Maldonado-Catala v. Municipality of Naranjito , 876 F.3d 1 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1637
MARIBEL MALDONADO-CÁTALA,
Plaintiff, Appellant,
v.
MUNICIPALITY OF NARANJITO; ORLANDO ORTIZ-CHÉVRES, in his
individual and official capacity as Mayor of Municipality of
Naranjito; MARIALIS FIGUEROA-NEGRÓN, in her individual and
official capacity as Director of the Human Resources Office of
the Municipality of Naranjito; JOSÉ TOMÁS RODRÍGUEZ-VÉLEZ, in
his official and individual capacity as Director of the
Municipal Emergency Management Office; JOSÉ AMUARY FIGUEROA, in
his official and individual capacity as Interim Chief of Field
Operations for the Emergency Management Office; HIRAM BRISTOL-
COLÓN, in his official and individual capacity as Former
Director of the Municipal Emergency Management Office,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, Magistrate Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Luis A. Rodríguez Muñoz, with whom Landrón Vera, LLC, Eduardo
A. Vera Ramírez, and Eileen Landrón Guardiola were on brief, for
appellant.
Efraim A. De Luna-Colon, with whom Gonzalez-Mendez Law Office
and Vivian Ivette Gonzalez Mendez were on brief, for appellee
Municipality of Naranjito and individual appellees in their
official capacity.
Luis R. Román-Negrón, Solicitor General, with whom Susana I.
Peñagarícano-Brown, Assistant Solicitor General, was on brief, for
individual appellees in their individual capacity.
November 21, 2017
LIPEZ, Circuit Judge. Appellant Maribel Maldonado-
Cátala ("Maldonado") claims that, over a period of years, she faced
abusive treatment from colleagues and superiors in the Emergency
Management Office ("EMO") of the Municipality of Naranjito. She
brought this suit alleging violations of federal and Commonwealth
anti-discrimination laws, asserting that the defendants' actions
were based on gender, and were in retaliation for her complaint
about a superior's sexual harassment. The district court granted
summary judgment for the defendants. On appeal, Maldonado
challenges only the dismissal of her claims premised on a hostile
work environment. Having carefully reviewed the record, we take
a different path but ultimately agree with the district court's
conclusion that these claims are not viable. Hence, we affirm its
judgment.
I. Background
A. The Facts
We present the facts in the light most favorable to
appellant, consistent with record support. See Alfano v. Lynch,
847 F.3d 71, 74 (1st Cir. 2017).
1. Maldonado's Employment and First Leave
Maldonado began working in the EMO as an emergency
medical technician in 2008, responding via ambulance when medical
or other emergency assistance was needed. After suffering a work-
related accident, Maldonado took leave from July 8, 2010 until
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April 3, 2012. In September 2010, while on leave, she accompanied
a co-worker to meet with the Municipality's Director of Human
Resources, Marialis Figueroa-Negrón ("Figueroa-Negrón" or the "HR
director"), to discuss sexual harassment by the EMO director, Hiram
Bristol-Colón ("Bristol"), against several female employees.
During that meeting, Maldonado reported comments made to her not
only by Bristol, but also by another EMO employee, José Amuary
Figueroa-Nieves ("Figueroa-Nieves"), who made crude jokes about
Maldonado's sexual orientation. Maldonado's co-worker, Jose Luis
Hernandez Rivera ("Hernandez"), testified in his deposition that
Figueroa-Nieves and at least one other EMO employee repeatedly
used slurs, such as "machito" (roughly translated as "manly") to
refer to Maldonado, and he described the situation as "like a
battle" because she was being attacked "all the time."
Shortly after the September 2010 meeting, the
Municipality hired an attorney to investigate the complaint
against Bristol, and Maldonado was one of the employees
interviewed. By the end of October 2010, the attorney had issued
a report finding that Bristol had engaged in misconduct and sexual
harassment, and recommending his removal from his position. At
the request of the mayor, Orlando Ortiz-Chévres, Bristol resigned
from his trust position as EMO director. For the next several
months, Ramón Vázquez Baez ("Vázquez"), the Municipal Police
Commissioner, also served as interim EMO director.
