Nieves-Borges v. El Conquistador P'ship ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1008
LEONIDES NIEVES-BORGES, MAHALIA FALCO,
Plaintiffs, Appellants,
v.
EL CONQUISTADOR PARTNERSHIP, L.P., S.E., d/b/a EL CONQUISTADOR
RESORT, A WALDORF ASTORIA RESORT; EL CONQUISTADOR WALDORF
ASTORIA RESORT; EL CONQUISTADOR RESORT,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., Chief U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Glenn Carl James for appellant.
Mariel Y. Haack-Pizarro, with whom Liana M. Gutiérrez-
Irizarry was on brief, for appellees.
Gail S. Coleman, with whom James L. Lee, Deputy General
Counsel, Jennifer S. Goldstein, Associate General Counsel, and
Elizabeth E. Theran, Assistant General Counsel, were on brief, for
amicus curiae Equal Employment Opportunity Commission.
August 21, 2019
LIPEZ, Circuit Judge. Appellant Leonides Nieves-Borges
("Nieves") claims that he was sexually harassed for more than a
decade, and thus subjected to a hostile work environment, by the
human resources director at the Puerto Rico resort where he worked.
Nieves further asserts that resort managers retaliated against him
for complaining about this treatment. He brought claims for sexual
harassment and retaliation under both Title VII of the Civil Rights
Act of 1964 and Commonwealth law, all of which were dismissed by
the district court in a summary judgment for the defendant.1 We
conclude that the district court properly dismissed the
retaliation claims. However, the district court incorrectly held
that alleged incidents of harassment that occurred earlier than
2014 were time-barred, an error that contributed to other flaws in
its analysis. We therefore vacate dismissal of the sexual
harassment claims based on a hostile work environment and remand
for reconsideration of those claims.
1Nieves's wife, Mahalia Falco, also is a plaintiff/appellant.
Because her claims are derivative of her husband's, we refer only
to Nieves throughout this opinion. Similarly, we refer in the
singular to Nieves's employer -- El Conquistador Resort -- although
the complaint names multiple El Conquistador corporate entities as
defendants.
- 2 -
I.
A. Factual Background
We draw our factual summary primarily from the district
court's opinion and the defendant's Statement of Uncontested
Material Facts ("SUMF"), including its exhibits.2 In so doing, we
bypass Nieves's contention that the district court improperly
struck his opposition to the resort's motion for summary judgment
and its accompanying Statement of Material Contested Facts. We
need not consider the opposition because, relying solely on the
SUMF and exhibits, we detect flaws in the district court's
reasoning that require reconsideration of Nieves's hostile work
environment claims, and nothing in the stricken materials would
change our evaluation of the retaliation claims. Like the district
court, we also describe the allegations in Nieves's complaint where
relevant to our discussion.
Nieves worked at the El Conquistador Resort in Fajardo, Puerto
Rico,3 from October 1993 until his termination in July 2015,
serving as the food and beverage manager at the time of his
2
The SUMF contains 188 paragraphs and forty-six exhibits.
The exhibits include a lengthy statement that was part of Nieves's
complaint filed with the Equal Employment Opportunity Commission,
an internal complaint he submitted to the hotel, and excerpts from
the depositions of Nieves, his wife, and other resort employees.
3
The parties refer to the El Conquistador as a "hotel." We
use the broader term "resort," consistent with the property's
formal name. The El Conquistador Resort, inter alia, features
multiple food and beverage venues.
- 3 -
discharge. He claims that the resort's director of human resources
("HR"), Luis Álvarez, sexually harassed him for thirteen years,
between 2001 and 2014. He alleges a general pattern of sexually
charged interactions, unfair criticisms of his work, and multiple
specific incidents. Nieves testified in his deposition that
Álvarez touched him "[a] gazillion times" between 2001 and 2014.
