Maldonado-Catala v. Municipality of Naranjito et al
Filing
126
OPINION and ORDER granting in part and denying in part 58 motion for summary judgment. Signed by US Magistrate Judge Bruce J. McGiverin on October 26, 2015. (McGiverin, Bruce)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIBEL MALDONADO-CÁTALA,
Plaintiff,
v.
Civil No. 13-1561 (BJM)
MUNICIPALITY OF NARANJITO, et al.,
Defendants.
OPINION AND ORDER
Maribel Maldonado-Cátala (“Maldonado”) brings this suit against the
Municipality of Naranjito, Orlando Ortiz-Chevres, Marialis Figueroa-Negrón, José
Figueroa-Nieves, Hiram Bristol-Colon, José Tomás Rodríguez-Veléz, and Insurance
Company ABC (collectively “the Municipality”), alleging hostile work environment and
retaliation in violation of Title VII of the 1964 Civil Rights Act (“Title VII”), 42 U.S.C. §
2000e et seq. Docket No. 1. Maldonado also alleges violations of various Puerto Rico
laws. 1 The parties consented to magistrate judge jurisdiction. Docket No. 51. The
Municipality moved for summary judgment, Docket Nos. 58, 118, and Maldonado
opposed, Docket Nos. 104–05.
For the reasons set forth below, the Municipality’s motion is GRANTED IN
PART AND DENIED IN PART.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the movant shows “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). A dispute is “genuine” only if it “is one that could be resolved in
1
Puerto Rico Law 100, P.R. LAWS ANN. tit. 29, § 146 et seq.; Puerto Rico Law 69, id. §
1321 et seq.; Puerto Rico Law 17, id. § 155 et seq.; Puerto Rico Law 115, id. § 194(a) et seq.;
P.R. Bill of Rights; P.R. Const. art. II, § 1; P.R. Civ. Code art. 1802, P.R. LAWS ANN. tit. 31, §
5141; P.R. Civ. Code art. 1803, P.R. LAWS ANN. tit. 31, § 5142.
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favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
2004). A fact is “material” only if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial burden of “informing the district court of the basis for its motion,
and identifying those portions” of the record materials “which it believes demonstrate the
absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
When the moving party lacks the burden of proof at trial, it may discharge this
threshold responsibility in two ways: by producing evidence negating an essential
element of the nonmoving party’s claim, Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000), or showing “there is an absence of evidence to support the nonmoving party’s
case,” Celotex, 477 U.S. at 325. See Fed. R. Civ. P. 56(c)(1)(B). Once that bar is cleared,
“the burden shifts to the summary judgment target to demonstrate that a trialworthy issue
exists,” Plumley v. S. Container, Inc., 303 F.3d 364, 368 (1st Cir. 2002), by “affirmatively
point[ing] to specific facts” in the record revealing the presence of a meaningful dispute,
McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).
The court does not act as trier of fact when reviewing the parties’ submissions and
so cannot “superimpose [its] own ideas of probability and likelihood (no matter how
reasonable those ideas may be) upon” conflicting evidence. Greenburg v. P.R. Mar.
Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must “view the entire record
in the light most hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). The court may not grant summary judgment “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. But the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and may not rest upon “conclusory allegations,
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3
improbable inferences, and unsupported speculation,” Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
BACKGROUND
Except where otherwise noted, the following facts are drawn from the parties’
Local Rule 56 submissions.2 I note that both sides raise frivolous objections, and attempt
to insert irrelevant facts and legal argumentation into their statements. This summary
omits these glosses on the record, but any genuine disputes of material fact are addressed
in this opinion’s discussion section. 3
The Parties
Maldonado held a career position with the Municipality, and began working for
Defendants’ statement of uncontested facts (“DSUF”), Docket No. 63; plaintiff’s
opposing statement of material facts (“OSMF”), Docket No. 104; and defendants’ reply statement
of material facts (“RSMF”), Docket No. 117.
3
Local Rule 56 is designed to “relieve the district court of any responsibility to ferret
through the record to discern whether any material fact is genuinely in dispute.” CMI Capital
Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for
summary judgment to accompany its motion with a brief statement of facts, set forth in numbered
paragraphs and supported by citations to the record that the movant contends are uncontested and
material. D.P.R. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts,
with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present,
in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c). The
court may deem the movant’s facts uncontested if they are not properly controverted in
compliance with the rule, and litigants ignore it “at their peril.” Mariani-Colón v. Dep’t of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).
Maldonado failed to comply fully with the local rule. In her opposing statement, she
repeatedly inserted additional facts, purportedly by way of qualifying or denying the
Municipality’s assertions. Facts that do not directly qualify or refute those proffered by the
movant must be submitted in a separate section. Carreras v. Sajo, Garcia & Partners, 596 F.3d
25, 32 (1st Cir. 2010) (citing D.P.R. Civ. R. 56(c)). By instead presenting her additional facts
either alongside or instead of legitimate qualifications or denials, Maldonado has attempted to
“improperly shift the burden of organizing the evidence presented . . . to the district court.”
Mariani-Colón, 511 F.3d at 219. As a result, I have disregarded all facts in her opposing
statement that do not constitute qualifications or denials. Acevedo-Parilla v. Novartis Ex-Lax,
Inc., 696 F.3d 128, 137 (1st Cir. 2012) (where “[plaintiff] submitted an opposing statement . . .
but included additional information as to each opposed fact that did not specifically correlate to
[defendant’s] proposed facts,” it was “an appropriate exercise of [court’s] discretion” to
“disregard any additional facts provided by [plaintiff] when denying or qualifying [defendant’s]
statement.”).
2
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its Emergency Management Office (“EMO”) in August 2008 as an emergency medical
technician (“EMT”), where she provided medical services to injured persons and
transported them to the hospital. DSUF ¶¶ 1, 2, 12. To perform her essential duties, she
needed a license to drive an ambulance, a driver’s license, and an EMT license that itself
required a CPR license and sign-language certification. DSUF ¶¶ 3, 4.
Ortiz-Chevres became the Municipality’s mayor in January 2009. DSUF ¶ 8. He
appointed Figueroa-Negrón (“Figueroa”) that same month to the Municipality’s director
of human resources position, where she remained until July 2012. DSUF ¶ 9. The mayor
also appointed several EMO directors while Maldonado worked for the EMO: José
Padilla, who served throughout 2009; Hiram Bristol-Colon (“Bristol”), who served from
January to October 2010; Rámon Vázquez Baez, who served from November 2010 to
January 2011; and Tomás Rodríguez-Vélez (“Rodríguez-Vélez”), who served from 2011
onward. DSUF ¶ 11. With the assistance of the EMO subdirector, the EMO director is
responsible for supervising employees, handling personnel matters, and assigning work
schedules. DSUF ¶¶ 12–15. All other EMO employees are not supervisors. DSUF ¶ 13.
