Opinion
Civil No. 02-1902 (JAG).
September 23, 2005
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Wanda Vargas-Cabán filed this action seeking damages against defendants on claims of sexual harassment by her employer, Caribbean Transportation Services, Inc. (hereinafter "Caribbean Transportation"), upon acts of its employees, Mr. Rick Faieta, President and CEO of Caribbean Transportation, and Ms. Mary Ellen Nicolleti, Vice President of Operations at Caribbean Transportation, whose actions also created a hostile work environment. The claims fall under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, 42 U.S.C. § 2000e and jurisdiction was claimed, after following administrative proceedings, under 28 U.S.C.A. § 1331. The complaint submits also claims for mental and emotional anguish of plaintiff's husband, Mr. Arcides Hernández Medina, the conjugal partnership constituted by them, and their two (2) minor children, without further reference to its jurisdictional grounds, state or federal. (Docket No. 1).
Defendant Caribbean Transportation was acquired and merged as a branch of Federal Express.
II. BACKGROUND
On January 14, 2005, defendant filed a motion for summary judgment ( Docket No. 92), with Statements of Material Facts ( Docket No. 94). After requested extensions of time were granted, plaintiffs filed their Response in Opposition to Defendant's Motion for Summary Judgment ( Docket No. 111). Thereafter, on February 22, 2005, defendant filed Reply to Plaintiffs' Opposition ( Docket No. 114) and plaintiffs' filed their Response in Opposition to Statement of Material Facts on May 7, 2005 ( Docket No. 125), with accompanying English translation of documents. Upon granting further extension of time to file ( Docket No. 127), on June 20, 2005 the Court referred to this Magistrate Judge above motions for report and recommendation ( Docket No. 128).III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Pursuant to the language of the rule, the moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir., 1997). After the moving party has satisfied this burden, the onus shifts to the resisting party to show that there still exists "a trial worthy issue as to some material fact." Cortés-Irizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997). A fact is deemed "material" if it potentially could affect the outcome of the suit. Id. Moreover, there will only be a "genuine" or "trial worthy" issue as to such a "material fact," "if a reasonable fact-finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Id.
At all times during the consideration of a motion for summary judgment, the Court must examine the entire record "in the light most flattering to the non-movant and indulge all reasonable inferences in the party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir., 1994). There is "no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood. . . ." Greenburg v. Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir., 1987). In fact, "[o]nly if the record, viewed in [this] manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir., 1997).
When considering this motion, unsettled issues of motive and intent as to the conduct of any party will normally preclude the Court from granting summary judgment. Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir., 1996) (reversing summary judgment and emphasizing that "determinations of motive and intent . . . are questions better suited for the jury") (internal quotation marks omitted) (citation omitted); see also Tew v. Chase Manhattan Bank, N.A., 728 F.Supp. 1551, 1555 (S.D.Fla. 1990) ("Certain issues such as fraud, intent, and knowledge lend themselves to trial, rather than summary judgment. These matters can often only be proved by reliance upon circumstantial evidence except in the rare case where there is uncontroverted proof of a `smoking gun.'"). However, "even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences [or] unsupported speculation." Ayala-Genera v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996).
In evaluating these cases, a "court may consider any material that would be admissible or usable at trial." See 10A Charles Alan Wright Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2721, at 361 (3d ed. 1998). "But the court should do no more than this in reviewing the quality of the evidence. Most critically, it must never `weigh the evidence and determine the truth of the matter. . . .'" Lipsett v. University of P.R., 864 F.2d 881, 895 (1st Cir. 1988) (quotingAnderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed 2d 202 (1986)). The court should "`look at the record . . . in the light most favorable to . . . the party opposing . . . the motion' . . . [and] indulge all inferences favorable to the party opposing the motion." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) ( quoting Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486 (1962)). "If, after this canvassing of the material presented, the district court finds that some genuine factual issue remains in the case, whose resolution one way or another could affect its outcome, the court must deny the motion." Lipsett, 864 F.2d at 895 ( citing Anderson, 477 U.S. at 242, 106 S.Ct. at 2505). "Summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). See Acevedo Vargas v. Colon, 68 F.Supp.2d 80, 85-86 (D. Puerto Rico 1999).
IV. ANALYSIS
A. Hostile Work Environment Sexual Harassment Standard.
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2. "Hostile work environment sexual harassment occurs when an employer's conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
To establish a discrimination claim under Title VII for hostile work environment, plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based upon sex; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and create an abusive work environment; (5) the sexually objectionable conduct was both objectively and subjectively offensive such that a reasonable person would find it hostile or abusive and that the victim, in fact, did perceive it to be so; and (6) some basis for employer liability has been established. O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-89, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); Harris v. Forklift Sys., 510 U.S. 17, 20-23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
The Supreme Court directs us to "determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Faragher, 524 U.S. at 778; Harris, 510 U.S. at 24. "Evidence of sexual remarks, innuendoes, ridicule, and intimidation may be sufficient to support a jury verdict for a hostile work environment." O'Rourke, 235 F.3d at 729; see also White v. N.H. Dept. of Corr., 221 F.3d 254, 260-61 (1st Cir. 2000) (finding a hostile work environment where "disgusting comments" and conversations occurred "everyday").
