Perez v. Horizon Lines, Inc. ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2546
VLADIMIR PÉREZ,
Plaintiff, Appellant,
v.
HORIZON LINES, INC., and GRACE ACEVEDO,
in her personal and official capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Godwin Aldarondo-Girald, with whom Aldarondo Girald Law
Office and Ericson Sanchez Preks were on brief, for appellant.
Carlos E. George-Iguina, with whom Alberto J. Bayouth-
Montes and O'Neill & Borges LLC were on brief, for appellees.
September 30, 2015
HOWARD, Chief Judge. Appellee Horizon Lines, Inc.
("Horizon") terminated Appellant Vladimir Pérez for engaging in
sexually inappropriate workplace conduct. After he was
terminated, Pérez then sued both Horizon and Grace Acevedo, the
company's Puerto Rico Human Resources manager, claiming that his
termination was unjust and that he had been the victim of sexual
harassment by Acevedo. The district court granted the defendants'
motion for summary judgment, and we affirm.
I.
We recount the facts and draw all reasonable inferences
in the light most favorable to Pérez, the non-moving party.
Statchen v. Palmer, 623 F.3d 15, 16 (1st Cir. 2010). Horizon
employed Pérez from 1998 to 2010. At the time of his termination,
he served as Horizon's Senior Yard Manager at the company's San
Juan dock. As part of his employment, Pérez agreed to abide by
the company's Code of Business Conduct and Ethics. That Code
provided in pertinent part that: "Sexual harassment . . .
includ[ing] unwelcome conduct of a physical, verbal, or visual
nature that creates a hostile or offensive environment is
unacceptable." The Code further defines sexual harassment as
including: "sexual innuendo, suggestive comments, insults, humor
and jokes about sex, sexual propositions and threats . . . obscene
gestures," or physical "touching such as pinching, brushing the
body, and other similar behavior."
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On October 15, 2010, Grace Acevedo, Horizon's Human
Resources Manager in Puerto Rico, received an anonymous e-mail
alleging that Pérez had indecently exposed himself, although the
e-mail did not specify whether the incident took place on Horizon
property. Attached to the e-mail was a photograph depicting a man
from the waist down exposing his genitals (the "lower-torso
photograph"). Either that same day or sometime thereafter (the
record is unclear), Acevedo also received what was purported to be
the top half of the same photograph (the "upper-torso photograph").
That image depicted a man's upper torso and face, identifiable as
Appellant Pérez.
Acevedo notified Mark Blankenship, the company's North
Carolina-based Vice President of Human Resources, about the
photographs. Blankenship alerted Richard Rodriguez, the Puerto
Rico Port Manager, that one of his employees may have taken the
photograph while on Horizon property. Rodriguez compared the tile
coloring and door stain depicted in the lower-torso photograph
with various locations throughout the dock, and determined that
the photograph must have been taken in the dock's Marine Building.
Because the furniture in the photograph differed, however,
Rodriguez concluded that it was at least a year old. On October
19, Rodriguez sent an e-mail to Blankenship reporting that the
photograph was likely taken on company property. Shortly
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thereafter, the two men discussed the matter while Rodriguez was
in Charlotte on business.
Acevedo later conducted a formal investigation. On
November 5, she met with Pérez and Jacob Wegrzyn (Horizon's General
Manager in Puerto Rico) and confronted Pérez with the two
photographs. Pérez admitted that the upper-torso photograph was
of him, but denied that the lower-torso photograph depicted him.
Horizon placed Pérez on paid administrative leave following the
meeting.
Over the next ten days, Acevedo interviewed several of
Pérez's co-workers about the photographs. One co-worker, Victor
Ortega, admitted to taking both photographs and stated that they
were of Pérez. Other Horizon employees either identified Pérez as
the individual depicted in the lower-torso photograph or stated
that they had heard about the photograph and had been told that it
depicted Pérez. In addition, employees recounted a number of other
occasions when Pérez had allegedly exposed his genitals to his co-
workers in the workplace. Employees also described a general
atmosphere of sexually-charged horseplay among Horizon's
employees, in which Pérez participated.