Alleged Harassment and Retaliation
In July 2010, Maldonado suffered a work-related accident. DSUF ¶ 34. As a
result, the State Insurance Fund ordered her to stop working. DSUF ¶ 34. She remained
on unpaid leave, which the mayor approved, from July 8, 2010 to April 3, 2012. DSUF ¶¶
35, 36. On September 30, 2010, she accompanied a coworker to complain to Figueroa
about harassment by Bristol. DSUF ¶¶ 37, 61. While there, Maldonado told Figueroa
about comments made by Bristol and Jose Figueroa-Nieves (“Figueroa-Nieves”).
Maldonado Dep. 20:23–25, 24:21–24. She alleges that around 2009 and 2010, FigueroaNieves and another coworker, Maria Elena Serrano (“Serrano”), called her “machito”
(translated in the record as “manly”) on a daily basis. Maldonado Dep. 11:19–20.
Figueroa-Nieves also allegedly told her that she liked “butterflies in her mouth and
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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perhaps that was because [she] ha[dn’t] had a men [sic] to really put the wood to [her]
and changed [sic] [her] opinion.” Maldonado Dep. 13:13–19.
Maldonado claims this “joke” “referring to [her] sexual orientation” was made
“all the time” and “two or three times” in front of Bristol.4 Maldonado Dep. 13:18–25.
Maldonado also said Bristol once told her that he would flirt with her if he did not know
she was lesbian. DSUF ¶ 92. Figueroa assured Maldonado and her coworker that the
complaint would be investigated, and relayed it to the mayor. DSUF ¶ 37.
By October 2010, the Municipality hired an attorney to investigate the complaint.
DSUF ¶ 62. The attorney interviewed several employees and informed them that they
should report any retaliation against them if it occurred. DSUF ¶¶ 71–72, 76. Maldonado
was one of the employees interviewed, and told the investigating attorney that sexual
harassment was occurring in the workplace against other females. DSUF ¶¶ 74, 98. But in
doing so, she did not mention any harassment by Bristol or Figueroa-Nieves against her
in particular. DSUF ¶ 79. In his investigation, which included asking other employees
about harassment against Maldonado, the attorney did not uncover any incidents of
harassment against her. DSUF ¶¶ 86, 96. On October 28, the attorney drafted a report
finding that Bristol engaged in misconduct and sexual harassment against female
employees. DSUF ¶ 94. The attorney recommended that the mayor remove Bristol from
his position. DSUF ¶ 104. The mayor requested Bristol’s resignation the next day, Bristol
tendered it, and the mayor immediately accepted it. DSUF ¶¶ 105–06.
Following that investigation, and while on unpaid leave, Maldonado received
several messages on Facebook. DSUF ¶ 119. The message she received on November 1,
2010, at 9:46 p.m., called her a “nasty lesbian,” “whore,” “snake,” and “dike.” It also said
“I will see you fall you dirty lesbian and every one of you one by one what you did to that
man the one from emergency management . . . remember that you have children that by
4
Figueroa-Nieves denies making any of these comments to Maldonado. DSUF ¶ 157.
There is a genuine dispute as to whether he ever made harassing comments.
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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the way the boy is gay and the girl is a lesbo.” Docket No. 115-3 at 13. Maldonado
interpreted this message as a threat and filed a police report, which the police began
investigating. The Municipality does not dispute that this message insulted and threatened
Maldonado and her family. DSUF ¶ 119. The police traced this Facebook message to a
computer in an office in the EMO. OSMF ¶ 31. That office is kept locked, and the office
is generally restricted to the EMO Director and his secretary, both of whom have the keys
to that office. OSMF ¶ 67.
A second message said, “I was not the one who got my wings plucked it was done
to you little lesbian your back doesn’t hurt no more so come back from the fund.” Docket
No. 115-3 at 115. A third message narrated a story in which Maldonado alleges she was
referred to as the “paramedic wolf.” Docket No. 115-3 at 16–17. And a fourth message
called her a “lesbian” and “worthless shit.” Docket No. 115-3 at 11. Because whoever sent
these messages used pseudonyms, Maldonado does not know the identity of the sender or
senders. DSUF ¶¶ 133–34. Maldonado speculates the sender of the November 1 message
was Figueroa-Nieves. DSUF ¶¶ 128–32. She believes so because she saw his workassigned vehicle in the EMO’s parking lot after receiving the November 1 message.
DSUF ¶ 161. It is undisputed that the vehicle remains in the parking lot when FigueroaNieves completes his shift. DSUF ¶ 161. And Maldonado admitted in her deposition that
she did not know whether Figueroa-Nieves was actually at the EMO office where the
computer was located on November 1. Docket No. 83 at 42:20–23. She also admits that
he left at 3:00 p.m. on November 1 and did not return to the EMO until the following day,
as indicated on his timecard. DSUF ¶ 164; OSMF ¶ 164 at 25.
In November 2010, Maldonado told Figueroa about the messages she had
received at that point. DSUF ¶ 119. Figueroa asked Maldonado to keep her updated on
the result of the police investigation so the Municipality could determine how to proceed.
DSUF ¶ 119. The police did not identify the sender of the message and did not resolve
the investigation. DSUF ¶ 176. In December 2011, the mayor met with Maldonado to
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discuss the messages, as Figueroa was on maternity leave from October 2011 to January
2012. DSUF ¶¶ 120, 122. He asked her to submit the documents the police provided to
Figueroa when she returned from maternity leave. Maldonado Dep. 46:1–4. Maldonado does
not identify other specific incidents of harassment after this point and maintained a “cordial
professional relation[ship]” with Figueroa-Nieves when she returned from unpaid leave.
DSUF ¶ 169.
In early April 2012, Maldonado went to Figueroa’s office to inform her that she was
returning to work while continuing medical treatment, as determined by the State Insurance
Fund. DSUF ¶ 233. During that meeting, she also met the new EMO director, RodríguezVeléz, whom she informed that her EMT license had expired. DSUF ¶ 235. Because the
license is necessary to perform essential EMT duties, Rodríguez-Veléz suggested that
Maldonado perform ambulance maintenance duties. DSUF ¶ 237. All employees at the EMO
cleaned the office after each shift, but there is a genuine dispute as to whether RodríguezVeléz expressly said or implied that Maldonado would be required to perform janitorial
duties. DSUF ¶¶ 237–38; OSMF ¶ 34.
On April 3, 2012, Figueroa sent Maldonado a letter stating that she could not work as
an EMT without a valid EMT license and that she had two months to renew it.5 DSUF ¶ 239.
The next day, Maldonado returned to work as an EMT. DSUF ¶ 240. Rodríguez-Veléz
subsequently informed Maldonado that she was missing an EMT license, a CPR certification,
and a sign-language certification. DSUF ¶ 243. She responded that she did not have money to
pay the cost of renewing the various licenses. DSUF ¶ 243. He suggested she request extra
time to obtain them. DSUF ¶ 243. The Municipality alleges that because she lacked the
necessary qualifications, she was reassigned to the EMO call center, where she primarily
responded to emergency calls. DSUF ¶ 245. She received a “very good” performance review
at the call center and did not indicate any dissatisfaction with working in that position. DSUF
¶¶ 245, 248.
