Velez v. Marriott PR Management, Inc. et al, No. 3:2005cv02108 - Document 137 (D.P.R. 2008)

Court Description: ORDER granting in part and denying in part 82 Defendants' Motion for Summary Judgment. Signed by Judge Raymond L. Acosta on 12/22/08. (ans)

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Velez v. Marriott PR Management, Inc. et al 1 Doc. 137 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 MARIA VELEZ, 4 Plaintiff, 5 v. 6 7 8 CIVIL NO. 05-2108 (RLA) MARRIOTT PR MANAGEMENT, INC., et al., Defendants. 9 10 11 12 13 14 15 16 ORDER IN THE MATTER OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants SAN JUAN MARRIOTT RESORT AND STELLARIS CASINO and MARRIOTT P.R. MANAGEMENT CORP. (“MARRIOTT”) have moved the court to enter summary judgment on their behalf and to dismiss plaintiff’s complaint. The court having reviewed the memoranda filed by the parties as well as the documents submitted in support thereof hereby rules as follows. 17 18 19 20 21 22 23 24 I. BACKGROUND Plaintiff instituted this action alleging sex discrimination and retaliation pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1). Additionally, plaintiff seeks relief under Puerto Rico Act No. 100 of June 30, 1959, P.R. Laws Ann. tit. 29, §§ 146 et seq. (2002) and Puerto Rico Act No. 69 of July 6, 1985, Laws of P.R. Ann. tit. 29, §§ 1321 et seq. (2002), two local discrimination statutes. 25 26 Dockets.Justia.com 1 CIVIL NO. 05-2108 (RLA) Page 2 2 In essence, plaintiff claims that she was not selected for a 3 “Pit Boss” position at the MARRIOTT’s Casino in March 2004 based on 4 sex discrimination. Plaintiff further avers that MARRIOTT 5 subsequently retaliated against her for having complained of the 6 aforementioned rejection for promotion. 7 We shall initially address two preliminary issues raised by the 8 defendants which bear upon the evidence which will be available to 9 plaintiff to prove her claims which are, her previous non-selection 10 to Pit Boss positions in 1996, 1997 and 1999 and plaintiff’s pattern 11 or practice claim. 12 II. PREVIOUS NON-SELECTION TO PIT BOSS POSITIONS 13 Defendants contend that plaintiff’s non-selection for the Pit 14 Boss positions during the years 1996, 1997 and 1999 constitute 15 alleged discrete acts of discrimination which are time-barred 16 inasmuch as she failed to timely exhaust the corresponding 17 administrative remedies as mandated by Title VII. 18 Plaintiff amended her complaint on April 3, 2006 (docket No. 23) 19 to include allegations of a systemic discriminatory practice. 20 Specifically, the amended pleading avers that “[p]laintiff, as well 21 as other female employees have not been promoted as part of a de 22 facto policy of denial of Pit Boss promotions to female employees.” 23 Amended Complaint ¶ 15 (emphasis in original). Further, plaintiff 24 charges that “[d]efendant’s general practice regarding the hiring and 25 promotion of employees from the Pit Boss position have been ongoing 26 1 CIVIL NO. 05-2108 (RLA) Page 3 2 and can be described as a systemic violation of Plaintiff’s rights.” 3 Amended Complaint ¶ 25 (italics in original). 4 Plaintiff concludes by alleging that “Defendant’s de facto 5 policy denying Pit Boss promotions to female employees constitutes a 6 systemic and/or serial violation of Plaintiff’s rights. An employer’s 7 continued and consistent discrimination, coupled with his refusal to 8 correct a discriminatory practice, present a systemic violation which 9 has resulted in reiterated unlawful refusals to grant promotions.” 10 Amended Complaint ¶ 30. 11 Prior to resorting to the courts for relief, plaintiffs must 12 present their discrimination claims under Title VII to the 13 appropriate agency. Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 14 2005); Noviello v. City of Boston, 398 F.3d 76, 85 (1st Cir. 2005); 15 Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 13 (1st Cir. 2003); 16 Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003); Clockedile v. New 17 Hampshire Dept. of Corrections, 245 F.3d 1, 3 (1st Cir. 2001). 18 “[A] claimant who seeks to recover for an asserted violation 19 of... Title VII, first must exhaust administrative remedies by filing 20 a charge with the EEOC, or alternatively, with an appropriate state 21 or local agency, within the prescribed time limits.... This omission, 22 if unexcused, bars the courthouse door, as courts long have 23 recognized that Title VII's charge-filing requirement is a 24 prerequisite to the commencement of suit.” Bonilla v. Muebles J.J. 25 Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999). 26 1 CIVIL NO. 05-2108 (RLA) Page 4 2 The purpose behind the exhaustion requirement is to give the 3 employer timely notice of the events as well as provide an 4 opportunity for an early amicable resolution of the controversy. 5 “That purpose would be frustrated... if the employee were permitted 6 to allege one thing in the administrative charge and later allege 7 something entirely different in a subsequent civil action.” Lattimore 8 v. Polaroid Corp., 99 F.3d 454, 464 (1st Cir. 1996). 9 In Puerto Rico an aggrieved employee has 300 days from the 10 occurrence of the employment action complained of to file an 11 administrative charge in instances where the local Department of 12 Labor is empowered to provide relief, i.e., in instances of 13 “deferral” jurisdiction. Lebron-Rios, 341 F.3d at 11 n.5; Bonilla, 14 194 F.3d at 278 n.4. Otherwise, the applicable period is 180 days. 15 See, 42 U.S.C. § 2000e-5(e)(1).1 16 17 18 19 20 21 22 23 24 25 26 1 In pertinent part, § 2000e-5(e)(1) reads: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. (Emphasis ours). 1 CIVIL NO. 05-2108 (RLA) Page 5 2 In Nat’l R.R. Passenger Corp. v Morgan, 536 U.S. 101, 122 S.Ct. 3 2061, 153 L.Ed.2d 106 (2002) the Supreme Court redefined the factors 4 to be used by the courts in examining allegations of continuing 5 violations in suits brought by individual claimants and did away with 6 the “systemic” or “serial” dichotomy previously used for extending 7 the limitations period.2 “Morgan eliminates the need for juries to 8 determine whether there was a systemic or serial violation in order 9 to invoke the continuing violations doctrine”. Crowley v. L.L. Bean, 10 Inc., 303 F.3d 387, 410 (1st Cir. 2002). The Supreme Court 11 distinguished instead between “discrete discriminatory acts” and 12 “hostile work environment claims” for purposes of determining the 13 timeliness of Title VII actions brought by individual plaintiffs. 14 According to the Supreme Court, “discrete discriminatory acts 15 are not actionable if time barred, even when they are related to acts 16 alleged in timely filed charges. Each discrete discriminatory act 17 starts a new clock for filing charges alleging that act.” Morgan, 536 18 U.S. at 112. The Supreme Court went on to list specific events which 19 it concluded constituted distinctive actionable claims which marked 20 the term for the limitations period to run. 21 Discrete acts such as termination, failure to promote, 22 denial of transfer, or refusal to hire are easy to 23 24 25 26 2 Morgan did not extend its ruling to pattern-or-practice claims. In this regard, the Supreme Court specifically indicated that “[w]e have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.” Morgan, 536 U.S. at 115 n.9. 1 CIVIL NO. 05-2108 (RLA) Page 6 2 identify. Each incident of discrimination and each 3 retaliatory adverse employment decision constitutes a 4 separate actionable “unlawful employment practice.” 5 Id. at 114 (emphasis ours). 6 On the other hand, “[h]ostile environmental claims are different 7 in kind from discrete acts. Their very nature involves repeated 8 conduct... The ‘unlawful employment practice’ therefore cannot be 9 said to occur on any particular day. It occurs over a series of days 10 or perhaps years and, in direct contrast to discrete acts, a single 11 act of harassment may not be actionable on its own.” Id. at 115. “As 12 long as the employer has engaged in enough activity to make out an 13 actionable hostile environment claim, an unlawful employment practice 14 has ‘occurred,’ even if it is still occurring. Subsequent events, 15 however, may still be part of the one hostile work environment claim 16 and a charge may be filed at a later date and still encompass the 17 whole.” Id. at 117. 18 Illustrating the underlying difference between hostile work 19 environment claims and other discrimination claims, the Court of 20 Appeals in Campbell v. Bankboston, N.A., 327 F.3d 1, 11 (1st Cir. 21 2003) stated that the limitations period for an alleged 22 discriminatory change in retirement benefits plan began to run upon 23 plaintiff being advised of the decision. Likewise, following the 24 Morgan precedent in Rosario-Rivera v. P.R. Aqueduct and Sewers Auth., 25 331 F.3d. 183 (1st Cir. 2003), the court rejected plaintiff’s notion 26 1 CIVIL NO. 05-2108 (RLA) Page 7 2 that two employment transfers were part of a continuing violation for 3 purposes of the [Title VII] limitations period under a hostile work 4 environment scheme. Rather, the court specifically determined that 5 each such transfer constituted “‘a separate and actionable unlawful 6 employment practice.’” Id. at 188-89 (citing Morgan, 536 U.S. at 7 114). See also, Dressler v. Daniel, 315 F.3d 75 (1st Cir. 2003) (two 8 separate claims with individual limitations period accruing from the 9 denial of prospective employment and termination from employment); 10 Miller v. New Hampshire Dept. of Corrections, 296 F.3d 18, 22 11 (1st Cir. 2002) (distinguishing “a discrete act of discrimination 12 as opposed to a pattern of harassing conduct that, taken as a whole, 13 constitutes a hostile work environment [and falls within the 14 continuing violations exception to the limitations period].” Accord, 15 Marrero v. Goya de Puerto Rico, Inc., 304 F.3d 7 (1st Cir. 2002) 16 finding hostile work environment claims timely under the Morgan 17 premise. 18 Based on the foregoing, it is beyond cavil that the three 19 specific instances of plaintiff’s non-selection to the Pit Boss 20 positions in 1996, 1997 and 1999 fall squarely within the discrete 21 acts of discrimination as defined in Morgan. Hence, plaintiff was 22 required to file individual administrative charges with respect to 23 each one of these alleged discriminatory events within 300 days 24 thereafter. It is undisputed that plaintiff in this case failed to do 25 26 1 CIVIL NO. 05-2108 (RLA) Page 8 2 so for which reason any claims based on these non-selections have 3 become stale.3 4 Accordingly, defendants’ request for dismissal of plaintiff’s 5 discrimination claim based on her non-selection to the Pit Boss 6 positions in the years 1996, 1997 and 1999 is GRANTED and it is 7 hereby DISMISSED AS UNTIMELY. 8 III. PATTERN OR PRACTICE 9 In response to defendant’s untimeliness arguments regarding 10 alleged past discriminatory events, plaintiff further adduces the 11 existence of a pattern or practice of discrimination. In her 12 memoranda plaintiff argues that defendant “presents a distorted view 13 of the evidentiary requirement for establishing patterns and 14 practices that constitute sytematic [sic] violations.” Plaintiff’s 15 Sur-Reply (docket No. 120) p. 27. 16 At the outset, it is important to note that pattern or practice 17 discrimination does not constitute an independent cause of action but 18 rather an additional procedural vehicle available for establishing 19 disparate discriminatory treatment. “A pattern or practice case is 20 21 22 23 24 25 26 3 This evidence, however, may still prove relevant for plaintiff to establish her case. “A discriminatory action for which a claim was not timely filed cannot be used as a basis for award relief but can be used as background in support of later claims of gender discrimination.” DeClaire v. Mukasey, 530 F.3d 1, 18 (1st Cir. 2008). See also, Morgan, 536 U.S. at 112 (“‘[i]t may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue’” (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 557 97 S.Ct. 1885, 52 L.Ed. 571 (1977)). 1 CIVIL NO. 05-2108 (RLA) Page 9 2 not a separate and free-standing cause of action... but is really 3 merely another method by which disparate treatment can be shown.” 4 Celestine v. Petroleos de Venezuela S.A., 266 F.3d 343, 355 (5th Cir. 5 2001) (citation and internal quotation marks omitted). 6 In Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 7 S.Ct. 1843, 52 L.Ed.2d 396 (1977) the United States Supreme Court 8 described the mechanics of pattern or practice. Referring to the 9 legislative history of Title VII, the court cited the explanation 10 proffered by Senator Hubert Humphrey as to the meaning of the 11 “pattern or practice” language in the statute as follows: 12 [A] pattern or practice would be present only where the 13 denial of rights consists of something more than an 14 isolated, sporadic incident, but it is repeated, routine, 15 or of a generalized nature. There would be a pattern or 16 practice if, for example, a number of companies or persons 17 in the same industry or line of business discriminated, if 18 a chain of motels or restaurants practiced racial 19 discrimination throughout all or a significant part of its 20 system, or if a company repeatedly and regularly engaged in 21 acts prohibited by the statute. 22 . . . . 23 The point is that single, insignificant, isolated acts 24 of discrimination by a single business would not justify a 25 finding of a pattern or practice.... 26 1 CIVIL NO. 05-2108 (RLA) Page 10 2 Teamsters, 431 U.S. at 336 n.16 3 The pattern or practice suit is prosecuted in two phases. 4 Plaintiff must initially prove a pattern or practice of 5 discrimination exists which raises a presumption that all protected 6 class members are affected thereby. The burden then shifts to the 7 employer to establish that decisions regarding particular class 8 members were not based on impermissible discriminatory criteria. 9 Pattern-or-practice cases are typically tried in two or 10 more stages. During the first stage of trial, the 11 plaintiffs’ burden is to demonstrate that an unlawful 12 discrimination has been a regular procedure or policy 13 followed by an employer or group of employers. Thus, at the 14 initial liability stage of a pattern-or-practice suit the 15 plaintiffs are not required to offer evidence that each 16 person for whom they will ultimately seek relief was a 17 victim of the employer’s discriminatory policy. Instead, 18 plaintiffs’ burden is to establish that such a policy 19 existed. The burden then shifts to the employer to defeat 20 the prima facie showing of a pattern or practice by 21 demonstrating that the plaintiffs’ proof is either 22 inaccurate or insignificant. If an employer fails to rebut 23 the inference that arises from the plaintiffs’ prima facie 24 case, the finder of fact can conclude that a violation has 25 occurred 26 and the trial court can award prospective 1 CIVIL NO. 05-2108 (RLA) Page 11 2 equitable relief. If the plaintiffs also seek individual 3 relief for the victims of the discriminatory practice, the 4 case moves into the second or subsequent stages. In these 5 additional proceedings, it must be determined whether each 6 individual plaintiff was a victim of the discriminatory 7 practices. Importantly, by having prevailed in the first 8 stage of trial, the individual plaintiffs reap a 9 significant advantage for purposes of the second stage: 10 they are entitled to a presumption that the employer had 11 discriminated against them. 12 Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 13 2001)(citations, brackets and internal quotation marks omitted). 14 The plaintiff in a pattern-or-practice action is the 15 Government, and its initial burden is to demonstrate that 16 unlawful discrimination has been a regular procedure or 17 policy followed by an employer or group of employers. At 18 the initial ‘liability’ stage of a pattern-or-practice suit 19 the Government is not required to offer evidence that each 20 person for whom it will ultimately seek relief was a victim 21 of the employer’s discriminatory policy. Its burden is to 22 establish a prima facie case that such a policy existed. 