Hernandez-Mendez v. Rivera et al

Filing 85

OPINION AND ORDER: Denying 50 Motion for Summary Judgment. Signed by Judge Gustavo A. Gelpi on 8/1/2017. (GC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

1
2

JANNETTE HERNANDEZ-MENDEZ,
3
Plaintiff,
4
CIVIL NO. 15-1147 (GAG)

v.
5
BENJAMIN RIVERA, et al.,
6
Defendants.
7

OPINION AND ORDER

8
9

Jannette

Hernández-Méndez

(“Hernández”)

brings

this

sex-based

employment

10

discrimination and retaliation action against the Commonwealth of Puerto Rico and the Family

11

Department of the Commonwealth of Puerto Rico (collectively “Family Department”) and two

12

supervisors at the Family Department, Benjamin Rivera (“Rivera”) and Marisel Rodríguez

13

(“Rodríguez”) in their personal and official capacities (collectively “Defendants”). (Docket No. 1.)

14

Hernández seeks redress for alleged violations of federal and local anti-discrimination and

15

anti-retaliation employment statutes. Hernández raises hostile work environment and retaliation

16

claims under Title VII of the Civil Rights Act of 1994, 42 U.S.C. § 2000e et. seq. (“Title VII”). Id.

17

Hernández also invokes this court’s supplemental jurisdiction and brings three claims under Puerto

18

Rico state law: Law 17 of April 1988, P.R. LAWS ANN. tit. 29, §§ 155-155m (sexual harassment)

19

(“Law 17”); Law 69 of July 6, 1985, P.R. LAWS ANN. tit. 29, §§ 1321-1341 (gender discrimination)

20

(“Law 69”); Law No. 115 of December 20, 1991, P.R. LAWS ANN. tit. 29, § 194a, et seq. (retaliation)

21

(“Law 115”). Id.

22

Pending before the Court is Defendants’ motion for summary judgment. (Docket No. 50.)

23

Hernández responded in opposition. (Docket No. 66.) Defendants replied. (Docket No. 78.) Upon

24

Civil No. 15-1147 (GAG)
1

review of the submissions of the parties and applicable law, Defendants’ motion for summary

2

judgment at Docket No. 50 is DENIED.

3

I.

Relevant Factual and Procedural Background

4

The Court states the facts in the light most favorable to Hernández, the nonmovant. See

5

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Unless otherwise noted, the facts are

6

not disputed by the parties for summary judgment purposes. See L. CV. R. 56(e) (properly supported

7

facts deemed admitted for summary judgment, unless properly controverted).

8

Hernández began working at the Family Department in 1994. (Defendants’ Statement of

9

Uncontested Material Facts, Docket No. 51, ¶ 1) (hereinafter “DSUMF”). In April 2013, Hernández

10

was transferred to the Aguadilla I local office within the Family Department. (DSUMF ¶¶ 5-6;

11

Plaintiff’s Response to Defendants’ Statement of Uncontested Material Facts, Docket No. 66-1 ¶¶ 5-

12

6) (hereinafter “PRSUMF”). Hernández was the secretary for the director of the Aguadilla I local

13

office. (DSUMF ¶ 25; PRSUMF ¶ 25.) At that time, Rivera was the acting director of Aguadilla I.

14

(DSUMF ¶ 21; PRSUMF ¶ 21.) Rivera was new to this position, too; he was appointed acting

15

director of Aguadilla I in January 2013. (Docket No. 81-1, at 2.)

16

The organizational structure of the Family Department is important to understanding the

17

individuals involved in this case. Rivera, as director of the local office, was responsible for

18

managing the day-to-day affairs at the Aguadilla I local office. (Docket No. 66-2, at 14-15.) Rivera

19

was Hernández’s supervisor at Aguadilla I. (Docket Nos. 51-1, at 19; 66-2, at 38.) However, Rivera

20

did not have the authority to hire, terminate, promote, transfer, or award salary raises to the

21

employees under his supervision at Aguadilla I. (DSUMF ¶¶ 93-96; PRSUMF ¶¶ 93-96.) Rivera’s

22

supervisor, in turn, was Rodríguez, who held the position of regional director for the Family

23

Department, and oversaw the affairs of multiple local offices within her designated region.

24
2

Civil No. 15-1147 (GAG)
1

(DSUMF ¶ 103; PRSUMF ¶ 103.) Rodríguez possessed the authority to relocate and transfer

2

employees within the local offices under her supervision. (DSUMF ¶ 132; PRSUMF ¶ 132.)

3

However, Rodríguez lacked the authority to promote, demote, or terminate employees. (DSUMF

4

¶¶ 133-35; PRSUMF ¶¶ 133-35.) Only the Secretary for the Family Department has the authority

5

to promote, terminate, or award raises to Family Department employees. (DSUMF ¶¶ 129-31;

6

PRSUMF ¶¶ 129-31.)

7

All of the interactions between Hernández and Rivera relevant to this case occurred during

8

the month-long period Hernández was assigned to Aguadilla I as Rivera’s secretary. Shortly after

9

Hernández began her new position as Rivera’s secretary, Rivera called Hernández into his office.

10

(DSUMF ¶ 22; PRSUMF ¶ 22.) Rivera asked Hernández whether she had “special friend”1 or a

11

boyfriend. (DSUMF ¶ 22; PRSUMF ¶ 22.) Hernández replied that she did not, that she was married

12

but separated from her husband, and walked out of Rivera’s office. (DSUMF ¶ 22; PRSUMF ¶ 22.)

13

After that conversation, Hernández felt uncomfortable and mad.