5
The Municipality states without dispute from Maldonado that under Puerto Rico law an
EMT license is necessary to perform the job’s essential duties. DSUF ¶¶ 239, 244.
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On June 19, 2012, Maldonado obtained a provisional license to drive ambulances.
DSUF ¶ 257. Thereafter, Rodríguez-Veléz authorized her to drive ambulances and work at
the call center. DSUF ¶ 257. Maldonado alleges the Municipality reimbursed employees for
the costs of obtaining the necessary licenses and that she was denied such reimbursement.
She admits this alleged reimbursement occurred before July 8, 2010, and acknowledged that
when she returned to work in April 2012, any request for reimbursement had to be submitted
directly to the EMO director and the human resources office. DSUF ¶ 263. She submitted
neither request and admitted that she lacked personal knowledge of any reimbursement to
other employees. DSUF ¶¶ 260–64.
On November 14, 2012, Maldonado suffered another work-related accident, and the
State Insurance Fund again ordered her to stop working. DSUF ¶ 285. Maldonado continued
to receive periodic messages informing her that she lacked the licenses necessary to work as
an EMT. DSUF ¶¶ 277–79. She remained on unpaid leave until November 23, 2013, when
the mayor informed her that she was being terminated because the Municipality had reserved
her job for more than a year in compliance with state law.6 DSUF ¶¶ 290–91. Maldonado was
informed of her right to appeal that decision, but did not do so. DSUF ¶¶ 291–92.
Municipality’s Sexual Harassment Policy and the EEOC Charge
The Municipality has a sexual harassment policy that establishes procedures for
making harassment and retaliation complaints. DSUF ¶¶ 19, 20. It requires that
employees immediately report complaints. DSUF ¶ 22. EMO employees can complain to
the EMO Director or the human resources director about any coworker, and to the human
resources director when the complaint concerns an EMO supervisor. DSUF ¶ 18. Other
than the complaint in September 2010, Maldonado did not file a formal complaint with the
human resources department about Figueroa-Nieves or other employees. DSUF ¶ 127. On
May 24, 2012, Maldonado filed an EEOC charge against the Municipality. DSUF ¶ 296.
6
Maldonado admits state law requires the Municipality to reserve her job for only one
year. DSUF ¶ 294.
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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In that charge, she claimed sex-based discrimination and retaliation, and alleged that: (1)
harassment began against her and other employees after they participated in the
investigation against Bristol in October 2010; (2) she was “coerced” to return to work
after her work-related accident in July 2010; (3) the Municipality discriminated against
her gender because it reimbursed the cost of obtaining the necessary licenses for males,
allowed males to work without a license, and allowed employees to smear her image as a
woman using the Municipality’s office equipment; and (4) Figueroa-Nieves called her
“manly” and said other “other epithets of homo phobic [sic] character.” Docket No. 109-5
at 4, 6.
DISCUSSION
The Municipality moved for summary judgment on Maldonado’s Title VII claims
alleging hostile work environment and retaliation.7
I.
Timeliness of Maldonado’s Claims
A Title VII plaintiff must file an administrative charge with the EEOC within
either 180 or 300 days after the “alleged unlawful employment practice occurred.” 42
U.S.C. § 2000e–5(e)(1). Puerto Rico is a deferral jurisdiction, and so an employee must
file the administrative charge within 300 days of the alleged unlawful conduct if she first
files a charge with the Commonwealth of Puerto Rico Department of Labor; otherwise,
the charge must be filed within 180 days. Frederique-Alexandre v. Dep’t of Nat. & Envtl.
Res. P.R., 478 F.3d 433, 437 (1st Cir. 2007).
Maldonado’s complaint also claimed a violation of Title VII arising from “disparate
treatment” on the basis of sex. Compl. ¶ 64. I note that both parties sporadically refer to
“disparate treatment” in their briefs without fully developing an argument for or against that
theory. But because the Municipality has moved for summary judgment on all of Maldonado’s
Title VII claims, and Maldonado only develops an argument for her hostile work environment
and retaliation claims, this opinion is limited to discussing those bases for relief. Muniz-Cabrero
v. Ruiz, 23 F.3d 607, 609 (1st Cir. 1994) (“A party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual, why summary judgment should not be
entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.”).
7
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The Municipality first contends the incidents Maldonado alleges, particularly
those from 2009 and 2010, are “discrete acts” that occurred on particular days and are
time-barred. Defs.’ Mot. Summ. J. 14. But discrete acts and hostile work environment
claims are “different in kind.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002). The Supreme Court has held “that consideration of the entire scope of a hostile
work environment claim, including behavior alleged outside the statutory time period, is
permissible for the purposes of assessing liability, so long as an act contributing to that
hostile environment takes place within the statutory time period.” Id. at 117. The Court
held so “because such a claim is composed of a series of separate acts that collectively
constitute one unlawful employment practice.” Id.
Maldonado filed her EEOC charge on May 24, 2012, and the parties agree she did
not first file a charge with the Commonwealth of Puerto Rico Department of Labor.
Accordingly, the limitations period is 180 days and extends to incidents as far back as
November 26, 2011. Because the harassment from Figueroa-Nieves, Serrano, and the
Facebook messages occurred in 2009 and 2010, she must establish that a discriminatory
“anchoring act” occurred within the limitations period. Noviello v. City of Bos., 398 F.3d
76, 86 (1st Cir. 2005). To qualify as an anchoring act, the discriminatory act must
“substantially relate[ ] to [the] earlier incidents of abuse.” Id.
Maldonado argues that her hostile work environment and retaliation claims are
timely because the incidents that gave rise to each claim are intertwined and related.8 Pl.’s
Opp’n 17. The First Circuit has held that “courts should avoid disaggregating a hostile
work environment claim, dividing conduct into instances of sexually oriented conduct
and instances of unequal treatment, then discounting the latter category of conduct.”
O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001). The First Circuit
8
Maldonado cites First Circuit cases concerning systemic and serial violations to argue
her claims are timely. Pl.’s Opp’n 16. But in light of Morgan, “it is no longer necessary . . . to
determine whether a violation is systemic or serial when determining a hostile work environment
claim.” Crowley v. L.L. Bean, 303 F.3d 387, 406 (1st Cir. 2002).
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reasoned that “[s]uch an approach defies the Meritor Court’s directive to consider the
totality of circumstances in each case and ‘rob[s] the incidents of their cumulative
effect.’” Id. Moreover, “where the evidence can reasonably be viewed as demonstrating
either discriminatory animus or retaliatory animus, a court may consider the same
evidence in assessing the sufficiency of both of the plaintiff’s claims.” Peréz-Cordero v.
Walmart P.R., Inc., 665 F.3d 19, 32 (1st Cir. 2011) (court noted “overlap between
[employee’s] discrimination claim, which depends on proof that the hostile work
environment was ‘because of sex,’ and his retaliation claim, which seeks to characterize
the same hostile work environment as caused by his protected activity.”).
