff’s motion for reconsideration, (Docket No. 351), is
GRANTED IN PART AND DENIED IN PART.
The Court’s dismissal of
plaintiff’s sex discrimination claims in its opinion, (Docket
No. 384), is VACATED.
Plaintiff may proceed on hostile work
environment sexual harassment claims pursuant to Title VII and
Commonwealth Laws 100, 69, and 17 at trial.
Plaintiff’s requests
that the Court reconsider its dismissal of her ADEA claims and its
granting of defendants’ motions in limine are DENIED.
Defendant’s
motion for reconsideration, (Docket No. 352), is DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 5, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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