Cruz-Rojas et al v. GMD Airlines Services, Inc. et al

Filing 92

OPINION and ORDER granting in part and denying in part 39 motion for summary judgment. Signed by US Magistrate Judge Bruce J. McGiverin on September 9, 2015. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GABRIEL CRUZ ROJAS, et al.,
Plaintiffs,
v.

Civil No. 13-1578 (BJM)

GMD AIRLINES SERVICES, INC., et al.,
Defendants.
OPINION AND ORDER
Gabriel Cruz Rojas, Janisse Merced Rosa, and their conjugal partnership
(collectively “Cruz”) bring this suit against GMD Airlines Services, Inc., Raúl Colón,
Victor Betancourt, Karen Pizarro, and each of their respective conjugal partnerships
(collectively “GMD”), alleging religious discrimination, hostile work environment,
retaliation, and constructive discharge in violation of Title VII of the 1964 Civil Rights
Act (“Title VII”), 42 U.S.C. § 2000e et seq. (2012). Compl. ¶ 1.1, Docket No. 1. Cruz
also claims violations of various Puerto Rico laws.1 The parties consented to magistrate
judge jurisdiction. Docket No. 22. GMD moved for summary judgment, Docket Nos. 39,
55, and Cruz opposed, Docket Nos. 43, 69.
For the reasons set forth below, GMD’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.”
1

Puerto Rico Law 100, P.R. LAWS ANN. tit. 29, § 146 (2009 & Supp. 2013)
(discrimination); Puerto Rico Law 17, P.R. LAWS ANN. tit. 29, § 171 et seq. (2009) (unlawful
withholding of payment); Puerto Rico Law 80, P.R. LAWS ANN. tit. 29, § 185a (2009 & Supp.
2013) (unjust dismissal); Puerto Rico Law 115, P.R. LAWS ANN. tit. 29, § 194(a) (2009)
(discriminatory retaliation); P.R. Civ. Code art. 1802, P.R. LAWS ANN. tit. 31, § 5141 (1990 &
Supp. 2013) (tort claim).

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Fed. R. Civ. P. 56(a). A dispute is “genuine” only if it “is one that could be resolved in
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 does not have the burden of proof at trial, it may
discharge this threshold responsibility in two ways: either 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

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Corp., 475 U.S. 574, 586 (1986), and may not rest upon “conclusory allegations,
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: defendants’ statement of uncontested facts, Docket No. 39-1
(“DSUF”); plaintiffs’ opposing statement of material facts, Docket No. 43-1 (“OSMF”);
and defendants’ reply statement of material facts, Docket No. 55-1 (“RSMF”).2
The Parties
GMD is a Puerto Rico corporation that provides year-round, around-the-clock
cargo and passenger services to airline carriers in the Commonwealth of Puerto Rico.
DSUF ¶¶ 1, 2. Cruz began working for GMD in 2007 as a ramp cargo agent and
subsequently transferred to its workshop department, where he worked as a mechanic.3
DSUF ¶¶ 3, 4. The workshop’s twelve mechanics repaired and maintained ground service
equipment and performed tasks commensurate with their level of expertise, experience,
and knowledge. DSUF ¶¶ 10, 11. Easier tasks, like painting and changing the oil and

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).
3
GMD contends Cruz was transferred to the workshop because of his good mechanic
skills, citing his deposition testimony. DSUF ¶ 4. The record does not support GMD’s statement.
Cruz correctly points out that during his deposition he did not know why he was transferred to the
workshop, but speculated it was because the supervisor liked the way he worked. Cruz Dep.
64:9–25, 65:1. The dispute is immaterial.
2

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filter on simple machinery, were assigned to “beginner” mechanics, while other
mechanics could service more complex machinery, like “k-loaders.” DSUF ¶ 3. Cruz was
a mechanic qualified to work on k-loaders. Id. ¶ 30(e).
Cruz’s First Request for Religious Accommodation
Cruz took vacation leave in July 2012 and returned on Friday, August 17.4 DSUF
¶¶ 12, 13. When he returned, Cruz noticed his usual weekly schedule had changed: rather
than working his usual Sunday shift from 7:00 a.m. to 4:00 p.m., or 8:00 a.m. to 5:00
p.m., he was scheduled to work from noon until 9:00 p.m.5 OSMF ¶ B. Cruz is a devout
Christian and member of his church, Iglesia Pentecostal Dios Restaurando el Alma y el
Corazón. Compl. ¶¶ 3.4–.5; Defs.’ Mot. Sum J. 12. His weekly church service at 7:30
p.m. conflicted with his new schedule, and so he informed one of his two immediate
supervisors, Jonathan Ruiz, who said he would look into it. DSUF ¶ 16; Defs.’ Mot. Sum.
J.12.
That same day, GMD’s vice president of operations, Raúl Colón, called the
workshop for an unrelated reason. Id. ¶ 17. Cruz answered the phone and informed him
that he could not work on Sunday because of his church commitment. Id. Colón replied
that he would authorize a schedule change if Cruz found someone to cover his shift.
DSUF ¶ 17; OSMF 9 ¶ 17. Cruz was unable to do so. Cruz Dep. 117:22–118:9.
Thereafter, Cruz and his two immediate supervisors met with Victor Betancourt to
address the scheduling conflict. DSUF ¶ 7. Betancourt was responsible for creating the
workshop’s weekly schedules, and best knew the expertise, experience, and certifications
of the workshop’s mechanics. DSUF ¶¶ 9, 18–19. He considered such qualifications to
ensure a qualified mechanic was scheduled to work anytime an airplane, particularly a

4

Unless otherwise stated, all dates in this opinion occurred in 2012.
The parties’ dispute over the exact reason why the schedule changed before Cruz
returned from vacation is immaterial. DSUF ¶ 8.
5

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wide-body aircraft, was scheduled for service, or when the service required full ground
support. Id.
During the meeting, Betancourt reminded Cruz that he signed an agreement in
which he committed to work anytime.6 OSMF ¶ D. Cruz responded that Christ was not in
his life when he signed the agreement, that he was following the “Word” now that he had
converted, and that GMD was making him choose between God and work. Id.; DSUF ¶
20.7 Cruz highlighted that since it was Friday, Betancourt had time to find a replacement
for Sunday. OSMF ¶ G. Betancourt replied that if he let Cruz take that Sunday off, then
he would have to let other employees take Sundays off to go drink beer to avoid
discrimination.8 OSMF ¶ F; Ruiz Decl. ¶¶ 6, 7. He also said GMD’s human resources
department must handle a religious accommodation request, refused to change the
schedule, and instructed Cruz to turn in his identification badge if he refused to work that
Sunday.9 OSMF ¶¶ G, H; DSUF ¶ 21. Cruz gave Betancourt his identification badge, but
he instructed Cruz to submit it to Karen Pizzarro, GMD’s human resources supervisor,
which Cruz did.10 OSMF ¶ H; DSUF ¶ 23.
Cruz called Pizarro on Monday, August 20.11 She requested his attendance at a
meeting on Wednesday, during which Cruz was told he would receive an insubordination