Title VII prohibits "discrimination . . . because of . . . sex" in the "terms" or "conditions" of employment. Thus, sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
See Philip McGough, SAME-SEX HARASSMENT: DO EITHER PRICE WATERHOUSE OR ON CALE SUPPORT THE NINTH CIRCUIT'S HOLDING IN NICHOLS V. AZTECA RESTAURANT ENTERPRISES, INC. THAT SAME-SEX HARASSMENT BASED ON FAILURE TO CONFORM TO GENDER STEREO TYPES IS ACTIONABLE? 22 Hofstra Lab. Em p. L.J. 206 (2004).
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment or participation in an educational program or activity, (2) submission to or rejection of such conduct by an individual is used as the basis for employment or educational decisions affecting that individual, or (3) such conduct creates an intimidating, hostile, or offensive environment that unreasonably interferes with a person's ability to work or to participate in a school program or activity. (Emphasis supplied). 29 CFR § 1604.11(a) (1985). See Meritor Savings Bank, 477 U.S. at 65;Gorski v. New Hampshire Department of Corrections, 290 F.3d 466, 472 (1st Cir. 2002).
Title VII comes into play even before the harassing conduct leads to a nervous breakdown. A discriminatory abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. See Susan E. Prince, Esq., WHAT QUALIFIES AS SAME-SEX SEXUAL HARASSMENT UNDER TITLE VII? HR Advisor: Legal Practical Guidance, 10 No. 1 (January/February 2004).
Actionable sexual harassment takes two (2) different forms: quid pro quo and hostile environment. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). Quid pro quo harassment is the most easily identified type of sexual harassment. It is a demand for sexual favors in exchange for a job benefit, a grade, or participation in an educational activity. Quid pro quo sexual harassment requires, among other things, that plaintiff's refusal to submit to unwelcome sexual advances or requests for sexual favors result in tangible job detriment. Quiñones v. Puerto Rico Hosp. Supply, Inc, 307 F.Supp.2d 352, 357 (D. Puerto Rico 2004). Therefore, a plaintiff must produce evidence showing that the alleged harassment affected tangible aspects of their employment. For example, under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands. Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999); Lipsett, 864 F.2d at 897. Hostile work or school environment is the more pervasive type of sexual harassment. It occurs when verbal, nonverbal, or physical conduct of a sexual nature is severe, persistent, or pervasive enough to limit a person's ability to work or benefit from an educational experience. Plaza-Torres v. Rey, 376 F.Supp.2d 171, 177 (D. Puerto Rico 2005).
In 1998, in a pair of decisions with identical holdings, the Supreme Court created a new liability scheme. The Court held that Title VII of the Civil Rights Act of 1964 would henceforth impose strict liability on employers for workplace harassment perpetrated by supervisors. An employer with (1) a satisfactory procedure for reporting and eradicating workplace harassment and (2) an employee who negligently fails to take advantage of that procedure may exercise a judicially-created affirmative defense to supervisory wrongdoing. In addition, an employer is exposed to liability if it fails to take corrective action when it knows or should know of workplace harassment by a co-worker or a non-employee. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998 (1998) ( also finding sex discrimination consisting of same-sex sexual harassment is actionable under Title VII).
The Supreme Court's decision in Ellerth, 524 U.S. at 742, clarified the rules of employer liability for actions by a supervisor in a harassment case. If harassment by a supervisor with immediate or higher authority over an employee results in a tangible employment action against the employee, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits, then the employer is vicariously liable; if the harassment does not result in a tangible employment action but is sufficiently severe or pervasive, then the employer is still vicariously liable but an affirmative defense is available. Id. at 754, 765, 118 S.Ct. 2257. Thus, Title VII may be violated by either explicit or constructive alterations in the terms or conditions of employment. Id. at 752, 118 S.Ct. 2257; Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 43 (1st Cir. 2003).