The incidents that form Maldonado’s hostile work environment are not timebarred because the 2010 incidents described below are “sufficiently related” to at least
one incident in 2012. See Noviello, 398 F.3d at 86. Maldonado alleges that she was being
subjected to gender-based harassment in 2010, and that the harassment escalated after she
participated in the sexual harassment investigation against Bristol. The escalated
harassment first manifested itself in November 2010, when she received a threatening
Facebook message that was sent from an office in the EMO that was kept locked. 9 OSMF
¶ 57, 67. Because the EMO Director had the key to the locked office, and the office was
generally restricted to the Director and his secretary, a reasonable jury could infer that the
EMO director permitted one of the Municipality’s employees to send the message. OSMF
¶ 67. Maldonado then adds that the harassment continued in 2012 when Rodríguez-Veléz,
the EMO supervisor, told her she would perform janitorial duties rather than EMT duties,
allegedly because she lacked the necessary EMT licenses. DSUF ¶ 237; OSMF ¶ 34.
After he made this statement, Maldonado was not allowed to work as an EMT and was
transferred to the EMO call center. As discussed below, there is a genuine dispute of
material fact as to whether the Municipality prohibited Maldonado from working as an
9
Other than in 2010, Maldonado does not allege there were other incidents of the
Municipality’s employees using office equipment to harass her.
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12
EMT while allowing her male coworkers to work as EMTs without the necessary
licenses.
The incidents in 2012 (i.e., Maldonado not being allowed to work as an EMT and
Rodríguez-Velez’s contemporaneous antagonistic statement about requiring Maldonado
to perform janitorial duties) serve as the anchoring acts for Maldonado’s sex- and
retaliation-based hostile work environment claims because there is a common theme of
retaliatory animus running through the threatening Facebook message in 2010––which
referenced her participation in the investigation against Bristol––and Rodríguez-Veléz’s
antagonistic statement toward Maldonado in 2012. O’Rourke, 235 F.3d at 730 (courts
should not disaggregate hostile work environment claims, as “statute of limitations
problems must be understood in the context of substantive law”). In a case presenting a
similar sequence of events, the First Circuit affirmed a hostile work environment claim
where there was “proof that within a few weeks of filing a [disability] harassment
complaint,” retaliatory animus led the harassment to intensify and expand to include,
among other things, threats and screaming at the employee by his supervisors. QuilesQuiles v. Henderson, 439 F.3d 1, 8–9 (1st Cir. 2006). Thus, the Municipality’s attempt to
disaggregate the various incidents of alleged harassment would deprive them of “their
cumulative effect.” O’Rourke, 235 F.3d at 730.
The Municipality also argues Maldonado’s retaliation claim is time-barred. The
First Circuit has held that “retaliation claims are preserved so long as the retaliation is
reasonably related to and grows out of the discrimination complained of to the agency.”
Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1, 6 (1st Cir. 2001). Accordingly, this court
held that a retaliatory discharge allegation was timely where the employee filed
retaliation charges for discriminatory conduct with the EEOC, the EEOC issued a right to
sue letter, the employee was subsequently terminated, and the judicial complaint included
the termination not raised in the EEOC charge. Muñoz-Rivera v. Walgreens Co., 428 F.
Supp. 2d 11, 22 (D.P.R. 2006). As discussed above, the incidents that were included in
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
13
her EEOC charge, which Maldonado alleges also have a retaliatory motive, are timely.
There is no dispute that the alleged retaliatory termination was not included in her EEOC
charge. As in Muñoz-Rivera, where the court considered an alleged retaliatory
termination that occurred after the employee filed the EEOC charge, Maldonado’s alleged
retaliatory termination is not time-barred. 428 F. Supp. 2d at 22.
II.
Hostile Work Environment
Maldonado argues she was initially subjected to a gender-based hostile work
environment, and that in response to her participation in the sexual harassment complaint
against Bristol, she began to experience a retaliation- and gender-based hostile work
environment. When a plaintiff raises hostile work environment claims based on gender
and retaliation, “separate analysis is necessary” even where “both of [the employee’s]
claims arise from a single series of events.” Jensen v. Potter, 435 F.3d 444, 454 (3d Cir.
2006)(Alito, J.), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006). And where, as here, “the evidence can reasonably be
viewed as demonstrating either discriminatory animus or retaliatory animus,” courts can
consider the “same evidence” in evaluating the sufficiency of both claims. PerézCordero, 656 F.3d at 32 (court considered the same evidence to review sex- and
retaliation-based hostile work environment claims); see also Morales–Vallellanes v.
Potter, 605 F.3d 27, 37–40 (1st Cir. 2010). Accordingly, I review separately each of the
bases for Maldonado’s hostile work environment claims.
A.
Sex-Based Hostile Work Environment
Title VII prohibits an employer from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1); Billings v. Town of Grafton,
515 F.3d 39, 47 (1st Cir. 2008) (“Title VII’s ban on employment practices extends to sexbased discrimination that creates a hostile or abusive work environment.”). To establish a
hostile work environment claim, the plaintiff must show that: (1) she is a member of a
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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protected class; (2) she was subjected to unwelcome sexual harassment; (3) the
harassment was based upon sex; (4) the harassment was sufficiently severe or pervasive
so as to alter the conditions of plaintiff's employment and create an abusive work
environment; (5) the sexually objectionable conduct was both objectively and
subjectively offensive, such that a reasonable person would find it hostile or abusive and
the victim in fact did perceive it to be so; and (6) some basis for employer liability has
been established. O’Rourke, 235 F.3d at 728.
The Municipality argues harassment based on Maldonado’s perceived sexual
orientation is not actionable and that she is unable to show severe or pervasive
harassment that altered a term or condition of her employment. Defs.’ Mot. Summ. J. 14–
19. Maldonado argues she endured a hostile work environment because: (1) she was
harassed by Figueroa-Nieves, Serrano, and the Facebook messages, and (2) the
Municipality treated her unequally to male coworkers by requiring her to renew her
licenses to work as an EMT, imposing an unreasonable time to do so, and denying her
financial assistance given to male coworkers. Pl.’s Opp’n 17–18, 22.
1.
Based Upon Sex
The Municipality argues that sexual-orientation-based harassment is not
prohibited by Title VII. The First Circuit held so in Higgins v. New Balance Athletic Shoe,
Inc., 194 F.3d 252, 259 (1st Cir. 1999). This court also found at the motion to dismiss
stage that Maldonado’s complaint did not state a claim for relief under a theory of sex
stereotyping. Docket No. 25 at 7 n.2; see Price Waterhouse v. Hopkins, 490 U.S. 228, 250
(1989). Because Maldonado does not allege sex stereotyping in her opposition, I do not
consider her hostile work environment claim on this basis. Muniz-Cabrero, 23 F.3d at 609
(“A party opposing a summary judgment motion must inform the trial judge of the
reasons, legal or factual, why summary judgment should not be entered.”). Concededly,
many of the acts of harassment were directed at Maldonado’s perceived sexual
orientation rather than her gender. However, she also alleges that the Municipality created
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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a hostile work environment by treating her unequally to male coworkers, which is
actionable under Title VII. O’Rourke, 235 F.3d at 730. In addition, she was called a
“whore” in the November 2010 Facebook message, implicating her gender. Reeves v.
