Mendez-Vazquez v. One, Inc. d/b/a The Wings Family Restaurant

Filing 73

OPINION and ORDER granting in part and denying in part 67 motion for summary judgment. Signed by US Magistrate Judge Marcos E. Lopez on 9/11/2017. (JMB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FRANCES MÉNDEZ VÁZQUEZ
Plaintiff,
v.

CIVIL NO.: 14-1394 (MEL)

ONE INC., D/B/A THE WINGS FAMILY
RESTAURANT,
Defendant.

OPINION AND ORDER
On May 14, 2014, Frances Méndez Vázquez (herafter “Plaintiff”) filed the complaint in
this case, alleging sexual harassment and retaliation by One Inc., D/B/A The Wings Family
Restaurant (hereafter “the Restaurant” or “the Defendant”) pursuant to Title VII of the Civil Rights
Act of 1964, as amended, and the United States Constitution. Plaintiff also brings supplemental
claims against the Defendant pursuant to the Constitution of the Commonwealth of Puerto Rico
and the Puerto Rico Statutes known as Law 100 of June 30, 1959, as amended, 29 L.P.R.A. § 146
et seq. (“Law 100”); Law 17 of April 22, 1988, 29 L.P.R.A. § 155 et seq. (“Law 17”); Law 69 of
July 6, 1985, 29 L.P.R.A., § 1321, et seq. (“Law 69”); Law No. 45 of April 18 1935, 11 L.P.R.A.
§ 7 et seq. (“Law 45”), and Law 80 of May 30th, 1976, 29 L.P.R.A. § 185a (“Law 80”). On April
7, 2017, the Defendant filed the pending motion for summary judgment. ECF No. 67. Plaintiff
filed a response in opposition. ECF No. 70.1

Defendant’s initial motion for summary judgment was filed on April 15, 2016. ECF No. 36. Plaintiff opposed that
motion (ECF No. 42) and Defendant filed a reply to Plaintiff’s opposition (ECF No. 48). The original motion for
summary judgment was subsequently denied without prejudice. ECF No. 66. The Defendant refiled the motion for
summary judgment (ECF No. 67), which was opposed by Plaintiff (ECF No. 70). No reply has been filed with respect
to the pending response in opposition. Accordingly, no reply has been considered for this opinion and order.
Nevertheless, even if the Court were to rely on the Defendant’s reply and objections at docket number 48, the
conclusions in this opinion and order would be the same.
1

I.

SUMMARY JUDGMENT STANDARD
The purpose of summary judgment “is to pierce the boilerplate of the pleadings and assay

the parties’ proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ.
Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992). Summary judgment is granted when the record
shows that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if the evidence about
the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.
A fact is material if it has the potential of determining the outcome of the litigation.” Farmers Ins.
Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Rodríguez-Rivera v. Federico
Trilla Reg’l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant
presents a properly focused motion “averring ‘an absence of evidence to support the nonmoving
party’s case[,]’ [t]he burden then shifts to the nonmovant to establish the existence of at least one
fact issue which is both ‘genuine’ and ‘material.’” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). For issues where
the nonmoving party bears the ultimate burden of proof, that party cannot merely “rely on the
absence of competent evidence, but must affirmatively point to specific facts” in the record “that
demonstrate the existence of an authentic dispute.” McCarthy v. Nw. Airlines, Inc., 56 F.3d 313,
315 (1st Cir. 1995). The plaintiff need not, however, “rely on uncontradicted evidence . . . . So
long as the plaintiff’s evidence is both cognizable and sufficiently strong to support a verdict in
her favor, the factfinder must be allowed to determine which version of the facts is most
compelling.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (emphasis in
original).
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In assessing a motion for summary judgment, the court “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, 904 F.2d at 115 (citations omitted). There is “no room for
credibility determinations, no room for the measured weighing of conflicting evidence such as the
trial process entails, [and] no room for the judge to superimpose his own ideas of probability and
likelihood . . . .” Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The
court may, however, safely ignore “conclusory allegations, improbable inferences, and
unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990) (citations omitted).
II.