He claimed the behavior included, on average, two or three episodes
every week in which Álvarez would seek him out and, finding him,
"examin[e] with his eyes the physical body of Mr. Nieves in a very
sexual manner from up to down," as well as repeated requests to
socialize after hours.4
One specific incident emphasized by Nieves in his complaint
allegedly occurred in 2007, when he and Álvarez were in Orlando
for a convention, and Álvarez invited him to join other resort
managers for lunch. No one else arrived at the restaurant and, as
the two men were finishing lunch, Álvarez allegedly put his hand
on Nieves's leg and said, "what [do] we do next?" Nieves claims
4
When asked at his deposition what aspect of the social
invitations was "sexual in nature," Nieves replied:
The way he said it, the way he looked at
me, the way his eyes would glow up and look at
me in a very pervasive manner, the way he would
touch my hands and grab me and not let go and
just look at me.
- 4 -
that Álvarez then displayed his hotel keys, shaking them in the
air.5
Nieves's complaint also highlights three alleged interactions
in 2014 in which Álvarez sought after-hours contact at Álvarez's
home. First, on May 26, Álvarez called at 7:47 PM to invite Nieves
to his residence to show him "something." Second, on July 3,
Álvarez called Nieves at 6:15 PM to invite him over to discuss
work-related matters. Third, on August 19, at 8:20 AM, Álvarez
again invited Nieves to his home "to socialize" and, during that
conversation, allegedly touched Nieves's hands "in a very sexual
manner, . . . sexually looking [at his] physical body from up to
down," and invited him to have drinks after work. Nieves testified
that another incident, in October 2014,6 allegedly occurred in a
5
We note that the SUMF acknowledges this alleged encounter,
although the document does not include the details of touching or
display of keys. The SUMF contains the following entry: "As to
the alleged 2007 business trip, Plaintiff was forced to admit that
Mr. Álvarez did not invite Plaintiff to his hotel room, he
allegedly asked him what he wanted to do next." SUMF ¶ 146. In
support, the paragraph cites to the following excerpt from Nieves's
deposition:
Q: The fact of the matter is that he asked you
what you wanted to do next. He did not say,
"Come to my room." Did he?
Nieves: He did not say that.
6
Although the excerpt of Nieves's deposition that is attached
to the SUMF does not include the date of the alleged cafeteria
incident, the district court placed it in October 2014, evidently
relying on the prior page of the deposition, which was attached to
Nieves's opposition to the motion for summary judgment. We follow
the district court's lead in dating the incident.
- 5 -
resort cafeteria, when "Álvarez was staring at [him] in a predatory
manner" as Nieves waited in line to be served.
Deposition testimony from at least three individuals
corroborated Nieves's allegation of repeated touching. A co-
worker saw Álvarez run his hand down Nieves's back on one occasion
between 2006 and 2008 and touch his head on another occasion. In
the latter instance, the co-worker recalled thinking to himself,
"Hmm. This is ugly." The co-worker also testified that he at one
point asked Nieves, "what's up with all that pawing?" A second
co-worker testified that he saw Álvarez massage Nieves's
"shoulders down to back" sometime between 2005 and 2008, and went
on to say "that was not the only incident." Nieves's wife stated
that she observed Álvarez hug her husband "around three times"
between 2007 and 2010, at the resort's Christmas parties, and she
could "see[] how he would lure [Nieves] in the unwanted hugs."
Nieves explained that he did not report the sexual harassment
to management through the years "because he feared for his job
security." SUMF, ¶ 167. However, he reported in his complaint
that the harassment "turned unbearable" in 2014. On August 21,
2014, Nieves was informed by Alfredo Amengual, the resort's
director of food and beverage, that, at Álvarez's direction, Nieves
was being rotated from one food outlet within the resort, Palomino
Island, to the night shift at another location, the Bella Vista
restaurant. Distressed by the change, Nieves reported for medical
- 6 -
treatment to the State Insurance Fund, where he alleged that the
transfer amounted to workplace harassment by Amengual and Álvarez.
About a month later, on September 30, Nieves filed a thirteen-page
internal complaint stating that Álvarez had begun subjecting him
to a pattern of harassment, some of a sexual nature, beginning in
November 2001.
Nieves was medically cleared to return to work on October 4,
and he reported on that date to the Bella Vista restaurant.
