Miles v. Wyndham Vacation Ownership et al, No. 3:2012cv01288 - Document 43 (D.P.R. 2014)

Court Description: OPINION AND ORDER DENYING 16 MOTION for Summary Judgment filed by Wyndham Vacation Ownership; NOTING 42 MOTION Submitting Opinion and Order filed by London Miles. Jury Trial set for 2/18/2014 09:30 AM in Courtroom 7 before Judge Jose A. Fuste. Signed by Judge Jose A. Fuste on 01/24/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 LONDON MILES, Plaintiff, Civil No. 12-1288 (JAF) v. WYNDHAM VACATION OWNERSHIP, SHAWYN MALEY, Defendants. 5 6 OPINION AND ORDER 7 Plaintiff London Miles ( Miles ) is suing her former employer, Defendant 8 Wyndham Vacation Ownership ( Wyndham ), and her former supervisor, Defendant 9 Shawyn Maley ( Maley ) for sexual discrimination, sexual harassment, and a hostile 10 work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as 11 well as for retaliation under the same act. (Docket No. 1.) Wyndham filed a motion for 12 summary judgment. (Docket No. 16.) Miles also filed a motion submitting an order and 13 opinion into the record (Docket No. 42), which we note. Upon examination of the 14 record, we deny the motion for summary judgment. 15 I. 16 Procedural History 17 On April 27, 2012, Miles filed a complaint against Wyndham and Maley. (Docket 18 No. 1.) On August 9, 2012, Wyndham answered the complaint. (Docket No. 7.) On 19 April 15, 2013, Wyndham filed a motion for summary judgment and a memorandum in Civil No. 12-1288 (JAF) -2- 1 support of the motion. (Docket Nos. 16, 17.) On May 14, 2013, Miles filed a response in 2 opposition to the motion for summary judgment, a statement of facts, and an additional 3 statement of facts. (Docket Nos. 22-24.) On May 29, 2013, Wyndham filed a reply to 4 the response to the motion for summary judgment. (Docket No. 34.) On November 7, 5 2013, Miles filed the opinion and order for a related case that was filed by a fellow 6 employee, Saliceti v. Wyndham. (Docket No. 42.) 7 II. 8 Facts 9 When considering a summary judgment motion, we must view all facts in the light 10 most favorable to the non-moving party. Therefore, to the extent that any facts are 11 disputed, the facts set forth below represent Miles version of the events at issue. 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, 13 where Miles asserted facts do not properly comply with Local Rules 56(c) and (e), we 14 deem Wyndham s properly-supported statements as admitted. See Cosme-Rosado v. 15 Serrano-Rodriguez, 360 F.3d 42, 45 (1st Cir. 2004) (affirming district court s decision to 16 deem moving party s statements of facts admitted if opposing party fails to controvert 17 properly). 18 Wyndham is a company that provides points-based vacation ownership products 19 via a network of regional offices and sales representatives, and the company has a 20 regional office in Río Grande, Puerto Rico. (Docket No. 16-1 at 1.) Wyndham s Human 21 Resources Director, Lisette Lama ( Lama ) is stationed in Pompano Beach, Florida. 22 (Docket No. 16-1 at 2.) At the time of the events in question, Lama received local Civil No. 12-1288 (JAF) -3- 1 support for the Río Grande office from Kerania Olmo ( Olmo ), Assistant Human 2 Resources Director for Wyndham Worldwide, a separate corporate entity that operates 3 the Wyndham Río Mar Hotel. Id. Richard Wieczerzak ( Wieczerzak ), Wyndham s 4 Vice President of Sales & Marketing for South Florida and Puerto Rico, oversees the 5 operations of the Río Grande office. He is stationed in Pompano Beach, Florida. Id. 6 Miles was born in Puerto Rico and raised in St. Thomas, U.S. Virgin Islands. 7 (Docket No. 16-1 at 3.) In the pre-employment documentation submitted by plaintiff, she 8 identified her race and ethnic origin as Hispanic. Id. On September 10, 2010, Wyndham 9 hired Miles as a Sales Representative at the Río Grande office and gave her a copy of the 10 Wyndham employee manual. Id. The manual stated that Wyndham strives to provide a 11 work environment free from all forms of harassment based on race, color, age, religion, 12 sex, national origin, disability, or any other legally protected classification. (Docket 13 No. 16-1 at 4.) 