When no tangible employment action is taken, which herein defendant claims since Mrs. Vargas may only allege constructive discharge, a defending employer may raise an affirmative defense to liability or damages if: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid the harm otherwise. Lee-Crespo, 354 F.3d at 43 n. 8 (quoting Ellerth, 524 U.S. at 765). Evidence of using reasonable care includes having a sexual harassment policy in place, following the policy in practice, and showing that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities to end the harassment. No affirmative defense is available, however, when a supervisor's conduct results in a negative tangible employment action, such as discharge or demotion. The Supreme Court recognized a claim of sexual harassment between people of the same sex in Oncale, 523 U.S. at 75, by allowing a claim of sexual harassment by a man who had been violently sexually harassed by his male co-workers. Although the circumstances of his claim bare distinct links to homophobic language and violence, the Court was explicit that his claim would be allowed only as a claim for discrimination on the basis of sex. The Court in Oncale suggested that same-sex sexual harassment could be actionable in two (2) basic categories. The first would include circumstances with evidence that the harasser was gay, and the second would include instances in which the harasser was motivated by general hostility to the presence of people of the same sex in the workplace. The Court had also previously determined that a sexual harassment claim could exist if the employee was harassed for not complying with socialized gender expectations ("sex stereotyping"). Ultimately, the Supreme Court held that same-sex sexual harassment should be analyzed within the context in which it allegedly occurs, suggesting that "[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships."
In Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 118 S.Ct. 1989 (1998), a Title IX discrimination case, the Supreme Court extended the "deliberate indifference" standard to apply to peer sexual harassment in limited circumstances where: (1) the institution had "actual knowledge" of the harassment; (2) the institution acted with "deliberate indifference" to the conduct; (3) the institution had "substantial control" over the student harasser and the context of the harassment; and (4) the harassment was so "severe, pervasive, and objectively offensive" as to have deprived the victim of educational opportunities or services. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 642-46 (1999). See also Doe v. City of Belleville, 119 F.3d 563, 588 (7th Cir. 1997), vacated by 523 U.S. 1001 (1998) ("Harassment, like other forms of victimization, is often motivated by issues of power and control on the part of the harasser.").
See Christine R. Williams, PETERSON V. HEWLETT-PACKARD: EXPOSING TITLE VII INCONSISTENCIES IN ITS PROTECTION OF EMPLOYEES FROM WORKPLACE HARASSMENT, 83 N.C. L. Rev. 776, 784-785 (March 2005).
In same-sex harassment cases as in all sexual harassment cases, a Title VII plaintiff must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but in fact constituted discrimination because of sex. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1). Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999).
The statutory "because of . . . sex" requirement, as indicated in Oncale, is not met merely because workplace harassment involves sexual matters: the substance of the violation is discrimination based on sex or, as the Court put the matter, "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id.
B. Prima Facie Case of Hostile Work Environment Sexual Harassment.
Defendant Caribbean Transportation's Motion for Summary Judgment is based in that plaintiff has failed to establish a prima facie case of hostile work environment and the same sex sexual harassment as alleged in the complaint was not based on plaintiff's sex or gender but on personal animosity stemming from Ms. Nicolleti's jealousy for an imaginary and non-existing relationship between plaintiff and Mr. Faieta, a reason not discriminatory and not covered by Title VII anti-discrimination policy. Defendant also claims plaintiff did not suffer any tangible employment action as a result of Ms. Nicolleti's actions nor the harassment alleged was sufficiently severe or pervasive to create an abusive working environment which altered the conditions of plaintiff's employment. Defendant Caribbean Transportation's request for summary disposition is predicated solely on Ms. Nicolleti's acts and fails to mention or address plaintiff's claims as to Mr. Faieta. Finally, Caribbean Transportation claims that co-plaintiff Hernández, plaintiff's spouse, their conjugal partnership and their two minor children are not covered by Title VII since said federal provision does not provide a cause of action to individuals except for employees or applicants for employment and no supplemental jurisdiction or state law claim have been evoked in the complaint.
Caribbean Transportation submits as uncontested, in support of its request for summary judgment, the following:
1. Mr. Rick Faieta is the President and CEO of Caribbean Transportation; Exhibit A, depo testimony of Mr. Faieta, p. 13.
2. Ms. Mary Ellen Nicolleti is the Managing Director and Vice President of the Puerto Rico Operations for Caribbean Transportation; Exhibit B, depo testimony of Ms. Nicolleti, p. 13.
3. Plaintiff Wanda Vargas was hired on October 24, 1997 as Customer Service Representative; Exhibit D-1.
4. A few months later, Mrs. Vargas was transferred to the Tax Department for a few weeks and thereafter transferred back to the Customer Service Department; Exhibit C, depo testimony of Vargas, pp. 301, 310; Exhibit D.
5. On January 14, 1998, Mrs. Vargas was evaluated as satisfactorily and above average by Ms. Nicolleti; Exhibit C; Exhibit D, Human Resources personnel record of Mrs. Vargas.
6. On February 9, 1998, Mrs. Vargas was promoted to position of Administrative Sales Assistant in the Sales Department of Caribbean Transportation and received a salary increase; Exhibit D.
7. On April 8, 1998, Ms. Gloria Tollinche, Vice President of Sales for Caribbean Transportation, prepared a sixty (60) days evaluation of Mrs. Vargas' performance; Exhibit C, pp. 345-348 and Exhibit D.