Acevedo informed Blankenship about the results of her
investigation. After consulting with the corporation's Compliance
Committee, Blankenship decided to terminate Pérez's employment
effective November 16. Blankenship informed Pérez by letter that,
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"[b]ased on the evidence obtained," the company had determined
that Pérez had "exhibited behavior on numerous occasions that is
in strict violation [of] Horizon Lines' Code of Business Conduct
Policy." Pérez sent Blankenship two follow-up e-mails requesting
additional information and contesting the employment decision, but
Blankenship twice reiterated his decision. In those
communications, Pérez never alleged he had been subjected to sexual
harassment.
A month later, on December 21, 2010, Pérez again
challenged his termination in writing, this time through counsel.
For the first time, Pérez also alleged that Acevedo had sexually
harassed him. Specifically, he claimed that Acevedo had invited
him to her home "with clear intentions of having sex" and had
attempted to force Pérez to dance with her at company social
events.
Pérez later filed a sexual harassment charge with the
Equal Employment Opportunity Commission, and the EEOC issued him
a right to sue letter. He then filed a complaint in federal court
asserting sexual harassment and gender discrimination under Title
VII and parallel claims under Puerto Rico law. Pérez also claimed
unjust termination under Puerto Rico's Law 80. As developed before
the district court, Pérez's sexual harassment claim broadened to
focus primarily on four sets of events that allegedly took place
between 2006 and 2010.
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The first set of incidents involved two similar events
at Horizon's annual Christmas parties in 2006 and 2007. Pérez
testified during his deposition that, on both occasions, Acevedo
urged him to dance with her and attempted "to drag him to the dance
floor with force by taking him by the arm and pulling him." Pérez,
made uncomfortable by Acevedo's requests, rejected them.
Second, Pérez claims that a sexual-innuendo-laced event
took place at a bar in 2006 or 2007 following a Horizon company
softball game. When Pérez was unable to locate his car keys,
Acevedo admitted that she had placed them in her pants. She
allegedly told Pérez that he would have to return to her home to
retrieve them. Pérez balked at the request, and Acevedo did not
return Pérez's keys for over an hour.
The third incident took place in December 2009 during an
early morning meeting in Acevedo's office. Pérez claims that
Acevedo called him to her office at 7:00 a.m. Although Pérez
believed the meeting was work-related, Acevedo instead engaged in
an elaborate "sea shell reading," which involved divining aspects
of Pérez's life from the way in which the shells landed on a straw
mat. Acevedo testified in her deposition that Pérez requested the
reading, but Pérez denies that characterization. Pérez testified
that during the reading Acevedo grabbed his hands and touched his
arms in a sexually suggestive fashion.
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The final incident involved Acevedo's almost weekly
requests, throughout 2010, that Pérez bring cornbread and pastries
to Acevedo's office. Pérez claims that Acevedo asked him to
personally bring the cornbread and pastries to her office and to
bring them "hot." He interpreted her request as an appeal for
sexual favors, in part because Acevedo's office was in a different
location than his own workplace and in part because of the prior
sea shell reading in her office.
Following discovery, the district court granted the
defendants' motion for summary judgment, rejecting Pérez's sexual
harassment and gender discrimination claims and concluding that
Horizon had cause to terminate him under Law 80. This timely
appeal followed.
II.
We review the district court's grant of summary judgment
de novo, and will affirm if the record reveals "no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a); Pierce v. Cotuit Fire
Dist., 741 F.3d 295, 301 (1st Cir. 2014). Because the parties
dispute certain aspects of the factual record before us, we
reiterate that "the mere existence of some alleged factual dispute"
among the parties "will not defeat an otherwise properly supported
motion for summary judgment" unless there is a "genuine issue of
material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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247-48 (1986) (emphasis in original). As explained below, several
of Pérez's contentions rely only on conclusory allegations and
speculation to stay afloat; such allegations, without more, cannot
create a genuine issue of material fact. See Ahern v. Shinseki,
629 F.3d 49, 54 (1st Cir. 2010).
A. The Federal Claims
We begin with Pérez's federal claims brought under Title
VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et
seq. Pérez contends that Acevedo subjected him to consistent
sexual harassment and asserts that Acevedo initiated the
investigation that led to his termination not because of his
alleged infractions, but because he had rebuffed her sexual
advances. He relies on both a hostile work environment theory and
a quid pro quo theory of sexual harassment. See generally O'Rourke
v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)
(distinguishing between the theories). We start, as the district
court did, by considering the most recent event -- the cornbread
and pastry requests -- understanding that the context and meaning
of those requests are informed by the earlier incidents.1
Pérez faults the district court for concluding that there
1
were only four instances of alleged sexual harassment. Yet,
because he fails to identify or offer meaningful argumentation
about any other instances that might contribute to his harassment
claims, he has waived any reliance on them. See United States v.
