Cerezo-Martin v. Ferrovial Agroman S.A.

Filing 22

OPINION AND ORDER re 10 Motion for Summary Judgment. The Court GRANTS IN PART AND DENIES IN PART defendant's motion for summary judgment. Signed by Judge Francisco A. Besosa on 10/04/2016. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
TOMAS CEREZO-MARTIN,
Plaintiff,
CIVIL NO. 15-1350 (FAB)

v.
FERROVIAL AGROMAN, S.A.,
Defendant.

OPINION AND ORDER
BESOSA, District Judge.
Pending before the Court is defendant Ferrovial Agroman S.A.
(“Ferrovial”)’s

motion

for

summary

judgment

dismissal of this case in its entirety.

requesting

(Docket No. 10.)

the

Having

considered defendant’s motion, as well as plaintiff’s opposition,
(Docket No. 15), the Court GRANTS IN PART AND DENIES IN PART the
motion for summary judgment.
I.
A.

BACKGROUND

Procedural Background
On April 6, 2015, plaintiff Tomas Cerezo-Martin (“Cerezo”)

filed a complaint against Ferrovial alleging discrimination on the
basis of his national origin in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000e–15;
Puerto Rico Law No. 100 (“Law 100”), P.R. Laws Ann. tit. 29, § 146
et seq.; and Puerto Rico Law No. 80 (“Law 80”), P.R. Laws Ann.
tit. 29, §§ 185a–185m.

(Docket No. 1.)

On November 12, 2015,

Civil No. 15-1350 (FAB)

2

Ferrovial filed a motion for summary judgment arguing that Cerezo
cannot establish a valid claim of national original discrimination
because:

(1) he is unable to make out a prima facie case of

discrimination, and (2) he cannot show that Ferrovial’s proffered
reason for terminating his employment is pretextual.
No. 10.)

(Docket

On December 12, 2015, Cerezo filed an opposition to the

motion for summary judgment, asserting that:

(1) all prima facie

elements for a hostile work environment claim pursuant to Title VII
are present, and (2) his claim of national origin discrimination is
viable when analyzed using a “mixed-motives” framework.

(Docket

No. 15.)
B.

Uncontested Relevant Facts1
Cerezo is a Spanish national who was born and raised in the

town of Herguijuela de la Sierra near the city of Salamanca, Spain.
(Docket No. 15-2.)

He lived in Salamanca until the age of 36, at

which time he moved to Puerto Rico.

Id.

He was first hired by

Ferrovial - a registered foreign corporation authorized to conduct
business in Puerto Rico - on February 8, 2005.

(Docket No. 9-1.)

This employment, however, was subject to a one month probationary

1

Defendant failed to file a reply to plaintiff’s opposing
statement of uncontested material facts contained in Docket
No. 15-1.
Because the additional facts alleged in plaintiff’s
opposition were supported by citations to appropriate record
materials, see Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell
v. Medfit Int’l, Inc., 982 F.2d 686 (1st Cir. 1993) (holding that
unsworn statements signed under penalty of perjury can be used to
oppose a motion for summary judgment), those facts are deemed
admitted by defendant pursuant to Local Rule 56(e).

Civil No. 15-1350 (FAB)
period.

3

(Docket No. 16-2.)

Cerezo did not pass this period and

was terminated on March 8, 2005.

(Docket No. 16-3.) Several years

later, in December 2009, he was again hired by Ferrovial in Puerto
Rico and remained there until March 18, 2011, at which time he
voluntarily resigned from his job as a foreman. (Docket No. 16-4.)
He was hired by Ferrovial for a third time on January 23, 2012 as
a foreman and was stationed at a construction project located in
Aguadilla.

(Docket

No.

16-5.)

On

March

19,

2012,

he

was

reassigned to the same project where he had worked during his 20092011 employment with the company, which was now directed by project
manager Mr. Noel Cintron (“Cintron”). (Docket No. 9-1.) After his
arrival at this project, Cerezo began to experience problems with
certain co-workers, who made “xenophobic insults” and frequently
told him to “stay in Spain” or to “go back to [his] country” so
that he would not take jobs away from Puerto Ricans.
No. 15-2.)

(Docket

Although he complained about this treatment to several

of his supervisors and to Cintron, no action was ever taken to
address the situation.

Id.