UNCONTESTED MATERIAL FACTS
Plaintiff was the Defendant’s employee from June 2010 until August 2010 and from April

2011 until February 19, 2012, when she filed a police complaint related to an alleged sexual assault
that day by Joseamid Rodríguez Franqui (“Rodríguez”) at the Wings Family Restaurant. ECF No.
69 at ¶18; ECF No. 70-1 at ¶ 18; ECF No. 69 at ¶3; ECF No. 70-1 at ¶3. During her employment
with the Defendant, Plaintiff was a server and performed administrative functions. ECF No. 69 at
¶ 2; ECF No. 70-1 at ¶2.2
On August 16, 2011, Plaintiff initialed every page of the Defendant’s sexual harassment
policy and placed her signature at the end of the document. ECF No. 69 at ¶ 6; ECF No. 70-1 at
¶6. The sexual harassment policy prohibits sexual harassment in the workplace, and informs
employees among other things, that: (1) when they believe they have been sexually harassed at
work they must file a complaint or report to the human resources officer who represents the
company; (2) it is indispensable for anyone who witnesses any conduct that may be interpreted as

2

Although Plaintiff was first employed by the Defendant in the year 2010, there are no allegations of harassment
before April of 2011. See ECF No. 1 ¶¶ 12 and 14.

3

sexual harassment to report it immediately; (3) confidentiality is guaranteed; and (4) if the
employee believes they have complained and received no response, they have the right to call the
Labor Department. ECF No. 69 at ¶15.3 The same day she signed the sexual harassment policy,
Plaintiff was informed that Defendant had a head of human resources, Zenaida López Ortiz. ECF
No. 69 at ¶4; ECF No. 70-1 at ¶ 4. On February 19, 2012, after the alleged sexual assault, Plaintiff
left the Defendant’s premises and never returned. ECF No. 70-1 at ¶30. Plaintiff’s sole
communication with the Defendant after February 19, 2012, was a letter to request her W-2 form.4
ECF No. 69 ¶17; ECF No. 70-1 at ¶17.
III.

ANALYSIS
a. Title VII Sexual Harassment
Title VII provides a private right of action against any employer who “discriminate[s]

against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's ... sex.” Pérez-Cordero v. Wal-Mart Puerto Rico, Inc.,
656 F.3d 19, 25 (1st Cir. 2011) quoting 42 U.S.C. § 2000e–2(a)(1). The First Circuit has
recognized multiple ways in which sexual harassment can affect a term, condition, or privilege of
employment. Quid pro quo harassment involves a supervisor using employer processes to punish
a subordinate for refusing to comply with sexual demands. Id. This form of harassment is
actionable because it involves explicit and tangible alterations in the terms or conditions of

3

Defendant’s proposed fact also noted that the policy requires that such reports be in writing. ECF No. 69 ¶ 14. The
cited policy does not state that complaints must be “in writing.” It states, “when you believe you have been sexually
harassed in any manner at work, you must file your complaint or report to the Human Resources Officer who represents
the company . . . .” ECF No. 69-2 pgs. 2 and 3. As Plaintiff disputes the Defendant’s interpretation, this opinion and
order relies on the original language in the sexual harassment policy.
Defendant proposed as a fact that Plaintiff “never asked [the Restaurant] that she wanted them to pursue her claims
of sexual harassment.” ECF No. 69 at ¶ 10. This fact was not supported by its record citation, and therefore was not
considered for the purposes of this opinion and order.
4