C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (words and conduct
that are sufficiently gender-specific, such as “whore,” “bitch,” and “cunt,” may state a
claim of a hostile work environment”). And finally, Bristol once told her that he would
flirt with her if he did not know she was lesbian, again implicating her gender. DSUF ¶
92. Peréz-Cordero, 656 F.3d at 28 (“the victim’s sex is inextricably linked to the
harasser’s decision to harass” where there is an attempt to establish a romantic
relationship) (quoting Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229 (1st Cir.
2007)).
2.
Severe and Pervasive Harassment
The Supreme Court has held that a Title VII claim of harassment must be
sufficiently “severe or pervasive” to affect a “term or condition of employment.” Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Courts consider the totality of the
circumstances, “including the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Faragher v.
City of Boca Raton, 524 U.S. 775, 787–88 (1998). “[S]imple teasing . . . offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Id. “These standards
for judging hostility are sufficiently demanding to ensure that Title VII does not become a
‘general civility code.’ Properly applied, they will filter out complaints attacking ‘the
ordinary tribulations of the workplace, such as the sporadic use of abusive language,
jokes, and occasional teasing.” Id. at 788.
The Municipality first contends Maldonado is precluded from arguing she
suffered an abusive work environment due to incidents that occurred outside the
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workplace. Defs.’ Mot. Summ J. 14–15. Maldonado responds that “her absence from the
workplace did not make her any less subject [to] attack” from harassing messages. Pl.’s
Opp’n 18. The parties do not cite supporting authority for their arguments. In Crowley,
the First Circuit held that “[c]ourts . . . permit evidence of non-workplace conduct to help
determine the severity and pervasiveness of the hostility in the workplace as well as to
establish that the conduct was motivated by gender.” 303 F.3d at 409; see also O’Rourke,
235 F.3d at 724 (court affirmed verdict in favor of sexual harassment victim who offered
evidence that she had received crank phone calls at home). Accordingly, Maldonado is
not precluded from relying on the Facebook messages she received solely because they
occurred outside the workplace.
The Municipality next argues that the Facebook messages Maldonado received
amounted to simple teasing and offhand comments. The most problematic of these
messages is the November 1 message, which referenced her participation in the sexual
harassment investigation against Bristol, stated “I will see you fall,” called her a “whore,”
noted her mother’s frail health, and insulted her children. 10 Maldonado understandably
interpreted this message as a threat and reported it to the police.11 “[T]he presence of physical
threats undeniably strengthens a hostile work environment claim.” Noviello, 398 F.3d at 94
(quoting White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 n.6 (2005)). The other messages
Maldonado received, including the message pressuring her to come back to work from
unpaid leave, though less serious, added to the harassment.
10
Maldonado speculates that the sender of this message was Figueroa-Nieves because
she claims to have seen his work-assigned vehicle parked at the EMO after she received the
message. At the same time, she admits that Figueroa-Nieves left the EMO at 3:00 p.m. on that
day and did not return to the EMO until the following day, as indicated on his timecard. DSUF ¶
164. Even if the sender of the November 1 message was not Figueroa-Nieves, the Municipality
admitted that the message was sent from an office in the EMO that is kept locked and is only
accessible to employees with a key. OSMF ¶¶ 31, 57, 67. Because reasonable inferences must be
drawn in Maldonado’s favor, a reasonable jury could find that one of the Municipality’s
employees sent the message.
11
In the Municipality’s undisputed statement of facts or elsewhere, it does not dispute
that this message threatened Maldonado. DSUF ¶ 119.
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Maldonado also argues she suffered harassment because of the various comments and
jokes that coworkers made before she went on unpaid leave in July 2010. However, because
she claims these comments were based on her “sexual preference” and does not argue that
sex stereotyping was at all implicated, the comments lack probative value to her genderbased discrimination claim. Pl.’s Opp’n at 14. In Higgins, the First Circuit affirmed summary
judgment in favor of the employer where the employee erroneously claimed that sexual-
orientation-based harassment was prohibited by Title VII, “did not mention gender
stereotyping before” the trial court, and “did not present any considered argumentation
along that line.” 194 F.3d at 261.
Maldonado next contends the Municipality treated male coworkers preferentially in
various ways. See O’Rourke, 235 F.3d at 730. She first alleges the Municipality was
unwilling to reimburse her for the cost of obtaining the licenses that are necessary to work as
an EMT. However, she admitted that this alleged reimbursement occurred before July 2010,
and that when she returned to work in April 2012, any request for reimbursement had to be
submitted directly to the EMO director and the human resources office. DSUF ¶ 263.
Because she did not submit a request for reimbursement and does not have personal
knowledge of anyone being reimbursed, her allegation is unsupported by the evidence in the
record. DSUF ¶¶ 260–64. Second, she alleges the Municipality gave her only two months to
renew her licenses. The record evidence again does not support her assertion. The evidence in
the record indicates that the Municipality gave her more than two months to renew her
licenses, as it sent her several reminders from 2012 until her termination. DSUF ¶¶ 277–79.
Third, she alleges the Municipality allowed male coworkers to work as EMTs
without the necessary licenses, but did not allow her to do the same.12 Maldonado Dep.
34:8–37:4. Prior to not allowing Maldonado to work as an EMT, there is a genuine
dispute of fact as to whether Rodríguez-Veléz expressly said or implied that Maldonado
would be required to perform janitorial duties in his office. DSUF ¶ 237;OSMF ¶ 34. In
12
Maldonado admits she lacked the licenses necessary to work as an EMT. DSUF ¶ 236.
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O’Rourke, the First Circuit emphasized that unequal treatment can contribute to a hostile
work environment, just like other “incidents of nonsexual conduct—such as work
sabotage, exclusion, denial of support, and humiliation—can in context contribute to a
hostile work environment.” 235 F.3d at 730. The female firefighter in O’Rourke was
treated unequally when her employer (1) required her to wear the outer jacket of a
firefighter uniform, but did not require male firefighters to do the same; (2) blamed only
her for an incident during a fire call; (3) did not assign her a locker, allegedly because the
locker assignments were based on seniority; and (4) excluded her from meetings that
male firefighters attended. Id. at 719–20, 724.