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Following the Bristol investigation, Maldonado was the
subject several times of derogatory comments posted on Facebook by
one or more individuals, using pseudonyms, referring to her
involvement in the matter. She highlights a Facebook message sent
to her personally at 10:46 PM on November 1, 2010, in which she
was called a "nasty lesbian," "whore," "snake," and "dike." The
message further stated: "I will see you fall you dirty lesbian and
every one of you one by one what you did to that man the one from
emergency management . . . remember that you have children that by
the way the boy is gay and the girl is a lesbo . . . ."
Understandably alarmed by this message, Maldonado filed
a police report the next morning that prompted an investigation.
Although the law enforcement inquiry indicated that the message
was sent from within the Municipality, and possibly from the EMO
or municipal police department, the police were unable to identify
the sender within the applicable one-year limitations period for
the misdemeanor that could have been charged based on the message.
Hence, in late 2011, the department terminated its investigation.
The primary police investigator, Officer Jackeline Candelaria
Curbelo ("Candelaria"), turned over her file to Maldonado,
reporting that "things had gotten complicated" and that "[t]hey
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used the municipality's computers and the internet to send you
this message."1
Meanwhile, Maldonado also had reported the messages
shortly after she received them to Figueroa-Negrón, the HR
director, who told her that she would pursue the matter within the
department after the police investigation and said "when the time[]
come[s] we will punish them." When Maldonado obtained the police
file in late 2011, she offered the documents to the mayor, who
initially expressed skepticism about investigating "a fake page,"
but then instructed Maldonado to deliver the materials personally
to Figueroa-Negrón when she returned from maternity leave in early
2012. In February 2012, Maldonado sent a letter to the mayor
requesting an administrative investigation. Maldonado suspected
Figueroa-Nieves, whom Vázquez, the Municipal Police Commissioner
and EMO interim director in late 2010 and early 2011, had put in
charge of the office's day-to-day operation while he handled police
1
In her deposition, Candelaria stated that she did not know
if the message could be traced back to a specific computer within
the Municipality. She explained that the police had determined
that the holder of the internet account at issue was the
Municipality of Naranjito, that the "service was installed at the
Emergency Management Office facilities," and that the phone
numbers associated with the account belonged to the EMO and the
Municipality's police department. As she was answering questions
at the deposition, however, she discovered that two different
account numbers were listed in the letter sent by the internet
service company to the police. Candelaria said she did not know
whether the identifying information provided was for the correct,
or incorrect, account number.
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work. In that role, Figueroa-Nieves would have had access to the
EMO computer identified as a possible source of the message. To
Maldonado's knowledge, no internal investigation took place.
2. Maldonado's Work Experience Post-Leave
Maldonado returned to work in April 2012. Although the
doctor for the State Insurance Fund told her that her back sprain
was not fully healed at that point, and she should not yet return
to work, he nonetheless gave her the required form when Maldonado
explained that she had been denied an additional six-month leave
and could not afford to lose her job.2 The form reported that she
would continue receiving treatment while working.
Just before resuming her position, Maldonado met with
Figueroa-Negrón and the EMO director appointed in February 2011,
José Tomás Rodríguez Vélez ("Rodríguez"), to inform Rodríguez
2
At one point in her deposition, Maldonado stated that she
was denied leave "as soon as they received notification of the
police complaint and investigation." That assertion, however, is
belied by more specific evidence in the record. Maldonado
testified that she told her superiors in late 2010 that she had
filed a police complaint after the November 1 Facebook message,
and she also testified that she "maintained contact continuously"
with the HR director and mayor's office during the course of the
police investigation. Meanwhile, three times during the one-year
period from December 2010 through December 2011, she was granted
additional leave. See App'x at 270-71 (requests in August and
June 2011, and approval through December 31, 2011); id. at 268-69
(request for three-month extension, dated December 11, 2011, and
approval of leave through March 31, 2012). Maldonado also
acknowledges that the municipality is obligated to retain a
position for an employee on medical leave only for one year,
meaning that she could have been terminated in July 2011.