The parties’ dispute over whether Betancourt once attempted to have Cruz make a letter
in which he committed to work “24/7” is immaterial. OSMF ¶ O.
7
The parties’ dispute over the degree to which Cruz became upset during the meeting is
immaterial. Id.
8
GMD sought to strike Ruiz’s account of Betancourt’s statement. I determined the
statement may be considered. Docket No. 82.
9
The parties’ dispute over whether Betancourt told Cruz the request had to be made in
writing is immaterial because the parties ultimately agree that Betancourt acknowledged Cruz
was requesting a religious accommodation for that Sunday. DSUF ¶ 21, 22,
10
The parties’ dispute over Cruz’s emotional state during the meeting with Pizarro is
immaterial. Compare Pizarro Dep. 14:11–12, 15:3–4, with Cruz Dep. 130:11–12.
11
The parties dispute whether Cruz called Pizarro on his own initiative or per Pizarro’s
instructions. The record citations GMD provides do not support the proposition that Pizarro
instructed Cruz to call on Monday. See Cruz Dep. 130:2–6; Pizarro Dep. 14:11–12, 15:3–4, 9–10.
Cruz’s evidence supports the proposition that Pizarro gave him no such instructions. Cruz
Unsworn Decl. ¶¶ 5, 6.
6

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memo and asked whether he was willing to return to work.12 DSUF ¶ 24; OSMF ¶ J. Cruz
agreed to return to work on Friday of that week and never received an insubordination
memo. DSUF ¶ 25; OSMF ¶ J.
Cruz’s Second Request for Religious Accommodation
On September 4, Cruz submitted to Pizarro a written request for religious
accommodation to have all Sundays off.13 OSMF ¶ T. There is a genuine dispute as to
whether they contemporaneously discussed alternative work schedules. Compare Pizarro
Dep. 16:7–14, 19:1–4, with Cruz Dep. 259:2–22. Ten days later, Cruz submitted to
Pizarro a letter confirming his church membership and detailing the church’s services,
which were held on Tuesdays at 7:30 p.m., Thursdays at 7:30 p.m., and Sundays at 10:30
a.m. and 7:30 p.m. 14 OSMF ¶ T; Defs.’ Ex. 12. Cruz did not receive an immediate
response from Pizarro or GMD’s management about his religious accommodation
request. OSMF ¶ T. On October 28, Betancourt told Cruz that he was attending church a
sufficient amount of time since he could do so 75% of the time. DSUF ¶ 52. On October
31, Cruz filed a discrimination charge with the EEOC. DSUF ¶ 31; OSMF ¶ L. The next
day, he received a letter from GMD, dated October 23, denying his request to have
Sundays off. DSUF ¶ 33; OSMF ¶ U. Since the date of the letter and of its delivery did
not coincide, Pizarro prepared a cover letter explaining that GMD did not deliver the
letter when it was written because of an emergency. DSUF ¶ 33; OSMF ¶ U; Pls.’ Ex. 14.
Evaluation of Cruz’s Religious Accommodation Request

The parties dispute whether the meeting participants discussed Cruz’s alleged behavior
during the meeting on Friday, August 17. DSUF ¶ 25. This dispute is immaterial.
13
Colón first became aware of Cruz’s request to have all Sundays off as a religious
accommodation when Cruz submitted the September 4 written request. OSMF ¶ P.
14
The parties dispute whether Cruz submitted the letter on his own initiative or per
Pizarro’s instructions, and whether Colón asked Pizarro to ask Cruz to get a letter from his
church. DSUF ¶ 29. Because there is no dispute that Cruz’s request was considered a request for
religious accommodation, this dispute is immaterial.
12

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The letter denying Cruz’s request to have all Sundays off explained that GMD
operated around-the-clock throughout the year, that its customers expect the best service
available, and that not having employees available on certain days would cause GMD an
undue hardship. DSUF ¶ 32; Pls.’ Ex. 13
GMD had an equal opportunity employment policy in its employee manual
prohibiting discrimination and designating the human resources manager to handle
religious accommodation requests. DSUF ¶ 42. However, Colón was the only person at
GMD to evaluate Cruz’s religious accommodation request, which he discussed with
Betancourt. Id. ¶ 11. The parties dispute the considerations Colón evaluated.15 Id. ¶ 30.
According to his declaration, he considered the following:
First, Sunday is one of the busiest workdays for mechanics because more flights
are scheduled on that day, as more passengers travel on weekends. Id. ¶ 30(b). Cruz
responds that Sundays require low manpower hours, as indicated on the weekly
schedules. OSMF ¶ 30.
Second, GMD would incur substantial additional payroll expenses if it gave Cruz
all Sundays off. DSUF ¶ 30(o). The parties dispute whether any of the twelve mechanics
could perform Cruz’s duties. GMD alleges the mechanics have specialties, and that some
could not work on electrohydraulic equipment due to lack of training or certifications. Id.
¶¶ 30(c)–(e). Cruz had vast experience, knowledge, and preparation in electrohydraulic
equipment. Id. ¶ 30(e). Cruz said there were “not really” any specialties among
mechanics, but admitted he seemed to do a better job than others on the k-loaders. Cruz

Cruz’s opposing statement of material facts does not conform to Local Rule 56 (c)
because it does not specifically identify the paragraphs of GMD’s statement of undisputed
material facts it purports to controvert, while at the same time intertwining additional facts.
D.P.R. Civ. R. 56 (c), (e); see also Mariani-Colón, 511 F.3d at 219 (parties may not “improperly
shift the burden of organizing the evidence to the district court”). I have disregarded new facts in
this statement, and have deemed uncontroverted the facts in DSUF paragraph 30.
15

