Gerald v. University of Puerto Rico , 707 F.3d 7 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2143
MELISSA S. GERALD,
Plaintiff, Appellant,
v.
UNIVERSITY OF PUERTO RICO; EDMUNDO KRAISELBURD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Bámily López Ortiz, with whom López Toro, Estudio de Derecho
& Notaría, Lizabel M. Negrón-Vargas, and Rivera & Fernandez-
Reboredo were on brief, for appellant.
Raquel M. Dulzaides, with whom Mayra González Reyes, J. Ramón
Rivera-Morales, and Jiménez, Graffam & Lausell were on brief, for
appellee University of Puerto Rico.
Jesús R. Morales Cordero, with whom González Castañer &
Morales Cordero, PSC was on brief, for appellee Edmundo
Kraiselburd.
January 28, 2013
THOMPSON, Circuit Judge. Dr. Melissa S. Gerald, a
scientist formerly employed by the University of Puerto Rico
("University"), says she was sexually harassed by her supervisor,
Dr. Edmundo Kraiselburd. Gerald reported the harassment and this
protestation, according to her, led the University to retaliate
against her. Gerald sought redress in district court, suing
Kraiselburd and the University for violating Title VII of the Civil
Rights Act and Puerto Rico law. The court granted summary judgment
in favor of the defendants, dismissing the complaint in its
entirety. Gerald appealed. After due consideration, we affirm the
grant of summary judgment in part and vacate in part.
FACTUAL BACKGROUND
These facts are outlined in a light most favorable to the
non-movant, Gerald. See Pérez-Cordero v. Wal-Mart Puerto Rico,
Inc., 656 F.3d 19, 20 (1st Cir. 2011).
A. The Setting and People
The Medical Sciences Campus is an institutional unit of
the University. Within the Medical Sciences Campus is the
Caribbean Primate Research Center ("CPRC"), a research, training,
and education center for the study of non-human primates. The CPRC
is made up of four integrated facilities: the Cayo Santiago Field
Station ("Cayo Santiago"), the Sabana Seca Field Station, the
Laboratory of Virology and Genetics, and the Laboratory of Primate
Morphology and Genetics. Most relevant here is Cayo Santiago, a
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forty-acre island located less than a mile off the coast of Puerto
Rico. There hundreds of monkeys live in semi-natural conditions
for the purpose of conducting behavioral and non-invasive
biomedical research.
During the time frame important to us, Kraiselburd (with
the University in different capacities since 1977) was the
Principal Investigator and Director of the CPRC, as well as a
Professor of the Medical Sciences Campus. His role with the CPRC
meant that he oversaw and supervised the operation of its four
integrated facilities. Gerald (hired in 2001) had a dual role as
"Scientist in Charge" of Cayo Santiago and as an Assistant
Professor at the Medical Sciences Campus, a tenure track position
which contemplated her advancement to Associate Professor. As
Scientist in Charge, Gerald's duties included running the daily
operation of Cayo Santiago, maintaining a computerized database of
the monkey population, managing personnel, participating in animal
trapping, conducting research, preparing reports and grant
proposals, and assisting visiting scientists. Gerald's home base
of operation was Punta Santiago, the mainland village closest to
Cayo Santiago. Her supervisor was Kraiselburd.
B. The Alleged Harassment
By all appearances Kraiselburd and Gerald worked together
and were friends for a number of years without anything of note
occurring. Then in 2005, at a conference in Cuba, the two
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apparently engaged in a week-long sexual affair. According to
Gerald, Kraiselburd insisted on pursuing the relationship when they
returned home and Gerald, embarrassed by the fling, rebuffed him.
A couple years later, Gerald was approached by a film
production company, which was producing a documentary about the
life and work of prominent evolutionary biologist, E.O. Wilson.
They wanted to bring Wilson for a visit to Cayo Santiago (a re-
creation of his visit fifty years earlier) and film it. Gerald
brought the request to the attention of various University
personnel, not just Kraiselburd, and he was not pleased. Via
email, he told Gerald that she needed to clear CPRC matters with
him, as the director, before involving others. Kraiselburd accused
Gerald of ignoring him except when money was needed and alienating
people with her attitude. Gerald did not see what the big deal
was, stating that she thought she was following protocol.
Despite these initial planning glitches the visit and
filming went forward in mid-April 2007. As part of the
festivities, a dinner was held on April 15, and Gerald gave
Kraiselburd a ride from his hotel to the dinner. At the end of the
evening, she dropped him back off at his hotel and, according to
Gerald, Kraiselburd sexually propositioned her. She says he
gestured at the hotel and referenced an offer being on the table,
which Gerald took as an invitation to his room. Gerald, who had
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her young daughter in the car, declined the solicitation. Gerald
says she could tell Kraiselburd was angry with her refusal.
Gerald and Kraiselburd continued to clash the following
month as they worked to make arrangements for more visiting
scientists coming to Cayo Santiago. In email correspondence the
two went back and forth about the visits' planning and
Kraiselburd's frustration with Gerald appeared to grow. The heated
exchange culminated with an email from Kraiselburd to Gerald dated
May 24, 2007, in which Kraiselburd accused Gerald of not being
dependable and also declared she was not the type of person needed
at Cayo Santiago. He added: "We now have to formally talk. I
think I will have to ask you to step down. And now I am dead
serious. You will receive a letter shortly."
A few days later, on May 29, Gerald met with Kraiselburd
in his office and attempted to smooth things over. Gerald says she
apologized and Kraiselburd accepted. The two then said farewell
with a hug and kiss on the cheek. As the embrace broke apart,
Gerald says Kraiselburd grabbed her breast and made sexually
suggestive grunting noises. Gerald was disgusted but said nothing
for fear of losing her job.
A week or so later, on June 7, Gerald, Kraiselburd, and
other co-workers attended a meeting to discuss an upcoming
conference. During the meeting Gerald mentioned that she would be
busy during the evenings of the conference because she had a friend
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attending. According to Gerald this led Kraiselburd to say
something along the lines of: "What will it take for you to fuck
me? Is this one of your girlfriends or one of your boyfriends? If
it is one of your girlfriends, I'll fuck both of you." If it is
one of your boyfriends, "I will be outside your hotel door peeking
giving you directions how to fuck your boyfriend." It is unclear
from the record if or how Gerald responded.
Then, on June 12, Gerald and Kraiselburd lunched with
another visiting scientist. Gerald and Kraiselburd quarreled about
whether she had done something he had asked her to do and when
Gerald said she had to leave lunch early to get her daughter,
Kraiselburd began questioning Gerald about what hours she actually
worked. Gerald, embarrassed at being questioned in this manner in
front of a colleague, argued back in a raised voice and ultimately
left the restaurant.