23 The burden then shifts to the employer to defeat the prima 24 facie showing of a pattern or practice by demonstrating 25 26 1 CIVIL NO. 05-2108 (RLA) Page 12 2 that the Government’s proof is either inaccurate or 3 insignificant.... 4 If an employer fails to rebut the inference that 5 arises from the Government’s prima facie case, a trial 6 court may then conclude that a violation has occurred and 7 determine the appropriate remedy. Without any further 8 evidence from the Government, a court's finding of a pattern or prac 9 Teamsters, 431 U.S. at 360-61 (internal citation omitted). 10 “[I]n determining pattern or practice liability, the government 11 is not required to prove that any particular employee was a victim of 12 the pattern or practice; it need only establish a prima facie case 13 that such a policy existed.” E.E.O.C. v. Joe’s Stone Crab, Inc., 220 14 F.3d 1263, 1287 (11th Cir. 2000). 15 Once this pattern or practice is established, the 16 burden of proof then shifts to the employer to demonstrate 17 that the government’s showing of a pattern or practice of 18 discrimination is either inaccurate or insignificant. If 19 the employer fails to rebut the government’s prima facie 20 case, the resulting finding of a discriminatory pattern or 21 practice may give rise to an inference that all persons 22 subject to the policy were its victims and are entitled to 23 appropriate remedies... [O]nce a pattern and practice of 24 discrimination is established, a rebuttable presumption 25 that the plaintiff was discriminated against because of her 26 1 CIVIL NO. 05-2108 (RLA) Page 13 2 sex is entitled to recovery obtains. The employer may 3 overcome this presumption only with clear and convincing 4 evidence that job decisions made when the discriminatory 5 policy was in force were not made in pursuit of that 6 policy. 7 Joe’s Stone Crab, 220 F.3d at 1287 (citation and internal quotation 8 marks omitted). 9 As previously noted, awards which are to be tailored to the 10 damages of the individual protected members will be determined at a 11 subsequent stage of the proceedings. “When the Government seeks 12 individual relief for the victims of the discriminatory practice, a 13 district court must usually conduct additional proceedings after the 14 liability phase of the trial to determine the scope of individual 15 relief... [A]s is typical of Title VII pattern-or-practice suits, the 16 question of individual relief does not arise until it has been proved 17 that the employer has followed an employment policy of unlawful 18 discrimination. The force of that proof does not dissipate at the 19 remedial stage of the trial.” Teamsters, 431 U.S. at 361-62. “The 20 second stage of a pattern and practice claim is essentially a series 21 of individual lawsuits, except that there is a shift of the burden of 22 proof in the plaintiff’s favor.” Thiessen, 267 F.3d at 1106 n.7 23 (citation and internal quotation marks omitted). 24 25 26 1 CIVIL NO. 05-2108 (RLA) Page 14 2 Thus, it is clear that the evidentiary approach used in pattern 3 or practice cases varies substantially from that applied to 4 individual suits. 5 Pattern-or-practice cases differ significantly from 6 the far more common cases involving one or more claims of 7 individualized discrimination. In a case involving 8 individual claims of discrimination, the focus is on the 9 reason(s) for the particular employment decisions at 10 issue... In contrast, the initial focus in a pattern-or11 practice case is not on individual employment decisions but 12 on a pattern of discriminatory decisionmaking. Thus, the 13 order and allocation of proof, as well as the overall 14 nature of the trial proceedings, in a pattern-or-practice 15 case differ dramatically from a case involving only 16 individual claims of discrimination. 17 Id. at 1106 (citations, brackets and internal quotation marks 18 omitted). 19 “The typical pattern or practice discrimination case is brought 20 either by the government or as a class action to establish that 21 unlawful discrimination has been a regular procedure or policy 22 followed by an employer or group of employers.” Celestine, 266 F.3d 23 at 355 (citation and internal quotation marks omitted). “In such 24 cases, the focus, at least initially, is upon a pattern of 25 discriminatory 26 decision-making, i.e., the company’s standard 1 CIVIL NO. 05-2108 (RLA) Page 15 2 operating procedure, rather than upon individual employment 3 decisions.” Herendeen v. Michigan State Police, 39 F.Supp.2d 899, 905 4 (D. Mich. 1999) (citation and internal quotation marks omitted). 5 “The crucial difference between an individual’s claim of pattern or 6 discrimination and a class action alleging general 7 practice of discrimination is manifest. The inquiry regarding an 8 individual’s claim is the reason for a particular employment 9 decision, while at the liability stage of a pattern-or-practice trial 10 the focus often will not be on individual hiring decisions, but on a 11 pattern of discriminatory decisionmaking.” Celestine, 266 F.3d at 12 355. 13 The Supreme Court has yet to extend the pattern or practice 14 approach to private, non-class suits. However, because of its 15 particular nature we find application of this evidentiary method to 16 actions brought by individual plaintiffs seeking personal relief in 17 individual claims of disparate treatment unsuitable. Multiple courts 18 have similarly concluded. See, i.e., Bacon v. Honda of Am. Mfg., 19 Inc., 370 F.3d 565, 575 (6th Cir. 2004) (“We therefore hold that the 20 pattern-or-practice method of proving discrimination is not available 21 to individual plaintiffs. We subscribe to the rationale that a 22 pattern-or-practice claim is focused on establishing a policy of 23 discrimination; because decisions, is it does not address individual hiring 24 it inappropriate as a vehicle for proving 25 discrimination in an individual case”); Celestine, 366 F.3d at 356 26 1 CIVIL NO. 05-2108 (RLA) Page 16 2 (“As the plaintiffs are before us in their individual capacities... 3 the Teamsters method is not available to them”); Thiessen, 267 F.3d 4 at 1106 n.8 (“If the plaintiffs do not prevail during the first stage 5 of a pattern-or-practice trial, they are nevertheless entitled to 6 proceed on their individual claims of discrimination... Naturally, 7 however, they are left to proceed under the normal McDonnell Douglas 8 framework, rather than benefitting from a presumption of 9 discrimination”); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2nd 10 Cir. 1998) (“[I]t is evident that the Court in Teamsters was not 11 laying down rules for private, non-class actions. Of the cases cited 12 by the Court for the proposition that non-applicants can recover, 13 none were private non-class actions” (citation and internal quotation 14 marks omitted)); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 15 761 (4th Cir. 1998) (“because the Supreme Court has never applied the 16 Teamsters method of proof in a private, non-class action for 17 employment discrimination, and because the nature of the proof and 18 remedies in class and government pattern or practice actions differs 19 vis-a-vis private, non-class actions, we decline to give individual 20 plaintiffs a pattern or practice cause of action or allow them to use 21 the Teamsters method of proof”); Babrocky v. Jewel Food Co., 773 F.2d 22 857, 866 n.6 (7th Cir. 1985) (“Plaintiffs’ use of ‘pattern-or23 practice’ language also seems to be misplaced, since such suits by 24 their very nature, involve claims of classwide discrimination and the 25 five plaintiffs, while attacking policies that would have affected 26 1 CIVIL NO. 05-2108 (RLA) Page 17 2 all of [defendant’s] women employees as a class, have stated only 3 their individual claims, not a class action” (citation and internal 4 quotation marks omitted)); Murphy v. Price Waterhouse Coopers, LLP, 5 357 F.Supp. 230, 246 (D.D.C. 2004) (“[Defendant’] first challenge to 6 the plaintiffs’ ‘pattern and practice’ claim is that they may not 7 proceed on this theory in an individual action for discrimination. 8 The Court agrees”); Herendeen, 39 F.Supp.2d at 906 (declining to 9 apply pattern or practice evidentiary proof method to individual 10 discrimination claims). See also, Jones v. U.P.S., Inc., 502 F.3d 11 1176, 1188 n.5 (10th Cir. 2007) (declining to “decide whether the 12 pattern-or-practice method of proof is available to individual 13 plaintiffs” but acknowledging “that other circuits have held that 14 this method of proof is not available in a private, non-class suit.”) 15 We therefore hold that plaintiff in this action does not have 16 available the pattern or practice vehicle to prove her individual 17 discrimination claim.4 Accordingly, plaintiff’s discrimination claim 18 based on pattern or practice is hereby DISMISSED. 19 20 21 4 22 23 24 25 26 These past events may, however, depending on the particular circumstances, be used as additional evidence to meet plaintiff’s McDonnell Douglas burden. See, Lowery, 158 F.3d at 761 (“[e]vidence of a pattern or practice of discrimination may very well be useful and relevant to prove the fourth element of a prima facie case... or to establish the plaintiff’s ultimate burden”); Murphy, 357 F.Supp.2d at 247 (“notwithstanding the unavailability of a ‘pattern and practice’ theory, the plaintiffs may still use evidence of systematic or general discrimination in establishing their individual discrimination claims.”) 1 CIVIL NO. 05-2108 (RLA) Page 18 2 IV. SUMMARY JUDGMENT STANDARD 3 Rule 56(c) Fed. R. Civ. P., which sets forth the standard for 4 ruling on summary judgment motions, in pertinent part provides that 5 they shall be granted “if the pleadings, depositions, answers to 6 interrogatories, and admissions on file, together with the 7 affidavits, if any, show that there is no genuine issue as to any 8 material fact and that the moving party is entitled to a judgment as 9 a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st 10 Cir. 2000); Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir. 11 1999). The party seeking summary judgment must first demonstrate the 12 absence of a genuine issue of material fact in the record. 13 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997). A genuine 14 issue exists if there is sufficient evidence supporting the claimed 15 factual disputes to require a trial. Morris v. Gov't Dev. Bank of 16 Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994); LeBlanc v. Great Am. 17 Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert. denied, 511 U.S. 18 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if 19 it might affect the outcome of a lawsuit under the governing law. 20 Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 21 1995). 22 “In ruling on a motion for summary judgment, the court must view 23 ‘the facts in the light most favorable to the non-moving party, 24 drawing all reasonable inferences in that party's favor.’" Poulis25 Minott v. Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour v. 26 1 CIVIL NO. 05-2108 (RLA) Page 19 2 Dynamics Research Corp., 63 F.3d 32, (1st 36 Cir.1995)). “In 3 marshaling the facts for this purpose we must draw all reasonable 4 inferences in the light most favorable to the nonmovant. That does 5 not mean, however, that we ought to draw unreasonable inferences or 6 credit bald assertions, empty conclusions, rank conjecture, or 7 vitriolic invective.” Caban Hernandez v. Philip Morris USA, Inc., 486 8 F.3d 1, 8 (1st Cir. 2007) (internal citation omitted italics in 9 original). 10 Credibility issues fall outside the scope of summary judgment. 11 “‘Credibility determinations, the weighing of the evidence, and the 12 drawing of legitimate inferences from the facts are jury functions, 13 not those of a judge.’” Reeves v. Sanderson Plumbing Prods., Inc., 14 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing 15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 16 91 L.Ed.2d 202 (1986)). See also, Dominguez-Cruz v. Suttle Caribe, 17 Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“court should not engage in 18 credibility assessments.”); Simas v. First Citizens' Fed. Credit 19 Union, 170 F.3d 37, 49 (1st Cir. 1999) (“credibility determinations 20 are for the factfinder at trial, not for the court at summary 21 judgment.”); Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 54 (1st 22 Cir. 1998) (credibility issues not proper on summary judgment); 23 Molina Quintero v. Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 24 108, 113 (D.P.R. 2002). “There is no room for credibility 25 determinations, no room for the measured weighing of conflicting 26 1 CIVIL NO. 05-2108 (RLA) Page 20 2 evidence such as the trial process entails, and no room for the judge 3 to superimpose his own ideas of probability and likelihood. In fact, 4 only if the record, viewed in this manner and without regard to 5 credibility determinations, reveals no genuine issue as to any 6 material fact may the court enter summary judgment." Cruz-Baez v. 7 Negron-Irizarry, 360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal 8 citations, brackets and quotation marks omitted). 9 In cases where the non-movant party bears the ultimate burden of 10 proof, he must present definite and competent evidence to rebut a 11 motion for summary judgment, Anderson v. Liberty Lobby, Inc., 477 12 U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202; Navarro v. Pfizer 13 Corp., 261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of 14 Maine Dep't of Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely 15 upon “conclusory allegations, improbable inferences, and unsupported 16 speculation”. Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 412 (1st 17 Cir. 2000); Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 18 (1st Cir. 1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 19 5, 8 (1st Cir. 1990). 20 V. LOCAL RULE 56(c) 21 Motions for summary judgment must comport with the provisions of 22 Local Rule 56(c) which, in pertinent part, reads: 23 A party opposing a motion for summary judgment shall 24 submit with its opposition a separate, short, and concise 25 statement of material facts. The opposing statement shall 26 1 CIVIL NO. 05-2108 (RLA) Page 21 2 admit, deny or qualify the facts by reference to each 3 numbered paragraph of the moving party’s statement of 4 material facts and unless a fact is admitted, shall support 5 each denial or qualification by a record citation as 6 required by this rule. The opposing statement may contain 7 in a separate section additional facts, set forth in 8 separate numbered paragraphs and supported by a record 9 citation as required by subsection (e) of this rule. 10 This provision specifically requires that in its own statement 11 of material fact respondent either admit, deny, or qualify each of 12 movant’s proffered uncontested facts and for each denied or qualified 13 statement cite the specific part of the record which supports its 14 denial or qualification. Respondent must prepare its separate 15 statement much in the same manner as when answering the complaint. 16 The purpose behind the local rule is to allow the court to 17 examine each of the movant’s proposed uncontested facts and ascertain 18 whether or not there is adequate evidence to render it uncontested. 19 “This ‘anti-ferret’ rule aims to make the parties organize the 20 evidence rather than leaving the burden upon the district judge.” 21 Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir. 2005). “The purpose 22 of this ‘anti-ferret rule’ is to require the parties to focus the 23 district court’s attention on what is, and what is not, genuinely 24 controverted. Otherwise, the parties would improperly shift the 25 burden of organizing the evidence presented in a given case to the 26 1 CIVIL NO. 05-2108 (RLA) Page 22 2 district court.” Mariani-Colon v. Dep’t of Homeland Sec., 511 F.3d 3 216, 219 (1st Cir. 2007) (internal citations omitted). See also, 4 Morales v. A.C. Orssleff’s EFTF, 246 F.3d 32, 33 (1st Cir. 2001) 5 (summary judgment should not “impose [upon the court] the daunting 6 burden of seeking a needle in a haystack”); Leon v. Sanchez-Bermudez, 7 332 F.Supp.2d 407, 415 (D.P.R. 2004). 8 “When complied with, they serve to dispel the smokescreen behind 9 which litigants with marginal or unwinnable cases often seek to hide 10 and greatly reduce the possibility that the district would will fall 11 victim to an ambush.” Caban Hernandez, 486 F.3d at 7 (citation, 12 internal quotation marks and brackets omitted). 13 Apart from the fact that Local Rule 56(e) itself provides that 14 “[f]acts contained in a supporting or opposing statement of material 15 facts, if supported by record citations as required by this rule, 16 shall be deemed admitted unless properly controverted” in discussing 17 Local Rule 311.12, its predecessor, the First Circuit Court of 18 Appeals stressed the importance of compliance by stating that the 19 parties who ignore its strictures run the risk of the court deeming 20 the facts presented in the movant’s statement of fact admitted. 21 “Given the vital purpose that such rules serve, litigants ignore them 22 at their peril. In the event that a party opposing summary judgment 23 fails to act in accordance with the rigors that such a rule imposes, 24 a district court is free, in the exercise of its sound discretion, to 25 accept the moving party’s facts as stated.” Id. See also, Alsina26 1 CIVIL NO. 05-2108 (RLA) Page 23 2 Laboy, 400 F.3d at 80 (“Where the party opposing summary judgment 3 fails to comply, the rule permits the district court to treat the 4 moving party’s statement of facts as uncontested”); Cosme-Rosado v. 5 Serrano-Rodriguez, 360 F.3d 42, 46 (1st Cir. 2004) (“uncontested” 6 facts pleaded by movant deemed admitted due to respondent’s failure 7 to properly submit statement of contested facts.) 8 “[A]bsent such rules, summary judgment practice could too easily 9 become a game of cat-and-mouse, giving rise to the ‘specter of 10 district court judgment being unfairly sandbagged by unadvertised 11 factual issues.’” Ruiz-Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 12 2000) (citing Stepanischen v. Merchants Despatch Transp. Corp., 722 13 F.2d 922, 931 (1st Cir. 1983)). 14 Providing an alternative statement of facts without addressing 15 the movant’s factual proposals individually does not conform to the 16 Local Rule’s mandate and will cause defendant’s proffered facts to be 17 deemed uncontested. Mariani-Colon, 511 F.3d at 219. Further, denials 18 without more are ineffective. Rather, the opposing party “must offer 19 specific facts to counter those set out by the existence [defendant]. 20 [N]onmovant’s facts must demonstrate of definite 21 competent evidence fortifying plaintiff’s version of the truth. This 22 is the case even where motive and intent are at issue. [Plaintiff] 23 may not meet his burden by citing an inequity and tacking on the 24 self-serving conclusion that the defendant was motivated by a 25 discriminatory animus.” Arroyo-Audifred v. Verizon Wireless, Inc., 26 1 CIVIL NO. 05-2108 (RLA) Page 24 2 527 F.3d 215, 219-20 (1st Cir. 2008) (internal citations and quotation 3 marks omitted). 4 A party’s failure to abide by the strictures of Local Rule 5 56(c), however, does not automatically entitle movant to summary 6 judgment as requested. “It mainly means that the district judge can 7 accept the moving party’s allegedly uncontested facts as true, but 8 whether or not this justifies summary judgment for the moving party 9 depends upon the legal and factual configuration that results.” Caban 10 Hernandez, 486 F.3d at 8. 11 In the case before us, plaintiff only raised objections as to 12 part of MARRIOTT’s Statement of Uncontested Facts. Accordingly, we 13 shall consider those facts not objected to as uncontested.5 Further, 14 we shall also deem as uncontested those facts adequately proffered by 15 defendants which were not properly objected to by plaintiff.6 16 Additionally, plaintiff failed to submit her own proffered 17 uncontested facts. Rather, in her response plaintiff included a 18 section entitled “Additional Material Facts” which reads as follows: 19 The Plaintiff does hereby incorporate and makes a part 20 hereof her entire Sworn Statement under Penalty of Perjury 21 pursuant to 28 USC Section 1746, hereto included as 22 23 5 24 Specifically, plaintiff did not oppose ¶¶ 46-137 of MARRIOTT’s Statement of Uncontested Facts (docket No. 82-3) pertaining to her retaliation claim. 25 6 26 See Order in the Matter of Motion to Deem as Uncontested Defendant’s Statement of Uncontested Facts issued on this date. 1 CIVIL NO. 05-2108 (RLA) Page 25 2 Exhibit 9, as additional facts supported by her testimony 3 as facts material to her opposition to the Defendant’s 4 Motion for Summary Judgment. 5 Plaintiff’s Reply to Defendant’s Statement of Purported Uncontested 6 Material Facts (docket No. 92) p.7 (emphasis ours). 7 In other words, rather than itemizing each proffered fact 8 separately with reference to its particular evidentiary source as the 9 Local Rule requires which would then allow defendant the opportunity 10 to address them individually, plaintiff would have us extrapolate 11 material facts to the controversy at hand from her sworn statement. 12 This is precisely what this provision seeks to avoid. 13 Accordingly, we need not consider plaintiff’s declaration as a 14 substitute for the Local Rule 56(c) requirements. 15 VI. PLAINTIFF’S UNSWORN STATEMENT 16 MARRIOTT has sought to exclude plaintiff’s Unsworn Statement 17 arguing that it is self-serving and contradicts prior deposition 18 testimony and was never previously disclosed as part of the discovery 19 process. According to MARRIOTT, plaintiff’s “attempt to contradict 20 and supplement her own deposition testimony with a self-serving and 21 recently created Unsworn Statement which is wholly inadmissible, 22 inasmuch as it was not produced to defendant during the course of 23 discovery, contradicts her prior deposition testimony, and states 24 plaintiff’s opinions without evidentiary 25 Plaintiff’s Motion (docket No. 105) p. 6. 26 support.” Reply to 1 CIVIL NO. 05-2108 (RLA) Page 26 2 Initially, we must note that the information contained in 3 plaintiff’s Unsworn Statement at ¶¶ 22 to 37 pertains to her 4 retaliation claim. Inasmuch as defendants’ proffered facts regarding 5 the retaliation claim were deemed uncontested due to plaintiff’s 6 failure to address them in accordance with the provisions of Local 7 Rule 56(c), we shall disregard this part of the Unsworn Statement. 8 A. Discovery 9 Movants contend that plaintiff’s failure to furnish copy of her 10 statement during the discovery process contravenes Rule 26(a) Fed. R. 11 Civ. P. However, this provision is limited to the initial disclosures 12 of “individual[s] likely to have discoverable information... that the 13 disclosing party may use to support its claims”, documents in its 14 possession which may be used to support its claims, computation of 15 damages and insurance agreements. 16 The Unsworn Statement is nothing more than plaintiff’s relation 17 of her educational background, work experience, efforts to get 18 promoted to the Pit Boss position and her eventual resignation 19 interspersed by her subjective appreciation of the events which she 20 alleges were motivated by discriminatory animus. 21 Accordingly, we find no information therein which would have 22 been subject to the Rule 26(a) mandate. 23 B. Recanting 24 “It is settled that ‘[w]hen an interested witness has given 25 clear answers to unambiguous questions, he cannot create a conflict 26 1 CIVIL NO. 05-2108 (RLA) Page 27 2 and resist summary judgment with an affidavit that is clearly 3 contradictory, but does not give a satisfactory explanation of why 4 the testimony is changed.’” Torres v. E.I. Dupont de Nemours & Co., 5 219 F.3d 13, 20 (1st Cir. 2000) (citing Colantouni v. Alfred Calgagni 6 & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)); Sailor Inc. F/V v. City 7 of Rockland, 324 F.Supp.2d 197, 202 (D.Me. 2004). 8 [A] party cannot create a genuine issue of fact sufficient to 9 survive summary judgment simply by contradicting his or her own 10 previous sworn statement (by, say, filing a later affidavit that 11 flatly contradicts that party's earlier sworn deposition) without 12 explaining the contradiction or attempting to resolve the disparity.” 13 Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 14 1597, 143 L.Ed.2d 966 (1999). 15 The timing of the recanting, i.e., in response to a summary 16 judgment request, has been held crucial as well as whether or not a 17 satisfactory explanation for the change in testimony has been 18 provided. Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 19 F.3d 105, 110 (1st Cir. 2006); Colantuoni, 44 F.3d at 5. See, i.e., 20 Torres, 219 F.3d at 20-21 (“post-summary judgment affidavit... does 21 not indicate that there was any confusion at the time of [affiant’s] 22 deposition testimony... nor does it allege that the prior testimony 23 was in error.”) 24 With regard to MARRIOTT’s recanting argument, defendants have 25 failed to identify any specific questions posed during discovery with 26 1 CIVIL NO. 05-2108 (RLA) Page 28 2 the answers provided by plaintiff in order for the court to ascertain 3 whether indeed they are contrary to her statement. In other words, 4 MARRIOTT has not identified the “clear answers to unambiguous 5 questions” asked by defendants during plaintiff’s deposition which 6 she is now reneging in order to create an issue of fact.7 Absent this 7 information, we cannot accept defendants’ argument. 8 C. Conclusory Statements 9 On the other hand, any testimony used in support of 10 discriminatory motive in a motion for summary judgment setting must 11 be admissible in evidence, i.e., based on personal knowledge and 12 otherwise not contravening evidentiary principles. Rule 56(e) 13 specifically mandates that affidavits submitted in conjunction with 14 the summary judgment mechanism must “be made on personal knowledge, 15 shall set forth such facts as would be admissible in evidence, and 16 shall show affirmatively that the affiant is competent to testify to 17 the matters stated therein.” Hoffman v. Applicators Sales and Serv., 18 Inc., 439 F.3d 9 16 (1st Cir. 2006); Nieves-Luciano v. Hernandez19 Torres, 397 F.3d 1, 5 (1st Cir. 2005); Carmona v. Toledo, 215 F.3d 20 124, 131 (1st 2000). See also, Quiñones v. Buick, 436 F.3d 284, 290 21 (1st Cir. 2006) (affidavit inadmissible given plaintiff’s failure to 22 cite “supporting evidence to which he could testify in court”). 23 Additionally, the document “must concern facts as opposed to 24 25 26 7 Plaintiff has also correlated the portions of her deposition testimony with the pertinent paragraphs of her declaration and there does not seem to be any apparent inconsistency between the two. 1 CIVIL NO. 05-2108 (RLA) Page 29 2 conclusions, assumptions, or surmise”, Perez v. Volvo Car Corp., 247 3 F.3d 303, 316 (1st Cir. 2001), not conclusory allegations Lopez4 Carrasquillo v. Rubianes, 230 F.3d at 414. 5 “To the extent that affidavits submitted in opposition to a 6 motion for summary judgment merely reiterate allegations made in the 7 complaint, without providing specific factual information made on the 8 basis of personal knowledge, they are insufficient. However, a 9 party’s own affidavit, containing relevant information of which he 10 has firsthand knowledge, may be self-serving, but it is nonetheless 11 competent to support or defeat summary judgment.” Santiago v. 12 Centennial, 217 F.3d 46, 53 (1st Cir. 2000) (internal citations and 13 quotation marks omitted). 14 Hence, with regard to ¶¶ 1 through 21, only those facts 15 personally known to plaintiff as to which she could testify in court 16 may be relied upon. However, those portions of plaintiff’s statement 17 which merely embellish facts and provide her subjective 18 characterization of the circumstances leading to her employment with 19 MARRIOTT and her perception of the alleged discriminatory reasons 20 purportedly forcing her resignation are inappropriate under the 21 confines of Rule 56(e). 22 VII. TITLE VII - DISCRIMINATION 23 “When... direct evidence is lacking to support a discrimination 24 claim, the plaintiff must rely on establishing a prima facie case 25 through the familiar steps of the [McDonnel Douglas] burden-shifting 26 1 CIVIL NO. 05-2108 (RLA) Page 30 2 framework.” Moron-Barradas v. Dep’t of Educ., 488 F.3d 472, 480 (1st 3 Cir. 2007). “[T]he burden for establishing a prima facie case is not 4 onerous.” Douglas v. J.C. Penney Co., Inc., 474 F.3d 10, 14 (1st Cir. 5 2007). 6 “Disparate treatment cases ordinarily proceed under the three7 step, burden-shifting framework outlined in McDonnell Douglas Corp. 8 v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, 9 the plaintiff must establish, by a preponderance of the evidence, a 10 prima facie case of discrimination. Second, if the plaintiff makes 11 out this prima facie case, the defendant must articulate a 12 legitimate, nondiscriminatory explanation for its actions. Third, if 13 the defendant carries this burden of production, the plaintiff must 14 prove by a preponderance that the defendant’s explanation is a 15 pretext for unlawful discrimination. The burden of persuasion remains 16 at all times with the plaintiff.” Mariani-Colon, 511 F.3d at 221 17 (citation and internal quotation marks omitted); Douglas, 474 F.3d at 18 14. 19 “Generally, a plaintiff establishes a prima facie case of 20 discrimination by showing: 1) he is a member of a protected class, 2) 21 he is qualified for the job, 3) the employer took an adverse 22 employment action against him, and 4) the position remained open, or 23 was filled by a person with similar qualifications. This burden is 24 not onerous, as only a small showing is required.” Mariani-Colon, 511 25 F.3d at 221-22 (citation and internal quotation marks omitted); 26 1 CIVIL NO. 05-2108 (RLA) Page 31 2 Douglas, 474 F.3d at 13-14. See also, Moron-Barradas, 488 F.3d at 481 3 (prima facie case established by presenting evidence that (1) 4 plaintiff was “a member of a protected class, (2) she applied and was 5 qualified for the... position, and... (3) was rejected... and (4) 6 [defendant] hired someone with similar or lesser qualifications”). 7 Once plaintiff has complied with this initial prima facie burden 8 the defendant must “articulate a legitimate nondiscriminatory reason” 9 for the challenged conduct at which time presumption of 10 discrimination fades and the burden then falls back on plaintiff who 11 must then demonstrate that the proffered reason was a “pretext” and 12 that the decision at issue was instead motivated by discriminatory 13 animus. Rivera-Aponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 11 14 (1st Cir. 2003); Gu v. Boston Police Dept., 312 F.3d 6, 11 (1st Cir. 15 2002); Gonzalez v. El Dia, Inc., 304 F.3d at 69; Zapata-Matos v. 16 Reckitt & Colman, Inc., 277 F.3d 40, 44-45 (1st Cir. 2002); Feliciano 17 v. El Conquistador, 218 F.3d 1, 5 (1st Cir. 2000); Santiago-Ramos v. 18 Centennial P.R. Wireless Corp., 217 F.3d. 46, 54 (1st Cir. 2000). “At 19 this third step in the burden-shifting analysis, the McDonnell 20 Douglas framework falls by the wayside because the plaintiff's burden 21 of producing evidence to rebut the employer's stated reason for its 22 employment action merges with the ultimate burden of persuading the 23 court that she has been the victim of intentional discrimination.” 24 Feliciano, 218 F.3d at 6 (citing Texas Dept. of Community Affairs v. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 32 2 Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) 3 (internal citations and quotation marks omitted). 4 Defendant's “burden is one of production, not persuasion” 5 Reeves, 530 U.S. at 142, and “[a]t all times, the plaintiff bears the 6 'ultimate burden of persuading the trier of fact that the defendant 7 intentionally discriminated against the plaintiff.'” Gu v. Boston 8 Police Dept., 312 F.3d at 11 (citing Texas Dept. of Cmty. Affairs v. 9 Burdine, 450 U.S. at 253). See also, Reeves, 530 U.S. at 143. 10 “Upon the emergence of such an explanation, it falls to the 11 plaintiff to show both that the employer’s proffered reasons is a 12 sham, and that discriminatory animus sparked its actions.” Cruz-Ramos 13 v. Puerto Rico Sun Oil Co., 202 F.3d 381, 384 (1st Cir. 2000) 14 (citation and internal quotation marks omitted). “The plaintiff must 15 then show, without resort to the presumption created by the prima 16 facie case, that the employer’s explanation is a pretext for... 17 discrimination.” Rivera-Aponte v. Rest. Metropol # 3, Inc., 338 F.3d 18 at 11. 19 Thus, in a summary judgment context the court must determine 20 “whether plaintiff has produced sufficient evidence that he was 21 discriminated against due to his [age] to raise a genuine issue of 22 material fact.” Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d at 23 45; Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 24 2002). Summary judgment will be denied if once the court has reviewed 25 the evidence submitted by the parties in the light most favorable to 26 1 CIVIL NO. 05-2108 (RLA) Page 33 2 the plaintiff it finds there is sufficient evidence from which a 3 trier of fact could conclude that the reasons adduced for the charged 4 conduct are pretextual and that the true motive was discriminatory. 5 Santiago-Ramos v. Centennial, 217 F.3d at 57; Rodriguez-Cuervos v. 6 Wal-Mart Stores, Inc., 181 F.3d 15. 20 (1st Cir. 1999). 7 Strict adherence to the McDonnell Douglas procedural paradigm is 8 not imperative when ruling on a summary judgment. “‘[A] court may 9 often dispense with strict attention to the burden-shifting 10 framework, focusing instead on whether the evidence as a whole is 11 sufficient to make out a question for a factfinder as to pretext and 12 discriminatory animus.’” Calero-Cerezo v. U.S. Dep’t of Justice, 355 13 F.3d 6, 26 (1st Cir. 2004) (citing Fennell v. First Step Designs, 14 Ltd., 83 F.3d 526, 535-36 (1st Cir. 1996)). 15 However, in the context of a summary judgment “‘the need to 16 order the presentation of proof is largely obviated, and a court may 17 often dispense with strict attention to the burden-shifting 18 framework, focusing instead on whether the evidence as a whole is 19 sufficient to make out a question for a factfinder as to pretext and 20 discriminatory animus.’” Calero-Cerezo v. U.S. Dep’t of Justice, 355 21 F.3d at 26 (citing Fennell v. First Step Designs, Ltd., 83 F.3d at 22 535). 23 “Proof of more than [plaintiff’s] subjective belief that he was 24 the target of discrimination however, is required. In order to 25 establish a disparate treatment claim, a plaintiff must show that 26 1 CIVIL NO. 05-2108 (RLA) Page 34 2 others similarly situated to him in all relevant respects were 3 treated differently by the employer.” Mariani-Colon, 511 F.3d at 222 4 (citations and internal quotation marks omitted). 5 “To survive a defendant’s motion for summary judgment on a 6 discrimination claim, a plaintiff must produce sufficient evidence to 7 create a genuine issue of fact as to two points: 1) the employers’ 8 articulated reasons for its adverse actions were pretextual, and 2) 9 the real reason for the employers’ actions was discriminatory animus 10 based on a protected category.” Id. at 223. 11 “At the third stage of the McDonnell Douglas/Burdine framework, 12 the ultimate burden is on the plaintiff to persuade the trier of fact 13 that she has been treated differently because of her [sex].” Thomas 14 v. Eastman Kodak co., 183 F.3d 38, 56 (1st Cir. 1999). “Plaintiff may 15 use the same evidence to support both conclusions [pretext and 16 discriminatory animus], provided that the evidence is adequate to 17 enable a rational factfinder reasonably to infer that unlawful 18 discrimination was a determinative factor in the adverse employment 19 action.” Thomas, 183 F.3d at 57 (citation and internal quotation 20 marks omitted). 21 A. Proffered Facts Relevant to the Selection Process 22 We find the following facts, proffered by defendants in their 23 Statement of Uncontested Facts (docket No. 82-2) and which are 24 relevant to the selection process for the Pit Boss position in March 25 2004, are uncontested. 26 1 CIVIL NO. 05-2108 (RLA) Page 35 2 1. Background 3 The following individuals, currently employed by MARRIOTT, were 4 somehow connected to the allegations charged in the complaint: 5 STUART LEVENE - Casino Director since 2003. CARLOS OTERO - Casino Manager since mid 1998. NESTOR DEL VALLE - Manager, Casino Slots Department since 6 7 8 2001-2002. 9 HECTOR MALDONADO - Casino Slots Department Assistant 10 Manager since 2003-2004. 11 LUIS MARIA ACUÑA - Human Resources Director since July 12 2002. 13 ELIZABETH ARVELO - Director of Personnel Services since 14 2004. 15 PEDRO RIVERA - Area Director of Loss Prevention and 16 Casino Surveillance for Latin-America 17 and the Caribbean since 1999. 18 GLADYS RODRIGUEZ - Casino Floor Supervisor. 19 VENTURA ACOSTA, MIGUEL MALDONADO FONTAN, LUIS GUEVARA, JULIO 20 VAZQUEZ and NORBERTO SANTIAGO have been Pit Bosses at the MARRIOTT’s 21 Casino since at least March 2004. 22 Plaintiff, MARIA VELEZ, commenced working at Marriott on 23 December 6, 1994, as a Casino Floor Supervisor. From 1995 to 1999 she 24 applied on three separate occasions to a Pit Boss position in the 25 Casino but was never selected. 26 1 CIVIL NO. 05-2108 (RLA) Page 36 2 In March 2004 plaintiff again applied for a Pit Boss vacant 3 position but WILFREDO GUZMAN was chosen instead. 4 2. March 2004 Pit Boss Vacancy 5 Late 2003 Casino management decided to open its table games 6 operation twenty four hours a day starting in December 2003, for a 7 trial period of three months. As a result thereof, the need arose for 8 a new Pit Boss to work the newly-created shift, from 4:00 a.m. until 9 12:00 noon. 10 The selection for the position was made by a committee composed 11 by the five Pit Bosses,8 the Casino Director9 and the Casino Manager.10 12 GLADYS RODRIGUEZ, Casino Floor Supervisor, was also present during 13 the selection meeting, but did not take part in the decision. 14 The selection process consisted of individual evaluations by 15 each of the Pit Bosses, the Casino Manager and the Casino Director, 16 using a form which contained the names of the candidates under 17 consideration and the attributes required for the position. The 18 individual committee members scored each candidate on each category. 19 Thereafter, the decision makers conferred and reached a consensus as 20 to the selected candidate. 21 22 23 8 24 NORBERTO SANTIAGO, VENTURA ACOSTA, MIGUEL MALDONADO, LUIS GUEVARA and JULIO VAZQUEZ. 25 9 26 10 CARLOS OTERO. STUART LEVENE. 1 CIVIL NO. 05-2108 (RLA) Page 37 2 The Pit Boss selected for the new shift would be responsible for 3 the entire Casino operation during that shift. Therefore, the Casino 4 management decided to give the opportunity to three supervisors to 5 perform the duties of a Pit Boss during one month each, to see if one 6 of them demonstrated the qualifications as the right candidate for 7 the permanent position. 8 LUZ MEDINA, EDWIN CABRERA and LUIS FUENTES were chosen for this 9 trial opportunity. However, none of them performed as expected and in 10 March 2004 an opening for the Pit boss position was again published 11 to consider additional candidates. 12 This time the decision makers considered plaintiff and WILFREDO 13 GUZMAN as the two top candidates. GUZMAN was eventually selected over 14 plaintiff. 15 B. Additional Facts 16 We find the following additional facts relevant to the selection 17 process uncontroverted for purposes of the summary judgment now 18 before us based on the evidence on record. 19 1. The Selection Process 20 LEVENE’s role during the selection meeting was that of a 21 facilitator. “I’m listening. I’m sort of facilitating the meeting. 22 I’m not passing judgment on anyone, because I did not or never had an 23 opportunity to work very closely with any of them. But I’m just 24 facilitating the process to try to make sure that, you know, that 25 26 1 CIVIL NO. 05-2108 (RLA) Page 38 2 people are being candid and fair.” LEVENE Depo. Tr. 46 (docket No. 3 82-17). 4 Each member would be handed a scoring sheet to fill out and the 5 individual results for each candidate would be added up. LUIS GUEVARA 6 Depo. Tr. 61 (docket No. 82-19); CARLOS OTERO Depo. Tr. 48 (docket 7 No. 82-18). “[E]verybody was given an opportunity to rank, or rate, 8 or somehow figure out how they stacked-up against each other, and 9 that was done individually. So everyone went to a cubicle or an 10 office and filled out the form.” LEVENE Depo. Tr. 42 (docket No. 8211 17). 12 After each committee member had assessed the individual 13 applicants independently of each other using the form they had been 14 provided for this purpose, they met to discuss the candidates. 15 “[E]verybody stood up and vocalized their thoughts, and we discussed 16 the candidates.” LEVENE Depo. Tr. 44 (docket No. 82-17). Once the 17 scores were added up, the “weaknesses and strengths of each 18 [candidate], aside from the ones that were there as guidelines [were 19 discussed].” NORBERTO SANTIAGO Depo. Tr. 50 (docket No. 100-3). 20 “Later on, we got together in a group to discuss what each one had... 21 stated as opinion.” CARLOS OTERO Depo. Tr. 48 (docket No. 82-18). 22 However, according to the decision makers, getting the highest 23 scores in the individual evaluation forms was not conclusive. “[It] 24 does not mean that automatically he is going to be chosen.” NORBERTO 25 SANTIAGO Depo. Tr. 48 (docket No. 100-3). 26 1 CIVIL NO. 05-2108 (RLA) Page 39 2 The decision makers considered plaintiff and WILFREDO GUZMAN as 3 the two top candidates for the position. WILFREDO GUZMAN was 4 eventually selected over plaintiff. “Wilfredo Guzman and Maria... 5 were the top two (2) candidates.” LEVENE Depo. Tr. 45 (docket No. 826 17). The results for Wilfredo Guzman, Maria Velez and Luis Fuentes 7 were “close”. CARLOS OTERO Depo. Tr. 53-54 (docket No. 82-18). “[T]he 8 first candidates were Wilfredo Guzman, Maria Velez and I don’t recall 9 who was third, because it was practically the two of them who had the 10 most points, Wilfredo Guzman and Maria Velez.” CARLOS OTERO Depo. Tr. 11 54 (docket No. 82-18). WILFREDO and MARIA VELEZ were the final 12 candidates. LUIS GUEVARA Depo. Tr. 63 (docket No. 82-19). 13 Because the two finalists were so close the committee went on to 14 discuss the strong points and weaknesses of each one of them. CARLOS 15 OTERO Depo. Tr. 57 (docket No. 100-9). “It was an open discussion, 16 they were verifying who were [sic] going to be rejected... in 17 accordance to the ones who were closer or had a higher score... they 18 began to talk about strong points and weaknesses that each one of 19 them had.” CARLOS OTERO Depo. Tr. 54 (docket No. 82-18). After the 20 two final candidates were chosen, “[t]here was discussion as to what 21 is the person they were looking for, what was being looked for... in 22 a pit boss; and they discussed problems that had... that had arisen; 23 they discussed... well, the pros and the cons of each one.” LUIS 24 GUEVARA Depo. Tr. 63 (docket No. 82-19). 25 26 1 CIVIL NO. 05-2108 (RLA) Page 40 2 According to LEVENE, “Wilfredo was selected because of the five 3 (5) candidates we thought that he was the most qualified.” LEVENE 4 Depo. Tr. 42 (docket No. table games 82-17). “[T]here were several 5 considerations... knowledge... work experience... 6 attitude, associate relations, customer relations, team work.” LEVENE 7 Depo. Tr. 42 (docket No. 82-17). 8 When inquired regarding the reasons for having selected WILFREDO 9 over plaintiff, LEVENE responded: “I think a lot of positive things 10 were said about both candidates. I think that they were both good... 11 And I believe that Wilfredo may have inched-out Maria on the basis of 12 team work and team chemistry and customer relations and associate 13 relations.” LEVENE Depo. Tr. 45 (docket No. 82-17). However, LEVENE 14 could not “recall the specifics” regarding the committee members’ 15 concerns in these areas. LEVENE Depo. Tr. 46 (docket No. 82-17). 16 WILFREDO GUZMAN’s strong points were: “[h]e had knowledge of the 17 game... he had good rapport with the associates. He had good 18 teamwork, and he treated clients very well.” CARLOS OTERO Depo. Tr. 19 55 (docket No. 82-18). “[H]e was a person who had very good relations 20 with all the associates, including supervisors, including coworkers, 21 associates and superiors. That he is a person who also gets along 22 excellently with the players, with the clients; that, as far as I am 23 concerned, is an area that was one of the most important ones.” LUIS 24 GUEVARA Depo. Tr. 67 (docket No. 82-19). 25 26 1 CIVIL NO. 05-2108 (RLA) Page 41 2 As to his weaknesses, “he worked more in the work shift during 3 the daytime, and maybe did not have the... in other words, that there 4 as [sic] many games going on at night as such... In other words, 5 maybe he was not accustomed to so many games.” CARLOS OTERO Depo. Tr. 6 55 (docket No. 82-18). Additionally, he did not know the roulette 7 game. LUIS GUEVARA Depo. Tr. 66 (docket No. 82-19). 8 The issue of a “warning” issued to WILFREDO GUZMAN a year before 9 due to the untimely renewal of his licence also came up but the 10 warning had expired. LUIS GUEVARA Depo. Tr. 66 (docket No. 100-7). 11 WILFREDO GUZMAN was given a warning by JULIO VAZQUEZ for having 12 failed to timely renew his “croupier’s” licence because of problems 13 with ASUME.11 WILFREDO GUZMAN Depo. Tr. 48-51 (docket No. 100-4). 14 As to MARIA, “[h]er strong points [were], knowledge of the 15 games, knowledge of the slot machine area... and experience, those 16 were her strong points.” CARLOS OTERO Depo. Tr. 55 (docket No. 8217 18). “[S]he knew all the games... had more experience... than 18 Wilfredo Guzman.” LUIS GUEVARA Depo. Tr. 66-67 (docket No. 82-19). 19 “[She] knew the games, she had experience”. JULIO VAZQUEZ Depo. Tr. 20 42 (docket No. 82-20). 21 Regarding plaintiff’s weak points as a candidate, LEVENE 22 indicated that “[he] didn’t have any team work issues with any of 23 24 25 11 26 minors. State agency responsible for procuring child support for 1 CIVIL NO. 05-2108 (RLA) Page 42 2 [the candidates] but the people who knew them best, obviously, had 3 some concerns”. LEVENE Depo. Tr. 46 (docket No. 82-17). 4 “Her weaknesses turn out to be teamwork, how to deal with the 5 clients...” CARLOS OTERO Depo. Tr. 55 (docket No. 82-18). “I always 6 remember that there had been two or three clients who had complained 7 about [plaintiff], because [plaintiff] was not... she was very rough, 8 rough with them, in other words, very explosive.” JULIO VAZQUEZ Depo. 9 Tr. 46 (docket No. 82-20). 10 Q. Okay. Any other negative instance of Maria that was 11 discussed? 12 A. [I]t was basically her attitude, her attitude as a 13 supervisor toward... towards the associates, which was 14 a bit... it ... it was an attitude, well... how could 15 I say it... rough, or maybe, on occasions it could 16 border on”. 17 LUIS GUEVARA Depo. Tr. 65 (docket No. 82-19). 18 The committee members were also allegedly worried about “some 19 incidents with some female employees who had accused [plaintiff] 20 of... of her having threatened them because of talking to 21 [plaintiff’] partner.” JULIO VAZQUEZ Depo. Tr. 42 (docket No. 82-20). 22 Specifically, JULIO VAZQUEZ indicated that a Pit Clerk by the name of 23 JUDITH had complained that plaintiff had threatened her because 24 plaintiff did not like her talking to MARIO CRUZ and that plaintiff 25 had called JUDITH’s husband to tell him that JUDITH was trying to 26 1 CIVIL NO. 05-2108 (RLA) Page 43 2 seduce MARIO. JULIO VAZQUEZ Depo. Tr. 43-44 (docket No. 82-20); LUIS 3 GUEVARA Depo. Tr. 64-65 (docket No. 82-19). Supposedly another Pit 4 Clerk named JANESA indicated that plaintiff had also called her 5 husband. JULIO VAZQUEZ Depo. Tr. 47 (docket No. 82-20). 6 Additionally, plaintiff had procured a protective order against 7 MARIO CRUZ, a coworker. JULIO VAZQUEZ Depo. Tr. 44 (docket No. 82- 8 20). “[T]he entire conversation revolved around Mario and Maria’s 9 problem at work.” JULIO VAZQUEZ Depo. Tr. 45 (docket No. 82-20). 10 Another factor discussed was the fact that plaintiff would be 11 supervising her partner if promoted to the pit boss position. Someone 12 present raised the matter during the discussion. LEVENE Depo. Tr. 48 13 (docket No. 82-17). This factor, although did not “disqualify her, 14 but [] was given weight” in the selection process. LEVENE Depo. Tr. 15 48 (docket No. 82-17). 16 According to the committee members, this was a matter of concern 17 due to a recent incident involving a theft at the casino by a couple 18 working together. CARLOS OTERO Depo. Tr. 81 (docket No. 82-18). 19 Well, there was a situation that is rather sort of 20 bizarre and unique unto itself that happened Tuesday. 21 That’s for sure, I remember exactly when it happened, and 22 all hell broke loose. There was a little bit of a scam that 23 involved the collusion between two (2) people: one was the 24 Auditor and the other was the slot supervisor. And somehow 25 they absconded with about a hundred and twenty thousand 26 1 CIVIL NO. 05-2108 (RLA) Page 44 2 dollars ($120,000.00) And the Auditor was really the safety 3 net that was supposed to be double checking the paper work 4 and that was being erroneously processed. And we discovered 5 it, and eventually recovered the funds, but it just scared 6 the... You know, this was something that was so significant 7 the auditors got involved; the regional team got involved; 8 everybody had an opinion on everything from our procedures, 9 to relationships, to whatever, and that was a difficult 10 time. 11 LEVENE Depo. Tr. 47-48 (docket No. 82-17). 12 However, no measures were taken with regard to the couples who 13 were already working at the Casino. GLADYS RODRIGUEZ Depo. Tr. 49 14 (docket No. 82-21). 15 2. Non-discriminatory Reasons Proffered 16 Plaintiff’s initial prima facie burden is easily met in this 17 suit and defendants have so conceded. “In this case Marriott is not 18 contesting plaintiff’s prima facie case. That is, plaintiff is 19 obviously a female individual; she had acceptable performance 20 evaluations, and she was not granted a promotion she requested.” 21 Memorandum of Law (docket No. 82) p. 5. 22 Thus, the burden falls upon the defendants to articulate a 23 legitimate nondiscriminatory reason for having selected WILFREDO 24 GUZMAN for the Pit Boss position over plaintiff. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 45 2 According to MARRIOTT, the selection committee opted for the 3 male applicant “inasmuch as he had the required table games 4 knowledge, experience, attitude, associate’s relations, customer 5 relations and teamwork.” Memorandum of Law (docket No. 82) pp. 6-7. 6 Even though “[p]laintiff was seriously considered for the position, 7 as she had the table games knowledge and experience needed... Guzman 8 outscored her in teamwork, team chemistry, customer’s relations and 9 associate’s relations.” Memorandum of Law (docket No. 82) p. 7. 10 MARRIOTT explains that its decision was not based on a single 11 factor but rather “a combination of factors that weighed in favor of 12 selecting Guzman over plaintiff, including attitude, associate and 13 customer’s relations skills (for example, plaintiff’s incidents with 14 co-workers and clients, such as a discussion with a female co-worker 15 motivated by jealousy), teamwork, inability to keep the personal life 16 outside the workplace, and the fact that, if awarded the position, 17 plaintiff would supervise her then live-in partner.” Reply (docket 18 No. 105) at 14. 19 Defendants having come forth with legitimate nondiscriminatory 20 reasons for having rejected plaintiff’s promotion the evidentiary 21 presumption of discrimination vanishes and the burden falls back upon 22 plaintiff to demonstrate that the proffered grounds for her non23 selection were a “pretext” and the decision was motivated instead by 24 sex discrimination. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 46 2 The fact that the reasons proffered by the employer are 3 discredited by plaintiff does not automatically mandate a finding of 4 discrimination. “That is because the ultimate question is not whether 5 the explanation was false, but whether discrimination was the cause 6 of the [conduct at issue]. We have adhered to a case by case 7 weighing. Nonetheless, disbelief of the reason may, along with the 8 prima facie case, on appropriate facts, permit the trier of fact to 9 conclude the employer had discriminated.” Zapata-Matos v. Reckitt & 10 Colman, Inc., 277 F.3d at 45 (citations omitted); Reeves, 530 U.S. at 11 147-48. Plaintiff’s challenges to defendant’s proffered reasons is 12 not sufficient to meet his burden. See, Ronda-Perez v. Banco Bilbao 13 Vizcaya, 404 F.3d 42, 44 (1st Cir. 2005). Rather, “[t]he question to 14 be resolved is whether the defendant’s explanation of its conduct, 15 together with any other evidence, could reasonably be seen by a jury 16 not only to be false but to suggest an age-driven animus.” Id. See 17 also, Candelario Ramos v. Baxter Healthcare Corp. of P.R., 360 F.3d 18 53, 56 (1st Cir. 2004). 19 Plaintiff first contends that MARRIOTT failed to articulate a 20 legitimate, non-discriminatory reason for the challenged selection 21 process. In the alternative, she posits that there are genuine issues 22 of material facts regarding defendants’ articulated reasons for her 23 non-selection which point to discriminatory animus. 24 We find that defendants have met their burden of advancing 25 gender-free 26 reasons for having selected WILFREDO GUZMAN over 1 CIVIL NO. 05-2108 (RLA) Page 47 2 plaintiff for the Pit Boss position sufficiently to shift the burden 3 to plaintiff to establish that the reasons given were but a pretext 4 for sex discrimination. 5 3. Pretext 6 In support of her pretext argument plaintiff initially contends 7 that she is entitled to an evidentiary inference in her favor due to 8 spoliation of relevant documents. Plaintiff contends that she is 9 entitled to an inference that she was better qualified than her male 10 counterpart for the vacant Pit Boss position in March of 2004 because 11 the selection committee evaluations are no longer available. 12 a. Spoliation 13 GLADYS RODRIGUEZ testified in her deposition that she had been 14 handed the documents used by the decision-makers for calculating the 15 applicant’s score at the conclusion of their meeting for safekeeping 16 which she placed in a filing cabinet in her office. She further 17 indicated that her office keys were misplaced and the documents were 18 taken from her office. “Well, it was stolen, they took it. My key 19 from the, from the, from my office was lost and, well, apparently 20 they took it.” GLADYS RODRIGUEZ Depo. Tr. 54 (docket No. 100-5). 21 According to plaintiff, the written evaluations forms filled out 22 by the individual committee members during the selection process are 23 critical to demonstrate the underlying discriminatory reasons for not 24 having been selected over the male candidate because they have 25 disappeared under unknown circumstances. “A reasonable inference 26 1 CIVIL NO. 05-2108 (RLA) Page 48 2 deriving from the non-production of the selection committee 3 evaluations is that she outscored her male counterpart in her overall 4 score particularly given the direct evidence that [plaintiff] was 5 clearly the most experienced of the two final candidates.” 6 Plaintiff’s Motion in Opposition (docket No. 92-2) p. 20 & Sur-reply 7 (docket No. 120) p. 13. 8 “Spoliation refers to the destruction or material alteration of 9 evidence or to the failure to preserve property for another’s use as 10 evidence in pending or reasonably foreseeable litigation.” Silvestri 11 v. Gen. Motors Corp., 271 F.3d 583, 590 (1st Cir. 2001). 12 Litigants have the responsibility of ensuring that relevant 13 evidence is protected from loss or destruction. “‘A litigant has a 14 duty to preserve relevant evidence.’” Perez-Velasco v. Suzuki Motor 15 Co. Ltd., 266 F.Supp.2d 266, 268 (D.P.R. 2003) (citing Vazquez 16 Corales v. Sea-Land Serv., Inc., 172 F.R.D. 10, 11-12 (D.P.R. 1997)). 17 Further, this obligation predates the filing of the complaint 18 and arises once litigation is reasonably anticipated. The duty 19 extends to giving notice if the evidence is in the hands of third20 parties. “‘The duty to preserve material evidence arises not only 21 during litigation but also extends to that period before the 22 litigation when a party reasonably should know that the evidence may 23 be relevant to anticipated litigation... If a party cannot fulfill 24 this duty to preserve because he does not own or control the 25 evidence, he still has an obligation to give the opposing party 26 1 CIVIL NO. 05-2108 (RLA) Page 49 2 notice of access to the evidence or of the possible destruction of 3 the evidence if the party anticipates litigation involving that 4 evidence.’” Perez-Velasco, 266 F.Supp.2d at 268 (citing Silvestri, 5 271 F.3d at 591). 6 Relevant evidence is that which may prove or disprove a party’s 7 liability theory. Perez-Velasco; Vazquez Corales. 8 If the court finds that a party is accountable for the 9 spoliation it may impose sanctions to avoid unfair prejudice to the 10 opposing party. “‘[T]he district court has inherent power to exclude 11 evidence that has been improperly altered or damaged by a party where 12 necessary to prevent the non-offending side from suffering unfair 13 prejudice.’” Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 28 14 (1st Cir. 1998) (citing Sacramona v. Bridgestone/Firestone, Inc., 106 15 F.3d 444, 446 (1st Cir. 1997)); Silvestri, 271 F.3d at 590; Collazo16 Santiago v. Toyota Motor Corp., 149 F.3d 29, 28 (1st Cir. 1998). 17 Prejudice will be measured by the degree in which a party’s 18 ability to adequately develop its liability theory or mount a proper 19 defense has been hampered. Perez-Velasco, 266 F.Supp.2d at 269; 20 Driggin v. Am. Sec. Alarm Co., 141 F.Supp.2d 113, 121 (D.Me. 2000); 21 Vazquez-Corales, 172 F.R.D. at 14. 22 “The intended goals behind excluding evidence, or at the 23 extreme, dismissing a complaint, are to rectify any prejudice the 24 non-offending party may have suffered as a result of the loss of the 25 evidence and to deter any future conduct, particularly deliberate 26 1 CIVIL NO. 05-2108 (RLA) Page 50 2 conduct, leading to such loss of evidence... Therefore, of particular 3 importance when considering the appropriateness of sanctions is the 4 prejudice to the non-offending party and the degree of fault of the 5 offending party. Collazo-Santiago, 149 F.3d at 29. See i.e., 6 Silvestri, 271 F.3d at 594 (“even when conduct is less culpable, 7 dismissal may be necessary if the prejudice to the defendant is 8 extraordinary, denying it the ability to adequately defend its 9 case”); Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943 (1st Cir. 10 2005) (“[t]his case hinges upon the significance of the evidence 11 destroyed and upon the extreme prejudice the defendant suffered as a 12 result. Although the district court is afforded a considerable amount 13 of discretion in imposing sanctions, we believe the extraordinary 14 nature of plaintiff’s actions coupled with extreme prejudice to the 15 defendant warrants dismissal.”) 16 Applicable caselaw in the First Circuit has clearly established 17 that “bad faith or comparable bad motive” is not required for the 18 court to exclude evidence in situations involving spoliation. Trull 19 v. Volkswagen of America, Inc., 187 F.3d 88, 95 (1st Cir. 1999). 20 In addition to the severity of the prejudice suffered the court 21 must also consider “whether the non-offending party bears any 22 responsibility for the prejudice from which he suffers.” Driggin, 141 23 F.Supp.2d at 121. “Fairness to the opposing party... plays a 24 substantial role in determining the proper response to a spoliation 25 motion, 26 and punishment for egregious conduct is not the sole 1 CIVIL NO. 05-2108 (RLA) Page 51 2 rationale for the most severe sanction of exclusion.” Trull, 187 F.3d 3 at 95. 4 Sanctions for spoliation range from dismissal of the action, 5 exclusion of evidence or testimony or instructing the jury on a 6 negative inference to spoliation whereby the jury may infer that a 7 party who destroyed evidence did so out of realization that it was 8 unfavorable. The measure of the appropriate sanctions will depend on 9 the severity of the prejudice suffered. Driggin, 141 F.Supp.2d at 10 121; Vazquez-Corales, 172 F.R.D. at 13, 15. 11 It is not known at what particular point in time the evaluation 12 forms disappeared. All we have before us is the deposition testimony 13 of MS. RODRIGUEZ, in charge of their safekeeping, who indicated that 14 “[t]he exact date [of their disappearance] as such I don’t remember. 15 I know that at a given moment, well, I needed the documents and when 16 I went to look for them they were not, they were not there.” GLADYS 17 RODRIGUEZ Depo. Tr. 82 (docket No. 100-5). 18 Thus, it is difficult for the court to conclude that the timing 19 of the disappearance coincided with the foreseeability of litigation 20 which would have triggered defendants’ duty to preserve these 21 documents. 22 Further, because we find that plaintiff has available sufficient 23 evidence to raise issues of material fact regarding the veracity of 24 defendant’s 25 26 proffered reasons for its decision as well as an 1 CIVIL NO. 05-2108 (RLA) Page 52 2 inference of discriminatory animus we do not find that plaintiff has 3 been unfairly prejudiced by their unavailability. 4 Accordingly, we reject plaintiff’s spoliation argument. 5 b. Subjective Factors 6 It is evident from the testimony adduced by the parties that 7 during the selection process the objective factors listed in the 8 evaluation form were deemed less important than subjective ones. As 9 a matter of fact, all the committee members coincided when they found 10 that plaintiff was more experienced and more dexterous at the table 11 games than WILFREDO. Accordingly, we shall focus our attention on 12 whether the subjective reasons proffered by MARRIOTT for not 13 selecting plaintiff can be deemed a subterfuge for sex 14 discrimination. 15 We shall commence our review with the anecdotal stories 16 surrounding plaintiff’s personal life. Indeed, this particular 17 subject took up a significant portion of the discussion during the 18 selection process and also weighed heavily on the reasons advanced 19 for plaintiff’s non-selection to the Pit Boss position. 20 Defendants justify their choice of candidate and deny that the 21 subjective evaluation factors were rumors but rather that these were 22 real events either documented in plaintiff’s personnel file or 23 admitted by plaintiff during her deposition. 24 However, we must note that the events pertaining to plaintiff’s 25 life which were relied upon by defendants in support of their 26 1 CIVIL NO. 05-2108 (RLA) Page 53 2 selection process date from 1997 to 1998, that is, six years prior to 3 the decision at issue in this litigation.12 No evidence of more recent 4 incidents has been submitted. Plaintiff’s personal life seems to have 5 seeped into the center of the decision-making process without 6 specific notice of how it would impinge on her ability to do her job 7 in 2004. 8 Plaintiff also challenges as disqualifying criteria the fact 9 that she would supervise her then live-in partner if she were 10 promoted to the Pit Boss position. It is undisputed that in March 11 2004 various Casino employees had ongoing relationships with other 12 Casino employees13 with no effect in their employment. According to 13 CARLOS OTERO, nothing was done regarding couples who were already 14 working at MARRIOTT. Rather, things continued as before. CARLOS OTERO 15 Depo. Tr. 82 (docket No. 82-18). 16 As a matter of fact, CARLOS OTERO had a common law partner with 17 a lesser rank at the Casino and depending on their shifts they 18 19 20 21 22 23 12 For example: Record of Conversation dated December 1, 1997, Memo from Gil Torres to plaintiff dated December 8, 1997, Record of Conversation dated January 24, 1998, and Record of Conversation dated January 25, 1998. Defendants’ Motion for Summary Judgment... (docket No. 82) Exhs. 18-21. According to plaintiff, the restraining order was issued in 1999 but we have not seen any evidence confirming this date. See Plaintiff’s Motion in Opposition (docket No. 92-2) p. 2324. 24 13 25 26 For example: DEREK LOPEZ and JOMARIE COLON, DORIS RODRIGUEZ and DANIEL CARRASQUILLO, GRISELL CASTILLO and CARLOS OTERO. GLADYS RODRIGUEZ Depo. Tr. 51 (docket No. 100-5); CARLOS OTERO Depo. Tr. 82 (docket No. 82-18). 1 CIVIL NO. 05-2108 (RLA) Page 54 2 coincided at work. This situation was never taken up with MR. OTERO 3 even though he held the position of Casino Manager, the second in 4 command in the Casino hierarchy. CARLOS OTERO Depo. Tr. 81 (docket 5 No. 82-18). 6 There is no evidence on record of an extant policy at MARRIOTT 7 during that period of time proscribing couples from working together 8 at the Casino. Further, apart from the concern raised exclusively in 9 plaintiff’s situation no prospective measures were taken regarding 10 employed couples to avoid possible embezzlements in the future. 11 Lastly, it is important to distinguish between the nature of the 12 supervisory role played by a Pit Boss and a games employee with that 13 of an auditor - the final check and balance in the Casino operation. 14 According to LEVENE, the comptroller “[is] responsible for all 15 finance/accounting/audits, the cage operations, [and] the cage 16 cashiers”. LEVENE Depo. Tr. 61 (docket No. 82-17). 17 For purposes of the summary judgment request presently before us 18 “‘the focus should be on the ultimate issue: whether, viewing the 19 aggregate package of proof offered by the plaintiff and taking all 20 inferences in the plaintiff's favor, the plaintiff has raised a 21 genuine issue of fact as to whether the termination of the 22 plaintiff's employment was motivated by [sex] discrimination.’” Rivas 23 Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1st Cir. 2002) (citing 24 Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-31 (1st Cir. 25 2000)). 26 1 CIVIL NO. 05-2108 (RLA) Page 55 2 The candidate’s personnel records, including their formal 3 evaluations and/or negative entries for the previous years were not 4 considered in the decision-making process.14 Even though there were 5 vague references as to plaintiff’s difficulties with co-workers and 6 instances of problems with clients,15 the final selection hinged on 7 subjective factors such as outdated anecdotal stories regarding 8 plaintiff’s personal life and unevenly applied criteria involving 9 working couples used by a group composed exclusively by seven men 10 for MS. RODRIGUEZ was merely a witness to the process. 11 As to the alleged security concern, it seems illogical to 12 consider a potential for defalcation due to plaintiff’s personal 13 relationship and not between someone much higher in the Casino 14 organization and his partner. The fact that absolutely nothing was 15 done regarding employees in similar personal conditions working at 16 the Casino either at the time of the events involving this litigation 17 18 19 14 20 15 21 22 23 24 25 26 LEVENE Depo. Tr. 52-53 (docket No. 88-4). With respect to plaintiff’s relationship with clients JULIO VAZQUEZ stated that on two or three occasions clients had complained that plaintiff was “very rough”, “very explosive”. Yet there is no record of anything being done about this matter such as interviewing the clients and formally placing their complaints in plaintiff’s personnel file. Under the circumstances it is for the trier of facts to determine what actions or comments of plaintiff would lead to the conclusion that she was “very rough” and “very explosive” other than affiant JULIO VAZQUEZ’ subjective perception. With respect to plaintiff’s attitude toward fellow workers, LUIS GUEVARA’s vague statement is that it was “a bit... it... was an attitude, well.. how could I say it... rough, or maybe, on occasions it could border on haughtiness.” LUIS GUEVARA Depo. Tr. 65-66 (docket No. 82-19). 1 CIVIL NO. 05-2108 (RLA) Page 56 2 or prospectively, together with the other evidence available to the 3 court raises the specter of sex based discrimination.16 4 Accordingly, we find that taking all inferences in plaintiff's 5 favor, she has sufficiently raised issues of material fact to warrant 6 denial of defendants’ request to dismiss her sex discrimination claim 7 based on her non-selection for the Pit Boss position in March 2004. 8 VIII. TITLE VII - RETALIATION 9 A. Timeliness 10 Plaintiff also alleges that she suffered retaliation while 11 employed at MARRIOTT in the form of a hostile work environment. 12 Plaintiff filed her initial discriminatory charge challenging 13 defendants’ failure to promote her to the Pit Boss position on March 14 26, 2004. The following year, on March 25, 2005, she submitted a 15 retaliation charge. 16 Defendants argue that exhaustion of administrative remedies is 17 mandated as to all allegedly retaliatory conduct asserted by 18 plaintiff for which reason part of the events underlying plaintiff’s 19 retaliation claim, which were never presented to the pertinent agency 20 for investigation, are time-barred. 21 22 23 24 25 26 16 We reject plaintiff’s proffer regarding WILFREDO’s low scores in past evaluations, purported admonishments and discipline record as well as the allegedly late submission of his application for the Pit Boss position in March 2004 bypassing the Human Resources Office as unfounded. Further, defendants submitted WILFREDO’s evaluations for the years 2002 through 2004 which refute this claim. 1 CIVIL NO. 05-2108 (RLA) Page 57 2 Indeed, as previously noted, exhaustion of administrative 3 remedies is an integral component of the Title VII legislative 4 scheme. In Puerto Rico, an aggrieved employee has 300 days from the 5 occurrence of the employment action complained of to file an 6 administrative charge in instances where the local Department of 7 Labor is empowered to provide relief, i.e., in instances of 8 “deferral” jurisdiction. Bonilla, 194 F.3d at 278 n.4; Lebron-Rios v. 9 U.S. Marshal Serv., 341 F.3d 7, 11 n.5 (1st Cir. 2003). Otherwise, the 10 applicable period is 180 days. See, 42 U.S.C. § 2000e-5(e)(1).17 11 The Puerto Rico Anti-Discrimination Unit of the Department of 12 Labor has no jurisdiction over Title VII retaliation claims and thus, 13 is not deemed a Designated Agency under § 2000e-5(e)(1). Therefore, 14 claims for retaliation must be filed with the EEOC within 180 days 15 16 17 18 19 20 21 22 23 24 25 26 17 In pertinent part, § 2000e-5(e)(1) reads: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. (Emphasis ours). 1 CIVIL NO. 05-2108 (RLA) Page 58 2 from the events complained of.18 See also, Alvarez v. Delta Airlines, 3 Inc., 319 F.Supp.2d 240, 249 (D.P.R. 2004) (“The EEOC has not 4 conferred the ADU in Puerto Rico with jurisdiction to hear claims for 5 retaliation under section 704(a) of Title VII, 42 U.S.C. § 2000e6 3(a), such as the one presented by [plaintiff], which is an 7 independent cause of action from his sexual harassment claims. See 29 8 C.F.R. § 1601.74. In such a case, a claimant will have 180 days, not 9 300 days, from the alleged unlawful employment practice to file a 10 charge of retaliation under Title VII with the EEOC.”) 11 However, the Court of Appeals for the First Circuit has held 12 that the exhaustion requirement may prove inadequate in some 13 instances and may be waived “so long as the retaliation is reasonably 14 related to and grows out of the discrimination complained of to the 15 agency - e.g., the retaliation is for filing the agency complaint 16 itself.” Clockedile v. New Hampshire Dep’t of Corrections, 245 F.3d 17 1, 6 (1st Cir. 2001). 18 Given the fact that the purportedly stale retaliatory events 19 allegedly arose from plaintiff having filed her initial 20 discriminatory claim with the ADU in March of 2004, we reject 21 defendants’ timeliness argument based on Clockedile. 22 23 24 18 25 26 The designation of Puerto Rico as a “deferral” state for Title VII violations specifically excludes retaliation claims asserted under Sec. 704(a), 42 U.S.C. § 2000e-3(a). See, 29 C.F.R. § 1601.74. 1 CIVIL NO. 05-2108 (RLA) Page 59 2 B. Retaliation - The Law 3 Our review of the facts necessary to rule on the retaliation 4 claim in this action is limited by plaintiff’s failure to abide by 5 the Local Rule 56(c) requirements.19 Because plaintiff did not 6 adequately challenge the underlying facts advanced by MARRIOTT in 7 support of its request for dismissal of this particular cause of 8 action, we shall examine defendants’ proffered explanations for these 9 events as uncontested. 10 “Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), 11 states that it is unlawful for an employer to discriminate against an 12 employee because ‘he has opposed any practice made an unlawful 13 employment practice..., or because he has made a charge, testified, 14 assisted, or participated in any matter in an investigation, 15 proceeding, or hearing.’” DeClaire, 530 F.3d at 19. 16 The interests sought to be protected by Title VII’s anti17 discrimination mandate differ from those underlying its retaliation 18 clause. “The substantive provision seeks to prevent injury to 19 individuals based on who they are, i.e., their status. The anti20 retaliation provision seeks to prevent harm to individuals based on 21 what they do, i.e., their conduct.” Burlington N. & Santa Fe Ry. Co. 22 v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). 23 24 19 25 26 As previously noted, because plaintiff failed to address defendants’ proffered facts ¶¶ 46-137 we shall deem them uncontested when addressing MARRIOTT’s explanations surrounding these events. 1 CIVIL NO. 05-2108 (RLA) Page 60 2 “It therefore does not matter for retaliation purposes whether [the 3 employer] would have treated a male [employee] the same way he 4 treated [plaintiff]. The relevant question is whether [the employer] 5 was retaliating against [plaintiff] for filing a complaint, not 6 whether he was motivated by gender bias at the time.” DeClaire, 530 7 F.3d at 19. 8 Hence, for retaliation purposes “[t]he relevant conduct is that 9 which occurred after [plaintiff] complained about his superior’s 10 [discriminatory] related harassment.” Quiles-Quiles v. Hendeson, 439 11 F.3d 1, 8 (1st Cir. 2006). 12 C. Burden of Proof - McDonnel Douglas 13 “The evidence of retaliation can be direct or circumstantial.” 14 DeClaire, 530 F.3d at 20. Unless direct evidence is available, Title 15 VII retaliation claims may be proven by using the burden-shifting 16 framework set establish a forth down in McDonnell Douglas. “In order to 17 prima facie case of retaliation, a plaintiff must 18 establish three elements. First, the plaintiff must show that he 19 engaged in a protected activity. Second, the plaintiff must 20 demonstrate he suffered a materially adverse action, which caused him 21 harm, either inside or outside of the workplace. The impact of this 22 harm must be sufficient to dissuade a reasonable worker from making 23 or supporting a charge of discrimination. Third, the plaintiff must 24 show that the adverse action taken against him was causally linked to 25 his protected activity.” Mariani-Colon, 511 F.3d at 223 (citations 26 1 CIVIL NO. 05-2108 (RLA) Page 61 2 and internal quotation marks omitted); Moron-Barradas, 488 F.3d at 3 481; Quiles-Quiles, 439 F.3d at 8. 4 “Under the McDonnell Douglas approach, an employee who carries 5 her burden of coming forward with evidence establishing a prima facie 6 case of retaliation creates a presumption of discrimination, shifting 7 the burden to the employer to articulate a legitimate, non- 8 discriminatory reason for the challenged actions... If the employer’s 9 evidence creates a genuine issue of fact, the presumption of 10 discrimination drops from the case, and the plaintiff retains the 11 ultimate burden of showing that the employer’s stated reason for the 12 challenged actions was in fact a pretext for retaliating.” Billings 13 v. Town of Grafton, 515 F.3d 39, 55 (1st Cir. 2008) (citations, 14 internal quotation marks and brackets omitted). 15 “[A]n employee engages in protected activity, for purposes of a 16 Title VII retaliation claim, by opposing a practice made unlawful by 17 Title VII, or by participating in any manner in an investigation or 18 proceeding under Title VII.” Mariani-Colon,511 F.3d at 224. 19 “[Title VII’s] anti-retaliation provision protects an individual 20 not from all retaliation, but from retaliation that produces an 21 injury or harm.” Burlington, 548 U.S. at 67. In order to prevail on 22 a retaliation claim “a plaintiff must show that a reasonable employee 23 would have found the challenged action materially adverse, which in 24 this context means it well might have dissuaded a reasonable worker 25 from making or supporting a charge of discrimination.” Id. at 68. It 26 1 CIVIL NO. 05-2108 (RLA) Page 62 2 is not necessary that the conduct at issue affect the employee’s 3 “ultimate employment decisions.” Id. at 67. 4 According to Burlington, the determination of whether a 5 particular action is “materially adverse” must be examined based on 6 the facts present in each case and “should be judged from the 7 perspective of a reasonable person in the plaintiff’s position, 8 considering all the circumstances.” Id. at 71 (citation and internal 9 quotation marks omitted). 10 In reaching its decision in Burlington, the Supreme Court 11 considered factors such as the fact that the duties of a position 12 “were... more arduous and dirtier” when compared to the other 13 position which “required more qualifications, which is an indication 14 of prestige [] and... was objectively considered a better job”. Id. 15 (citation and quotation marks omitted). 16 In Billings the court distinguished between minor incidents 17 which take place in the usual course of a work setting and have no 18 import on an individual’s decision to file a discrimination charge 19 and those which might deter an employee from complaining of such 20 conduct. Specifically, the court noted that “some of [the 21 supervisor’s] behavior - upbraiding [plaintiff] for her question at 22 the Board of Selectmen meeting, criticizing her by written memoranda, 23 and allegedly becoming aloof toward her - amounts to the kind of 24 petty slights or minor annoyances that often take place at work and 25 that all employees experience and that, consequently, fall outside 26 1 CIVIL NO. 05-2108 (RLA) Page 63 2 the scope of the antidiscrimination laws... But we cannot say the 3 same for the other incidents, namely, investigating and reprimanding 4 [plaintiff] for opening the letter from [the supervisor’s] attorney, 5 charging her with personal time for attending her deposition in this 6 case, and barring her from the Selectmen’s Office. While these 7 measures might not have made a dramatic impact on [plaintiff’s] job, 8 conduct need not relate to the terms or conditions of employment to 9 give rise to a retaliation claim. Indeed, we think that these 10 actions, by their nature, could well dissuade a reasonable employee 11 from making or supporting a charge of discrimination. An employee who 12 knows that, by doing so, she risks a formal investigation and 13 reprimand - including a threat of further, more serious discipline 14 for being insufficiently careful in light of her pending litigation 15 as well as the prospect of having to take personal time to respond to 16 a notice of deposition issued by her employer in that litigation, 17 might well choose not to proceed with the litigation in the first 18 place.” Billings, 515 F.3d at 54 (citations, internal quotation marks 19 and brackets omitted). 20 “It is true that an employee’s displeasure at a personnel action 21 cannot, standing alone, render it materially adverse... [but 22 plaintiff] came forward with enough objective evidence contrasting 23 her former and current jobs to allow the jury to find a materially 24 adverse employment action.” Id. at 53. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 64 2 Depending on the particular set of facts at hand, “temporal 3 proximity alone can suffice to meet the relatively light burden of 4 establishing a prima facie case of retaliation.” DeClaire, 530 F.3d 5 at 19 (citation and internal quotation marks omitted). See also, 6 Mariani-Colon, 511 F.3d at 224 (“[T]he ‘temporal proximity’ between 7 appellant’s allegations of discrimination in June 2002 and his 8 termination in August 2002 is sufficient to meet the relatively light 9 burden of establishing a prima facie case of retaliation”); Quiles10 Quiles, 439 F.3d at 8 (“[I]n proper circumstances, the causation 11 element may be established by evidence that there was a temporal 12 proximity between the behavior in question and the employee’s 13 complaint.”) 14 “[T]here is no mechanical formula for finding pretext. One way 15 to show pretext is through such weaknesses, implausibilities, 16 inconsistencies, incoherencies, or contradictions in the employer’s 17 proffered legitimate reasons for its action that a reasonable 18 factfinder could rationally find them unworthy of credence and with 19 or without the additional evidence and inferences properly drawn 20 therefrom infer that the employer did not act for the asserted non21 discriminatory reasons.” Billings, 515 F.3d at 55-56 (citations, 22 internal quotation marks and brackets omitted). 23 Plaintiff carries the burden of presenting admissible evidence 24 of retaliatory intent in response to a summary judgment request. The 25 court need not consider unsupported suppositions. “While [plaintiff] 26 1 CIVIL NO. 05-2108 (RLA) Page 65 2 engages in much speculation and conjecture, a plaintiff cannot defeat 3 summary judgment by relying on conclusory allegations, or rank 4 speculation. To defeat summary judgment, a plaintiff must make a 5 colorable showing that an adverse action was taken for the purpose of 6 retaliating against him.” Mariani-Colon, 511 F.3d at 224 (citations 7 and internal quotation marks omitted). 8 Additionally, even though “it is permissible for the trier of 9 fact to infer the ultimate fact of discrimination from the falsity of 10 the employer’s discrimination, but doing so is not required, as there 11 will be instances where, although the plaintiff has established a 12 prima facie case and set forth sufficient evidence to reject the 13 defendant’s explanation, no rational fact-finder could conclude that 14 the action was discriminatory.” DeClaire, 530 F.3d at 19-20 (italics 15 in original). 16 Lastly, there are instances where issues of fact regarding the 17 veracity of the allegedly pretextual reasons demand that trial be 18 held to resolve them. See i.e., Billings, 515 F.3d at 56 (citations 19 and internal quotation marks omitted) (“But we think that, under the 20 circumstances of this case, it is the jury that must make this 21 decision, one way or another. As we have advised, where a plaintiff 22 in a discrimination case makes out a prima facie case and the issue 23 becomes whether the employer’s stated nondiscriminatory reason is a 24 pretext for discrimination, courts must be particularly cautious 25 about granting the employer’s motion for summary judgment. Such 26 1 CIVIL NO. 05-2108 (RLA) Page 66 2 caution is appropriate here, given the factual disputes swirling 3 around the transfer decision.”) 4 D. Hostile Environment 5 In retaliation cases, “[t]he adverse employment action may be 6 satisfied by showing the creation of a hostile work environment or 7 the intensification of a pre-existing hostile environment.” Quiles8 Quiles, 439 F.3d at 9. See also, Noviello, 398 F.3d at 89 (“[T]he 9 creation and perpetuation of a hostile work environment can comprise 10 a retaliatory adverse employment action”.) “[A] hostile work 11 environment, tolerated by the employer, is cognizable as a 12 retaliatory adverse employment action... This means that workplace 13 harassment, if sufficiently severe or pervasive, may in and of itself 14 constitute an adverse employment action sufficient to satisfy the 15 second prong of the prima facie case for... retaliation cases.” Id. 16 (under Title VII). “Harassment by coworkers as a punishment for 17 undertaking protected activity is a paradigmatic example of adverse 18 treatment spurred by retaliatory motives and, as such, is likely to 19 deter the complaining party (or others) from engaging in protected 20 activity.” Id. at 90. 21 “[R]etaliatory actions that are not materially adverse when 22 considered individually may collectively amount to a retaliatory 23 hostile work environment.” Billings, 515 F.3d at 54 n.13. 24 “In looking at a claim for hostile work environment, we assess 25 whether a plaintiff was subjected to severe or pervasive harassment 26 1 CIVIL NO. 05-2108 (RLA) Page 67 2 that materially altered the conditions of his employment. To sustain 3 a claim of hostile work environment, [plaintiff] must demonstrate 4 that the harassment was sufficiently severe or pervasive so as to 5 alter the conditions of his employment and create an abusive work 6 environment and that the [discriminatory] objectionable conduct was 7 both objectively and subjectively offensive, such that a reasonable 8 person would find it hostile or abusive and [that plaintiff] in fact 9 did perceive it to be so.” Thompson v. Coca-Cola Co., 522 F.3d 168, 10 179 (1st Cir. 2008) (internal citations and quotation marks and 11 brackets omitted). 12 “The environment must be sufficiently hostile or abusive in 13 light of all of the circumstances, including the frequency of the 14 discriminatory conduct; its severity; whether it is physically 15 threatening or humiliating, or a mere offensive utterance; and 16 whether it unreasonably interferes with an employee’s work 17 performance.” Prescott v. Higgins, 538 F.3d 32, 42 (1st Cir. 2008) 18 (citation and internal quotation marks omitted); Rios-Jimenez v. 19 Principi, 520 F.3d 31, 43 (1st Cir. 2008); Torres-Negron v. Merck & 20 Co., Inc., 488 F.3d 34, 39 (1st Cir. 2007). 21 “There is no mathematically precise test we an use to determine 22 when this burden has been met, instead, we evaluate the allegations 23 and all the circumstances, considering the frequency of the 24 discriminatory conduct; its severity; whether it was physically 25 threatening or humiliating, or a mere offensive utterance, and 26 1 CIVIL NO. 05-2108 (RLA) Page 68 2 whether it unreasonably interfered with an employee’s work 3 performance.” Carmona-Rivera v. Commonwealth of Puerto Rico, 464 F.3d 4 14, 19 (1st Cir. 2006) (citation and internal quotation marks 5 omitted). 6 “In determining whether a reasonable person would find 7 particular conduct hostile or abusive, a court must mull the totality 8 of the circumstances, including factors such as the frequency of the 9 discriminatory conduct; its severity; whether it is physically 10 threatening or humiliating, or a mere offensive utterance; and 11 whether it unreasonably interferes with an employee’s work 12 performance. The thrust of this inquiry is to distinguish between the 13 ordinary, if occasionally unpleasant, vicissitudes of the workplace 14 and actual harassment.” Noviello, 398 F.3d at 92 (citations and 15 internal quotation marks omitted). 16 Plaintiff must provide “evidence of ridicule, insult, or 17 harassment such that a court could find behavior on the part of the 18 defendants that was objectively and subjectively offensive behavior 19 that a reasonable person would find hostile or abusive.” Carmona20 Rivera, 464 F.3d at 19 (citation and internal quotation marks 21 omitted). See also, Noviello, 398 F.3d at 92 (“rudeness or ostracism, 22 standing alone, usually is not enough to support a hostile work 23 environment claim.”); De la Vega v. San Juan Star, Inc., 377 F.3d 24 111, 118 (1st Cir. 2004) (general claims 25 discriminatory treatment” not sufficient). 26 of “humiliating and 1 CIVIL NO. 05-2108 (RLA) Page 69 2 “[I]f protected activity leads only to commonplace indignities 3 typical of the workplace (such as tepid jokes, teasing, or 4 aloofness), a reasonable person would not be deterred from such 5 activity. After all, an employee reasonably can expect to encounter 6 such tribulations even if she eschews any involvement in protected 7 activity. On the other hand, severe or pervasive harassment in 8 retaliation for engaging in protected activity threatens to deter due 9 enforcement of the rights conferred by statutes.” Noviello, 398 F.3d 10 at 92. 11 Proving retaliatory intent is crucial. Hence, the purpose behind 12 the harassment must be to retaliate for the protected conduct, that 13 is, it must be motivated by plaintiff’s exercise of her statutory 14 rights. Carmona-Rivera, 464 F.3d at 20; Quiles-Quiles, 439 F.3d at 9. 15 Causation may be established by the temporal proximity between 16 the harassment and the protected conduct. See, i.e., id. 439 F.3d at 17 9 (intensified harassment shortly after filing EEOC complaint). 18 Even though “[t]he existence of a hostile environment is 19 determined by the finder of fact... that does not prevent a court 20 from ruling that a particular set of facts cannot establish a hostile 21 environment as a matter of law in an appropriate case.” Billings, 515 22 F.3d at 47 n.7. 23 E. Plaintiff’s Retaliatory Harassment Allegations 24 Plaintiff alleges that MARRIOTT engaged in retaliatory 25 harassment as a result of both her 2004 and 2005 administrative 26 1 CIVIL NO. 05-2108 (RLA) Page 70 2 charges. It is axiomatic that the filing of these two charges 3 constitute protected activity within the meaning of 42 U.S.C. § 4 2000e-3(a). 5 We shall begin by examining the purportedly retaliatory 6 incidents which took place after the filing of plaintiff’s March 2004 7 discrimination charge and those occurring subsequent to her filing 8 the March 2005 retaliation charge in conjunction with defendants’ 9 proffered explanations for these events. 10 1. Events after March 2004 11 Plaintiff cites the following events purportedly arising as a 12 result of her initial discrimination claim filed on March 26, 2004, 13 with the P.R. Department of Labor in support of her allegations of 14 retaliation in this action:20 (1) failure to transfer plaintiff to a 15 table games supervisor position; (2) unjustified written warning in 16 October 2004; (3) written warning subsequently changed to “coach and 17 counseling” for taking a break longer than half an hour. Further, 18 plaintiff was accused of fraud whereas no other employee had been 19 charged with fraud under similar circumstances; (4) after the warning 20 for taking a longer break plaintiff was required to announce to 21 surveillance every time she was going to or coming from a break and 22 (5) plaintiff’s evaluation score dropped from the consistent maximum 23 24 25 20 26 See Plaintiff’s Motion in Opposition (docket No. 92-2) pp. 29-30. 1 CIVIL NO. 05-2108 (RLA) Page 71 2 score of 5 points to 3.5 points, which adversely affected her salary 3 increase. 4 In response thereto, defendant submitted evidence surrounding 5 the circumstances of the events challenged by plaintiff as follows. 6 7 a. Failure to Transfer Plaintiff to a Table Games Supervisor Position 8 The last time plaintiff applied for a Pit Boss position or any 9 other promotion was in March 2004. 10 Around May 2004 plaintiff requested a lateral transfer to a 11 table games supervisor position. Plaintiff was not selected for the 12 position. 13 followed, the criteria applied, nor who the decision makers or the 14 applicants for the position were. Plaintiff has no knowledge of the selection process 15 Late 2004 plaintiff requested a transfer to the table games 16 department as a supervisor. There were two vacancies available which 17 were awarded to JOCELYN LEDREW and ORLANDO VEGA. 18 b. 19 On September 10, 2004, MILAGROS QUIÑONEZ, a cashier assigned to Written Warning in October 2004. 20 the 21 informed her that a co-worker had obtained a higher salary increase. 22 On October 5, 2004, DEL VALLE showed plaintiff a warning for 23 inappropriate disclosure of confidential information based on this 24 information. Plaintiff rejected the allegations and indicated that 25 she had no access to the evaluations of the Cage personnel. After 26 having listened to plaintiff’s explanation, DEL VALLE believed that Cage Department, complained in writing that plaintiff had 1 CIVIL NO. 05-2108 (RLA) Page 72 2 the warning was not indicated so he helped her prepare a document 3 explaining her position and delivered it to the Human Resources 4 Department. 5 Plaintiff met with the Human Resources Director ACUÑA and 6 advised him that the allegations contained in the warning were false. 7 ACUÑA asked plaintiff for time to further investigate into the 8 matter. When plaintiff returned to work after her day off, management 9 apologized and plaintiff told that there had been a misunderstanding 10 and that the warning was not supposed to have been given. 11 The warning, as well as all references to the incident, were 12 removed from plaintiff’s personnel file. 13 c. Excessive Meal Period 14 All Casino employees have a thirty minute meal period. On 15 January 13, 2005, plaintiff took a ninety minute meal period. That 16 is, a full one hour in excess of the meal period allowed to all 17 Casino employees. As a result thereof, DEL VALLE gave her a written 18 warning. She was given the warning because (1) she exceeded the 19 allotted time by a full hour and (2) because she failed to inform her 20 supervisor that she would take a longer meal period. 21 DEL VALLE had previously advised plaintiff that he could 22 understand if she needed additional time for her meal period but that 23 she had to give him advance notice. 24 Plaintiff contacted CARLOS CARTAYA, a corporate Human Resources 25 executive at the regional offices, to complain about the written 26 1 CIVIL NO. 05-2108 (RLA) Page 73 2 warning. Plaintiff argued to CARTAYA that another employee also took 3 an excessive meal period and she only received a “coaching and 4 counseling” not a written warning. 5 CARTAYA asked plaintiff to e-mail all the pertinent information 6 so he could investigate the incident. He told plaintiff not to be 7 concerned about the matter and that he would make all the necessary 8 inquires to solve the situation. On February 17, 2005, plaintiff sent 9 CARTAYA a letter dated February 14, 2005, wherein she related her 10 position regarding the matter. 11 Shortly thereafter, CARTAYA visited Puerto Rico and met with 12 plaintiff. During the meeting CARTAYA informed plaintiff that his 13 investigation revealed that her allegations were correct and that he 14 would reduce the written warning to a “coaching and counseling”. 15 A “coaching and counseling” is not considered a disciplinary 16 measure. 17 During plaintiff’s review of her personnel file she confirmed 18 that the warning had been crossed out. 19 CARTAYA advised plaintiff that he was available should she need 20 to contact him in the future. Plaintiff never contacted him again. 21 d. Need to Give Advance Notice to Casino Surveillance 22 Plaintiff alleges that after the incident involving her 23 excessive meal period she had to inform the Casino surveillance 24 department whenever she took her meal periods. However, during her 25 shift, plaintiff was the highest managerial employee in the Slot 26 1 CIVIL NO. 05-2108 (RLA) Page 74 2 Department. That is, she was in charge of the complete operation of 3 the Slot Department. Thus, plaintiff informed Casino surveillance 4 when she took her meal periods because during that time the Slot 5 Department had no managerial employees. 6 e. The 2004 evaluation 7 Plaintiff’s performance evaluation corresponding to calendar 8 year 2004 which was completed and handed to her in March 2005 was 9 prepared by DEL VALLE. Plaintiff disagreed with each and every aspect 10 of that evaluation. 11 The performance evaluation form has three levels of performance 12 ratings: Level 1: Key Contributor; Level 2: Solid Performer, and 13 level 3: Sub-performer. Levels 1 and 2 have three tiers each with 14 different salary increases. The evaluation covers various areas of 15 the employee’s performance. The evaluator rates each aspect and can 16 comment on each one of them. Then, a global rating is obtained. 17 Plaintiff received an overall rating of Level 2: Solid Performer 18 and a 3.5% salary increase. Her salary increase for the previous year 19 (2003) had been 4%. 20 Even though plaintiff claims that she received a poor evaluation 21 in retaliation for her March 2004 discrimination charge, her score 22 was in the upper tier of Level 2. Further, the evaluation was 23 prepared by DEL VALLE who was not involved in the selection process 24 for the Pit Boss vacancy in 2004. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 75 2 2. Events after March 2005 3 Additionally, plaintiff alleges that the following events 4 resulted from her retaliation charge filed on March 24, 2005:21 (1) 5 plaintiff was suspended from work for allegedly destroying hotel 6 property, i.e., tore pages from a log book; (2) plaintiff received a 7 low evaluation partly because of lack of training despite her 8 requests for training; (3) in December 2005 one of her supervisors 9 embarrassed plaintiff for not kissing him as a greeting gesture and 10 thereafter required that she greet him daily after a change in 11 shifts; (4) the same supervisor attempted to intimidate plaintiff by 12 approaching her in the enclosed vault space. 13 In response thereto, defendant submitted evidence surrounding 14 the circumstances of the events challenged by plaintiff as follows. 15 a. Logbook Incident 16 As with other departments, the Slot Department has a hard-bound 17 “logbook” wherein supervisors make notes of the most important events 18 that take place during their shifts. The logbook is used as a 19 commendation tool among supervisors working different shifts. 20 On October 12, 2005, plaintiff was suspended from Thursday 21 October 13 until Monday, October 17, 2005, pending investigation 22 after she was caught on Casino surveillance video tearing apart eight 23 pages of the Slot Department logbook the day before. Regional 24 25 21 26 Plaintiff’s Motion in Opposition (docket No. 92-2) p. 30-31. 1 CIVIL NO. 05-2108 (RLA) Page 76 2 Security Director RIVERA conducted an investigation into the incident 3 reviewing the video and the logbook and taking statements from 4 several employees. The video revealed that plaintiff tore off several 5 pages of the logbook. 6 As part of the investigation RIVERA interviewed plaintiff. She 7 admitted that she had ripped up the pages but alleged there was 8 nothing wrong with it. In a written statement plaintiff admitted that 9 she tore apart a page of the logbook after she accidentally tore it. 10 Based on the video and plaintiff’s statement, RIVERA suspended 11 plaintiff pending investigation into the contents of the pages 12 destroyed. 13 After completing the investigation, RIVERA advised plaintiff 14 that in consideration of her years of service with the Company she 15 would not be terminated but would receive a written warning instead. 16 Plaintiff returned to her position on October 18, 2005 and was 17 paid her full salary retroactively for the duration of the 18 suspension. 19 Plaintiff appealed the written warning using the Company’s “Peer 20 Review” process. 21 The “Peer Review” process consists of a panel of employees, or 22 the General manager if so chosen by the employee, which take part in 23 the revision of a disciplinary action upon an employee’s request. 24 When an employee requests a Peer Review, he or she is provided with 25 two boxes that contain pieces of paper one with the names of the 26 1 CIVIL NO. 05-2108 (RLA) Page 77 2 hourly employees available to be panelists and the other has the 3 names of the managerial employees available as panelists. The 4 employee takes six names from the hourly employees’ box and chooses 5 three whom he or she prefers. Then, the employee takes four names 6 from the managerial employees’ box and selects the two managerial 7 employees of his or her preference. Those five individuals comprise 8 the Peer Review panel for that particular case. At a meeting, the 9 employee is given the opportunity to provide his or her version of 10 the facts that led to the disciplinary measure. The manager who 11 applied the discipline then has the opportunity to explain the basis 12 for his or her action. If any one of them wishes to call a witness 13 they may do so. The panelists analyze all the facts and decide 14 whether the disciplinary measure should stand, or whether it should 15 be reduced or eliminated altogether. The panelists’ decision is final 16 and binding on the parties. 17 During the Peer Review, plaintiff had the opportunity to present 18 her version of the events that led to the written warning. As part of 19 her allegations, plaintiff claimed that there was, or should have 20 been, a videotape that would show that she “accidentally” dropped the 21 logbook. ACUÑA informed plaintiff that not only there was no such 22 video but that the video available showed otherwise. However, for 23 purposes of the Peer Review process they would take her contention 24 that the logbook “accidentally fell” as true. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 78 2 Despite plaintiff’s allegations the Peer Review panel upheld the 3 written warning. 4 b. The 2005 Evaluation and Lack of Training 5 Plaintiff’s performance evaluation corresponding to calendar 6 year 2005 which was completed and handed to her in March 2006 was 7 prepared by DEL VALLE. As with the 2004 evaluation, plaintiff alleges 8 that the performance rating given to her was in retaliation for her 9 filing the discrimination charge in March 2004. 10 Plaintiff’s overall rating was Level 2: Solid Performer. Again 11 she received a 3.5% salary increase. 12 Even though plaintiff claims that she received a “poor” in 13 retaliation for her filing of the March 2004 discrimination charge, 14 her score was comparable to her prior performance evaluation. 15 On March 27, 2006, plaintiff met with LEVENE to discuss her 16 evaluation. LEVENE agreed with some of plaintiff’s allegations and 17 increased her score in two areas. 18 In April 2005 the Casino was changing its Slot Machines system. 19 Accordingly, some employees were trained on the new system. The idea 20 was to have some employees take the training and have them in turn 21 train the remaining ones. 22 DEL VALLE selected JANICE CASIANO and LUIS PADILLA for the 23 training. Plaintiff was not selected because it was offered during 24 the latter part of her work shift and there was no one available to 25 cover her position. Allowing her to take the training would have left 26 1 CIVIL NO. 05-2108 (RLA) Page 79 2 the Slot Department with no managerial supervision for a prolonged 3 period of time. 4 Similarly, other employees such as JAVIER MALDONADO, RITA 5 MIRANDA and RAMON CRUZ did not attend the training because they were 6 working while the training was being offered. 7 Plaintiff complained that she did not receive training on the 8 new Slot Machines and that the trained employees did not teach her 9 the new system as planned. However, she admitted that CASIANO and 10 PADILLA were not able to train her because they did not work in her 11 same shift and she never made arrangements with either them or DEL 12 VALLE for her to come to the Casino earlier or stay after her shift 13 to meet either of them for the training. 14 In fact, plaintiff - an exempt employee - had insisted many 15 times that she not be required to attend meetings outside her work 16 schedule. 17 c. 18 Embarrassment Caused by Supervisor for not Kissing Him and Requirement that She Greet Him Daily after Change in Shifts. 19 Plaintiff met MALDONADO in December 1994 when the Casino first 20 opened. Even though MALDONADO was plaintiff’s direct supervisor, she 21 seldom saw him as they had different work schedules. In fact, by 22 December 2005 a year had elapsed without them interacting. 23 In December 2005, before a supervisors’ meeting commenced, 24 MALDONADO approached plaintiff to greet her with a kiss on the cheek 25 as they sometimes did. Plaintiff instead extended her hand to shake 26 1 CIVIL NO. 05-2108 (RLA) Page 80 2 MALDONADO’s. Plaintiff claims that MALDONADO became upset and asked 3 her “what’s wrong with you.” Plaintiff also claims that MALDONADO’s 4 comment was harassing because he addressed her “aggressively” during 5 the supervisors’ meeting. 6 After the December 2005 supervisors’ meeting plaintiff did not 7 interact again with MALDONADO until late March 2006, two years after 8 her ADU charge, when he had to work a night shift. When plaintiff 9 arrived to work at 4:00 a.m. she went about her usual routine without 10 informing MALDONADO that she had arrived. 11 MALDONADO gave plaintiff a “coaching and counseling” for her 12 failure to inform him that she had arrived. Plaintiff requested DEL 13 VALLE to eliminate it which DEL VALLE did. 14 d. The Vault Incident 15 On June 8, 2006, MALDONADO entered the Slot Department Vault 16 where plaintiff was at the time. MALDONADO went in to pick up 17 documents for a training as well as the associates’ checks. 18 Plaintiff claims that MALDONADO got close to her and rubbed her 19 jacket with his. However, she admits that the vault is a very small 20 room and that he did not talk to her. Plaintiff’s Statement of 21 Uncontested Facts ¶ 113 p. 24 (docket No. 82-3). Moreover, the Casino 22 surveillance video clearly shows that MALDONADO did not touch 23 plaintiff, did not rub his jacket with hers nor had any type of 24 contact with plaintiff. 25 26 1 CIVIL NO. 05-2108 (RLA) Page 81 2 3. Conclusion 3 We begin by examining the events which transpired subsequent to 4 the March 2004 discrimination charge to determine whether, either 5 individually or collectively, they may be deemed sufficiently adverse 6 to meet plaintiff’s McDonnel Douglas burden. Further, whether these 7 were causally connected to the protected activity. Lastly, assuming 8 a prima facie case of retaliation can be derived from the facts as 9 presented, whether defendants’ proffered legitimate non- 10 discriminatory reasons for the challenged events have been adequately 11 challenged as pretextual. 12 Plaintiff’s petitions for transfer to the table games supervisor 13 position were not requests for promotions but rather lateral 14 transfers. The first request was in March 2004 and the other in late 15 2004. We have no admissible evidence before us to establish how these 16 denials were in any way materially adverse to plaintiff nor how they 17 could have been deemed retaliatory. 18 The warning issued in October 2004 responded to a written 19 complaint by plaintiff’s co-worker. The allegations were serious 20 enough to warrant some personnel action inasmuch as they entailed 21 inappropriate disclosure of confidential information. It is important 22 to note that DEL VALLE himself assisted plaintiff in preparing a 23 document for the Human Resources Department to revisit the matter and 24 that the warning as well as all references thereto were removed from 25 plaintiff’s personnel file. 26 1 CIVIL NO. 05-2108 (RLA) Page 82 2 Additionally, faced with the undisputed evidence before us, even 3 assuming plaintiff had met her initial prima facie burden, 4 defendants’ non-retaliatory reasons for having issued the warning 5 stand unchallenged. 6 The written warning prompted by plaintiff having taken a full 7 one hour in excess of her authorized meal period was issued not only 8 because plaintiff exceeded the time allowed but also because she 9 failed to notify her supervisor of her absence. Plaintiff was the 10 highest managerial employee at the Slot Department and in charge of 11 the complete operation. Hence, her absence raised important 12 management considerations which also explain why she was required to 13 subsequently inform the Casino surveillance when she took her meal 14 periods. Apart from the fact that this incident took place on January 15 13, 2005, that is, close to a year after plaintiff’s discrimination 16 charge, defendants’ proffered non-retaliatory grounds for their 17 actions stand undisputed. 18 The difference in plaintiff’s 2004 evaluation was not remarkable 19 in comparison with the previous year. Her score was in the upper tier 20 of Level 2 and she received a 3.5% salary increase rather than a 4%. 21 Additionally, there is no evidence in the record of a causal 22 connection between the protected conduct and the evaluation. 23 With respect to the events subsequent to March 2005, the 24 incident involving the destruction of several log book pages was a 25 serious matter. It was well-documented, including a video, and 26 1 CIVIL NO. 05-2108 (RLA) Page 83 2 culminated in a Peer Review process which upheld the written warning. 3 There is no evidence in the record of retaliatory animus nor of 4 pretext for MARRIOTT’s decision. 5 Again, in the evaluation for the 2005 calendar year plaintiff’s 6 overall rating was Level 2: Solid Performer and she received a 3.5% 7 salary increase. Further, defendants submitted ample non-retaliatory 8 grounds justifying plaintiff’s lack of training in the new slot 9 machines system which have not been disputed. 10 The greeting incident involving MALDONADO as well as the 11 “coaching and counseling” due to plaintiff having failed to advise 12 him that she had arrived at work took place close to a year after the 13 retaliation charge had been filed. The record is devoid of any 14 evidence to reflect a causal connection between the events complained 15 of and the protected conduct. 16 Similarly, the vault incident - which was recorded in the Casino 17 surveillance video - does not evince any type of physical contact nor 18 was there any words exchanged between plaintiff and MALDONADO during 19 the time they shared the constrained area. MALDONADO had a valid non20 retaliatory reason for entering the premises, i.e., pick up training 21 documents and the associates’ checks. Additionally, we do not find, 22 based on the evidence on record, that the challenged events are 23 objectively and subjectively offensive. There is no indication that 24 they were part of a severe or pervasive retaliatory harassment 25 26 1 CIVIL NO. 05-2108 (RLA) Page 84 2 pattern which altered plaintiff’s conditions of employment so as to 3 amount to a hostile work environment. 4 Even though the court must review the record in the light most 5 favorable to plaintiff, we find that she failed to establish the 6 existence of material issues of fact regarding her retaliation claim 7 which require resolution at trial. Based on the uncontested evidence 8 presented, no reasonable jury could find that the challenged events 9 were geared to retaliate against plaintiff for having filed the two 10 charges. 11 Accordingly, the retaliation claim must be DISMISSED as a matter 12 of law. 13 IX. SUPPLEMENTAL CLAIMS 14 The court having denied the request for dismissal of the Title 15 VII discrimination claim due to plaintiff’s non-selection to the Pit 16 Boss position in March 2004 it may, in its discretion, entertain the 17 state-based claim under its supplemental jurisdiction pursuant to 28 18 U.S.C. § 1367(a). 19 Thus, defendants’ request to dismiss the supplemental claims 20 asserted in the complaint are DENIED. 21 X. CONCLUSION 22 Based on the foregoing, defendants’ Motion for Summary Judgment 23 (docket No. 82)22 is disposed of as follows: 24 25 26 22 See Plaintiff’s Motion in Opposition (docket No. 92); Reply (docket No. 105) and Plaintiff’s Sur-Reply (docket No. 120). Plaintiff is alerted to the fact that translations of the 1 CIVIL NO. 05-2108 (RLA) Page 85 2 - Plaintiff’s discrimination pattern and practice claim is 3 DISMISSED for failure to state a claim. Judgment shall be 4 entered accordingly. 5 - Plaintiff’s discrimination claim based on her non-selection 6 for the Pit Boss positions during the years 1996, 1997 and 7 1999 is DISMISSED as untimely. Judgment shall be entered 8 accordingly. 9 - Defendants’ request to dismiss plaintiff’s Title VII sex 10 discrimination claim based on her non-selection to the Pit 11 Boss position in March of 2004 is DENIED. 12 - Plaintiff’s Title VII retaliation claim is DISMISSED. 13 Judgment shall be entered accordingly. 14 - Defendants’ request to dismiss plaintiff’s supplemental 15 claims is DENIED. 16 IT IS SO ORDERED. 17 San Juan, Puerto Rico, this 22nd day of December, 2008. 18 19 20 S/Raymond L. Acosta RAYMOND L. ACOSTA United States District Judge 21 22 23 24 25 26 deposition transcript excerpts for: (1) CARLOS OTERO MAESTRE (docket No. 100-9), (2) MARIO CRUZ (docket No. 100-10) and (3) NESTOR DEL VALLE (docket No. 100-11) must be submitted. See Frederique-Alexandre v. Dep’t of Natural and Envt’l Res. Puerto Rico, 478 F.3d 433, 438 (1st Cir. 2007) (“[t]he law incontrovertibly demands that federal litigation in Puerto Rico be conducted in English, and that untranslated documents are not part of the record on appeal.”) (citation and internal quotation marks omitted).

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