Around October 2013, Cerezo began making plans to vacation in
Spain.

(Docket No. 15-2.)

Although he had hoped to travel from

December 16, 2013 to January 10, 2014, Cintron was unwilling to
approve that period because it included more vacation days than
Cerezo had accumulated during his employment.

(Docket No. 9.)

Following an extended discussion between them, Cerezo finally

Civil No. 15-1350 (FAB)

4

submitted to Cintron a signed vacation request form, which listed
December

23,

2013

as

the

start

date

January 10, 2014 as the end date.

of

his

vacation,

(Docket No. 9-8.)

and

Exercising

the discretion granted to Ferrovial project managers to approve
employee vacation periods, Mr. Cintron accepted that request.
(Docket No. 9.)

Cerezo traveled from Puerto Rico to Spain on

December 16, 2013 and returned on January 12, 2014.

Id.

Upon his

return to work on January 13, 2014, he received a termination
letter stating that he was being fired for “insubordination and job
abandonment.”

(Docket No. 9-1.)

After that date, Ferrovial did

not hire anyone to replace Cerezo, nor did it have the need to do
so.

Id.
II.

SUMMARY JUDGMENT STANDARD

A court will grant summary judgment if the moving party shows,
based on materials in the record, “that there is no genuine dispute
as to any material fact and [he] 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 Rodriguez–Rivera v. Federico Trilla Reg’l
Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008)).

Civil No. 15-1350 (FAB)

5

At the summary judgment stage, a court must construe the
entire record in the light most favorable to the nonmoving party,
drawing all reasonable inferences in its favor.
Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005).

DePoutot v.

The Court refrains

from making credibility determinations and weighing the evidence,
but

it

disregards

any

conclusory

inferences, and unsupported speculation.

allegations,

improbable

McGrath v. Tavares, 757

F.3d 20, 25 (1st Cir. 2014).
III.

DISCUSSION

Cerezo claims that Ferrovial discriminated against him and
subjected him to a hostile work environment because of his national
origin in violation of Title VII and several local laws.

The Court

will now address each of these claims in turn.
A.

Title VII National Origin Discrimination Claims
i.

Discriminatory Discharge
Title VII of the Civil Rights Act of 1964 prohibits

employers from discriminating “against any individual with respect
to

his

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s . . . national origin.”
42 U.S.C. § 2000e-2(a)(1). “National origin” refers to the country
where a person was born or the country from which his or her
ancestors came.
(1973).

A

Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88

plaintiff

may

demonstrate

a

national

origin

discrimination claim pursuant to Title VII “with circumstantial

Civil No. 15-1350 (FAB)

6

evidence through the burden-shifting scheme set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), and/or by presenting evidence of discrimination on the
basis of a prohibited bias under the mixed-motives theory of
discrimination.”

Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016).

Here, plaintiff has indicated that he wishes to avoid McDonnell
Douglas’ “single motive” framework by proceeding pursuant to a
mixed-motive theory of discrimination.

At the same time, however,

he also affirms that Ferrovial’s articulated reason for terminating
his employment was a pretext for national origin discrimination.
Because the issue of pretext is a central characteristic of the
McDonnell Douglas scheme, not of mixed-motive analysis, the Court
will evaluate plaintiff’s claim pursuant to both legal frameworks.
a.

The McDonnell Douglas Framework
Pursuant

to

the

McDonnell

Douglas

scheme,

a

plaintiff who sues pursuant to Title VII must first establish a
prima facie case of discrimination, which creates an inference of
discrimination.

See Kosereis v. Rhode Island, 331 F.3d 207, 212

(1st Cir. 2003). If a prima facie case is established, “the burden
of production — but not the burden of persuasion — shifts to the
employer, who must articulate a legitimate, non-discriminatory
reason for the adverse employment action.”

Lockridge v. The Univ.

of Maine Sys., 597 F.3d 464, 470 (1st Cir. 2010).

If the employer

does so, the plaintiff has to show by a preponderance of the

Civil No. 15-1350 (FAB)

7

evidence that the employer’s proffered explanation is pretextual
and that the actual reason for the adverse employment decision is
discriminatory.

