Camacho-Acosta et al v. Harbor Holdings & Operations, Inc. et al, No. 3:2007cv01109 - Document 70 (D.P.R. 2009)
Court Description: ORDER granting in part 36 Motion for Summary Judgment. Signed by Judge Raymond L. Acosta on 12/21/09. (ans)
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Camacho-Acosta et al v. Harbor Holdings & Operations, Inc. et al Doc. 70 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 5 6 7 8 MORIDIA CAMACHO ACOSTA, et al., Plaintiffs, CIVIL NO. 07-1109 (RLA) v. HARBOR HOLDINGS & OPERATIONS, INC., et al., Defendants. 9 10 ORDER IN THE MATTER OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 16 17 18 19 20 21 Defendants have moved the court to enter summary judgment on their behalf and to dismiss the instant complaint. The court having reviewed the arguments presented by the parties in their respective memoranda as well as the extensive documentation submitted therewith hereby disposes of defendants’ request as follows. Plaintiff MORIDIA CAMACHO ACOSTA1 instituted these proceedings claiming sexual harassment, gender discrimination and retaliation pursuant to the provisions of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e(3) and § 2000e(5) as well as various local discrimination provisions.2 22 23 1 Plaintiff’s husband, JOSE A. VELEZ DUVERGE, also seeks relief based on local tort provisions. 24 2 25 26 Puerto Rico 29, §§ 146 et seq. 69 of July 6, 1985, (retaliation); Act Act No. 100 of June 30, 1959, P.R. Laws Ann. tit. (2002) (sex discrimination); Puerto Rico Act No. Laws of P.R. Ann. tit. 29, §§ 1321 et seq. (2002) No. 17 of April 22, 1988, P.R. Laws Ann. tit. 29 Dockets.Justia.com 1 CIVIL NO. 07-1109 (RLA) Page 2 2 Relief was also petitioned under the provisions of Act No. 139 3 of June 26, 1968, P.R. Laws Ann. tit. 11, §§ 201 et seq. (2007) 4 (“Temporary Disability Benefit Act”). 5 Plaintiff further claims unjust termination pursuant to Act 80 6 of May 30, 1976, P.R. Laws Ann. tit. 29, §§ 185a-185k (2002) (“Law 7 80”) and breach of contract. The complaint also asserts tort claims 8 under arts. 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws 9 Ann. tit. 31, §§ 5141-5142 (2002). 10 Named defendants are: HARBOR HOLDINGS & OPERATIONS, INC. 11 (“HH&O”), SAN JUAN BAY PILOTS (“SJBP”), STEPHEN RIVERA, CESAR A. 12 MONTES, JOSEPH ESTRELLA, DANIEL MURPHY, EMIL DIAZ, ROBERTO CANDELARIO 13 and FULGENCIO ANAVITATE. 14 I. SUMMARY JUDGMENT STANDARD 15 Rule 56(c) Fed. R. Civ. P., which sets forth the standard for 16 ruling on summary judgment motions, in pertinent part provides that 17 they shall be granted “if the pleadings, depositions, answers to 18 interrogatories, and admissions on file, together with the 19 affidavits, if any, show that there is no genuine issue as to any 20 material fact and that the moving party is entitled to a judgment as 21 a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st 22 Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 23 1999). The party seeking summary judgment must first demonstrate the 24 25 26 § 155 (2002) (Law 17) (sexual harassment); Act No. 3 of March 13, 1942, P.R. Laws Ann. tit. 29, § 469 (2002) (pregnancy discrimination). 1 CIVIL NO. 07-1109 (RLA) Page 3 2 absence of a genuine issue of material fact in the record. 3 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). A genuine 4 issue exists if there is sufficient evidence supporting the claimed 5 factual disputes to require a trial. Morris v. Gov't Dev. Bank of 6 Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. 7 Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 8 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if 9 it might affect the outcome of a lawsuit under the governing law. 10 Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 11 1995). 12 “In ruling on a motion for summary judgment, the court must view 13 ‘the facts in the light most favorable to the non-moving party, 14 drawing all reasonable inferences in that party's favor.’" Poulis15 Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v. 16 Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995)). “In 17 marshaling the facts for this purpose we must draw all reasonable 18 inferences in the light most favorable to the nonmovant. That does 19 not mean, however, that we ought to draw unreasonable inferences or 20 credit bald assertions, empty conclusions, rank conjecture, or 21 vitriolic invective.” Caban Hernandez v. Philip Morris USA, Inc., 486 22 F.3d 1, 8 (1st Cir. 2007) (internal citation omitted, italics in 23 original). 24 Credibility issues fall outside the scope of summary judgment. 25 “‘Credibility determinations, the weighing of the evidence, and the 26 1 CIVIL NO. 07-1109 (RLA) Page 4 2 drawing of legitimate inferences from the facts are jury functions, 3 not those of a judge.’” Reeves v. Sanderson Plumbing Prods., Inc., 4 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 6 91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe, 7 Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“court should not engage in 8 credibility assessments”); Simas v. First Citizens' Fed. Credit 9 Union, 170 F.3d 37, 49 (1st Cir. 1999) (“credibility determinations 10 are for the factfinder at trial, not for the court at summary 11 judgment”); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st 12 Cir. 1998) (credibility issues not proper on summary judgment); 13 Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 14 108, 113 (D.P.R. 2002). “There is no room for credibility 15 determinations, no room for the measured weighing of conflicting 16 evidence such as the trial process entails, and no room for the judge 17 to superimpose his own ideas of probability and likelihood. In fact, 18 only if the record, viewed in this manner and without regard to 19 credibility determinations, reveals no genuine issue as to any 20 material fact may the court enter summary judgment." Cruz-Baez v. 21 Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal 22 citations, brackets and quotation marks omitted). 23 In cases where the non-movant party bears the ultimate burden of 24 proof, he must present definite and competent evidence to rebut a 25 motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 26 1 CIVIL NO. 07-1109 (RLA) Page 5 2 U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v. 3 Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001); Grant's Dairy v. Comm'r 4 of Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot 5 rely upon “conclusory allegations, improbable inferences, and 6 unsupported speculation”. Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st Cir. 2000); Maldonado-Denis v. Castillo-Rodríguez, 23 7 8 F.3d 576, 581 (1st Cir. 1994); Medina-Muñoz v. R.J. Reynolds Tobacco 9 Co., 896 F.2d 5, 8 (1st Cir. 1990). 10 Any testimony used in support of discriminatory motive in a 11 motion for summary judgment setting must be admissible in evidence, 12 i.e., based on personal knowledge and otherwise not contravening 13 evidentiary principles. Rule 56(e) specifically mandates that 14 affidavits submitted in conjunction with the summary judgment 15 mechanism must “be made on personal knowledge, shall set forth such 16 facts as would be admissible in evidence, and shall show 17 affirmatively that the affiant is competent to testify to the matters 18 stated therein.” Hoffman v. Applicators Sales and Serv., Inc., 439 19 F.3d 9, 16 (1st Cir. 2006); Nieves-Luciano v. Hernandez-Torres, 397 20 F.3d 1, 5 (1st Cir. 2005); Carmona v. Toledo, 215 F.3d 124, 131 (1st 21 Cir. 2000). See also, Quiñones v. Buick, 436 F.3d 284, 290 (1st Cir. 22 2006) (affidavit inadmissible given plaintiff’s failure to cite 23 “supporting evidence to which he could testify in court”). 24 Additionally, the document “must concern facts as opposed to 25 conclusions, assumptions, or surmise”, Perez v. Volvo Car Corp., 247 26 1 CIVIL NO. 07-1109 (RLA) Page 6 2 F.3d 303, 316 (1st Cir. 2001), not conclusory allegations Lopez3 Carrasquillo v. Rubianes, 230 F.3d at 414. 4 “To the extent that affidavits submitted in opposition to a 5 motion for summary judgment merely reiterate allegations made in the 6 complaint, without providing specific factual information made on the 7 basis of personal knowledge, they are insufficient. However, a 8 party’s own affidavit, containing relevant information of which he 9 has firsthand knowledge, may be self-serving, but it is nonetheless 10 competent to support or defeat summary judgment.” Santiago v. 11 Centennial, 217 F.3d 46, 53 (1st Cir. 2000) (internal citations and 12 quotation marks omitted). 13 “A court is not obliged to accept as true or to deem as a 14 disputed material fact each and every unsupported, subjective, 15 conclusory, or imaginative statement made to the Court by a party.” 16 Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.5 (1st Cir. 17 2008) (internal citation, brackets and quotation marks omitted). 18 II. FACTUAL BACKGROUND 19 Plaintiff was hired by codefendant HH&O on May 3, 2001, as an 20 accountant at the rate of $12.00 per hour. This was the rate that 21 plaintiff requested at the time she was initially hired. 22 Throughout her tenure, plaintiff was the only female employee 23 working at HH&O. 24 The elected President of the Board of Directors acts as Chief of 25 Personnel of all HH&O’s employees. 26 1 CIVIL NO. 07-1109 (RLA) Page 7 2 Codefendant STEPHEN RIVERA, then President of the Board of 3 Directors of HH&O, interviewed and hired plaintiff. 4 Codefendant HH&O is a corporation created to operate, manage, 5 develop and administer the facilities, services and any other matters 6 related to the services rendered by the harbor pilots in San Juan, 7 Puerto Rico. 8 Codefendant SJBP is a duly organized corporation that groups the 9 harbor pilots serving the port of San Juan, Puerto Rico as the only 10 pilots’ association recognized by the Pilotage Commission for the San 11 Juan Harbor. 12 The individual harbor pilots are independent contractors who 13 provide their services to SJBP. The SJBP does not have any employees 14 on its payroll. 15 The harbor pilots are the individuals responsible for bringing 16 in ships into the San Juan bay. They divide their work shifts in two17 week periods. They work for two weeks and are off duty the following 18 two weeks. Thus, their period of service within a year is 19 approximately 26 weeks, excluding vacation time. The harbor pilots 20 are not required to be present at the offices of HH&O when on duty. 21 During her deposition, plaintiff described her duties as an 22 accountant for HH&O as follows: in charge of completing the entire 23 accounting cycle (i.e., income tax returns, bank reconciliations, 24 general ledger, budget), accounts payable, debt 25 payment to the harbor pilots for services rendered. 26 collection and 1 CIVIL NO. 07-1109 (RLA) Page 8 2 Plaintiff further noted that codefendant EMIL DIAZ was in charge 3 of accounts receivable, accounts payable, billing agencies, 4 collection agencies, employee payroll and billing small vessels. 5 On September 28, 2001, plaintiff was notified of a salary 6 increase from HH&O effective October 1, 2001. The compensation 7 package also included fringe benefits such as medical insurance, life 8 insurance, reimbursement of $500.00 in medical deductibles and 9 $275.00 for an annual medical exam. 10 Via a letter dated October 10, 2002, codefendant ROBERTO 11 CANDELARIO, then President of the Board of Directors, notified 12 plaintiff of a 7% salary increase. In 2002 plaintiff continued to 13 enjoy the same fringe benefits. Further, once she had worked a full 14 year as a permanent employee plaintiff was also added to the 401k 15 plan. 16 On October 3, 2005, plaintiff filed a Charge of Discrimination 17 with the Anti-Discrimination Unit of the Puerto Rico Department of 18 Labor (“PR-DOL”) claiming gender discrimination and sexual 19 harassment. 20 On October 19, 2005, plaintiff filed a second Charge of 21 Discrimination with the Anti-Discrimination Unit of the PR-DOL 22 alleging gender discrimination and retaliation. 23 Plaintiff did not identify or name SJBP as her employer in any 24 of her discrimination charges. 25 26 1 CIVIL NO. 07-1109 (RLA) Page 9 2 On November 14, 2005 plaintiff left work before the end of her 3 shift and filed a criminal complaint in the local police station 4 charging MONTES with breach of peace. 5 According to the police records, this complaint was dismissed 6 due to lack of interest. Plaintiff alleges that she was unaware that 7 the complaint had been dismissed by the police. 8 The following day, on November 15, 2005, plaintiff reported for 9 treatment at the Puerto Rico State Insurance Fund (“SIF”). 10 Plaintiff never returned to work after November 14, 2005. She 11 never resigned from her employment either verbally or in writing even 12 after being released from treatment by the SIF in May 2006. 13 In 2006 HH&O hired MARI TERE RIVERA as an Accountant, initially 14 on a temporary basis. She was subsequently employed on a permanent 15 basis when plaintiff did not return to her job after being discharged 16 from treatment by the SIF. 17 III. TITLE VII - SEXUAL HARASSMENT 18 A. The Law 19 The protection against discrimination in employment based on sex 20 provided by Title VII of the Civil Rights Act of 1964, 42 U.S.C. 21 § 2000e-2(a)(1) has been expanded to areas beyond strictly “economic” 22 and “tangible discrimination” to situations where “sexual harassment 23 is so severe or pervasive as to alter the condition of the victim's 24 employment and create an abusive working environment.” Faragher v. 25 City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 2283, 141 26 1 CIVIL NO. 07-1109 (RLA) Page 10 2 L.Ed.2d 662, 675 (1998) (citations, internal quotation marks and 3 brackets omitted); Billings v. Town of Grafton, 515 F.3d 39, 47 (1st 4 Cir. 2008); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 5 367, 370, 126 L.Ed.2d 295, 302 (1993); Meritor Sav. Bank, FSB v. 6 Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49, 60 7 (1986); Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005). 8 Ascertaining which particular conduct falls within the “severe 9 or pervasive” realm in order to trigger Title VII protection is no 10 easy task. However, “in order to be actionable under the statute, a 11 sexually objectionable environment must be both objectively and 12 subjectively offensive, one that a reasonable person would find 13 hostile or abusive, and one that the victim in fact did perceive to 14 be so.” Faragher, 524 U.S. at 787, 118 S.Ct. at 2283, 141 L.Ed.2d at 15 676; Billings, 515 F.3d at 47; Noviello, 398 F.3d at 92. The court 16 will examine the totality of the circumstances to determine whether 17 the degree of the hostile or abusive environment the employee is 18 subjected to is intense enough to fit within Title VII protection. 19 Faragher, 524 U.S. at 787, 118 S.Ct. at 2283, 141 L.Ed.2d at 676; 20 Noviello, 398 F.3d at 92; Lee-Crespo v. Schering-Plough del Caribe, 21 Inc., 354 F.3d 34, 46 (1st Cir. 2003); Che v. Mass. Bay Transp. Auth., 22 342 F.3d 31, 40 (1st Cir. 2003). 23 [W]hether the environment is objectively hostile or abusive 24 must be answered by reference to all the circumstances, 25 including the frequency of the discriminatory conduct; its 26 1 CIVIL NO. 07-1109 (RLA) Page 11 2 severity; whether it is physically threatening or 3 humiliating, or a mere offensive utterance, and whether it 4 unreasonably interferes with an employee's work 5 performance. 6 Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18-19 (1st Cir. 2002) 7 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 8 367, 126 L.Ed.2d 295 (1993)) (internal citations omitted); Noviello, 9 398 F.3d at 92; Lee-Crespo, 354 F.3d at 46; Che, 342 F.3d at 40; 10 Gorski v. New Hampshire Dep't of Corrections, 290 F.3d 466, 472 (1st 11 Cir. 2002); Conto v. Concord Hosp., Inc., 265 F.3d 79, 82 (1st Cir. 12 2001); O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 13 2001). 14 The First Circuit Court of Appeals summarized the elements 15 plaintiff must prove in order to succeed in her hostile work 16 environment claim as set forth by the Supreme Court. These are: 17 (1) that she... is a member of a protected class; (2) that 18 she was subjected to unwelcome sexual harassment; (3) that 19 the harassment was based upon sex; (4) that the harassment 20 was sufficiently severe or pervasive so as to alter the 21 conditions of plaintiff's employment and create an abusive 22 work environment; (5) that sexually objectionable conduct 23 was both objectively and subjectively offensive, such that 24 a reasonable person would find it hostile or abusive and 25 26 1 CIVIL NO. 07-1109 (RLA) Page 12 2 the victim in fact did perceive it to be so; and (6) that 3 some basis for employer liability has been established. 4 O'Rourke, 235 F.3d at 728. 5 A hostile work environment may result from “sexual remarks, 6 innuendoes, ridicule and intimidation ... disgusting comments” Goya, 7 304 F.3d at 19 (citations and internal quotations omitted) “unwelcome 8 sexual advances or demands for sexual favors” Gorski, 290 F.3d at 472 9 (citations and internal quotations omitted) which are “sufficiently 10 severe or pervasive to alter the conditions of the victim's 11 employment and create an abusive working environment.” O'Rourke, 235 12 F.3d at 728 (citations and quotation marks omitted). See also, 13 Noviello, 398 F.3d at 84. 14 “The point at which a work environment becomes hostile or 15 abusive does not depend on any mathematically precise test. Instead 16 the objective severity of harassment should be judged from the 17 perspective of a reasonable person in the plaintiff’s position 18 considering all the circumstances. These circumstances may include 19 the frequency of the discriminatory conduct; its severity; whether it 20 is physically threatening or humiliating, or a mere offensive 21 utterance; and whether it unreasonably interferes with an employees’ 22 work performance, but are by no means limited to them, and no single 23 factor is required.” Billings, 515 F.3d at 48 (internal citations and 24 quotation marks omitted). 25 26 1 CIVIL NO. 07-1109 (RLA) Page 13 2 Courts must discern between “commonplace indignities typical of 3 the workplace (such as tepid jokes, teasing, or aloofness... and 4 severe or pervasive harassment... [and] [t]he thrust of this inquiry 5 is to distinguish between the ordinary, if occasionally unpleasant, 6 vicissitudes of the workplace and actual harassment.” Id at 92. See 7 also, Lee-Crespo, 354 F.3d at 37 (supervisor’s conduct found “boorish 8 and unprofessional” and plaintiff “subjected to incivility” “but... 9 incidents... not severe or pervasive enough to alter the terms and 10 conditions of [plaintiff’s] employment”). 11 “No particular ‘types of behavior’ are essential to a hostile 12 environment claim.” Billings, 515 F.3d at 48.“[T]he hostility vel non 13 of a workplace does not depend on any particular kind of conduct; 14 indeed, a worker need not be propositioned, touched offensively, or 15 harassed by sexual innuendo in order to have been sexually harassed.” 16 Billings, 515 F.3d at 48 (internal citations, quotation marks and 17 brackets omitted). 18 It is plaintiff's burden to establish the severity and 19 pervasiveness of the harassment sufficient to alter the conditions of 20 her employment. Conto, 265 F.3d at 82. In this particular case 21 plaintiff must also present evidence that the harassment was based on 22 plaintiff’s gender. Lee-Crespo, 354 F.3d at 44 n.6. 23 Because this determination is “fact specific” Conto, 265 F.3d at 24 81, ordinarily “it is for the jury to weigh those factors and decide 25 whether the harassment was of a kind or to a degree that a reasonable 26 1 CIVIL NO. 07-1109 (RLA) Page 14 2 person would have felt that it affected the conditions of her 3 employment.” Goya, 304 F.3d at 19. See also, Che, 342 F.3d at 40 4 (“[a]s a general matter, these are questions best left for the 5 jury.”) 6 B. The Facts 7 According to plaintiff, the following three incidents involving 8 ESTRELLA constitute her only claims of purported sexual harassment 9 while employed with HH&O.3 10 On September 2, 2005 and on September 6, 2005, ESTRELLA told 11 plaintiff that if she deposited funds on that day he would kiss her 12 and on September 13, 2005, ESTRELLA told her she looked tired and 13 offered to give a rub with Ben Gay ointment. Plaintiff testified in 14 her deposition that these three incidents - which took place in 15 September 2005 - were the only comments or acts which she deemed 16 sexual harassment on his part. 17 Plaintiff alleges that apart from rejecting these advances and 18 avoiding ESTRELLA, she brought them to the attention of EMIL DIAZ 19 who failed to take any corrective action. DIAZ denies having received 20 any such complaints. 21 ESTRELLA rejected any discriminatory connotation to his remarks 22 explaining that it was their custom to greet each other with a kiss 23 on the cheek when he met plaintiff and that he used the phrase “If 24 25 3 26 See Opposition to Motion for Summary Judgment (docket No. 42) pp. 9-10, ¶¶ 23-25. 1 CIVIL NO. 07-1109 (RLA) Page 15 2 you are hurting, a little Ben Gay will take the pain away” with 3 everyone at the office. 4 Even assuming ESTRELLA’s remarks were impregnated with the 5 sexual connotation proffered by plaintiff, we find that these three 6 isolated incidents, albeit undesirable in a work setting, do not meet 7 the severity and pervasiveness required by law. In other words, these 8 three comments are legally insufficient to alter plaintiff’s 9 conditions of employment necessary to meet the hostile environment 10 requirements. 11 Based on the foregoing, plaintiff’s Title VII sexual harassment 12 claim is DISMISSED. 13 IV. CONSTRUCTIVE DISCHARGE 14 As the term unequivocally connotes, the sine qua non requirement 15 for a constructive discharge claim is that a plaintiff is compelled 16 to leave his or her employment. 17 [T]he purpose of the constructive discharge doctrine [is] 18 to protect employees from conditions so unreasonably harsh 19 that a reasonable person would feel compelled to leave the 20 job. The doctrine reflects the sensible judgment that 21 employers charged with employment discrimination ought to 22 be accountable for creating working conditions that are so 23 intolerable to a reasonable employee as to compel that 24 person to resign. 25 26 1 CIVIL NO. 07-1109 (RLA) Page 16 2 Ramos v. Davis & Geck, Inc., 167 F.3d 727, 732 (1st Cir. 1999). See 3 also, Feliciano-Hill v. Principi, 439 F.3d 18, 27 (1st Cir. 2006); 4 Vieques Air Link, Inc. v. U.S. Dep’t of Labor, 437 F.3d 102, 108 (1st 5 Cir. 2006). 6 In order to establish a claim based on constructive discharge 7 “plaintiff must prove that his employer imposed working conditions so 8 intolerable that a reasonable person would feel compelled to forsake 9 his job rather than to submit to looming indignities.” Landrau-Romero 10 v. Banco Popular de P.R., 212 F.3d 607, 613 (1st Cir. 2000) (citations 11 and internal quotations omitted); Jorge v. Rumsfeld, 404 F.3d 556, 12 562 (1st Cir. 2005); Simas v. First Citizen’s Fed. Credit Union, 170 13 F.3d 37, 46 (1st Cir. 1999); Serrano-Cruz v. DFI Puerto Rico, Inc., 14 109 F.3d 23, 26 (1st Cir. 1997). See also, Melendez-Arroyo v. 15 Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) 16 (“treatment so hostile or degrading that no reasonable employee would 17 tolerate continuing in the position"). 18 The “subjective perceptions” of the employee are insufficient. 19 The reasonableness of plaintiff’s decision to leave his employment is 20 an objective one and will be examined based on the ability to 21 “present sufficient evidence to allow the jury to credit his claim 22 that a reasonable employee would have felt compelled to resign under 23 the circumstances,” Ramos v. Davis & Geck, Inc., 167 F.3d at 731 and 24 "cannot be triggered solely by the employee's subjective beliefs, no 25 matter how sincerely held." 26 Marrero v. Goya of P.R., Inc., 304 F.3d 1 CIVIL NO. 07-1109 (RLA) Page 17 2 at 28. See also, Feliciano-Hill, 439 F.3d at 27 and Serrano-Cruz, 109 3 F.3d at 26 (applying “objective standard” in examining employer’s 4 actions). 5 Plaintiff is not required to present “proof that the employer 6 created the intolerable work conditions with the specific intent of 7 forcing the employee to resign.” Ramos v. Davis & Geck, Inc., 167 8 F.3d at 732. 9 The court is faced with the difficult task of sorting through 10 the considerable number of proposed uncontested facts submitted by 11 plaintiff in an attempt to get them to fit within the myriad claims 12 asserted by her. Even though both discharge theory of parties have addressed the 13 constructive relief in their respective 14 memoranda, no reference to any particular statute has been proffered 15 to support this particular cause of action. Thus, we shall assume 16 that the constructive discharge claim was a culmination of the 17 allegedly discriminatory harassment asserted under Title VII. 18 Constructive discharge that results from sexual harassment or a 19 hostile work environment is actionable under Title VII. Pennsylvania 20 State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159 21 L.Ed.2d 204 (2004). The Supreme Court has indicated that the hostile 22 work environment claim is a “lesser included component” of “the 23 graver claim of hostile-environment constructive discharge”. Id. at 24 149 (italics in original). In other words, “[c]reation of a hostile 25 work environment is a necessary predicate to a hostile-environment 26 1 CIVIL NO. 07-1109 (RLA) Page 18 2 constructive discharge case... [T]he only variation between the two 3 claims is the severity of the hostile working conditions.” Id. 4 According to plaintiff, she was subjected to working conditions 5 so intolerable that she felt compelled to forsake her job. In her 6 memorandum, plaintiff claims that prevailing atmosphere during her 7 last months at work was permeated with constant harassment which 8 forced her to leave work. 9 However, because we have dismissed plaintiff’s underlying sexual 10 harassment claim we need not pursue arguments regarding alleged 11 harassment culminating in discharge. 12 Accordingly, plaintiff’s constructive discharge claim is hereby 13 DISMISSED. 14 V. GENDER BASED DISCRIMINATION - WORKING CONDITIONS AND PAY 15 Plaintiff further alleges gender based discrimination due to 16 changes to her work schedule, salary increases and fringe benefits as 17 well as difference in pay. 18 A. Burden of Proof 19 Art. 703 of Title VII of the 1964 Civil Rights Act, as amended, 20 makes it unlawful for an employer to “discriminate against any 21 individual with respect to his compensation, terms, conditions, or 22 privileges of employment because of such individual's ... [sex]... or 23 national origin”. 42 U.S.C. § 2000e-2(a)(1). 24 In cases where direct evidence of discrimination is not 25 available, claims alleging denial of “equal terms and conditions of 26 1 CIVIL NO. 07-1109 (RLA) Page 19 2 employment because of [gender]” are subject to the McDonnel Douglas 3 burden shifting framework. Kosereis v. Rhode Is., 331 F.3d 207, 212 4 (1st Cir. 2003). See also, Rodriguez v. Smithkline Beecham, 224 F.3d 5 1, 8 (1st Cir. 2000) (absent direct evidence of discrimination, 6 plaintiff must follow the McDonnell Douglas burden-shifting framework 7 by presenting evidence sufficient to constitute a prima facie case of 8 wage discrimination). 9 In order to meet her initial burden in this action, plaintiff 10 must “show[] by a preponderance of the evidence that she has a job 11 similar to that of higher paid males. Once that prong is established, 12 the defendant must merely provide a non-discriminatory reason for the 13 disparity. The third stop in the evidentiary structure is that the 14 plaintiff must demonstrate by a preponderance of the evidence that 15 the employer’s reason is a pretext for unlawful discrimination.” 16 Rodriguez v. Smithkline Beecham, 62 F.Supp.2d 374, 383 (D.P.R. 1999), 17 aff’d, 224 F.3d 1 (internal citations omitted). 18 Even though they may, in disparate treatment cases plaintiffs 19 are not required to show that they were treated differently than non20 members as part of their prima facie case. “‘[T]he time to consider 21 comparative evidence in a disparate treatment case is at the third 22 step of the burden-shifting ritual, when the need arises to test the 23 pretextuality vel non of the employers’ articulated reason for having 24 acted adversely to the plaintiff’s interest.’” Kosereis, 331 F.3d at 25 26 1 CIVIL NO. 07-1109 (RLA) Page 20 2 213 (citing Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 3 1999); Garcia, 535 F.3d at 31. 4 “A plaintiff can demonstrate that an employer’s stated reasons 5 are pretextual in any number of ways, including by producing evidence 6 that plaintiff was treated differently from similarly situated 7 employees. To successfully allege disparate treatment, a plaintiff 8 must show that others similarly situated to her in all relevant 9 respects were treated differently by the employer. The comparison 10 cases need not be perfect replicas, but they must closely resemble 11 one another in respect to relevant facts and circumstances.” Garcia, 12 535 F.3d at 31 (internal citations, brackets and quotation marks 13 omitted). See Rivera Aponte v. Restaurant Metropol #3, Inc., 338 F.3d 14 9, 12 (1st Cir. 2003) (“[A] claim of disparate treatment based on 15 comparative evidence must rest on proof that the proposed analogue is 16 similarly situated in all material respects”) (quotation omitted). 17 See also, Rivera-Rodriguez v. Frito Lay, 265 F.3d 15, 25 (1st Cir. 18 2001); Rivas v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002); 19 Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st Cir. 20 1999). 21 In examining the matters at issue we must bear in mind that 22 “whether or not personal or professional hostility played a role in 23 the assessment, federal law does not protect generally against 24 arbitrary or unfair treatment in private employment, but only against 25 actions motivated by listed prejudices such as race, age and gender. 26 1 CIVIL NO. 07-1109 (RLA) Page 21 2 Discrimination is a form of unfairness; but not all unfairness is 3 discrimination.” Sabinson v. Trustees of Dartmouth Coll., 542 F.3d 1, 4 4 (1st Cir. 2008). 5 B. Work Schedule 6 Plaintiff claims that changes in her work schedule were 7 discriminatory. When plaintiff was initially hired, her working hours 8 were from 6:30 a.m. to 3:30 p.m. Effective February 8, 2004, the 9 Accounting Department hours were changed to commence at 7:00 a.m. 10 until 4:00 p.m. in order to provide better service to the shipping 11 agencies. Effective February 28, 2005, the work shifts for both 12 plaintiff and IVAL GUTIERREZ were changed again to commence at 8:00 13 a.m. until 5:00 p.m. 14 Based on the foregoing, we find this allegation without merit. 15 Plaintiff has failed to establish that she was treated differently 16 from her male counterparts. The changes at issue equally affected 17 male employees and no evidence of pretext has been found.4 18 Accordingly, the gender discrimination claim based on 19 plaintiff’s work schedule is DISMISSED. 20 C. Salary Revisions and Fringe Benefits 21 We find that plaintiff’s salary revisions and Christmas bonuses 22 were not discriminatory based on her gender. Plaintiff’s salary was 23 never reduced nor was she ever demoted. She continued to have the 24 25 26 4 Additionally, effective February 10, 2003, the work schedule in the Mechanics Department was also changed to commence at 7:00 a.m. until 4:00 p.m. 1 CIVIL NO. 07-1109 (RLA) Page 22 2 same benefits while employed. She received salary increases in 2001, 3 2002, and 2005. It is undisputed that in 2003 and 2004 no employee 4 received a salary increase. 5 Plaintiff argues that in 2002 her salary was increased by only 6 7%. However, as pointed out by defendants, when compared to the male 7 employees plaintiff did no worse than them. That year another male 8 employee received the same increase percentage while another three 9 received 5% and one only 3%. 10 Plaintiff also contends that in 2005 her pay increase was only 11 9 cents. However, the amounts awarded as salary increases for that 12 year overall were minor. Further, plaintiff had two warnings in her 13 record at the time. 14 Lastly, during her tenure plaintiff always received a Christmas 15 bonus which was higher than the amounts received by the vast majority 16 of the male employees. 17 Accordingly, plaintiff’s gender discrimination claim based on 18 salary revisions and benefits is DISMISSED. 19 D. Difference in Pay 20 Plaintiff contends that when she was hired RIVERA promised that 21 her salary would be $18.00 per hour, plus a $500.00 monthly car 22 allowance and payment of accounting fees for small ships of SJBP. 23 According to plaintiff, she felt discriminated based on gender 24 because she was not given the salary and benefits she had been 25 promised by RIVERA. According to plaintiff she was advised by STEPHEN 26 1 CIVIL NO. 07-1109 (RLA) Page 23 2 RIVERA that she would be carrying out all duties previously performed 3 by RUBEN JIMENEZ, her predecessor, and that upon becoming a permanent 4 employee she would be receiving his same salary and fringe benefits. 5 Additionally, RUBEN JIMENEZ was paid a monthly fee for the small 6 vessels which she was also promised. Plaintiff was assigned the 7 accounting for the small vessels. However, she contends that she was 8 paid for this service only once in 2002 after becoming a permanent 9 employee.5 Payment was discontinued purportedly upon STEPHEN RIVERA’s 10 objection who alleged that EMIL DIAZ was the only person in charge of 11 small vessels. 12 We find that plaintiff has met her prima facie burden to 13 establish wage disparity. She was a female and was paid less than her 14 predecessor while occupying the same position. Other than denying any 15 such promises were made and arguing that the purported agreement was 16 a misunderstanding on plaintiff’s part, defendants have not proffered 17 any non-discriminatory reasons to account for the difference in pay. 18 Accordingly, we DENY defendants’ request to dismiss plaintiff’s 19 claim based on a discriminatory pay scale with respect to her 20 predecessor.6 21 22 5 23 24 See Letter from CANDELARIO dated July 31, 2002, notifying plaintiff that commencing on the third trimester of 2002, upon having concluded her probationary one year period, she would be paid 5% of the total small vessels’ revenue for her accounting services to the SJBP. 25 6 26 This claim is separate from any breach of contract cause of action plaintiff may have pled. 1 CIVIL NO. 07-1109 (RLA) Page 24 2 VI. RETALIATION - THE LAW 3 “Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), 4 states that it is unlawful for an employer to discriminate against an 5 employee because ‘he has opposed any practice made an unlawful 6 employment practice..., or because he has made a charge, testified, 7 assisted, or participated in any matter in an investigation, 8 proceeding, or hearing.’” DeClaire v. Mukasey, 530 F.3d 1, 19 (1st 9 Cir. 2008). 10 The interests sought to be protected by Title VII’s anti11 discrimination mandate differ from those underlying its retaliation 12 clause. “The substantive provision seeks to prevent injury to 13 individuals based on who they are, i.e., their status. The anti14 retaliation provision seeks to prevent harm to individuals based on 15 what they do, i.e., their conduct.” Burlington N. & Santa Fe Ry. Co. 16 v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). 17 “It therefore does not matter for retaliation purposes whether [the 18 employer] would have treated a male [employee] the same way he 19 treated [plaintiff]. The relevant question is whether [the employer] 20 was retaliating against [plaintiff] for filing a complaint, not 21 whether he was motivated by gender bias at the time.” DeClaire, 530 22 F.3d at 19. 23 Hence, for retaliation purposes “[t]he relevant conduct is that 24 which occurred after [plaintiff] complained about his superior’s 25 [discriminatory] related harassment.” Quiles-Quiles v. Henderson, 439 26 F.3d 1, 8 (1st Cir. 2006). 1 CIVIL NO. 07-1109 (RLA) Page 25 2 A. Burden of Proof 3 “The evidence of retaliation can be direct or circumstantial.” 4 DeClaire, 530 F.3d at 20. Unless direct evidence is available, Title 5 VII retaliation claims may be proven by using the burden-shifting 6 framework set establish a forth down in McDonnell Douglas. “In order to 7 prima facie case of retaliation, a plaintiff must 8 establish three elements. First, the plaintiff must show that he 9 engaged in a protected activity. Second, the plaintiff must 10 demonstrate he suffered a materially adverse action, which caused him 11 harm, either inside or outside of the workplace. The impact of this 12 harm must be sufficient to dissuade a reasonable worker from making 13 or supporting a charge of discrimination. Third, the plaintiff must 14 show that the adverse action taken against him was causally linked to 15 his protected activity.” Mariani-Colon v. Dep't of Homeland Sec. ex 16 rel., 511 F.3d 216, 223 (1st Cir. 2007) (citations and internal 17 quotation marks omitted); Moron-Barradas v. Dep't of Educ. of Com. of 18 Puerto, 488 F.3d 472, 481 (1st Cir. 2007); Quiles-Quiles, 439 F.3d 19 at 8. 20 “Under the McDonnell Douglas approach, an employee who carries 21 her burden of coming forward with evidence establishing a prima facie 22 case of retaliation creates a presumption of discrimination, shifting 23 the burden to the employer to articulate a legitimate, non- 24 discriminatory reason for the challenged actions... If the employer’s 25 evidence 26 creates a genuine issue of fact, the presumption of 1 CIVIL NO. 07-1109 (RLA) Page 26 2 discrimination drops from the case, and the plaintiff retains the 3 ultimate burden of showing that the employer’s stated reason for the 4 challenged actions was in fact a pretext for retaliating.” Billings 5 v. Town of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) (citations, 6 internal quotation marks and brackets omitted). 7 “[A]n employee engages in protected activity, for purposes of a 8 Title VII retaliation claim, by opposing a practice made unlawful by 9 Title VII, or by participating in any manner in an investigation or 10 proceeding under Title VII.” Mariani-Colon, 511 F.3d at 224. 11 “[Title VII’s] anti-retaliation provision protects an individual 12 not from all retaliation, but from retaliation that produces an 13 injury or harm.” Burlington, 548 U.S. at 67. In order to prevail on 14 a retaliation claim “a plaintiff must show that a reasonable employee 15 would have found the challenged action materially adverse, which in 16 this context means it well might have dissuaded a reasonable worker 17 from making or supporting a charge of discrimination.” Id. at 68. It 18 is not necessary that the conduct at issue affect the employee’s 19 “ultimate employment decisions.” Id. at 67. 20 According to Burlington, the determination of whether a 21 particular action is “materially adverse” must be examined based on 22 the facts present in each case and “should be judged from the 23 perspective of a reasonable person in the plaintiff’s position, 24 considering all the circumstances.” Id. at 71 (citation and internal 25 quotation marks omitted). 26 1 CIVIL NO. 07-1109 (RLA) Page 27 2 In reaching its decision in Burlington, the Supreme Court 3 considered factors such as the fact that the duties of a position 4 “were... more arduous and dirtier” when compared to the other 5 position which “required more qualifications, which is an indication 6 of prestige [] and... was objectively considered a better job”. Id. 7 (citation and quotation marks omitted). 8 In Billings the court distinguished between minor incidents 9 which take place in the usual course of a work setting and have no 10 import on an individual’s decision to file a discrimination charge 11 and those which might deter an employee from complaining of such 12 conduct. Specifically, the court noted that “some of [the 13 supervisor’s] behavior - upbraiding [plaintiff] for her question at 14 the Board of Selectmen meeting, criticizing her by written memoranda, 15 and allegedly becoming aloof toward her - amounts to the kind of 16 petty slights or minor annoyances that often take place at work and 17 that all employees experience and that, consequently, fall outside 18 the scope of the antidiscrimination laws... But we cannot say the 19 same for the other incidents, namely, investigating and reprimanding 20 [plaintiff] for opening the letter from [the supervisor’s] attorney, 21 charging her with personal time for attending her deposition in this 22 case, and barring her from the Selectmen’s Office. While these 23 measures might not have made a dramatic impact on [plaintiff’s] job, 24 conduct need not relate to the terms or conditions of employment to 25 give rise to a retaliation claim. Indeed, we think that these 26 1 CIVIL NO. 07-1109 (RLA) Page 28 2 actions, by their nature, could well dissuade a reasonable employee 3 from making or supporting a charge of discrimination. An employee who 4 knows that, by doing so, she risks a formal investigation and 5 reprimand - including a threat of further, more serious discipline 6 for being insufficiently careful in light of her pending litigation 7 as well as the prospect of having to take personal time to respond to 8 a notice of deposition issued by her employer in that litigation, 9 might well choose not to proceed with the litigation in the first 10 place.” Billings, 515 F.3d at 54 (citations, internal quotation marks 11 and brackets omitted). 12 “It is true that an employee’s displeasure at a personnel action 13 cannot, standing alone, render it materially adverse... [but 14 plaintiff] came forward with enough objective evidence contrasting 15 her former and current jobs to allow the jury to find a materially 16 adverse employment action.” Id. at 53. 17 Depending on the particular set of facts at hand, “temporal 18 proximity alone can suffice to meet the relatively light burden of 19 establishing a prima facie case of retaliation.” DeClaire, 530 F.3d 20 at 19 (citation and internal quotation marks omitted). See also, 21 Mariani-Colon, 511 F.3d at 224 (“[T]he ‘temporal proximity’ between 22 appellant’s allegations of discrimination in June 2002 and his 23 termination in August 2002 is sufficient to meet the relatively light 24 burden of establishing a prima facie case of retaliation”); Quiles25 Quiles, 439 F.3d at 8 (“[I]n proper circumstances, the causation 26 1 CIVIL NO. 07-1109 (RLA) Page 29 2 element may be established by evidence that there was a temporal 3 proximity between the behavior in question and the employee’s 4 complaint.”) 5 “[T]here is no mechanical formula for finding pretext. One way 6 to show pretext is through such weaknesses, implausibilities, 7 inconsistencies, incoherencies, or contradictions in the employer’s 8 proffered legitimate reasons for its action that a reasonable 9 factfinder could rationally find them unworthy of credence and with 10 or without the additional evidence and inferences properly drawn 11 therefrom infer that the employer did not act for the asserted non12 discriminatory reasons.” Billings, 515 F.3d at 55-56 (citations, 13 internal quotation marks and brackets omitted). 14 Plaintiff carries the burden of presenting admissible evidence 15 of retaliatory intent in response to a summary judgment request. The 16 court need not consider unsupported suppositions. “While [plaintiff] 17 engages in much speculation and conjecture, a plaintiff cannot defeat 18 summary judgment by relying on conclusory allegations, or rank 19 speculation. To defeat summary judgment, a plaintiff must make a 20 colorable showing that an adverse action was taken for the purpose of 21 retaliating against him.” Mariani-Colon, 511 F.3d at 224 (citations 22 and internal quotation marks omitted). 23 Additionally, even though “it is permissible for the trier of 24 fact to infer the ultimate fact of discrimination from the falsity of 25 the employer’s discrimination, but doing so is not required, as there 26 1 CIVIL NO. 07-1109 (RLA) Page 30 2 will be instances where, although the plaintiff has established a 3 prima facie case and set forth sufficient evidence to reject the 4 defendant’s explanation, no rational fact-finder could conclude that 5 the action was discriminatory.” DeClaire, 530 F.3d at 19-20 (italics 6 in original). 7 Lastly, there are instances where issues of fact regarding the 8 veracity of the allegedly pretextual reasons demand that trial be 9 held to resolve them. See i.e., Billings, 515 F.3d at 56 (citations 10 and internal quotation marks omitted) (“But we think that, under the 11 circumstances of this case, it is the jury that must make this 12 decision, one way or another. As we have advised, where a plaintiff 13 in a discrimination case makes out a prima facie case and the issue 14 becomes whether the employer’s stated nondiscriminatory reason is a 15 pretext for discrimination, courts must be particularly cautious 16 about granting the employer’s motion for summary judgment. Such 17 caution is appropriate here, given the factual disputes swirling 18 around the transfer decision.”) 19 B. Retaliatory Harassment 20 In retaliation cases, “[t]he adverse employment action may be 21 satisfied by showing the creation of a hostile work environment or 22 the intensification of a pre-existing hostile environment.” Quiles23 Quiles, 439 F.3d at 9. See also, Noviello, 398 F.3d at 89 (“[T]he 24 creation and perpetuation of a hostile work environment can comprise 25 a 26 retaliatory adverse employment action”.) “[A] hostile work 1 CIVIL NO. 07-1109 (RLA) Page 31 2 environment, tolerated by the employer, is cognizable as a 3 retaliatory adverse employment action... This means that workplace 4 harassment, if sufficiently severe or pervasive, may in and of itself 5 constitute an adverse employment action sufficient to satisfy the 6 second prong of the prima facie case for... retaliation cases.” Id. 7 (under Title VII). “Harassment by coworkers as a punishment for 8 undertaking protected activity is a paradigmatic example of adverse 9 treatment spurred by retaliatory motives and, as such, is likely to 10 deter the complaining party (or others) from engaging in protected 11 activity.” Id. at 90. 12 “[R]etaliatory actions that are not materially adverse when 13 considered individually may collectively amount to a retaliatory 14 hostile work environment.” Billings, 515 F.3d at 54 n.13. 15 Proving retaliatory intent is crucial. Hence, the purpose behind 16 the harassment must be to retaliate for the protected conduct, that 17 is, it must be motivated by plaintiff’s exercise of her statutory 18 rights. Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 20 (1st Cir. 19 2006); Quiles-Quiles, 439 F.3d at 9. 20 Causation may be established by the temporal proximity between 21 the harassment and the protected conduct. See, i.e., id. 439 F.3d at 22 9 (intensified harassment shortly after filing EEOC complaint). 23 Even though “[t]he existence of a hostile environment is 24 determined by the finder of fact... that does not prevent a court 25 from ruling that a particular set of facts cannot establish a hostile 26 1 CIVIL NO. 07-1109 (RLA) Page 32 2 environment as a matter of law in an appropriate case.” Billings, 515 3 F.3d at 47 n.7. 4 C. Retaliation - The Facts 5 Plaintiff’s initial discrimination charge was examine the filed on 6 October 3, 2005. Accordingly, we shall subsequent 7 allegedly retaliatory events charged by plaintiff to determine 8 whether either individually or collectively they constitute 9 materially adverse actions necessary to establish a hostile 10 environment. 11 1. Inspection of personnel file and leaving early. 12 In a memorandum dated October 28, 2005, RIVERA, as President of 13 the Board of Directors, advised plaintiff that pursuant to her 14 October 17, 2005 written request, she could inspect her personnel 15 file pursuant to the policy established in the Employee Handbook. In 16 the memorandum plaintiff was also admonished for leaving her work 20 17 minutes early on October 18, 2005 without prior authorization from 18 her supervisor. 19 Upon receipt of the memorandum, plaintiff wrote a note stating 20 that the admonishment was in retaliation for having filed the 21 discrimination charge. 22 Plaintiff has not introduced evidence of any causal connection 23 between her complaint and this letter. Further, apart from mentioning 24 that she had left early that day - a fact plaintiff has not disputed 25 - we find no connotation in the memorandum which could be deemed 26 1 CIVIL NO. 07-1109 (RLA) Page 33 2 adverse to her. It merely constitutes a response to her request for 3 information. Therefore, we conclude that this memorandum is not 4 sufficient grounds for establishing a retaliation claim. 5 2. Payment to Pilots on Fridays. 6 On November 10, 2005, plaintiff was handed copy of a memorandum 7 dated May 17, 2005, addressed to the Accounting Department with 8 instructions that payment to pilots were to be effected every Friday. 9 Upon its receipt, plaintiff wrote a note indicating that the 10 memorandum had been personally handed in retaliation for having filed 11 her discrimination charge. 12 Plaintiff conceded that payments to the harbor pilots for 13 services rendered was part of her duties and that it was her 14 responsibility to make collection efforts in order to have sufficient 15 funds available to pay the pilots for their services every Friday. 16 She also conceded in her deposition that most of the pilots 17 complained because payment was not being timely made.7 18 We do not agree with plaintiff’s characterization of this 19 memorandum as a warning. There is no indication of any negative 20 effect on her record. Nor do we attach any significance to the fact 21 that plaintiff was handed a copy thereof in November other than to 22 23 24 25 26 7 Defendants submitted two letters from CANDELARIO one dated September 28, 2005, requesting reimbursement for expenses incurred due to the failure to deposit his checks on time and another one complaining of his failure to receive the November 11, 2005 check. Additionally, on November 14, 2005, DANIEL MURPHY also wrote expressing his concerns regarding non-payment during the month of November. 1 CIVIL NO. 07-1109 (RLA) Page 34 2 alert her to the existing situation that payment to harbor pilots was 3 not being promptly made. Hence, we ascribe no retaliatory weight to 4 this incident. 5 Additionally, there is ample uncontested evidence submitted by 6 defendants which served as a basis for having sent her copy of the 7 memorandum at that time. 8 9 3. Documents Regarding 40-ft. Vessel and Incident with CESAR MONTES. 10 On November 14, 2005, plaintiff was handed a letter signed by 11 STEPHEN RIVERA instructing her to keep all invoices and documents 12 related to a 40-feet pilot vessel in a separate file. Plaintiff wrote 13 a note at the bottom of this communication stating that it was done 14 in reprisal for having filed her discrimination charges. Whereupon, 15 according to plaintiff, MONTES came over to her office door, became 16 belligerent and violent, shouting at her and waving his hands to the 17 point she feared for her safety. Plaintiff left early that day and 18 filed a criminal complaint against MONTES for breach of the peace. 19 In his deposition MONTES explained that he initially verbally 20 requested plaintiff to keep a separate file regarding the vessel. He 21 further noted that the request was prompted by the need to ensure 22 that all documents pertaining to the vessel’s insurance and a loan 23 that was being requested were easily retrievable. According to 24 MONTES, plaintiff 25 per her attorney’s instructions for which reason the memorandum had 26 been prepared. petitioned that his request be put in writing as 1 CIVIL NO. 07-1109 (RLA) Page 35 2 The November 14, 2005 letter cannot be construed as a warning as 3 plaintiff contends. It does not contain any information unfavorable 4 to plaintiff or her performance nor can it be construed in any way as 5 detrimental to plaintiff’s employment. Rather, the request was based 6 on established requirements of the Pilotage Commission regarding the 7 vessel’s insurance coverage as well as a loan that was being 8 processed. Nor can we ascribe any retaliatory motive for the written 9 instructions. 10 It is also difficult to attribute retaliatory motive to MONTES’ 11 alleged reaction from plaintiff’s version of the events.8 In her 12 deposition plaintiff noted that “Captain Montes began to yell at me 13 about it, that it was because of what I had written on the lower 14 right-hand side [of the November 14, 2005 letter] that we were having 15 all the problems in the company, he began to wave his hands and I 16 felt threatened.” Docket No. 40-4 Tr. 206 L. 15-17. 17 She further explained: 18 Q [W]hen you’re telling me that he went to your office and 19 was yelling at you from the door, if at that moment that 20 he’s talking with you about your note and about the 21 document, did he say that it’s for the purpose of the loan. 22 23 8 24 25 26 In support of her retaliatory animus behind MONTES’ alleged reaction to her note, plaintiff alleges that this was defendants’ first notice of her discrimination charges. However, on November 10, 2005, she had already alerted defendants of her having filed discrimination charges by writing a similar note when the May 17, 2005 memorandum was delivered. 1 CIVIL NO. 07-1109 (RLA) Page 36 2 A No. He yelled at me. Q What did he say? A That everything that was occurring in the company was my 3 4 5 fault. 6 Docket No. 62-2 Tr. 28 L. 2-10. 7 Lastly, we find that this incident by itself does not meet the 8 adverse requirement necessary for a retaliatory claim. 9 Based on the foregoing, plaintiff’s claim for retaliation under 10 Title VII is DISMISSED. 11 VII. JOINT EMPLOYERS 12 A. The Law 13 Plaintiff contends that both HH&O and SJBP, as joint employers, 14 share liability for the discrimination claims asserted herein. 15 Accordingly, we must initially ascertain who plaintiff’s employer was 16 for purposes of Title VII. 17 In order to establish liability under Title VII, plaintiff must 18 present sufficient evidence to show that the discriminatory conduct 19 at issue can be attributable to her employer. “Title VII liability 20 attaches only in the event of a covered employment relationship.” 21 Medina v. Adecco, 561 F.Supp.2d 162, 176 (D.P.R. 2008). The statute 22 defines an “employer” as an individual or firm that “is engaged in an 23 industry affecting commerce who has fifteen or more employees for 24 each working day in each of twenty or more calendar weeks in the 25 current 26 or preceding calendar year, and any agent of such a 1 CIVIL NO. 07-1109 (RLA) Page 37 2 person....” 42 U.S.C. § 2000e(b). See also De Jesus v. LTT Card 3 Serv., 474 F.3d 16 (1st Cir. 2007) (discussing factors for determining 4 who qualifies as an “employer” under Title VII). 5 The “joint employer” doctrine seeks to hold an entity liable to 6 an employee of another entity if the evidence shows that it 7 sufficiently had power over the employee in question. 8 “A joint employer relationship exists where two or more 9 employers exert significant control over the same employees and share 10 or co-determine those matters governing essential terms and 11 conditions of employment.” Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 12 163 (1st Cir. 1995) (quoting Holyoke Visiting Nurses Ass’n v. NLRB, 13 11 F.3d 302, 306 (1st Cir. 1993). “In order to qualify as an employer 14 (or joint employer) for Title VII purposes, an entity must exercise 15 significant control over the terms and conditions of an individual’s 16 employment.” Medina, 561 F.Supp.2d at 177. 17 “The joint employer inquiry is a matter of determining which of 18 two, or whether both, respondents control, in the capacity of 19 employer, the labor relations of a given group of workers.” Rivas v. 20 Fed. de Asoc. Pecuarias de P.R., 929 F.2d 814, 820 (1st Cir. 1991) 21 (citation and internal quotation marks omitted). 22 “[T]he ‘joint employer’ concept recognizes that the business 23 entities involved are in fact separate but that they share or co24 determine those conditions of employment.” Rivas, 929 F.2d at 820 25 n.17 (italics in original). 26 1 CIVIL NO. 07-1109 (RLA) Page 38 2 In order to ascertain if indeed a joint employment condition is 3 present, the court must examine “factors which include: supervision 4 of the employees’ day-to-day activities; authority to hire, fire, or 5 discipline employees; authority to promulgate work rules, conditions 6 of employment, and work assignment; participation in the collective 7 bargaining process; ultimate power over changes in employer 8 compensation, benefits and overtime; and authority over the number of 9 employees.” Rivera-Vega, 70 F.3d at 163; Rivas, 929 F.2d at 820. See 10 also Holyoke, 11 F.3d at 306 (“right to approve employees, control 11 number of employees, remove an employee, inspect and approve work, 12 and pass on changes in pay and overtime allowed”); Torres-Negron v. 13 Merck & Company, Inc., 488 F.3d 34, 42 (1st Cir. 2007) (listing 14 applicable factors to determine when “two or more entities are a 15 single employer under the integrated-enterprise test”). 16 In Holyoke, 11 F.3d at 307, the court upheld a joint employer 17 finding based on the entity’s “joint control of the... employees by, 18 inter alia, its unfettered power to reject any person referred to it 19 by [the employer] and its substantial control over the day-to-day 20 activities of the referred employees.” See i.e., Virgo v. Rivera 21 Beach Assoc., Ltd., 30 F.3d 1350, 1361 (11th Cir. 1994) (“[A]ctual 22 control is a factor to be considered when deciding the ‘joint 23 employer’ issue, but the authority or power to control is also highly 24 relevant”); 25 26 Medina, 561 F.Supp.2d at 177 (“The extent of 1 CIVIL NO. 07-1109 (RLA) Page 39 2 [codefendant’s] control over [plaintiff] determines the outcome of 3 the joint employer inquiry.”) 4 “A ‘joint employer’ relationship is different from, though 5 sometimes confused with, a ‘single employer’ situation.” Virgo, 30 6 F.3d at 1359. 7 “The courts, in the Title VII context, have inappropriately used 8 the terms ‘single employer’ and ‘joint employer’ interchangeably, 9 which in fact refer to two distinct concepts... The ‘single employer’ 10 inquiry... involves the question of whether two allegedly separate 11 business enterprises should in fact be treated as a single entity.” 12 (citations omitted). Rivas, 929 F.2d at 820 n. 16. 13 “The difference between the “joint employer” and the “integrated 14 employer” tests turns on whether the plaintiff seeks to impose 15 liability on her legal employer or another entity... The former looks 16 to whether there are sufficient indicia of an employer/employee 17 relationship to justify imposing liability on the plaintiff’s non18 legal employer. The latter applies where, as here, liability is 19 sought to be imposed on the legal employer by arguing that another 20 entity is sufficiently related such that its actions... can be 21 attributable to the legal employer.” Engelhardt v. S.P. Richards Co., 22 Inc., 472 F.3d 1, 4 n.2 (1st Cir. 2006). 23 “Whether joint employer status exists is essentially a factual 24 question.” Rivera-Vega, 70 F.3d at 163. “[B]ecause the joint employer 25 issue is simply a factual determination, a slight difference between 26 1 CIVIL NO. 07-1109 (RLA) Page 40 2 two cases might tilt a case toward a finding of a joint employment”. 3 Holyoke, 11 F.3d at 307. 4 B. The Facts 5 It is uncontroverted that plaintiff was hired as an accountant 6 by HH&O which paid her salaries as its employee.9 HH&O notified 7 plaintiff of her salary increases including granting her a 7% 8 increase on October 10, 200210 and established changes in her work 9 schedule.11 Only HH&O was listed as plaintiff’s employer in her 10 discrimination charge filed on October 5, 2005 and in her retaliation 11 charge filed on October 19, 2005 with the PR-DOL. SJBP was not named 12 therein. 13 Additionally, the following written reprimands as well as 14 incidents plaintiff challenges as harassing or retaliatory were 15 issued by HH&O: 16 - Plaintiff’s warning on April 2, 2002 for having paid the 17 entire dues to the Master Mates & Pilots rather than in 18 trimesters. 19 20 9 21 22 23 24 25 26 See Service Contract dated May 3, 2001 establishing her salary and working conditions. 10 See also, table of Employee Salaries from 2001-2005; Table of Salary Increase Analysis for 2002-2003 and Table of Xmas Bonus Proposal. 11 See January 8, 2004 memorandum changing working hours for the Accounting Department to commence at 7:00 a.m. until 4:00 p.m. effective February 8, 2004 and February 3, 2005 memorandum changing work schedule commencing at 8:00 a.m. until 5:00 p.m. effective February 28, 2005. 1 CIVIL NO. 07-1109 (RLA) Page 41 2 - Letter dated June 18, 2004 regarding deficiency in her 3 performance and $100,000.00 frozen assets in Banco Popular 4 account. 5 - Letter dated September 1, 2004, deducting one-day pay due 6 to an alleged unauthorized absence. 7 - Three-day suspension letter dated September 30, 2005 due to 8 incident with Oceanic. 9 - October 28, 2005 letter advising plaintiff of her right to 10 inspect her personnel file and admonishing plaintiff for 11 leaving work ahead of time. 12 - The May 17, 2005 memorandum which provided that pilots were 13 to be paid every Friday allegedly handed to plaintiff on 14 November 10, 2005. 15 - The November 14, 2005 memorandum requiring that all matters 16 pertaining to a 40 feet boat be kept together in a separate 17 file. 18 It is uncontested that codefendant SJBP is a duly organized 19 corporation that groups the harbor pilots who enter the ships to the 20 San Juan bay. It is the only pilots’ association recognized by the 21 Pilotage Commission for the San Juan Harbor. The individual harbor 22 pilots are independent contractors who provide their services to 23 SJBP. The SJBP does not have any employees on its payroll. Payment of 24 $220.00 25 26 to plaintiff which was effected on July 31, for her 1 CIVIL NO. 07-1109 (RLA) Page 42 2 accounting services was reported by SJBP to the Puerto Rico Treasury 3 Department for professional services, not as an employee. 4 Plaintiff argues that the fact that HH&O personnel matters were 5 discussed at the SJBP Board Meetings evinces that these entities were 6 joint employers. However, inasmuch as the same individuals 7 constituted the Board of Directors for both HH&O and SJBP the fact 8 that these discussions were held during the SJBP meetings does not 9 necessarily mean that it was SJBP who was making the decisions. This 10 is particularly so when the corresponding letters - specifically 11 those used by plaintiff as grounds for her discriminatory and 12 retaliatory charges - were all issued by HH&O. 13 Accordingly, the claims asserted against SJBP in these 14 proceedings are DISMISSED. 15 VII. TITLE VII - INDIVIDUAL LIABILITY 16 It is now clearly established that Title VII does not allow for 17 individual liability. See Fantini v. Salem State Coll., 557 F.3d 22 18 (1st Cir. 2009). Accordingly, the Title VII claims asserted against 19 the named defendants individually are hereby DISMISSED. 20 VIII. SUPPLEMENTAL CLAIMS 21 Based on the foregoing, all local causes of action based on the 22 claims dismissed herein are likewise DISMISSED. 23 24 25 26 1 CIVIL NO. 07-1109 (RLA) Page 43 2 IX. CONCLUSION 3 Based on the foregoing, Defendants’ Motion Requesting Summary 4 Judgment (docket No. 36)12 is GRANTED IN PART. 5 Accordingly, the following discrimination claims asserted both 6 under federal and local statutes are hereby DISMISSED: 7 - Sexual harassment; - Constructive discharge; - Changes in work schedule; - Salary revisions and fringe benefits; - Retaliation. 8 9 10 11 12 It is further ORDERED that the Title VII claims asserted 13 against the individual defendants are hereby DISMISSED. 14 It is further ORDERED that all claims asserted against SJBP are 15 hereby DISMISSED. 16 Judgment shall be entered accordingly. 17 Only the gender-based difference in the pay scale of her salary 18 claim and the local claims not otherwise dismissed remain pending in 19 this action. 20 IT IS SO ORDERED. 21 San Juan, Puerto Rico, this 21st day of December, 2009. 22 23 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge 24 25 12 26 See Opposition (docket No. 42); Reply (docket No. 51) and Surreply (docket No. 56).
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