Meanwhile, an attorney assigned by the resort to perform an
internal investigation into his complaints of harassment concluded
that many of the events described in his written statement were
inaccurate and lacking in corroboration. She noted that witnesses
consistently reported that Nieves and Álvarez disliked each other,
but she found no evidence of sexual harassment. However, in a
letter sent to Nieves at the close of the investigation in January
2015, the resort's then-HR director, Olga Martínez Cruz
("Martínez"), stated that the resort "ha[d] taken steps to ensure
that Mr. Amengual has a clear understanding" of its anti-harassment
policies. The letter also noted that Álvarez no longer worked at
the resort.7
7 In its SUMF, the resort reported that Álvarez had
voluntarily resigned in November 2014, "stating that regardless of
the outcome of the investigation, his reputation had been
irreparably tarnished by Plaintiff's malicious accusations."
- 7 -
Despite Álvarez's departure, the period between January 2015
and Nieves's termination roughly six months later was -- as the
district court characterized it -- "turbulent." Borges v. El
Conquistador P'ship, 280 F. Supp. 3d 295, 306 (D.P.R. 2017).
Nieves was disciplined three times during that interval. First,
in early January, he was suspended for two weeks after a female
subordinate complained that he asked her to file a false sexual
harassment claim against Amengual. According to Martínez, the
suspension "was also related to acts of insubordination against
his supervisor for raising his voice to him and refusing to follow
instructions." She noted that Nieves's conduct provided grounds
for immediate termination, but he was not fired because of his
long tenure. Second, in May 2015, Nieves received a written
warning for deliberately falsifying payroll records to increase a
supervisor's hours, "resulting in an improper payment to the
supervisor." Third, on July 15, Nieves notified Amengual, his
supervisor, that he would miss work the next day because he was
ill. However, on his "sick" day, he was seen attending a
promotional event associated with his family rum-making business.
Nieves was suspended when he reported to work the following day,
and, following a review of his personnel file and disciplinary
history, Amengual and Martínez concluded that he should be
terminated. On July 21, he was informed that, consistent with the
- 8 -
resort's code of ethics and employee manual, he was being fired
because of the false report of illness.
Meanwhile, on February 12, 2015, Nieves had filed a charge of
discrimination against the resort with the Equal Employment
Opportunity Commission ("EEOC"), claiming, inter alia, that he was
the victim of discrimination based on "a refusal to submit to
sexual advances or based on sexual desire." In the twenty-page
statement he filed with the charge, Nieves described the alleged
thirteen-year pattern of harassment by Álvarez, including the
Orlando lunch incident in 2007 and the three 2014 after-hours
social invitations described above. Nieves alleged that Álvarez's
actions had affected his mental and physical health, "resulting in
loss of promotions [and] salary increases by undermining his
[r]eputation, his image and his [d]ignity." He explained that he
previously "had refrained and was reluctant" to report the details
of Álvarez's conduct toward him "because he felt his job would be
in jeopardy," but took action after Amengual informed him in August
2014 of his transfer from the Palomino Island location to the Bella
Vista venue.
Nieves further asserted that the resort retaliated against
him after he filed his internal complaint about Álvarez's conduct.
He cited the transfer to Bella Vista and the two-week suspension
without pay that had just been imposed. He contended that the
rationale given for the suspension -- procuring a false sexual
- 9 -
harassment charge against Amengual -- was a pretext. He stated
that he was transferred to Bella Vista and placed on the night
shift five days after reporting Álvarez's sexual harassment and
was suspended sixty days after that report.
The EEOC issued a Notice of Right to Sue in March 2015, and
Nieves subsequently filed this action under Title VII and
Commonwealth law. His thirty-seven-page complaint reiterated the
allegations reported to the EEOC of sexual harassment over a
thirteen-year period and retaliation in 2014 and 2015 following
his complaints to management at the El Conquistador.