14 experienced harassment should report the conduct to any appropriate member of 15 management, which may include the supervisor, manager, department head, Human 16 Resources representative or the General Manager. (Docket No. 16-1 at 4-5.) When 17 Miles began working for Wyndham, she reported directly to Angelo Sánchez 18 ( Sánchez ), a sales manager who supervised the Río Grande sales representatives. 19 (Docket No. 16-1 at 3.) Further, the handbook stated that employees who witnessed or 20 On December 10, 2010, Wyndham hired Maley as a sales manager at the Río 21 Grande office. Id. Maley attended numerous trainings. The course names are not topic- 22 specific, other than one entitled Fair Labor Standards Act (FLSA), but Lama stated that Civil No. 12-1288 (JAF) -4- 1 they are generally employment-related. (Docket No. 16-4 at 17-19; Docket No. 16-10; 2 Docket No. 16-3 at 2). On February 15, 2011, Sánchez went on leave and Maley became 3 the direct supervisor for all eight Río Grande sales representatives. (Docket No. 16-1 at 4 4-5.) When he was her supervisor, Maley said in front of Miles that she had the perfect 5 breasts and that she had a nice rack. He also told Miles about sexual relations with his 6 girlfriend, showed her a picture of the girlfriend, and said that he was only with his 7 girlfriend because of her breasts. On multiple occasions, Maley stared at Miles breasts. 8 In front of Miles, Maley also said that Puerto Rico was like a little Harlem, that it was 9 fogyish, and that Puerto Ricans have no money. (Docket No. 24 at 6.) 10 On April 29, 2011, Miles coworker Michelle Pérez ( Pérez ) approached 11 Wieczerzak to complain about Maley. Pérez told Wieczerzak that a coworker, David 12 Saliceti ( Saliceti ), had said that Maley said the perfect woman had Pérez ass and 13 Miles tits. (Docket No. 16-1 at 5.) Weiczerzak relayed the information to Lama while 14 the two were on a flight to Florida, and Lama said that she would conduct an 15 investigation. (Docket No. 16-1 at 5.) Maley was suspended from employment while 16 Lama investigated the complaint. (Docket No. 16-1 at 6; Docket No. 24 at 5). 17 On May 2, 2011, Pérez and Miles met with Olmo at the Human Resources 18 Department of the Wyndham Río Mar Beach Resort. (Docket No. 16-1 at 5-6.) Lama 19 participated in this meeting by phone. (Docket No. 16-1 at 3.) In this meeting and in her 20 written statement, Miles complained of the following: (a) that Maley had said that Luis 21 and Neda have something up their sleeve; (b) that Maley had referred to Frances Torres 22 as lazy and fat; (c) that Maley said Pegg McGill was a bad secretary; (d) that Maley had Civil No. 12-1288 (JAF) -5- 1 said that Raúl Rivera needed speech therapy because of his poor English; (e) that Maley 2 had said that he hated Angelo Sánchez; and (f) that Pérez told her that Saliceti had 3 mentioned that Maley said that the perfect woman had Pérez ass and Miles tits. 4 (Docket Nos. 16-1 at 7; Docket No. 23). In her written statement, Miles said that 5 Shawyn seemed to be a fun, caring boss but I have seen changes that scared me. I am 6 only speaking to protect myself because I know that Michelle Started a HR process where 7 I am involved. (Docket No. 16-1 at 7) (sic). 8 As part of the company s investigation, Lama also interviewed Pérez, Carmen 9 Planadeball ( Planadeball ), Saliceti, Julio Villaseñor ( Villaseñor ) and Maley. All but 10 Planadeball submitted written statements. In his written statement, Saliceti mentioned 11 that the comment about the perfect woman was made in the presence of several male 12 sales associates. During the phone interview, he identified Villaseñor as one of those 13 present. Saliceti further said that Maley had asked him and Villaseñor to help buy 14 marijuana. (Docket No. 16-1 at 8.) 15 Villaseñor denied witnessing Maley making sexual comments and denied being asked to 16 buy drugs. (Docket No. 16-1 at 8-9.) In his phone interview and written statement, 17 Maley also denied the harassment allegations. (Docket No. 16-1 at 9.) Sánchez had 18 previously approached Wieczerzak to report witnessing harassment by Maley, but he was 19 not interviewed as part of the investigation. (Docket No. 24 at 5.) In his phone interview and written statement, 20 The investigation lasted three days. Id. Wyndham concluded that it could not 21 substantiate the allegations raised against Maley. Lama simply counseled Maley on the Civil No. 12-1288 (JAF) -6- 1 proper work environment, company policies and procedures, and advised him as to the 2 company s policy of zero tolerance on retaliation. (Docket No. 16-1 at 9.) 