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employment. Id. Alternatively, “[h]arassment that creates a sexually hostile and abusive work
environment is actionable when it is sufficiently severe and pervasive to effect constructive
alterations in the terms or conditions of employment.” Id.
1. Hostile Work Environment
Plaintiff contends that Defendant discriminated against her with respect to the terms and
conditions of her employment by creating a sexually hostile and abusive work environment. To
succeed on her hostile work environment claim, Plaintiff must establish six elements: (1) that she
is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3)
that the harassment was based upon sex; (4) that the harassment was sufficiently severe or
pervasive so as to alter the conditions of her employment and create an abusive work environment;
(5) that sexually objectionable conduct was both objectively and subjectively offensive, such that
a reasonable person would find it hostile or abusive and that she in fact did perceive it to be so;
and (6) that some basis for employer liability has been demonstrated. Perez-Cordero v. Wal-Mart
Puerto Rico, Inc., 656 F.3d 19, 27 (1st Cir. 2011).
Viewing the record in light most favorable to the non-movant, a reasonable jury could find
that Plaintiff established the following. Rodríguez was Plaintiff’s supervisor while she was an
employee at the Restaurant. ECF No. 70-1 at ¶23. He is also one of Restaurant’s owners along
with his wife Yolanda Negrón (herafter “Negrón”), and Negrón’s mother. Id. Any time Plaintiff
had a shift with the Defendant after April of 2011, Rodríguez made sexual comments to her,
including that he wanted to eat her ass, he wanted to see her in a g-string, he dreamed of putting
her on all fours and doing whatever he wanted, he wanted to see her naked, he dreamed of her
being his girlfriend, and that she was going to be his. ECF No. 70-1 at ¶29; ECF No. 70-2 pgs. 11-

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12. 5 When Plaintiff and Rodríguez were in tight places at work, Rodríguez would walk by and rub
his penis against her. Id. This conduct culminated on February 19, 2012, when Rodríguez called
Plaintiff into his office, told her that she had a “pretty buttocks split,” grabbed her by her hip,
pulled down her jeans, told her to lower her voice, and touched her intimate body parts. ECF No.
70-1 at ¶ 31; ECF No. 70-4 at pg. 3. Plaintiff left the Defendant’s premises that night, and never
returned.
For the purposes of the pending motion, Defendant does not contest the first three elements
of Plaintiff’s hostile work environment claim—namely that Plaintiff is a member of a protected
class, she was subjected to unwelcome sexual harassment, and that the harassment was based upon
sex. ECF No. 68 at pg. 17 ¶ 2. The Defendant contends, however, that Plaintiff did not establish
evidence of conduct that is sufficiently severe or pervasive. Several factors are relevant to the
question of whether conduct is sufficiently severe or pervasive: “the severity of the conduct, its
frequency, whether it is physically threatening or not, and whether it interfered with the victim's
work performance.” Gerald v. Univ. of Puerto Rico, 707 F.3d 7, 18 (1st Cir. 2013). With respect
to frequency, Plaintiff contends that she was subject to sexual comments whenever she had a shift
after April of 2011. As to severity, the alleged comments and touching are disturbing. It is no
stretch that Rodríguez’s conduct interfered with her work in light of her testimony that she was
terrified by Rodríguez’s conduct and never returned to the Defendant’s premises after the alleged
incident of February 19, 2012. Defendant argues that police determined the alleged conduct of
February 19, 2012, was unfounded; however, Plaintiff’s testimony disputes this conclusion.6 See

5

Exhibits are cited using the page number generated by the ECF system as opposed to the page number of the
original scanned document.
6
Defendant suggests that Plaintiff’s testimony is not credible in light of the fact that she never mentioned her PRPD
sexual assault complaint when she filed a complaint with the Equal Employment Opportunity Commission. It also
notes that Plaintiff did not contest a Labor Department finding that she abandoned her employment. These credibility
arguments are better left for the jury, as the Court may not weigh evidence on summary judgment.