14

Uncontested Material Facts, Docket No. 66-1, at 15 ¶ 6) (hereinafter “PSUMF”).

(Plaintiff’s Statement of

15

A few days later, Rivera approached Hernández at her desk and asked her age. (DSUMF

16

¶ 28; PSUMF ¶ 7.) Hernández was surprised by the question, and answered that she was forty years

17

old. (DSUMF ¶ 28; PSUMF ¶ 7.) In response, Rivera leaned in close to Hernández and told her

18

that she was “very hot”2 for her age. (DSUMF ¶ 28; PSUMF ¶ 7.) This interaction left Hernández

19

feeling uncomfortable and angry. (PSUMF ¶ 8.)

20
21
22

1

In the translated EEOC charge, Hernández recounts that Rivera asked whether she had a “close friend
or boyfriend.” (Docket No. 16-1, at 1.) The precise phrasing of Rivera’s question is not dispositive, and the
parties do not dispute the general nature of Rivera’s question.
2

23

Once again, the translations of this precise phrase vary. For instance, the translated EEOC charge
reads: “frankly, for your age, you look very well.” (Docket No. 16-1, at 1.) However, the central message of
the comment is undisputed summary judgment purposes.

24
3

Civil No. 15-1147 (GAG)
1

The third encounter occurred about two weeks later. On May 3, 2013, Rivera approached

2

Hernández’s desk and asked her to retrieve a document for him. (DSUMF ¶ 32; PSUMF ¶ 9.)

3

Hernández stood up and went to the file cabinet to locate the document. (DSUMF ¶ 32; PSUMF ¶ 9.)

4

While looking for the document, Hernández felt Rivera’s body pressed up against her back from

5

behind. (DSUMF ¶ 32; PSUMF ¶ 9.) In response, Hernández immediately walked away from her

6

desk area without making any comments to Rivera. (DSUMF ¶ 32; PSUMF ¶ 9.) Following the

7

encounter, Hernández was nervous and felt that she was going to cry. (PSUMF ¶ 10.) Hernández

8

then approached a trusted colleague, Rosa Pérez (“Pérez”), to tell her what happened. (Docket No.

9

51-1, at 22.) Pérez was a local supervisor at Aguadilla I, but she did not supervise Hernández. Id.

10

at 18, 20, 22.

Pérez suggested that Hernández should disclose the incident to their union

11

representative and file a grievance to report Rivera’s conduct. Id. at 22.

12

After speaking with Pérez, Hernández left the local office and called Maria Santiago

13

(“Santiago”), the employee’s union representative. Id. at 17, 42. Santiago suggested that Hernández

14

submit a grievance regarding Rivera’s conduct. (DSUMF ¶ 35; PRSUMF ¶ 35.) Santiago then

15

called Rodríguez, the regional director for the Family Department, to schedule an appointment to

16

address the situation and report Rivera’s harassing behavior. (Docket No. 70-4 at 1-2; DSUMF ¶ 36;

17

PRSUMF ¶ 36.) Rodríguez is Rivera’s immediate supervisor. (Docket No. 81-1, at 2.)

18

The meeting with the regional director took place the same day. (PSUMF ¶ 14; see also

19

Docket No. 51-1, at 76.) Four people attended the meeting: Hernández, Santiago (the union

20

representative), Rodríguez (the regional director), and Margarita García (the secretary to the regional

21

director).3 (DSUMF ¶ 39; PRSUMF ¶ 39.) Hernández was uncomfortable about García’s presence

22
23
24

3

Hernández claims Waleska González-Pérez, the human resources coordinator for Family Department
responsible for handling sexual harassment claims, did not attend this meeting. (Docket No. 51-1, at 54-55.)
The meeting minutes, which list González-Pérez as present, contradict this claim. (Docket No. 70-4.)

4

Civil No. 15-1147 (GAG)
1

at the meeting because she believed García and Rivera were close friends. (PSUMF ¶ 18; see also

2

Docket Nos. 51-1, at 68; 70-3 at 3.) At some point during the meeting, Rodríguez indicated to

3

Hernández that Rivera should be present, which Hernández adamantly refused because Rivera’s

4

presence made her nervous. (Docket Nos. 51-1, at 54-55; 70-3, at 3.)

5

During the meeting, Hernández described the three interactions that took place between her

6

and Rivera.4 (DSUMF ¶ 40, PSUMF 14; see also Docket No. 51-1 at 53-54.) Hernández also

7

described a fourth incident: she asked Rivera to move a filing cabinet to create more space around

8

her desk, Rivera initially declined, and then eventually moved the cabinet in a manner that

9

Hernández perceived as rude. (PSUMF ¶ 12; see also Docket Nos. 51-1 at 59; 72-1 at 2.) Finally,

10

Hernández described Rivera’s constant looks and gazes in her direction, which made her

11

uncomfortable. (PSUMF ¶ 11.) García took the meeting minutes. (PSUMF ¶ 17; Docket No. 70-4.)

12

The net effect of the May 3rd meeting was twofold. Regional director Rodríguez determined

13

that Hernández would be transferred to the Aguadilla II local office, beginning on the following

14

Monday. (DSUMF ¶ 40; PRSUMF ¶ 40.) Hernández filed a formal sexual harassment complaint

15

with the Family Department at the conclusion of the May 3rd meeting. (Docket No. 72-1.)

16

Aside from being transferred to a position she did not want, Hernández experienced spells of

17

anger, sadness, depression, crying, and work-related anxiety after May 2013. (PSUMF ¶ 1.) This

18

prompted Hernández to seek treatment from a psychologist and a psychiatrist. Id. at ¶ 2-4. She

19

visited the psychiatrist regularly for about a year. Id. at ¶ 4. Hernández was diagnosed with

20

depression and prescribed medication for her condition. Id.