8. On August 13, 1998, Ms. Tollinche performed another evaluation of Mrs. Vargas' performance; Exhibit C, pp. 364-365, 370, 376; Exhibit D, and E, Mrs. Vargas memorandum to Ms. Tollinche of same date.
9. In 1998, Caribbean Transportation underwent a merger, which along with Hurricane Georges, increased the work and air cargo transportation; Exhibit C, pp. 360, 390, 393-394.
10. In 1998, Caribbean Transportation created the Department of Special Accounts to provide direct and continuous customer service to the company's top accounts; Exhibit F.
11. On August 17, 1998, Ms. Nicolleti appointed Mrs. Vargas to the position of Supervisor of Special Accounts; Exhibit D.
12. On February 8, 1999, Ms. Nicolleti appointed Mrs. Vargas to the position of Manager of Special Accounts, an exempt position under federal labor standards, in charge of supervising three (3) other employees, with her own desk and telephone and a working area with a computer and a fax machine for tracking shipments; Exhibit C, pp. 442-445, 447-449; Exhibit D, and Exhibit F, Special Accounts Department Organigram.
13. On 1999, Mrs. Vargas received a salary increase effective May 8, 1999; Exhibit D.
14. On June 10, 1999, Mrs. Vargas received a Customer Satisfaction monetary award authorized by Mr. Faieta and pursuant to Ms. Nicolleti's recommendation; Exhibit D.
15. On May 1, 2000, Ms. Nicolleti evaluated Mrs. Vargas' performance during the year 1999 as excellent.
16. On May 1, 2000, Ms. Nicolleti authorized an increase to Mrs. Vargas' salary; Exhibit D.
17. On September 2000, Mrs. Vargas received a Certificate of Appreciation for excellent and outstanding performers' group at the Special Accounts Department; Exhibit I, certificate of appreciation.
18. On November 10, 2000, Mrs. Vargas had an argument with a fellow manager, Mr. Hugo Villanueva. Mrs. Vargas visited the State Insurance Fund that day on claims of a work related accident as to this incident; Exhibit J, State Insurance Fund decision dated November 10, 2000; Exhibit K, Employer's Report same date.
19. On November 23, 2000, the State Insurance Fund examined Mrs. Vargas for the alleged mental emotional condition and determined that she could return to work while she continued receiving medical treatment; Exhibit M, State Insurance Fund's decision dated November 23, 2000.
20. On March 6 and 9, 2001, Mrs. Vargas had two (2) discussions with Ms. Lydia Rosario, a U.S. Customs Broker; Exhibit D.
21. On March 12, 2001, Mrs. Vargas visited the State Insurance Fund regarding a work related incident with Ms. Lydia Rosario and claiming she could not continue to perform her duties; Exhibit N, Mrs. Vargas' statement of March 12, 2001; Exhibit O, Employees' Report.
22. On March 13, 2001, Mrs. Vargas was examined by the State Insurance Fund and was ordered to be absent from work while receiving medical treatment; Exhibit D.
23. Mrs. Vargas did not return to her work for Caribbean Transportation; Exhibit D. 24. On May 18, 2001, Mrs. Vargas filed a charge of discrimination with the Anti-Discrimination Unit of the Puerto Rico Department of Labor; Exhibit C, p. 688-690; Exhibit D; Exhibit Q, Discrimination Charge.
25. Caribbean Transportation ordered an investigation of sexual harassment allegations by Mrs. Vargas and interviewed several employees, yet determined that no act of sexual harassment had occurred; Exhibit R, Mr. Mark Hogan's depo pp. 9-10.
26. On October 31, 2001, Mrs. Vargas received monthly benefits from Caribbean Transportation's long-term disability plan; Exhibit D.
27. On June 3, 2003 and January 29, 2003, Caribbean Transportation sent letters to Mrs. Vargas as to her intentions of returning to work, granting ten (10) days to reply; Exhibit D.
28. Mrs. Vargas received, during her employment with Caribbean Transportation, an Employee Manual, indicating a prohibition for discrimination because of sex and the policy to be followed regarding sexual harassment; Exhibit C, pp. 697-699; Exhibit D.
Pursuant to the above, defendant Caribbean Transportation submits being entitled to summary judgment since plaintiff's same sex discriminatory conduct by Ms. Nicolleti, even if unpleasant, was not due to plaintiff's gender but as indicated by Mrs. Vargas' deposition testimony, for jealousy as to events that occurred back in June 1999 between Mrs. Vargas and Mr. Faieta. As such, there was no discriminatory animus but a perceived personal animosity between plaintiff and Ms. Nicolleti because of an imaginary and non-existent relationship. Summary Judg. ¶¶ 10-14.