Zannino, 895 F.3d 1, 17 (1st Cir. 1990).
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To proceed on a quid pro quo theory of sexual harassment,
Pérez must show that Acevedo used "her superior position to extract
sexual favors from a subordinate employee, and if denied those
favors, retaliate[d] by taking action adversely affecting
[Pérez's] employment." Valentin-Almeyda v. Municipality of
Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006) (quoting O'Rourke, 235
F.3d at 728). Pérez claims that Acevedo warned him that she had
Blankenship "eating out of her hand" and that "you do not know
when you are going to need a favor." Pérez characterizes these
statements as threats portending negative consequences if he
failed to comply with Acevedo's advances.
Even accepting that Acevedo made such statements, the
undisputed record here fails to support an inference that the
cornbread requests were sexual demands directed at Pérez. Pérez's
own interrogatory answers state that Acevedo requested that he
send "union member employee 'Eleuterio Lopez'" to her office to
fulfill her requests -- not that Pérez deliver the pastries
himself. Pérez similarly testified during his deposition that
López was "requested by [Acevedo] because she trusted him." No
other evidence in the record contradicts this suggestion. See
Libertad v. Welch, 53 F.3d 428, 435 (1st Cir. 1995) (noting that
the non-moving party must adduce "sufficient evidence supporting
the claimed factual dispute" that would require a factfinder to
definitively resolve "the parties' differing versions of the truth
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at trial"). López confirmed during his own deposition that he,
and not Pérez, brought the pastries and cornbread to Acevedo on a
weekly basis at Pérez's behest. And, although Pérez now claims
that Acevedo asked him to deliver the cornbread, Pérez plainly
conceded at multiple points during his deposition that he never
once delivered them and sent López instead. Because the cornbread
request was not even directed at Pérez, no reasonable jury could
conclude that he has established that those requests constituted
an implicit demand for sexual favors that he could have been
punished for rebuffing. To the extent that Pérez seeks to rely
only on the much earlier incidents of alleged harassment standing
on their own, we find those events far too remote to support his
quid pro quo theory.2 Accordingly, that theory fails.
As to his hostile work environment theory of sexual
harassment, Pérez must show that his workplace was "permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of [his]
2 Although we have not definitively resolved whether evidence
of a close temporal proximity, alone, could support a quid pro quo
claim in some circumstances, see Gerald v. Univ. of P.R., 707 F.3d
7, 23 n.9 (1st Cir. 2013), the other instances of alleged
harassment Pérez relies on here took place between eleven months
and four years prior to his termination. Those events are too
remote, without more, to support an inference that Acevedo
retaliated against Pérez on their account. Cf., e.g., Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (nine-month gap
between age discrimination complaints and termination too remote
to establish retaliation).
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employment and create an abusive working environment." Kosereis
v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003) (quoting Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). There is no
"mathematically precise test" for determining when harassment
becomes sufficiently severe or pervasive or when a work environment
"would reasonably be perceived, and is perceived, as hostile or
abusive." Harris, 510 U.S. at 22; accord, e.g., Marrero v. Goya
of P.R., Inc., 304 F.3d 7, 18-19 (1st Cir. 2002). Instead, we
consider all of the "attendant circumstances including the
frequency of the discriminatory conduct; its severity; whether it
was physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interfered with an
employee's work performance." Pomales v. Celulares Telefonica,
Inc., 447 F.3d 79, 83 (1st Cir. 2006).