C. Gerald's Job Responsibilities Change
The evening of the heated lunch exchange, Kraiselburd
sent Gerald an email indicating that due to budget limitations
Gerald would be removed from the position of Scientist in Charge by
the end of the month. And then a few days later, on June 18,
Kraiselburd recanted. He sent Gerald another email: after
considering the situation at Cayo Santiago, it was decided Gerald
would in fact retain her title as Scientist in Charge, but no more
$800 a month bonus. Gerald responded via letter to Kraiselburd,
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lobbying for her bonus and requesting an in-person meeting to
discuss matters.
Her plea fell on deaf ears and on June 29, Kraiselburd
sent Gerald another letter. After evaluating things at Cayo
Santiago he wrote, it had been decided that a restructuring was
needed. Gerald was relieved of all administrative duties and
colony management responsibilities. To reflect these changes, her
title was changed to Resident Scientist. Her bonus was set at $200
a month. It was not all bad news for Gerald though as she was
promoted from Assistant Professor to Associate Professor at the
Medical Sciences Campus a couple days later on July 1. The
promotion came with a $1,000 a month pay raise.
D. The Complaint and Investigation
On August 3, 2007, Gerald met with the Chancellor of the
Medical Sciences Campus, Dr. José R. Carlo Izquierdo, and other
University personnel, to lodge an administrative sexual harassment
complaint against Kraiselburd. Gerald was emotional and crying,
and apparently Carlo found her credible. Gerald was told that she
should formalize her complaint in writing so that it could be
investigated. Gerald did so the next day. An outside attorney,
Maritza Miranda López, was brought in as the investigating officer
and charged with looking into things and issuing a recommendation.
After reviewing documentary evidence, including email
communications, and interviewing Gerald, Kraiselburd, and a handful
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of other University personnel, López issued her findings in a
seventeen-page investigative report, dated October 22, 2007. We
highlight the more pertinent findings.
Gerald had alleged three instances of sexual harassment
to López: (1) the April 15, 2007 incident when Kraiselburd
propositioned Gerald in the hotel parking lot, (2) the May 29, 2007
encounter where he grabbed her breast, and (3) the June 7, 2007
instance where Kraiselburd stated, among other things, "What will
it take for you to fuck me?". Kraiselburd flatly denied the first
two occurrences. As for the third, he admitted to making a comment
of that nature but said it was a joke made in response to Gerald
saying that she was going to "do it like rabbits" (or something to
that effect) with her visiting friend.
The co-workers who were interviewed all painted a similar
picture of Gerald and Kraiselburd's relationship. The general
consensus was that the two appeared to have a close and trusting
relationship, and their interactions often included off-color
remarks and jokes of a sexual nature, many a time to the discomfit
of some. None of the co-workers witnessed either of the first two
acts of alleged harassment but co-workers James Ayala and Janet
Rivera were at the June 7 meeting. Rivera said she heard
Kraiselburd say "what would you do to be with me," at which time
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she withdrew from what she perceived was a personal conversation.1
Ayala thought Kraiselburd said something like "what will you pay to
spend the night with me" in a joking manner. Ayala said this
comment was in response to Gerald joking about the intimate nature
of her relationship with her visiting friend.
Interviews were also conducted with some of the
University personnel who Gerald had met with when she first lodged
her complaint. One said Gerald reported that Kraiselburd had
approached her with inappropriate comments and had "grazed" her
breast. The other said Gerald made vague and somewhat unclear
allegations about Kraiselburd touching her breast and making
certain comments and invitations.
Aside from contradicting Gerald's claims about the three
acts of alleged harassment, Kraiselburd also gave his take on why
he restructured Gerald's position as Scientist in Charge. Gerald,
he said, was shirking her job responsibilities, not adhering to her
work schedule, mistreating personnel, and not respecting her
superiors. More specifically, he claimed Gerald was not going to
Cayo Santiago as often as needed, not charging researchers for
bench and lodging fees, ordering employees to operate boats in
1
Rivera claimed Gerald approached her prior to her interview
and told Rivera to tell López that she had heard the word "fuck"
and that it was offensive. Rivera told Gerald that was not what
she heard and she would tell the truth. Gerald insisted that
Rivera call her after the interview. Gerald was deemed by López to
have attempted to influence Rivera's testimony.
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dangerous conditions, misrepresenting her role at Cayo Santiago to
the press, not satisfying job responsibilities resulting in others
absorbing the tasks, and that she had profanely called an employee
an asshole.
López reached her conclusions. She did not find Gerald
credible and determined it unlikely that the hotel proposition or
breast grabbing incident occurred. To the extent the latter had
taken place, she found that the incident did not appear to impact
or even matter to Gerald. As for the third incident, López's
report noted that jokes and comments of a sexual nature were
admittedly common for Gerald and Kraiselburd and it was unlikely
Kraiselburd's wording was as crude as Gerald suggested. To the
extent any of the incidents did take place, they were deemed not
severe or offensive enough to alter Gerald's work conditions. The
changes in Gerald's job, López concluded, were strictly performance
related.
López's report ended with recommendations. Despite her
not buying Gerald's story, she recommended that an administrative
hearing be commenced. López suggested that if the administrative
hearing officer reached the same conclusions she had, then the
University should consider filing administrative charges against
Gerald. She also advised the University to instruct both Gerald
and Kraiselburd about the inappropriateness of using obscene
language at work. Finally, citing Gerald's reported non-compliance
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with her duties and the animosity that had arisen as a result of
this investigation,2 López recommended that Gerald's post be
relocated away from Cayo Santiago.
E. The University Responds
Armed with López's findings, the University, via a
resolution dated November 8, 2007 and issued by Chancellor Carlo,
dismissed Gerald's sexual harassment complaint. The resolution
further indicated that administrative proceedings would be
instigated against Gerald to determine whether she had violated
University regulations by breaching her job duties or filing a
false grievance. Also, in accordance with López's recommendation,
the resolution decreed that Gerald be transferred to another CPRC
facility, the Laboratory of Primate Morphology and Genetics (the
"Laboratory"). Gerald's transfer to the Laboratory was
memorialized in a December 4, 2007 letter from Kraiselburd. In
that same letter, Gerald's title Resident Scientist was changed to
Staff Scientist.
2
The report referred not only to the animosity between
Kraiselburd and Gerald but between Gerald and Ayala. It seems
Ayala and Gerald had got into an argument after he caught her
reading his sworn statement to López when it was left open on his
computer screen. Ayala claimed that Gerald, who countered with her
own charge of computer snooping against him, was openly hostile
after this.
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F. Gerald Responds
Refusing to roll over Gerald appealed the dismissal of
her sexual harassment complaint to the University president.3 As
a result of the appeal, the chancellor stayed the administrative
proceedings against Gerald. Gerald then filed a sexual harassment
complaint with the U.S. Equal Employment Opportunity Commission
("EEOC"). The EEOC dismissed the complaint and issued a right to
sue notice on June 23, 2008.