6

ECF No. 70-1 at ¶ 20. Taking the evidence in a light most favorable to Plaintiff, a reasonable jury
could find that the harassment was severe and pervasive.
The next inquiry is whether the complained of conduct was objectively and subjectively
offensive. On the issue of subjective offense there is adequate evidence that Plaintiff regularly
complained to Negrón about Rodríguez’s comments, filed a police report after the alleged
February 19, 2012 incident, and was terrified of Rodríguez’s conduct. As to the objective
perspective, a reasonable person could find the alleged touching, sexual assault, and lewd
statements highly offensive and denigrating. Plaintiff presented more than enough evidence on this
point to withstand summary judgment.
The final inquiry is establishing some basis for employer liability. The applicable standard
for assessing employer liability depends upon whether the offending employees are supervisors or
merely co-workers. Figueroa García v. Lilly Del Caribe, Inc., 490 F. Supp. 2d 193, 206 (D.P.R.
2007). An employer is vicariously liable when a supervisor’s conduct creates a hostile work
environment for its employees, unless the employer can demonstrate that it is entitled to the
Faragher-Ellerth defense. Pérez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 30 (1st Cir.
2011). While Defendant contends that Rodríguez is merely Plaintiff’s co-worker, there is evidence
that Rodríguez, at all relevant times, was her supervisor and one of the Restaurant’s owners.7 ECF
No. 70-1 at ¶ 23. The Defendant contends that even if Rodríguez was Plaintiff’s supervisor, it
escapes liability because the Faragher-Ellerth defense applies in this case. “The Faragher–Ellerth
defense comprises two necessary elements: “(a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities provided by

7

Defendant’s own exhibit G lists Rodríguez’s occupation as “Owner Wings Rest.” See ECF No. 69-7.

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the employer or to avoid harm otherwise.” Pérez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d
19, 30 (1st Cir. 2011) citing Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. This defense “was designed
to protect only those responsible employers who have established effective sexual harassment
policies and responsive grievance processes. To that end, an employer must carry its burden on
both prongs to succeed in maintaining the defense.” Agusty-Reyes v. Dep't of Educ. of Puerto
Rico, 601 F.3d 45, 55 (1st Cir. 2010) (internal citations omitted).
As to the first prong, there is undisputed evidence that the Defendant had a sexual
harassment policy in place during Plaintiff’s employment and that Plaintiff was notified of said
policy. See ECF No. 69 at ¶15. The Defendant contends that it acted reasonably to prevent and
correct any sexually harassing behavior because it had a policy in place, and the only notification
it ever received regarding harassment of Plaintiff was a notification by the Puerto Rico Police
Department informing that it had received a complaint from plaintiff, and that PRPD investigation
determined the complaint was unfounded.
As to the second prong, Defendant contends that even if Plaintiff experienced repeated
harassment as she claims, she failed to take advantage of corrective opportunities by never
submitting a written complaint to human resources. On the other hand, Plaintiff contends she
would submit verbal complaints to Owner Negrón whenever there was an incident with Rodríguez
and there was an opportunity to speak with Negrón. ECF No. 70-1 at ¶ 7. Negrón would give her
the same response after each complaint: “that it was [Plaintiff], that it wasn’t him, that that was
[the] way he was, to continue [her] work.” ECF No. 70-1 at ¶7; ECF No. 70-2 at pg. 10. Plaintiff
also submitted complaints to Negrón’s mother because she continued to receive unsatisfactory
responses from Negrón. ECF No. 70-1 at ¶7. Plaintiff would also speak to the Human Resources
Director Zenaida López about the alleged sexual harassment “any time [she] had access to [her],”