21
22
23
24

4

The parties dispute whether Hernández described the May 3, 2013 incident with Rivera during the May 3,
2013 meeting. Defendants claim Hernández omitted this incident, and point to Garcia’s meeting minutes in support.
(Defendants’ Reply Statement of Undisputed Material Facts, Docket No. 78-1, ¶ 14.) Hernández claims she described
the May 3rd incident in the meeting, and that it was somehow excluded from the meeting minutes.

5

Civil No. 15-1147 (GAG)
1

On October 3, 2013, following Hernández’s May 3rd sexual harassment complaint, the

2

Family Department conducted a formal interview with Hernández. (Docket No. 72-2.) The October

3

3rd interview was part of an internal investigation conducted by the Family Department. (Docket

4

No. 51-1, at 65.) In the October 3rd interview, Hernández essentially repeated her interactions with

5

Rivera in the Aguadilla I local office: the marital status question; the ‘hot-for-her-age’ remark; the

6

incident of physical contact; the constant uncomfortable looks; and rude way Rivera responded to

7

Hernández’s request to rearrange the filing cabinet. (Docket No. 72-2, at 5-6.)

8

On November 11, 2013, Hernández filed a Charge of Discrimination with the Puerto Rico

9

Department of Labor Antidiscrimination Unit and the Equal Employment Opportunity Commission

10

(“EEOC”). (Docket Nos. 51-6 at 1; 70-3.) The EEOC charge repeated the events as previously

11

recounted by Hernández in the May 3rd and October 3rd meetings. The EEOC sent Hernández a

12

Notice of Right to Sue letter on November 24, 2014, which she received on November 29, 2014.

13

(Docket No. 1, ¶¶ 5-6.)

14

Hernández filed this complaint on February 18, 2015. (Docket No. 1.) Defendants moved

15

to dismiss for failure to state a claim under Rule 12(b)(6). (Docket No. 11.) On September 30, 2015,

16

the Court granted in part and denied in part Defendants’ motion to dismiss. Hernández-Méndez v.

17

Rivera, 137 F. Supp. 3d 142, 161 (D.P.R. 2015). The Court dismissed the following claims: (1) Title

18

VII claims of sexual harassment and retaliation against Rivera and Rodríguez in their individual

19

capacity (but not their official capacity), (2) any section 1983 claims; (3) the Law 115 claims against

20

Rivera and Rodríguez in their personal capacities; and (4) any claims for monetary damages against

21

the Family Department or Rivera and Rodríguez in their individual capacities. Id.

22

Following the motion to dismiss stage, five categories of claims remain: (1) Title VII sexual

23

harassment against the Family Department (through the official capacity Defendants); (2) Title VII

24
6

Civil No. 15-1147 (GAG)
1

retaliation against the Family Department (through the official capacity Defendants); (3) Law 17

2

claims against all remaining Defendants; (4) Law 69 claims against all remaining Defendants; and

3

(5) Law 115 claims against the Family Department (through the official capacity Defendants). Id.

4

II.

Standard of Review

5

Summary judgment is appropriate when “the pleadings, depositions, answers to

6

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

7

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

8

of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also FED. R. CIV. P. 56(a). “An

9

issue is genuine if ‘it may reasonably be resolved in favor of either party’ at trial, . . . and material

10

if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’”

11

Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citations omitted). The movant bears

12

the initial burden of demonstrating the lack of evidence to support the nonmovant’s case. Celotex,

13

477 U.S. at 325. Then, burden then shifts back to the nonmovant, who must establish at least one

14

issue of fact that is both genuine and material. Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d

15

576, 581 (1st Cir. 1994).

16

The nonmovant may establish a fact is genuinely in dispute by citing particular evidence

17

in the record or showing that the material cited by the movant “do[es] not establish the absence or

18

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

19

support the fact.” FED. R. CIV. P. 56(c)(1)(B). If the Court finds that some genuine factual issue

20

remains, the resolution of which could affect the outcome of the case, then the Court must deny

21

summary judgment. Liberty Lobby, 477 U.S. at 248.

22

The Court views the evidence in the light most favorable to the nonmovant, resolving all

23

reasonable inferences in that party’s favor, without making any credibility determinations or

24
7

Civil No. 15-1147 (GAG)
1

weighing the evidence. Id. However, summary judgment is appropriate when the nonmovant’s case

2

rests merely upon “conclusory allegations, improbable inferences, and unsupported speculation.”

3

Forestier Fradera v. Municipality of Mayagüez, 440 F.3d 17, 21 (1st Cir. 2006) (citation omitted).

4

III.

Discussion

5

Hernández alleges hostile work environment and retaliation claims under Title VII and

6

analogous claims under Puerto Rico state law. The factual record provides sufficient support to

7

create genuine issues of material fact on each of Hernández’s claims. Accordingly, the factfinder—

8

not the Court—must resolve those factual issues. As explained below, Defendants motion for

9

summary judgment is DENIED.

10

A. Governing Federal Law: Title VII

11

Title VII prohibits employers from discriminating “against any individual with respect to

12

compensation, terms, conditions, or privileges of employment, because of such individual’s race,

13

color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). The phrase “terms, conditions,

14

or privileges of employment” reflects the congressional intent to “strike at the entire spectrum of

15

disparate treatment of men and women in employment.” Pérez-Cordero v. Wal-Mart P.R., Inc., 656

16

F.3d 19, 25-26 (1st Cir. 2011) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986))

17

(citations and quotations omitted). In accordance with that comprehensive aim, Title VII also

18

prohibits employer retaliation against an employee who opposes discriminatory employment

19

practices. 42 U.S.C. § 2000e–3(a).