O’Rourke reasoned that unequal treatment is actionable in a hostile work
environment claim because employers would otherwise “lack the incentive to correct
behavior that, like more overtly sexual forms of harassment, works against integrating
women into the workforce.” Id. at 730 & 730 n.5 (“isolating nonsexual conduct from
hostile work environment claim ‘weakens the plaintiff’s case and distorts the law’s
understanding of the hostile work environment by obscuring a full view of the culture and
conditions of the workplace’ and ‘drain[s] harassment law of its ability to address the full
range of gender-based hostility at work”) (quoting Vicki Schultz, Reconceptualizing
Sexual Harassment, 107 Yale L.J. 1683, 1719–20 (1998)); see also McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1114–15 (9th Cir. 2004) (employee established hostile work
environment where, among other things, employer unequally applied work rules relating
to overtime pay); Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001) (court noted that it
has “found workplace situations discriminatory under a hostile work environment theory
where the conduct at issue, though lacking any sexual component or any reference to the
victim’s sex, could, in context, reasonably be interpreted as having been taken on the
basis of plaintiff’s sex”); Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999)
(“Any unequal treatment of an employee . . . may, if sufficiently severe or pervasive under the
Harris standard, constitute a hostile environment in violation of Title VII.”).
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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Maldonado testified during her deposition that several of her male coworkers13 who
worked as EMTs told her that they lacked the necessary licenses. 14 The Municipality
maintains that male employees were allowed to work as EMTs because they all had the
necessary licenses, resulting in a genuine dispute of material fact as to whether the
Municipality treated Maldonado unequally because of her gender. 15 OSMF ¶ 39. The
Municipality also impliedly argues that Maldonado could not have been treated unequally
because “all EMT’s worker [sic] had valid licenses including a female.” RSMF ¶ 42 at 19.
But even if this statement is true, it would not defeat her claim. McCoy v. Macon Water
Auth., 966 F. Supp. 1209, 1216 (M.D. Ga. 1997) (“A sexual harassment plaintiff need not
show that every member of his or her sex was subject to the harassment.”).
A reasonable jury could find that this alleged unequal treatment was “severe” because
Maldonado was prevented from working as an EMT and was required to work in a
completely different position at the EMO call center. Meritor, 477 U.S. at 67. Additionally,
because the alleged unequal treatment occurred since she returned from unpaid leave in April
2012 until she suffered her second work-related accident in November 2012, a reasonable
jury could find the alleged seven-month period of unequal treatment sufficiently “pervasive.”
Id. And although the Municipality asserts that Maldonado did not indicate at the time that she
was dissatisfied with working as a dispatcher in the call center, a reasonable jury could
nonetheless find a hostile work environment because a “plaintiff may be ‘unable to
appreciate that he is being discriminated against until he has lived through a series of
acts, [which may not have appeared to be discriminatory], and is thereby able to perceive
13
These male coworkers included Alex Bou, Ariel Cátala, David Colón, Alex Cruz, and
Ricardo Ebert. Maldonado Dep. 34:8–37:4.
14
The Municipality contends these statements are inadmissible hearsay. RSMF ¶ 42 at
19. They are not because Maldonado alleges the Municipality’s employees made these statements
while they were still employed by it, and the statements concern a matter within the scope of that
employment. Fed. R. Evid. 801(d)(2)(D).
15
The Municipality cites the factual findings in the EEOC report to support its contention
that all male employees had the necessary licenses. RSMF ¶ 42. But even if the EEOC report is
trustworthy and qualifies as a hearsay exception, that finding only reaffirms the genuine dispute
of fact. Fed. R. Evid. 803(8).
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the overall discriminatory pattern.” O’Rourke, 235 F.3d at 732 (quoting Sabree v. United
Bhd. of Carpenters & Joiners Local No. 33, 921 F.3d 396, 402 (1st Cir. 1990)). Finally,
in determining the cumulative effect of the incidents Maldonado endured, a reasonable
jury could also consider the threatening and harassing Facebook messages she received
and Rodríguez-Velez’s alleged antagonistic statement. At the summary judgment stage,
the court’s “function is to determine whether, on particular facts, a reasonable jury could
reach . . . a conclusion [in favor of the nonmoving party].” Rivera–Rodriguez v. Frito Lay
Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001). Because there are genuine disputes of
fact within Maldonado’s hostile work environment claim, and the Municipality has cited
no authority indicating those genuine disputes are immaterial as a matter of law, a
reasonable jury could find that Maldonado was subjected to a sex- and retaliation-based
hostile work environment.
3.
Municipality’s Liability
The Supreme Court has held that an employer’s liability for harassment may
depend on the status of the harasser. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439
(2013). “If the harassing employee is the victim’s co-worker, the employer is liable only
if it was negligent in controlling working conditions.” Id. In contrast, where the “harasser
is a ‘supervisor,’” the employer is strictly liable “[i]f the supervisor’s harassment
culminates in a tangible employment action.” Id. But if the supervisor does not inflict a
tangible employment action, “the employer may escape liability by establishing, as an
affirmative defense, that (1) the employer exercised reasonable care to prevent and
correct any harassing behavior and (2) that the plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities that the employer provided.” Id.
An employee is a “supervisor” “only when the employer has empowered that employee
to take tangible employment actions against the victim, i.e., to effect a ‘significant change
in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
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benefits.’” Id. at 2443 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998)). These rules apply to both sex- and retaliation-based harassment. See Noviello,
398 F.3d at 94 (“In importing the hostile work environment doctrine into the antiretaliation context, courts are left to draw the standards for employer liability from the
case law involving hostile work environments in the anti-discrimination context.”).
With respect to its liability, the Municipality only argues that it should not be held
liable for any harassment by Figueroa-Nieves, whom Maldonado alleges was the sender
of the harassing Facebook messages. Defs.’ Mot. Summ J. 19. But this argument ignores
the other incidents of harassment discussed above, which include an alleged antagonistic
statement by Rodríguez-Veléz, the EMO supervisor, and unequal treatment sanctioned by
the Municipality’s management. Because the Municipality has not argued that it should
be absolved from liability resulting from the cumulative effect of all the incidents that
form Maldonado’s sex-based hostile work environment claim, summary judgment is
denied on this claim.
B.
Retaliation-Based Hostile Work Environment
Having determined that a reasonable jury could find that Maldonado suffered a
sex-based hostile work environment, I proceed to review whether a jury could also find in
her favor for the retaliation-based hostile work environment she alleges. The First Circuit
has held that “the creation and perpetuation of a hostile work environment can comprise a
retaliatory adverse employment action.” Noviello, 398 F.3d at 93. In retaliation-based
hostile work environment claims, courts “only consider ‘those actions, directed at a
complainant, that stem from a retaliatory animus.’” Roman v. Potter, 604 F.3d 34, 42 (1st
Cir. 2010) (quoting Noviello, 398 F.3d at 93). The Supreme Court recently explained that
unlike status-based discrimination (i.e., discrimination based on race, color, sex, religion,
or national origin), which requires that discrimination be “motivated” by the employee’s
status, a retaliation-based claim requires that the prohibited criterion (i.e., having
opposed, complained of, or sought remedies for workplace discrimination) be the but-for
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cause of the prohibited conduct. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2522–23 (2013); see also 42 U.S.C. § 2000e-2(m).
Accordingly, several of the incidents that were discussed within the context of
Maldonado’s sex-based discrimination claim cannot be considered for her retaliationbased hostile work environment claim. For example, because the comments by FigueroaNieves and Serrano were made prior to Maldonado’s participation in the sexual harassment
investigation against Bristol in October 2010, they cannot be factored into this analysis. See
Quiles-Quiles, 439 F.3d at 8 (“The relevant conduct [for a retaliation claim] is that which
occurred after” the employee engaged in protected conduct). For the same reason, Bristol’s
comment about flirting with Maldonado cannot be considered within this context.