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but that she rarely had access to López because López did not have an office at the Restaurant and
if López “was to show up at the restaurant twice a month, that was a luxury.” ECF No. 70-1 at ¶4;
ECF No. 70-2 at pg. 18.8
In the end, there is evidence that Defendant took no corrective action in spite of repeatedly
receiving complaints of sexual harassment. Under these circumstances, a reasonable jury could
find that the Defendant has failed to establish that it exercised reasonable care to prevent and
correct promptly any sexually harassing behavior. Based on the same circumstances, a reasonable
jury could find that the Defendant failed to establish that Plaintiff unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer or to avoid harm
otherwise. The mere fact that Plaintiff did not submit a written complaint does not doom her case.
While the sexual harassment policy provides that employees must “file” complaints to the Human
Resources Officer, ECF No. 69-2 at pg. 2, and the word “file” usually connotes a written document,
there is more than one reasonable way to interpret this clause. A reasonable jury could find that
Plaintiff met her duty to “file” a complaint by submitting verbal complaints. Nor is it unreasonable
for Plaintiff to channel the bulk of her complaints through Negrón in light of the evidence that
Negrón is one of the owners of the Restaurant and that Plaintiff rarely had access to a human
resources officer. “When a supervisor's behavior is at issue, an employee need only make
‘reasonable’ use of the reporting procedures provided by her employers to render the FaragherEllerth defense unavailable.”Agusty-Reyes v. Dep't of Educ. of Puerto Rico, 601 F.3d 45, 56 (1st
Cir. 2010). In sum, there is sufficient record evidence for a reasonable jury to find in Plaintiff’s

8

Even if Rodríguez is merely a co-worker, there is sufficient evidence to establish liability under the theory of coworker harassment. “To establish employer liability for a non-supervisory co-employee, a plaintiff must demonstrate
that the employer knew or should have known of the charged sexual harassment and failed to implement prompt and
appropriate action. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir. 2002) (internal quotations and citations
omitted). Plaintiff carried this burden in light of her testimony that after she repeatedly informed Negrón of
Rodríguez’s harassing conduct, the Defendant took no corrective action.

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favor with respect to her hostile work environment claim. Therefore, the Defendant’s request to
dismiss the same is DENIED.
2. Quid Pro Quo Harassment
“Quid pro quo sexual harassment is when a supervisor uses his superior position to extract
sexual favors from a subordinate and, if rebuffed, retaliates by taking action that adversely impacts
the subordinate's employment. This type of harassment can be shown where a supervisor uses
employer processes to punish a subordinate for refusing to comply with sexual demands.” Gerald
v. Univ. of Puerto Rico, 707 F.3d 7, 20 (1st Cir. 2013) (internal citations and quotations omitted).
At the outset, Plaintiff failed to raise a quid pro quo claim in the complaint. Despite making
specific reference to a hostile working environment, the complaint lacks even a conclusory
statement that Rodríguez conditioned her job benefits or permanence on submission to sexual
advances. See id.
Even if Plaintiff had sufficiently alleged a quid pro quo claim, the same does not survive
summary judgment. Plaintiff identified no evidence that decisions or actions regarding her
employment status or benefits were used to punish her for refusing Rodríguez’s sexual demands.
The only adverse employment action in Plaintiff’s personnel file is an admonishment for taking
an unauthorized meal break, which she does not contest.
Plaintiff argues that “since the plaintiff refused Rodríguez[‘s] unwelcome sexual advances,
she had to involuntar[ily] resign from her position.” ECF No. 70 at pg. 5. In essence, she contends
that she was forced to resign because Rodríguez’s continued sexual advances made her working
conditions intolerable. But this argument confuses the elements of quid pro quo and hostile work
environment harassment. Cases based on threats to punish or actual punishment against an
employee if the employee denies sexual advances are often referred to as quid pro quo cases, as