20

Title VII’s substantive provision protects individuals based on who they are, i.e., their status.

21

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). Courts have recognized various

22

types of actionable sexual harassment claims, including quid pro quo harassment claims and hostile

23

work environment claims. See, e.g., Acevedo Torres v. Arecibo, 857 F. Supp. 2d 231, 234 (D.P.R.

24
8

Civil No. 15-1147 (GAG)
1

2012); Pérez-Cordero, 656 F.3d at 26; Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85,

2

94 (1st Cir. 2006). Quid pro quo and hostile work environment claims are not independent

3

categories; rather, they are descriptions of “alternative approaches to proving sex-based employment

4

discrimination.” Pérez-Cordero, 656 F.3d at 26 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S.

5

742, 751-52 (1998).

6

By contrast, Title VII’s anti-retaliation provision protects individuals based on their conduct,

7

rather than their status. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 63. Accordingly, a retaliation

8

claim differs from harassment claim by protecting employee conduct (not status) and targeting

9

retaliatory animus (not discriminatory animus). Despite these differences, when the evidence can

10

be reasonably viewed as “demonstrating either discriminatory animus or retaliatory animus,” it is

11

appropriate to consider the same evidence to support the sufficiency of each claim. Pérez-Cordero,

12

656 F.3d at 32.

13
14

Hernández raises both types of claims—sexual harassment and retaliation—under Title VII.
The Court addresses each claim in turn.

15

B. Hostile Work Environment under Title VII

16

Under Title VII, sex-based discrimination includes “requiring people to work in a

17

discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

18

(1993). A hostile work environment is created—and Title VII is thereby violated—“[w]hen the

19

workplace is permeated with discriminatory intimidation, ridicule, and insult,” to an extent “that is

20

sufficiently severe or pervasive to alter the conditions of employment.” Id. (internal citations and

21

quotations omitted).

22

To succeed on a Title VII hostile work environment claim, plaintiff must establish six

23

elements: (1) that she is a member of a protected class; (2) that she was subjected to unwelcome

24
9

Civil No. 15-1147 (GAG)
1

sexual harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently

2

severe or pervasive so as to alter the conditions of plaintiff’s employment and create an abusive work

3

environment; (5) that the sexually objectionable conduct was both objectively and subjectively

4

offensive (i.e., a reasonable person would find it hostile or abusive, and the victim did, too); and (6)

5

that some basis for employer liability has been established. Forrest v. Brinker Intern. Payroll Co.,

6

511 F.3d 225, 228 (1st Cir. 2007) (internal quotations omitted).

7

For a hostile work environment claim, “the fourth and fifth elements are typically the most

8

important.” O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). This inquiry is

9

highly fact-specific, and must be determined “in light of the record as a whole and the totality of the

10

circumstances.” Id. at 729 (citing Meritor, 477 U.S. at 69); Marrero v. Goya of P.R., Inc., 304 F.3d

11

7, 19 (1st Cir. 2002). A court has some latitude in evaluating the conduct in question, and should

12

consider factors such as “the frequency of the discriminatory conduct; its severity; whether it is

13

threatening or humiliating, or merely an offensive utterance; and whether it unreasonably interferes

14

with the employee’s work performance.” Harris, 510 U.S. at 21. Each of these factors are important,

15

but weighing them is not a science. There is no “mathematically precise test” for determining the

16

severity and pervasiveness of the harassment or the hostile and abusive environment in the

17

workplace. Pérez v. Horizon Lines, Inc., 804 F.3d 1, 6 (1st Cir. 2015). In short, context matters.

18

The first three elements of Hernández’s hostile work environment claim are essentially

19

undisputed. Hernández, a woman, is a member of a protected class. See, e.g., Oncale v. Sundowner

20

Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (Title VII includes men and women within its

21

protections). Rivera’s harassing comments and actions towards Hernández were unwelcome. In

22

each instance, she either responded negatively to Rivera or did not respond at all. Then, on May 3,

23

2013, Hernández confided in a trusted coworker, called her union representative, and initiated a

24
10

Civil No. 15-1147 (GAG)
1

meeting with Rodríguez to report the unwelcome encounters. The third element is satisfied because

2

Rivera’s harassment of Hernández was gender specific: he asked her relationship status in a

3

suggestive way; he told her that she was attractive for her age; and he pressed himself up against her

4

from behind. As Hernández describes it, Rivera was hitting on her. A jury could reasonably find

5

not only that Rivera’s harassing behavior was gender-specific, Forrest, 511 F.3d at 229, but also that

6

it was motivated by sexual desire. See Oncale 523 U.S. at 80.

7

Turning to the fourth hostile work environment element, Defendants argue the Rivera’s

8

comments and actions were not severe or pervasive, and even if they were, Rivera’s harassing

9

behavior did not alter the conditions of Hernández’s employment. (Docket No. 50, at 10-12.) Here,

10

Defendants color the facts quite differently from Hernández. However, the Court views the facts in

11

Hernández’s favor, and in this light, Defendants’ argument fails.

12

First, Defendants point to timing of the harassing events. Because all of Rivera’s interactions

13

with Hernández occurred in April 2013, Defendants argue the duration of the harassment was too

14

brief to rise to the level of severe or pervasive harassment. Id. at 10. However, Title VII does not

15

include a strict durational requirement for sex-based harassment. While Rivera’s harassing conduct

16

towards Hernández only last a month, Hernández only worked as Rivera’s secretary for a month.