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Dep. 72:18–22. GMD admits that at least three mechanics had similar qualifications.
DSUF ¶ 30(f).16
K-loader mechanics are trained to provide support when full ground support is
needed or when servicing wide-body aircraft. Id. ¶ 30(g). When a k-loader fails because
of the hydraulic system, it cannot be moved from under the plane. Id. ¶ 30(h). K-loaders
are the most expensive, delicate equipment GMD owns, and constitute more than half the
value of GMD’s machinery. Id. ¶ 30(i). According to GMD, the k-loaders give it a
competitive advantage over other servicers in the San Juan Airport and the k-loaders are
an important factor airlines consider when choosing a servicer. Id. ¶ 30(j).
GMD’s Schedule Changes
Though GMD refused to accommodate Cruz’s request to have Sundays off, it
subsequently implemented schedule changes. GMD characterizes these schedule changes
as informal attempts to accommodate Cruz’s request to have Sundays off. Cruz
characterizes these schedule changes as adverse actions.
Mechanics Scheduled to Work on Sundays Rotated
GMD began rotating its qualified mechanics on Sundays. DSUF ¶¶ 34, 37. After
doing so, Cruz remained scheduled to work some Sundays but did not work every
Sunday. Id. Colón also instructed Betancourt to train other mechanics to work on
hydraulic equipment and k-loaders to broaden the pool of qualified mechanics. DSUF ¶
34. Cruz’s timecard indicates he was off work before 7:30 p.m. six Sundays after
returning from vacation. Id. ¶¶ 38, 39; Defs.’ Ex. 10. Moreover, between Cruz’s return
from vacation and his last day, his schedule allowed him to attend weekday worship
service, except on two occasions. Id. ¶ 47. When Cruz worked the Sunday shift that
began at noon or 1:00 p.m., he attended his church’s morning worship service but left
early to arrive to work on time. OSMF ¶ M.
16

Cruz alleges two other mechanics could have covered his Sunday shift. Cruz Unsworn
Decl. ¶ 13.

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“Wait for Call” Schedule
Because of recurring flight delays, particularly on Sundays, Betancourt
implemented a “wait for call” schedule that had been used in other departments at GMD.
DSUF ¶¶ 30(k), 56. GMD’s “wait for call” schedule functioned as on-call duty: when an
employee was on “wait for call,” he would work on a particular day only if called. Pls.’
Ex. 5, Medina Dep. 23:14–22. Cruz was the first to be placed on “wait for call” in the
workshop and was on such duty more times than the other two mechanics who were also
placed on call. DSUF ¶ 57. Cruz challenges the authenticity of the schedules, claiming he
was placed on “wait for call” on November 4 instead of October 28. Pls.’ Ex. 24. There is
a genuine dispute as to when Cruz was placed on “wait for call.”
Reduced Hours
Cruz was an hourly employee earning $8.35 per hour. DSUF ¶ 43. After he
requested religious accommodation, rather than working his forty-hour shift, Cruz
worked 40.08 hours from September 7 to September 12; 32.02 hours from September 21
to September 27; 35.36 hours from September 28 to October 4; 37.76 hours from October
12 to October 18; 31.90 hours from October 19 to October 25; 39.6 hours from October
26 to November 1; and 34.87 hours from November 2 to November 8. OSMF 26–27 ¶
43; Defs.’ Reply 3. The reduced hours resulted from Cruz not working or leaving early
some Sundays.17
Working Conditions
Cruz began having problems with coworkers after he returned from vacation.
OSMF ¶ O. His coworkers once commented that Cruz had the audacity to request the
shift he wanted after returning from vacation. DSUF ¶ 48 (“Que pantalones, tras de que
llega de vacaciones, tambien le van a dar el turno que le de le gana!”). Cruz also alleges a
security guard not employed by GMD joked that not even a “witch doctor” could change
Cruz’s calculation of his reduced hours is similar, and his surreply does not dispute
GMD’s calculations. Pls.’ Surreply 3 ¶ 7.
17

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his Sunday shift. DSUF ¶ 49. Cruz does not know how the security guard found out about
his request to change his Sunday shift. Id. Cruz further alleges a coworker refused to help
him one day, claiming that he lacked the qualifications to help Cruz perform the required
task. Id. ¶ 50. Moreover, after Cruz filed his EEOC charge, Colón tried to make Cruz feel
guilty by saying, “do you remember that you told me you were never going to fail me and
look what you come up with now, I am sorry to tell you that whoever messes with the
company, messes with me and unfortunately I cannot be your friend anymore.” Id. ¶ 51.
Finally, Pizarro told Cruz that GMD employed Seventh Day Adventists and those
employees worked on Saturdays because they needed to work. Id. ¶ 53.
Cruz’s Resignation
On December 28, Cruz gave two weeks’ notice of his resignation from GMD. Id.
¶ 41. Cruz claims he resigned because his schedule from noon to 9:00 p.m. prevented him
from attending his weekly church service. DSUF ¶ 46; OSMF ¶ O. On December 31,
Colón demanded Cruz leave immediately during the middle of his shift, which he did.
DSUF ¶ 41; OSMF ¶ N. Thereafter, Cruz did not immediately receive his final
liquidation paycheck. OSMF ¶ N; Cruz Unsworn Decl. ¶ 13. In March 2013, an EEOC
representative contacted GMD’s attorney and requested that it pay Cruz the owed funds.
OSMF ¶ N; Pls.’ Ex. 17. Cruz called GMD several times asking for his paycheck, but was
repeatedly told “it was not done yet.” Cruz Unsworn Decl. ¶ 13. Cruz finally received his
liquidation paycheck, dated March 2013, six months after his resignation. OSMF ¶ N;
Pls.’ Ex. 19; Cruz Unsworn Decl. ¶ 13.
DISCUSSION
Cruz claims religious discrimination, hostile work environment, retaliation, and
constructive discharge in violation of Title VII. GMD seeks summary judgment as to all
these claims.
I. Religious Discrimination

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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 . . . religion . . . .” 42 U.S.C. § 2000e-2(a)(1) (2012). The statute defines
religion as “all aspects of religious observance and practice, as well as belief, unless an
employer demonstrates he is unable to reasonably accommodate to an employee’s or
prospective employee’s religious observance or practice without undue hardship on the
conduct of the employer’s business.” Id. § 2000e(j). “Thus, in general terms, Title VII
requires employers . . . to accommodate, within reasonable limits, the bona fide religious
beliefs and practices of employees.” Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673
F.3d 1, 12 (1st Cir. 2012) (quoting EEOC v. Unión Independiente de la Autoridad de
Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir. 2002)).
To establish a prima facie religious discrimination claim based on a failure to
accommodate, “the plaintiff must show that ‘(1) a bona fide religious practice conflicts
with an employment requirement, (2) he or she brought the practice to the [employer’s]
attention, and (3) the religious practice was the basis for the adverse employment
decision.’” Unión Independiente, 279 F.3d at 55 (quoting EEOC v. United Parcel Serv.,
94 F.3d 314, 317 (7th Cir. 1996)). That showing made, the burden shifts to the employer
to show (1) that it reasonably accommodated the religious practice, or (2) that any
accommodation would result in undue hardship. Unión Independiente, 279 F.3d at 55.
GMD concedes Cruz is a devout Christian, that his work schedule conflicted with
the general worship at his church, and that he brought the conflict to GMD’s attention.
Defs.’ Mot. Summ. J. 12. These concessions establish the first two elements of Cruz’s
prima facie case, leaving for inquiry whether he suffered an adverse employment action.
A.