Defendant also submits that Mrs. Vargas did not suffer any tangible employment action since, even if constructive discharge is presumed and/or plaintiff's claim of inability to return to work because of an emotional condition, there is no evidence to show that working conditions at Caribbean Transportation were so unpleasant or difficult that a reasonable person would have felt compelled to resign. It is defendant's contention that plaintiff's visits to the State Insurance Fund for work incidents as to her alleged emotional condition and her subsequent failure to return to work had nothing to do with Ms. Nicolleti. Id. ¶¶ 14-23.
Caribbean Transportation also avers that above statement of uncontested facts would show plaintiff's harassment was not sufficiently severe or pervasive to create an abusive working condition that would alter the conditions of her employment. Id. ¶ 23-34.
In turn, plaintiff submits, and remains undisputed, that Caribbean Transportation is a company that offers air cargo and freight services between the United States and the Caribbean, including Puerto Rico, and charter flights. Its headquarters are in Greensboro, North Carolina, and it holds offices in Aguadilla, Puerto Rico. It was formerly, and while plaintiff Vargas worked therein, held as Caribbean Air Services, Inc., and Wrangler Aviation.
It is also undisputed that Mrs. Vargas was a hard working employee who received numerous promotions at several times, positive evaluations and pay raises. Ms. Nicolleti's depo. p. 21.
Plaintiff additionally submits the following facts related to the actions of Mr. Faieta against plaintiff:
1. Throughout her employment at Caribbean Transportation, Mrs. Vargas was sexually touched by Mr. Faieta, President and CEO of Caribbean Transportation; Exhibit A, Mrs. Wanda Vargas' depo pp. 399-420, 574-575; Exhibit C, Ms. Annette's depo pp. 42-43, 73-74, 77-78, 86.
2. One of the incidents with Mr. Faieta occurred on June 1999 at the executive suite of Ms. Nicolleti, while Mrs. Vargas worked as assistant; Vargas' depo, id.
3. On June 1999, Mr. Faieta caressed Mrs. Vargas' forehead in a sexually manner, while commenting sexually improper remarks to the effect that "it was like having an orgasm." Id., pp. 399-413.
4. The June 1999 incident caused Ms. Nicolleti, who was in love with Mr. Faieta and was Mrs. Vargas' director supervisor, to become very angry, looked viciously and with jealousy towards Mrs. Vargas; id. pp. 402-407; Ms. Annette Aldahondo's depo pp. 40-44,79, 81, 114.
5. On June 1999, Ms. Nicolleti angrily ordered Mrs. Vargas to leave the office; Vargas' depo p. 408.
6. Another incident with Mr. Faieta occurred while plaintiff was working at the Puerto Rico Manufacturers Association. Mrs. Vargas was standing on a chair placing a paper slogan when Mr. Faieta climbed on the same chair and made physical contact with Mrs. Vargas' lower body parts. Ms. Nicolleti observed the incident and became disgusted and angry towards plaintiff; Vargas' depo, pp. 466-468, 476.
7. On various other occasions, Mr. Faieta placed his hands and arms on Mrs. Vargas upper torso and waist and would kiss Mrs. Vargas on the cheek and caress her hand; Id. pp. 399, 576.
8. As a result of the incidents with Mr. Faieta, Mrs. Vargas submits she was object of reprisals and retaliations that affected her conditions of employment.
Contrary to defendant's averment that Mrs. Vargas was promoted in her work, plaintiff contests that:
9. Mrs. Vargas was moved to another office and position, distant from the executive office, to avoid Mrs. Vargas having any communication with Mr. Faieta; id. at pp. 442-443.
10. At the new assignment, Mrs. Vargas was in a very small office and in a cramped space; id. pp. 355, 451, 462; Exhibit G, photographs of the premises taken during a Court ordered inspection.
11. Mrs. Vargas had to share the office space with five (5) other employees and their work stations were without windows and located in the Traffic Department Area which was extremely noisy and very busy; Vargas' depo pp. 451, 462.
12. At the time Mrs. Vargas was transferred to the Special Accounts Department, there was no organization and no full power to conduct its daily affairs; id. p. 444.
13. Mrs. Vargas was not provided with any manual or guideline or granted any true authority to enable the new department to comply with its assigned goals; to include, coordination of all inbound freight essential activities, tracking freight, custom declaration, payment of excise and tariff taxes, seeking and contracting ground transportation and coordinating payment of air freight charges of Caribbean Transportation's top customers in order to avoid losing them to the competition; Id. pp. 444-454, 523-527.
14. Mrs. Vargas was not provided with any training or guidance regarding her new position, having four (4) employees to supervise without supervisory experience or academic training, but was overnight promoted from Secretarial Assistant to Ms. Nicolleti to head of the Special Accounts Department. Id.
15. Mrs. Vargas was not provided with any support from management and from her peers to comply with the newly assigned position. She was left out of many office conferences and staff meetings; Vargas' depo pp. 646-647, 650, 651, 660, 661-662, 675.
