Jabbar v. Travel Services, Inc. et al, No. 3:2008cv02408 - Document 61 (D.P.R. 2010)

Court Description: OPINION AND ORDER denying re 57 MOTION to Alter Judgment filed by Kareemah Amira Jabbar Signed by Chief Mag. Judge Justo Arenas on 9/10/2010.(Arenas, Justo)

Download PDF
Jabbar v. Travel Services, Inc. et al 1 Doc. 61 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 11 OPINION AND ORDER 12 13 This matter is before the court on motion to alter or amend judgment filed 14 by plaintiff, Kareemah Amira-Jabbar, on August 9, 2010. 15 Plaintiff s motion was opposed by the defendants, Travel Services, Inc., Joanne 16 (Docket No. 57.) Ferguson, John Ross, Miguel Hernández-Roses and Gilbert Anthony Linares, on 17 18 19 20 21 August 30, 2010. (Docket No. 60.) For the reasons set forth below, plaintiff s motion is hereby DENIED. I. OVERVIEW Plaintiff moves for reconsideration of the opinion and order issued by the 22 court on July 28, 2010. See Fed. R. Civ. P. 59(e) (Docket No. 55.) According 23 24 to plaintiff, by granting summary judgment in favor of the defendants the court 25 incurred in manifest error inasmuch as: (1) inferences were not viewed in the 26 light most favorable to her; (2) the jury s roll was usurped in determining 27 whether she had complied with her burden in establishing a prima facie case of 28 Dockets.Justia.com 1 CIVIL 08-2408 (JA) 2 2 3 4 5 hostile work environment; (3) it was erroneously concluded that Title VII s anti- 6 retaliation provisions did not extend to former employees; (4) the constructive 7 discharge claim was not addressed when in fact she was constructively 8 discharged from her employment with Travel Services, Inc. ( TSI ). (Id.) 9 10 Defendants on the other hand argue that plaintiff s motion must be denied 11 because no such errors were made. (Docket No. 60, at 2.) 12 defendants claim that plaintiff s dissertation 13 In essence, the is a rehash of her previous arguments in opposition to the various motions for summary judgment filed in 14 15 this case. (Id.) II. STANDARD OF REVIEW 16 17 18 Under Fed. R. Civ. P. 59(e) a party has twenty eight (28) days upon entry of judgment, to file a motion seeking to alter or amend said judgment. The rule 19 20 itself does not specify on what grounds the relief sought may be granted, and 21 courts have ample discretion in deciding whether to grant or deny such a 22 motion. Colón v. Blades, ___ F. Supp. 2d ____, 2010 WL 3432602, * 1 (D.P.R. 23 September 1, 2010) (quoting Candelario del Moral v. UBS Financial Services Inc. 24 of Puerto Rico, ___ F. Supp. 2d ____, 2010 WL 1409433, * 2 (D.P.R. April 9, 25 26 27 28 2010) (citing Venegas-Hernández v. Sonolux Records, 370 F.3d 183, 190 (1st Cir.2004)). Nevertheless, courts only grant a Rule 59(e) motion when the 1 CIVIL 08-2408 (JA) 3 2 3 4 5 movant shows a manifest error of law or newly discovered evidence. Rodríguez- 6 Rivas v. Police Dept. of Puerto Rico, 699 F. Supp. 2d 397, 400 (D.P.R. 2010) 7 (quoting Santiago-Sepulveda v. Esso Std. Oil Co. (P.R.), Inc., 638 F. Supp. 2d 8 193, 197 (D.P.R. 2009) (citing Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir. 9 10 2008)). Rule 59(e) may not, however, be used to raise arguments that could 11 and should have been presented before judgment was entered, nor to advance 12 new legal theories. Cintrón v. Pavia Hato Rey Hosp., 598 F. Supp.2d 238, 241 13 (D.P.R. 2009) (citing Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 72 (1st 14 15 Cir.2003)). III. ANALYSIS 16 17 1. Reasonable Inferences 18 Plaintiff argues that the court did not make all reasonable inferences in her 19 20 favor because it agreed with the defendants that she had failed to establish 21 elements four, five and six of her prima facie case of hostile work environment. 22 (Docket No. 57, at 2.) According to plaintiff, she provided evidence that showed 23 that TSI knew or should have known of the harassment but that it failed to 24 25 implement prompt and appropriate action. (Id.) Specifically, plaintiff claims that 26 she demonstrated that when Mrs. Ferguson, TSI s Executive Vice-president, heard 27 Mr. Ross say that she belonged on the side of the road in Loiza cooking with her 28 1 CIVIL 08-2408 (JA) 4 2 3 4 5 people, she did not take any corrective action. (Id.) Also, plaintiff claims that she 6 showed that Mr. Ross used to make racial jokes about other ethnic groups and 7 that TSI knew about it but that it never did anything. 