Adverse Employment Action

An adverse employment action “constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different

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responsibilities, or a decision causing a significant change in benefits.” Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998). In most cases, such an action inflicts “direct
economic harm.” Id. Whether an employment action is materially “adverse”—and
therefore actionable under Title VII—is gauged by an objective standard. Blackie v.
Maine, 75 F.3d 716, 725 (1st Cir. 1996). “Work places are rarely idyllic retreats, and the
mere fact that an employee is displeased by an employer's act or omission does not
elevate that act or omission to the level of a materially adverse employment action.”
Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002).
Cruz argues he suffered three adverse employment actions: (1) his hours were
reduced; (2) Betancourt instructed him to turn in his identification badge if he refused to
work on Sunday, August 19; and (3) GMD placed him on on-call duty some Sundays.18
Pls.’ Opp’n Summ. J. 9–10.
1.

Reduced Hours

The Supreme Court has held that “[t]he provision of unpaid leave eliminates the
conflict between employment requirements and religious practices by allowing the
individual to observe fully religious holy days and requires him only to give up
compensation for a day that he did not in fact work.” Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60, 70 (1986). Generally speaking, “[t]he direct effect of [unpaid leave] is
merely a loss of income for the period the employee is not at work; such an exclusion has
no direct effect upon either employment opportunities or job status.” Id. (quoting
Nashville Gas Co. v. Satty, 434 U.S. 136, 145 (1977)). Accordingly, the Sixth Circuit held
that an employee suffered no adverse employment action where he sought Saturdays off

18

Cruz does not allege for the purposes of this claim that he was terminated on December
31, and that such a termination constitutes an adverse action. Pls.’ Opp’n Summ. J. 9–10. Thus,
the adverse actions discussed here are those for which Cruz develops an argument in his
opposition. See e.g., Tejada-Batista v. Morales, 424 F.3d 97, 103 (1st Cir. 2005) (stressing that
“[a]n argument not seriously developed in the opening brief” is lost).

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to observe his Sabbath and the employer “forced” him to take those days off without pay.
Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007).
Cruz alleges his hours were reduced because he worked less than his usual forty
hours some weeks after he requested all Sundays off, which is undisputed. Pls.’ Opp’n
Summ. J. 9–10; Defs.’ Reply 3. Though Cruz does not dispute his hours were reduced
because he did not attend work, was late, or left early some Sundays, he nonetheless
maintains that the mere fact that he worked fewer hours constitutes an adverse
employment action. Defs.’ Reply 3; Pls.’ Surreply 3 ¶ 7. Because GMD claims it
attempted to give Cruz some Sundays off after his request to have all Sundays off, he
cannot reasonably argue that this attempted accommodation transforms into an adverse
employment action. See Philbrook, 479 U.S. at 70. GMD chose to provide “unpaid leave”
to allow Cruz “to observe fully religious [his] holy days and required [him] only to give
up compensation for the [the days] he did not in fact work,” and thus Cruz suffered no
adverse employment action. See id.
2.

Instruction to Submit Identification Badge

Cruz next argues Betancourt’s “request that he turn in his [identification badge] is
by itself an adverse employment action.” Pls.’ Opp’n Summ. J. 10; Pls.’ Surreply 2. Cruz
fails to develop this argument, cite authority supporting it, or otherwise explain how this
action “constitutes a significant change in employment status . . . or a decision causing a
significant change in benefits.” See Ellerth, 524 U.S. at 761; see also Tejada-Batista, 424
F.3d at 103 (“An argument not seriously developed in the opening brief” is lost); Grigous
v. Gonzáles, 460 F.3d 156, 163 (1st Cir. 2006); Conto v. Concord Hosp., Inc., 265 F.3d
79, 81–82 (1st Cir. 2001). Parties must spell out their issues clearly, highlighting the
relevant facts and analyzing on-point authority, as judges are not mind readers. See e.g.,
United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997). Thus, Cruz has not

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carried his burden in showing Betancourt’s request that he submit his identification badge
is an adverse employment action.
3.

“Wait for Call” Schedule

Courts have held that placing an employee on call does not constitute an adverse
employment action. Vives v. Children’s Hosp., Inc., No. CIV.A. 11-2080, 2013 WL
5607215, at *5 (E.D. La. Oct. 14, 2013); Vinson v. Dep’t of Corr. Fla., 672 F. Supp. 2d
1247, 1261 (N.D. Fla. 2009). In Vives, the court held that a doctor suffered no adverse
employment action as a matter of law when she was scheduled to be on call during her
days off, but was not actually called to work. Vives, 2013 WL 5607215, at *5. The Vives
court reasoned the on-call schedule did not affect the employee’s job duties,
compensation, or benefits because its only effect was to keep the employee on her “tip
toes” in case she was called to work. Id. at 4–5.
Cruz argues the “wait for call” schedule was a punishment, and that it kept an
employee from making commitments for the day he is scheduled on call. Pls.’ Ex. 5,
Medina Dep. 6:4–5. Cruz cites no authority holding that placing an employee on call is
an adverse employment action. As in Vives, where the only effect of being placed on call
was to keep the employee on her “tip toes” in case she was called to work, GMD’s “wait
for call” schedule as implemented here is not an adverse employment action. See Vives,
2013 WL 5607215, at *5. Because Cruz’s failure to show an adverse action prevents him
from establishing a prima facie case, summary judgment in GMD’s favor is granted on
this claim.
B.

Reasonable Accommodation

Even if Cruz had met his prima facie case, summary judgment as to this claim is
still appropriate because GMD accommodated his initial religious accommodation
request. DSUF ¶ 17; OSMF 9 ¶ 17; Cruz Dep. 117:22–118:9. The Supreme Court has
held that once an employer has offered one reasonable accommodation, “the statutory

Cruz Rojas v. GMD Airlines Services, Inc., Civil No. 13-1578 (BJM)