Even if a reasonable jury could conclude that Acevedo's
requests that Pérez have another employee deliver cornbread and
pastries to her office was harassing, no reasonable jury could
conclude that those requests were sufficiently severe or
objectively offensive to prove actionable. For one thing, on the
scale of severe conduct, Acevedo's request falls considerably
below even the mildest conduct that we have found actionable under
Title VII. See, e.g., Ponte v. Steelcase Inc., 741 F.3d 310, 320-
21 (1st Cir. 2014) (citing cases found sufficiently severe
involving, for example, daily, humiliating "sexual remarks and
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innuendos" and other inappropriate sexual contact including
blowing in an employee's ear and standing over her "with their
bodies squarely touching as she made copies"). Viewed most
favorably to Pérez, Acevedo's requests could be considered subtle
instances of sexual innuendo. But her requests involved no
physical touching or threatening comments. Nor was any vulgar or
sexual language involved. But see Fontánez-Núñez v. Janssen Ortho
LLC, 447 F.3d 50, 57 (1st Cir. 2006) (noting that even vulgar
comments "inappropriate to the workplace" or "completely
unprofessional" may be insufficiently severe). While Acevedo's
suggestion that Pérez instruct others to bring her cornbread and
pastries may have made Pérez uncomfortable, "discomfort is not the
test" for an actionable harassment claim. Ponte, 714 at 320. No
reasonable jury could find Acevedo's requests severe.
Pérez also acknowledges that Horizon's employees often
asked others to perform personal errands. This context is
informative, and is ultimately problematic for Pérez. We assess
"the objective severity of harassment . . . from the perspective
of a reasonable person in the plaintiff's position, considering
all the circumstances" and giving "careful consideration" to "the
social context in which particular behavior occurs and is
experienced by its target." Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998) (internal quotation marks omitted).
Thus, even if Acevedo's requests for personal errands contravened
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company policy, in the particular context of Horizon's San Juan
dock an employee in Pérez's position is unlikely to have viewed
Acevedo's request as something out of the ordinary. This is all
the more true given Pérez's acknowledgement that Acevedo requested
that he send another employee to purchase and deliver the pastries
and that Pérez never once ran the errands himself. This fact
considerably deflates Pérez's efforts to cast the requests as
"objectively . . . offensive, such that a reasonable person would
find it hostile or abusive." Ponte, 741 F.3d at 320. A Horizon
employee may have objectively viewed Acevedo's requests as
unprofessional, but unprofessional conduct is simply "not the
focus of discrimination laws." Lee-Crespo v. Schering-Plough Del
Caribe Inc., 354 F.3d 34, 46-47 (1st Cir. 2003).
Nor has Pérez supplied any evidence from which a jury
could infer that Acevedo's requests "unreasonably interfered with
[his] work performance." Ponte, 741 F.3d at 320. Although he
baldly asserts that Acevedo's requests intimidated him and led him
to decide that he would never return to her office alone, he makes
no effort to explain how the lack of in-person visits to Acevedo's
office affected his work performance. Indeed, the only evidence
he does supply demonstrates precisely the opposite. Rodriguez and
others consistently provided Pérez with positive performance
reviews throughout the time period during which he claims he
endured harassment, indicating that Acevedo's conduct did not
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negatively affect his ability to work as a Yard Manager. See
Pomales, 447 F.3d at 84. Thus, whatever the impact of Acevedo's
behavior on Pérez, no reasonable jury could find it sufficiently
severe to have negatively affected his job performance.
Ultimately, the undisputed facts here show that the
cornbread requests fall "beyond Title VII's purview" because, even
as informed by the prior putative incidents of harassment, the
requests did not contribute to the creation of "an objectively
hostile or abusive work environment." Harris, 510 U.S. at 21. As
the district court noted, the other incidents that Pérez alleges
contributed to the hostile work environment were, on their own,
time barred. See Rivera-Diaz v. Humana Ins. of P.R., Inc., 748
F.3d 387, 390 (1st Cir. 2014) (noting that in a deferral
jurisdiction such as Puerto Rico a plaintiff must file an EEOC
charge within 300 days following the unlawful employment
practice). Pérez invokes the continuing violations doctrine and
points to the cornbread incident as a discriminatory "anchoring
act" falling within the limitations period that would allow him to
recover for these otherwise time-barred acts. Yet, an "anchoring
act" must itself be discriminatory. Lockridge v. Univ. of Me.
Sys., 597 F.3d 464, 747 (1st Cir. 2010). It must be one that
"contribut[ed] to that hostile environment." Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 105 (2002). Because the cornbread
requests are not actionable as a matter of law, Pérez's effort to
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invoke the continuing violations doctrine necessarily fails.3 See
Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 222
(1st Cir. 1996) ("Common sense teaches that a plaintiff cannot
resuscitate time-barred acts, said to be discriminatory, by the
simple expedient of linking them to a non-identical, non-
discriminatory, non-time barred act." (emphasis added)).