8 (Id.) In addition to proving these facts, plaintiff claims that she showed that it was an official practice 9 10 11 12 at TSI to load company outing pictures on Facebook so all employees could have them, instead of sending them through email. (Id.) The defendants do not contest that in assessing a motion for summary 13 14 judgment, all reasonable inferences have to be made in favor of the non-moving 15 party. (Docket No. 60, at 3.) However, the defendants do believe that plaintiff 16 is inviting the court to make impermissible inferences by accepting self serving 17 statements and conclusory allegations. (Id.) They argue that plaintiff cannot 18 establish a prima facie case of race discrimination based on the three incidents 19 20 that occurred within a period of more than a year because they did not rise to the 21 degree severity or pervasiveness required. 22 allegation regarding the other comments allegedly made by Mr. Ross, the (Id. at 3-4.) As to plaintiff s 23 defendants argue that she does not have any personal knowledge that she herself 24 25 heard the comments directly from him. (Id.) The defendants claim that even if 26 it was assumed that the comments were in fact heard by plaintiff there is no 27 evidence 28 of how severe or frequent the comments were made or how they 1 CIVIL 08-2408 (JA) 5 2 3 4 5 interfered with anyone s terms and conditions of employment. (Id.) With respect 6 to plaintiff s allegation that it was a company policy to upload company activity 7 pictures in Facebook, the defendants claim that there is no evidence that TSI or 8 anyone else for that matter, ordered or encouraged any of its employees to 9 10 upload company activity pictures, much less comment on them. (Id. at 5.) 11 [W]hile it is true that, in the summary judgment context, a district court 12 must draw all reasonable inferences in favor of the non-moving party, [it is] not 13 obliged to accept as true or to deem as a disputed material fact, each and every 14 15 unsupported, subjective, conclusory, or imaginative statement made to the Court 16 by a party. Méndez-Aponte v. Puerto Rico, 656 F. Supp. 2d 277, 281 (D.P.R. 17 2009)(quoting Torrech-Hernández v. General Elec. Co., 519 F.3d 41, 47 (1st 18 Cir.2008)). If the non-moving party relies on such statements summary 19 20 judgment should be granted, even if it is an employment discrimination case 21 where elusive concepts such as motive or intent are at issue . . . . Meuser v. 22 Federal Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (quoting 23 Medina- Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)); see also 24 Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 5 25 26 27 28 (1st Cir. 2000). 1 CIVIL 08-2408 (JA) 6 2 3 4 Although plaintiff claims that Mrs. Ferguson was present when Mr. Ross 5 6 allegedly made the derogatory comment during the Christmas party in December, 7 2006, she did not allege nor is there any evidence that shows that she 8 complained about the incident. Instead she assumes that because Mrs. Ferguson 9 10 was allegedly there when the incident occurred that she had the obligation to take 11 an appropriate remedial action but that she failed to do so. 12 plaintiff s disbelief, the court did make all reasonable inferences in her favor. 13 Notwithstanding After plaintiff complained about the candy cane incident on December 1, 2007 an 14 15 investigation was conducted the following day. Amira-Jabaar v. Travel Services, 16 Inc., ___ F. Supp. 2d ____, 2010 WL 2989852, * 5 (D.P.R. July 28, 2010). 17 part of the investigation every incident that was brought to TSI s attention by 18 plaintiff was investigated, including the incident involving Mr. Ross. Id. As The 19 20 investigation revealed that plaintiff did not know what the comment was that Mr. 21 Ross allegedly had made because according to her the comment was made in 22 Spanish. Id. Plaintiff only said that she believed that Mr. Ross s comment was 23 racial in nature. Id. As a result, Mr. Ross was not reprimanded. Id. 24 In the complaint and in her deposition, plaintiff relates the comment that 25 26 Mr. Ross allegedly made. (Docket No. 1, at 8-9, ¶¶ 41-42 & Docket No. 31-3, at 27 2-3.) 28 However, when TSI investigated all of the incidents that plaintiff had 1 CIVIL 08-2408 (JA) 7 2 3 4 5 complained off she did not know what exactly Mr. Ross had said. Thus, there 6 being no proper explanation as to plaintiff s contradictory version as to this fact 7 the court need not make unreasonable inferences in her favor. See Meuser v. 8 Federal Express Corp., 564 F.3d at 515. Furthermore, the court cannot, as 9 10 plaintiff suggests, infer that Mr. Ross did in fact make the alleged discriminatory 11 comments to her in the presence of Mrs. Ferguson and that no remedial action 12 was taken because according to her Mr. Ross used to make racial slurs which TSI 13 knew about, but never did anything about. The court cannot draw any 14 15 reasonable inferences from such an assertion. See Caban-Hernández v. Philip 16 Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) (holding that a court does not 17 have 18 to draw unreasonable inferences or credit bald conclusions, rank conjecture, or vitriolic invective. ) assertions, empty Having said that, there is 19 20 also nothing that suggest that the court did not make reasonable inferences in 21 favor of plaintiff regarding the Facebook incident. Plaintiff claims that it was a 22 general practice at TSI to upload pictures on Facebook after every company 23 outing. However, aside from plaintiff s deposition testimony there is no evidence 24 that shows that the Facebook account belonged to TSI or that it condoned its use 25 26 27 28 during company time. Hence, it cannot be assumed that TSI knew or should have known about the alleged discriminatory comment that was posted by Mr. 1 CIVIL 08-2408 (JA) 8 2 3 4 5 Hernández. According to the record, when plaintiff finally complained about the 6 incident to Mrs. Ferguson, TSI ordered its IT contractor to block access to the 7 website for all office computers. 8 Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____, 2010 WL 2989852, * 5 (D.P.R. July 28, 2010). Based on the 9 10 11 12 foregoing, there is no question that plaintiff s allegations were taken as true and that all reasonable inferences were made in her favor. 2. Credibility Determinations 13 14 Plaintiff argues that it is the role of the jury and not that of the court to 15 determine whether or not her claims rose to the level of severity and 16 pervasiveness required. 17 (Docket No. 57, at 5.) The defendants nevertheless believe that the court s decision had nothing to do with credibility, but rather was 18 based on the uncontested material facts that were supported by the evidence on 19 20 the record. (Docket No. 60, at 5.) 21 It is well settled that [c]redibility issues fall outside the scope of summary 22 judgment. Méndez Montes De Oca v. Aventis Pharma, 579 F. Supp. 2d 222, 224 23 (D.P.R. 2008); CMI Capital Market Inv. LLC v. Municipality of Bayamón, 239 24 25 F.R.D. 293, 297 (D.P.R. 2006). Summary judgment may only be granted if there 26 are no genuine issues as to any material fact. Zabala-Calderon v. United States, 27 616 F. Supp. 195, 198 (D.P.R. 2008) (quoting Fed. R. Civ. P. 56(c)). Accordingly, 28 1 CIVIL 08-2408 (JA) 9 2 3 4 5 [i]n characterizing the hostile or abusive workplace, courts have drawn a 6 continuum between commonplace indignities and actionable harassment. 7 Offhand remarks, simple teasing, tepid jokes, and isolated incidents are at one 8 end of the continuum. This type of behavior, standing alone, usually does not 9 10 amount to a hostile work environment. Severe or pervasive sexual remarks, 11 innuendoes, ridicule, and intimidation fall at the other end of the continuum and 12 may support a jury verdict finding a hostile work environment. 13 Medina v. Adecco, 561 F. Supp. 2d 162, 171-73 (D.P.R. 2008) (citations omitted). 14 15 Plaintiff is correct in that the court concluded that the defendants actions 16 were not severe or pervasive enough as to establish a hostile work environment. 17 Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____, 2010 WL 2989852, 18 * 4 (D.P.R. July 28, 2010). However, in doing so the court did not determine 19 20 where along the continuum the defendants conduct lied. See Figueroa García v. 21 Lilly Del Caribe, Inc., 490 F. Supp.2d 193, 204-05 (D.P.R. 2007). After looking 22 at the totality of the circumstances the court found that the three incidents 23 plaintiff complained of were merely isolated incidents involving offhand 24 25 comments. Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____, 2010 26 WL 2989852, * 4 (D.P.R. July 28, 2010). As the record showed, the first incident 27 involving Mr. Ross took place in December, 2006. 28 Id. Nine months later in 1 CIVIL 08-2408 (JA) 10 2 3 4 5 September, 2007 the Facebook incident occurred. Id. Finally, the last incident 6 involving the candy cane took place in December, 2007. 7 court also found that there was no evidence that plaintiff was physically 8 Id. Furthermore, the threatened and that the defendants conduct did interfere with her work 9 10 performance. Id. Despite of this, plaintiff stresses that as in Danco, Inc. v. Wal- 11 Mart Stores, Inc., 178 F.3d 8 (1st Cir. 1999) these incidents would have been 12 enough to establish a hostile work environment. I disagree. 13 14 Although, the court did not explained why Danco was not controlling in this 15 case it did considered it before ruling on the motion for summary judgment. The 16 facts in 17 Danco are distinguishable from those in this case. In Danco, the incidents alleged by plaintiff occurred within a period of one month, between 18 October and November, 1994. Id. at 10-11. Unlike Danco, in this case the 19 20 incidents alleged by plaintiff occurred over a span of a year. Also, although the 21 incidents alleged in Danco were race related they involved physical violence, left 22 long lasting effects and interfered with plaintiff s work. Id. at 16-17. Thus, the 23 court s finding had nothing to do with credibility. Contrary wise, it was a matter 24 25 26 27 28 of sufficiency of the evidence of which there was not enough. 3. Retaliation Claim 1 CIVIL 08-2408 (JA) 11 2 3 4 5 Plaintiff argues that by determining that TSI was not her employer at the 6 time the alleged retaliatory actions took place and at the time she engaged in the 7 protected activity, the court erroneously concluded that Title VII s anti-retaliation 8 provision did not extend to former employees. (Docket No. 57, at 7.) Plaintiff 9 10 claims that even though she was not associated to TSI since December of 2007, 11 it was not until September, 2008 when the Equal Employment Opportunity 12 Commission ( EEOC ) issued the Right to Sue letter that TSI first had the 13 opportunity to retaliate against her. (Id.) She claims that due to the temporal 14 15 proximity between the time the Right to Sue letter was issued and the time she 16 was discharged, a reasonable jury could infer that TSI s reliance on the non- 17 compete clause was a mere pretext in order to affect her relationship with her 18 new employer, Dragonfly. (Id.) The defendants contend that no error was made 19 20 in the assessment of plaintiff s claim. (Docket No. 60, at 7.) 21 The court acknowledges that it erred in finding that plaintiff s retaliation 22 failed because at the time the alleged discriminatory acts took place she was not 23 TSI s employee. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (finding 24 that the term employees as used in the anti-retaliation provisions of Title VII 25 26 27 28 includes former employees). However, it held that even if TSI was considered plaintiff s employer at the time of the supposed retaliatory incidents she 1 CIVIL 08-2408 (JA) 12 2 3 4 5 complained off, plaintiff s claim would have still failed. Amira-Jabaar v. Travel 6 Services, Inc., ___ F. Supp. 2d ____, 2010 WL 2989852, * 8 (D.P.R. July 28, 7 2010). 8 The court reasoned that even though a causal connection could be established due to the temporal proximity between the alleged retaliatory actions 9 10 and the issuance of the Right to Sue letter, the defendants proffered reason for 11 the adverse action was both legitimate and non-discriminatory. Id. As the record 12 showed, TSI only communicated with Dragonfly, a direct competitor of TSI, after 13 finding out it that plaintiff was working for them in order to let them know about 14 15 the existence of the non-competition agreement. Id. Despite this, plaintiff failed 16 to present any evidence that demonstrated that the defendants proffered reason 17 was pre-textual. Cachola-Bonilla v. Wyndham El Conquistador Resort & Country 18 Club, 577 F. Supp. 2d 566, 584 (D.P.R. 2008) (noting that the plaintiff is the one 19 20 who has the ultimate burden of showing that the proffered reason is pre-textual 21 and the adverse employment decision was the result of the defendant s retaliatory 22 animus). 23 Plaintiff simply believes that because there is a temporal proximity between the protected activity and the alleged retaliatory actions, the defendants 24 reliance on the non-compete clause is merely pre-textual. Once again plaintiff 25 26 27 28 relies on subjective speculation and suspicion to prove that TSI s actions were in fact pre-textual. Amira-Jabaar v. Travel Services, Inc., ___ F. Supp. 2d ____, 1 CIVIL 08-2408 (JA) 13 2 3 4 5 2010 WL 2989852, * 8 (D.P.R. July 28, 2010) (quoting Mariani-Colón v. Dep t of 6 Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 222 (1st Cir. 2007)). Thus, the 7 court correctly dismissed plaintiff s retaliation claim. 8 4. Constructive Discharge Claim 9 10 Plaintiff asserts that like the hostile work environment claim the 11 constructive discharge claim should have not been dismissed. (Docket No. 57, 12 at 7 & 8.) 13 The defendants in turn argue that plaintiff s claim fails because there is nothing that suggests that the working conditions were so onerous, abusive, 14 15 16 17 18 difficult or unpleasant that a reasonable person would have felt compelled to resign. (Docket No. 60, at 7.) The Supreme Court has indicated that the hostile work environment claim is a lesser included component of the graver claim of hostile-environment 19 20 constructive discharge. Acosta v. Harbor Holdings & Operations, Inc., 674 F. 21 Supp. 2d 351, 362 (D.P.R. 2009) (quoting Pennsylvania State Police v. Suders, 22 542 U.S. 129, 23 149 (2004)). This means that the [c]reation of a hostile work environment is a necessary predicate to a hostile-environment constructive 24 discharge case ... [T]he only variation between the two claims is the severity of 25 26 27 28 the hostile working conditions. Id. Nevertheless, the fact that [a] plaintiff endured a hostile work environment-without more-will not always support a 1 CIVIL 08-2408 (JA) 14 2 3 4 5 finding of constructive discharge. Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 6 7, 28 (1st Cir. 2002). 7 discharge claim is more onerous than the hostile work environment standard. 8 This is so because the standard for a constructive Bodman v. Maine, ___ F. Supp. 2d ____, 2010 WL 2653388, * 6 (D. Me. June 9 10 11 12 22, 2010). The court in this case did not err in dismissing plaintiff s constructive discharge claim. Plaintiff s claim was disposed of because she failed to make out 13 14 a hostile work environment claim. Amira-Jabaar v. Travel Services, Inc., ___ F. 15 Supp. 2d ____, 2010 WL 2989852, * 6 (D.P.R. July 28, 2010) (citing Dykstra v. 16 First Student , Inc., 324 F. Supp. 2d 54, 68 (D. Me. 2004)). In the brightest of 17 scenarios assuming that plaintiff did establish a prima facie case for hostile work 18 environment, the court would have still dismissed her claim for constructive 19 20 discharge. In order to prove her claim, plaintiff needed to offer evidence of 21 more severe harassment than that required for a hostile work environment 22 claim. Luciano v. Coca-Cola Enterprises, Inc., 307 F. Supp. 2d 308, 320 (D. 23 Mass. 2004) (Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 24 25 26 27 28 48 (1st Cir.1998)). However, plaintiff in this case failed to provide said evidence. Thus, plaintiff s constructive discharge claim was properly dismissed. IV. CONCLUSION 1 CIVIL 08-2408 (JA) 15 2 3 4 5 6 7 For the reasons set forth above, plaintiff s motion to alter or amend judgment (Docket No. 57) is hereby DENIED. At San Juan, Puerto Rico, this 10 th day of September, 2010. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/JUSTO ARENAS Chief United States Magistrate Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.