On June 26, 2008, Gerald voluntarily resigned from the
University via a letter to Chancellor Carlo. She accused Carlo of
mishandling the investigation and wrongly believing Kraiselburd
over her. Gerald claimed that she had been unfairly demoted and
that there was no work for her in her new position. She also
complained that her new job at the Laboratory (which was not in the
same area as Cayo Santiago) had added time to her commute forcing
Gerald to sacrifice time with her daughter. Gerald lamented that
her career had been derailed and said she was seeking help for
clinical depression. Gerald's last day with the University was
August 2, 2008. That same month she started working for the
National Institute of Health (located in Maryland) and was not
unemployed at any time after her departure.
3
As of the time the district court issued its decision, a
hearing had been held on Gerald's appeal but no decision had been
issued.
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PROCEDURAL HISTORY
A few months after leaving the University, Gerald brought
this lawsuit against the University and Kraiselburd. The complaint
alleged that she was sexually harassed by Kraiselburd (and that the
University should be held liable for this conduct), retaliated
against by the University for filing the administrative sexual
harassment complaint, and constructively discharged, all in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. Gerald also raised supplemental Commonwealth
claims under: (1) Law 17 (prohibiting sexual harassment in
employment), P.R. Laws. Ann. tit. 29, § 155; (2) Law 69
(prohibiting gender based employment discrimination), id., § 1321;
and (3) Law 100 (analogous to Title VII), id., § 146. She sought
back pay, compensatory and punitive damages, and attorney's fees
and costs.
In lieu of an answer, the University and Kraiselburd
filed a joint motion to dismiss. It was granted in part, resulting
in the dismissal of multiple claims, which Gerald does not appeal.
What remained was Gerald's Title VII claim against the University,
as well as her Law 17 and Law 69 state law claims against
Kraiselburd. The case proceeded to the discovery phase, with a
trial date slated for March 2011.
Shortly before trial, the University and Kraiselburd
jointly moved for summary judgment on all remaining claims. The
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district court granted the motion, dismissing with prejudice the
complaint in its entirety. In short, the district court found that
Gerald failed to make out a prima facie case for any of the relief
she sought. More specifically, it said Gerald could not show that
Kraiselburd's conduct was severe or pervasive; that her employment
hinged on her acceptance of Kraiselburd's sexual advances; that she
suffered an adverse employment action; or that her work conditions
were so oppressive that she was forced to resign. The court added
that even assuming the steps taken by the University (i.e., filing
administrative charges, transferring Gerald) constituted adverse
employment actions, there was no causal connection between those
actions and Gerald's filing of the administrative complaint and the
University had valid, non-pretextual reasons for what it did.
Gerald now appeals. Arguing that the district court
usurped the jury's function by improperly weighing evidence, making
credibility determinations, and disregarding controversies in the
summary judgment record, she asks us to reverse.
STANDARD OF REVIEW
Our review is de novo. Martínez-Burgos v. Guayama Corp.,
656 F.3d 7, 11 (1st Cir. 2011). In taking a fresh look, we draw
all reasonable inferences in favor of Gerald, as the non-movant,
and we view the record in a light most flattering to her. Id.Summary judgment is called for when "there is no genuine issue as
to any material fact and the moving party is entitled to judgment
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as a matter of law." Id.; see Fed. R. Civ. P. 56(a). A genuine
issue is one that can "be resolved in favor of either party" and a
material fact is one which "has the potential of affecting the
outcome of the case." Pérez-Cordero, 656 F.3d at 25.
"Summary judgment is not appropriate where 'the evidence
on record is sufficiently open-ended to permit a rational fact
finder to resolve the issue in favor of either side.'" Id.
(quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st
Cir. 2011)). The burden is on Gerald to show us that this is the
case; she must point to specific and competent evidence to support
her claims. See Ayala-Sepúlveda v. Municipality of Germán, 671
F.3d 24, 30 (1st Cir. 2012).
TITLE VII CLAIMS
Title VII makes it unlawful for employers to discriminate
based on sex and further prohibits retaliation against those
employees who oppose such discrimination. 42 U.S.C. § 2000e-
2(a)(1); id. § 2000e-3(a). The Title VII claims that Gerald is
pursuing against the University are: sexual harassment (both
hostile work environment and quid pro quo), retaliation, and
constructive discharge. We take them in sequence.
A. Sexual Harassment
Sexual harassment qualifies as sex-based employment
discrimination in violation of Title VII. Pérez-Cordero, 656 F.3d
at 26. Before us, as she has all along, Gerald alleges three
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instances of harassment by Kraiselburd: (1) the April 15, 2007
hotel parking lot proposition incident, (2) the May 29, 2007 breast
grabbing encounter, and (3) the June 7, 2007 comment about engaging
in sexual relations made during a staff meeting. For summary
judgment purposes, the University is not disputing that these
instances occurred.
i. Hostile Work Environment
Requiring a person "'to work in a discriminatorily
hostile or abusive environment'" violates Title VII. Valentín-
Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir.
2006) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)).
To prevail on a hostile work environment sexual harassment claim,
a plaintiff must establish in essence: (1) membership in a
protected class and (2) unwelcome sexual harassment, (3) which was
based on sex, (4) was sufficiently severe or pervasive, (5) was
objectively and subjectively offensive, and finally (6) that some
basis for employer liability has been established. Forrest v.
Brinker Int'l Payroll Co., 511 F.3d 225, 228 (1st Cir. 2007). We
take this six element test in order.
We need not spill much ink on the first. There is no
doubt (and no dispute from the University) that Gerald, as a woman,
is a member of a protected class. We move on to the unwelcomeness
inquiry.
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The district court found that there was a factual
question as to whether Kraiselburd's conduct was unwelcome.
Apparently for this reason the University does not address this
issue on appeal, though it did argue this point below. It
primarily argued that Gerald's own conduct, namely her voluntarily
engaging in off-color banter of a sexual nature with Kraiselburd,
showed that his conduct was not unwelcome. This argument does
little to convince. We fail to see how an employee telling risqué
jokes means that she is amenable to being groped at work. Instead
the evidence here was enough, at the very least, to raise a factual
question as to whether Kraiselburd's conduct was unwelcome. Gerald
did not accept his invitation to her hotel room; she turned him
down. Gerald informed López during the administrative
investigation that she was bothered by Kraiselburd's proposition.