Id.; Smith v. Stratus Computer, Inc., 40 F.3d 11,

16 (1st Cir. 1994).
In
plaintiff

Title

establishes

a

VII

employment

prima

facie

termination

case

of

cases,

national

a

origin

discrimination by showing that:
“(1) the plaintiff is within a protected class;
(2) the plaintiff was qualified for and performing
his or her job at a level that met the employer’s
legitimate expectations; (3) the plaintiff was
nevertheless
dismissed;
and
(4)
after
the
plaintiff’s departure, the employer sought someone
of roughly equivalent qualifications to perform
substantially the same work.”
Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218
F.3d 1, 5 (1st Cir. 2000).

Defendant Ferrovial does not dispute

elements (1)-(3) in its motion for summary judgment.

Rather,

Ferrovial asserts that Cerezo cannot establish a prima facie case
because there is no evidence to support the fourth and final
requirement.

Specifically, Ferrovial contends that the company

neither hired anyone to replace Cerezo following his discharge, nor
had the need to do so.

This fact is adequately supported by

evidence in the record, see Docket No. 9-1 at p.3, and was not
properly controverted by plaintiff in his opposition. Accordingly,
the Court agrees with Ferrovial and finds that plaintiff is unable
to establish a prima facie case of national origin discrimination,
the first required step pursuant to the McDonnell Douglas standard.

Civil No. 15-1350 (FAB)
b.

8

Mixed-Motives Analysis
As discussed above, the McDonnell Douglas framework

is

not

the

exclusive

discrimination

of

Where

claim.

means

establishing

there

is

a

Title

VII

of

both

evidence

discriminatory and non-discriminatory animus, and the plaintiff
requests it, the court may evaluate the evidence through the
mixed-motive framework set forth in Price Waterhouse v. Hopkins,
490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

See

Moron–Barradas v. Dep’t of Educ. of the Commonwealth of P.R., 488
F.3d 472, 480 (1st Cir. 2007).

Pursuant to this framework,

codified at 42 U.S.C. § 2000e–2(m), a “plaintiff’s burden is
tempered

so

that

discriminatory

[he

action

employment decision.”

or]

was

a

she

need

prove

motivating

factor

only
in

that
an

the

adverse

Patten v. Wal–Mart Stores East, Inc., 300

F.3d 21, 25 (1st Cir. 2002).

In other words, when presenting a

mixed-motive theory, a plaintiff can prove an employer liable by
establishing that the employment decision was motivated in part by
a discriminatory animus, even though other factors besides the
discrimination influenced the employer’s decision.

See Sher v.

U.S. Dep’t of Veterans Affairs, 488 F.3d 489, 508 n.22 (1st Cir.
2007) (“In a mixed motive case, the plaintiff would only have to
establish

that

national

origin

.

.

.

discrimination

was

a

motivating factor in the analysis, rather than the sole basis for
the decision.”)

Additionally, the plaintiff need not present

Civil No. 15-1350 (FAB)

9

direct evidence of discrimination to pursue a mixed-motive theory.
Rather, “[a] plaintiff is entitled to prove discrimination by
circumstantial evidence alone.”

Chadwick v. WellPoint, Inc., 561

F.3d 38, 46 (1st Cir. 2009); see also Desert Palace, Inc. v. Costa,
539 U.S. 90, 98–99 (2003) (holding that Title VII “does not
mention, much less require, that a plaintiff make a heightened
showing through direct evidence” in mixed-motive cases).

Once the

plaintiff demonstrates that his membership in a protected class was
a motivating factor behind an adverse employment decision, the
employer is given an opportunity “to prove by a preponderance of
the evidence that it would have made the same decision regardless
of the impermissible consideration.”

Diaz v. Jiten Hotel Mgmt.,

Inc.,

2012).

671

F.3d

78,

82

(1st

Cir.

If

the

employer

successfully invokes this “limited affirmative defense,” it is not
absolved of liability, but the remedies available to the plaintiff
are effectively restricted.

Desert Palace, 539 U.S. at 94.

Ferrovial did not reply to plaintiff’s opposition.
It therefore did not directly address Cerezo’s invocation of mixedmotive analysis or the issue of whether his national origin was a
motivating - rather than the single - factor behind his discharge.
In its motion for summary judgment, however, Ferrovial asserts that
the record is devoid of evidence that would support a finding that
discriminatory animus played any role in the decision to terminate
Cerezo’s employment.

(Docket No. 10 at p. 12.)