Finally, Pérez brings a claim of gender discrimination,
which the district court properly rejected. Pérez characterizes
Horizon's proffered reasons for his termination as a "sham" and
claims that, in light of Acevedo's own alleged sexual advances
toward him, Horizon has plainly treated Acevedo (a woman)
differently than him (a man). But in the face of Horizon's
"legitimate, nondiscriminatory reason" for terminating him, Pérez
must do more than simply "elucidate specific facts which would
enable a jury to find" Horizon's justification "a sham."
Santangelo v. N.Y. Life Ins. Co., 785 F.3d 65, 70 (1st Cir. 2015)
3 Pérez also contends that equitable tolling should apply
because he would have had to direct any complaints to Acevedo.
But Pérez acknowledged during his deposition that Horizon
employees had access to an "ethics hotline" that bypassed Acevedo
and went directly to individuals at Horizon's Charlotte
headquarters. Without evidence to substantiate his fear that his
complaints through the hotline would have proved unavailing, this
record does not present the extraordinary circumstances necessary
to apply the equitable tolling doctrine. See, e.g. Rivera-Diaz,
748 F.3d at 390; Abraham v. Woods Hole Oceanographic Inst., 553
F.3d 114, 119 (1st Cir. 2009) (noting that a plaintiff must show
that "circumstances beyond his or her control precluded a timely
filing").
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(internal quotation marks omitted). He must point to some evidence
from which a jury could conclude that his termination was "a sham
intended to cover up the employer's real motive." Id. Simply
stated, he points us to no evidence, beyond rhetoric and empty
assertions, to suggest that if there was any differential
treatment, "gender was the reason for that difference." Rivas
Rosado v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002).
Accordingly, the district court properly granted summary
judgment to the defendants on Pérez's federal claims.
B. The Commonwealth Claims
Pérez also pursues several Puerto Rico claims. Only his
Law 80 claim merits extended discussion.4
4 We can easily resolve Pérez's claims under Law 100 and Law
17 -- Puerto Rico's Title VII analogues prohibiting employment
discrimination and sexual harassment, respectively. See, e.g.,
Gerald v. Univ. of P.R., 707 F.3d 7, 28 (1st Cir. 2013); Pérez-
Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 26 n.10 (1st Cir.
2011). The parties here agree that the commonwealth claims differ
from their federal counterparts only with respect to the burden
shifting framework that applies. Cf. Dávila v. Corporacion de
P.R. Para La Difusion Publica, 498 F.3d 9, 18 (1st Cir. 2007)
(noting that "as applied to age discrimination," Law 100 "differs
from the ADEA only with respect to how the burden-shifting
framework operates"). That framework follows the Law 80 burden
shifting framework, see Alvarez-Fonseca, 152 F.3d at 28, and as we
explain below no reasonable jury could conclude that Horizon lacked
cause to terminate Pérez. Thus, to succeed on his Law 100 claim
Pérez must show that Horizon's proffered reason was pretext
specifically designed to mask gender discrimination. For the same
reason that Pérez's Title VII gender discrimination claim fails,
"it suffices to reiterate" that Pérez has "adduced no significantly
probative evidence that his discharge was motivated by" his gender.
Dávila, 498 F.3d at 18. As to the Law 17 claim, Pérez has neither
provided developed argumentation about the burden shifting
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Law 80 "modifies the concept of at-will employment" and
provides monetary compensation to employees who are employed
"without a fixed term" and who are discharged "without just cause."
Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 7 (1st Cir. 2009);
see P.R. Laws Ann. tit. 29, § 185a. The statute specifies several
grounds that are considered good cause for termination including,
as relevant here, when a "worker indulges in a pattern of improper
or disorderly conduct" or when an employee has engaged in "repeated
violations of the reasonable rules and regulations established for
the operation of the establishment, provided a written copy thereof
has been opportunely furnished to the employee." P.R. Laws Ann.
tit. 29, § 185b. The statute establishes that, by contrast, a
"discharge made by the mere whim of the employer or without cause
relative to the proper and normal operation of the establishment
shall not be considered . . . good cause." Id.