17

From the moment Hernández begin work at the Aguadilla I local office until the day she was

18

transferred, Rivera’s harassing comments and actions were essentially constant. See Marrero, 304

19

F.3d at 19 (employees are not required “to suffer the constant attentions of a lascivious supervisor”).

20

Second, Defendants argue that Rivera’s harassing conduct was too insignificant to alter the

21

conditions of Hernández’s employment. (Docket No. 50, at 11.) Each incident—the relationship

22

status inquiry, the ‘hot-for-your-age’ remark, and Rivera’s physical contact with Hernández from

23

behind—impacted Hernández personally: she reported feeling sad, angry, uncomfortable, and

24
11

Civil No. 15-1147 (GAG)
1

crying. Rivera’s rudeness and constant stares directed at Hernández likely made an uncomfortable

2

situation worse. Flood v. Bank of Am. Corp., 780 F.3d 1, 12 (1st Cir. 2015) (“[A]n act of harassment

3

that is not actionable in and of itself may form part of a hostile work environment claim.”) (quoting

4

Marrero, 304 F.3d at 28). Hernández responded by attempting to avoid her harassing supervisor.

5

This would have directly affected her work performance. Defendants point out that Hernández kept

6

working after the incidents (except that, after the May 3rd incident, she left the office). Even so, a

7

plaintiff’s persistence or perseverance does not undermine a claim of sexual harassment. An

8

employee is not required to “falter under the weight of an abusive work environment” before the

9

harassment claim becomes actionable. Pérez-Cordero, 656 F.3d at 51.

10

As a parting blow, Defendants launch an ad hominem attack at Hernández, accusing her of

11

frequent absences and laziness. (Docket No. 50, at 10-12.) But even if Hernández’s performance

12

was unsatisfactory (the record does not undisputedly show this—Defendants want to have it both

13

ways, arguing Hernández’s performance was both unchanged and unsatisfactory), a reasonable jury

14

could find that Rivera’s harassing behavior caused any unsatisfactory performance. Thus, a jury

15

could find the severe and pervasive element satisfied, so the Court presses forward to the next

16

element of Hernández’s hostile work environment claim.

17

Defendants contend that Rivera’s conduct was not offensive enough to alter Rivera’s work

18

conditions. This argument misses the mark, too. Rivera’s harassment involved non-consensual

19

physical contact, sexual remarks, suggestive questioning, rudeness, and constant gazing and staring

20

at Hernández. This type of behavior would be unnerving for any employee, but it is especially

21

troubling based on Rivera’s position of power in the local office and Hernández’s subordinate role

22

as Rivera’s secretary. See, e.g., Billings v. Town of Grafton, 515 F.3d 39, 50-51 (1st Cir. 2008)

23

(vacating summary judgment on a hostile work environment claim brought by a female secretary

24
12

Civil No. 15-1147 (GAG)
1

against a male supervisor where the supervisor’s harassing conduct including staring but no physical

2

contact). Moreover, Hernández immediate reporting of the incident on May 3rd demonstrates that

3

she found Rivera’s behavior subjectively offensive. After he pressed himself against her from

4

behind, she left, asked a friend for advice, called the union representative, reported the events to the

5

regional director, and filed a sexual harassment complaint, all on that same day. Thus, a jury could

6

reasonably find Rivera’s harassment of Hernández objectively and subjectively offensive.

7

The final element of a hostile work environment claim requires showing some basis for

8

employer liability. Two distinct approaches to determining employer liability are relevant here. See

9

Agusty-Reyes v. Dep’t of Educ. of P.R., 601 F.3d 45, 53 (1st Cir. 2010) (citing Ellerth, 524 U.S. at

10

764). Under either approach, the result is the same. A jury could reasonably find the Family

11

Department vicariously liable for Rivera’s harassment of Hernández.

12

Under the first vicarious liability framework, an employer is vicariously liable for harassment

13

by supervisor that results in a “tangible employment action” against the employee. Agusty-Reyes,

14

601 F.3d at 53. For purposes of Title VII vicarious liability, a supervisor is someone empowered by

15

the employer to take a tangible employment action against the employee. Vance v. Ball State Univ.,

16

133 S. Ct. 2434, 2439 (2013). Tangible employment action derives from the supervisor’s authority

17

to effect a “significant change in employment status.” Id. at 2443 (quoting Ellerth, 524 U.S. at 761).

18

These actions include: “hiring, firing, failing to promote, reassignment with significantly different

19

responsibilities, or a decision causing a significant change in benefits.” Id. The key to determining

20

supervisory status, as confirmed by the Supreme Court in Vance, is “the degree of authority

21

possessed by the putative supervisor.” Velazquez-Pérez v. Developers Diversified Realty Corp.,

22

753 F.3d 265, 271 (1st Cir. 2014) (citations omitted).

23
24
13

Civil No. 15-1147 (GAG)
1

Under the second approach, an employer will be vicariously liable for a supervisor’s “severe

2

and pervasive” harassment, even if no tangible employment action resulted, unless the employer can

3

avail itself of the Faragher-Ellerth defense. This affirmative defense requires a two-step showing:

4

(1) the employer’s actions to prevent and correct harassment were reasonable and (2) the employee’s

5

actions to avoid harm were not reasonable. Agusty-Reyes, 601 F.3d at 53 (citing Faragher v. City

6

of Boca Raton, 524 U.S. 775, 807 (1998); Ellerth, 524 U.S. at 765)) (further citations omitted).

7

For both approaches to vicarious liability, the threshold question is whether Rivera was

8

Hernández’s supervisor.5 Rivera undisputedly exercised supervisory responsibility over Hernández.