16. Regarding the incident with Mr. Hugo Villanueva, Mrs. Vargas stated she was totally ignored by Caribbean Transportation when she came back from the State Insurance Fund; Exhibit F, Hugo Villanueva's deposition testimony.
17. Ms. Nicolleti initiated a demeaning and humiliating conduct towards Mrs. Vargas which included shouting and denigrating her in front of her fellow employees, exhibiting violent conduct; Mr. Edwin (Eddie) Pérez' and Ms. Annette Aldahondo's deposition testimony.
18. In the presence of other managers, Ms. Nicolleti — in a very angry and violent manner — threw a pencil towards Mrs. Vargas; Exhibit E, deposition testimony of Mr. Carlos Crawford pp. 47-50, 65; Mrs. Vargas' depo pp. 551, 609.
19. Ms. Nicolleti demeaned Mrs. Vargas in front of other employees by saying she was ignorant or and/or stupid; Mr. Pérez' and Ms. Aldahondo's depositions.
20. Ms. Nicolleti prohibited Mrs. Vargas from having any communication with Mr. Faieta suggesting they had a personal relationship; Vargas' depo pp. 395, 398, 467, 538-539.
21. Ms. Nicolleti on various occasions accused Mrs. Vargas of having e-mail communications with Mr. Faieta without her knowledge or consent, even if sent for official business; Id., p. 458.
22. After the incident with Mr. Faieta, Ms. Nicolleti created a hostile and intimidating work environment by giving Mrs. Vargas vile and intimidating looks; throwing objects at Mrs. Vargas, yelling at her with bad words, making sexual demeaning gestures with her hands by using her middle finger in a pointed way and making comments about the use of vibrators; id. pp. 314-318, 628, 630, 632, 597, 311, 352, 354-355.
23. Ms. Nicolleti's public hostile conduct towards Mrs. Vargas allowed other managers to do likewise since it displayed a permissive atmosphere of animosity. The related incidents of Mr. Villanueva, a close friend of Ms. Nicolleti, evidenced the use of foul language, hostile behavior, slamming of doors and telephone and events that caused Mrs. Vargas to feel physically threatened because of possible assault and battery; Vargas' depo pp. 514, 516-521; Eddie Tirado's depo testimony.
24. Mrs. Vargas was subject to hostile environment predicated on bullying and harassment even by third parties, non-employees of Caribbean Transportation, including the incident with Ms. Lydia Rosario, Customs Broker, who was the sister of Mr. Juan Rosario, Caribbean Transportation's Operation Manager and second highest ranking officer; Id. 670-771.
25. Around August of 2000, other co-workers and managers contributed to the sexual harassment against Mrs. Vargas by making sexual jokes and comments; Vargas' depo. pp. 664-665, 668.
26. The situation at work caused Mrs. Vargas a major depression, severe, with psychotic features that caused her to seek treatment and medication; Exhibit H, Dr. Carlos De Jesus' expert report.
27. From November of 2000 to the present, Mrs. Vargas has been hospitalized on two (2) occasions at psychiatric hospitals and was approved disability benefits by the Social Security Administration for severe major depression. Id.
28. The report of the expert medical witness and treating physician, Dr. Carlos De Jesus, found that Mrs. Vargas' major depression was caused by the work environment. Id.
29. Plaintiff's opposition submits the deposition testimony of Mr. Carlos Crawford, Station Manager of Caribbean Transportation, would establish Ms. Nicolleti's action of throwing a pencil/pen/mechanical pencil towards plaintiff, that was picked up by Mr. Juan Rosario and returned to Ms. Nicolleti; Exhibit E.
30. Plaintiff's opposition submits the deposition testimony of Ms. Annette Aldahondo, former employee of Caribbean Transportation, would establish the hostile work environment she witnessed while she worked at the Tax Department with plaintiff; Exhibit C.
31. Ms. Aldahondo's testimony would also establish that Ms. Nicolleti held a constant, severe, and hostile environment towards Mrs. Vargas and allowed and stimulated other persons in management to mimic such behavior; Id., pp. 36-37, 55-58, 58-59, 79.
32. Mrs. Aldahondo's testimony would also establish that the interaction between the employees with the Human Resource's Department at Caribbean Transportation was not adequate and barred employees from pursuing their rights; Id. p. 60.
33. Mrs. Aldahondo would also testify as to the difference between how Mr. Faieta interacted with woman who worked at Caribbean Transportation and his interaction with men. For example, Mr. Faieta would greet women by touching them physically, making them feel like "been kneaded like dough", placing one hand on the woman's shoulder and the other hand on her waist and connecting his body to women while he touched them, squeezing their body and coming closer to a woman's body so both bodies would unite; while saluting men with a simple hand shake; Id. pp. 42-43, 73-75, 77.
34. Mrs. Aldahondo knew that Ms. Nicolleti had an interest in Mr. Faieta and was able to observe them interact both at work and out of the work site; Id. pp. 46-47.