Law 80 applies a burden shifting framework that differs
from the Title VII framework. Under Law 80, a plaintiff must both
prove that he was discharged and allege that his dismissal was not
justified. Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co.,
152 F.3d 17, 28 (1st Cir. 1998). Law 80 then "shifts the burden
of proof to the employer to show that the discharge was justified"
framework that should apply nor identified any cases explaining
how a Law 17 claim would be resolved differently than his federal
claims. For that reason, his Law 17 claim fails as well. See
Zannino, 895 F.2d at 19.
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by a "preponderance of the evidence." Id. (citing P.R. Laws Ann.
tit. 29, § 185k). If the employer shoulders that burden, the
employee must then rebut the showing of good cause. Id.
We have not had occasion to precisely delineate the exact
showing necessary for an employer to establish just cause under
Law 80. Nevertheless, we think it sufficiently clear that to show
just cause an employer need only demonstrate that it had a
reasonable basis to believe that an employee has engaged in one of
those actions that the law identifies as establishing such cause.
See P.R. Laws Ann. tit. 29, § 185b.
The text of Law 80 supports this reading. By providing
that an employer's decision to discharge an employee must not be
"made by the mere whim of the employer or without cause relative
to the proper and normal operation of the establishment," Law 80
focuses on the employer's reasoned deliberation. Id. The
statement that an employer must not act on a "whim" appears to
indicate that a "just" discharge is one where an employer provides
a considered, non-arbitrary reason for an employee's termination
that bears some relationship to the business' operation.
The Puerto Rico Supreme Court appears to have adopted
this reading. When considering Law 80 claims, that court
consistently asks whether an employer's termination decision was
"whimsical or abusive" or whether the employer has acted "abruptly
or capriciously." Narvaez v. Chase Manhattan Bank, 120 P.R. Dec.
- 18 -
731, 20 P.R. Offic. Trans. 766, 773 (1988); Báez García v. Cooper
Labs., Inc., 120 P.R. Dec. 145, 20 P.R. Offic. Trans. 153, 162
(1987). Indeed, that court has otherwise resisted reading Law 80
to impose statutory penalties "just because an employer makes an
error of judgment," since such a rigid reading (which would seem
to require courts to regularly review the merits of companies'
internal investigations) would go "beyond the letter and spirit of
the law." Narvaez, 20 P.R. Offic. Trans. at 773.
Following as we must the Puerto Rico Supreme Court, we
have also focused on the employer's reasonable belief rather than
the objective veracity of the employer's action. In upholding the
entry of summary judgment under Law 80, we have noted that a
"perceived violation suffices to establish that [the employer] did
not terminate [the employee] on a whim, but rather for a sensible
business-related reason." Hoyos v. Telecorp Commc'ns, Inc., 488
F.3d 1, 10 (1st Cir. 2007) (emphasis added). We have also found
just cause, and affirmed the district court's grant of a Rule 50
motion in favor of an employer, where "although [the employee]
denie[d] it," his employer had "overwhelming evidence that he
instigated [a] fight with [his co-worker], and not the other way
around." Alvarez-Fonseca, 152 F.3d at 28.
As we have said in a similar context, courts do not "sit
as super personnel departments, assessing the merits -- or even
the rationality -- of employers' nondiscriminatory business
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decisions." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st
Cir. 1991) (considering an Age Discrimination in Employment Act
claim). In modifying at-will employment, Law 80 undoubtedly
circumscribes the reasons for which an employer may terminate an
employee. But, in doing so, we do not read the statute to require
a factfinder to regularly review the objective accuracy of an
employer's conclusions.5 To establish just cause, therefore,
Horizon merely had a burden to show that it had a reasonable basis
to believe that Pérez had "indulge[d] in a pattern of improper or
disorderly conduct" or engaged in "repeated violations of the
reasonable rules and regulations established for the operation of
the establishment." See P.R. Laws Ann. tit. 29, § 185b.
Although Pérez has shown that he was discharged, a
reasonable jury could only conclude that Horizon has met its burden
of showing just cause. Cf. Alvarez-Fonseca, 152 F.3d at 28(affirming district court's post-trial grant of Rule 50 motion
because the evidence presented at trial "would not permit a
reasonable jury" to find that discharge was unjustified);
Anderson, 477 U.S. at 250 (noting that the summary judgment
standard "mirrors the standard for a directed verdict under [Rule]
5 We have previously explained that an interpretation of Law
80 which would require that a jury always determine whether an
employer had just cause to terminate an employee "does not conform
with our understanding" of the statute. Hoyos, 488 F.3d at 6 n.4
(citing Velázquez-Fernández v. NCE Foods, Inc., 476 F,3d 6, 13
(1st Cir. 2007)).
