Hernandez v. Wilkinson

United States Court of Appeals
For the First Circuit
No. 19-1711
CASANDRA HERNÁNDEZ,
Plaintiff, Appellant,
v.
ROBERT MONTAGUE WILKINSON,
Acting Attorney General,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Bámily López Ortiz on brief for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant U.S. Attorney, Chief, Appellate Division,
Antonio L. Perez-Alonso, Assistant United States Attorney, on
brief for appellee.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney Robert Montague Wilkinson has been substituted for
former Acting Attorney General Jeffrey Rosen.
January 27, 2021
BOUDIN, Circuit Judge. In January of 2016, Casandra
Hernández, a Drug Enforcement Agency ("DEA") employee since 1999,
was promoted to Secretary for the Assistant Special Agent in Charge
and began working at the District Office in Ponce, Puerto Rico.
That July, Dave E. Joseph was appointed the new Assistant Special
Agent in Charge under Matthew G. Donahue, the Special Agent in
Charge.
On September 30, 2016, Hernández fractured a bone in her
foot and requested several accommodations from Joseph. He approved
some of her requests, for example, a more accessible parking spot
and a schedule change, but not others, including her application
for "advanced sick leave." She also asked for a reassignment so
that she could work from her old office, but Donahue denied the
request.
On November 22, 2016, Hernández filed a complaint with
the Equal Employment Opportunity Office of the DEA ("EEO Office")
against Joseph and Donahue, alleging discrimination on the basis
of her disability and her nationality as a Puerto Rican.
Part of Hernández's role as secretary was to distribute
money that agents could use in their operations. The distribution
window was monitored by video cameras, and Hernández complained
that she was uncomfortable being watched. Donahue told Hernández
that she could install a partition between the part of her office
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in view of the cameras and the part of her office that was private,
but Hernández never did so.
All was quiet until September 1, 2017, when Special Agent
Phillip Jones asked to audit the funds that Hernández had
distributed. The two got into a heated argument. Both parties
were reprimanded, and Hernández was temporarily assigned to the
DEA office in San Juan. Hernández reported the incident to the
EEO office.
In mid-October, Donahue revoked Hernández's permit for
outside employment, stating that it interfered with Hernández's
"availability at work," and proposed that she be suspended for
five days. One of the complaints in the proposed suspension
reported that:
you have been directed to adjust your
work attire. Your customary office
attire is unprofessional and has made
both male and female employees feel
embarrassed and uncomfortable to be
around you. By not wearing professional
office attire, employees have been
subjected to witnessing your cleavage
being entirely exposed almost daily since
Nov. 2015. Consequently, this made male
employees uncomfortable when conversing
with you. You have repeatedly been
observed bending over in front of male
employees and, due to the inappropriately
short length of your dresses/skirts: your
actions result in exposing your posterior
to them. Your selection of office attire
has created an extremely awkward and
embarrassing office environment.
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The suspension was approved by an outside administrator
for reasons that did not include Hernández's work attire.
Hernández then filed a new EEO complaint, alleging that she had
been subjected to sexual harassment. She asserts that the proposed
suspension proved Joseph had been watching her cleavage and
posterior both in the office and on videotape and that Joseph
sexually harassed her by doing so.
On November 6, 2017, Hernández sued her employer in the
United States District Court for the District of Puerto Rico,
claiming that she had been discriminated against because of her
national origin, disability, and sex and that she had been
subjected to illegal retaliation for her EEO activity. The
government moved for summary judgment, and in response, Hernández
tendered a global cross-reference to her complaint and to her
opposition to the government's statements of material fact without
further developing her arguments. The district court granted
summary judgment to the government on all claims.
Hernández has appealed only the sex discrimination and
retaliation claims. This court reviews the district court's
summary judgment order de novo, drawing all reasonable inferences
in favor of Hernández to determine whether she has put forward
competent evidence to show a genuine dispute as to any material
fact. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013).
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Sex Discrimination. Title VII of the Civil Rights Act
of 1964 provides employees with the right to work in an environment
free from discrimination "because of such [employee's] race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-
2(a)(1). Employees of government agencies have the same guarantee
under 42 U.S.C. § 2000e-16(a). To prevail on a hostile work
environment claim based on sex discrimination, an employee must
show:
(1) that she (or he) is a member of a
protected class; (2) that she was
subjected to unwelcome sexual
harassment; (3) that the harassment was
based upon sex; (4) that the harassment
was sufficiently severe or pervasive so
as to alter the conditions of plaintiff's
employment and create an abusive work
environment; (5) that sexually
objectionable conduct was both
objectively and subjectively offensive,
such that a reasonable person would find
it hostile or abusive and the victim in
fact did perceive it to be so; and (6)
that some basis for employer liability
has been established.
O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001).
Hernández did not provide evidence of severe or
pervasive harassment. First, Hernández alleges that Joseph used
the video camera in her office to watch her but puts forward no
evidence of such behavior.
Hernández also did not put forward competent facts
showing that Joseph leered at her. Frequent and/or intense staring
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at an employee's body can be the basis for a hostile work
environment claim. Billings v. Town of Grafton, 515 F.3d 39, 50-
51 (1st Cir. 2008). However, simply looking at a colleague,
without evidence that those looks were, inter alia, severe, an
unreasonable interference with work, or physically threatening or
humiliating does not constitute harassment. Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993).
With respect to Jones, Hernández admits that the
altercation with Jones was an isolated incident that was purely
work related. It thus did not constitute sexual harassment. See
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Retaliation. Title VII also protects employees from
being discriminated against "because [the employee] has opposed
any practice made an unlawful employment practice by this
subchapter, or because [the employee] has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-
3(a).1 "In order to establish a prima facie case of retaliation,
[an employee] must show that (1) she engaged in protected conduct;
(2) she was subjected to an adverse employment action; and (3) the
adverse employment action is causally linked to the protected
1
The parties did not contest whether Title VII's protection
against retaliation applies to federal agency employees under 42
U.S.C. § 2000e-16. For purposes of this opinion, we assume without
deciding that it applies.
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conduct." Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 94
(1st Cir. 2018). A report of conduct that allegedly violates Title
VII is protected if the employee who reported the conduct had a
"good faith, reasonable belief that the underlying challenged
actions of the employer violated [Title VII]." Fantini v. Salem
State College, 557 F.3d 22, 32 (1st Cir. 2009) (citation and
quotations omitted).
Prior to the incidents at issue, Hernández filed a
complaint against a different colleague with whom she had a heated
argument2 and was informed that such isolated, work-related
disputes do not create a hostile work environment under Title VII.
She therefore could not have had a good faith, reasonable belief
that a similar fight with Jones constituted a Title VII violation,
and thus, reporting it was not a protected activity.
Unlike the allegations with respect to her one-time
dispute with Jones, neither party challenges Hernández's good
2 In her prior complaint, Hernández claimed that a fellow
employee discriminated against her on the basis of her age after
that employee commented on her age and screamed "[n]obody likes
you, nobody wants you here, look at you, look at you, and you
should get out of here! I hate you, I can’t stand you, and I can’t
even look at you, if nobody dares to tell you, I will, they don’t
want you here." To the extent that Hernández alleges she was a
victim of retaliation because of that complaint, the district court
found that Hernández could not have reasonably believed that her
report fell within the scope of Title VII protected activity, and
on appeal, she devotes only a sentence to challenging that ruling,
with no argument or citations. That challenge is therefore waived.
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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faith, reasonable beliefs that the remaining allegations in the
EEO complaints filed in November 2016 and October 2017 constituted
violations of Title VII. The question thus becomes whether
Hernández was subjected to a materially adverse employment action
because of those reports. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006).
On appeal, Hernández draws attention to three alleged
incidents of retaliation that occurred after Joseph and Donahue
found out about her November 2016 complaint. First, she argues
that being detailed to San Juan in September 2017 after her
altercation with Jones was retaliatory. However, the record
contains no evidence to show that her EEO complaint was a but-for
cause of that temporary detail. See Ponte v. Steelcase Inc., 741
F.3d 310, 321 (1st Cir. 2014).
Second, Hernández contends that her suspension was in
retaliation for her EEO activity. However, the memorandum given
to Hernández explaining why Donahue had recommended a suspension
provided eight reasons that had nothing to do with her prior
complaint, and Hernández has made no attempt to show that those
reasons were pretextual. See id. at 323.
Finally, Hernández had permission to sell baked goods
outside of the office. She argues that Donahue retaliated against
her when he revoked that authorization, but that revocation
occurred in October 2017, almost a year after her complaint.
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Without putting forth evidence of a causal connection between the
complaint and the revocation, her claim of retaliation cannot
survive summary judgment. See id. at 322.
Affirmed.
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