35. Mr. Edwin (Eddie) Pérez, an officer and employee of Caribbean Transportation, was also sexually approached by Ms. Nicolleti and he resigned to his last position as a Security Manager; Exhibit D, Tirado Pérez' depo pp. 22-23, 26-27, 42-43, 99-116, 103, 144-149, 169.
36. Mr. Pérez observed how Mr. Faieta saluted female employees putting his arms around them and winking; Id., pp. 170-171.
Plaintiff's opposition and response to defendant's Motion for Summary Judgment (Docket Nos. 111 and 125) contest defendant's assertions that plaintiff's claims of harassment by Ms. Nicolleti amount to a claim of sexual harassment for same sex discrimination and/or for an issue of jealousy between two (2) females that was not grounded on a discriminatory animus but personal animosity. Accordingly, defendant's proposition, in light of plaintiff's disputed genuine issues of material facts, does not stand muster.
We note that defendant has presented no argument or indicia to rebut plaintiff's complaint as to claims related to Mr. Rick Faieta for his harassing conduct towards female employees, and Mrs. Vargas in particular. Caribbean Transportation has addressed its request for summary disposition solely as to plaintiff's claims for Ms. Nicolleti's acts, which are discussed above (Docket No. 92, 94, 117).
Upon review of the totality of the circumstances present in this case we find that plaintiff has sufficiently pleaded her claim. Plaintiff described incidents of inadequate physical contact including rubbing, touching, kissing or caressing by Mr. Faieta which, in the context described by plaintiff, may be perceived as sexually charged. As well, plaintiff has described the way Ms. Nicolleti treated her in a violent humiliating and demeaning manner shouting and denigrating her in front of other employees. In particular, plaintiff described different incidents in which Ms. Nicolleti looked at her in an intimidating manner, made sexual gestures with her hands, threw objects at her, yelled at her, slammed doors and the telephone, among others. These situations may be perceived as a hostile work environment. It is important to note that Mr. Faieta was the President of the company and Ms. Nicolleti was plaintiff's immediate supervisor. Thus, plaintiff and Ms. Nicolleti were in constant daily contact with each other. Moreover, plaintiff has described incidents in which other co-workers and managers made sexual jokes and comments contributing to the charged atmosphere.
Based on the above, reviewing the evidence in light most favorable to plaintiff and resolving all reasonable inferences in her favor, the Court finds plaintiff has presented sufficient evidence to raise a genuine issue of material fact regarding whether the conduct of Ms. Nicolleti and Mr. Faieta created a hostile work environment. Defendants' conduct towards plaintiff raises a question of whether plaintiff was subjected to sexual harassment that reasonably interfered with her work performance. See generally Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002). Moreover, because the very nature of hostile environment claims is that they are rooted in acts or events that over time culminate to create an unlawfully hostile environment, the question of when defendants' offensive conduct violated Title VII is often better resolved by the fact finder at trial and not on summary judgment. Munroe v. Compaq Computer Corp., 229 F.Supp.2d. 52, 61 (D.N.H. 2002). Because this determination is "fact specific" Conto v. Concord Hospital Inc., 265 F.3d 79, 81 (1st Cir, 2001), ordinarily "it is for the jury to weigh those factors and decide whether the harassment was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her employment." Goya, 304 F.3d at 19. See also, Che v. Massachusetts Bay Transportation Authority, 342 F.3d 31, 40 (1st Cir. 2003) ("[a]s a general matter, these are questions best left for the jury.")
Furthermore, as to employer liability, in the instant case Caribbean Transportation has submitted it is entitled to summary judgment because it had an anti-harassment policy that it provided to its employees, including Mrs. Vargas, at the time she began working, an employees' handbook advising of a no-tolerance harassment policy. Deft's Exhibit D18; sworn statement of Ms. Mary Jane Lucey ¶ 23.
"[T]he mere existence of a grievance procedure . . . coupled with [plaintiff's] failure to invoke that procedure does not serve to insulate an employer from liability on summary judgment." Robles v. Cox Co., Inc., 154 F.Supp.2d 795, 805 (S.D.N.Y. 2001) (quoting Meritor Savings Bank, 477 U.S. at 72); see Bennett v. Progressive Corp., 225 F.Supp.2d 190, 206 (N.D.N.Y. 2002) ("Indeed, merely showing that a plaintiff grasped the employer's management hierarchy, and knew where to direct general complaints, is insufficient to grant an employer's motion for summary judgment."). Similarly, "the mere demonstration of the existence of a written sexual harassment policy, though an important consideration, is in no way dispositive." Bennett, 225 F.Supp.2d at 206 (citing Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001)). "Instead, the policy should alert employees to management interest in specifically correcting sexual harassment" and "must be reasonably disseminated to the employees." Id. (citations omitted); see Hill v. The Children's Village, 196 F.Supp.2d 389, 398 (S.D.N.Y. 2002) ("[M]erely possessing a written sexual harassment policy is insufficient to demonstrate reasonable care in preventing sexual harassment; the written policy must also be reasonably promulgated.")
