Aponte-Rivera v. DHL Solutions (USA), Inc. et al, No. 3:2007cv01950 - Document 49 (D.P.R. 2009)

Court Description: OPINION AND ORDER granting in part and denying in part 23 motion for summary judgment. Signed by Judge Gustavo A. Gelpi on 7/8/09. (MBA) Modified on 7/9/2009 to add word OPINION (er).

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 JULISSA APONTE RIVERA, 4 Plaintiff, 5 v. 6 DHL SOLUTIONS (USA), et al., 7 Defendants. Civil No. 07-1950 (GAG) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPINION AND ORDER Plaintiff Julissa Aponte Rivera brought this action against her former employer DHL Solutions, Inc., Insurance Company ABC, John Doe, and Company XYZ pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Local Laws 17, 29, and 100, P.R. Laws Ann., tit. 29, §§155 et seq., 1321a et seq., 146 et seq., respectively, claiming gender-based discrimination and hostile work environment (Docket No. 2). Defendants moved for summary judgment (Docket No. 23) pursuant to Fed.R.Civ.P. 56. In their motion for summary judgment they argue: (a) that plaintiff has failed to establish a prima facie claim of discrimination inasmuch as she was never subject to any adverse employment action and her failure-to-promote claim is time-barred; (b) that plaintiff cannot establish that she was subjected to a hostile work environment because the complained-of conduct was not sufficiently severe or pervasive so as to alter the conditions of her employment and create an abusive working environment; (c) that there is no basis for employer liability; and (d) that given that there are no federal claims upon which relief may be granted, the supplemental state law claims should also be dismissed. After reviewing the pleadings, the court GRANTS IN PART and DENIES IN PART defendants motion for summary judgment (Docket No. 23). I. Relevant Factual Background Plaintiff Julissa Aponte Rivera ( Aponte ) started working for defendant DHL Solutions, Inc. on March 6, 2000 as a Service Center Assistant at the spare parts center in San Juan. On July 7, 2001, plaintiff was promoted to the position of Material Handling Supervisor, although she states Civil No. 07-1950 (GAG) 1 that the promotion was to Logistics Manager for Puerto Rico and the Caribbean. Plaintiff claims to 2 have had an excellent relationship with all of her supervisors. Enrique FrÃas ( Mr. FrÃas ) became 3 Aponte s supervisor in June 2004, the time when the claimed-of sexual harassment began. Plaintiff s 4 first complaint to Human Resources, in June 2004, was that her supervisor was creating an 5 uncomfortable working environment by making several comments to her that were out of place 6 because they had sexual connotations. Plaintiff also informed DHL that the workload assigned to 7 her was impossible to accomplish. To this Mr. FrÃas answered women is [sic] always complaining 8 about everything. (Docket No. 23-6 at 12). A position for Program Manager became available in 9 October 2004. Aponte expressed interest in the position and alleges to have had the necessary 10 experience to have qualified for the same. Nevertheless, at the November interview with Mr. FrÃas, 11 plaintiff felt rushed and as though the interview was only pro forma because of insinuations that 12 Rafael Camacho ( Mr. Camacho ) would be hired as Program Manager. After this incident, plaintiff 13 took a ten-month leave of absence from January to November 2005. Upon her return, she found her 14 computer and office occupied by Mr. Camacho and felt that the harassment immediately worsened. 15 Plaintiff felt humiliated and that her authority and position was diminished in front of those she was 16 supervising. Aponte participated in daily conference calls with clients and Mr. Camacho and she felt 17 that she was constantly harassed during these conference calls (Docket No. 23-6 at 41). In March 18 2006 she complained to DHL for the second time of the hostile work environment caused by Mr. 19 FrÃas and Mr. Camacho and plaintiff took another leave of absence because the working environment 20 became intolerable. In June 2006, plaintiff resigned from her employment and filed a Charge of 21 Discrimination before the Equal Employment Opportunity Commission ( EEOC ) (Docket 2 at 3). 22 II. 23 Summary Judgment is appropriate when the pleadings, depositions, answers to 24 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 25 genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 26 of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is Standard of Review 27 28 2 Civil No. 07-1950 (GAG) 1 genuine if it may reasonably be resolved in favor of either party at trial, and material if it 2 possess[es] the capacity to sway the outcome of the litigation under the applicable law. Iverson 3 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citations omitted). 4 The moving party bears the initial burden of demonstrating the lack of evidence to support 5 the non-moving party s case. Celotex, 477 U.S. at 325. The non-moving party must then set forth 6 specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). If the court finds 7 that some genuine factual issue remains, the resolution of which could affect the outcome of the 8 case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 9 242, 248 (1986). When considering a motion for summary judgment, the court must view the 10 evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party 11 the benefit of any and all reasonable inferences. Id. at 255. Moreover, at the summary judgment 12 stage, the court does not make credibility determinations or weigh the evidence. Id. 13 III. 14 15 A. Failure-to-Promote Claim In a sex discrimination claim under Title VII of the Civil Rights Act of 1964 the plaintiff 16 bears the burden of proving her prima facie case through a four-prong test. Texas Dept. of 17 Community Affairs v Burdine,450 U.S. 248, 253 (1981) (citing McDonnell Douglas v. Green, 411 18 U.S. 792(1973)). If the plaintiff succeeds in proving the prima facie case, the burden shifts to the 19 defendant so as to demonstrate a non-discriminatory reason for the employee s rejection or denial. 20 Id. The prima facie case serves an important function in the litigation: it eliminates the most 21 common non-discriminatory reasons for the plaintiff s rejection. Id. at 254. Analysis 22 The Supreme Court has held that for a plaintiff to establish a presumption of gender 23 discrimination, she must show that (1) she is a member of a protected class; (2) an adverse 24 employment action was taken against her; (3) she was otherwise qualified; and (4) her position 25 remained open or was filled by a person with qualifications similar to hers. GarcÃa v Brystol-Myers 26 Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008). As a woman claiming gender-based discrimination, 27 Plaintiff satisfies prong 1. The court will address prongs 2, 3, and 4 in its analysis. 28 3 Civil No. 07-1950 (GAG) 1 Defendant argues that plaintiff failed to establish a prima facie case of gender discrimination 2 because she did not suffer an adverse employment action and, in the alternative, the failure-to- 3 promote claim is time-barred (Docket No. 24 at 7). Plaintiff contests in her Opposition to Defendant 4 DHL s Summary Judgment (Docket No. 34 at 5) that the adverse employment action manifested 5 itself in the form of a constructive discharge. A constructive discharge usually occurs as a result 6 of sexual harassment that took place in violation of Title VII. Johanna Zayas v. Frank Torres- 7 Oquendo, et al, 2009 WL 1473506, *5 (D.P.R. 2009). Therefore, the court opines that the 8 constructive discharge, as one that occurs when the employer makes working conditions so 9 intolerable that a reasonable employee would feel compelled to resign, Hunt v. Rapides Healthcare 10 Systems, LLC, 277 F.3d 757, 771 (5th Cir. 2001), is not representative of the required adverse 11 employment action for a sex discrimination case based on a failure to promote. 12 When a failure-to-promote claim constitutes the adverse employment action, the elements 13 of the prima facie claim vary depending on the nature of the claim. Therefore, in order to prove her 14 failure-to-promote claim, plaintiff must establish (1) that she is a member or a protected class who 15 (2) was qualified for an open position for which she applied, but (3) was rejected (4) in favor of 16 someone possessing similar qualifications. Rathbun v Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 17 2004). In light of the relevant facts of the case, the court finds that with regards to prongs 2 and 4, 18 there are genuine issues of material fact because plaintiff offers evidence showing that she met the 19 necessary qualifications for the job and that she had similar qualifications to the person hired 20 (Dockets No. 34 at 8-10 and 23-5 at 25-26). On the other hand, defendant alleges that Aponte did 21 not meet the professional standards to qualify (Docket No. 24 at 9-11). The court would, for this 22 reason, deny summary judgment. However the court must first address defendant s argument with 23 respect to the failure-to-promote claim being time-barred. 24 Plaintiff raises the continuing violation doctrine which allows the court to consider events 25 that took place outside the statutory period as long as the untimely incidents represent an ongoing 26 unlawful employment practice. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 27 28 4 Civil No. 07-1950 (GAG) 1 (2002). Nevertheless, a failure-to-promote is a discrete act and discrete acts have to fall within the 2 statutory period in order for a plaintiff to recover for them. Id. The Supreme Court held in Morgan 3 that discrete discriminatory acts are not actionable if time barred, even when they are related to acts 4 alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges. 5 Id. at 113. Plaintiff filed a Charge of Discrimination against defendant before the EEOC on June 6 26, 2006, alleging discrimination and hostile work environment because of her gender. According 7 to the Amended Complaint (Docket No. 2 at 4), the position for DHL Program Manager became 8 available in October 2004. Plaintiff was interviewed on November 12, 2004 and was told by Mr. 9 FrÃas that the position would be filled by the afternoon of that same day. The charges must be filed 10 with the EEOC within 300 days of the employment practice. Morgan, 536 U.S. at 107 (citing 11 TitleVII of the Civil Rights Act of 1964, 42 U.S. C. s 2000e-5(e)(1)). It is evident to the court that 12 the 300-day statutory period had elapsed by the time plaintiff filed a charge before the EEOC. 13 Therefore, the court concurs with defendant s argument and finds that the failure-to-promote claim 14 is time-barred. The court, therefore, GRANTS summary judgment as to the sex discrimination 15 claim. 16 B. 17 In order to succeed in a hostile work environment claim, the plaintiff must establish: (1) that 18 she is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; 19 (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or 20 pervasive so as to alter the conditions of plaintiff s employment and create an abusive work 21 environment; (5) that the sexually objectionable conduct was both objectively and subjectively 22 offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did 23 perceive it to be so; and (6) that some basis of employer liability has been established. O Rourke 24 v City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). As a woman, plaintiff is a member of a 25 protected class and satisfies prong 1. As for prongs 2 and 3, plaintiff has alleged and presented 26 evidence that she was subjected to unwelcome harassment and that it was based on sex (Docket Nos. Hostile Work Environment Claim 27 28 5 Civil No. 07-1950 (GAG) 1 23-6 at 10, 17, 25, 32, and 41-44). The court s analysis will, therefore, be limited to prongs 4, 5, and 2 6. 3 Title VII is violated when the work environment is charged with ridicule, insults, and 4 discriminatory intimidation sufficiently severe or pervasive to alter the conditions of the victim s 5 employment and create an abusive working environment. Miguel v. Nesco Redondo, S.E., 394 6 F.Supp. 2d 416, 425 (D.P.R. 2005). Plaintiff states that she had excellent evaluations from her 7 supervisors up until 2004, when Mr. FrÃas started supervising her (Docket No. 2-3 at 4). Plaintiff 8 further claims that when Mr. FrÃas began working as supervisor the working environment turned 9 hostile and uncomfortable due to unwelcome sexual harassment, such as telling her things like 10 When will you demonstrate that you have control of the operation? Is it that you don t have pants 11 on tight? (Docket No. 23-6 at 14), asking her if she was married and afterwards telling her that she 12 was expecting a man like [him] (Docket No. 23-6 at 20), asking her to go to a party with him 13 (Docket No. 23-6 at 22), and calling her weak or telling her she complained too much (Docket No. 14 23-6 at 28). Defendant argues that Mr. FrÃas could not have created a hostile work environment since 15 he visited Puerto Rico five times in one year. Aponte narrates that Mr. FrÃas harassed her following 16 six specific events and that his behavior extended from June to December of 2004 (Docket No. 23-4 17 at 2-29). Therefore, the six events occurred in a six-month time span, after which she took a ten- 18 month leave of absence from January to November 2005 (Docket No. 23-6 at 4). 19 Further, upon plaintiff s return, she believed that the pressure would have subsided, 20 nevertheless, it worsened due to Mr. Camacho s conduct. Aponte states that both him and Mr. FrÃas 21 met with her and in a loud tone said something like When are you going to leave? (Docket No. 22 23-6 at 40). Also, Mr. Camacho would constantly refer to her and women in general as morons 23 and stupid (Docket No. 23-6 at 41). Mr. Camacho s abusive behavior mainly took place during 24 the daily conference calls with clients, as stated under oath (Docket 23-6 at 41), and lead plaintiff 25 to take a second leave of absence in March 2006, which later resulted in her resignation in June 26 2006. It is the court s duty to differentiate between minor criticism and frequent and severe 27 28 6 Civil No. 07-1950 (GAG) 1 harassment through the use of common sense and an appropriate sensitivity to social context. 2 Redondo, S.E., 394 F.Supp. 2d at 425 (D.P.R. 2005) (citing Oncale v. Sundowner Offshore Serv., 3 Inc., 523 U.S. 75, 82 (1998)). Therefore, the court calls attention to the six- month and four-month 4 time range in which the intimidation, insults, and abusive comments occurred. The court finds that 5 although the isolated events may not seem as severe as the case law esteems, observing the totality 6 of the circumstances, Zambrana Santos v. Banco Santander de P.R., 363 F. Supp. 2d 56, 65 (D.P.R. 7 2005), would result in a genuine issue of fact as to whether they constitute severe and pervasive 8 harassment. Also, a reasonable jury may conclude that this conduct was severely hostile for 9 plaintiff, enough to lead to an extended leave of absence, and enough for a reasonable person to find 10 the same behavior intimidating, insulting, and abusive. A discriminatorily abusive work 11 environment, even one that does not seriously affect employees psychological well-being, can and 12 often will detract from employees job performance, discourage employees from remaining on the 13 job, or keep them from advancing in their careers. Harris v. Forklift Systems, Inc., 510 U.S. 17, 14 22 (1993). 15 The Supreme Court has repeatedly held that simple teasing, off-hand comments, and 16 isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms 17 and conditions of employment. . . [this in order to ensure that] Title VII does not become a general 18 civility code. Smith v. Family Enrichment Center, Inc., 2009 WL 1457973, *5 (M.D. Fla. 2005) 19 (citing Faragher v. City of Boca Raton, 118 S. Court 2275, 2283-284 (1998)) (citations omitted). 20 And, although, some circuit courts find that it is the court s prerogative to determine if the sexual 21 harassment constitutes severe and pervasive treatment sufficient enough to create a hostile work 22 environment, the First Circuit applies the reasonable jury test, whereby it is the jury who decides 23 whether the treatment was sufficiently severe or pervasive. Rivera-Rodriguez v. Frito Lay Snacks 24 Caribbean, a Division of Pepsico, Inc., 265 F.3d 15, 25 (1st Cir. 2001). In this case, plaintiff has 25 presented a forecast of evidence that could lead a reasonable jury to decide that she was subjected 26 to a hostile work environment (See Docket No. 23-6 at 2-52). Therefore, the court finds that a 27 28 7 Civil No. 07-1950 (GAG) 1 question of fact remains as to whether the treatment was sufficiently frequent, severe, and pervasive, 2 and it should be left up to a jury to decide if defendant s conduct is actionable as a hostile work 3 environment claim. 4 The court now turns to defendant s argument that plaintiff failed to prove employer liability. 5 An employer s liability for a hostile work environment claim depends on the harasser s employment 6 status relative to the victim s. DHL would be vicariously liable if plaintiff s supervisor created a 7 hostile work environment, but if a co-worker created the hostile work environment, the employer 8 would only be held liable if it was negligent either in discovering or remedying the harassment. See 9 Zayas, 2009 WL 1473506 at *5 (D.P.R. 2009) (citing Torres-Negron v. Merck & Company, Inc.,488 10 F.3d 34, 40 (1st Cir. 2007)). In order for an employer to defeat vicarious liability for supervisor 11 harassment, it must prove that it exercised (1) reasonable care to prevent and correct promptly any 12 sexually harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage 13 of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 14 Id. at 145-46. This defense is raised when the discharge does not involve official actions. 15 In this case, the evidence shows that in June of 2004 plaintiff complained to human resources 16 with regards to Mr. FrÃas conduct and that human resources stated that it would address the issue 17 (Docket Nos.23-6 at 17 and 23-12 at 1). Then, plaintiff complained again in March 2006 of 18 Mr.Camacho s behavior. Maude Cesari of Human Resources assured plaintiff that she would travel 19 to Puerto Rico in order to deal with the problem (Docket No. 23-21 at 1). After such meeting, 20 Aponte thanked Maude Cesari and told her that there had been positive change (Docket No.23-22 21 at 1). However, plaintiff resigned in June 2006. Defendant claims that [it] addressed plaintiff s 22 concerns [in good faith and] in a timely fashion and took immediate and proper action (Docket No. 23 24 at 19). Defendant states that after the first complaint, Human Resources found that there was just 24 a personality conflict between Mr. FrÃas and Aponte, and provided coaching for them both (Docket 25 No. 24 at 19). Therefore, the court finds that there is a genuine issue of material fact as to whether 26 DHL took reasonable, prompt, and correct action and if plaintiff reasonably failed to take advantage 27 28 8 Civil No. 07-1950 (GAG) 1 of it so as to prevent the sexually harassing behavior. For the aforementioned reasons, the court 2 DENIES defendant s motion for summary judgment as to the hostile work environment claim. 3 C. Supplemental State-Law Claims 4 Given that plaintiff s hostile work environment claim survived defendant s motion for 5 summary judgment, and that the court understands that Law 17, Law 69, and Law 100 include hostile 6 work environment as an actionable claim, the court DENIES defendant s motion for summary 7 judgment as to the state law claims. 8 IV. 9 For the abovementioned reasons, the court GRANTS IN PART and DENIES IN PART 10 Conclusion defendants motion for summary judgment (Docket No. 23). 11 SO ORDERED. 12 In San Juan, Puerto Rico this 8th day of July 2009. 13 S/Gustavo A. GelpÃ 14 GUSTAVO A. GELPI United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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