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about the Facebook-related investigation involving EMO employees
"so that he knew and understood and [could] try not to make us
work the same schedules and so that he [could] be [on the] look
out." They also discussed Maldonado's need to reactivate her
professional licenses, which had lapsed while she was out, so she
could be assigned paramedic duties. According to Maldonado,
Rodríguez told her "that since my licenses were past due, that he
needed a janitor for the office."
Rodríguez and Figueroa-Negrón initially gave Maldonado
two months to renew her licenses, but Maldonado testified that
they "understood that it wasn't humanly possible to comply with
all those requirements in two months." They told her there would
be no problem if she "kept bringing them certifications" showing
that she was moving toward fulfilling the licensing requirements.3
For the first couple of months after her return, Maldonado was
assigned exclusively to the EMO office answering phones.4 She
attributed that placement to "my condition and they saw that my
licen[s]es were not up to date."
3 Maldonado testified that, by November 2012, she had provided
documentation for CPR training, sign language instruction, and the
Public Service Commission license for driving an ambulance. She
had still not taken the practical exam administered by the Medical
Emergency Technician Examination Board, which was offered
infrequently.
4 Maldonado reports no further mention of the janitorial
position.
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Maldonado testified that, at the time she was assigned
to phone duty, she was the only paramedic who lacked full licensing
who was not allowed to work in the field. Although it had been
common in the past for EMO employees to perform paramedic work
without full licensing, an ongoing office restructuring process
sought to bring all employees into compliance with the licensing
requirements. Nonetheless, the other employees who had not yet
fulfilled the requirements continued to go out on emergency calls.
Maldonado further testified that male employees had received
reimbursement for their licensing costs before her accident and
leave, but she had been denied financial assistance when she
requested it upon her return to work in 2012. She acknowledged
that the reimbursement rules had changed in the interim, but she
followed the new procedure and first sought approval from the EMO
director, who denied her request.
During her first few months back on the job, Maldonado
received favorable reviews from her supervisor. On a day in mid-
June, Maldonado was assigned to an ambulance for field duty because
the paramedic originally designated for that assignment was
absent. In her brief, she notes that "[t]his was done despite her
physical limitations and previous injuries." Thereafter,
Maldonado was assigned shifts both at the call center and driving
ambulances. She testified that it was difficult for her to be
"out on the street, . . . with the gurney and the things you have
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to do, so my back would get injured." In November 2012, she had
another work-related accident that resulted in an extended leave.
A year later, in November 2013, the mayor told her she was being
terminated because the one-year statutory period for reserving her
job had ended.
B. Legal Proceedings
While still employed, Maldonado filed a charge on May
24, 2012 against the Municipality with the Equal Employment
Opportunity Commission ("EEOC") claiming sex-based discrimination
and retaliation. She alleged that (1) she and others were harassed
after they participated in the investigation against Bristol, (2)
she returned to work "under coercion," (3) the Municipality
discriminated against her based on her gender in refusing to
reimburse her licensing costs and allowing males to work as
paramedics without the required certifications, and (4) the
municipality "allowed its employees to use government equipment to
smear my image as a woman, alluding to falsehoods because of my
sexual orientation." She specifically alleged that Figueroa-
Nieves had on numerous occasions publicly directed homophobic
epithets at her.
The EEOC found no unlawful conduct directed against
Maldonado, instead concluding that the Municipality "ha[d] tried
to mediate and address all the concerns of the Employee." The
agency gave Maldonado a right-to-sue letter. In July 2013, she
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filed this action against the Municipality and various officials
in their official and individual capacities: Ortiz-Chévres (the
mayor), Figueroa-Negrón (the HR Director), Rodríguez (the EMO
Director), Figueroa-Nieves (the co-worker whom she claims
routinely harassed her at work and sent the Facebook message), and
Bristol (the EMO Director who was terminated). Maldonado claimed,
inter alia, that the defendants discriminated against her based on
her gender and sexual preference, and exposed her to a hostile
work environment and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and in
violation of various provisions of Puerto Rico law.
The defendants moved for summary judgment, which the
district court initially granted in part and denied in part.5 In
its first ruling, the court rejected Maldonado's retaliation
claims based primarily on her failure "to establish a causal link
between her termination in 2013 and her participation in the
investigation against Bristol in 2010, which is the only protected
conduct she alleges formed the basis for retaliation." Maldonado-
Cátala v. Municipality of Naranjito, 255 F. Supp. 3d 300, 320
(D.P.R. 2015). The court also granted summary judgment for the
5The district court addressed only Maldonado's hostile work
environment and retaliation claims because Maldonado did not
present developed arguments on any other theory. See Maldonado-
Cátala v. Municipality of Naranjito, 255 F. Supp. 3d 300, 310 n.7
(D.P.R. 2015).
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individual defendants on the gender- and retaliation-based hostile
work environment claims because Title VII does not provide for
individual liability, id. at 321-22, but it allowed those claims
to proceed against the Municipality. The court also denied summary
judgment on multiple state law claims against all defendants.
On reconsideration, the district court dismissed all of
the claims.6 In its second ruling, the court held inadmissible a
significant portion of the evidence on which it previously had
relied to conclude that Maldonado's sex-based hostile work
environment claims could proceed. It concluded that the statements
Maldonado attributed to male co-workers who were allowed to
function as paramedics -- i.e., that they also lacked the required
licenses -- were inadmissible as hearsay. Maldonado-Cátala v.
Municipality of Naranjito, No. 3:13-cv-01561-BJM, 2016 WL 1411355,
at *2 (Apr. 11, 2016). In addition, the court held that
Maldonado's evidence was insufficient to permit a reasonable jury
to find that the Facebook messages originated from a computer in
the EMO. Id. The court further noted that, in any event, Maldonado
could not prove a hostile work environment in reliance on those
messages because she was on leave at the time they were sent and
6 Following the initial summary judgment decision, the
Municipality moved for reconsideration, and both the Municipality
and the individual defendants moved for judgment on the pleadings.
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she reported no incidents of harassment once she returned to work
in April 2012. Id. at *3.
The district court similarly found Maldonado's
retaliation-based hostile environment claim unsupported by the
proffered evidence. The court viewed Rodríguez's "antagonistic
statement" about giving Maldonado janitorial duties as, at most,
an isolated remark. Id. The court further held that, "more
importantly," the record lacked evidence that Rodríguez was aware
of Maldonado's participation in the Bristol investigation, and it
observed that "the temporal proximity between the sexual
harassment investigation in October 2010 and Rodriguez's statement
in April 2012 further militates against a causal link." Id. at
*4.
The court also concluded that, given the "evidentiary
shortcomings" concerning the defendants' alleged conduct in 2012
(the unequal treatment and hostile remark), those actions could
not serve as anchoring incidents that would bring conduct prior to
November 2011 -- i.e., the Facebook posts and workplace epithets
-- within the applicable Title VII statute of limitations. Id.
As to the Commonwealth claims, the court held that they failed on
the same evidentiary grounds, were time-barred, or suffered from
multiple defects. Id. at *5.
On appeal, Maldonado argues that the district court
erroneously concluded that she failed to show a genuine factual
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dispute as to whether she experienced a hostile work environment
based on gender and retaliatory motivation, and also erred in
finding those claims to be untimely. She asserts that, given the
timeliness of her federal claims, her claims under Puerto Rico Law
17 and Law 69 also should be reinstated.7
II. Discussion
A. Standard of Review
We review a district court's grant of summary judgment
de novo, taking the evidence in the light most favorable to the
non-moving party and drawing all inferences in her favor. See,
e.g., Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014).
"Summary judgment is inappropriate if the evidence 'is
sufficiently openended to permit a rational fact finder to resolve
the issue in favor of either side.'" Id. (quoting Gerald v. Univ.
of P.R., 707 F.3d 7, 16 (1st Cir. 2013)). To survive a motion for
summary judgment, however, the non-movant must "demonstrat[e],
through submissions of evidentiary quality, that a trialworthy
issue persists." Cruz v. Mattis, 861 F.3d 22, 25 (1st Cir. 2017)
(quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.
2006)). We are not limited by the district court's reasoning, but
may affirm a grant of summary judgment "on any ground made manifest
7
Maldonado does not discuss in her brief a claim of
retaliation except in the context of a retaliatory hostile work
environment. Any such additional retaliation-based claim is
therefore waived.
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by the record." Geshke v. Crocs, Inc., 740 F.3d 74, 76-77 (1st
Cir. 2014).
B. Statute of Limitations
Maldonado filed her EEOC discrimination charge without
first filing a charge with the Commonwealth Department of Labor,
and it is undisputed that the limitations period for her claims is
thus 180 days. See 42 U.S.C. § 2000e-5(e)(1).8 That 180-day
period extends back to November 26, 2011,9 and, accordingly, any
unlawful employment practice that occurred earlier is not
actionable on its own. See Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 109 (2002) ("A claim is time barred if it is not
filed within these time limits."). However, under the continuing
violation doctrine, "a plaintiff may obtain recovery for
discriminatory acts that otherwise would be time-barred so long as
a related act fell within the limitations period." Tobin v.
Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009).
8 A plaintiff must file an administrative complaint with the
EEOC within 180 or 300 days after the alleged unlawful employment
practice occurred. The 300-day filing deadline applies when the
plaintiff has filed first with a state or local agency. See 42
U.S.C. § 2000e-5(e)(1).
9 Pursuant to Title VII's filing requirements, the calculation
of Maldonado's limitations period begins with the filing of her
EEOC complaint on May 24, 2012. The applicable procedure then
calls for counting back 180 days to determine the earliest possible
date that an unlawful employment action could have occurred and
still be actionable. The parties do not dispute that, based on
the 180-day calculation here, Maldonado must show an unlawful
employment practice that occurred on or after November 26, 2011.
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We have described a hostile work environment as "[t]he
classic example of a continuing violation" because the actionable
wrong consists of an accumulation of "'individual acts that, taken
together, create the environment.'" Id. (quoting Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618, 638 (2007)). Hence, all
of the "component acts" alleged in a hostile work environment claim
may be considered in determining liability even if they occurred
outside the limitations period. Id. (quoting Morgan, 536 U.S. at
117); see also Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d
15, 18-19 (1st Cir. 2008) (noting that the continuing violation
doctrine "allow[s] suit to be delayed until a series of wrongful
acts blossoms into an injury on which suit can be brought" (quoting
Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 801 (7th
Cir. 2008)).
Maldonado asserts that she was subjected to abusive
working conditions throughout her employment at the EMO, starting
with the homophobic insults and jokes directed at her prior to her
first medical leave, followed by the Facebook posts after she
complained about Bristol during that medical leave, and continuing
with her treatment after she returned to work in April 2012 from
her extended leave. The evidence that Maldonado was the target of
persistent offensive comments by Figueroa-Nieves and Bristol from
early in her employment might support a finding that she faced a
cognizable abusive environment before the limitations cutoff date.
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Whether the Facebook harassment in late 2010 is properly included
as part of that environment is debatable, however, given that she
was on extended leave at that time.10 Regardless, all of this
conduct is off limits unless Maldonado can surmount the time-bar
for actions that occurred before the end of 2011. Consistent with
the precedent described above, we may consider the defendants'
alleged behavior in the early years of Maldonado's employment only
if at least one of the incidents that occurred after November 26,
2011 -- the earliest date within the limitations period --
constitutes part of the same hostile work environment as the
alleged wrongful conduct that preceded that date.
We thus next consider whether a reasonable jury could
find, based on the record before us, that Maldonado experienced
instances of harassment after November 26, 2011 that were part of
an ongoing gender-based or retaliatory hostile work environment.
10
Maldonado correctly notes that our precedent permits
consideration of non-workplace conduct "to help determine the
severity and pervasiveness of the hostility in the workplace" and
to establish the unlawful motivation. Crowley v. L.L. Bean, Inc.,
303 F.3d 387, 409 (1st Cir. 2002); see also O'Rourke v. City of
Providence, 235 F.3d 713, 724 (1st Cir. 2001) (noting that
plaintiff's abusive treatment, causing her to be a "nervous wreck"
at work, included crank phone calls received at home). In those
cases, however, the plaintiffs' employment was active, and the
outside incidents allegedly affected the plaintiffs'
contemporaneous working conditions. Here, by contrast, Maldonado
had been on leave for months at the time of the Facebook messages,
and she did not return to work for more than a year afterwards.
Given our disposition, we need not consider the applicability of
the "non-workplace" precedent to the different circumstances here.
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C. Title VII Workplace Harassment
1. The Requisite Abusive Conduct
To succeed with a hostile work environment claim, a
plaintiff must show harassment "sufficiently severe or pervasive
so as to alter the conditions of [her] employment and create an
abusive work environment." Pérez-Cordero v. Wal-Mart P.R., Inc.,
656 F.3d 19, 27 (1st Cir. 2011). The challenged conduct must be
"both objectively and subjectively offensive, such that a
reasonable person would find it hostile or abusive and [the
plaintiff] in fact did perceive it to be so." Id. In performing
this inquiry, "a court must mull the totality of the circumstances,
including factors such as the 'frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interfere[d] with an employee's work performance."
Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005)
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)); see also O'Rourke v. City of Providence, 235 F.3d 713,
729 (1st Cir. 2001). The harassment also must stem from an
impermissible motivation, which in this case is alleged to be both
gender and retaliation. See Noviello, 398 F.3d at 84, 88
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(recognizing hostile environment claims alleging sexual and
retaliatory animus).11
2. Maldonado's Work Environment after November 26, 2011
The timely conduct that Maldonado alleges to support her
hostile work environment claim consists primarily of the
following: (1) the defendants' failure to investigate the Facebook
postings at the conclusion of the police investigation in December
2011; (2) the "coercion" that caused her to return to work before
she was fully healed from her injuries, along with Rodríguez's
comment suggesting that she would be assigned janitorial duties;
and (3) the unequal treatment she experienced, both in her work
assignments and in the refusal to reimburse her licensing costs.12
11 We have identified six elements that a plaintiff must
establish to succeed with a gender-based hostile work environment
claim under Title VII. See, e.g., Ponte v. Steelcase, Inc., 741
F.3d 310, 320 (1st Cir. 2014); see also 42 U.S.C. § 2000e-2(a)
(barring sex-based discrimination). In addition to proving that
she experienced (1) unwelcome harassment that was (2) severe or
pervasive, and (3) both objectively and subjectively offensive,
the plaintiff must show (4) membership in a protected class, (5)
that the harassment was motivated by sex, and (6) a basis for
employer liability. See Ponte, 741 F.3d at 320. To make a prima
facie showing of a retaliation-based hostile work environment in
violation of Title VII, the gender-based requirements are replaced
by the need to show a causal link between protected activity and
the hostile environment. See Noviello, 398 F.3d at 88-90; see
also 42 U.S.C. § 2000e-3 (barring retaliatory discrimination).
12Maldonado also states that she was subject to "name calling
regarding her sexual preference," which her co-worker, Hernandez,
described as a four-year "battle." However, neither Maldonado nor
Hernandez point to incidents that occurred after the Facebook
message in November 2010. Hernandez said he reported the
persistent insults to Bristol, but that report necessarily
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A careful review of the record reveals that none of these
alleged mistreatments, in isolation or taken together, has
sufficient grounding to support a jury finding that Maldonado
suffered "severe or pervasive" harassment that "alter[ed] the
conditions of [her] employment and create[d] an abusive work
environment" extending into the relevant time period. Pérez-
Cordero, 656 F.3d at 27. First, Maldonado does not explain how
her daily work life was impacted by her superiors' failure to
investigate the Facebook posts following the police investigation.
occurred before Bristol's termination in late October 2010. Hence,
at best, Maldonado offers only conclusory allegations of verbal
attacks within the limitations period, which we do not consider.
See, e.g., Nieves-Romero v. United States, 715 F.3d 375, 378 (1st
Cir. 2013) ("To be genuine, a factual dispute must be built on a
solid foundation -- a foundation constructed from materials of
evidentiary quality.").
In addition, under longstanding First Circuit precedent,
harassment based on Maldonado's perceived sexual orientation is
not actionable under Title VII. See Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999). Other
circuits have recently been reconsidering similar precedent. See
Hively v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339, 340-41 (7th
Cir. 2017) (en banc) (overturning prior Seventh Circuit precedent
and holding that "discrimination on the basis of sexual orientation
is a form of sex discrimination" under Title VII); see also Zarda
v. Altitude Express, 855 F.3d 76, 80 (2d Cir. 2017) (per curiam)
(stating that a three-judge panel lacks authority to revisit Second
Circuit precedent equivalent to Higgins), reh'g en banc granted,
No. 15-3775 (May 25, 2017). Much of the verbal harassment
Maldonado describes falls within the sexual orientation category.
Given our disposition, we have no occasion to revisit our Title
VII sexual orientation precedent. Nor need we decide whether
enough of the comments could be characterized as gender-based,
rather than based on sexual orientation, to support a Title VII
hostile environment claim under our current caselaw.
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We do not doubt that the inaction was upsetting to Maldonado, but
without more, a jury could not reasonably view the lack of follow-
through as on-the-job harassment that altered her working
conditions.
Second, the allegation of coercion and the janitor
comment both lack probative force. Although Maldonado claims that
she was compelled to return to work prematurely because she was
denied additional leave, she previously had been granted a series
of leaves, spanning twenty months, and acknowledges that she was
subject to termination after she had been out of work for a year.
To be sure, a jury could find that Maldonado felt forced to return
to work to preserve her job. Yet the mayor's mere refusal to
extend her leave beyond March 31, 2012 -- again, without more --
cannot reasonably be viewed as an act of workplace harassment.
Likewise, Maldonado's attempt to characterize as an instance of
abuse Rodríguez's comment that the EMO needed a janitor -- a remark
neither reiterated nor acted upon -- does not have enough
evidentiary significance to provide the basis for a hostile work
environment claim. See Faragher, 524 U.S. at 788 ("[O]ffhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
of employment." (internal quotation marks omitted)). Absent
follow-up by Rodríguez, that untoward comment is inconsequential
and not reasonably characterized as workplace abuse.
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Third, the record does not substantiate Maldonado's
allegation of unequal treatment. Her assertion of discrimination
in work assignments is premised on her exclusion from ambulance
shifts while men with equal or lesser qualifications were assigned
field duty.13 Yet, approximately two months after she returned to
work -- when she had reacquired CPR and ambulance driving licenses,
but had not yet satisfied all of her paramedic licensing
requirements -- Maldonado was assigned shifts both at the call
center and in ambulance crews. Importantly, despite her
insinuation that work at the call center was inferior to street
work, she testified that ambulance assignments were difficult for
her because of her ongoing physical problems. In other words,
Maldonado at times indicated that being assigned to field duty,
rather than her exclusion from it, was the problem.
Given her own inconsistent depictions of the work she
wanted, and the evidence that she was assigned ambulance duties
before she was fully licensed, a reasonable factfinder could not
conclude that the defendants created an abusive work environment
by denying Maldonado paramedic tasks that were given to less-
13We use various terms -- including "ambulance shifts,"
"field duty," and "street work" -- to describe the active, out-
of-office duties that Maldonado claims she was denied, all of which
are intended to distinguish such assignments from the sedentary
work she performed at the call center.
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credentialed males.14 Relatedly, Maldonado acknowledges that,
despite the two-month deadline given to her for reactivating all
of her licensing, she was allowed to take more time so long as she
was making incremental progress. That flexibility further
undermines the allegation of an abusive environment. As to
reimbursement for the costs of licensing, Maldonado based her
allegation of differential treatment solely on her experience
before she went on leave in 2010, when Bristol was the EMO
director, and offered no evidence that her male colleagues were
treated differently by Rodríguez, the EMO director who denied her
request in 2012. Indeed, she quoted Rodríguez as saying that,
regardless of what the prior director had done, "he was not going
to do it." On this evidence, a factfinder could not find unequal
treatment that amounted to harassment.
We recognize that "[t]he accumulated effect" of
behaviors that individually fall short may, taken together,
constitute a hostile work environment. O'Rourke, 235 F.3d at 729.
In addition, we must consider the post-leave actions in the context
of Maldonado's experiences prior to the limitations period. Even
taking a broad view, however, the evidence Maldonado presents is
14
We note that the district court based its second summary
judgment ruling, in part, on its view that the statements of
Maldonado's male co-workers about their lack of licensing were
inadmissible as hearsay. We need not address that holding because,
as described above, Maldonado's assertion of unequal treatment
fails even if we consider her co-workers' statements.
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inadequate to allow a finding that the defendants' post-leave
conduct contributed to an ongoing hostile work environment
reflecting gender discrimination or retaliatory animus. With her
conceded physical limitations, there is nothing objectively
oppressive in her depiction of the assignments she was given. The
unsubstantiated reimbursement allegation and the single comment
from Rodríguez do not change the landscape.
Moreover, even if any of the circumstances she faced
after returning to work could have been characterized as abusive,
Maldonado offers no evidence that would permit a jury to attribute
her treatment to the gender-based or retaliatory motivation that
fueled the time-barred harassment she suffered in the fall of 2010.
See, e.g., Alvarado v. Donahoe, 687 F.3d 453, 459 (1st Cir. 2012)
(noting the need for "a causal connection" between protected
conduct and alleged retaliatory actions); Pérez-Cordero, 656 F.3d
at 27 (stating that the plaintiff must show, inter alia, "that the
harassment was based upon sex"). Although Maldonado believes that
Figueroa-Nieves was responsible for the Facebook posts, and she
claims that he also was the primary source of the earlier insults
and jokes, she does not cite any verbal attacks or other harassment
by him within the limitations period.15 Rodríguez, the EMO
15To the contrary, Maldonado admitted that, a month or so
before Figueroa-Nieves received notice of this lawsuit -- i.e., in
mid-2013 -- he loaned her $200, which she repaid, and that the
conversations between them were "cordial." She also admitted that,
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director, was not with the agency during the earlier period; he
took over as director in February 2011. Even if he knew about her
complaint against Bristol, there is no evidence of a retaliatory
(or gender-based) motivation for his actions in assigning duties,
refusing to reimburse licensing costs, or, indeed, for his alleged
observation that the office needed a janitor.16 The other two
defendants with influence over Maldonado's employment in 2012 --
Figueroa-Negrón and the mayor -- had both responded quickly to the
complaints about Bristol, and no evidence in the record would
support a finding that their failure to actively pursue the
Facebook perpetrator at the conclusion of the police investigation
stemmed from gender-based or retaliatory animus.17
We do not minimize the harassment that Maldonado alleges
she encountered before, and in the immediate aftermath of, her
participation in the investigation that led to Bristol's removal
around the same time, she gave Figueroa-Nieves a medical
emergencies bag that "she understood he needed . . . for his work."
16Maldonado also complains that Rodríguez routinely assigned
her to the 11 PM to 7 AM shift in dispatch, making it difficult
for her to care for her family and also complete the licensing
requirements. She testified that past practice had been to rotate
the overnight shifts. However, the work logs submitted by her
attorney to the EEOC show Maldonado working a variety of shifts.
17 As an aside, we question the district court's conclusion
that Maldonado's offered evidence was insufficient to permit a
reasonable jury to find that the Facebook messages originated from
a computer in the EMO. However, that factual finding is of no
consequence to our analysis because, as we have explained, the
Facebook harassment is time-barred.
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from the EMO. As our discussion demonstrates, however, Maldonado
has not met her burden to produce competent evidence showing that
any of the work conditions she encountered within the statute of
limitations period amounted to harassment on the basis of the
improper motivations she alleges. Accordingly, the district court
properly granted summary judgment for defendants on her Title VII
hostile environment claim.
D. Commonwealth Law Claims
With respect to her claims under Puerto Rico law,
Maldonado argues only that the district court erred in dismissing,
as time-barred, the claims brought under Puerto Rico Law 17 and
Puerto Rico Law 69. She asserts that Puerto Rico recognizes the
same continuing violation theory that is applicable to her Title
VII hostile work environment claim and, hence, the equivalent
commonwealth-law claims should be reinstated based on her
arguments concerning the federal claim. Our analysis above thus
disposes of these claims as well.
III. Conclusion
For the foregoing reasons, we affirm the grant of summary
judgment for all defendants on appellant's hostile work
environment claims under both federal and Commonwealth law.
So ordered.
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