The employers' manual submitted by defendant in this case, which now serves as grounds to elude its supervisory responsibility for harassment, presents an anemic showing for Title VII compliance, wherein plaintiff was expected to resort first to her immediate supervisor and finally to the company President, precisely the two (2) alleged harassers in Mrs. Vargas' case. No information was provided to employees as to their right to resort to government administrative claims or for filing of a legal action to redress their complaints. Exhibit D-18, pp. 40-43. Additionally, Mrs. Vargas' testimony in opposition to summary judgment avers the Human Resource branch at Caribbean Transportation was toothless, and the wishes of Ms. Nicolleti prevailed, as well as having verbally addressed Ms. Mary Jane Lucey of events as these transpired, with no action whatsoever being taken. Vargas' depo pp. 45-47, 93-96.
Thus, there are genuine issues of fact as to whether the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and whether plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid the harm otherwise.
Finally, we note defendant Caribbean Transportation has citedCrowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002), a decision which does not deal with a summary disposition but with a trial. Still, in dicta the opinion would not seem favorable to defendant's position since the Court of Appeals for the First Circuit ruled therein that the issue on whether co-employee's conduct was subjectively abusive was for the jury, as well as the issue whether co-employee's encounters with employee were objectively severe and pervasive enough to create hostile work environment was for jury; and the jury's finding on whether the employer knew or should have known of harassment was supported by sufficient evidence. Crowley further ruled that consideration of the entire scope of a Title VII hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period. Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq.
Defendant has also cited O'Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001) which does not seem to support defendants' position either. The Court of Appeals for the First Circuit therein ruled that the accumulated effect of incidents of humiliating, offensive comments directed at women, and work-sabotaging pranks, taken together, can constitute a gender-based hostile work environment employment discrimination claim under Title VII. Additionally, evidence that is not overtly sexual in nature may be considered, together with overtly sexual discriminatory conduct, in determining whether there was hostile work environment based on gender, in violation of Title VII. In addition, the Court of Appeals for the First Circuit propounded that Courts should avoid segregating a Title VII hostile work environment claim based on gender, by dividing conduct into instances of sexually oriented conduct and instances of unequal treatment not overtly involving sex, then discounting the latter category of conduct as defendant's summary request attempts. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
In sum, claims by plaintiff may not be summarily disposed since there is evidence to establish the required prima facie case and there are genuine issues in controversy of a prevalent sexual harassment behavior at work, that was pervasive and affected plaintiff's conditions of employment. Thus, we find that the evidence on record is sufficient for a reasonable fact finder to rule that plaintiff was subjected to a hostile work environment actionable under Title VII. Accordingly, it is recommended that Caribbean Transportation's Motion for Summary Judgment be DENIED as to the claims of plaintiff Vargas.
C. Claims by co-plaintiffs Mr. Arcides Hernández Medina, the Conjugal Partnership Constituted by Mrs. Vargas and her Husband, and their two Minor Children.
Defendant Caribbean Transportation submits the complaint fails to evoke supplemental jurisdiction and/or to plead a request for relief under any state law for the claims of co-plaintiffs Mr. Arcides Hernández Medina, the conjugal partnership constituted by plaintiff Vargas and her husband, and their two (2) minor children.
Title VII extends its protection only to "employees" and other victims of discrimination, 42 U.S.C. § 2000e(f), not to relatives of the discriminated individual. See López v. Padilla, 73 F.Supp.2d 145, 151 (D. Puerto Rico 1999).
A perusal of the complaint clearly shows plaintiffs claimed jurisdiction solely under 28 U.S.C. sec. 1331, federal question, and under Title VII of the Civil Rights Act. Section 1331 clearly limits the jurisdiction of federal courts as to subject matter jurisdiction. On the other hand, Title VII requires an employee-employer relationship and/or discrimination acts that may affect third parties within the limited interpretation of its provisions.
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). See Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997).
Thus, in the absence of any other jurisdictional grounds, it is recommended that summary disposition be GRANTED, as requested by defendant, for the claims filed by co-plaintiffs Arcides Hernández Medina, the conjugal partnership constituted by plaintiff Vargas and her husband, and their two (2) minor children.
V. CONCLUSION
In light of the above discussed, it is recommended that defendant Caribbean Transportation's request for summary judgment be GRANTED in part and DENIED in part. Accordingly, it is recommended that summary judgment be GRANTED as to the claims of co-plaintiffs Arcides Hernández Medina, the conjugal partnership constituted by plaintiff Vargas and her husband, and their two (2) minor children; and be DENIED as to all claims of plaintiff Vargas.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").