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50(a)"). Pérez admitted that he received a copy of and was aware
of Horizon's Code of Business Conduct. Blakenship concluded that
Pérez had violated that Code after reviewing the photos,
determining in consultation with Rodriguez that those photos were
taken on Horizon property, and considering the results of Acevedo's
investigation. Acevedo's investigation not only suggested that
the lower-torso photograph depicted Pérez, but also revealed that
Pérez had exposed his genitals in the workplace on multiple
occasions and that Pérez was generally involved in an atmosphere
of inappropriate sexual horseplay and behavior.
Because Horizon established cause for Pérez's
termination, to withstand summary judgment Pérez bore the burden
to rebut that showing. Pérez expends considerable energy arguing
that Horizon came to several incorrect conclusions over the course
of its investigation. But to rebut Horizon's showing that it had
a reasonable basis to believe that he had engaged in workplace
misconduct, he must do more than show that Horizon may have gotten
some of the particulars wrong. Cf. Dea v. Look, 810 F.2d 12, 15
(1st Cir. 1987) (finding "evidence casting doubt on the correctness
of the employer's proffered reason for the discharge" insufficient
to show pretext). Instead, Pérez had the burden to adduce
probative evidence that Horizon did not genuinely believe in or
did not in fact terminate Pérez for the reason given. His numerous
claims that the evidence fails to show just cause are unavailing.
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First, he denies that the lower-torso photograph
depicted him. But that question is immaterial. Horizon was aware
that Pérez denied the photograph was of him and, in any event,
Pérez's termination letter definitively refutes his contention
that the lower-torso photograph was the sole reason for his
termination. In the letter, Blankenship stated that the
investigation had revealed that Pérez had "exhibited behavior on
numerous occasions that is in strict violation with Horizon Lines'
Code of Business Conduct Policy." (Emphasis added). Blankenship
was confronted with a plethora of evidence that Pérez had exposed
his genitals in the workplace (although Pérez denies that he ever
did) and, even now, Pérez concedes that he was involved in the
sexually-charged horseplay among the San Juan dock employees.
Horizon thus established that it had just cause to terminate Pérez
for "indulg[ing] in a pattern of improper or disorderly conduct"
or engaging in "repeated violations of the reasonable rules and
regulations established for the operation of the establishment."6
P.R. Laws Ann. tit. 29, § 185b.
6 Pérez also relies on Horizon's concession that no one ever
submitted a formal complaint about his behavior. We do not find
this fact relevant. While Horizon's Code of Conduct requires
employees to report harassing or inappropriate behavior, in the
absence of a formal complaint a company may still conclude that
certain behavior is "improper or disorderly."
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Pérez also asserts that Acevedo singled him out,
reinitiated the investigation on her own accord, and concealed
relevant information from Blankenship. He seems to assume that if
Acevedo's investigation was a sham then the decision Blankenship
made in reliance on that investigation could not constitute
adequate cause. Perhaps if the record contained some evidence
tending to show that Blankenship was aware of false information
contained in Acevedo's investigation notes or that Acevedo's
information would give a reasonable supervisor reason to doubt the
investigation's conclusions, such an argument could suffice to
defeat summary judgment. But none of the contentions Pérez relies
upon to buoy this argument are supported by the record.7
We acknowledge the several minor discrepancies in Acevedo's
7
investigation notes that Pérez claims demonstrate that the
investigation was a sham. For example, Pérez points out that
during the deposition another Horizon employee, Juan Carrero,
Carrero denied meeting with Acevedo until after "Pérez was
discharged" -- although Carrero's interview did take place after
Pérez had been placed on administrative leave, and the record does
not make clear what period Carrero meant when referring to Pérez's
"discharge." Carrero also claimed that, contrary to Acevedo's
interview notes, he had not discussed prior incidents when Pérez
had exposed his genitalia. But Carrero did confirm that he had
heard that the lower-torso photograph depicted Pérez, thus
supporting Acevedo's overall conclusion. Pérez also repeatedly
emphasizes the fact that Acevedo's son, a recently terminated
Horizon employee, first sent the lower-torso photograph to her.