15

inquiry is at an end.” Philbrook, 479 U.S. at 68. The employer is not required to “choose
any particular reasonable accommodation,” as such a requirement “would give the
employee every incentive to hold out for the most beneficial accommodation, despite the
fact that an employer offers a reasonable resolution to the conflict.” Id. at 68–69. Yet,
“[c]ases involving reasonable accommodation turn heavily upon their facts and an
appraisal of the reasonableness of the parties’ behavior.” Sánchez-Rodríguez, 673 F.3d at
12. And when determining whether an employer provided a reasonable accommodation,
courts will consider the “totality of the circumstances” and determine whether the
“combination” of accommodations the employer attempted was reasonable. Id.
Several circuit courts have held that an employer has reasonably accommodated
an employee’s request for religious accommodation when it allows the employee to
arrange shift swaps with other employees. See e.g., Sturgill v. United Parcel Serv., Inc,
512 F.3d 1024, 1032 (8th Cir. 2008) (employer reasonably accommodated employee’s
request for religious accommodation when it allowed the employee to swap shifts with
another employee); Beadle v. Hillsborough Cnty. Sheriff’s Dep’t, 29 F.3d 589, 592–93
(11th Cir. 1994) (same); 29 C.F.R. § 1605.2(d)(1)(i) (2015) (shift swaps one of various
reasonable accommodations); see also Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141,
144–45 (5th Cir. 1982) (reasonable accommodation where employer allowed a rotation
schedule so that some employees did not have to work on their holy days).
But several circuit courts have held that such an accommodation is insufficient
when the employer is confronted with two religious objections and the shift swap only
addresses one, or when the employer has interfered with the employee’s attempts to
secure a shift swap. See Baker v. The Home Depot, 445 F.3d 541, 547 (2d Cir. 2006)
(employer did not reasonably accommodate employee where employee’s religion
required total abstention from work on Sundays and employer only allowed employee to
swap his night shift to the morning shift); Smith v. Pyro Mining Co., 872 F.2d 1081, 1088
(6th Cir. 1987) (employer reasonably accommodated employee by allowing shift swaps

Cruz Rojas v. GMD Airlines Services, Inc., Civil No. 13-1578 (BJM)

16

so long as employee had no religious constraints against arranging the shift swap);
McGuire v. Gen. Motors Corp., 956 F.2d 607, 610 (6th Cir. 1992) (summary judgment
inappropriate where employer allowed employee to swap shifts but possibly
compromised the willingness of other employees to do so).
This court has held that an employer satisfies its duty to reasonably accommodate
an employee’s request to be exempt from working on his Sabbath when it allows him or
her to arrange voluntary shift swaps. Sánchez-Rodríguez v. AT&T Wireless, 718 F. Supp.
2d 31, 42–43 (D.P.R. 2010), aff’d on other grounds, 673 F.3d 1, 12–13 (whether allowing
employee to swap shifts by itself satisfied duty to accommodate not decided where the
combination of a series of attempts did so).
On August 17, Cruz became aware of the conflict between his weekly church
service and his new schedule. He informed Colón of the conflict, and Colón said he
authorized a schedule change if Cruz found a replacement to work for him on Sunday.
Cruz was unable to do so. Because GMD allowed Cruz to swap his shift with another
employee, it offered a reasonable accommodation and thus satisfied its duty to present at
least one reasonable accommodation. Sánchez-Rodríguez, 718 F. Supp. 2d at 42–43; see
also Philbrook, 479 U.S. at 68.
In addition, because Cruz does not allege his religious beliefs prohibited him from
seeking the assistance of others to cover his shift, or that GMD compromised his ability
to secure a shift swap, the circuit court decisions finding shift swaps insufficient under
certain circumstances are inapplicable here. See Baker, 445 F.3d at 547 (employer’s
purported accommodation only addressed one of two conflicts employee presented);
Smith, 872 F.2d at 1088 (employee’s religion prohibited seeking assistance from
coworkers to cover shift); McGuire, 956 F.2d at 610 (insufficient accommodation where
employer possibly compromised employee’s ability to arrange shift swap). Thus, even if
Cruz had shown a prima facie religious discrimination case for his August 17 religious
accommodation request, GMD satisfied its duty to accommodate.

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17

Cruz also argues GMD “did nothing” about his September 4 written request to
have all Sundays off. Pls.’ Opp’n Summ. J. 11. GMD admits it denied Cruz’s request to
have all Sundays off, but claims it implemented a series of schedule changes to
accommodate Cruz: it rotated the mechanics scheduled to work on Sundays, gave Cruz
some Sundays off, and began training other mechanics to perform Cruz’s shifts. It is
undisputed that Cruz was not required to work every Sunday after his written request for
religions accommodation. As in Sánchez-Rodríguez, where the First Circuit held the
employer reasonably accommodated the employee when it denied the employee’s
requested accommodation but attempted a combination of alternative accommodations,
GMD reasonably accommodated Cruz by implementing schedule changes that gave him
some Sundays off. See Sánchez-Rodríguez, 673 F.3d at 12–13.
Additionally, because GMD had previously allowed Cruz to swap shifts, and did
not place any restrictions on using this accommodation in the future, Cruz could have
sought this accommodation again. 19 See Morrissette-Brown v. Mobile Infirmary Med.
Ctr., 506 F.3d 1317, 1323–24 (11th Cir. 2007) (employer satisfied duty of religious
accommodation by allowing employee to arrange shift swaps and placing no restrictions
or impediments on the employee’s ability to seek a replacement); see also Brener, 671
F.2d at 145–46 (“Although the statutory burden to accommodate rests with the employer,
the employee has a correlative duty to make a good faith attempt to satisfy his needs
through means offered by the employer. A reasonable accommodation need not be on the
employee's terms only.”). Thus, the combination of GMD’s attempts to reasonably
accommodate Cruz satisfied its duty to do so.

Cruz’s deposition testimony indicates he informed Colón that he could not work on
Sunday, August 17, but also that “he could not attend that schedule [noon to 9:00 p.m.] . . . .
because he had a commitment in the church.” Cruz Dep. 117:6–23.
19

Cruz Rojas v. GMD Airlines Services, Inc., Civil No. 13-1578 (BJM)

C.

18

Undue Hardship

Because GMD demonstrated it reasonably accommodated Cruz, it need not––but
nonetheless did––demonstrate that giving Cruz all Sundays off would cause its business
undue hardship. Philbrook, 479 U.S. at 68.
“An accommodation constitutes an ‘undue hardship’ if it would impose more than
a de minimis cost on the employer.” Cloutier v. Costco Wholesale Corp., 390 F.3d 126,
134–35 (1st Cir. 2004) (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84
(1977)). Hardship includes “both . . . economic costs, such as lost business or having to
hire additional employees to accommodate a Sabbath observer, and . . . non-economic
costs, such as compromising the integrity of a seniority system.” Cloutier, 390 F.3d at
134. Further, in Hardison, the Supreme Court reasoned that “[i]t would be anomalous to
conclude that by ‘reasonable accommodation’ Congress meant that an employer must
deny the shift and job preference of some employees . . . in order to accommodate or
prefer the religious needs of others, and . . . conclude[d] that Title VII does not require an
employer to go that far.” 432 U.S. at 81.
This court has joined others in recognizing that compromising a scheduling
system constitutes an undue hardship. Sánchez-Rodríguez, 728 F. Supp. 2d at 43–44;
Weber v. Roadway Exp., Inc., 199 F.3d 270, 274 (5th Cir. 2000) (“[t]he mere possibility of
an adverse impact on co-workers as a result of ‘skipping over’ [an employee in a
scheduling system] is sufficient to constitute an undue hardship”); Lee v. ABF Freight
Sys., Inc., 22 F.3d 1019, 1022–24 (10th Cir. 1994) (employer not required to assign
another employee to perform plaintiff’s duties); Chrysler Corp. v. Mann, 561 F.2d 1282
(8th Cir. 1977) (“[e]mployer should [not] have to adjust its entire work schedule to
accommodate individual religious preferences and practices”).
GMD operates around-the-clock throughout the year, and requires its employees
to be available to work anytime during its operations. Cruz could not find a replacement
for his Sunday shift, and argues GMD could have scheduled other employees to work his