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distinct from unwanted sexual attentions that are sufficiently severe or pervasive to create a hostile
work environment. See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998);
Gerald v. Univ. of Puerto Rico, 707 F.3d 7, 24 (1st Cir. 2013).
Although Plaintiff identified more than enough evidence to survive summary judgment on
her claim of a hostile working environment, the same does not necessarily equate to the quid pro
quo variety of sexual harassment. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 28 (3d Cir.
1997) (affirming dismissal of a plaintiff’s quid pro quo claim based on constructive discharge
where plaintiff failed to submit evidence that employer intended to force the plaintiff’s resignation)
see also Rogers v. City Cty. Health Dep't of Oklahoma Cty., 30 F. App'x 883, 888 (10th Cir. 2002)
(“By definition, a claim of quid pro quo sexual harassment must be supported by a negative
employment action that is separate and distinct from the underlying sexual misconduct”). While
there is ample evidence that Plaintiff experienced continuous unwelcome sexual advances,
Plaintiff identified no evidence that Rodríguez’s motivation for continuing to harass Plaintiff was
to punish her for refusing his initial advances. Therefore, Plaintiff’s Title VII sexual harassment
claim under the theory of quid pro quo, to the extent it was ever raised, is dismissed.
b. Title VII Retaliation
In addition to prohibiting employers from discriminating on account of sex, Title VII also
contains an anti-retaliation provision which prohibits an employer from “discriminat[ing] against”
an employee or job applicant because that individual ‘opposed any practice’ made unlawful by
Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or
investigation. 42 U.S.C.§ 2000e–3(a); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
56 (2006). To prove a claim of retaliation under Title VII, a plaintiff must establish that: (1) she
engaged in protected conduct; (2) she experienced a materially-adverse employment action; and
(3) there is a causal link between the protected conduct and the adverse employment action. Calero11

Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004). If a plaintiff makes this showing
the burden swings to the defendant “to articulate a legitimate, non-retaliatory reason for its
employment decision.” Collazo v. Bristol-Meyers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir.
2010). If a defendant can do this then the burden shifts back to the plaintiff to show that the reason
is pretext and that retaliatory animus was the true motive behind the decision. Id.
Plaintiff contends that she engaged in protected conduct by verbally complaining about
Rodríguez’s harassing conduct to Negrón, Negrón’s mother, and López. ECF No. 70-1 at ¶¶ 4-7
(citing Plaintiff’s deposition). In addition to protecting the filing of formal charges of
discrimination, Title VII’s retaliation clause protects informal protests of discriminatory
employment practices, “including making complaints to management.” Sumner v. U.S. Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990). While Defendant disputes that Plaintiff complained of
sexual harassment, Plaintiff’s testimony is sufficient for a reasonable jury to find that she engaged
in protected conduct.
As to the second element of a prima facie case, Plaintiff argues that Negrón took adverse
employment actions by failing to take any type of corrective action, telling her that “it was me
[Plaintiff], that it wasn’t him,” (ECF No. 70-2 at pg. 10), and “that’s just the way he was and [that]
if I didn’t like it then I could leave.” ECF No. 70 at pg. 18; ECF No. 70-2 at pg. 13 lines 2-3. A
materially adverse employment action is one in which the action “might well have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal citations and quotations omitted). An
unfulfilled threat could amount to a materially adverse employment action. See Wirshing v. Banco
Santander De Puerto Rico, 57 F. Supp. 3d 138, 142 (D.P.R. 2014). While Negrón may have merely
been conveying her disagreement with Plaintiff’s allegations, her statement that if Plaintiff did not

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like Rodríguez’s conduct she could leave is within the realm of what a reasonable jury could find
materially adverse because a reasonable person could interpret Negrón’s statement as a threat to
terminate her if she made further complaints. This might well dissuade a reasonable worker from
making or supporting a further charge of discrimination. Plaintiff stated that although she filed a
complaint to human resources, “I could not have the luxury of going to the Department of Labor
because I was the only one providing for my home to sustain and maintain my home and I couldn’t
lose my job.” ECF No. 70-2 at pg. 17. Plaintiff’s subjective interpretation does not necessarily
mean Negrón’s statement is materially adverse; however, it is hard to say her interpretation of
Negrón’s words is unreasonable in light of the evidence that Negrón is the owner of the Restaurant
and the wife of the alleged harasser. When statements are ambiguous, context and inflection play
an important role in determining meaning. Due to the ambiguity of Negrón’s words, determining
whether they were materially adverse is better left to the jury and their collective lay wisdom. A
reasonable jury could also find that Defendant’s failure to take corrective action was materially
adverse because Rodríguez’s alleged conduct, escalating to the assault of February 19, 2012, might
well intimidate a reasonable worker into not pursuing further charges of discrimination. Tolerating
“workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an
adverse employment action sufficient to satisfy the second prong of the prima facie case for Title
VII retaliation cases.” Noviello v. City of Boston, 398 F.3d 76, 89 (1st Cir. 2005).
With respect to the final element of the prima facie case, a reasonable jury could infer a
causal link between Plaintiff’s protected conduct and Negrón’s putative threat to terminate
Plaintiff in light of the evidence that Negrón’s statement came on the heels of one or more of
Plaintiff’s complaints to her. “Where adverse employment actions follow close on the heels of
protected activity, a causal relationship may be inferred.” Mole v. Univ. of Massachusetts, 442