9

(DSUMF ¶ 90; PRSUMF ¶ 90; see also Docket No. 51-1, at 19; Docket No. 66-2, at 14-15.)

10

However, Rivera lacked the authority to fire, promote, or transfer the employees he supervised,

11

including Hernández. (DSUMF ¶¶ 93-96; PRSUMF ¶¶ 93-96.) Defendants insist this means Rivera

12

was not Hernández’s supervisor under Vance. (Docket No. 50, at 13.) See Vance, 133 S. Ct. at

13

2443 (holding that a supervisor is someone empowered to take “tangible employment actions against

14

the victim”—that is, to effect a “significant change in employment status”).

15

However, the Supreme Court’s holding in Vance is not as ironclad as Defendants suggest.

16

Vance’s holding was based on the recognition that modern organizations “have abandoned a highly

17

hierarchical management structure”—vesting employees with “overlapping authority”—thus

18

justifying a relatively narrow definition of supervisor. Id. at 2452. That factual assessment is

19

inapposite here. The Family Department’s management structure is highly hierarchical. Rivera, as

20

the acting director of the Aguadilla I local office, managed and oversaw the affairs of the office on

21

a day-to-day level. As Rivera’s secretary, Hernández worked directly under Rivera’s control and

22
23
24

5

Rivera retired from his position as the acting director of the Aguadilla I local office on February 28, 2014.
(DSUMF ¶ 88; PRSUMF ¶ 88.) In light of his retirement, Hernández seeks to be reassigned to her preferred position
at the Aguadilla I local office.

14

Civil No. 15-1147 (GAG)
1

supervision. The structure of the workplace relationship between Rivera and Hernández was that of

2

the traditional manager and assistant.

3

Vance recognizes that in situations where supervisory decision-making authority is remote

4

and concentrated (as here), supervisors “will likely rely on other workers who actually interact with

5

the affected employee” before taking any tangible employment action. Id. Accordingly, Vance’s

6

delegated authority exception applies where “the employer may be held to have effectively delegated

7

the power to take tangible employment actions to the employees on whose recommendations it

8

relies.” Id. That exception applies here: Rivera’s (and Rodríguez’s) assessment of Hernández’s

9

performance is judgment upon which the hiring authority for the Family Department would rely.

10

(DSUMF ¶¶ 129-131; PRSUMF ¶¶ 129-131.) Thus, a jury could reasonably infer that if Rivera

11

requested Hernández’s termination or transfer, the Family Department would have effectuated

12

Rivera’s request.

13

Applying Vance’s delegated authority exception, Rivera possessed sufficient authority to be

14

considered Hernández’s supervisor. See Vance, 133 S. Ct. at 2452. Accordingly, a reasonable jury

15

could find that Hernández’s actions in seeking to avoid further harassment were entirely reasonable,

16

see Agusty-Reyes, 601 F.3d at 53, and thus the Faragher-Ellerth defense is inapplicable. That means

17

Hernández has established a genuine issue of material fact as to each element of a Title VII hostile

18

work environment claim. Defendants’ motion for summary judgment as to Hernández’s hostile

19

work environment claim is DENIED.

20

C. Retaliation under Title VII

21

Title VII prohibits employers from retaliating against an employee who opposes

22

discriminatory employment practices. 42 U.S.C. § 2000e–3(a). To show retaliation under Title

23

VII, plaintiff must establish: (1) that she engaged in a protected activity; (2) that she suffered a

24
15

Civil No. 15-1147 (GAG)
1

materially adverse employment action; and (3) a causal link between the protected activity and the

2

adverse action. Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). Once

3

plaintiff establishes a prima facie showing of retaliation, the burden shifts to defendant, who must

4

“articulate a legitimate, non-retaliatory reason” for the adverse employment action. Id. at 46. If

5

defendant can make this showing, the burden shifts to plaintiff once again. At this stage, plaintiff

6

must “show that the proffered legitimate reason is in fact a pretext and that the job action was the

7

result of the defendant’s retaliatory animus.” Pérez-Cordero, 656 F.3d at 31 (quoting Roman v.

8

Potter, 604 F.3d 34, 39 (1st Cir. 2010)) (further citations and quotations omitted).

9

The first element is easily resolved. Hernández undertook a protected activity when she

10

reported Rivera’s conduct on May 3, 2013.

See Pérez-Cordero, 656 F.3d at 31 (reporting

11

harassment to superiors is opposition to a discriminatory practice under Title VII).

12

The parties dispute whether Hernández suffered an adverse employment action when she

13

was transferred to the Aguadilla II local office. The transfer was arguably adverse because a jury

14

could find the transfer affected and altered Hernández’s workplace conditions. See Burns v.

15

Johnson, 829 F.3d 1, 10 (1st Cir. 2016) (citing Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st

16

Cir. 2010)) (discussing an adverse employment action in the context of a sex discrimination claim).

17

Defendants argue Hernández failed to object to the transfer, that transfers were routine, and that

18

this particular transfer was not adverse because Hernández’s commute was only increased by six

19

minutes. Hernández disputes these points, but even she did not, Defendants’ arguments are

20

unavailing. Hernández’s transfer to a different office was material, and therefore actionable,

21

because a change of office, coworkers, supervisors, and day-to-day duties constitutes “reassignment

22

with significantly different responsibilities.” See Morales-Vallellanes, 605 F.3d at 35 (quoting

23

Ellerth, 524 U.S. at 761).

24
16

Civil No. 15-1147 (GAG)
1

The third question is whether Hernández’s “protected activity was a but-for cause of the

2

alleged adverse action by the employer.” Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206,

3

221-22 (1st Cir. 2016) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534

4

(2013)).