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19

shift. The parties extensively dispute the exact qualifications, experience, and expertise
Cruz had relative to other GMD employees. But that type of inquiry places a higher
burden on GMD than Title VII requires. The parties agree the mechanics at the workshop
have different levels of experience, and that Betancourt made the schedule by considering
the qualifications of each employee. GMD would suffer undue hardship if it were
required to change its scheduling system because of the difficulty of finding a
replacement employee of comparable skill, experience, and qualifications; because other
employees would be required to work more often during the weekend; and because GMD
would incur substantial payroll expenses to give Cruz all Sundays off. See SánchezRodríguez, 728 F. Supp. 2d at 43–44; Weber, 199 F.3d at 274. That GMD would suffer
undue hardship also dictates summary judgment on this claim.
II.

Hostile Work Environment
Cruz next argues he endured a hostile work environment at GMD. To establish a

hostile work environment claim based on religion under Title VII, the plaintiff must show
“that: (1) she is a member of a protected class; (2) she was subject to uninvited
harassment; (3) the offending conduct was because of her religion; (4) the harassment
was severe and pervasive; (5) the offending conduct was both objectively and
subjectively offensive and (where employer liability is sought); (6) there was a basis for
such liability.” Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 189 (1st Cir. 2003).
Cruz alleges he endured harassment, but fails to argue the other elements of a religious
harassment claim. Pls.’ Opp’n Summ. J. 16–17. GMD argues that even if the incidents
Cruz alleges occurred, they are insufficiently severe or pervasive to establish a claim
under Title VII.
A.

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

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20

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Courts look at 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.
Cruz claims he was harassed because (1) coworkers in the workshop commented
that he had the audacity to request the shift he wanted after returning from vacation; (2) a
security guard not employed by GMD joked that not even a “witch doctor” could change
his Sunday shift; (3) a coworker once refused to help him, claiming he did not have the
qualifications; (4) Betancourt told Cruz that he could not give him Sundays off because
doing so would require him to give other employees Sundays off to go drink beer to
avoid discriminating against them; (5) Betancourt said Cruz could attend 75% of the
worship times at his church and that was sufficient; and (6) Pizarro commented that
Seventh Day Adventists working for GMD worked on Saturdays because they needed to
work.
These comments were insufficiently severe or pervasive, either in isolation or
cumulatively, to alter Cruz’s terms or conditions of employment. See Meritor, 477 U.S. at
67. The comments were not physical threats, were isolated incidents by different
individuals, and consist of offhand comments, a joke, and teasing. Cruz admits, for

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21

example, that the statement the security guard made was a joke. 20 DSUF ¶ 49; see
Faragher, 524 U.S. at 787–88. Moreover, the statement by Cruz’s coworkers was mere
teasing because they seemed displeased that Cruz was asking them to cover his Sunday
shift after returning from vacation. Pizarro’s and Betancourt’s statements were offhand
remarks that were insufficiently severe to change a “term or condition of [Cruz’s]
employment.” See id. Thus, Cruz cannot establish a prima facie claim of religious
harassment because the incidents he complains of were insufficiently severe or pervasive,
and because he fails to argue all the elements necessary for this claim.
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) (2012). 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. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67 (2006). 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 adverse employment
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 burden returns to plaintiff to show the
defendant’s reason is a pretext for unlawful retaliation. Id.
Cruz does not allege the “witch doctor” comment was in some way an innuendo or
reference to his religious beliefs.
20

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22

GMD concedes Cruz engaged in protected conduct when he filed a discrimination
charge with the EEOC on October 31. See e.g., Mariani-Colón v. Dep’t of Homeland Sec.
ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007) (plaintiff engaged in protected conduct
when he contacted the EEOC). However, GMD argues Cruz did not suffer an adverse
action, and that he cannot establish a causal link between his protected conduct and the
adverse actions he alleges.
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 v.
Town of Grafton, 515 F.3d 39, 54 (1st Cir. 2008) (“[C]onduct need not relate to the terms
or conditions of employment to give rise to a retaliation claim.”). 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 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)).

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23

Cruz argues he suffered various adverse actions. First, GMD warned him in a
“nonspecific manner” about being tardy and absent. His argument lacks merit. Warnings
do not rise to the level of materially adverse actions if they result in no tangible
consequences, and are “the kind of de minimis employment hand-slap which falls
beneath the radar screen of Title VII.” Wyse v. Summers, 100 F. Supp. 2d 69, 77 (D. Mass.
2000); Castro-Medina v. Procter & Gamble Commercial Co., 565 F. Supp. 2d 343, 383
n.21 (D.P.R. 2008).
Second, GMD denied his request for religious accommodation. The First Circuit
has held that “an employer could offer an ‘accommodation’ that is so unreasonable or unworkable, or such an insult to an employee’s religious beliefs, that a reasonable person
would be dissuaded from pursuing a charge of discrimination.” Sánchez-Rodríguez, 673
F.3d at 15 (employee did not establish retaliatory adverse action where employer denied
employee’s

requested

accommodation

but

attempted

a

series

of

alternative

accommodations). In contrast, an employee’s mere dissatisfaction with the extent of the
accommodation provided is insufficient. Carmon-Rivera v. P.R., 464 F.3d 14, 20 (1st Cir.
2006). As discussed above, though GMD denied Cruz’s request to have Sundays off, it
allowed him to swap shifts with other employees and later attempted a series of
accommodations to give Cruz some Sundays off. See Carmon-Rivera, 464 F.3d at 20
(employer “made some attempt to accommodate [employee’s] needs even though the
results were not to a level she deemed satisfactory” and “there is little indication that the
actions of the defendants would have the chilling effect of deterring others from filing
their own requests for a needed accommodation”). As in Sánchez-Rodríguez, this is not a
case where a reasonable person would be dissuaded from filing a discrimination charge
because GMD allowed Cruz to swap shifts and made other attempts to accommodate
him. See Sánchez-Rodríguez, 673 F.3d at 15.
Third, the vice president of operations and the person responsible for evaluating
Cruz’s accommodation request made a comment about not being his friend anymore after