B. Procedural Background
Following extensive discovery and the parties' failure to
reach a settlement agreement, El Conquistador filed a motion for
summary judgment on all claims, supported by the lengthy SUMF and
accompanying exhibits. The resort argued that Nieves "was never
subjected to a hostile work environment or retaliation," and that
his "subjective perception of his environment is not reasonable,
and therefore not actionable under Title VII." The resort further
asserted that its actions with respect to the plaintiff "were taken
for sound, business-related reasons." In addition, El
Conquistador argued that even if the court were to find that Nieves
faced "some objectively and subjectively offensive conduct," his
unreasonable delay in reporting the situation triggered the
- 10 -
Faragher/Ellerth affirmative defense, which protects an employer
from Title VII vicarious liability in certain circumstances.8
In response, Nieves filed a fifty-six-page opposition to the
summary judgment motion and an "Opposing or Contested Statement of
Material Contested Facts" that consisted of 204 paragraphs
spanning seventy-two pages. The latter document addressed each of
the resort's 188 paragraphs in turn, denying, admitting, or
"qualify[ing]" the facts contained therein. The remaining
paragraphs comprised Nieves's "Separate Section of Additional
Facts." The resort filed a reply, in which it moved to strike
Nieves's opposition for failure to comply with local rules.9
8 We have described the Faragher/Ellerth defense as follows:
Under Title VII, an employer is subject
to vicarious liability for sexual harassment
by an employee's supervisor which does not
constitute a tangible employment action. But
the employer may prevail if it demonstrates a
two-part affirmative defense: that its own
actions to prevent and correct harassment were
reasonable and that the employee's actions in
seeking to avoid harm were not reasonable.
Chaloult v. Interstate Brands Corp., 540 F.3d 64, 66 (1st Cir.
2008) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807
(1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765
(1998)).
9The hotel claimed, inter alia, that Nieves had violated
Local Rule 56(c), which requires a "party opposing summary judgment
to submit a separate, short, and concise statement of material
facts admitting, denying or qualifying the corresponding facts
that support the motion, with record citations in support."
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 137 (1st
Cir. 2012).
- 11 -
The district court granted both the resort's motion to strike
Nieves's opposition and its motion for summary judgment. In
explaining the former, the court stated that the opposition was
"beyond confusingly constructed and lacking in coherence," Borges,
280 F. Supp. 3d at 304 (internal quotation marks omitted), and
that it was "'unintelligible at times,'" id. at 305 (quoting El
Conquistador's Reply and Motion to Strike). The court thus
admitted all but six of the resort's paragraphs as improperly
controverted and thus uncontested, and it ruled that all but two
of Nieves's additional facts were properly controverted and thus
not deemed admitted.
On the merits, the court found that none of the acts that
allegedly occurred within the applicable Title VII statute of
limitations10 -- i.e., the three social invitations and the
"predatory" staring in the cafeteria, all in 2014 -- could be found
by a jury to constitute sexual harassment. Hence, the court held
that Nieves could not rely on any earlier incidents to establish
a hostile work environment. See, e.g., Maldonado-Cátala v.
10An employee must exhaust administrative remedies before
filing a Title VII claim, and one component of the exhaustion
requirement is the filing of the administrative charge with the
EEOC within 180 or 300 days of the offending conduct, depending
upon whether the plaintiff initially filed with a state or local
agency. See Rivera-Díaz v. Humana Ins. of P.R., Inc., 748 F.3d
387, 389-90 (1st Cir. 2014). Neither party disputes the district
court's determination that a 300-day limitations period applies
here.
- 12 -
Municipality of Naranjito, 876 F.3d 1, 9 (1st Cir. 2017) ("[U]nder
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.'" (quoting Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121,
130 (1st Cir. 2009)). Specifically, the court found that no
reasonable jury could conclude that the timely conduct Nieves
alleged -- "looks, hand touching, and invitations to Álvarez's
house" -- satisfy two of the prerequisites for an actionable
hostile work environment claim: sex-based motivation and severe or
pervasive harassment. Borges, 280 F. Supp. 3d at 309; see, e.g.,
Roy v. Correct Care Solutions, LLC, 914 F.3d 52, 61-62 (1st Cir.
2019) (listing the six elements a plaintiff must show "[t]o succeed
on a hostile work environment claim under Title VII"); see infra
Section II.A.1.
On the issue of sex-based motivation, the court stated, inter
alia, that Nieves offered neither evidence that Álvarez targeted
him because he is male nor evidence permitting such an inference,
such as "sexual propositions, groping, or comments about engaging
in sexual relations." Borges, 280 F. Supp. 3d at 310. Moreover,
the court held, "given the totality of the circumstances," the
alleged conduct could not reasonably be deemed "severe and
pervasive." Id. at 311. Noting that none of the four incidents
involved "explicitly sexual remarks or propositions," the court
- 13 -
went on to observe that even the alleged hand-touching and scrutiny
of his body were "not close" "[o]n the scale of what has been
recognized as egregious conduct rising to the required level."
Id. (alteration in original) (quoting Ponte v. Steelcase Inc., 741
F.3d 310, 320 (1st Cir. 2014)).
As described more fully below, the court held that Nieves's
Title VII retaliation claim failed for lack of causation. It
granted summary judgment on the supplemental Commonwealth law
claims on the same grounds as the federal claims. This appeal
followed.
II.
Nieves argues on appeal that the district court erred in
striking his opposition for failing to conform to the requirements
of Puerto Rico Local Rule 56, and he asserts that the record
reveals genuine, material factual disputes concerning his claims
of sexual harassment and retaliation. We reiterate that we need
not address the district court's rejection of Nieves's opposition.
As we shall explain, the SUMF and exhibits, viewed in the light
most favorable to Nieves, see Roy, 914 F.3d at 57, contain relevant
evidence in support of Nieves's hostile work environment claim, as
properly understood, which the district court failed to consider
appropriately. The court therefore must revisit whether a
reasonable jury could resolve the sexual harassment claim in
Nieves's favor. See, e.g., Bonilla-Ramirez v. MVM, Inc., 904 F.3d
- 14 -
88, 93 (1st Cir. 2018) (stating that we may affirm summary judgment
only if "the record discloses no genuine issues of material fact
and demonstrates that the moving party is entitled to judgment as
a matter of law"). On remand, the district court also has the
option to reconsider its decision to strike Nieves's submissions.
A. Hostile Work Environment under Title VII
1. Legal Principles
We have identified as follows the six elements that generally
must be proven to succeed on a sex-based hostile work environment
claim under Title VII:
(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.
Roy, 914 F.3d at 62 (quoting O'Rourke v. City of Providence, 235
F.3d 713, 728 (1st Cir. 2001)). The district court limited its
assessment of Nieves's claim to conduct that occurred in 2014 based
on its view that, unless the 2014 conduct satisfied these elements,
earlier incidents could not be considered. Having found that none
of the alleged 2014 episodes -- the three after-hours social
invitations and the cafeteria-line staring -- amounted to
- 15 -
actionable sexual harassment, the court held that "all incidents
prior to those 2014 incidents are time barred." Borges, 280 F.
Supp. 3d at 309. However, that time restriction was erroneous.11
A hostile work environment claim is premised on "an
accumulation of 'individual acts that, taken together, create the
environment.'" Maldonado-Cátala, 876 F.3d at 9 (quoting Tobin,
553 F.3d at 130). So long as one "instance of harassment" falls
within the statutory limitations period, Franchina v. City of
Providence, 881 F.3d 32, 47 (1st Cir. 2018), "the entire time
period of the hostile environment may be considered by a court for
the purposes of determining liability," Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 117 (2002); see also Maldonado-Cátala,
876 F.3d at 10 ("[W]e may consider the defendant['s] alleged
behavior in the early years of [the plaintiff's] employment only
if at least one of the incidents that occurred after . . . the
earliest date within the limitations period [] constitutes part of
the same hostile work environment as the alleged wrongful conduct
that preceded that date.").
Indeed, because a hostile work environment develops over
time, as objectionable behavior is repeated, it is unremarkable
11Concerned about the district court's legal error, the EEOC
filed an amicus brief to address this "important issue regarding
the timeliness of harassment charges." Amicus Br. at 1. The
Commission took no position on the parties' fact-based arguments.
- 16 -
for some related episodes to fall outside the limitations period.
Importantly, because the claim may be built on "'[t]he accumulated
effect' of behaviors that individually fall short," Maldonado-
Cátala, 876 F.3d at 12 (alteration in original) (quoting O'Rourke,
235 F.3d at 729), a timely "anchoring act" need not on its own be
actionable under Title VII, Pérez v. Horizon Lines, Inc., 804 F.3d
1, 7-8 (1st Cir. 2015); it must only "contribut[e] to" the
impermissibly harassing environment, Morgan, 536 U.S. at 117; see
also Franchina, 881 F.3d at 47.
2. Analysis
Here, a jury could reasonably find that the incidents that
allegedly occurred in 2014 -- which included unwanted touching and
"predatory" staring, Borges, 280 F. Supp. 3d at 307 -- were
instances, within the limitations period, of the claimed pattern
of sexually charged interactions. Hence, because these encounters
could reasonably be deemed "act[s] contributing to" the alleged
hostile work environment, Morgan, 536 U.S. at 117, the full history
of Nieves's challenged interactions with Álvarez, to the extent
supported by the record, is properly considered in determining
liability.
The district court's timing error on its own warrants a remand
for the court to reconsider Nieves's hostile work environment
claim. However, the court's discussion suggests that it also may
have misapprehended the law in assessing the two elements it deemed
- 17 -
dispositive in rejecting that claim: "that the harassment was based
upon sex" and "that the harassment was sufficiently severe or
pervasive so as to alter the conditions of [his] employment." Roy,
914 F.3d at 62 (quoting O'Rourke, 235 F.3d at 728). We thus
briefly review the pertinent principles as applied to this case.12
a. "[B]ased upon sex"
It is well established that "sex discrimination consisting of
same-sex sexual harassment is actionable under Title VII." Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). The
district court recognized this principle, but it stated that Nieves
had offered no evidence -- "like sexual propositions, groping, or
comments about engaging in sexual relations" -- permitting an
inference that Álvarez targeted Nieves "because of his gender."
Borges, 280 F. Supp. 3d at 310. It is unclear if the district
court was referring only to the four alleged 2014 episodes in
concluding that Nieves's showing fell short, or whether it also
was rejecting the testimony of Nieves and his co-workers concerning
earlier episodes that also allegedly included physical contact or
suggestive staring.
12 The district court noted that the defendants had argued
that Nieves "cannot satisfy" three of the six elements of a prima
facie case. Borges, 280 F. Supp. 3d at 310. The court concluded
that one of those elements, employer liability, presented a jury
question. See, e.g., Agusty-Reyes v. Dep't of Educ. of P.R., 601
F.3d 45, 53-56 (1st Cir. 2010) (describing a fact-intensive inquiry
into the applicability of the Faragher/Ellerth affirmative
defense).
- 18 -
In any event, it appears that the district court may have
mistaken the degree of explicitness the law requires to establish
a sex-based motive. Nieves's claim does not depend on evidence of
explicit sexual propositions; sex-based motivation may be inferred
from, inter alia, "implicit proposals of sexual activity." Oncale,
523 U.S. at 80 (emphasis added); see also, e.g., Tang v. Citizens
Bank, N.A., 821 F.3d 206, 216 (1st Cir. 2016) ("Title VII
. . . does not require evidence of overtly sexual conduct for a
sexual harassment claim."); Billings v. Town of Grafton, 515 F.3d
39, 48 (1st Cir. 2008) (observing that the district court "placed
undue weight" on the plaintiff's failure to allege "touching,
sexual advances, or overtly sexual comments to or about her"
(internal quotation marks omitted)). In addition, the fact that
Nieves also alleges unfair criticism of his work -- i.e.,
harassment lacking "obvious sexual connotations" -- "does not
diminish the force of . . . evidence [that] indicat[es] gender-
based animus." Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19,
28 (1st Cir. 2011).
b. "[S]ufficiently severe or pervasive"
Harassment that is "sufficiently severe or pervasive" to
create a hostile work environment must reach a level that "alter[s]
the conditions of the victim's employment." Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986)), quoted in Roy, 914 F.3d at 61.
- 19 -
Significantly, severity and pervasiveness are alternative criteria
for evaluating whether a plaintiff has been subjected to an
"abusive work environment," Roy, 914 F.3d at 62 (quoting O'Rourke,
235 F.3d at 728), and a series of individually tolerable incidents
that add up to a "pattern of hostility" can therefore suffice, id.
at 64.
The district court, however, appeared to view the law as
requiring both severity and pervasiveness, framing the inquiry
multiple times in the conjunctive. It labeled that portion of its
analysis "Fourth Element: Severe and Pervasive," Borges, 280 F.
Supp. 3d at 310, and repeatedly used the conjunctive formulation
in its discussion, see id. at 311-13.13 In addition, the court's
reasoning on this element was also likely flawed by its incorrect
focus on only the 2014 incidents. See id. at 311 ("[N]o reasonable
jury could find that the four incidents that occurred within 300
days of filing the EEOC complaint were 'severe and pervasive.'").
3. Conclusion
The district court's statute-of-limitations error necessarily
impacted its assessment of the hostile work environment claim. On
remand, the court should consider the admissible evidence covering
the entire period of alleged harassment, while also adhering to
13We acknowledge that this court, too, has made such an error
on at least one occasion. See Pérez-Cordero, 656 F.3d at 29.
- 20 -
our precedent on what it means for conduct to be "based upon sex"
and on the alternative nature of the "severe or pervasive" element.
We therefore vacate the summary judgment for the resort on Nieves's
hostile work environment claim.
B. Title VII Retaliation
To succeed with a claim of retaliation in violation of Title
VII, "a plaintiff must show that (i) []he undertook protected
conduct, (ii) []he suffered an adverse employment action, and (iii)
the two were causally linked." Tang, 821 F.3d at 218-19 (quoting
Noviello v. City of Bos., 398 F.3d 76, 88 (1st Cir. 2005)). On
appeal, Nieves identifies his protected conduct as the internal
harassment complaint he filed on September 30, 2014, and he cites
his transfer four days later from the Palomino Island food outlet
to the Bella Vista restaurant as the adverse employment action.
The record, however, belies any relationship between those two
events.14
14In the district court, Nieves also claimed that his January
2015 suspension and his July 2015 suspension and termination were
retaliatory. With respect to the July actions, the district court
observed that, even if Nieves could prove that he would not have
been terminated but for his EEOC complaint, "Defendants have met
their burden of providing a non-discriminatory reason for his
suspension and termination." Borges, 280 F. Supp. 3d at 315.
Although Nieves no longer relies on the suspensions and
termination to support his retaliation claim, the EEOC as amicus
has urged us to clarify "the meaning of 'but-for' causation, a
critical aspect of liability for retaliation under Title VII."
Amicus Br. at 1. We therefore note that the district court's
reasoning is flawed. If Nieves proved that he would not have been
suspended or fired absent a retaliatory motive -- i.e., that such
- 21 -
Nieves has consistently maintained that he was told on August
21, 2014 that Álvarez had ordered his immediate transfer from
Palomino Island to the night shift at Bella Vista, and that the
decision was final. However, the reassignment was delayed because
Nieves reported to the State Insurance Fund for medical treatment
in late August. He moved to Bella Vista immediately upon his
return to work in early October. Hence, although the transfer
took effect after Nieves filed his internal complaint, it is
uncontested that the decision to transfer him was announced
approximately six weeks earlier. Accordingly, no reasonable jury
could find that "the two were causally linked." Tang, 821 F.3d at
219 (quoting Noviello, 398 F.3d at 88). We thus conclude that the
district court properly granted summary judgment for El
Conquistador on Nieves's Title VII retaliation claim.
C. Supplemental Claims
Having found that neither of Nieves's Title VII claims
survived, the district court concluded that summary judgment for
the resort was appropriate "[f]or the same reasons" on Nieves's
equivalent claims under Puerto Rico law. Borges, 280 F. Supp. 3d
actions would not have occurred "but for" his protected
conduct -- the resort's additional, non-retaliatory explanations
for its conduct would not defeat the retaliation claim. See, e.g.,
Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d
265, 278 (1st Cir. 2014) (noting that a Title VII plaintiff
alleging retaliation "must show that he would not have been fired
had he not complained").
- 22 -
at 316. On remand, the district court should reconsider the claims
brought under Laws 100, 69, and 17 in light of our Title VII
analysis. Nieves does not argue on appeal that the district court
erred in dismissing claims alleging violation of Puerto Rico's
tort statutes, Laws 1802 and 1803, and any challenge to that
portion of the court's ruling is therefore waived.
III.
For the reasons given above, we vacate the summary judgment
for El Conquistador on Nieves's claim that he was subjected to a
hostile work environment in violation of Title VII. Nieves's Title
VII retaliation claim, however, fails as a matter of law for lack
of causation. The supplemental claims alleging violations of
Puerto Rico laws analogous to Title VII must be reviewed on remand.
Accordingly, the judgment of the district court is affirmed in
part, vacated in part, and remanded for further proceedings
consistent with this opinion.
So ordered. Costs to appellant.
- 23 -