5

Hernández would be transferred on the same day, and Hernández began her duties at Aguadilla II

6

the following Monday. The timing of Hernández’s transfer supports a finding of causation.

7

See, e.g., Collazo, 617 F.3d at 50 (three complaints of harassment and plaintiff’s termination

8

occurred within two weeks, supporting the inference of causation). Temporal proximity may not

9

be determinative standing alone, but when an adverse action follows closely after protected conduct,

10

“the timing often is strongly suggestive of retaliation.” Noviello, 398 F.3d at 86. Here, that strong

11

suggestion is sufficient evidence from which a jury could reasonably infer a causal connection

12

between Hernández’s protected activity and adverse employment action.

Hernández’s protected conduct occurred on May 3, 2013, Rodríguez determined

13

In step two of the burden-shifting framework, an employer must show a legitimate, non-

14

retaliatory reason for the employment decision. Collazo, 617 F.3d at 46. Legitimate business

15

reasons for an employment decision may include, for example: corporate reorganization, office

16

downsizing, or poor job performance. Id. at 50. However, Defendants argument does not fall into

17

any of these categories. Instead, Defendants claim “safeguarding and protecting plaintiff” (i.e., the

18

victim) was the legitimate, non-retaliatory basis for Hernández’s transfer. (Docket No. 50, at 17;

19

see also DSUMF ¶ 108; PRSUMF ¶ 108.) Hernández had to be transferred after her complaint,

20

Defendants argue, because Rivera’s job duties and compensation was more complicated, making

21

his transfer too difficult. (Docket No. 50, at 17-18.)

22

Presumably, the need to safeguard and protect Hernández refers to Rivera’s harassing

23

conduct. Id. If so, this evidence supports Hernández’s hostile work environment claim, as

24
17

Civil No. 15-1147 (GAG)
1

discussed above. If not, then this rationale appears either unnecessary or punitive. In this situation,

2

where “the evidence can reasonably be viewed as demonstrating either discriminatory animus or

3

retaliatory animus, [the Court] may consider the same evidence in assessing the sufficiency of both

4

of the plaintiff’s claims.” See Pérez-Cordero, 656 F.3d at 32; Agusty-Reyes, 601 F.3d at 52-57

5

(escalating harassing behavior sufficient evidence for both the severe or pervasive element of sexual

6

harassment, as well as a retaliation claim); Morales-Vallellanes, 605 F.3d at 37-40 (employer’s

7

conduct simultaneously probative of discrimination and retaliation claims).

8

Rodríguez undisputedly had the authority to transfer Hernández. But Rodríguez’s authority

9

to transfer, standing alone, is not evidence of a legitimate basis to transfer. Similarly, Hernández

10

had been transferred between offices before, but that does not explain the May 3rd transfer.

11

Hernández began working at Aguadilla I in April 2013 because that office had an urgent staffing

12

need. (DSUMF ¶ 6; PRSUMF ¶ 6.) Nothing suggests the staffing need vanished a month later.

13

When Hernández was transferred out of Aguadilla I, she lost the opportunity to contribute to the

14

local office where her services were needed most. Additionally, Hernández’s duties changed when

15

she was transferred to Aguadilla II. Rather than perform secretarial work for the director of the

16

local office, Hernández worked as a cashier in Aguadilla II. (Docket No. 51-1, at 34.)

17

The core retaliation inquiry is whether “a reasonable employee would have found the

18

challenged action materially adverse.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Based

19

on the evidence here, an objective observer in Hernández’s position could have understood the

20

immediate transfer to a different office in this context as an effort to “dissuade[ ] a reasonable

21

worker from making or supporting a change of discrimination.”

22

employment action, for the purposes of summary judgment, was materially adverse.

23

Defendants have failed to show a legitimate, non-retaliatory reason for Hernández’s transfer, so the

24
18

See id.

That means the
Thus,

Civil No. 15-1147 (GAG)
1

Court does not address the third step of the burden-shifting framework. Defendants’ motion for

2

summary judgment on the Title VII retaliation claim is denied.

3

D. Supplemental State Law Claims

4

Defendants also seek summary judgment on Hernández’s Law 17 and Law 69 claims.6 Law

5

17 provides that sexual harassment in employment is an “illegal and undesirable practice.”

6

Tit. 29, § 155. Law 69 prohibits gender based employment discrimination. Id. § 1321. “Law 17

7

and 69 serve virtually the same purposes and outlaw essentially identical behavior, and Law 69’s

8

specific prohibition on gender discrimination overlaps with Law 17’s bar on sexual harassment.”

9

Gerald v. Univ. of P.R., 707 F.3d 7, 28 (2013) (citing García v. Sprint PCS Caribe, 841 F. Supp. 2d

10

538, 564 (D.P.R. 2012)).

11

Defendants raise two arguments for summary judgment on Hernández’s Law 17 and Law 69

12

claims. First, Defendants incorporate their Title VII arguments and seek dismissal of Law 17 and

13

Law 69 claims on the same basis. (Docket No. 50, at 19.) Second, Defendants argue the Law 17

14

and Law 69 personal capacity claims against Rivera and Rodríguez are time barred. Id. at 19-20.

15

Taking up the latter argument first, Rivera and Rodríguez claim they did not receive a copy

16

of Hernández’s EEOC charge within Puerto Rico’s one-year statute of limitations period.

17

Accordingly, Rivera and Rodríguez argue Hernández’s failure to provide personal notice of the

18

EEOC charge meant the limitations period was not tolled, so the Law 17 and Law 69 personal

19

capacity claims are now time barred.