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24

he filed the EEOC charge. DSUF ¶ 51; Defs.’ Mot. Summ. J. 22. Though the comment
may be relevant to establishing a causal connection, it is not a materially adverse action
because there were no tangible consequences within or outside the workplace that would
dissuade a reasonable person from engaging in protected conduct. See Summers, 100 F.
Supp. 2d at 77 (supervisor’s comment that employee seek counseling insufficient to
establish adverse action).
Fourth, that Cruz was once told to leave two hours before his shift ended is not a
materially adverse action because it did not amount to a significant change in benefits and
would not dissuade a reasonable worker from engaging in protected conduct. See Cham v.
Station Operators, 685 F.3d 87, 94 (1st Cir. 2012) (no adverse employment action where
employer scheduled at-will employee to work 24 hours on one particular week rather
than the employee’s usual 40 hours).
Fifth, Cruz was placed on “wait for call” several times, but cites no authority
explaining why this is a materially adverse action in the retaliation context. See Vinson v.
Dep’t of Corr. Fla., 672 F. Supp. 2d 1247, 1261 (N.D. Fla. 2009). The Vinson court held
an employee suffered no adverse employment action where the employer refused to
remove the employee from on-call duty and the employee was not actually called to work
while on call. Id. Cruz was similarly placed on call, but does not allege he was ever called
to work. Even if he had, Cruz does not argue the “wait for call” schedule had any effect
other than possibly compromising an employee’s other commitments for that day. The
“wait for call” schedule would thus not dissuade a reasonable employee from engaging in
protected conduct. Moreover, GMD claims the “wait for call” schedule was implemented
because some flights were being delayed. DSUF ¶ 58. Cruz conclusorily denies GMD’s
proffered reason, but does not present evidence showing this legitimate business reason is
a pretext for retaliation. See Douglas, 474 F.3d at 14.
Sixth, Cruz alleges he was terminated from GMD’s employment when Colón
demanded he leave on December 31, three days after Cruz gave two weeks’ notice of his

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25

resignation. OSMF ¶ N. GMD claims it did not terminate Cruz because he had already
resigned. The First Circuit has held that once an employee has tendered his resignation
claiming constructive discharge and the employer later ends the employment relationship,
the employee cannot transform an otherwise voluntary resignation into a termination. See
Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 53 (1st Cir. 2008) (employee could
not claim employer “terminated” him when he voluntarily resigned after subjectively, but
erroneously, believing he was being constructively discharged). As discussed below, the
conditions Cruz endured did not lead to a constructive discharge. Because Cruz
voluntarily resigned, he suffered no adverse action.
Finally, GMD did not deliver Cruz’s final liquidation paycheck until six months
after his resignation. 21 Pls.’ Opp’n Summ. J. 18. The Supreme Court has held that an
employee may bring suit “against his former employer for postemployment actions
allegedly taken in retaliation” for filing an EEOC charge. Robinson v. Shell Oil Co., 519
U.S. 337, 345–46 (1997). Withholding a paycheck is an adverse employment action
under Title VII’s substantive discrimination provision because it inflicts direct economic
harm on the employee. Jin v. Metro Life Ins. Co., 310 F.3d 84, 99–100 (2d Cir. 2002)
(adverse employment action where employer withheld employee’s paycheck); LovejoyWilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223–24 (2d Cir. 2001) (employee
established adverse employment action for ADA retaliation claim by showing she was
suspended without pay for one week, even though she was later reimbursed). But see
Siler v. Hancock Cnty. Bd. of Educ., 510 F. Supp. 2d 1362, 1381 (M.D. Ga. 2007) (fourday “delay had no appreciable effect on [employee], and, more importantly, the delay
would not have dissuaded a reasonable worker from making or supporting a charge of
discrimination”). In Burlington Northern, the Court held a reasonable person in the
employee’s position could be deterred from engaging in protected conduct where the
GMD moved to exclude Cruz’s unsworn declaration. I determined it may be
considered. Docket No. 82.
21

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26

employee was suspended without pay for 37 days. 548 U.S. at 72–73. Though the
employee was awarded backpay, the Court reasoned that “many reasonable employees
would find a month without a paycheck to be a serious hardship.” Id.
Cruz alleges GMD did not deliver his final paycheck until six months after he
resigned. OSMF ¶ N; Cruz Unsworn Decl. ¶ 13. Cruz called GMD several times
attempting to get his paycheck, but repeatedly was told it was not ready. Cruz Unsworn
Decl. ¶ 13. GMD admits that in March 2013 an EEOC representative asked GMD’s
attorney to send Cruz’s check. Cruz received a check dated March 2013, but declares
under penalty of perjury that he did not receive it at that time. Cruz Unsworn Decl. ¶ 13;
Pls.’ Ex. 19.
Because Cruz was deprived of his final liquidation paycheck for six months, he
suffered “direct economic harm.” See Jin, 310 F.3d at 99–100. And the six-month delay
here is more serious than the four-day delay in Siler. 510 F. Supp. 2d at 1381. Because
“many reasonable employees would find a month without a paycheck to be a serious
hardship,” the six-month delay here resulted in the type of hardship that might deter a
reasonable employee from engaging in protected conduct. See Burlington N., 548 U.S. at
72; Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (“[I]t needs no argument
to show that fear of economic retaliation might often operate to induce aggrieved
employees quietly to accept substandard conditions”). Cruz therefore established that he
suffered a materially adverse action.
B.

Causal Link

Cruz argues there is a causal link between the adverse actions he alleges and his
filing of the EEOC charge. 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 v. Abbot Labs., 520 F. Supp. 2d 279, 292

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27

(D.P.R. 2007). A plaintiff may establish a prima facie case of causation by showing “very
close” temporal proximity. Calero-Cerezo, 355 F.3d at 25–26 (temporal proximity of
“roughly one month” is “very close”); Sánchez-Rodríguez, 673 F.3d at 15 (temporal
proximity of three months sufficient). The prima facie burden is “not an onerous one.” Id.
at 26.
Cruz argues GMD retaliated against him “immediately” after he filed his EEOC
complaint on October 31. Pl’s. Opp’n Summ. J. 18. He alleges the adverse actions
occurred within 30 days after filing his EEOC charge. Id. As discussed above, the alleged
termination, the reduced working hours, the “wait for call” schedule, Colón’s statement,
and GMD’s denial of Cruz’s request for accommodation did not constitute materially
adverse actions. Thus, the relevant time period here was not 30 days.
With respect to GMD’s withholding of Cruz’s final paycheck, the temporal
proximity was approximately two months because he filed his EEOC charge on October
31 and his last day at GMD was December 31. As in Sánchez-Rodríguez, where the
temporal proximity of approximately three months was “ very close” and sufficient to
establish plaintiff’s prima facie case of causation, the two-month temporal proximity here
is sufficient. 673 F.3d at 15. Moreover, after he filed the EEOC charge, GMD’s vice
president of operations and the person responsible for evaluating his accommodation
request told Cruz that whoever messes with his company messes with him, and therefore
Cruz was no longer his friend. See Del Pilar Salgado, 520 F. Supp. 2d at 292; see also
Young-Losee v. Graphic Packaging Intern., Inc., 631 F.3d 909, 912 (8th Cir. 2011)
(plaintiff presented evidence of causal relationship where her supervisor “wadded up her
complaint, called it ‘total bullshit,’ threw it in the garbage can, told her to leave, and said
he never wanted to see her again”). Because a reasonable jury could infer causation from
the “very close” temporal proximity and Colón’s statement, Cruz has established a prima
facie case of retaliation.