3 From January 1, 2011 through May 1, 2011, there were twenty-nine discovery 4 tours given on the site. (Docket No. 16-1 at 11.) These are tours of customers who 5 already have a trial ownership product and who, therefore, have an increased probability 6 of purchasing full vacation ownership products. 7 representatives meeting the minimum standards of performance are placed on a list to 8 lead these tours. (Docket No. 16-1 at 11; Docket No. 23 at 5). Usually, when a sales 9 representative was placed on the list for discovery tours, she remained in it until the end 10 of the month. (Docket No. 24 at 4.) From January 1 through May 1, 2011, Miles was 11 assigned four of the twenty-nine available discovery tours. Six sales were made in total, 12 and none of them were made by Miles. (Docket No. 16-1 at 11.) As of May 1, 2011, 13 about the time of the initial complaint, Miles was generating an average net sales volume 14 of $1,509 per guest. (Docket No 16-1 at 12; Docket No. 23 at 5.) Three days after Miles 15 gave her statement to human resources, she was removed from the list of discovery tours. 16 She notified human resources that she had been removed, but nothing was done. (Docket 17 No. 24 at 4.) Miles was reassigned to over flow for discovery tours and to over flow 18 for tours of people who already owned a Wyndham product ( Club Wyndham tours ). 19 (Docket No. 16-1 at 11-12.) 20 only one discovery tour (from which she generated a sale), two Club Wyndham tours, 21 and was twice invited to join a party weekend. (Docket No. 16-1 at 12.) (Docket No. 16-1 at 11.) Sales From May 2 through December 31, 2011, Miles received Civil No. 12-1288 (JAF) -7- 1 On May 26, 2011, Miles filed a report before the State Insurance Fund 2 Corporation ( SIFC ) and, as a result, was placed on rest. The next day, on May 27, 3 2011, Miles filed sex, race, and national origin discrimination charges before the state 4 Anti-Discrimination Unit ( ADU ). (Docket No. 16-1 at 9.) Upon receipt of the ADU 5 charge, Lama contacted Miles. Miles replied that Lama should contact her attorney. 6 (Docket No. 16-1 at 10.) 7 By that point, Miles, Pérez, Planadeball, and Saliceti had all filed discrimination 8 charges before the ADU and were all receiving medical treatment before the SIFC. Id. 9 In light of these charges, Lama and Wieczerzak decided to transfer Maley out of the 10 Puerto Rico office. Wieczerzak transferred Maley to a position as a sales manager at the 11 Wyndham Royal Vista Resort in Pompano Beach, Florida, starting July 15, 2011. Id. 12 Miles was released from medical treatment by the SIFC on July 19, 2011, and returned to 13 work shortly thereafter. On or around June 19, 2012, Miles resigned from her position. 14 (Docket No. 16-1 at 12.) 15 Around the time Miles resigned, other employees had begun legal proceedings. 16 On April 27, 2012, the same day this action was initiated, Pérez filed a complaint for sex 17 discrimination and sexual harassment against Wyndham and Maley. Perez-Rodríguez v. 18 Wyndham, Civil No. 12-1287(GAG); (Docket No. 24 at 3). She complained about the 19 perfect woman comment; about a coworker s allegation that Maley told him she 20 needed to have somebody to fuck her in the ass real good to alleviate her constipation; 21 and about how Maley just keeps looking at you like if he can eat you. (Docket No. 24 Civil No. 12-1288 (JAF) -8- 1 at 3.) She also complained that Maley made derogatory comments about Puerto Ricans 2 and African Americans. Id. 3 On May 10, 2012, Saliceti also filed a complaint for race and national origin 4 discrimination against Wyndham and Maley, Saliceti v. Wyndham, Civil No. 12-1325 5 (GAG). Saliceti claimed that he had witnessed the comment about the perfect woman, 6 that he had heard Maley refer to African Americans as fucking niggers and as 7 deadbeats. Saliceti claimed that he heard Maley say that Puerto Ricans have got no 8 money; it s a waste of time, you know, they re on Section 8. He claimed that he heard 9 Maley s anal sex comment regarding Pérez; that Maley would make fun of another 10 coworker for his accent; and that Maley referred to Puerto Ricans as pigs. (Docket 11 No. 24 at 2.) Saliceti had previously complained about these comments in a letter to 12 Lama. Id. 13 On June 19, 2012, Planadeball filed a complaint against Wyndham for race and 14 national origin discrimination and retaliation. Planadeball v. Wyndham, Civil No. 2012- 15 1485(JAG). 