Yet, there is still sufficient evidence from which a reasonable jury could conclude
that Maldonado’s participation in the investigation against Bristol was the but-for-cause of
the ensuing harassment. As in Noviello, where coworkers called the employee a “rat” after
she complained about a popular supervisor, the November 1 message threatened Maldonado,
insulted her and her family, and specifically referenced her participation in the investigation
against Bristol. See Noviello, 398 F.3d at 86 (“When harassment follows hard on the heels of
protected activity, the timing often is strongly suggestive of retaliation” and is
“circumstantial evidence of causation”).
In addition, when Maldonado returned from unpaid leave in April 2012, there is a
genuine dispute of fact as to whether the EMO supervisor, Rodríguez-Veléz, either expressly
told her or implied that she would be required to perform janitorial duties rather than her
EMT duties. See Jensen, 435 F.3d at 450 (“In determining whether conduct was retaliatory
cases have tended to focus on [temporal proximity] and the “existence of antagonism in the
intervening period”); see also Del Pilar Salgado v. Abbot Labs., 520 F. Supp. 2d 279, 292
(D.P.R. 2007) (courts consider contemporaneous comments made by the employer’s decision
makers when determining whether causation exists). Though it is undisputed that Maldonado
did not ultimately perform janitorial duties, a reasonable jury could infer retaliatory animus
from Rodríguez-Velez’s alleged statement and the subsequent decision by the Municipality’s
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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management to not allow her to work as an EMT. DSUF ¶ 237; OSMF ¶ 34. There is
admittedly overlap between the evidence considered for Maldonado’s sex- and retaliationbased hostile work environment claims. The First Circuit has recognized that such overlap is
permissible. Peréz-Cordero, 665 F.3d at 32. And in such situations, the Third Circuit has
reasoned that “when a woman who complains about sexual harassment is thereafter subjected
to harassment based on that complaint, a claim that the harassment constituted sex
discrimination [as opposed to retaliation-based discrimination] will almost always present a
question that must be presented to the trier of fact.” Jensen, 435 F.3d at 454. Because a
reasonable jury could find that the most serious incidents of harassment—the threatening
Facebook message and the Municipality’s refusal to allow Maldonado to work as an EMT––
resulted in severe and pervasive harassment that stemmed from a retaliatory animus,
summary judgment on her retaliation-based hostile work environment claim is also denied.
III.
Retaliation
Title VII makes it unlawful for “an employer to discriminate against any of his
employees . . . because [the employee] has opposed any practice made unlawful under
[Title VII] or because [the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title VII].”
42 U.S.C. § 2000e-3(a). The Supreme Court has explained that this “antiretaliation
provision protects an individual not from all retaliation, but from retaliation that produces
an injury or harm.” Burlington N., 548 U.S. at 67. Plaintiff establishes a prima facie
retaliation case by showing that (1) he undertook protected conduct; (2) he suffered an
adverse employment action; and (3) a causal connection exists between the protected
conduct and the materially adverse action. Gu v. Bos. Police Dep’t, 312 F.3d 254, 262 (1st
Cir. 2004). That showing made, the burden shifts to the employer to articulate a
legitimate, nonretaliatory explanation for its actions. Douglas v. J.C. Penney Co., 474
F.3d 10, 14 (1st Cir. 2007). If the employer carries this burden of production, then the
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
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burden returns to plaintiff to show the defendant’s reason is a pretext for unlawful
retaliation. Id.
Maldonado argues without dispute from the Municipality that she engaged in
protected conduct by reporting sexual harassment and participating in the investigation
against Bristol in October 2010. Pl.’s Opp’n 20; see Peréz-Cordero, 656 F.3d at 31
(employee engaged in protected conduct when he complained to his superiors about
harassment prohibited by Title VII). Surprisingly, Maldonado does not allege that her
filing of the EEOC charge led to retaliation, and so I do not consider whether she suffered
retaliation as a result of engaging in that protected conduct. The questions remaining are
thus whether she suffered a materially adverse action and whether a causal link exists
between that action and protected conduct.
A.
Materially Adverse Action
A materially adverse action under the “antiretaliation provision, unlike the
substantive provision of [Title VII], is not limited to discriminatory actions that affect the
terms and conditions of employment.” Burlington N., 548 U.S. at 64; see also Billings,
515 F.3d at 54 (“[C]onduct need not relate to the terms or conditions of employment to
give rise to a retaliation claim.”).16 Rather, a plaintiff may satisfy this requirement by
showing that “a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have ‘dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Burlington N., 548 U.S. at 64.
“This is an objective test and ‘should be judged from the perspective of a reasonable
person in the plaintiff’s position, considering all the circumstances.’” Lockridge v. Univ.
of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010) (quoting Burlington N., 548 U.S. at 71).
Under this inquiry, “context matters.” Burlington N., 548 U.S. at 69. Examples of adverse
Maldonado cites abrogated circuit cases requiring an “ultimate employment decision”
to show a materially adverse action. Pl.’s Opp’n 21. The Supreme Court rejected this standard
because it was too narrow in Burlington Northern. 548 U.S. at 67.
16
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employment actions in the retaliation context “include ‘termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material
loss of benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation.’” Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir.
2008) (quoting Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th
Cir. 1993)).
Maldonado alleges various materially adverse actions. She first alleges the
Municipality failed to investigate her complaint concerning the Facebook messages.
Courts have held that an employer’s “failure to investigate a complaint, unless it leads to
demonstrable harm, leaves an employee no worse off than before the complaint was
filed” and does not result in a materially adverse action. Daniels v. United Parcel Serv.,
701 F.3d 620, 640 (10th Cir. 2012); Fincher v. Depository Trust & Clearing Corp., 604
F.3d 71, 721–22 (2d Cir. 2010). These courts have reasoned that “adopting a contrary rule
and finding a failure to investigate establishes a prima facie case of retaliation would
open employers to retaliation claims even where they failed to investigate because of a
good faith belief the complaint was meritless.” Daniels, 701 F.3d at 640; Fincher, 604
F.3d at 721–22. The Municipality’s alleged failure to investigate did not result in
subsequent harm to Maldonado or leave her worse off than before she filed the complaint
because (1) the police investigated her police report, (2) she was on unpaid leave when
she filed the complaint and away from her alleged harassers, and (3) she admitted that her
relationship with Figueroa-Nieves was cordial when she returned from unpaid leave.
Second, she alleges the Municipality “forced” her to return from unpaid leave.
But her argument is unsupported by the record evidence. In early April 2012, Maldonado
went to Figueroa’s office to inform her that she was returning to work while continuing
medical treatment, as determined by the State Insurance Fund. DSUF ¶ 233.