There is no evidence that Gerald encouraged or invited Kraiselburd
to grab her breasts and she indicated during the investigation that
she was disgusted and bothered by him doing so. Similarly there is
no evidence that Gerald welcomed the comments made during the staff
meeting even if she indeed mentioned the intimate nature of her
relationship with another person. In the context of sexual
harassment claims, the question of "whether particular conduct was
indeed unwelcome presents difficult problems of proof and turns
largely on credibility determinations committed to the trier of
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fact," and this case is no exception. Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 68 (1986).
The University did not argue below, or to this court,
that the harassment was not based on sex and the district court
deemed this factor uncontested. Our review being de novo and not
limited to the district court's reasoning, we shall address this
factor nonetheless. For harassment to be based on sex it need not
be an act motivated by sexual desire but rather the harassment must
be gender specific. Pérez-Cordero, 656 F.3d at 28. Here the
record contained sufficient evidence from which a reasonable jury
could conclude that Kraiselburd's actions were triggered by
Gerald's gender. Kraiselburd sexually propositioned Gerald,
grabbed her breasts, and made comments about engaging in sexual
relations with her; it is reasonable to conclude that these actions
were connected to Gerald being a woman.
We proceed to the real bone of contention here - whether
the harassment was sufficiently severe or pervasive. This is the
factor the district court found lacking and it is also the entire
focus of the University's argument on appeal. This is not
surprising given that there is seldom a defensible purpose behind
discriminatory harassment and the real question is typically
whether the bad acts taken in the aggregate are sufficiently severe
or pervasive to be actionable. Noviello v. City of Boston, 398
F.3d 76, 84 (1st Cir. 2005). There is no mathematically precise
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test that we employ to answer this question but several factors,
none of which are individually determinative, are relevant: the
severity of the conduct, its frequency, whether it is physically
threatening or not, and whether it interfered with the victim's
work performance. Bhatti v. Trustees of Boston Univ., 659 F.3d 64,
73-74 (1st Cir. 2011).
Pointing to the fact that Gerald and Kraiselburd often
engaged in off-color banter, the University says the supposed
harassment was not severe. We disagree and think a jury could have
seen things otherwise. Gerald says Kraiselburd grabbed her
breasts, sexually propositioned her, and crassly asked in front of
others why she would not have sex with him. The University is not
denying these occurrences for summary judgment purposes. These
offensive incidents, which involved sexual propositioning and
uninvited touching, can reasonably be viewed as severe; and, in the
case of the breast grabbing incident, physically threatening (not
to mention criminal). Like we have said, it is clear that
"behavior like fondling, come-ons, and lewd remarks is often the
stuff of hostile work environment claims . . . ." Billings v. Town
of Grafton, 515 F.3d 39, 48 (1st Cir. 2008) (gathering cases).
This is precisely the type of conduct we have here.
On the frequency front, the University likens what
happened to a brief three-incident blip in an otherwise uneventful
six years of working together. We are not convinced. Though
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Gerald has alleged just three acts of harassment, a "single act of
harassment may, if egregious enough, suffice to evince a hostile
work environment." Noviello, 398 F.3d at 84 (citing Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998)). The incident in
which Kraiselburd grabbed Gerald's breasts and made sexually
suggestive noises comfortably qualifies as egregious. And Gerald
has alleged two incidents on top of this.
A closer question is whether the three incidents
interfered with Gerald's work performance. The University says
they did not, making much ado of cordial and sometimes joking
emails that Gerald sent Kraiselburd after each of the three
instances. But these emails do not give us a great deal of pause.
The fact that Gerald managed to get work done despite Kraiselburd's
actions is not fatal to her hostile work environment claim. See,
e.g., Tuli v. Brigham & Women's Hosp., 656 F.3d 33, 40 (1st Cir.
2012) (holding that a jury's hostile work environment liability
finding was not precluded just because the plaintiff neurosurgeon
managed to get her work done despite being harassed by her
supervisor); Billings, 515 F.3d at 51 (finding that the plaintiff
secretary being able to perform her job despite her boss leering at
her breasts did not doom her hostile work environment claim). The
University also points to a couple of lines in Gerald's deposition
where she admits telling some visiting scientists that she could
work with Kraiselburd and wanted to repair things with him.
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However, there is no surrounding frame of reference for this
comment leaving us with no idea when Gerald made this statement or
the context in which it was made. Therefore we do not put too much
stock in this remark.
Gerald, for her part, does not give us much more as to
how the incidents affected her work performance. She refers in her
formalized sexual harassment complaint to being unable to "work
effectively" and to her work productivity being affected but does
not elaborate beyond this.4 And although Gerald did seek
psychiatric counseling for depression, there is no evidence that
Gerald's work performance suffered as a result of this depression.
See Bhatti, 659 F.3d at 74; see also Ayala-Sepúlveda, 671 F.3d at
31. But in the end, subject to some policing on our part, "it is
for the jury to . . . 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." Marrero v. Goya of
Puerto Rico, Inc., 304 F.3d 7, 19 (1st Cir. 2002) (internal
quotation marks and citation omitted). And, as we said, none of
4
Gerald did offer some evidence about how her complaining
about the harassment and her transfer to the Laboratory interfered
with her work performance. In a follow-up email to University
personnel Gerald said that since she filed the administrative
complaint, Kraiselburd was intentionally keeping her out of the
loop on decisions he was making, which affected her ability to do
her job. Gerald also testified at deposition, and complained to
University personnel via letter, that she had no duties and could
not perform her science in her new role at the Laboratory.
However, how Gerald's filing of the complaint and transfer might
have affected her employment strikes us as a separate issue from
how the alleged incidents of harassment impacted her work.
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the considerations that go into the severe and pervasive inquiry
are individually determinative. Though Gerald did not give us much
to go on, policing is not warranted here, especially given the
evidence we have as to the other considerations. To sum things up,
taking the evidence in a light most favorable to Gerald, we think
a reasonable jury could have found that the harassment was severe
or pervasive.
We turn to, and conclude, with the final two factors in
our hostile work environment analysis. The district court, having
found that the harassment was not severe or pervasive, elected not
to reach these factors. Again presumably for this reason, the
University did not address them on appeal.
The next inquiry is whether the complained of conduct was
objectively and subjectively offensive. Said another way, would a
reasonable person find the conduct hostile and abusive and did the
complainant in fact perceive it to be so. Billings, 515 F.3d at
47. On the issue of subjective offense there was adequate
evidence: Gerald was bothered by Kraiselburd's invitation to his
hotel room, disgusted by him grabbing her breasts, and she was
depressed, seeing a psychiatrist, and taking anti-depressants. The
fact that the complained of conduct involved non-consensual
physical touching, an invitation for sexual relations, and
embarrassing public comments strikes us as being sufficiently in
the realm of what a reasonable person might find offensive. Gerald
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presented enough evidence on this point to withstand summary
judgment.
Establishing some basis for employer liability is
Gerald's final hurdle. When it is a supervisor that creates an
actionable hostile work environment, the employer is vicariously
liable. Arrieta-Colón v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75,
86 (1st Cir. 2006) (citing Faragher, 524 U.S. at 807); Torres-
Negrón v. Merck & Co., 488 F.3d 34, 40 (1st Cir. 2007). Here it is
undisputed that Kraiselburd was Gerald's supervisor with authority
over her. Thus a basis for the University's liability has been
established.5
This takes us to our ultimate conclusion. When reviewing
a summary judgment grant like this one, our "function is one of
screening, that is, to determine whether, on particular facts, a
reasonable jury could reach such a conclusion." Noviello, 398 F.3d
5Before the district court, the University argued that
because it had a well-established anti-harassment policy in place
and because it took steps to correct any harassment on
Kraiselburd's part, it was entitled to the Faragher-Ellerth
defense. The Faragher-Ellerth defense, which shields an employer
from liability for a supervisor-created hostile work environment,
can only be raised if no tangible employment action is taken
against the employee. Torres-Negrón, 488 F.3d at 40 fn.5; Arrieta-
Colón, 424 F.3d at 86. The defense requires the employer to show
by a preponderance of the evidence that it both "exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior" and that the "employee unreasonably failed to
take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise." Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Though it
argued the Faragher-Ellerth defense below, the University did not
assert it on appeal. Therefore we need not address this issue.
-23-
at 94. In other words, we patrol the outer bounds. Vera v.
McHugh, 622 F.3d 17, 27 (1st Cir. 2010). Here, taking the evidence
in a light most favorable to Gerald, we cannot decisively say (as
the district judge did) that a reasonable jury could not conclude
that she was subject to a hostile work environment. The court
erred in granting summary judgment on Gerald's hostile work
environment claim.
ii. Quid Pro Quo
Quid pro quo sexual harassment is when a supervisor uses
his superior position to extract sexual favors from a subordinate
and, if rebuffed, retaliates by taking action that adversely
impacts the subordinate's employment. Valentín-Almeyda, 447 F.3d
at 93.6 This type of harassment "can be shown where a supervisor
uses employer processes to punish a subordinate for refusing to
comply with sexual demands." Hernández-Loring v. Universidad
Metropolitana, 233 F.3d 49, 52 (1st Cir. 2000).
Gerald claims that is precisely what happened here.
Because she rejected Kraiselburd's sexual advances, she says he
used his position to get her demoted from Scientist in Charge. The
University counters that there is no evidence that Kraiselburd
conditioned Gerald's continued employment on her accepting his
6
The demarcation between this type of harassment and hostile
work environment harassment is "of 'limited utility,' other than to
generally describe alternative approaches to proving sex-based
employment discrimination." Pérez-Cordero, 656 F.3d at 26 (quoting
Burlington Indus., Inc., 524 U.S. at 751).
-24-
advances and that Gerald's change in title stemmed from her non-
compliance with her job responsibilities and insubordinate
attitude. Gerald's response: the University is exaggerating, if
not misrepresenting, the scope of her responsibilities and supposed
non-compliance, and it is no coincidence that Kraiselburd started
complaining about her performance right around the time she spurned
him. She calls his complaint suspiciously inconsistent with
earlier high praise of her. The district court, after reviewing
the evidence, accepted the University's version of things. We are
less convinced.
Sometimes in these quid pro quo cases the defendant
superior does not mince words and the plaintiff employee is able to
present direct evidence that the defendant threatened to exact
retribution. See, e.g., Valentín-Almeyda, 447 F.3d at 96(defendant police supervisor told the plaintiff officer she would
be "screwed" if she did not react more affectionately to his
advances); Hernández-Loring, 233 F.3d at 53 (defendant committee
member boasted that he had caused the plaintiff professor to be
passed over for a promotion because she would not date him);
Bryson v. Chicago State Univ., 96 F.3d 912, 914 (2d Cir. 1996)
(defendant provost told plaintiff professor that she would be sorry
if she did not do what he said). We have nothing so crystalline
here.
-25-
Instead we have references that Kraiselburd made via
email the day before he propositioned Gerald in the hotel parking
lot that could (as Gerald suggests) be read as part of his attempt
to sexually proposition her or could (as the University suggests)
be innocuous references to something else entirely. Specifically
in one email Kraiselburd said: "Just relax. [You] live only once."
In another, he tells Gerald: "Offer still on the table." Similarly
ambiguous is an email exchange the day after the proposition in
which Kraiselburd writes: "Sorry, I have to draw the line
somewhere. Hope that you will be able to eat your own words
without too much ketchup." As with the other emails, it is not
entirely clear what Kraiselburd is referring to - Gerald's
rejection the night before or something else. Construing the
evidence and reasonable inferences in Gerald's favor as we must, it
is plausible to read these emails to mean what she says they do,
but we acknowledge we are getting close to speculative territory.
Were this all Gerald had, it would likely not be enough to create
a trial-worthy issue, but Gerald also presented a good amount of
evidence rebutting the University's contention that she was demoted
for job related reasons, as opposed to for rejecting Kraiselburd.
We chronicle the evidence, starting with the University's.
One of the University's claims was that Gerald was not
fulfilling her responsibilities as required by the grant under
which the CPRC operated. In support, Kraiselburd offered a signed
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declaration. In it he averred that Gerald failed to fulfill
multiple job responsibilities, such as maintaining the colony's
genetic data, billing fees, reporting and requesting authorization,
and obtaining significant grant monies. He also claimed she did
not conduct herself properly with other employees, did not maintain
a physical presence at work, and that she displayed a
disrespectful, insubordinate attitude. The University also
presented an October 19, 2007 letter from the administrative
director of the CPRC, José Alicea López, in which he indicated that
as Scientist in Charge it was Gerald's responsibility to bill
researchers various fees (e.g., bench and trapping fees) and that
she was not fulfilling this function. López said an investigation
revealed that since 2004 approximately $60,000 in fees went un-
billed.7 A follow-up administrative report put the number at
$100,000.
The University also offered evidence about how Gerald
comported herself at work. Administrative director López penned a
May 18, 2007 letter where he complained that Gerald was requiring
the CPRC's boat personnel to ferry her and others to Cayo Santiago
in dangerous conditions and at irregular hours. A laboratory
employee from Cayo Santiago, Rolando Viera, also wrote a letter
7
It should be noted that the letter in which this assertion
was made was penned by López after Gerald was demoted and, in fact,
after she lodged her sexual harassment complaint. It is unclear
how much Kraiselburd or the University knew about the allegations
in this letter at the time Gerald was removed from her post as
Scientist in Charge.
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(dated May 12, 2007) in which he complained that the previous
February Gerald had made an inappropriate joke of a sexual nature
to him and called him a cabrón, the Spanish word for asshole.
The University also accused Gerald of being disrespectful
and insubordinate with Kraiselburd. It produced a slew of emails,
some of which evidenced Gerald speaking to Kraiselburd (and he to
her) in a brash manner. Examples included Gerald saying: "Team
work is all that I am asking for. Since when did asking about the
status of the genetics become a personal issue? Ridiculous!!!" Or
when Kraiselburd criticized Gerald for handling a matter over email
as opposed to on the phone, she responded: "Ask before you attack,
remember? . . . I do not have a cell phone for work, so I did what
I did!" In another argument with Kraiselburd, Gerald said: "Your
ego has played a very nasty trick on you."
Gerald countered with her own evidence, which she says
puts things in a different light. First, she claims that until she
rebuffed Kraiselburd she received good marks for her performance.
She presented an annual report issued on December 31, 2006 (about
three and a half-months before the first instance of alleged
harassment) by the Chancellor's Advisory Committee on the CPRC.
The report indicated that overall "the Cayo Santiago program
appears to be in excellent shape" and that Gerald was "doing an
excellent job as Scientist-in-Charge in promoting both the CPRC and
Cayo Santiago internationally, nationally and in Puerto Rico."
-28-
Gerald also produced a letter written by Kraiselburd in September
2006 when Gerald was initially evaluated for the promotion from
Assistant to Associate Professor. In the letter, Kraiselburd
offered his "highest recommendation" for Gerald's promotion and he
heralded the pair's "excellent working relationship," stating that
Gerald had "far exceeded any of our expectations."
Gerald also disagreed that she was not fulfilling her job
responsibilities. Pointing to her personnel file and the CPRC
operational grant, Gerald averred that her list of duties as
Scientist in Charge was shorter than Kraiselburd said it was, and
that the duties she was accused of neglecting were not actually
hers to perform. Specifically with respect to the fee billing
failure, Gerald says that assessing fees was a group effort and
that it was López not her who was in charge of invoicing the fees.
For support Gerald points to a document which she calls the CPRC's
standard operating procedure, which does seem to support the
proposition that she was not in charge of invoicing, though it is
not totally clear what role she had in the billing team effort.8
In her deposition Gerald also testified that while she was
Scientist in Charge it was very unclear who was responsible for the
8
The document indicates that visiting scientists submitted
the amount of time they would be conducting research on Cayo
Santiago to the Secretary/Administrator of Cayo Santiago and that
invoices were then submitted to CPRC headquarters. The Scientist
in Charge worked with the secretary to determine who was present on
the island for additional biannual invoices that were prepared for
the scientists' home institutions.
-29-
genetic data. Gerald testified that she was only obliged to
perform certain tasks with the data, like organizing it, but not
other aspects, like gathering it.
As for Kraiselburd's claim that she was not maintaining
a physical presence at work, Gerald testified she was never given
any direction as to how many hours she had to work in a week, how
many times she had to go to Cayo Santiago, or how many hours she
had to be in the office. She testified that she often worked from
home and on average she worked long hours and seven days a week,
even if she was not physically present in the office.
Gerald also addressed the critiques about how she
conducted herself on Cayo Santiago. She offered the deposition of
Félix Román Oquendo, a Cayo Santiago employee. Román disputed the
notion that Gerald forced boat personnel out in dangerous
situations. He testified that it was actually the visiting
scientists, and in one instance Kraiselburd, who did this. Román
said Gerald simply tried to mediate between the researchers and
boat personnel and that she was respectful of the latter's
assessment of ocean conditions.
As for the incident where Gerald called Viera an asshole,
Gerald testified that she was just joking and that she did not
understand the complexities of the Spanish word cabrón. Román also
testified about this incident and he had a similar take. Román
said Viera told him that it was not a big deal because he and
-30-
Gerald were just fooling around. Román said they were all very
close and often joked around or spoke crassly. At his deposition,
Román also theorized that Kraiselburd was trying to manufacture
employee complaints in an effort to oust Gerald. As an example
Román cited the name calling incident, which he said had long been
forgotten when Kraiselburd came around a few months later (and
about a month after Kraiselburd propositioned Gerald) asking about
it. At this time, Viera wrote the letter cited above, though Román
theorized that based on how Viera speaks and how the letter reads,
it was not actually Viera who put pen to paper.
Also in contrast to the sometimes impertinent language
Gerald used in her emails, there was also evidence of good natured
back and forth between the pair. One case in point, in the midst
of one of their spats Gerald told Kraiselburd: "You succeed at
whatever you want to accomplish. It is my confidence in you which
convinces me of your actions or lack thereof." When Kraiselburd
said he was ill, Gerald responded: "I am so sorry. Rest, please
rest." And after yet another squabble, she wrote: "I am sorry for
the trouble and I understand your position and shall contact you in
the future."
"Faced with a motion for summary judgment, it was
[Gerald's] burden to establish that there existed evidence creating
a trial-worthy claim." Hernández-Loring, 233 F.3d at 53. We think
she did that. Gerald presented evidence of questionable comments
-31-
made by Kraiselburd over email directly before and after he
propositioned her as well as evidence that countered the notion
that she was not performing well in her job.9 With this evidence
Gerald put forth a trial-worthy claim that Kraiselburd used
Gerald's reaction to unwelcome harassment as a basis for decisions
that affected the terms of her employment. The district court
erred in granting summary judgment on Gerald's quid pro quo
harassment claim.
B. Retaliation
Title VII makes it unlawful for an employer to
discriminate against an employee who has opposed an unlawful
employment practice. 42 U.S.C. § 2000e-3(a). To make out a prima
facie case of retaliation under the familiar McDonnell Douglas
9
The evidence as to the timing of things bears noting.
Gerald was stripped of the title Scientist in Charge just about two
months after she rejected Kraiselburd's advance in the hotel
parking lot. We have considered temporal proximity in the context
of retaliation claims, see Calero-Cerezo v. United States Dept. of
Justice, 355 F.3d 6, 25 (1st Cir. 2004), and other circuits have
extended it to quid pro quo inquiries, see Papelino v. Albany Coll.
of Pharmacy and Union Univ., 633 F.3d 81, 90 (2d Cir. 2011);
Frensley v. N. Miss. Med. Ctr., Inc., 440 Fed. Appx. 383, 387 (5th
Cir. 2011). There is no need to make the leap here because Gerald
has presented enough evidence to withstand summary judgment without
this temporal proximity being considered but we thought it worth
pointing out. Further noteworthy on the timing front is that the
letters the University produced critiquing Gerald's performance
also came after the rejection, even though some related to matters
that originated before (i.e., fee billing and the name calling
incident). We are not saying this establishes that Kraiselburd was
trying to drum up evidence to support Gerald's removal from her
position but all of these timing questions strike us as an issue of
material fact better left to the jury.
-32-
burden-shifting framework, a plaintiff must show that: (1) she
engaged in protected activity under Title VII, (2) she suffered an
adverse employment action, and (3) the adverse employment action
was causally connected to the protected activity. Collazo v.
Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). If
a plaintiff makes this showing the burden swings to the defendant
"to articulate a legitimate, non-retaliatory reason for its
employment decision." Collazo, 617 F.3d at 46. If a defendant can
do this then the burden travels once more to the plaintiff to show
that the reason is pretext and that retaliatory animus was the real
motivating factor. Id.The University contends that Gerald's retaliation
argument is waived because she failed to properly develop it on
appeal. It is likely correct. Gerald's argument was woefully
undeveloped and perfunctory. She provided case law that explained
what goes into proving retaliation and then never applied it to the
facts of her case. Gerald gave a bit more substance in her reply
brief, but this came too late. See Tejada-Batista v. Morales, 424
F.3d 97, 103 (1st Cir. 2005). Nonetheless Gerald's claim is easily
disposed of on the merits and so we address it.
Gerald has undoubtedly established the first element of
a prima facie case. It is undisputed that her filing of the
-33-
administrative sexual harassment complaint constituted a protected
activity. She does not fare so well on element two.
First, Gerald did not articulate what specific, wrongful
actions the University took against her after she filed her
complaint. Even assuming she was alleging the same instances she
did below (i.e., a constitutionally defective administrative
procedure, filing of administrative charges, and her transfer to
the Laboratory), Gerald has not shown, or even attempted to
articulate, why these actions were "materially adverse" such that
they would have "dissuaded a reasonable worker from making or
supporting a charge of discrimination." Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006). Nor did Gerald rebut the
district court's specific findings (other than to generically say
it erred) that her constitutional claim was waived because she
failed to include it in the complaint, or that the administrative
charge was stayed indefinitely, and therefore neither of these
things could constitute adverse employment actions. In sum, Gerald
has not shown that she suffered a materially adverse employment
action.
As for the causation element, Gerald says that the
temporal proximity between her sexual harassment complaint and the
University's unspecified actions was enough. We have found certain
temporal spans sufficient to make out a prima facie case for
causation in other retaliation cases. See, e.g., Harrington v.
-34-
Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 32 (1st Cir. 2012).
It is difficult to say whether timing would be enough here given
that, as we said, Gerald has not articulated what actions she is
contesting. But even assuming it is sufficient, Gerald, for the
above reasons, has failed to satisfy all three elements of a prima
facie retaliation case. The inquiry ends here; with no prima facie
case made there is no need to shift the burden to the University.10
The district court's dismissal of the retaliation claim is
affirmed.
C. Constructive Discharge
Constructive discharge typically "refers to harassment so
severe and oppressive that staying on the job while seeking redress
- the rule save in exceptional cases - is intolerable." Lee-Crespo
v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.
2003) (internal quotation marks and citation omitted). A
successful constructive discharge claim requires "working
conditions so intolerable that a reasonable person would have felt
10
Had we found that Gerald met her burden, the University had
an argument ready. It claimed to have facially legitimate reasons
for the actions it took. For support it offered evidence that,
pursuant to University regulations, filing false charges against a
co-worker (which is what the investigating officer thought happened
here) and negligence in the performance of one's duties (also
thought to have happened) was cause for disciplinary sanctions.
The University also pointed out that one of the recommendations of
the internal investigation was that Gerald not remain at Cayo
Santiago. It asserts this was the reason for Gerald's transfer to
the Laboratory, a transfer it characterizes as a precautionary
measure. However, like we said, there is no need to decide if
these reasons are in fact legitimate.
-35-
compelled to resign." Pennsylvania State Police v. Suders, 542
U.S. 129, 147 (2004). A plaintiff seeking to withstand summary
judgment must point to evidence in the record showing that just
such conditions existed. Ahern v. Shinseki, 629 F.3d 49, 59 (1st
Cir. 2010). The standard to meet is an objective one, "it cannot
be triggered solely by an employee's subjective beliefs, no matter
how sincerely held." Roman v. Potter, 604 F.3d 34, 42 (1st Cir.
2010) (internal quotation marks and citation omitted).
Gerald does not argue that Kraiselburd's harassment
compelled her to resign but instead focuses on what happened after
she filed her sexual harassment complaint. She says that her
change in title to Staff Scientist and reassignment to the
Laboratory was "painful and unendurable." Gerald cites to the
reduction of her $800 bonus, the additional gasoline and toll
costs, as well as the increased commuting time, caused by her
relocation, and the fact that she could not perform her science in
her new post. According to Gerald she was also clinically
depressed. Keeping these things in mind we ask the objective
question: did Gerald establish that her working conditions become
so intolerable that a reasonable person in her place would feel
forced to resign? See Pennsylvania State Police, 542 U.S. at 141.
The short answer is no.
The evidence showed that Gerald was moved to another
position in the CPRC. She calls this re-title to Staff Scientist
-36-
a demotion but whether this is the case is not readily apparent.
There was no evidence of what her new duties were. The only
evidence we have (assuming its trial-worthiness) is Gerald's own
letter of resignation in which she says that there was no work for
her in this new position and that she did not have access to her
subjects. Gerald makes a similar, fleeting assertion in her
deposition, stating that she had nothing to do in the Laboratory
but read; however, she never explained why reading was not job
related or job worthy. Further, Gerald did retain her
professorship in the elevated position of Associate Professor. As
for the inconveniences associated with the transfer, Gerald said in
her letter of resignation that her commute increased by a couple of
hours and there was associated gasoline and tolls costs. Gerald's
pay was also impacted as her $800 monthly bonus was reduced to $200
when she lost the Scientist in Charge title but, at the same time,
she gained a $1,000 a month pay raise with her professorship
promotion.
Viewing all of this evidence, we do not find Gerald's
working conditions, which amounted to a transfer within the CPRC
and some slight commuting inconveniences and costs, so intolerable
that a reasonable person in Gerald's place would feel forced to
resign as opposed to stay on the job while seeking redress. This
is not to say that a transfer with associated inconveniences and
costs could never constitute a constructive discharge; it just does
-37-
not in this case. See Vieques Air Link, Inc. v. United States
Dep't of Labor, 437 F.3d 102, 108 (1st Cir. 2006) (finding that
there was sufficient evidence to support a constructive discharge
finding when an employee was transferred to a different island that
he had no way of reaching by boat or plane) (citing Alicea-Rosado
v. García-Santiago, 562 F.2d 114, 120 (1st Cir. 1977) ("Doubtless
a drastic increase in commuting time and unreimbursed costs might
at some point become sufficiently onerous to justify an employee in
quitting.")).