16 Ricans, and that Maley had said that Puerto Rico was a trash can and that Puerto Ricans 17 were stupid. She also claimed that she heard Maley refer to African Americans as 18 niggers. (Docket No. 24 at 7.) Planadeball claimed that Maley made jokes about women and Puerto 19 On November 11, 2012, the other sales manager, Sánchez, filed a lawsuit against 20 Wyndham for illegal retaliation in response to his reporting sexual harassment. Sánchez 21 v. Wyndham, Civil No. 12-1911 (SEC); (Docket No. 24 at 4). Civil No. 12-1288 (JAF) -9- 1 Pegg McGill, another former Wyndham employee, also filed a hostile work 2 environment lawsuit against Wyndham in local court. Pegg McGill v. Wyndham, NECI- 3 2012-00296 (Puerto Rico Superior Court, Río Grande Part); (Docket No. 24 at 7). 4 III. 5 Legal Analysis 6 Defendants are entitled to summary judgment on a claim if they can show that 7 there is no genuine dispute over the material facts underlying the claim. Celotex Corp. v. 8 Catrett, 477 U.S. 317, 323 (1986). We must decide whether a reasonable jury could find 9 for Miles in any of her claims when all reasonable inferences from the evidence are 10 drawn in her favor. See Scott v. Harris, 550 U.S. 372, 380 (2007). 11 A. 12 13 14 15 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 1. Sexual Discrimination, Sexual Harassment, and a Hostile Work Environment Under Title VII of the Civil Rights Act of 1964, it is illegal for an employer to 16 discriminate against any individual with respect to his compensation, terms, conditions, 17 or privileges of employment, because of such individual s race, color, religion, sex or 18 national origin. 42 U.S.C. § 2000e-2(a)(1)). Sexual harassment is included as a form of 19 sex discrimination prohibited by Title VII. O Rourke v. City of Providence, 235 F.3d 20 713, 728 (1st Cir. 2001). Title VII also prohibits sexual harassment in the form of a 21 hostile or abusive work environment. Rosario v. Dept. of Army, 607 F.3d 241, 246 (1st 22 Cir. 2010); see also Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). Civil No. 12-1288 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 -10- When sexual harassment manifests as a hostile or abusive work environment, the First Circuit has listed several elements a plaintiff must establish in her claim: (1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff s employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established. O Rourke, 235 F.3d at 728. 15 While Miles cites to several portions and interpretations of the statute, her 16 strongest case for workplace discrimination is that she experienced sexual harassment in 17 the form of a hostile or abusive work environment. Therefore, we walk through the 18 O Rourke elements which Miles must show to survive summary judgment. See id. a. 19 Protected class 20 Because Miles is a female employee, she has proven this element. See 42 U.S.C. 21 § 2000e-2(a)(1) (prohibiting workplace discrimination based upon sex); O Rourke, 235 22 F.3d 713. 23 b. Unwelcome sexual harassment 24 A hostile work environment can be proven by evidence of sexual remarks, 25 innuendoes, ridicule, and intimidation. O Rourke, 235 F.3d at 729. Miles alleges that 26 Maley said in front of her that she had the perfect breast and that she had a nice rack. 27 She also alleges that he told her about sexual relations with his girlfriend, showed her a Civil No. 12-1288 (JAF) -11- 1 picture of the girlfriend, and said he was only with his girlfriend because of her breasts. 2 Miles alleges that on multiple occasions Maley stared at her breasts. (Docket No. 24 at 6.) 3 She also alleges that Maley told another coworker that the perfect woman had Pérez s ass 4 and Miles tits. (Docket No. 16-1 at 5.) A jury could find that this behavior constitutes 5 unwelcome sexual harassment. c. 6 The harassment was based upon sex 7 In a recent case, the First Circuit found that sexually-oriented jokes which may 8 not have amounted to much on their own and were of uncertain frequency ¦ nonetheless 9 suggest a lack of respect by [the supervisor] for his female colleagues, lending weight to 10 the inference that his behavior toward [Plaintiff] was inappropriately motived by gender. 11 Rosario, 607 F.3d at 248. The Court emphasized that the supervisor treated other female 12 employees similarly, which bolstered the inference. Id. In this case, Miles allegations 13 that Maley fixated on breasts certainly suggests a lack of respect by a supervisor for his 14 female colleagues, raising the inference that he was inappropriately motivated by gender. 15 Further, other female employees allege that they were treated in a similarly harassing 16 manner, as evidenced by Pérez s lawsuit for sex discrimination and sexual harassment, 17 Pérez-Rodríguez v. Wyndham, Civil No. 12-1287 (GAG), and by Pegg McGill s lawsuit 18 for a hostile work environment, Pegg McGill v. Wyndham, NECI-2012-00296 (Puerto 19 Rico Superior Court, Río Grande Part). A jury could find that the harassment was based 20 upon sex. Civil No. 12-1288 (JAF) 1 2 3 4 5 d. -12- The harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff s employment and create an abusive work environment To determine whether the conditions are sufficiently egregious, the court must [e]xamine all the attendant circumstances including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee s work performance. 6 7 8 9 10 11 12 Rosario, 607 F.3d at 247. Although Miles does not specifically state the frequency of the 13 alleged conduct, Maley was only her supervisor for five months and she alleges 14 numerous incidents. (Docket No. 16-1.) Therefore, a jury could find that the conduct 15 was frequent. A reasonable jury could also find that the conduct was severe, humiliating, 16 and unreasonably interfered with Miles work performance. e. The sexually objectionable conduct was both objectively and subjectively offensive 17 18 19 20 To be both objectively and subjectively offensive, the conduct must be such that 21 a reasonable person would find hostile or abusive, and one that the victim in fact did 22 perceive to be so. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). A jury 23 could find that a reasonable person would feel this conduct was hostile or abusive. 24 Further, Miles did in fact perceive it to be offensive, because she complained in both a 25 May 2, 2011, phone call with human resources and in a written statement. (Docket 26 No. 16-1 at 7; Docket No. 23.) 27 regarding this conduct. (Docket No. 16-1 at 10.) She also filed a report before the SIFC and the ADU Civil No. 12-1288 (JAF) -13- f. Basis for employer liability 1 2 When a supervisor creates a hostile work environment, his employer is 3 vicariously liable. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); 4 Faragher, 524 U.S. at 807-08; Noviello v. City of Boston, 398 F.3d 76 (2005). Maley is a 5 supervisor hired by Wyndham. (Docket No. 16-1 at 3-5.) 6 2. 7 The Faragher-Ellerth defense was designed to protect only those responsible 8 employers who have established effective sexual harassment policies and responsive 9 grievance processes. Agusty-Reyes v. Dept. of Educ. of Puerto Rico, 601 F.3d 45, 55 10 Faragher-Ellerth affirmative defense (1st Cir. 2010). 11 When a supervisor s harassment of an employee results in a tangible 12 employment action against the employee, the employer is vicariously liable for the 13 actionable hostile environment created by [the] supervisor. Agusty-Reyes, 601 F.3d at 14 53 (citations omitted). Tangible employment actions include hiring, firing, failing to 15 promote, reassignment with significantly different responsibilities, or a decision causing a 16 significant change in benefits. Ellerth, 524 U.S. at 761. Reasonableness is not a defense. 17 Agusty-Reyes, 601 F.3d at 53. Miles alleges that she was removed from the list to lead 18 lucrative discovery tours. (Docket No. 16-1 at 11; Docket No. 23 at 5.) However, she 19 implies that this happened in retaliation for her complaint of sexual harassment, rather 20 than as a direct result of the harassment itself. Id. 21 Because Miles does not allege that the harassment itself resulted in a tangible 22 employment action, the two-part Faragher-Ellerth affirmative defense is available to Civil No. 12-1288 (JAF) -14- 1 Wyndham. This defense requires an employer to show both (1) that its own actions to 2 prevent and correct harassment were reasonable and (2) that the employee s actions in 3 seeking to avoid harm were not reasonable. Agusty-Reyes, 601 F.3d at 53 (citations 4 omitted). The policy must, both on its face and as administered, constitute reasonable 5 care to avoid harassment and to eliminate it when it might occur. Faragher, 524 U.S. at 6 805. 7 Wyndham gives its employees a manual stating that it strives to provide a 8 harassment-free work environment, and instructing employees to report any harassment 9 to an appropriate member of management. (Docket No. 16-1 at 3-5). Wyndham also 10 trains its managers on general employment matters, although we do not have specifics in 11 the record. (Docket No. 16-4 at 17-19; Docket No. 16-10; Docket No. 16-3 at 2.) As 12 seen in this case, when Wyndham is alerted to potential harassment, the company 13 interviews employees and collects written statements. (Docket No. 16-1 at 3.) Wyndham 14 suspends the alleged harasser pending determination of the outcome, which can take 15 three days. (Docket No. 16-1 at 6; Docket No. 24 at 5.) Not everyone who reports 16 harassment is interviewed. (Docket No. 24 at 5.) When five employees report harassment, 17 but the alleged harasser and one other employee deny it, the company finds that the 18 claims are unsubstantiated. (Docket No. 16-1 at 8-9; Docket No. 24 at 5.) In response to 19 harassment allegations, the company counsels the alleged harasser on proper work 20 environment, company policies and procedures, and anti-retaliation policies. (Docket 21 No. 16-1 at 9.) Then, Wyndham transfers the alleged harasser to supervise a different Civil No. 12-1288 (JAF) -15- 1 office. (Docket No. 16-1 at 10.) A jury could find that Wyndham s actions to prevent 2 and correct harassment were not reasonable. 3 Even if a jury did find that Wyndham s actions were reasonable, a jury could still 4 find that Miles actions were reasonable as well, thus destroying the affirmative defense. 5 Miles met with human resources on May 2, 2011, and submitted a written statement 6 complaining of Maley s behavior. (Docket No. 16-1 at 7; Docket No. 23.) This was less 7 than three months after Maley became her supervisor. (Docket No. 16-1 at 4-5.) Further, 8 Miles did precisely what the employee manual stated an employee should do when 9 experiencing harassment. (Docket No. 16-1 at 4-5.) 10 3. Retaliation 11 Retaliation under Title VII means discrimination against an employee because the 12 employee has opposed any practice made an unlawful employment practice by [Title 13 VII], or because he has made a charge, testified, assisted, or participated in any manner in 14 an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). 15 To succeed on a claim under Title VII s anti-retaliation provision, a plaintiff must show 16 that 1) she engaged in protected activity; (2) she suffered some materially adverse 17 action; and (3) the adverse action was causally linked to her protected activity. Agusty- 18 Reyes, 601 F.3d at 56-57 (citations omitted). 19 Miles engaged in protected activity. Protected conduct includes not only formal 20 charges, but also complaints to one s supervisors. Valentin-Almeyda v. Municipality of 21 Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006). Miles complained to human resources in a 22 meeting on May 2, 2011. (Docket No. 16-1 at 5-6.) She also submitted a written Civil No. 12-1288 (JAF) -16- 1 complaint to human resources. (Docket No. 16-1 at 7.) On May 26, 2011, she filed a 2 report before the SIFC, and on May 27, she filed sex, race, and national origin 3 discrimination charges before the state ADU. (Docket No. 16-1 at 9.) 4 Miles also suffered a materially adverse employment action. Materially adverse 5 actions include any mistreatment that could well dissuade a reasonable worker from 6 making or supporting a charge of discrimination. Burlington N. Santa Fe Ry. Co. v. 7 White, 548 U.S. 53, 57 (2006). From January 1 through May 1, 2011, Miles was put on a 8 list to lead lucrative discovery tours, and was assigned to four of the twenty-nine tours. 9 (Docket No. 16-1 at 11.) Normally, sales representatives who were placed on the list 10 remained on it until the end of the month. (Docket No. 24 at 4.) However, Miles was 11 removed from the list three days after she gave her statement to human resources. Id. At 12 that time, she was only assigned to over flow for discovery tours and Club Wyndham 13 tours. From May 2 through December 31, 2011, Miles only received one discovery tour, 14 two Club Wyndham tours, and participated in two party weekends. (Docket No. 16-1 at 15 11-12.) This action could well dissuade a reasonable worker from making or supporting 16 a charge of discrimination. 17 Miles can raise an inference that the adverse action was causally linked to her 18 protected act because temporal proximity can create a reasonable inference that an 19 action was motivated by the plaintiff s protected activity. Agusty-Reyes, 601 F.3d at 57. 20 The First Circuit found that a two-week lag between the protected activity and the 21 adverse action created a reasonable inference of causation. Id. Here, because the adverse Civil No. 12-1288 (JAF) -17- 1 employment action occurred three days after the protected conduct, the inference is even 2 stronger. (Docket No. 24 at 4.) 3 Once a plaintiff has made a prima-facie showing of retaliation, a defendant must 4 give a legitimate, non-retaliatory reason for its employment decision. Id. (citation 5 omitted). If a defendant provides this reason, a plaintiff must show that the reason is 6 merely pretext, and that the action was instead the result of retaliatory animus. Id. Both 7 Wyndham and Miles agree that Miles was generating $1,509.37 per guest. (Docket 8 No. 16-1 at 11-12; Docket No. 23 at 5.) Wyndham alleges that only sales representatives 9 who made the minimum standard of performance were placed on the list for discovery 10 tours, and that $2,750 per guest was the minimum standard. (Docket No. 16-1 at 11-12.) 11 Miles alleges that $2,750 per guest was the standard for in-house sales persons, but that 12 she was, instead, a front-line salesperson with a quota of $1,509 per guest, which she met. 13 (Docket No. 23 at 5.) If Miles is correct, Wyndham s stated reason is pretextual. 14 B. Other Federal Laws 15 Miles cites 28 U.S.C. § 1331, which gives us original jurisdiction of all civil 16 actions arising under the Constitution, laws, or treaties of the United States, such as 17 those that arise out of Title VII. 28 U.S.C. § 1331. Miles also cites 28 U.S.C. § 2201, 18 which provides that we may declare the rights and other legal relations of any interested 19 party, which is not relevant, because Miles prays for monetary relief, rather than a 20 declaration of rights. 28 U.S.C. § 2201. Finally, Miles cites 28 U.S.C. § 2002, notice 21 of sale of realty, which is not relevant to this proceeding. 28 U.S.C. § 2002. Civil No. 12-1288 (JAF) 1 C. -18- Local Laws 2 The First Circuit has noted that the substantive law of Puerto Rico on sexual 3 harassment appears to be aligned with Title VII law; the latter s precedents being used 4 freely to construe the former. Gerald v. University of Puerto Rico, 707 F.3d 7, 28 (1st 5 Cir. 2013). Act No. 115, Puerto Rico s antidiscrimination statute, is also interpreted in 6 line with the national statute. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 7 39, 45 (1st Cir. 2010). Because we find that Miles federal claims regarding sexual 8 harassment and retaliation survive summary judgment, we find that the state claims 9 likewise survive. 10 IV. 11 Conclusion 12 For the foregoing reasons, Miles motion submitting an opinion and order into the 13 record (Docket No. 42) is NOTED. Wyndham s motion for summary judgment, (Docket 14 No. 16), is DENIED. 15 Trial in this case shall be held on February 18, 2014, at 9:30 A.M. 16 IT IS SO ORDERED. 17 San Juan, Puerto Rico, this 24th day of January, 2014. 18 19 20 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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