Third, Maldonado contends the Municipality’s mayor did not approve her request
for additional unpaid leave, resulting in her termination from the EMO. A termination is a
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materially adverse employment action. Morales-Vallellanes, 605 F.3d at 36. Because
Maldonado was effectively terminated on November 23, 2013, she can show a materially
adverse action.
B.
Causal Link
To determine whether causation exists, courts consider the temporal proximity
between the protected activity and the adverse action, the sequence of events, any
departures from normal procedure, and contemporaneous statements by the employer’s
decision makers. Del Pilar Salgado, 520 F. Supp. 2d at 292. To be sure, the prima facie
burden is “not onerous.” Douglas, 474 F.3d at 14.
Absent other evidence of causation, Maldonado is unable to establish a causal link
between her termination in 2013 and her participation in the investigation against Bristol
in 2010, which is the only protected conduct she alleges formed the basis for retaliation,
because the three-year time period leads to the inference that the termination was not
retaliatory. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (“long period of
delay between [protected conduct] and ultimate discharge negates inference of
retaliation”) (citing Oliver v. Digital Equip. Corp., 846 F.2d 103, 110–11 (1st Cir. 1988));
see also Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998) (three-year delay negated
inference of retaliation). Thus, Maldonado is unable to establish a prima facie case of
retaliation.
C.
Legitimate, Nonretaliatory Reason and Pretext
Even if Maldonado had established a prima facie case of a retaliatory termination,
the Municipality argues that it terminated her because she had exhausted her unpaid leave
time and that it had reserved her job for the maximum time period required under state
law. DSUF ¶¶ 290–91. Once the employer has come forward with a legitimate,
nonretaliatory reason for its action, the burden returns to the plaintiff to show the
employer’s proffered nonretaliatory reason is a pretext for retaliation. Douglas, 474 F.3d
at 14. Maldonado argues the Municipality’s proffered reason is pretextual because of “the
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
27
sudden absences of those that participated as witnesses in the sexual harassment”
investigation, and because of “the obvious attempts by the Municipality to manufacture a
reason to terminate [her].” Pl.’s Opp’n 23. However, Maldonado admitted that she lacked
personal knowledge as to the circumstances that led each of the persons who participated
in the investigation to leave the EMO, making her argument speculative and unsupported
by record evidence.17 DSUF ¶ 116. See Feliciano de La Cruz v. El Conquistador Resort
& Country Club, 218 F.3d 1, 9 (1st Cir. 2000) (summary judgment granted where there
was no record evidence to support employee’s argument that the employer’s proffered
nonretaliatory reasons were pretextual). Similarly, her claim that the Municipality’s
“goal” was always to terminate her amounts to nothing more than a conclusory
allegation. Thus, summary judgment is granted on her retaliation claim.
IV.
Supplemental Claims
Maldonado also alleges various state law claims. See Puerto Rico Law 100, P.R.
Laws Ann. tit. 29, § 146 et seq.; Puerto Rico Law 69, id. § 1321 et seq.; Puerto Rico Law
17, id. § 155 et seq.; Puerto Rico Law 115, id. § 194(a) et seq.; P.R. Bill of Rights; P.R.
Const. art. II, § 1; P.R. Civ. Code art. 1802, P.R. LAWS ANN. tit. 31, § 5141; P.R. Civ.
Code art. 1803, P.R. LAWS ANN. tit. 31, § 5142.
A.
Law 115
Law 115 provides a cause of action when an employer retaliates against an
employee for engaging in protected conduct. P.R. LAWS ANN. tit. 29, § 194(a) et seq. This
court has held that a Law 115 retaliation claim is coterminous with a Title VII retaliation
claim. Godoy v. Maplehurst Bakeries, Inc., 747 F. Supp. 2d 298, 318 (D.P.R. 2010).
Because I granted summary judgment on Maldonado’s Title VII retaliation claim, I also
grant summary judgment on her Law 115 claim.
17
The Municipality explained that several employees left the EMO because they were
term employees whose contract terms had expired. DSUF ¶¶ 114–16. Another employee who
participated in the sexual harassment investigation transferred to another office within the
Municipality before she participated in the investigation against Bristol. DSUF ¶ 112.
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
B.
28
Remaining State Law Claims
As Maldonado points out, the Municipality’s motion does not address the merits
of her state law claims. Pl.’s Opp’n 2 n.1. The Municipality argues only that OrtizChevres, Figueroa, Figueroa-Nieves, and Rodríguez-Veléz cannot be held liable for
Maldonado’s Title VII claims. The First Circuit has held that there is no individual
employee liability under Title VII. Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir.
2009). Accordingly, the Title VII hostile work environment claims against Ortiz-Chevres,
Figueroa, Figueroa-Nieves, and Rodríguez-Veléz are dismissed.
However, under Puerto Rico Law 17, Law 69, and Law 100, there is individual
employee liability for workplace sexual harassment. Miro Martinez v. Blanco Velez
Stores, Inc., 393 F. Supp. 2d 108, 117 (D.P.R. 2005) (court dismissed Title VII sexual
harassment claims against individual employees, but exercised supplemental jurisdiction
over state law claims against employer and individual employees). Law 100, Law 17, and
Law 69 each prohibit a sex-based hostile work environment. Figueroa Garcia v. Lilly del
Caribe, Inc., 490 F. Supp. 2d 193, 212 (D.P.R. 2007). Because these state law claims and
Maldonado’s Title VII hostile work environment claim arise from a common nucleus of
operative facts, I will exercise supplemental jurisdiction over them. See id.; 28 U.S.C. §
1367(a). Thus summary judgment is denied on these state law claims against all
defendants.
Moreover, the Municipality has not informed the court of the grounds for
dismissing Maldonado’s state law claims that she argues arise from the Puerto Rico Bill
of Rights, the Puerto Rico Constitution, and Civil Code Articles 1802 and 1803. See
Leyva v. On The Beach, Inc., 171 F.3d 717, 721 (1st Cir. 1999) (trial court exceeded the
scope of the motion pending before it when it granted summary judgment on all of
plaintiffs’ “remaining claims” where the defendants’ motion for summary judgment only
addressed some of their claims). Thus, these claims are not dismissed.
Maldonado-Cátala v. Municipality of Naranjito, et al., Civil No. 13-1561 (BJM)
29
CONCLUSION
For the foregoing reasons, the Municipality’s motion is GRANTED IN PART
AND DENIED IN PART. Summary judgment is GRANTED on Maldonado’s Title VII
and Law 115 retaliation claims against all defendants. Summary judgment on
Maldonado’s Title VII hostile work environment claims are DENIED as to the
Municipality, but GRANTED as to Orlando Ortiz-Chevres, Marialis Figueroa-Negrón,
José Figueroa-Nieves, Hiram Bristol-Colon, and José Tomás Rodríguez-Veléz. Summary
judgment is DENIED on Maldonado’s remaining state law claims, which include those
that arise from Law 17, Law 69, Law 100, the Puerto Rico Bill of Rights, the Puerto Rico
Constitution, and Civil Code Articles 1802 and 1803.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 26th day of October 2015.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
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