Federal District Court Opinions

03-1035 (SEC). United States District Court, D. Puerto
Rico. July 29, 2005


JUSTO ARENAS, Magistrate Judge


Plaintiff Genevieve Cauti?„o Laboy (hereinafter “Cauti?„o”)
and her daughter Karina Mart?­nez Cauti?„o (hereinafter
“Mart?­nez”), filed a complaint on January 14, 2003 against
Cauti?„o’s former employer Hotel San Juan y Casino and/or
Wyndham International, Inc. (hereinafter collectively
referred to as the “Hotel”) and the Risk Manager of the
Hotel, Julio Solla (referred to hereinafter as “Solla”).
(Docket No. 2.) Cauti?„o claims to have been the victim of
sexual harassment, hostile work environment and
retaliation, which would be violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(hereinafter “Title VII”).[fn1] This activity allegedly
occurred while Cauti?„o was an administrative assistant in
the Risk Page 2 Management Department and while under the
administrative and supervisory control of Mr. Solla. She
has also invoked this court’s supplemental jurisdiction, 28
U.S.C. § 1367, although in not so many words, to
assert a cause of action under Puerto Rico law. The
following are the relevant allegations in plaintiffs’

Around July 2001, Solla made numerous physical and
emotional contacts with Cauti?„o, including asking her to
live with him in exchange for an increased salary. He gave
her numerous gifts and asked her to travel with him outside
of Puerto Rico. These unwanted incidents allegedly occurred
on a daily basis, affecting her health and job performance.
As a result of his conduct, Cauti?„o referred a complaint to
the Human Resources Department and Director of Security of
the Hotel. As a consequence of the investigation that arose
from her complaint, Solla[fn2] was allegedly fired in
October 2001.

Plaintiffs note in the complaint that Solla had a history
of this type of discriminatory action against other female
employees. Plaintiff alleges that as a result of her
actions, she became the object of retaliatory actions,
including being assigned to perform chores not in keeping
with her job duties, such as lifting heavy boxes, packing
documents for shipping, moving heavy boxes of documents
into Page 3 storage, performing inventory of old documents
which were to be disposed of, cleaning and moving
furniture, as though a housekeeper. She became the object
of ridicule of other employees by performing tasks not
suitable for her, including taking silly messages to
different offices. Her environment was full of dust and
garbage while she packed boxes. The stacking of old
documents in old boxes created a dangerous and
environmental hazard. Communication with fellow employees
became hostile. Those employees made comments behind her
back that she deserved the treatment, including comments
that her termination was already planned. Her temporary
supervisor was Solla’s personal friend. Communication with
him was brief and hostile. She was allegedly offered menial
or lesser jobs within the corporate structure to expedite
her resignation.

Various job positions were announced as to which Cauti?„o
was told that those positions were for the exclusive
benefit of others in the different departments or sections.
In one case, she applied for a position and was told it was
no longer available. Having been interviewed for positions
which were supposedly available and for which she was
qualified, the positions were never offered.

On January 16, 2002, Cauti?„o was allegedly terminated from
her job, and forced to sign a general release agreement in
exchange for $1,300, an amount computed by her employer in
accordance with local Law No. 80.[fn3] Page 4

On February 21, 2002, Cauti?„o filed a discrimination charge
at the Equal Employment Opportunity Commission (hereinafter
“EEOC”). The EEOC issued a right-to-sue letter on October
24, 2002. Plaintiffs then filed the present action claiming
that they had suffered severe mental and physical damages
as a result of the hostile work environment and retaliation
Cauti?„o experienced at the Hotel. Plaintiffs seek damages
in the ad damnum in neither a determinate nor an
indeterminate amount.