13

Mass. 582, 595, 814 N.E.2d 329, 341 (2004). A reasonable jury could also infer a causal
relationship between Plaintiff’s complaints to Negrón and Rodríguez’s alleged assault on February
19, 2012, due to the proximity of her complaints and the conduct at issue. There is a reasonable
inference that Rodríguez, as Negrón’s husband, was aware of Plaintiff’s complaints to Negrón.
Plaintiff’s deposition testimony that she complained to management of Rodríguez’s harassing
conduct at least twice a month during her employment after June of 2011 implies that she had
complained shortly before the events of February 19, 2012. Based on this proximity, a reasonable
jury could infer that Rodríguez acted as he did on February 19, 2012, in retaliation for Plaintiff’s
complaints. In sum, there is sufficient evidence in the record for a reasonable jury to find that
Plaintiff established a prima facie case of retaliation. Therefore, Defendant’s request to dismiss
Plaintiff’s retaliation claim is DENIED.9
c. Local Law Claims
Based on the same factual allegations supporting her Title VII claims, Plaintiff asserts
several causes of action under the Constitution of the Commonwealth of Puerto Rico and the
following Puerto Rico Statutes: Law 17, Law 69, Law 100, Law 45, and Law 80. Defendant
requests their dismissal, arguing that the court should decline to exercise supplemental jurisdiction
over Plaintiff’s local claims because there is no viable federal claim. This argument is untenable
because Plaintiff’s hostile work environment and retaliation claims under Title VII remain.
1. Hostile Working Environment under Laws 17, 69, and 100
Alternatively, Defendant requests dismissal of Plaintiff’s claims pursuant to Law 17, 69,
and 100 on the grounds that she cannot establish a prima facie case of the same. “Law 17, Law 69,

The only challenge Defendant articulated with respect to Plaintiff’s retaliation claim is that Plaintiff never engaged
in protected conduct prior to abandoning her employment on February 19, 2012. Accordingly, the final stage of the
burden-shifting framework is not discussed.
9