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C.

28

Legitimate, Nonretaliatory Reason

The burden now shifts to GMD to provide a legitimate, nonretaliatory reason for
the withheld paycheck. See Douglas, 474 F.3d at 14. GMD provides no such response in
its reply, and its reply statement of facts conclusorily denies the allegation and vaguely
states that the “address provided by the EEOC investigator is different from the one in
Mr. Cruz’s personnel file.” DRSF 9 ¶ 28. Even if this statement is true, GMD does not
allege that it previously sent Cruz a check to a different address or otherwise explain the
reason for the delay. Its failure to do so prevents it from rebutting Cruz’s prima facie
case. Thus, summary judgment is denied as to Cruz’s retaliation claim arising from the
withheld paycheck.
IV.

Constructive Discharge
Cruz also argues GMD constructively discharged him by maintaining a harassing,

hostile work environment that caused him to resign on December 28. Pls.’ Opp’n. 18–19.
Constructive discharge “usually refers to harassment so severe and oppressive that
staying on the job while seeking redress—the rule save in exceptional cases—is
intolerable.” Lee-Crespo v. Schering-Plough del Caribe Inc., 354 F.3d 34, 45 (1st Cir.
2003). To establish constructive discharge, a plaintiff must “show that [his] working
conditions were so difficult or unpleasant that a reasonable person in [his] shoes would
have felt compelled to resign.” Id. (quoting Marrero, 304 F.3d at 28). “The standard is an
objective one; an employee's subjective perceptions do not govern.” Id. “A plaintiff
seeking to withstand summary judgment must point to evidence in the record showing
that [intolerable working conditions] existed.” Gerald v. Univ. of P.R., 707 F.3d 7, 25 (1st
Cir. 2013).
Because I determined that Cruz’s hostile work environment claim lacks merit, his
constructive discharge claim also fails. Hernandez-Torres v. Intercontinental Trading,
Inc., 158 F.3d 43, 47–48 (1st Cir. 1998); see also Schwapp v. Town of Avon, 118 F.3d 106,

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112 (2d Cir. 1997) (constructive discharge claim “rises or falls on the determination of
the hostile work environment facts”). Moreover, because GMD withheld Cruz’s paycheck
only after he left GMD, he cannot rely on this incident to establish his constructive
discharge claim. Summary judgment is thus granted in GMD’s favor on the constructive
discharge claim.
V.

Supplemental Claims
Cruz also alleges state law claims for withholding of payment under Law 17,

unjust dismissal under Law 80, religious discrimination under Law 100, retaliation under
Law 115, and tort liability under Civil Code Article 1802.
A. Law 100
Law 100 prohibits discrimination on account of several protected characteristics,
including “religious ideology.” P.R. LAWS ANN. tit. 29, § 146 (2009 & Supp. 2013). GMD
contends Law 100 and Title VII discrimination claims based on religion are
conterminous, which Cruz does not dispute. Defs.’ Mot. Summ. J. 24–25. Pls.’ Opp’n
Summ. J. 20. Because Cruz’s Title VII religious discrimination claim has been dismissed
with prejudice, his Law 100 claim against all defendants is also dismissed with prejudice.
B. 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) (2009).
GMD again contends Law 115 is coterminous with Title VII’s antiretaliation provision,
which Cruz does not dispute. Defs.’ Mot. Summ. J. 24–25. Pls.’ Opp’n Summ. J. 20.
Because I determined Cruz established a prima facie retaliation case, summary judgment
is denied on the withheld check retaliation claim.
C. Law 80
Law 80 requires “employers to compensate employees who are discharged
without just cause.” Baltodano v. Merck, Sharp & Dohme (I.A.) Corp., 637 F.3d 38, 41–

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42 (1st Cir. 2011). It requires employees to first show they were “discharged.” Id. at 42.
Because Cruz voluntarily resigned and was not discharged, his Law 80 claim is dismissed
with prejudice.
D. Law 17
Law 17 generally requires employers to timely pay wages owed to employees.
See P.R. LAWS ANN. tit. 29, § 171 et seq. (2009). Cruz alleges GMD violated Law 17
when it withheld his final liquidation paycheck. Compl. ¶¶ 11.1–.3; Pls.’ Opp’n Summ. J.
20. GMD responds that this “this state law claim is completely unrelated to the rest of the
causes of action.” Defs.’ Mot. Summ. J. 25. But because this state law claim and Cruz’s
retaliation case arise from the same nucleus of operative facts, namely, the withholding of
his final liquidation paycheck, I will exercise supplemental jurisdiction over it. 28 U.S.C.
§ 1367(a).
E. Article 1802
Cruz alleges tort liability under Article 1802. P.R. Civ. Code art. 1802, P.R. LAWS
ANN. tit. 31, § 5141 (1990 & Supp. 2013). This claim is not cognizable because it arises
from the same facts as other claims I already dismissed. Article 1802 is only
supplementary to special legislation: when a specific labor law covers the conduct for
which a plaintiff seeks damages, he is barred from using that same conduct as the basis
for a claim under Article 1802. Rivera-Melendez v. Pfizer Pharm., Inc., 747 F. Supp. 2d
336, 339 (D.P.R. 2010); Medina v. Adecco, 561 F. Supp. 2d 162, 175–76 (D.P.R. 2008).
For his Article 1802 claim, Cruz alleges “[d]efendants’ actions worsened [his]
employment conditions to the extent that illegally forced him to terminate his
employment with GMD.” Compl. ¶ 10.3. This alleged tortious conduct is the same
conduct alleged in Cruz’s Title VII hostile work environment and constructive discharge
claims, Law 80 claim, and Law 100 claim. Because these claims were dismissed, and
Cruz fails to provide any independent basis for his Article 1802 claim, it is also dismissed
with prejudice.

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CONCLUSION
For the foregoing reasons, the motion is GRANTED IN PART AND DENIED
IN PART. Summary Judgment is DENIED as to Cruz’s Title VII retaliation, Law 115,
and Law 17 claims. Cruz’s Title VII religious discrimination, hostile work environment,
and constructive discharge claims; Law 80 claim; Law 100 claim; and Article 1802 claim
are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 9th day of September 2015.

S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge