Nieves v. Universal Solar Products, Inc., No. 3:2007cv02089 - Document 76 (D.P.R. 2009)

Court Description: OPINION AND ORDER DENYING 24 MOTION for Summary Judgment filed by Universal Solar Products, Inc. Signed by Chief Judge Jose A Fuste on 2/24/09.(mrj)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO CARMEN NIEVES, Plaintiff, Civil No. 07-2089 (JAF) v. UNIVERSAL SOLAR PRODUCTS, INC., Defendant. OPINION AND ORDER 10 11 Plaintiff, Carmen Nieves, brings this diversity action against 12 Defendant, Universal Solar Products, Inc., seeking 13 injunctive relief for sexual harassment, sex discrimination, and 14 retaliation in violation of Puerto Rico Law No. 17, of April 22, 15 1988, 29 L.P.R.A. § 155-155j ( Law 17"), and Law No. 69, of July 6, 16 1985, 29 L.P.R.A. § 1321-41 ( Law 69"). Docket No. 60. Defendant 17 moves for summary judgment. Docket No. 24. Plaintiff opposes, Docket 18 No. 26, Defendant replies, Docket No. 62, and Plaintiff surreplies, 19 Docket No. 64. 20 and I. 21 damages Factual and Procedural Synopsis 22 We derive the following factual summary from the parties 23 motions, statements of material facts, and exhibits. Docket Nos. 24, 24 26, 27, 65, 68, 73. Civil No. 07-2089 (JAF) -2- 1 From March 16 to May 11, 2005, Plaintiff sold Defendant s solar 2 energy products door-to-door and at Defendant s booths in various 3 malls 4 Defendant, Plaintiff worked in sales for other companies selling 5 solar 6 Christopher Alers, a supervisor with Defendant, recruited Plaintiff 7 to come work for Defendant. in Puerto water Rico. heaters, Prior to liquid working as chemicals, a and salesperson cemetery for lots. 8 Plaintiff filled out a job application to work for Defendant on 9 March 16, 2005. Docket No. 65-2. On the same day, she also signed a 10 sales contract for sale of Defendant s products. Id. The contract 11 stated that the existent relationship . . . is chiefly that of an 12 independent contractor and that the sales representative shall not 13 be considered an employee or agent of [Defendant]. 14 that either party could terminate the sales contract with thirty 15 days notice. 16 responsible 17 maintains that Defendant provided an assigned booth at booth malls, 18 and that she was not responsible for expenses for the booth. 19 Under Id. for the Id. It provided It further stated that the sales person would be paying booth agreement, expenses. Defendant Id. paid However, Plaintiff Plaintiff solely on 20 commission, so if Plaintiff did not make any sales, she received 21 nothing from Defendant. Defendant s materials suggest that for the 22 first fourteen sales that a new associate made, she would receive an 23 18% commission. Docket No. 65-3. As the associate made more sales, Civil No. 07-2089 (JAF) -3- 1 her commission would increase. Id. After an associate made a certain 2 number of sales, she would have the opportunity to recruit new 3 associates and earn commissions off of their sales. Id. 4 Defendant s associates handbook defines the different types of 5 sales associates, including a category described as independent 6 contractors. Docket No. 73-2. The handbook states that all associates 7 are required to work either 8:00 a.m. to 5:00 p.m. or 9:00 a.m. to 8 6:00 p.m., five days a week, with a one-hour lunch break. Id. The 9 handbook also indicates that Defendant keeps track of the absences 10 and late arrivals of associates, which are taken into consideration 11 in performance evaluations. Id. 12 Immediately after Plaintiff filled out the sales contract, Alers 13 instructed her to go to Plaza Las AmÃ©ricas, a mall in Hato Rey, 14 Puerto Rico, so he could train her in how to work the booth there. 15 Plaintiff worked five or six hours that day. For the next eight 16 weeks, Plaintiff worked more than ten hours a day, seven days a week. 17 She never requested or received overtime payments for this work. 18 Plaintiff was almost always working with Alers and one or two other 19 associates. Alers was responsible for establishing the work schedules 20 at 21 associates. the malls, and training Plaintiff and several other sales 22 Plaintiff alleges that, from her first full day of work, Alers 23 made unwelcome sexual advances toward her. He attempted to kiss her, Civil No. 07-2089 (JAF) -4- 1 touched her leg, called her his sweet black babe, told her she was 2 hot, and stared at her buttocks and breasts. Plaintiff states that at 3 some point, she spoke with Alers supervisor about this behavior. 4 Shortly thereafter, on May 11, 2005, Alers fired Plaintiff, with the 5 stated reason that she had refused to pick up a check from a client. 6 However, Plaintiff maintains that she was fired for refusing Alers 7 sexual advances and/or that Alers made her work environment so 8 unpleasant that she was forced to quit. 9 Plaintiff filed a complaint before the Anti-Discrimination Unit 10 of the Department of Labor of Puerto Rico ( ADU ), the administrative 11 agency in Puerto Rico that reviews employment discrimination charges, 12 and the federal Equal Employment Opportunity Commission ( EEOC ). On 13 September 6, 2006, at Plaintiff s request, the ADU issued a letter 14 informing Plaintiff that she had the right to sue Defendant. The ADU 15 forwarded Plaintiff s request to the EEOC. On November 20, 2006, the 16 EEOC issued a letter informing Plaintiff that she had the right to 17 sue Defendant within ninety days of receipt of the letter. 18 On November 16, 2007, Plaintiff filed the present diversity 19 complaint in federal district court. Docket No. 1. Defendant moved 20 for summary judgment on August 25, 2008, asserting that (1) Plaintiff 21 was an independent contractor and, therefore, not covered by Puerto 22 Rico anti-discrimination laws, and (2) Defendant did not discriminate 23 against Plaintiff. Docket No. 24. Plaintiff opposed on September 9, Civil No. 07-2089 (JAF) -5- 1 2008, Docket Nos. 26, 27, Defendant replied on September 26, 2008, 2 Docket No. 62, and Plaintiff surreplied on September 30, 2008, Docket 3 No. 64. 4 Docket No. 60. Plaintiff filed an amended complaint on September 29, 2008. 5 II. 6 Summary Judgment Standard under Rule 56(c) 7 We grant a motion for summary judgment if the pleadings, the 8 discovery and disclosure materials on file, and any affidavits show 9 that there is no genuine issue as to any material fact and the movant 10 is entitled to judgment as a matter of law. 11 A factual dispute is genuine if it could be resolved in favor of 12 either party, and material if it potentially affects the outcome of 13 the case. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 (1st 14 Cir. 2004). The moving party carries the burden of establishing that 15 there is no genuine issue as to any material fact; however, the 16 burden may be discharged by showing that there is an absence of 17 evidence to support the nonmoving party s case. Celotex Corp. v. 18 Catrett, 19 components: (1) an initial burden of production, which shifts to the 20 nonmoving party if satisfied by the moving party; and (2) an ultimate 21 burden of persuasion, which always remains on the moving party. 22 at 331. 477 U.S. 317, 325, 331 (1986). Fed. R. Civ. P. 56(c). The burden has two Id. Civil No. 07-2089 (JAF) -6- 1 In evaluating a motion for summary judgment, we must view the 2 record in the light most favorable to the non-moving party. Adickes 3 v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, the non- 4 moving party may not rely merely on allegations or denials in its 5 own pleading; rather, its response must . . . set out specific facts 6 showing a genuine issue for trial. 7 III. 8 Analysis 9 Plaintiff alleges that Alers, Fed. R. Civ. P. 56(e)(2). an employee of Defendant, 10 subjected her to a hostile work environment and fired her for failing 11 to submit to his sexual advances. Docket No. 60. Defendant argues 12 that 13 (1) Plaintiff was an independent contractor and not an employee of 14 Defendant, and (2) Plaintiff cannot establish that she was sexually 15 harassed. Docket No. 24-1. We address these arguments in turn. 16 A. we should grant summary judgment in its favor because Independent Contractor Status 17 Defendant argues that Plaintiff was an independent contractor 18 and, thus, may not invoke the protection of Laws 17 and 69. Docket 19 No. 24-1. Plaintiff acknowledges that these anti-discrimination laws 20 do not extend to independent contractors, but asserts that she had a 21 covered employer-employee relationship with Defendant. Docket No. 26. 22 Law 17 prohibits sexual harassment in employment. 29 L.P.R.A. 23 § 155. Law 69 prohibits gender discrimination in employment. 29 Civil No. 07-2089 (JAF) -7- 1 L.P.R.A. § 1321. Law 17 states that a protected employee is any 2 person who works for an employer and receives compensation therefor, 3 or any job applicant. For the purposes of [this provision], the term 4 employee shall be interpreted in the broadest sense possible. 5 § 155a. Law 69 does not contain the same term; however, Law 17 and 6 Law 69 are . . . to be interpreted in pari materia. Valentin-Almeyda 7 v. Municipality of Carolina, 447 F.3d 85, 102 n.20 (1st Cir. 2006). 8 In determining whether a party is an employee or an independent 9 contractor under Puerto Rico law, we look to several factors, 10 including (1) the form of the employment contract; (2) whether the 11 work was full or part time; (3) whether the contract provides for 12 vacation time, sick leave, or a retirement program; (4) the extent 13 and nature of control the putative employer has over the worker; 14 (5) the form of payment; (6) the ownership status of any equipment; 15 (7) whether the worker has an independent business that contracts 16 with the putative employer; and (8) the right of both parties to 17 terminate the relationship at any time. LÃ³pez v. Nutrimix Feed Co., 18 Inc., 27 F. Supp. 2d 292, 298 (D.P.R. 1998) (citing Rivera v Hosp. 19 Universitario, 762 F. Supp. 15, 17 (D.P.R. 1991)); Lugo v. Matthew 20 Bender & Co., 579 F. Supp. 638, 641-42 (D.P.R. 1984) (citing, inter 21 alia, Avon Products, Inc. v. Secretario del Trabajo, 106 P.R. Dec. 22 803 (1977); Nazario v. GonzÃ¡lez, 101 P.R. Dec. 569 (1973)). The most Civil No. 07-2089 (JAF) -8- 1 important factor is the control the employer has over the work 2 performed. LÃ³pez, 27 F. Supp. 2d at 298. 3 Here, the factors point in different directions. The contract 4 stated that Plaintiff was an independent contractor and did not 5 provide for vacation time, sick leave, or retirement, and provided 6 that Plaintiff was paid purely on commission. Docket No. 65-2. These 7 factors 8 contractor. 9 641-42. However, the parties could not terminate the relationship 10 without giving thirty days notice, Plaintiff worked full time or 11 more than full time, and she did not have an independent business 12 that contracted with Defendant. See Docket No. 65-2. These factors 13 point to a finding that Plaintiff was an employee. See LÃ³pez, 27 14 F.Supp.2d at 298; Lugo, 579 F. Supp. at 641-42. The ownership status 15 of the equipment used is unclear. The contract states that sales 16 representatives are responsible for paying the booth shifts [they 17 are] willing to cover, see Docket No. 65-2; however, Plaintiff 18 maintains that she did not have to pay to rent the booth space. 19 point to a finding that Plaintiff See LÃ³pez, 27 F. Supp. 2d at 298; Finally, the as to the evidence amount is of control inconclusive. was an independent Lugo, 579 F. Supp. at Defendant Defendant had over argues that 20 Plaintiff, 21 Plaintiff had complete control over her hours; however, Plaintiff 22 states that Alers assigned her to work at various booths, determined 23 her work schedule, and was always working with her. Defendant s Civil No. 07-2089 (JAF) -9- 1 associate s handbook states that all associates are required to work 2 either 8:00 a.m. to 5:00 p.m. or 9:00 a.m. to 6:00 p.m., five days a 3 week, with a one-hour lunch break. See Docket No. 73-2. The handbook 4 also indicates that Defendant keeps track of the absences and late 5 arrivals 6 performance evaluations. Id. Taken with Plaintiff s allegations about 7 the supervision by Alers, this manual indicates that Defendant had a 8 substantial amount of control over Plaintiff s day-to-day work. 9 However, the record does not establish to what extent Defendant 10 of associates, which are taken into consideration in actually followed the protocol set forth in the manual. 11 We find that issues of fact remain as to the extent and nature 12 of the control Defendant had over Plaintiff and the ownership status 13 of Defendant s booths. Since the most important factor is the control 14 the Defendant had over the work performed, see LÃ³pez, 27 F. Supp. 2d 15 at 298, these factual issues could be material to our determination 16 of whether Plaintiff was an employee or an independent contractor. 17 Therefore, Defendant is not entitled to summary judgment on this 18 issue.1 1 To the extent that Defendant argues for summary judgment on the grounds that Alers is himself an independent contractor, and not an agent, of Defendant, we note that there is even less evidence in the record about the terms and conditions of Alers employment. Civil No. 07-2089 (JAF) 1 B. -10- Sexual Harassment 2 Defendant contends that we should grant summary judgment in its 3 favor because Plaintiff cannot establish that she was sexually 4 harassed under either a quid pro quo or hostile work environment 5 theory. Docket No. 24. 6 Law 17 defines sexual harassment in employment as any type of 7 undesired sexual approach, demand for sexual favors and other verbal 8 or physical behavior of a sexual nature when (1) submission to the 9 conduct becomes a condition of employment; (2) submission to or 10 rejection of the conduct becomes grounds for a decision regarding the 11 person s job; or (3) the conduct unreasonably interferes with the 12 persons s work, or creates an intimidating, offensive, or hostile 13 work environment. 29 L.P.R.A. § 155b. The first two types constitute 14 quid pro quo harassment, while the third is hostile environment 15 harassment. 16 F.Supp.2d 81, 85-86 (D.P.R. 2002) ( HernÃ¡ndez II ). We note that the 17 substantive law of Puerto Rico on sexual harassment appears to be 18 aligned . . . with Title VII law, and Title VII precedents are used 19 freely 20 Universidad 21 ( HernÃ¡ndez I ). in HernÃ¡ndez construing Loring v. Universidad commonwealth Metropolitana, 233 F.3d law. 49, Metropolitana, HernÃ¡ndez 52 (1st Loring Cir. 186 v. 2000) Civil No. 07-2089 (JAF) -11- 1 1. Quid Pro Quo 2 Defendant argues that Plaintiff cannot establish quid pro quo 3 harassment because she admits that she was fired for failing to 4 complete an assigned task, not for refusing Defendant s sexual 5 advances. Docket No. 24-1. 6 In a quid pro quo case, an employer may be liable where a 7 supervisor punishes a subordinate for refusing to comply with sexual 8 demands. See HernÃ¡ndez I, 233 F.3d at 52. A plaintiff must show that 9 a tangible job benefit or privilege was conditioned on her submission 10 to unwelcome sexual advances. HernÃ¡ndez II, 186 F. Supp. 2d at 86. 11 Plaintiff asserts that, shortly after she complained about 12 Alers behavior to a supervisor, Alers fired her for objecting to his 13 continued sexual advances. Docket No. 65-6. Defendant counters that 14 Plaintiff was fired for failing to pick up a check from one of her 15 clients. Docket No. 24-1. Defendant attempts to show that this charge 16 is undisputed using Plaintiff s own deposition testimony reciting the 17 reason that Alers gave for firing her. See Docket Nos. 24-1, 24-2, 18 65-6. In the deposition, Plaintiff stated that Alers told her she was 19 fired for failing to pick up a check. Docket No. 65-6. However, later 20 in 21 pretextual; in fact, she stated, [Alers] had made sexual advances to 22 me, and . . . because I did not give in to his wishes, then he fired 23 me the deposition, without she insisted justification. Id. that Based Alers on our explanation reading of was this Civil No. 07-2089 (JAF) -12- 1 testimony, Plaintiff does not agree to Defendant s version of events. 2 Accordingly, there exists a triable issue of material fact as to why 3 Plaintiff was fired and, therefore, whether she suffered quid pro quo 4 sexual harassment. 5 2. 6 Defendant asserts that Plaintiff cannot establish that she was 7 subjected to a hostile work environment because her recollections of 8 the harassment lack specificity as to the details of the alleged 9 incidents and are in apparent conflict with other facts in the 10 Hostile Work Environment record. Docket No. 24-1. 11 In a hostile work environment case, the plaintiff must allege 12 more than a mere isolated incident of sexual harassment. Rivera v. 13 DHL Global Forwarding, 536 F. Supp. 2d 148, 154 (D.P.R. 2008) (citing 14 Puerto Rico cases). We consider the nature of the offensive conduct, 15 the frequency and intensity of the conduct, the context in which it 16 occurs, its duration, and the victim s own actions and circumstances. 17 Id. The summary judgment standard polic[es] the baseline for hostile 18 environment claims. Billings v. Town of Grafton, 515 F.3d 39, 50 19 (1st Cir. 2008) (quoting Pomales v. Celulares TelefÃ³nica, Inc., 447 20 F.3d 79, 83 (1st Cir. 2006)) (internal quotation marks omitted). 21 However, whether a hostile work environment exists is generally to be 22 determined by the finder of fact. Id. at 47 n.7, 50. Civil No. 07-2089 (JAF) 1 An employer can -13be held liable for (1) its own actions, 2 (2) those of its agents or supervisors, or (3) the actions of 3 employees, if the employer knew or should have known of the offensive 4 conduct. Rivera, 536 F. Supp. 2d at 154.; see 29 L.P.R.A. § 155d. A 5 plaintiff can establish employer liability based on the actions of 6 non-supervisory employees by showing that the employer directly knew 7 of the conduct or that it had constructive knowledge through its 8 agents or supervisors. Rivera, 536 F. Supp. 2d at 154. 9 Plaintiff alleges that, from her first full day of work, Alers 10 made unwelcome sexual advances toward her. He attempted to kiss her, 11 touched her leg, called her his sweet black babe, told her she was 12 hot, and stared at her buttocks and breasts. She asserts that she and 13 Alers were constantly together during the time that she worked for 14 Defendant. As Defendant notes, Plaintiff is vague as to the exact 15 dates 16 harassment 17 Defendant. These alleged remarks and comments, if true, would surely 18 suffice to establish the existence of a hostile work environment. 19 See Billings, 515 F.3d at 48 (stating that for a male supervisor to 20 stare repeatedly at a female subordinate s breasts is inappropriate 21 and 22 judgment where such conduct occurs in connection with other offensive 23 actions). of each was offensive, incident; ongoing not nonetheless, during merely the she period unprofessional, maintains that and she that the worked for denying summary Civil No. 07-2089 (JAF) 1 -14- Defendant contends, however, that it has presented evidence that 2 undercuts Plaintiff s 3 Defendant asserts that Plaintiff and Alers made sales to people 4 residing in remote areas of Puerto Rico, indicating that Plaintiff 5 and Alers did not spend as much time together as Plaintiff claimed, 6 and demonstrating that certain instances of harassment could not have 7 occurred on the dates alleged. Id. For example, Defendant states that 8 Plaintiff testified to working in a booth at Plaza Las AmÃ©ricas on 9 the date of the first incident of sexual harassment, but that her 10 sales indicate that she made a sale on that date to a person residing 11 in RÃo Grande, Puerto Rico, while Alers made a sale on that same date 12 to a person residing in Dorado, Puerto Rico. Id. at ¶ 60. Defendant 13 cites several similar apparent discrepancies in the sales record to 14 argue that the alleged harassment could not have occurred. Id. 15 However, this circumstantial evidence does not negate Plaintiff s 16 version of the facts. Because Plaintiff and Alers often worked at 17 booths in malls, they could have made sales to people from all over 18 the 19 accompanied Alers while he made sales, even though she did not record 20 any sales herself. Defendant s evidence does not foreclose the 21 possibility that Plaintiff and Alers spent a substantial amount of 22 time together, during which he had the opportunity to harass her. island in a version single day. of the facts. Similarly, Docket Plaintiff No. could 24-1. have Civil No. 07-2089 (JAF) 1 -15- We find that issues of material fact remain as to (1) whether 2 Alers made the harassing comments and 3 (2) whether the alleged offensive conduct was severe or pervasive 4 enough to create a hostile work environment; and (3) whether Alers 5 was an agent or supervisor of Defendant for liability purposes or 6 whether Alers was a non-supervisory employee and Defendant had actual 7 or constructive knowledge of Alers alleged conduct. Accordingly, we 8 deny Defendant s motion for summary judgment on the hostile work 9 environment claim. 10 to Plaintiff; IV. 11 gestures Conclusion 12 13 For the reasons stated herein, we DENY Defendant s motion for summary judgment, Docket No. 24. 14 IT IS SO ORDERED. 15 San Juan, Puerto Rico, this 24th day of February, 2009. 16 17 18 s/JosÃ© Antonio FustÃ© JOSE ANTONIO FUSTE Chief U.S. District Judge

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