This matter is now before the court on the Hotel’s motion
for summary judgment filed on October 4, 2004. (Docket No.
44.) The Hotel generally argues that the evidence in the
record, even when viewed in the light most favorable to
plaintiffs, does not establish an actionable claim of
sexual harassment or sexual discrimination. The Hotel
argues that Cauti?„o did not comply with her employer’s
policy against sexual harassment, that she was notified in
time of the elimination of her position based upon
legitimate business reasons, and that she was terminated
with just cause. In addition, the Hotel maintains that the
evidence in the record is also insufficient to establish a
prima facie case of sexual discrimination. Finally, the
Hotel argues that Mart?­nez’ suffering, if any, was not due
to any illegal action on the part of the Hotel.

Cauti?„o responded that both sexually discriminatory and
retaliatory conduct occurred and that she has satisfied all
of the requirements for defeating the motion for summary
judgment. Page 5

On June 3, 2005, the court referred this case for report
and recommendation. (Docket No. 69.) I now analyze the
appropriateness of summary judgment in this case. But first,
the standard of review.


Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). To succeed on a motion for summary
judgment, the moving party must show that there is an
absence of evidence to support the nonmoving party’s
position. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the moving party has properly supported its
motion, the burden shifts to the nonmoving party to set
forth specific facts showing there is a genuine issue for
trial and that a trier of fact could reasonably find in its
favor. Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000). The party opposing summary
judgment must produce “specific facts, in suitable
evidentiary form,” to counter the evidence presented by the
movant. L??pez-Carrasquillo v. Rubianes, 230 F.3d 409, 413
(1st Cir. 2000) (quoting Morris v. Gov’t Dev. Bank of
P.R., 27 F.3d 746, 748 (1st Cir. 1994)). A party cannot
discharge said burden by relying upon “conclusory
allegations, improbable inferences, and unsupportable
speculation.” Id.; see also Carroll v. Xerox Corp., 294
F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils Band
Employee Benefit Plan v. Smith Barney Page 6 Shearson,
Inc., 76 F.3d 1245, 1251 (1st Cir. 1993)) (“`[N]either
conclusory allegations [nor] improbable inferences’ are
sufficient to defeat summary judgment.”).

The court must view the facts in light most hospitable to
the nonmoving party, drawing all reasonable inferences in
that party’s favor. See Patterson v. Patterson, 306 F.3d
1156, 1157 (1st Cir. 2002). A fact is considered material
if it has the potential to affect the outcome of the case
under applicable law. Nereida-Gonz??lez v. Tirado-Delgado,
990 F.2d 701, 703 (1st Cir. 1993).


In the District Court of Puerto Rico, Local Rule 56(b),
previously 311(12), requires a motion for summary judgment
to be accompanied by a separate, short and concise
statement of material facts that supports the moving
party’s claim that there are no genuine issues of material
fact in dispute. These facts are then deemed admitted until
the nonmoving party provides a similarly separate, short
and concise statement of material fact establishing that
there is a genuine issue in dispute. Local Rules of the
United States District Court for the District of Puerto
Rico, Local Rule 56(e) (2004); see Morales v. A.C.
Orssleff’s EFTF, 246 F.3d 32, 33 (1st Cir. 2001); Ruiz
Rivera v. Riley, 209 F.3d 24, 26 (1st Cir. 2000); Dom?­nguez
v. Eli Lilly & Co., 958 F. Supp. 721, 727 (D.P.R. 1997);
see also Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d
40, 43 (1st Cir. 2001). These facts must be supported by
specific reference to the record, thereby pointing the court
to any genuine issues of material Page 7 fact and
eliminating the problem of the court having “to ferret
through the Record.” Dom?­nguez v. Eli Lilly & Co., 958 F.
Supp. at 727; see Stepanischen v. Merchants Despatch
Transp. Corp., 722 F.2d 922, 930-31 (1st Cir. 1983);
Carmona R?­os v. Aramark Corp., 139 F. Supp. 2d 210, 214-15
(D.P.R. 2001); Vel??zquez Casillas v. Forest Lab., Inc., 90
F. Supp. 2d 161, 163 (D.P.R. 2000). Failure to comply with
this rule may result, where appropriate, in judgment in
favor of the opposing party. Morales v. A.C. Orssleff’s
EFTF, 246 F.3d at 33; Stepanischen v. Merchants Despatch
Transp. Corp., 722 F.2d at 929.