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and Law 100 serve virtually identical purposes and outlaw virtually identical behaviors. Each
proscribes sexual harassment in the form of a hostile work environment.” Figueroa Garcia v. Lilly
Del Caribe, Inc., 490 F. Supp. 2d 193, 212 (D.P.R. 2007) citing Suarez Ruiz v. Figueroa Colon,
145 P.R. Dec. 142, 148–49 (1998) and Miro Martinez v. Blanco Velez Store, Inc., 393 F.Supp.2d
108, 114 (D.P.R.2005). “Law 17, the most recent and specific of the laws addressing sexual
harassment, largely tracks the language of the EEOC guidelines regarding hostile work
environment claims. This court has recognized that Law 17 conforms to the hostile work
environment requirements established in Title VII.” Figueroa Garcia v. Lilly Del Caribe, Inc., 490
F. Supp. 2d 193, 212 (D.P.R. 2007) citing Garcia v. Suarez & Co., 288 F.Supp.2d 148, 161
(D.P.R.2003). Because Plaintiff’s Title VII hostile work environment claim survives summary
judgment, so too do her hostile work environment claims under Laws 17, 69, and 100. See Figueroa
Garcia v. Lilly Del Caribe, Inc., 490 F. Supp. 2d 193, 212 (D.P.R. 2007) (treating hostile work
environment claims under Title VII and laws 17, 69, and 100 the same) see also Aponte-Rivera v.
DHL Sols. (USA), Inc., No. 07 C 1950, 2010 WL 376330, at *2 (D.P.R. Jan. 25, 2010) and Garcia
v. V. Suarez & Co., 288 F. Supp. 2d 148, 161 (D.P.R. 2003).
2. Quid Pro Quo under Law 17
Law 17, in pertinent part, prohibits “any type of undesired sexual approach, demand for
sexual favors and any other verbal or physical behavior of a sexual nature . . . [w]hen submission
to said conduct becomes, implicitly or explicitly, a term or condition of a person's employment”
or “when submission to or rejection of such conduct by the person becomes the grounds for making
employment decisions or regarding the job that affect that person.” 29 L.P.R.A. § 155b. As already
discussed, Plaintiff failed to identify evidence that submission to Rodríguez’s advances became a
term or condition of her employment or that her reaction to his advances were grounds for making

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employment decisions. Therefore, to the extent that Plaintiff’s quid pro quo claim under local law
was raised, the same is DISMISSED.
3. Retaliation under Law 17
In addition to prohibiting sexual harassment, “Law 17 also protects employees against
retaliatory actions taken by an employer due to an employee's participation in the lodging or
investigation of a sexual harassment complaint.” Perez-Rodríguez v. Wyndham Vacation
Ownership, No. CIV. 12-1287 GAG, 2014 WL 651972, at *13 (D.P.R. Feb. 19, 2014) citing P.R.
Laws Ann. tit. 29, § 155h; Matos Ortiz v. Puerto Rico, 103 F.Supp.2d 59, 63 (D.P.R.2000). While
the Defendant requests dismissal of Plaintiff’s Title VII retaliation claim, it neglects to address
whether her retaliation claim pursuant to local laws should be dismissed on the merits. Therefore,
Plaintiff’s retaliation claim pursuant to Puerto Rico law remains.
4. Unjust Dismissal Under Law 80 and Workers Compensation
Under Law 45
Plaintiff brings a claim for unjust dismissal under Law 80. The complaint also makes
reference to seeking relief under Law No. 45 of April 18 1935, PR Laws Ann. T. 11 sec. 7 et seq.
(“Law 45”). As the Defendant’s motion for summary judgment makes no reference to Law 80 or
Law 45, no action is taken on the same at this juncture.10
IV.

CONCLUSION
For the foregoing reasons, the Defendant’s motion for summary judgment (ECF No. 67) is

GRANTED IN PART AND DENIED IN PART. Plaintiff’s state and federal sexual harassment

Law 45 is also known as the “Compensation System for Work Related Accidents Act.” 11 L.P.R.A. § 1. The
complaint’s sole reference to Law 45 is in the statement of jurisdiction. See ECF No. 1 at ¶2 (“The plaintiff also
invokes this Court’s supplemental jurisdiction pursuant to 28 U.S.C. sec. 1367, and seeks relief under Puerto Rico’s .
. . Law No. 45 of April 18 1935, PR Laws Ann. T. 11 sec. 7 et seq. . . .”). Although the factual basis for a claim under
Law 45 is not apparent from the allegations of the complaint, nor is it clear what basis if any there are for Plaintiff’s
claims under the United States Constitution and the Puerto Rico Constitution, the Defendant has not moved for
dismissal of the same apart from requesting that the court decline to exercise supplemental jurisdiction over all local
claims.
10

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claims under the quid pro quo theory, to the extent they were properly raised, are dismissed. All
other claims remain.
IT IS SO ORDERED
In San Juan, Puerto Rico, this 11th day of September, 2017.
s/Marcos E. López
U.S. Magistrate Judge

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