Moreover, the timing of Gerald's resignation does nothing
to help her case. "If a plaintiff does not resign within a
reasonable time period after the alleged harassment, he was not
constructively discharged." Landrau-Romero v. Banco Popular De
Puerto Rico, 212 F.3d 607, 613 (1st Cir. 2000). Here Gerald
voluntarily resigned from the University (and immediately started
in a more lucrative position) a little over a year after the final
act of harassment and eight months after she was transferred to the
Laboratory. Her resignation came too late after the offensive
conduct and reassignment to be labeled a constructive discharge.
See id. (seven month period between harassing acts and resignation
was found to be too long to support a constructive discharge
claim); Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir.
1991) (six month period too great for a constructive discharge
claim).
-38-
After a thorough review of the record, we agree with the
district court that Gerald did not present enough evidence to
withstand summary judgment. The court's dismissal of her
constructive discharge claim is affirmed.
LAW 17 AND 69 CLAIMS
The final piece we must address is Gerald's state law
claims against Kraiselburd. Specifically she alleges that he
violated Puerto Rico Law 17, which provides that sexual harassment
in employment is "an illegal and undesirable practice," P.R. Laws.
Ann. tit. 29, § 155, and Law 69, which prohibits gender based
employment discrimination, id. § 1321. Gerald does not advance any
new arguments here but simply says that the same facts she alleged
to support her Title VII claims against the University were
sufficient to defeat summary judgment on the state law claims.
Kraiselburd's counter is two-pronged; he alleges that Gerald's
claims are time barred and then, in the alternative, attacks the
merits advancing essentially the same arguments the University did
on the Title VII front. We will start with the timeliness
question.
A one year statute of limitations applies to Law 17, id.
§ 155m; Valentín-Almeyda, 447 F.3d at 101, and Law 69 claims,
Rodríguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 60-61
(1st Cir. 2005). See Cabrero Pizarro v. Christian Private Acad.,
555 F. Supp. 2d 316, 319 (D.P.R. 2008). Kraiselburd contends - and
-39-
Gerald does not dispute - that the last action he took that could
be considered discriminatory or retaliatory was his demoting Gerald
to Resident Scientist, which he did in a letter dated June 29,
2007.11 Gerald filed her complaint in the district court over a
year later on September 22, 2008. Gerald says this is not a
problem for two reasons: one, Kraiselburd failed to make this
statute of limitations argument in his motion for summary judgment
and two, her filing of the EEOC complaint tolled the statute of
limitations.
We are less concerned that Kraiselburd, who did advance
a statute of limitations defense in his answer, has waived this
argument by failing to raise it in the summary judgment motion. An
appellee is typically free to defend a judgment below on any ground
made manifest by the record, McGuire v. Reilly, 260 F.3d 36, 50
(1st Cir. 2001), and we are similarly free to affirm a grant of
summary judgment for any reason apparent in the record, Jones v.
Secord, 684 F.3d 1, 5 (1st Cir. 2012). The real problem here is it
is not clear based on the record whether the statute of limitations
should be tolled.
11
Kraiselburd argues that the letter which he penned dated
December 4, 2007, which memorialized Gerald's transfer to the
Laboratory, should not be considered against him for statute of
limitations purposes because it was the University that took this
action. Even though he signed the letter, Kraiselburd said he had
no power to order Gerald transferred. Gerald does not argue
otherwise.
-40-
In Puerto Rico the filing of an EEOC complaint alleging
sex discrimination in violation of Title VII tolls the statute of
limitations on equivalent state law claims, Huertas-Gonzalez v.
Univ. of Puerto Rico, 520 F. Supp. 2d 304, 316-17 (D.P.R. 2007),
and this court has applied this principle to both Law 17 and 69
claims, Valentín-Almeyda, 447 F.3d at 101 (citing P.R. Laws Ann.
tit. 31, § 5303) (tolling a Law 17 claim); Rodríguez-Torres, 399
F.3d at 61 (tolling a Law 69 claim). We have held, at least in the
context of a Law 17 claim, and we see no reason why the same would
not apply to a Law 69 one, that there is an identicality
requirement and the extra judicial claim must be the same as that
later sought in court. Valentín-Almeyda, 447 F.3d at 101. The
defendant-employer must also be put on notice that a claim is being
pursued against him. Id.; Rodríguez-Torres, 399 F.3d at 61;
Huertas-Gonzalez, 520 F. Supp. 2d at 317.
In his brief to this court Kraiselburd claims that he was
not included as a respondent in the EEOC complaint (only the
University was he says) and that he never received notice of the
EEOC complaint. Whether either of these things would mean that
tolling would not apply is questionable. See Valentín-Almeyda, 447
F.3d at 101-02 (finding that an administrative charge that listed
the defendant supervisor as one of the individuals who
discriminated against the plaintiff and stated all the necessary
elements of a discrimination claim was enough to put the defendant
-41-
on notice and toll a Law 17 claim). But either way we cannot say
for sure. The EEOC complaint is not part of the record and so we
do not have any actual evidence of who was named, what was alleged,
or even the exact date the EEOC complaint was filed. Nor do we
have any evidence of whether Kraiselburd was actually on notice of
the complaint. Without this critical information we cannot decide
whether the statute of limitations should be tolled and therefore
cannot definitively say whether Gerald's state law claims are time
barred. We decline Kraiselburd's offer to affirm summary judgment
on timeliness grounds; the record is simply insufficient on this
point. Instead we turn to the merits of the state law claims and
these we can make quick work of.
Law 17 and 69 serve virtually the same purposes and
outlaw essentially identical behavior, and Law 69's specific
prohibition on gender discrimination overlaps with Law 17's bar on
sexual harassment. García v. Sprint PCS Caribe, 841 F. Supp. 2d
538, 564 (D.P.R. 2012). Furthermore, for our purposes, the
substantive law of Puerto Rico on sexual harassment appears to be
aligned with Title VII law; the latter's precedents being used
freely to construe the former. Hernández-Loring, 233 F.3d at 52(finding that Puerto Rico and Title VII law match up for purposes
of a hostile work environment and quid pro quo claim). Therefore
we need not say much on this point. For the same reasons summary
judgment should not have been granted on Gerald's Title VII sexual
-42-
harassment claim, it should not have been granted on her Law 17 and
69 claims. The district court erred.
CONCLUSION
For the reasons stated, we affirm the district court's
grant of summary judgment on the retaliation and constructive
discharge claim. The grant of summary judgment on the Title VII
sexual harassment claim (both hostile work environment and quid pro
quo) and the Law 17 and 69 state law claims is vacated and those
claims are remanded for further proceedings. Costs are awarded to
the appellant. So ordered.
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