Yet, when stripped of the "conclusory allegations, improbable
inferences, acrimonious invective, [and] rank speculation," Ahern,
629 F.3d at 54, we fail to see how any of these facts provide
probative evidence that something nefarious was going on or would
allow a jury to infer that Blankenship's lacked cause to terminate
Pérez, in light of repeated testimony from other employees
corroborating the general thrust of Acevedo's findings.
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First, the record does not support Pérez's speculation
that Acevedo initiated her investigation entirely on her own accord
after Rodriguez's own inquiry concluded and without direction from
Blankenship. Although Rodriguez did testify that Blankenship had
told him the initial inquiry into the lower-torso photograph's
source would not move forward, Rodriguez, Blankenship, and Acevedo
all testified that Rodriguez's inquiry was not a "formal"
investigation but was, at most, an informal inquiry undertaken on
Rodriguez's own initiative. Moreover, even Rodriguez testified
that after his meeting with Blankenship, Acevedo indicated that
she had received a second photograph, and Rodriguez surmised that
the second photo was the reason "the investigation was going to
continue." Indeed, Ortega's own deposition supports this same
interpretation of events: he stated that he provided Acevedo with
the upper-torso photograph depicting Pérez roughly two weeks after
she received the lower-torso photograph (around the time that she
started her investigation). And an e-mail from Acevedo to
Blankenship sending two photographs on November 2, 2010 -- after
Rodriguez met with Blankenship and around the time that Acevedo
began to investigate the photographs in earnest -- substantiates
that understanding of the record. Thus, beyond Pérez's own
speculation, the record simply does not support his claim that
Acevedo began an unauthorized investigation out of the blue.
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Nor does the record support Pérez's two specific claims
that Acevedo concealed evidence. First, the statement of another
co-worker, Robert Batista, which Pérez says proves that Ortega had
previously admitted that the lower-torso photo depicted Ortega
(and not Pérez) was included in Acevedo's interview notes, which
Blankenship reviewed before deciding to terminate Pérez.
Moreover, Batista's statement is not necessarily the smoking gun
that Pérez describes, and he fails to explain how it might have
changed Blankenship's assessment.8 Second, although Pérez asserts
that Acevedo concealed that the lower-torso photograph was likely
several years old, Rodriguez had already informed Blankenship via
e-mail that the photograph was "very old." And, again, Pérez fails
to explain how the age of the photograph would have had any impact
on Blankenship's assessment that exposing oneself on Horizon's
property, at any time, violated Horizon's Code of Business
Conduct.9
8 According to Acevedo's notes, Batista stated that Ortega
had a photograph "of a big penis that he shows the girls he goes
out with so they can see how big he has it." This statement may
suggest only that Ortega showed women a photo that Ortega boasted
depicted his own genitals, not that the photo was, in fact, of
him. In fact, during his deposition, Batista further clarified
that, to "be clear," he "didn't know" if that photo was the same
as the lower-torso one that Acevedo received. Furthermore, another
employee, Manuel Barreto, similarly stated during his deposition
that he didn't "think that [Ortega] said it was a photograph of
him," but that Ortega had only claimed that "[t]his is what there
is for the gals."
9 Pérez also vigorously asserts that others involved in the
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Ultimately, "[n]othing in the record supports an
inference" that Blankenship's reason for terminating Pérez's
employment "was anything other than [Pérez's] own conduct." Hoyos,
488 F.3d at 10. Accordingly, because Pérez has failed to rebut
Horizon's showing of just cause, the district court correctly
granted summary judgment to the defendants on the Law 80 claim.
III.
Because the district court properly granted summary
judgment on all of Pérez's claims, its judgment is affirmed.
horseplay were not similarly disciplined or terminated and thus
summary judgment was improper. We are not persuaded by this
argument. The record does not support that Pérez's co-workers
similarly and repeatedly exposed themselves in the workplace. As
such, Pérez's disparate treatment argument fails. Admittedly,
this could be a different case if the record suggested that the
company treated the co-workers differently and that the co-workers
engaged in the same behavior as Pérez. However, this record does
not support that conclusion.
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