The Court agrees.

Civil No. 15-1350 (FAB)
As

the

First

Circuit

10
Court

of

Appeals

has

noted,

“even

in

mixed-motive cases, plaintiffs must present enough evidence to
permit a finding that . . . the adverse employment decision was
caused at least in part by a forbidden type of bias.”

Hillstrom v.

Best W. TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003).

Here, the

record

in

before

the

Court

reveals

various

incidents

which

plaintiff was harassed and ridiculed by several co-workers on the
basis of his Spanish nationality. As discussed below, these events
are problematic and the law may indeed provide an avenue through
which Cerezo can seek redress for those indignities. Nevertheless,
plaintiff offers no evidence to show how those hostile encounters
with his colleagues translated into discriminatory intent on the
part of those responsible for the termination decision. Rather, he
simply imputes the animus shown by his co-workers to the decisionmaker behind his discharge.

This speculative leap is especially

suspect given that the decision-maker in this case, Mr. Cintron,
was also the individual who, knowing of Cerezo’s Spanish heritage,
specifically sought him out for repeated employment with Ferrovial.
(Docket No. 15-2 at p. 2.)

Thus, even when viewing the record in

the light most favorable to him, the Court finds that Cerezo has
adduced insufficient circumstantial evidence to establish a genuine
issue of material fact as to whether his Spanish nationality was a
motivating

factor

behind

Ferrovial’s

termination

decision.

Accordingly, defendant’s motion for summary judgment with respect

Civil No. 15-1350 (FAB)

11

to plaintiff’s Title VII claim for discriminatory discharge is
GRANTED.2
ii.

Hostile Work Environment
Plaintiff’s second cause of action pursuant to Title VII

concerns the existence of a hostile work environment.

“When the

workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment, Title VII is violated.”

Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation
marks omitted).

To prevail on his hostile workplace environment

claim, Cerezo must show:

(1) that he is a member of a protected

class; (2) that he was subjected to unwelcome harassment; (3) that
the harassment was based on his membership of the protected class;
(4) that the harassment was so severe or pervasive that it altered
the conditions of his employment and created an abusive work

2

The Court notes that Cerezo would perhaps have been better
served by bringing a claim pursuant to Title VII’s anti-retaliation
provision, which makes it unlawful for an employer to retaliate
against a person who complains about discriminatory employment
practices. See 42 U.S.C. § 2000e–3(a). Here, the record reveals
that plaintiff complained several times about the harassment
perpetrated by his co-workers and was fired within a relatively
short period of time thereafter. While those facts are not alone
sufficient to support a finding of discriminatory animus on the
part of those in charge of the termination decision, they were
likely adequate to get a claim of retaliation before a jury. By
failing to raise that type of claim in either his complaint or his
opposition to defendant’s motion for summary judgment, however,
plaintiff waived that specific cause of action.

Civil No. 15-1350 (FAB)

12

environment; (5) that the objectionable conduct was objectively and
subjectively offensive, such that a reasonable person would find it
hostile or abusive and the victim in fact did perceive it to be so;
and

(6)

that

established.

some

basis

for

employer

liability

has

been

See Torres-Negron v. Merck & Co., Inc., 488 F.3d 34,

39 (1st Cir. 2007).

The record in this case contains sufficient

facts to demonstrate that plaintiff was the victim of unwelcome
harassment based on his Spanish nationality.
occasion,

plaintiff

was

subjected

to

On more than one

xenophobic

comments

and

insults, including being called a “chicken shit Spaniard,” a
“Spanish son of a bitch,” and a “Spanish cabron.”
at p. 2-3.)
country”

(Docket No. 15-2

He was also told multiple times to “go back to [his]

and

to

stop

taking

jobs

away

from

Puerto

Ricans.

Furthermore, the record shows that Ferrovial was aware of this
harassment, as plaintiff had complained both to his supervisors and
a project manager about these incidents.

(Docket No. 15-2 at

p. 4.) The essential inquiry, therefore, is whether this unwelcome
harassment was sufficiently severe or pervasive for plaintiff’s
claim to move forward to trial.
a.

Severe or Pervasive
The severe or pervasive inquiry is “highly fact

specific.”