The Hotel has submitted a statement of material facts as
to which there is no genuine issue to be tried as required
under Local Rule 56(b). The Hotel states that Cauti?„o’s
job performance, as reflected in her evaluations, was
deficient, and that she never reached the level of
commendable or superior. She did not follow specific
instructions from her supervisor, and was informed verbally
and in writing about her poor performance. She was given a
warning on August 14, 2001 due to the negligent execution
of her work, in that she prepared a report ignoring
instructions on the way it was to be prepared. On September
11, 2001, Cauti?„o complained about her supervisor, and his
gender-based comments to Waleska Otero, the Hotel’s Human
Resources Director. The Hotel argues that Cauti?„o never
complained about any alleged touching by Solla, nor that she
was sexually harassed.

Solla admitted, when confronted by Waleska Otero, that he
had acted inappropriately toward Cauti?„o when he asked her
to leave his office on two Page 8 occasions, and
explained that any comment was not made to cause Cauti?„o
any harm. No formal report of sexual harassment or any
other complaint was made before the written warning of
August 14, 2001. Cauti?„o confided in co-workers about her
problems but did not follow the Hotel’s procedures
applicable under the circumstances. Rather she began a
journal of the alleged harassment.

The Hotel conducted an investigation about Cauti?„o’s
allegations, and immediately took corrective measures by
separating Cauti?„o and Solla in their job duties. Upon
concluding the investigation, the Hotel presented Solla with
a written warning urging him to cease any inappropriate
behavior and or modify his behavior. Solla denied the
allegations of sexual harassment and claimed that moving
from his office would be an admission to the allegations.
Solla then resigned upon being asked by the Hotel to move
to another office, not because of his conduct in relation
to Cauti?„o. Cauti?„o was then assigned temporary duties.
Because the Risk Management Department in Puerto Rico
essentially consisted of Solla and Cauti?„o, the Hotel
decided to close it in Puerto Rico and move its functions
to the corporate headquarters in Dallas, Texas. The
reorganization caused that there was no more work for
Cauti?„o. She was then placed in another office, with the
Operations Manager, Mr. Tim Hauss, at the same salary.
Duties included organizing and preparing lists of cases
that were closed and grouped in files and boxes. Page 9

Plaintiff Cauti?„o was notified that her position would be
eliminated and was kept employed for two months after which,
on January 15, 2002, she was terminated. She was offered
unwarranted severance pay in lieu of signing a release.

The defendants argue that they are entitled to summary
judgment because Cauti?„o’s position regarding sexual
harassment cannot be sustained as a matter of law.
Specifically, the defendants maintain that Cauti?„o cannot
show a causal link between Solla’s conduct and any tangible
employment action suffered by her. It is further claimed
that she cannot demonstrate the existence of a hostile work
environment. The defendants maintain in their memorandum of
law that the Hotel cannot be held liable for Solla’s
conduct under the affirmative defense set forth in Faragher
v. City of Boca Rat??n, 524 U.S. 775 (1998) and in
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)
(hereinafter the “Faragher/Ellerth affirmative defense”).
(Docket No. 44, at 9.) The Hotel contends that immediately
after Cauti?„o reported Solla’s offensive behavior, the
Hotel took all steps that could be reasonably expected of
an employer to investigate and take corrective measures.
According to the Hotel, Cauti?„o was pleased with the steps
taken by the company. Finally, it is defendants’ contention
that Cauti?„o’s retaliation claim fails as a matter of law
because she cannot identify an adverse employment action
taken against her by reason of her engaging in protected
conduct. Summary judgment is thus arguably appropriate
regarding her retaliation claim according to the Hotel.
Page 10

Plaintiffs oppose defendants’ motion for summary judgment
on December 7, 2004 arguing that they have established
without any reasonable doubt that a genuine controversy
exists between the parties and that the same must be
resolved by the trier of fact. (Docket No. 59.) With
respect to the sexual harassment, Cauti?„o submits that a
hostile work environment was created which eventually led
to her discharge. In other words, it is her position that
the harassment suffered by her was sufficiently severe and
pervasive that it created working conditions which were
intolerable. Furthermore, the Hotel then illegally
terminated her. In sum, Cauti?„o claims that disputed issues
of fact preclude the entry of summary judgment.

Plaintiffs have not complied with the requirements of
Local Rule 56(c) at all. Again, the rule requires that the
non-moving party submit with its opposition a separate,
short, and concise statement of material facts. The
non-moving party is directed to admit, deny or qualify the
facts by reference to each numbered paragraph of the moving
party’s statement of material facts and unless a fact is
admitted, shall support each denial or qualification by a
record citation as required by the rule. Plaintiffs have
not substantiated their arguments with a statement of
contested facts and with proper and specific references to
the record as required by the anti-ferret rule. Carmona
R?­os v. Aramark Corp., 139 F. Supp. 2d at 215; Dom?­nguez v.
Eli Lilly & Co., 958 F. Supp. at 728. I know that the court
has the discretion to obviate application of the ant-ferret
rule in some situations but it is clear that the exception
makes the rule and there is no valid reason for making that
exception and ignoring Page 11 such rule in this case.
Furthermore, statements of fact are deemed admitted unless
they are properly controverted, including an opposing
statement of facts which the non-moving party may make. See
Local Rule 56(e); Movsovitz & Sons of Fla., Inc. v. Alex
Gonz??lez, Inc., 367 F. Supp. 2d 207, 212 (D.P.R. 2005).

Plaintiffs have filed a “Statement of Contested Facts”
which is a list of what appears to be uncontested facts.
(Docket No. 57, Dec. 6, 2004.) In the 21-paragraph
statement of facts,[fn4] plaintiff repeats many of the
allegations which appear in the complaint. At least 12 of
those statements do not make proper and specific reference
to the record, and thus do not comply with the anti-ferret
rule in this district, a rule which is geared to avoid
precisely what plaintiffs are inviting the court to do,
that is, ferret. See Alsina Ortiz v. Laboy, 400 F.3d 77,
80-81 (1st Cir. 2005). Another four of the statements refer
to documents which are not in the English language and are
not accompanied by an English translation. Thus, plaintiffs
have failed to comply with the requirements of Local Rule
10(b) in this respect. See 48 U.S.C. § 864; Pe?„a
Crespo v. Commonwealth of P.R., 408 F.3d 10, 13 (1st Cir.
2005). Thus, paragraphs 1, 2, and 9, 16 and 17 (in part)
may qualify as a statement of uncontested facts, but not
contested facts, thus rendering Hotel’s statement of
uncontested facts unchallenged. However, while there is no
issue as Page 12 to paragraphs 1 and 2, paragraph 9,
(Statement of Contested Facts, Docket No. 57) relates
physical and emotional contacts and/or advances which are
not substantiated by the referenced deposition, which
refers to action that is at best ambiguous and which
renders the above statement conclusory. So also the
conclusion that sexual co-habitation was offered (an offer
which included taking care of Cauti?„o and her daughter), as
well as the offer of matrimony, which she declined. Cauti?„o
was given numerous gifts and makes reference to a
deposition page which refers to an irritable and nasty
Solla’s yelling at her. (Statement of Contested Facts,
Docket No. 57, Ex. 8.) The statement about Mr. Hauss’
attitude toward her and her new job functions are also
conclusory. (Statement of Contested Facts, Docket No. 57,
Ex. 9, 10, 11, 16.) With those facts and allegations in
mind as outlined above, I analyze the competing interests
in the action.


Title VII prohibits discrimination “against any individual
with respect to his [or her] compensation, terms,
conditions, or privileges of employment, because of such
individual’s . . . sex. . . .” 42 U.S.C. §
2000e-2(a)(1). Sexual harassment is unquestionably a form
of discrimination prohibited by Title VII. Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). EEOC
regulations define what constitutes sexual harassment in
the Title VII context. Section 1604.11(a) of Title 29 Code
of Federal Regulations provides the following: Page 13

Harassment on the basis of sex is a violation of Sec. 703
of Title VII. Unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a
sexual nature constitute sexual harassment when (1)
submission to such conduct is made either explicitly or
implicitly a term or condition of an individual’s
employment, (2) submission to or rejection of such conduct
by an individual is used as the basis for employment
decisions affecting such individual, or (3) such conduct
has the purpose or effect of unreasonably interfering with
an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.

29 C.F.R. § 1604.11(a) (footnote omitted).
Specifically, a sexual harassment claim may be brought
under two separate theories: quid pro quo and hostile work
environment. See Rodr?­guez-Hern??ndez v. Miranda-V?©lez, 132
F.3d 848, 854 (1st Cir. 1998).

Quid pro quo harassment “occurs when a supervisor
conditions the granting of an economic or other job benefit
upon the receipt of sexual favors from a subordinate, or
punishes that subordinate for refusing to comply.” Lipsett
v. Univ. of P.R., 864 F.2d 881, 897 (1st Cir. 1988).
Indeed, the essence of a quid pro quo harassment claim is
that the employee was subjected to unwelcome sexual
advances by a supervisor and that his or her reaction to
said advances affected him or her in some tangible aspect
of employment. Chamberlin v. 101 Realty, Inc., 915 F.2d
777, 783 (1st Cir. 1990). To prevail in a quid pro quo
harassment claim, the plaintiff must demonstrate the

(1) the plaintiff-employee is a member of a protected
group; (2) the sexual advances were unwelcome; (3) the
Page 14 harassment was sexually motivated; (4) the
employee’s reaction to the supervisor’s advances affected
a tangible aspect of her employment; and (5) respondeat
superior liability has been established.

Id. at 783-84; see also V?©lez-Cort?©s v. Nieves-Valle, 253
F. Supp. 2d 206, 212 (D.P.R. 2003), aff’d, 375 F.3d 35 (1st
Cir. 2004). In response, a defendant may attempt to show
that the harassing conduct either did not take place or did
not affect a tangible aspect of plaintiff’s employment.
Lipsett v. Univ. of P.R., 864 F.2d at 898; see also Garc?­a
v. V. Su??rez & Co., 288 F. Supp. 2d 148, 158 (D.P.R. 2003).

A hostile work environment, such as one which is allegedly
existed at the Hotel after Solla was fired, is created when
an employer requires an employee “to work in a
discriminatorily hostile or abusive environment.” Crowley
v. L.L. Bean, Inc., 303 F.3d 387, 394 (1st Cir. 2002)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). “A hostile work environment exists in violation of
Title VII `[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working
environment.'” Kosereis v. Rhode Island, 331 F.3d 207, 216
(1st Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510
U.S. at 21.) Since there is no “mathematically precise
test” to determine whether enough evidence has been
presented for a hostile environment claim, Harris v.
Forklift Sys., Inc., 510 U.S. at 22, the court must look at
all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it was Page
15 physically threatening or humiliating; and whether it
unreasonably interfered with plaintiff’s work performance.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116

As noted, in a hostile work environment claim, the conduct
complained of has to be severe or pervasive so as to alter
the terms and conditions of employment of a Title VII
plaintiff. See Burlington Indus., Inc. v. Ellerth, 524 U.S.
at 754. To be actionable under Title VII, the “sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact
did perceive to be so.” Faragher v. City of Boca Raton, 524
U.S. at 787. “`[S]imple teasing,’ offhand comments, and
isolated incidents . . . will not amount to [a] change[] in
the `terms and conditions of employment.”” Faragher v.
City of Boca Rat??n, 524 U.S. at 788 (internal quotations
omitted). Thus, to succeed in a hostile work environment
claim, a plaintiff must prove the following:

(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. Page 16

O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.
2001). Because the accumulated effects of incidents over
time can amount to a hostile work environment, the
allegations of harassment must be considered collectively.
Id. at 729.