20
21
22
6

23
24

Defendants do not seek summary judgment on Hernández’s Law 115 claim. The Court previously
dismissed with prejudice Hernández’s claim under “Law 115 against Individual Defendants” and any Law 115
claim against the Commonwealth Defendants seeking monetary damages. Hernández-Méndez, 137 F. Supp. 3d
at 161. Plaintiff’s Law 115 claim for non-monetary relief against the Commonwealth Defendants continues.

19

Civil No. 15-1147 (GAG)
1

A one-year statute of limitations applies to Law 17 and Law 69. Tit., 29 § 155m; Gerald,

2

707 F.3d at 27 (citations omitted). However, the filing of an extrajudicial claim—such as an EEOC

3

complaint alleging sex discrimination in violation of Title VII—tolls the statute of limitations on

4

equivalent state law claims, including Law 17 and Law 69 claims. Valentin-Almeyda, 447 F.3d at

5

101 (citing Tit., 31 § 5303) (tolling a Law 17 claim); Rodríguez-Torres v. Caribbean Farm Mfr., 399

6

F.3d 52, 61 (1st Cir. 2005) (tolling a Law 69 claim). For the extrajudicial claim (i.e., the EEOC

7

charge) to toll the limitations period, two requirements must be satisfied: (1) identicality between

8

the two claims; and (2) the defendant-employer must be put on notice of the claim against him.

9

Gerald, 707 F.3d at 27; Valentin-Almeyda, 447 F.3d at 101; Rodríguez-Torres, 399 F.3d at 61. Here,

10

Hernández’s EEOC charge satisfied the identicality requirement. See, e.g., Valentin-Almeyda, 447

11

F.3d at 101-02 (an administrative charge naming defendant supervisor and stating the elements of

12

discrimination, without specifically referencing Title VII or Law 17, sufficiently identical because

13

Title VII and Law 17 are interpreted congruently).

14

Rivera and Rodríguez challenge the notice element. Specifically, they insist Puerto Rico law

15

requires that any individual capacity defendants receive actual, personal notice to toll the statute of

16

limitations, and cite Huertas-Gonzalez v. Univ. of P.R., 520 F. Supp. 2d 304, 318 (D.P.R. 2007) in

17

support of that proposition. (Docket No. 78, at 2-3.) However, the First Circuit has previously

18

indicated that Puerto Rico’s notice requirement for tolling the statute of limitations is not as rigid as

19

Rivera and Rodríguez suggest. See Valentin-Almeyda, 447 F.3d at 100-02 (affirming district court

20

denial of defendant’s motion to dismiss on timeliness grounds); Gerald, 707 F.3d at 27-28 (declining

21

to affirm a district court grant of summary judgment on timeliness grounds where the administrative

22

charge was not in the record and where the record was devoid of evidence of actual notice).

23
24
20

Civil No. 15-1147 (GAG)
1

The parties vigorously dispute whether Rivera and Rodríguez received, read, and understood

2

the EEOC charge against them. Rivera and Rodríguez were named on Hernández’s description of

3

events attached to the EEOC charge. (Docket No. 70-3.) However, the record does not make clear

4

whether Rivera and Rodríguez actually received or reviewed the EEOC charge. Hernández admits

5

that she did not personally notify Rivera or Rodríguez of the EEOC charge. (DSUMF ¶¶ 68-75;

6

PRSUMF ¶¶ 68-75.) Instead, Hernández contends Rivera and Rodríguez were on constructive

7

notice of the EEOC charges, based on their actual notice of the May 3rd and October 3rd complaints,

8

and because the EEOC charge was sent to the Family Department, where Rivera and Rodríguez

9

would have received it. (Docket No. 66, at 16-17.) Indeed, based on the evasive the deposition

10

testimony of Rivera and Rodríguez, there is at least an inference Rivera and Rodríguez knew they

11

were named the EEOC charge, knew the charge was received by the Family Department, and knew

12

enough not to look into the matter any further. (Docket Nos. 51-8, at 63-69; 66-2, at 85-89.)

13

As the Court previously stated at the motion to dismiss stage, the notice inquiry is “context-

14

driven and fact-specific.” Hernández-Méndez, 137 F. Supp. 3d at 159; see also Gerald, 707 F.3d at

15

27-28 (declining to affirm summary judgment dismissal as time based on an underdeveloped factual

16

record). Even after discovery, the factual record is underdeveloped and unclear as to Rivera and

17

Rodríguez’s actual notice of the EEOC charge. Given this uncertainty, the jury must resolve the

18

notice question. Hernández filed her EEOC charge on November 11, 2013, received her right to sue

19

letter on November 29, 2014, and filed suit on February 19, 2015. Accordingly, Rivera and

20

Rodríguez are not entitled to judgment as a matter of law on the grounds of timeliness.

21

Turning to the merits, Defendants are not entitled to summary judgment on the Law 17 or

22

Law 69 claims for the same reasons set forth in the Court’s analysis of the Title VII claims. The

23

substantive law of Puerto Rico on sexual harassment closely tracks its federal counterpart and Title

24
21

Civil No. 15-1147 (GAG)
1

VII precedent is used to construe local law. Gerald, 707 F.3d at 28 (citation omitted). Therefore,

2

Defendants claims for summary judgment on Law 17 and Law 69 are denied.

3

IV.

4
5

Conclusion
For the reasons set forth above, Defendants’ motion for summary judgment at Docket No.

50 is DENIED.

6

SO ORDERED.

7

In San Juan, Puerto Rico, this 1st day of August, 2017.

8

s/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
22