Gorski v. New Hampshire Dep’t of Corr., 290 F.3d 466,

474 (1st Cir. 2002). There is no “mathematically precise test” for
determining when conduct in the workplace moves beyond the “merely

Civil No. 15-1350 (FAB)
offensive”

and

enters

13
the

realm

Harris, 510 U.S. at 21-22.

of

unlawful

discrimination.

Rather, the court must consider the

totality of the circumstances in making its assessment.

See

Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 83 (1st Cir.
2006). Factors the court should consider include “the frequency of
the discriminatory conduct; its severity; whether it is threatening
or humiliating, or merely an offensive utterance; and whether it
unreasonably interferes with the employee’s work performance.”
Harris, 510 U.S. at 23.

Using these factors as a rough guide, the

court’s

distinguish

role

is

“to

between

the

ordinary,

if

occasionally unpleasant, vicissitudes of the workplace and actual
harassment.”
2005).

Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir.

Nevertheless, “[s]ubject to some policing at the outer

bounds,” it is generally “for the jury to weigh those factors and
decide whether the harassment was of a kind or to a degree that a
reasonable person would have felt that it affected the conditions
of her employment.”

Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19

(1st Cir. 2002) (internal quotation marks omitted).
The

record

before

the

Court,

at

least

with

respect

to

plaintiff’s hostile work environment claim, consists primarily of
Cerezo’s own unsworn statement taken under penalty of perjury.
Although it is unlikely that any of the individual incidents he
alleges would rise to the level of actionable harassment on their
own,

the

Court’s

concern

must

be

with

the

totality

of

the

Civil No. 15-1350 (FAB)

14

circumstances. Viewing the evidence in the light most favorable to
plaintiff and resolving all factual disputes in his favor, the
Court finds that the evidence in this case would permit - although
it certainly would not compel - a reasonable jury to find that
plaintiff was indeed subjected to a hostile work environment.

The

record discloses numerous incidents in which Cerezo’s co-workers
disparaged and threatened him on the basis of his national origin.
Several of them repeatedly told Cerezo that he should return to his
home

country

and

engaged

in

xenophobic

name

calling.

This

evidence, although thin, is sufficient to raise a triable issue of
material fact as to whether the harassment allegedly perpetrated by
certain colleagues was sufficiently severe or pervasive to create
a hostile work environment.

Accordingly, it is enough to allow

Cerezo to take this claim to a jury.

Ferrovial’s motion for

summary judgment with respect to that specific cause of action is
therefore DENIED.
B.

Supplemental Commonwealth Law Claims
Plaintiff

Cerezo

also

invokes

the

Court’s

supplemental

jurisdiction over his Commonwealth law claims, which are brought
pursuant to Laws 100 and 80.
i.

Discriminatory Discharge and Hostile Work Environment
Claims pursuant to Puerto Rico Law 100
“Law 100 is a broad antidiscrimination statute analogous

to Title VII in many respects.”

Perez-Cordero v. Wal-Mart Puerto

Rico, Inc., 656 F.3d 19, 26 n.10 (1st Cir. 2011) (citing Monteagudo

Civil No. 15-1350 (FAB)

15

v. Asociación de Empleados del Estado Libre Asociado de P.R., 554
F.3d 164, 169 n.3 (1st Cir. 2009) (describing Law 100 as an
analogue

to

Title

VII)).

While

Law

100

employs

different

presumptions and burdens of proof than Title VII, “the burden of
proof on the ultimate issue remains with the plaintiff in both
causes of action.”

Rivera-Rodríguez v. Sears Roebuck de Puerto

Rico, Inc., 432 F.3d 379, 383 n.2 (1st Cir. 2005).

Thus, where a

plaintiff has “adduced no significantly probative evidence that his
discharge

was

motivated

by

[discriminatory

animus],”

judgment on a pending Law 100 claim is appropriate.

summary

Dávila v.

Corp. de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 18 (1st
Cir. 2007).

As discussed above, Cerezo’s discriminatory discharge

claim fails under federal law because the evidence offered in the
record is insufficient to raise a genuine issue as to whether
Ferrovial’s conduct was motivated, even in part, by national origin
discrimination.

A claim for discriminatory discharge pursuant to

Law 100 is, therefore, equally insupportable and must suffer the
same fate as Cerezo’s Title VII claim.
Nevertheless, a hostile work environment claim pursuant
to Law 100 remains viable.

