Jabbar v. Travel Services, Inc. et al, No. 3:2008cv02408 - Document 55 (D.P.R. 2010)

Court Description: OPINION AND ORDER granting re 22 MOTION for Summary Judgment filed by John Ross, Travel Services, Inc., Miguel Hernandez-Roses, Joanne Ferguson, Gilbert Anthony Linares The Clerk is directed to enter judgment accordingly.Signed by Chief Mag. Judge Justo Arenas on 7/28/2010.(nydi)

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Jabbar v. Travel Services, Inc. et al 1 Doc. 55 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 KAREEMAH AMIRA-JABBAR, 5 6 Plaintiff 7 v. 8 TRAVEL SERVICES, INC., et. al, 9 CIVIL 08-2408 (JA) Defendants 10 OPINION AND ORDER 11 12 This matter is before the court on motion for summary judgment filed by the 13 defendants, Travel Services, Inc., Joanne Ferguson, John Ross, Miguel Hernández- 14 Roses and Gilbert Anthony Linares, on April 29, 2010. (Docket No. 22.) The 15 16 defendants motion was opposed by plaintiff, Kareemah Amira-Jabbar, on May 11, 17 2010. (Docket No. 31.) For the reasons set forth below, the motion for summary 18 judgment is hereby GRANTED. 19 I. FACTUAL AND PROCEDURAL BACKGROUND 20 21 On September 5, 2006, plaintiff, a black woman, was hired as an assistant 22 group service manager by Travel Services, Inc. ( TSI ).1 (Docket No. 1, at 7, ¶ 23 34 & Docket No. 21, at 19-20, ¶¶ 1 & 7.) The offer letter from TSI, which plaintiff 24 signed, included a non-compete clause that barred her from taking employment 25 26 27 28 with any direct competitor of TSI for a period of one year after terminating her 1 TSI is a duly organized corporation, created and/or authorized to do business within the Commonwealth of Puerto Rico. (Docket No. 1, at 2, ¶ 3.) Dockets.Justia.com 1 CIVIL 08-2408 (JA) 2 2 3 employment with TSI. (Docket No. 47-3.) As a manager, plaintiff earned a yearly 4 5 salary of $27,000. (Docket No. 21, at 20, ¶ 7.) After the probation period was 6 completed, plaintiff s salary was raised to $32,500. (Id. ¶ 11.) Plaintiff s duties 7 as an assistant group service manager included following out orders prescribed 8 by the sales, with different contracts through vendors and companies from the 9 10 United States and all over, to handle their transportation, tours and other needs, 11 problems or situations that could arise. (Id. ¶ 8.) Plaintiff alleges that during her 12 employment at TSI she was harassed and discriminated against because of her 13 color. (Docket No. 1, at 8, ¶ 36.) According to plaintiff, during a Christmas gift- 14 15 exchange activity held by TSI in December 2006, Mr. Ross made a derogatory 16 comment to her regarding her race. (Docket No. 1, at 8, ¶ 39 & Docket No. 31-3, 17 at 2.) Plaintiff, who speaks English, claims that Mr. Ross s comment was made 18 in Spanish. (Docket No. 1, at 9, ¶ 44.) Also, plaintiff claims that the comment 19 20 21 22 23 24 made by Mr. Ross was made with the intention of diminishing and insulting her because of her color. (Id. at 9-10, ¶ 49.) In September 2007, TSI approved a golf outing in Dorado. (Docket No. 313, at 4-5.) Some of TSI s employees, including plaintiff and Mr. Hernández, attended the outing. (Id.) After the event, Marilyn Hernández, an employee of 25 26 TSI, uploaded pictures of the outing on Facebook, a social networking website. 27 (Id.) One of the pictures uploaded was of plaintiff, Mr. Hernández and other TSI 28 1 CIVIL 08-2408 (JA) 3 2 3 employees. (Docket No. 31-5.) On the comments section of the website, plaintiff 4 5 wrote the following: . . . remind me that taking pictures in the shade is really a 6 dis-service to my wonderful chocolate skin. (Id.) Mr. Hernández responded to 7 plaintiff s comment by writing the following: That is why you always have to 8 smile!!!! (Id.) Plaintiff claims that Mr. Hernández comment was racist. (Docket 9 10 No. 1, at 10, ¶ 56.) 11 On December 1, 2007, several employees of TSI decided to personalize 12 candy canes to put them as reindeer ornaments in the company s Christmas tree. 13 (Docket No. 31-3, at 8.) Plaintiff personalized her candy cane by putting thumb 14 15 tacks that resembled hair rollers on it. (Id. & Docket No. 31-4.) Like plaintiff 16 other employees personalized candy canes to resemble themselves. (Docket No. 17 11, at 8, ¶ 73.) For instance, a very tall female employee included a figurine that 18 was larger than the others. (Id.) Another female employee who is very short 19 20 included a figurine that was much smaller than the others, while another female 21 employee with curly hair curled up her figurine s antlers. (Id.) Plaintiff alleges 22 that when she arrived at the TSI office she noticed that someone had painted her 23 candy cane black and placed it at the top of the Christmas tree. (Docket No. 1, 24 at 12, ¶¶ 67-68.) According to plaintiff, some of her co-workers were next to the 25 26 Christmas tree commenting and laughing about the situation. (Id. ¶ 69.) Plaintiff 27 complained to TSI about the incident and an investigation was conducted. 28 1 CIVIL 08-2408 (JA) 4 2 3 (Docket No. 31-4 & Docket No. 1, at 13, ¶ 74.) Besides the candy cane incident, 4 5 TSI investigated the incident that allegedly took place during the Christmas gift- 6 exchange as well as the Facebook incident. (Docket No. 31-6, at 2 & 11.) The 7 investigation did not reveal who was the person responsible for painting plaintiff s 8 candy cane black. (Id. at 20.) TSI, nevertheless, admitted that the candy cane 9 10 incident was offensive. (Id.) As a preventive measure TSI informed plaintiff that 11 it was going to review its harassment policy with all of its employees. (Docket No. 12 31-8.) On December 10, 2007, plaintiff resigned from TSI. (Docket No. 1, at 15, 13 ¶ 88.) On that same date, plaintiff filed a claim before the Anti-Discrimination 14 15 Unit ( ADU ) against TSI alleging race discrimination. (Docket No. 47-5.) On May 16 14, 2008, plaintiff requested a Notice of Right to Sue in connection with the 17 December 10, 2007 ADU charge. (Docket No. 47-11.) The Right to Sue Letter, 18 however, was not issued by the Equal Employment Opportunity Commission 19 20 ( EEOC ) until September 30, 2008. (Docket No. 52-1, at 5-7.) 21 On or around October, 2008, TSI was retained to run a hospitality desk at 22 the Grand Meliá Hotel in Río Grande, Puerto Rico, to provide sightseeing tours and 23 transportation. (Docket No. 47-6, at 2-4.) On October 12, 2008, Trillis Pendelton 24 who was a TSI contractor retained to man the Grand Meliá hospitality desk sent 25 26 a written communication to Mrs. Ferguson complaining about some incidents 27 allegedly involving plaintiff, who at the time was working for Dragonfly, a 28 1 CIVIL 08-2408 (JA) 5 2 3 competitor of TSI. A follow up email was also sent by Mrs. Pendelton on October 4 5 13, 2008. (Docket No. 47-7, 47-8, at 2-6, ¶ 8; 47-6, at 3-5.) On October 24, 6 2008, Mrs. Ferguson contacted Yolanda Díaz by email to notify her that at the 7 beginning of her employment with TSI, plaintiff had signed a non-compete 8 agreement. (Docket No. 47-10.) 9 10 On December 24, 2008, plaintiff filed a complaint against TSI, Mrs. 11 Ferguson,2 Mr. Ross,3 Mr. Hernández4 and Mr. Linares.5 12 essence, she alleges that the defendants discriminated and retaliated against her 13 (Docket No. 1.) In in violation of Title VII of the Civil Rights Act of 1964 ( Title VII ), 42 U.S.C. § 14 15 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a et seq. (Id. at 16 4, ¶ 25.) 17 Puerto Rico. (Id. at 7, ¶ 33.) 18 Plaintiff s complaint also includes various claims under the laws of On April 29, 2010, the defendants filed their motion for summary judgment, 19 20 21 statement of uncontested facts and supporting memorandum of law. (Docket Nos. 22, 23 & 24.) The defendants argue that plaintiff s hostile work environment 22 23 24 25 2 Mrs. Ferguson was the executive vice-president and president of TSI. She was also co-owner and stockholder of TSI as well as plaintiff s direct supervisor. (Docket No. 1, at 2, ¶¶ 5-7.) 3 Mr. Ross was the operations manager of TSI. (Id. at 3, ¶ 11.) 27 4 Mr. Hernández worked at TSI in the operations area. (Id. ¶ 15.) 28 5 Mr. Linares was TSI s business manager. (Id. ¶ 19.) 26 1 CIVIL 08-2408 (JA) 6 2 3 claim and constructive discharge claim have to be dismissed because they are not 4 5 supported by the allegations contained in the complaint. (Docket No. 24, at 15.) 6 According to the defendants, plaintiff never experienced any discriminatory 7 comments or actions while she worked for TSI. (Id. at 13.) They claim that TSI 8 cannot be held responsible for the Facebook incident because the account did not 9 10 belong to TSI and therefore TSI had no control over it. (Id. at 4 & 14.) According 11 to the defendants, Mr. Hernández who allegedly was the one who wrote, had no 12 authority to act on behalf of TSI via the Facebook account. (Id. at 8.) As to the 13 discriminatory comment that Mr. Ross allegedly made and the candy cane 14 15 incident, the defendants argue that Mr. Linares investigated both matters after 16 plaintiff filed a complaint with Mrs. Ferguson. (Id. at 6 & 14.) In particular with 17 respect to the candy cane incident the defendants claim that as part of the 18 investigation Mr. Linares sent emails to every employee in TSI, who could have 19 20 been implicated in the case, requesting an immediate interview with them. (Id. 21 at 6.) Also, the defendants claim that Mr. Linares reviewed TSI s policy on sexual 22 harassment with Mr. Ross, Mr. Héctor Pérez and Mr. Hernández as well as the 23 EEOC s compliance manual. (Id. at 7.) With regards to the comment made my 24 Mr. Ross, the defendants claim that Mr. Linares interviewed both Mr. Ross and 25 26 plaintiff. (Id.) According to the defendants, plaintiff told Mr. Linares that she was 27 unsure what Mr. Ross had said to her because the comment was made in Spanish. 28 1 CIVIL 08-2408 (JA) 7 2 3 (Id.) As to Mr. Ross, the defendants claim the he denied making any 4 5 discriminatory comment to plaintiff. (Id. at 14.) The defendants also claim that 6 besides plaintiff and Mr. Ross, Ms. Olga Jiménez, Mr. Hernández, Mr. Pérez and 7 Ms. Melissa Puello, who where all at the office when the alleged incident took 8 place, were interviewed by Mr. Linares. (Id. at 8.) The defendants claim that 9 10 after concluding the interviews, Mr. Linares found that there was no pattern of 11 discrimination. (Id.) The defendants further argue that contrary to what plaintiff 12 claims, she was not the only black employee at TSI. (Id. at 14-15.) They claim 13 that Sharely Alamo Pagán, a black Puerto Rican woman, was also a fellow 14 15 employee at TSI. (Id. at 15.) Finally, the defendants argue that plaintiff was not 16 constructively discharged. (Id. at 2.) They claim that plaintiff resigned voluntarily 17 after being informed of the results of the investigation conducted by Mr. Linares. 18 (Id. at 5.) 19 20 On May 11, 2010, plaintiff opposed the defendants motion for summary 21 judgment. 22 material facts with respect to whether she was subjected to racially discriminatory 23 intimidation, ridicule and insult that altered the conditions of her employment at 24 (Docket No. 31.) She contends that there are genuine issues of TSI and created an abusive hostile working environment for her, resulting in her 25 26 constructive discharge. 27 material fact as to whether TSI established effective racial harassment policies 28 (Id. at 1.) She also claims that there are issues of 1 CIVIL 08-2408 (JA) 8 2 3 and grievance procedures, and whether their implementation was reasonable. 4 5 (Id.) Plaintiff argues that TSI is liable for Mrs. Hernández Facebook comment 6 because it allowed its employees to post photos and comments on the website 7 during company time for company purposes. (Docket No. 31, at 7 & 10.) She 8 claims that TSI did not have a firewall or a software in place to prevent employees 9 10 from accessing Facebook during company hours. (Id. at 10.) Plaintiff also claims 11 that Mrs. Ferguson was present when Mr. Ross made the discriminatory remark 12 but that she did not do anything to investigate or discipline him. (Id. at 2.) 13 According to plaintiff, it was common for Mr. Ross to make racial jokes at work 14 15 about people from other ethnic groups, and that TSI knew about it. (Id. at 7.) 16 Plaintiff claims that TSI s inaction shows that it was willing to tolerate and condone 17 racially discriminatory conduct, and permit a hostile work environment. (Id. at 2.) 18 With regard to the candy cane incident, plaintiff claims that she felt racially 19 20 targeted. (Id. at 2-3.) She argues that TSI s investigation was deficient and 21 demonstrative that its harassment policies and grievance procedures were 22 ineffective because it failed to interview all of the witnesses and because it failed 23 to identify and sanction the persons responsible for the incidents. (Id. at 8 & 11.) 24 On June 18, 2010, the defendants filed a supplementary memorandum of 25 26 law in support of their motion for summary judgment. (Docket No. 48.) The 27 defendants essentially argue that plaintiff failed to prove that she was the victim 28 1 CIVIL 08-2408 (JA) 9 2 3 of retaliation. (Id. at 2.) The defendants motion was opposed by plaintiff on July 4 5 9, 2010. (Docket No. 52.) Contrary to what the defendants claim, plaintiff argues 6 that the retaliation claim cannot be dismissed because there are material issues 7 of fact in controversy. 8 (Id. at 1-2.) The defendants replied to plaintiff s opposition on July 23, 2010. (Docket No. 54.) 9 10 II. STANDARD OF REVIEW 11 Summary judgment is appropriate when the pleadings, the discovery and 12 disclosure materials on file, and any affidavits show that there is no genuine issue 13 as to any material fact and that the movant is entitled to judgment as a matter 14 15 of law. Fed. R. Civ. P. 56(c)(2). The intention of summary judgment is to 16 pierce the pleadings and to assess the proof in order to see whether there is a 17 genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 18 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Once the moving party has 19 20 properly supported [its] motion for summary judgment, the burden shifts to the 21 nonmoving party, with respect to each issue on which [it] has the burden of proof, 22 to demonstrate that a trier of fact reasonably could find in [its] favor. Santiago- 23 Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting 24 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). 25 26 [T]he mere existence of some alleged factual dispute between the parties 27 will not defeat an otherwise properly supported motion for summary judgment; 28 1 CIVIL 08-2408 (JA) 10 2 3 the requirement is that there be no genuine issue of material fact. Anderson v. 4 5 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Carroll v. Xerox Corp., 6 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils Band Employee Benefit 7 Plan v. Smith Barney Shearson. Inc., 76 F.3d 1245, 1251 (1st Cir. 1996)) 8 ( [N]either conclusory allegations [nor] improbable inferences' are sufficient to 9 10 defeat summary judgment. ). The nonmoving party must produce specific facts 11 showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. 12 Zenith Radio Corp., 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)); see also 13 López-Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir. 2000). 14 15 A genuine issue exists when there is evidence sufficient to support rational 16 resolution of the point in favor of either party. Nereida-González v. Tirado- 17 Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson v. Liberty Lobby, 18 Inc., 477 U.S. at 248; United States v. One Parcel of Real Prop., 960 F.2d 200, 19 20 204 (1st Cir. 1992)). In this context, genuine means that the evidence about 21 the fact is such that a reasonable jury could resolve the point in favor of the 22 nonmoving party. . . . Burke v. Town of Walpole, 405 F.3d 66, 75 (1st Cir. 23 2005) (quoting United States v. One Parcel of Real Prop., 960 F.2d at 204). 24 Rule 56(e) requires the nonmoving party to go beyond the pleadings and 25 26 by her own affidavits, or by the depositions, answers to interrogatories, and 27 admissions on file, designate specific facts showing that there is a genuine issue 28 1 CIVIL 08-2408 (JA) 11 2 3 for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). However, a 4 5 moving party may move for summary judgment with or without supporting 6 affidavits. Id. at 323 (quoting Rules 56(a) and (b)). The evidence of the non- 7 movant is to be believed, and all justifiable inferences are to be drawn in his 8 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (citing Adickes v. S.H. 9 10 Kress & Co., 398 U.S. 144, 158-59 (1970)); see also Patterson v. Patterson, 306 11 F.3d 1156, 1157 (1st Cir. 2002) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 12 115 (1st Cir. 1990)) ( [the court] must view the entire record in the light most 13 hospitable to the party opposing summary judgment, indulging all reasonable 14 15 16 17 18 inferences in that party's favor. ). III. ANALYSIS A. Title VII Hostile Work Environment Claim To establish a prima facie case for hostile work environment, a plaintiff must 19 20 show that: (1) he [or she] is a member of a protected class; (2) he [or she] 21 experienced uninvited harassment; (3) the harassment was racially-based; (4) the 22 harassment was so severe or pervasive as to create an abusive work 23 environment; . . . (5) the harassment was objectively and subjectively 24 offensive[,] and (6) that some basis for employer liability exists. Prescott v. 25 26 Higgins, 538 F.3d 32, 42 (1st Cir. 2008) (citing Douglas v. J.C. Penney Co., 474 27 F.3d 10, 15 (1st Cir. 2007)); see also Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 28 1 CIVIL 08-2408 (JA) 12 2 3 2d 487, 509 (D. Mass. 2008). [W]hen assessing whether a workplace is a hostile 4 5 environment, this Court must look to the totality of the circumstances, including 6 the frequency of the discriminatory conduct; its severity; whether it is threatening 7 or humiliating, or merely an offensive utterance; and whether it unreasonably 8 interferes with the employee s work performance. Matías-Cardona v. Verizon 9 10 Wireless P.R., Inc., 610 F. Supp. 2d 157, 170 (D.P.R. 2009) (quoting Rivera- 11 Rodríguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001)). 12 Simple teasing, offhand comments, and isolated incidents (unless extremely 13 serious) do not create a hostile work environment. Mojica v. El Conquistador 14 15 Resort & Golden Door Spa, F. Supp. 2d , 2010 WL 1992575, at *15 16 (D.P.R. May 13, 2010) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 17 (1998)); see also Crespo-Vargas v. U.S. Gov t, 573 F. Supp. 2d 532, 551-52 18 (D.P.R. 2008). Simply put, [t]he work place is not a cocoon, and those who labor 19 20 in it are expected to have reasonably thick skins. Rosario v. Dep t of Army, 607 21 F.3d 241, 247 (1st Cir. 2010) (quoting Marrero v. Goya of P.R., Inc., 304 F.3d 7, 22 19 (1st Cir. 2002)). 23 24 The defendants argue that plaintiff cannot establish elements four, five and six of her prima facie case. The defendants are correct. First, only three incidents 25 26 allegedly occurred between September 5, 2006 and December 10, 2007. The first 27 incident occurred in December 2006, in which Mr. Ross allegedly made a 28 1 CIVIL 08-2408 (JA) 13 2 3 discriminatory comment to plaintiff. Nine months later in September 2007, the 4 5 Facebook incident took place and three months later in December, 2007 the candy 6 cane incident occurred. While it cannot be denied that the comments allegedly 7 made to plaintiff were offensive, they are nevertheless offhand comments or 8 isolated incidents that are insufficient to create an abusive environment. See 9 10 Thompson v. Coca Cola Co., 497 F. Supp. 2d 80, 92 (D. Mass. 2007) (employee 11 failed to establish prima facie case of racially hostile work environment through 12 evidence of three comments over one and a half year period). Furthermore, 13 viewing the record in the light most favorable to plaintiff and drawing all 14 15 inferences in her favor, the court cannot find that the defendants conduct was 16 physically threatening nor that it interfered with her work performance. Second, 17 although plaintiff complained to Mrs. Ferguson about some of the incidents 18 indicating that she felt racially targeted and humiliated, the defendants conduct 19 20 was neither objectively nor subjectively offensive so as to establish a hostile work 21 environment. See Bibiloni Del Valle v. Puerto Rico, 661 F. Supp. 2d 155, 172 22 (D.P.R. 2009) (citing De la Vega v. San Juan Star, Inc., 377 F.3d 111, 118 (1st 23 Cir. 2004)). Third, TSI can not be held accountable for the actions of plaintiff s 24 co-workers. For TSI to be liable, plaintiff needed to show it knew or should have 25 26 known of the . . . harassment and failed to implement prompt and appropriate 27 action[,] however she did not. Forrest v. Brinker Int l Payroll Co., 511 F.3d 225, 28 1 CIVIL 08-2408 (JA) 14 2 3 230 (1st Cir. 2007) (quoting Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st 4 5 Cir. 2002)). Plaintiff does not question that TSI did not know or should have 6 known about the harassment. Instead she argues that the investigation was 7 deficient because not all of the witnesses were interviewed and because the 8 people responsible for the incidents were neither identified nor disciplined. 9 10 11 12 13 Plaintiff is mistaken. TSI s remedial actions in this case satisfy the prompt and appropriate standard. Although the First Circuit has not set a bright line rule for what constitutes prompt and appropriate action, it has noted that [a] reasonable jury 14 15 could find that an employer response was not prompt and appropriate without 16 being so indifferent as to indicate an attitude of permissiveness amounting to 17 discrimination. Forrest v. Brinker Intern. Payroll Co., 511 F.3d at 231 n.8. 18 Examples of responses that have been deemed appropriate have often included 19 20 prompt investigation of the allegations, proactive solicitations of complaints, 21 scheduling changes or transfers, oral or written warnings, reprimands, and 22 warnings that future misconduct could result in progressive discipline. Wilson 23 v. Moulison N. Corp., 691 F. Supp. 2d 232, 238 (D. Me. 2010) (quoting Adler v. 24 Wal-Mart Stores, Inc., 144 F.3d 664, 675 (10th Cir. 1998)). The record in this 25 26 case shows that plaintiff s concerns were addressed in a timely fashion in order 27 to prevent any possible harassment. As soon as plaintiff notified Mrs. Ferguson 28 1 CIVIL 08-2408 (JA) 15 2 3 about the candy cane incident, she immediately ordered Mr. Linares to conduct 4 5 an investigation. (Docket No. 24-2, at 12.) 6 December 1, 2007, the investigation was commenced on December 2, 2007 and 7 on December 5, 2007 it was completed. (Id.) Also, it is important to point out 8 Plaintiff made the complaint on that the investigation conducted by Mr. Linares on behalf of TSI was not centered 9 10 solely on the candy cane incident. (Id. at 14.) As part of his investigation, Mr. 11 Linares looked into the other two incidents that allegedly had taken place after 12 they were brought to TSI s attention by plaintiff. (Id.) The investigation consisted 13 mostly of interviews to TSI employees including those identified by plaintiff as 14 15 responsible for the incidents. (Id. at 12.) Also, TSI granted plaintiff s request for 16 leave of absence until the investigation was concluded. (Id.) Furthermore, even 17 though the investigation did not reveal who was the person responsible for the 18 candy cane incident, TSI reviewed its harassment policy with all of its employees 19 20 including Mr. Pérez, Mr. Ross and Mr. Hernández. (Id. at 11.) With regard to the 21 incident involving Mr. Ross, TSI did not reprimand him because Mrs. Jabbar was 22 not able to say specifically what was the comment that he allegedly had made to 23 her. (Id. at 14.) The comment according to plaintiff was made in Spanish. (Id.) 24 She only told Mr. Linares that she believed that Mr. Ross s comment was racial in 25 26 nature. (Id.) As to the Facebook incident, TSI asked its IT contractor to block 27 access to the website for all office computers. (Id.) Having considered the facts 28 1 CIVIL 08-2408 (JA) 16 2 3 of this case in the light most favorable to plaintiff, the court finds that the 4 5 defendants responded promptly and appropriately to the December 1, 2007 6 complaint. Plaintiff has failed to establish a trial worthy issue as to whether there 7 is employer liability for the hostile work environment created by TSI. Accordingly, 8 plaintiff s Title VII hostile work environment claim must be dismissed with 9 10 prejudice.6 11 B. Title VII Constructive Discharge Claim 12 Constructive discharge that results from . . . a hostile work environment 13 is actionable under Title VII. Acosta v. Harbor Holdings & Operations, Inc., 674 14 15 F. Supp. 2d 351, 362 (D.P.R. 2009) (citing Pa. State Police v. Suders, 542 U.S. 16 129, 143 (2004)). In order to establish a claim based on constructive discharge 17 plaintiff must prove that his employer imposed working conditions so intolerable 18 that a reasonable person would feel compelled to forsake his job rather than to 19 20 submit to looming indignities. Acosta v. Harbor Holdings & Operations, Inc., 674 21 F. Supp. 2d at 361-63 (quoting Landrau-Romero v. Banco Popular De P.R., 212 22 F.3d 607, 613 (1st Cir. 2000)). 23 discharge claim is an objective one; it cannot be triggered solely by an The standard for assessing a constructive 24 25 26 27 28 6 Since plaintiff s failed to establish a prima facie case for hostile work environment, the court will not address the parties arguments regarding the application of the Faragher-Ellerth defense. (Docket No. 45, at 7-9 & Docket No. 52, at 5-7). See Chaloult v. Interstate Brands Corp., 540 F.3d 64, 66 (1st Cir. 2008) (citing Faragher v. City of Boca Raton, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). 1 CIVIL 08-2408 (JA) 17 2 3 employee s subjective beliefs, no matter how sincerely held. Román v. Potter, 4 5 604 F.3d 34, 42 (1st Cir. 2010) (quoting Marrero v. Goya of P. R., Inc., 304 F.3d 6 at 28). Thus, that a plaintiff was subjected to the ordinary slings and arrows that 7 workers routinely encounter in a hard, cold world is insufficient to state a claim 8 for constructive discharge. De La Vega v. San Juan Star, Inc., 377 F.3d at 117 9 10 (quoting Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 45 (1st Cir. 11 2003) (quoting Suárez v. Pueblo Int l, Inc., 229 F.3d 49, 54 (1st Cir. 2000)). 12 Because plaintiff failed to establish a prima facie case for her hostile work 13 environment claim, the court needs not address her constructive discharge claim. 14 15 See Acosta v. Harbor Holdings & Operations, Inc., 674 F. Supp. 2d at 362 (quoting 16 Pa. State Police v. Suders, 542 U.S. at 149); Dykstra v. First Student, Inc., 324 17 F. Supp. 2d 54, 68 (D. Me. 2004) (holding that a failure to make out a hostile 18 work environment claim effectively disposes of the constructive discharge claim 19 20 21 as well). Therefore, the court finds that plaintiff s constructive discharge claim must be dismissed with prejudice. 22 C. Title VII Retaliation Claim 23 Because plaintiff did not present direct evidence in support of her retaliation 24 claim the court must apply the McDonnell Douglas burden shifting scheme. 25 26 Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010) (citing Calero- 27 Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 25-26 (1st Cir. 2004)); see McDonnell 28 1 CIVIL 08-2408 (JA) 18 2 3 Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this scheme, a 4 5 plaintiff establishes a prima facie case for retaliation by showing that: (1) she 6 engaged in [a] protected activity; (2) she suffered some materially adverse 7 action; and (3) the adverse action was causally linked to her protected activity. 8 Agusty-Reyes v. Dep t of Educ. of P.R., 601 F.3d 45, 56-57 (1st Cir. 2010) 9 10 (quoting Dixon v. Int l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007)). 11 Once a plaintiff makes out a prima facie case of retaliation, the burden shifts to 12 the defendant . . . to articulate a legitimate, non-retaliatory reason for [its] 13 employment decision. Román v. Potter, 604 F.3d at 39 (quoting Enica v. Principi, 14 15 544 F.3d 328, 343 (1st Cir. 2008)). If the defendant meets this burden, the 16 plaintiff must now show that the proffered legitimate reason is in fact a pretext 17 and that the job action was the result of the defendant s retaliatory animus. 18 Valetín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94-95 (1st Cir. 2006) 19 20 (quoting Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d at 26). 21 Plaintiff claims that the defendants retaliated against her after she filed a 22 charge for discrimination before the ADU and EEOC. (Docket No. 52.) According 23 to plaintiff the complaint made by Mrs. Pendelton was addressed by Mrs. Ferguson 24 to Dragonfly as well as to Hendrick Santos, Felipe Cervantes and Jose Ferreras, 25 26 all members of management at the Gran Meliá Hotel. (Id. at 1.) The complaint 27 according to plaintiff was filled with false and defamatory statements. 28 (Id.) 1 CIVIL 08-2408 (JA) 19 2 3 Additionally plaintiff claims that she was informed by Dragonfly that TSI had 4 5 contacted them claiming that she could not work with them as per an agreement 6 not to compete. (Id. at 1 & 2.) Plaintiff claims that as a result of TSI s action she 7 was terminated from her employment. (Id.) According to plaintiff, a reasonable 8 jury could infer from the chronological sequence of events that there was a 9 10 retaliatory animus behind TSI s actions. (Id. at 4-5.) 11 The defendants concede that the filing of the ADU charge is a protected 12 activity under Title VII for purposes of establishing the first prong of plaintiff s 13 prima facie case. (Docket No. 48, at 6.) The defendants, however, do not admit 14 15 that plaintiff suffered an adverse employment action and therefore argue that she 16 cannot establish any causal connection with the protected activity. (Id.) The 17 defendants also contend that there is no temporal proximity between plaintiff s 18 protected activity and the actions she alleges are retaliatory. (Id.) The 19 20 defendants also believe that even if it is assumed that plaintiff is able to establish 21 a prima facie case, defendants have legitimate, non-discriminatory reasons for 22 their actions. (Id. at 7.) According to the defendants, Mrs. Pendelton made the 23 complaint because plaintiff allegedly was trying to take away TSI s business by 24 telling clients that Dragonfly was the only one authorized to provide its services 25 26 at the Gran Meliá. (Id.) The defendants contend that they contacted Dragonfly 27 after they learned of the complaint and after finding out that plaintiff was working 28 1 CIVIL 08-2408 (JA) 20 2 3 for them. (Id. at 8.) The defendants, therefore, claim that they communicated 4 5 with Dragonfly with the purpose of letting them know of the non-competition 6 agreement. (Id.) 7 8 In appropriate circumstances, courts have recognized that anti-retaliation provisions may cover actions that are not directly employment-related. Gore v. 9 10 Trs. of Deerfield Acad., 385 F. Supp. 2d 65, 72 (D. Mass. 2005). Nevertheless, in 11 order to be subject to liability under Title VII for retaliation, a defendant must (1) 12 fall within Title VII s statutory definition of employer, and (2) have exercised 13 substantial control over significant aspects of the compensation, terms, conditions 14 15 or privileges of plaintiff s employment. Rivera v. Telefónica de P.R., 913 F. Supp. 16 81, 86 (D.P.R. 1995) (citing Magnuson v. Peak Technical Servs., Inc., 808 F. 17 Supp. 500, 506 (E.D. Va. 1992)). In this case there is no question that TSI is an 18 employer under Title VII. See 42 U.S.C. 2000e(b) (an employer under Title VII 19 20 includes any person engaged in an industry affecting commerce . . ., and any 21 agent of such person . . . . ) 22 plaintiff s employer at the time the alleged retaliatory actions took place and at 23 the time that plaintiff engaged in the protected activity. The court finds that it 24 The question, however, is whether TSI was was not. Plaintiff worked for TSI until December 10, 2007, and on that same 25 26 date she filed a complaint before the ADU and EEOC. At the time that the alleged 27 retaliatory actions took place, October, 2008, plaintiff was working for Drogonfly. 28 1 CIVIL 08-2408 (JA) 21 2 3 Thus, its clear that if someone had any substantial control over the compensation, 4 5 terms, conditions or privileges of plaintiff s employment it was Dragonfly and not 6 TSI. Based on the foregoing, the court finds that plaintiff s Title VII retaliation 7 claim fails. 8 It is important to note that regardless of whether TSI was plaintiff s 9 10 employer, plaintiff s claim would have still failed. Although causal connection may 11 be established due to the temporal proximity between the alleged retaliatory 12 actions and the issuance of the Right to Sue letter, the defendants proffered 13 reason for communicating with plaintiff s new employer was both legitimate and 14 15 non-discriminatory. See DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) 16 (holding that close temporal proximity is sufficient to establish a prima facie case 17 of retaliation). The defendants in this case did not take any adverse employment 18 action against the plaintiff. See Morales-Vallellanes v. Potter, 605 F.3d 27, 36 19 20 (1st Cir. 2010) (quoting Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir. 2008)) 21 (Examples of adverse employment actions in the retaliation cases include the 22 following: (1) termination of employment ; (2) demotion evidenced by a 23 decrease in wage or salary ; (3) a less distinguished title ; (4) a material loss 24 of benefits ; (5) significantly diminished material responsibilities ; or (6) other 25 26 indices that might be unique to a particular situation .) The fact that Dragonfly 27 terminated plaintiff from her employment cannot be construed as a retaliatory 28 1 CIVIL 08-2408 (JA) 22 2 3 action by TSI. As stated before, after finding out that plaintiff was working with 4 5 Dragonfly, a direct competitor of TSI, TSI communicated with them to let them 6 know about the non-competition agreement. Based on these facts there is no 7 question that TSI would have still contacted Dragonfly regardless of whether or 8 not she engaged in a protected activity. It is a logical and natural reaction for any 9 10 company, including TSI, to take the appropriate measures to protect its business 11 when its well being and stability are at risk. More importantly is the fact that 12 there is no evidence that shows that plaintiff was deterred by TSI or any of the 13 other defendants from engaging in the protected activity. See Acosta v. Harbor 14 15 Holdings & Operations, Inc., 674 F. Supp. 2d at 368 (quoting Noviello v. City of 16 Boston, 398 F.3d 76, 90 (1st Cir. 2005)). Furthermore, plaintiff failed to provide 17 any evidence that would show that the defendants legitimate non-discriminatory 18 reasons for its actions were pretextual. See Kosereis v. Rhode Island, 331 F.3d 19 20 207, 213 (1st Cir. 2003) (stating that, as compared to a court s consideration of 21 whether a plaintiff has established a prima facie case, pretext analysis . . . is 22 more demanding ). Plaintiff only submits that the facts, as presented, establish 23 that TSI s alleged non-discriminatory reasons for its actions were merely a pretext 24 to hide their retaliatory and discriminatory animus. (Docket No. 52, at 5.) 25 26 Plaintiff s argument is incorrect. It is well settled that after the defendant proffers 27 a non-discriminatory reason for its actions, the plaintiff has to prove, by a 28 1 CIVIL 08-2408 (JA) 23 2 3 preponderance, that the defendant's explanation is a pretext for unlawful 4 5 discrimination. Mariani-Colón v. Dep t of Homeland Sec. ex rel. Chertoff, 511 6 F.3d 216, 221 (1st Cir. 2007). Plaintiff s subjective speculation and suspicion 7 that she was treated unfairly is not enough to establish that the defendant s 8 actions were pretextual. Id. at 222 (quoting Quiñones v. Buick, 436 F.3d 284, 9 10 11 12 13 290 (1st Cir. 2006)). Consequently, plaintiff s Title VII retaliation claim must be dismissed with prejudice. D. Puerto Rico Law Claims Plaintiff filed supplemental claims pursuant to Puerto Rico Act No. 100 of 14 15 June 30, 1959, as amended, P.R. Laws Ann. tit. 29, § 146 et seq.; Article 1802 16 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141 and § 17 5142; Puerto Rico Act No. 80 of May 31, 1976, as amended, P.R. Laws Ann. tit. 18 29, § 185a et seq.; and Puerto Rico Act No. 115 of December 20, 1991, as 19 20 amended, P.R. Laws Ann. tit. 29, § 149 et seq. (Docket No. 1, at 7, ¶ 33.) Since 21 all of plaintiff s federal claims were dismissed, the court will not exercise 22 supplemental jurisdiction over the Puerto Rico law claims which posit novel and 23 complex issues of state law . . . . Szendrey-Ramos v. First BanCorp., 512 F. 24 Supp. 2d 81, 88 (D.P.R. 2007); see Del Toro-Pacheco v. Pereira-Castillo, 662 F. 25 26 Supp. 2d 202, 217 (D.P.R. 2009); Meléndez v. Autogermana, Inc., 606 F. Supp. 27 2d 189, 198-99 (D.P.R. 2009). 28 Accordingly, plaintiff s state law claims are 1 CIVIL 08-2408 (JA) 24 2 3 dismissed without prejudice. Cao v. Puerto Rico, 525 F.3d 112, 116 (1st Cir. 4 5 2008) (holding that when state law claims are dismissed without prejudice, a 6 plaintiff is free to assert them in the appropriate state forum). 7 8 IV. CONCLUSION For the reasons set froth above, the defendants motion for summary 9 10 judgment is GRANTED in its entirety. Accordingly, plaintiff s federal claims are 11 DISMISSED WITH PREJUDICE. Also, plaintiff s supplemental state law claims are 12 DISMISSED WITHOUT PREJUDICE. 13 The Clerk is directed to enter judgment accordingly. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At San Juan, Puerto Rico, this 28th day of July, 2010. S/JUSTO ARENAS Chief United States Magistrate Judge

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