Courts in this district have held that

hostile work environment claims brought pursuant to Law 100 are
“essentially the same as a Title VII hostile work environment
claim.”

See Aponte–Rivera v. DHL Solutions (USA), Inc., 2010 WL

376330, *2 (D.P.R. 2010) (Leinenweber, J.) (collecting cases); see

Civil No. 15-1350 (FAB)

16

also Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 56
(1st

Cir.

2000)

(using

Title

VII

hostile

precedents to construe Puerto Rico law.)

work

environment

Because the Court has

determined that plaintiff’s Title VII hostile work environment
claim should proceed to trial, defendant’s motion for summary
judgment with respect to that claim’s Law 100 counterpart is also
DENIED.
ii.

Puerto Rico Law 80 Claim for Unjust Dismissal
Puerto Rico Law 80 prohibits dismissal of employees

without just cause. The statute permits dismissals for a number of
reasons, including an employee’s improper or disorderly conduct,
negligent

attitude

towards

his

employer’s rules and regulations.
§ 185b.

work,

and

violations

of

the

See P.R. Laws Ann. tit. 29,

On the other hand, “[a] discharge made by mere whim or

fancy of the employer or without cause related to the proper and
normal operation of the establishment shall not be considered as a
discharge for [just] cause.”

Id.

Once the plaintiff has proven

that he was directly or constructively discharged, Law 80 shifts
the burden of proof to the employer to show that the discharge was
justified.

See P.R. Laws Ann. tit. 29, § 185k.

“Accordingly,

Law 80 establishes a presumption of unjust dismissal against
employers.” Varela-Teron v. Banco Santander de Puerto Rico, 257 F.
Supp. 2d 454, 464 (D.P.R. 2003) (Laffitte, J.).

Civil No. 15-1350 (FAB)

17

Here, the record shows that Ferrovial’s stated reason for
terminating
abandonment.”
asserts that

plaintiff

was

for

“insubordination

(Docket No. 9-1 at p. 3.)
Cerezo

took

vacation

time

and

job

Specifically, Ferrovial
beyond what

had been

authorized in a Vacation Request Form that had been filled out by
him and approved by his superiors. Id. Ferrovial further contends
that, pursuant to company protocol, employees are required to fill
out a Vacation Request Form for all vacation requests and that “no
verbal request of vacation time and/or verbal authorization for
vacation time are permitted.”

Id. at p. 2.

Plaintiff, however,

disputes this latter point and presents evidence indicating that
one of his supervisors had orally granted him permission to extend
his vacation period without submitting another, revised request
form.

(Docket No. 15-2 at pp. 5-6.)

This contradictory evidence

raises a genuine dispute of material fact as to whether plaintiff’s
extended vacation time had been validly authorized pursuant to
Ferrovial’s internal procedures.

Because the question of whether

Ferrovial had “just cause” to terminate plaintiff hinges on the
resolution of that dispute, summary judgment as to plaintiff’s
Law 80 claim is inappropriate at this time.

Defendant’s motion

with respect to that particular cause of action is therefore
DENIED.

Civil No. 15-1350 (FAB)

18
IV.

CONCLUSION

The Court GRANTS IN PART AND DENIES IN PART defendant’s motion
for summary judgment. (Docket No. 10.) Plaintiff fails to present
sufficient evidence to establish an issue of material fact as to
whether

Ferrovial’s

decision

to

terminate

his

employment

motivated, even in part, by discriminatory animus.

was

Defendant’s

motion for summary judgment with respect to plaintiff’s Title VII
and Law 100 discriminatory discharge claims is therefore GRANTED.
Because a reasonable jury could find that the harassing conduct of
plaintiff’s various co-workers was sufficiently severe or pervasive
to alter the conditions of plaintiff’s employment, defendant’s
motion for summary judgment with respect to Cerezo’s Title VII and
Law 100 hostile work environment claims is DENIED.

Finally, a

genuine dispute of material fact exists as to whether Cerezo had
obtained proper authorization for his extended vacation period,
and, therefore, whether Ferrovial had just cause to terminate his
employment.

Ferrovial’s motion for summary judgment with respect

to Cerezo’s Law 80 claim is therefore DENIED.
IT IS SO ORDERED.
San Juan, Puerto Rico, October 4, 2016.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge