Velázquez-Pérez v. Developers Diversified Realty Corp. , 753 F.3d 265 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2226
ANTONIO VELÁZQUEZ-PÉREZ,
Plaintiff, Appellant,
v.
DEVELOPERS DIVERSIFIED REALTY CORP.; DDR PR VENTURES II LLC,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Baldock,* and Kayatta,
Circuit Judges.
Anibal Escanellas-Rivera, with whom Escanellas & Juan,
P.S.C. was on brief, for appellant.
Carl Schuster, with whom Migdalí Ramos Rivera and
Schuster Aguiló LLP, were on brief, for appellees.
Susan R. Oxford, Attorney, U.S. Equal Employment
Opportunity Commission, with whom P. David Lopez, General
Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
and Lorraine C. Davis, Assistant General Counsel, were on brief,
for amicus curiae Equal Employment Opportunity Commission.
May 23, 2014
*
Of the Tenth Circuit, sitting by designation.
KAYATTA, Circuit Judge. This appeal involves several
issues, including a legal question we have not previously
considered: Under what circumstances, if any, can an employer be
held liable for sex discrimination under Title VII of the Civil
Rights Act of 1964 when it terminates a worker whose job
performance has been maligned by a jilted co-worker intent on
revenge? We answer that the employer faces liability if: the co-
worker acted, for discriminatory reasons, with the intent to cause
the plaintiff's firing; the co-worker's actions were in fact the
proximate cause of the termination; and the employer allowed the
co-worker's acts to achieve their desired effect though it knew (or
reasonably should have known) of the discriminatory motivation.
Based on this answer, and on our consideration of the
terminated employee's claims of harassment and retaliation for
asserting rights under Title VII, we vacate in part the grant of
summary judgment against the employee on his sex discrimination
claim, and otherwise affirm the judgment of the district court.
I. Background
Antonio Velázquez-Pérez (Velázquez) sues his former
employer, DDR Corp.,1 for sex discrimination and retaliation under
Title VII. Recognizing that the district court granted summary
judgment to DDR before any factfinder could evaluate the competing
1
Although the defendant's name appears in the caption as
Developers Diversified Real Estate Corp., the defendant has
informed us that its name has changed to DDR Corp.
-2-
evidence and inferences, we describe the facts giving rise to this
lawsuit in a light as favorable to Velázquez as the record will
reasonably allow, without implying that the following is what
actually occurred. Travers v. Flight Servs. & Sys., Inc., 737 F.3d
144, 145 (1st Cir. 2013).
In June 2007, Velázquez began work as an operations
manager for DDR, a company that owns and manages shopping centers.
In November 2007, the company promoted Velázquez to the position of
regional general manager at the company, which he held until DDR
fired him on August 25, 2008. In that role, Velázquez oversaw
several of DDR's properties and managed a number of subordinates.
Velázquez was directly supervised by Rolando Albino and indirectly
supervised by Albino's boss, Francis Xavier González ("González"),
who was in charge of the company's operations in Puerto Rico.
Velázquez, a man, also interacted extensively at work
with a woman named Rosa Martínez. Martínez was the representative
of DDR's human resources department for Puerto Rico. Her portfolio
included both human resources and accounting duties. As a human
resources manager, she provided advice to management on human
resource issues, including employee discipline. In performing her
accounting duties, she also gave direction to company managers,
including Velázquez, on their compliance with company budget and
accounting practices.
-3-
Velázquez and Martínez communicated frequently by phone
and email. Velázquez admits that during the first ten months of
his employment he had a good working relationship with Martínez.
The two sometimes flirted with each other, and when Martínez
occasionally expressed her romantic interest more explicitly,
Velázquez gently rebuffed her.2 Velázquez does not claim that he
perceived Martínez's behavior during this period as harassing.
Velázquez testified, however, that any flirtatious
relationship with Martínez ended in April 2008. On April 10, they
had both traveled to the United States for a company meeting and
were staying at the same hotel. That evening, Velázquez was
walking in the hotel with two female employees of DDR when Martínez
appeared in their path. Martínez asked, "what are you guys doing?"
Martínez followed Velázquez to his room and, when Velázquez opened
his door, tried to force her way in, then stood outside the door.
When Velázquez threatened to call security, Martínez left.
Immediately afterwards, Martínez sent multiple emails to Velázquez
and one of the women he was with, suggesting that Velázquez was
going to have sex with the woman. Martínez also called Velázquez's
room multiple times.
2
For example, Martínez wrote in an email, "[i]t[]is not easy
to stay within my five senses with you. . . . [B]ut of course I
will contain myself. . . . [I]t is quite easy to love you." In the
same email exchange, Velázquez wrote, "No matter if you are miss
universe and the woman of my dreams, I would never put in jeopardy
my work environment."
-4-
In the days after the incident, Velázquez and Martínez
exchanged angry emails in which Velázquez firmly stated that he had
no interest in a romantic relationship and asked Martínez to
respect that decision.3 Martínez responded angrily, making
statements that Velázquez perceived as threatening to have him
fired for rejecting her. Martínez wrote, for example, "I don't
have to take revenge on anyone; if somebody knows your professional
weaknesses, that person is me." In another email in the same
chain, Martínez said, "you disappoint me and . . . are not even
half of what you boast you are," adding, "I cannot allow any of you
to risk the team's success." Furthering supporting his perception
that Martínez was threatening him, Velázquez cites testimony from
one of their co-workers who reportedly heard Martínez tell
Velázquez, "you are nothing without me," in a way that the co-
worker thought was meant to be intimidating.
Shortly after the hotel encounter, Velázquez complained
orally about Martínez's behavior to his supervisor Albino. Albino
advised Velázquez to "[s]end [Martínez] a conciliatory email"
because, if Velázquez did not, "[s]he's going to get you
terminated." Then, Albino and another man jokingly suggested to
Velázquez that he should have sex with Martínez. In the summer of
3
For example, Velázquez said to Martínez: "I would . . .
never reciprocate what you felt"; "I will contact you merely for
professional matters"; and, "You have to stop being jealous . . .
[Y]ou are married and I have [J]anily [Velázquez's wife]."
-5-
2008, Velázquez complained further about Martínez's behavior to
both Albino and González. Though Velázquez never filed a written
complaint, DDR does not claim that it maintained any formal
complaint procedure with which Velázquez failed to comply.
Meanwhile, Martínez began discussing Velázquez's job
performance with Albino and González, including copying them on
emails to Velázquez which can be read as critical of his work.
Martínez, Albino, and González began to extensively discuss a
number of other accusations against Velázquez in August 2008 that
originated from sources other than Martínez, including Albino's own
criticisms of his subordinate's work. Martínez summarized the
allegations against Velázquez in an email to the others on August
18, 2008, stating "I understand that you need to verify the
following issues in your meeting that were brought to my attention
by the staff, which, if confirmed, I understand, and in comparison
with other previous situations, would cause the termination of
employment."
Two days later, Albino sent a memo to Martínez and
González detailing a meeting with Velázquez's subordinates, which
Albino suggested largely confirmed the allegations against
Velázquez. Albino concluded that Velázquez needed to be
disciplined and, "if necessary," fired. But González, the top
company official in Puerto Rico, thought that termination was not
yet justified, writing that he would instead issue a "formal
-6-
warning memo" and "recommend a 30 day PIP [Performance Improvement
Plan]" to encourage Velázquez to "improve in his attendance and
punctuality."
Martínez, however, was not to be deterred so easily in
her attempt to convince Velázquez's bosses to fire him. In an
email sent on the afternoon of August 21, she responded that she
was "obligated to refer this" to two senior officials at the
company's headquarters in Ohio: Nan Zieleniec, the company's Senior
Vice-President for Human Resources, and Diane Kaufman, the Director
of Employment and Employee Relations.
That same day, Velázquez saw Martínez at a hotel in
Michigan where they both were staying for a business meeting. When
Velázquez got in an elevator to go to his hotel room, Martínez
followed him into the elevator and then out when he got to his
floor. Martínez told Velázquez that she didn't love her husband,
that she did love Velázquez, and that she wanted to have a romantic
relationship with him. Velázquez found Martínez's statements and
conduct to be disturbing, like those of "a mentally ill person."
He told Martínez that he did not want to have a romantic
relationship with her and that she should stop following him, which
she eventually did.
Later that night, Martínez sent an email to Zieleniec and
Kaufman in Ohio. Although that email included her earlier
correspondence with González, she did not copy him on the email.
-7-
In a long note, Martínez wrote that she was "in disagreement with
having this person in a PIP plan," as González had suggested,
"because his behavior has been against the company code of conduct
and has already impacted the trust from other team members."
Martínez continued: "It is my recommendation this person is
terminated immediately."
Four days later, on August 25, 2008, Velázquez was
summoned to a meeting with Albino and González. After González
asked Velázquez about his absences from work, and received answers
he regarded as inconsistent with what Martínez and Albino had told
him, González decided to terminate Velázquez's employment. On a
written form, the reasons listed for Velázquez's firing were
"[a]bsenteeism," "[f]ailure to report," and "[u]nsatisfactory
performance."4
II. Standard of Review
We review de novo the district court's grant of summary
judgment to DDR. McArdle v. Town of Dracut, 732 F.3d 29, 32 (1st
Cir. 2013). Under Federal Rule of Civil Procedure 56, a "court
shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute
is "genuine" if "a reasonable jury, drawing favorable inferences,
4
The termination form was signed by Martínez, although
Velázquez does not make any argument based on that fact or even
mention it.
-8-
could resolve it in favor of the nonmoving party. . . . Conclusory
allegations, improbable inferences, and unsupported speculation,
are insufficient to establish a genuine dispute of fact." Triangle
Trading Co. v. Robroy Indus., 200 F.3d 1, 2 (1st Cir. 1999)
(internal citations, quotation marks, and alterations omitted).
III. Analysis
Velázquez alleges that DDR discriminated against him on
the basis of sex in violation of Title VII, both in terminating him
and in subjecting him to a hostile workplace. He also claims that
DDR retaliated against him for complaining of sexual harassment.
We start with his two discrimination claims, then turn to his
retaliation claim.
A. Alleged Termination for Refusing Sexual Advances
Velázquez claims that Martínez caused his termination
because he rebuffed her sexual advances. We consider first whether
a reasonable jury could so find based on the record in this case.
Second, because precedent delineates special rules for
discrimination by supervisors, as opposed to co-workers, we discuss
whether a reasonable jury could find that Martínez was Velázquez's
supervisor. Answering "no," we then tackle the question of whether
a plaintiff in Velázquez's situation can nevertheless prevail under
Title VII on a claim for discriminatory termination under a so-
called quid pro quo theory. See Lipsett v. Univ. of Puerto Rico,
864 F.2d 881, 897 (1st Cir. 1988) (explaining that quid pro quo
-9-
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").
1. A reasonable jury could find that Martínez's
discriminatory efforts were the proximate cause of
Velázquez's firing.
Viewing the evidence in a light favorable to Velázquez,
drawing reasonable inferences in his favor, and resolving issues of
credibility in his favor as well, a jury could reasonably decide
that Martínez conveyed to Velázquez a threat: engage in a romantic
and sexual relationship with me, or I will manage to undercut you
at work and get you fired. Velázquez first perceived that threat
in the emails Martínez sent him right after he rebuffed her at a
hotel in April, and a rational jury could find his perception
reasonable. Indeed, when he reported Martínez's behavior to
Albino, his boss, Albino construed Martínez's intentions in
precisely that manner, telling Velázquez he should try to repair
his relationship with Martínez--perhaps by sleeping with her--
because if Velázquez did not, "[s]he's going to get you
terminated."
Over the following summer, Martínez harshly criticized
Velázquez in emails to him and emails to Albino and González. It
also appears that Velázquez may have unintentionally aided her
efforts by failing to comply with Albino's directions on several
-10-
matters. Once Martínez had compiled an arsenal of allegations
against Velázquez, she then expressed her romantic interest one
last time in their second hotel encounter. And when he again
rebuffed her, Martínez set to carrying out her threat.
Continuing to view the evidence favorably to Velázquez,
a jury could find that Martínez's efforts served as a proximate
cause of Velázquez's discharge, as required in these circumstances
by Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011).5
Martínez's efforts culminated in her email to Zieleniec and
Kaufman, senior company officials in Ohio, in which Martínez
provided a long list of accusations against Velázquez and a strong
recommendation that he should be fired. At the time of the email,
González had accumulated a significant amount of information about
Velázquez's absences, tardiness, violations of company rules,
relations with contractors, and poor supervision of staff. He
nevertheless announced his intention not to fire Velázquez yet,
deciding instead to issue a thirty-day performance improvement
plan. When González so informed Martínez, she balked, telling
González that she was "obligated to refer this" to senior human
5
The plaintiff in Staub sued under the Uniformed Services
Employment and Reemployment Rights Act (USERRA). Staub, 131 S. Ct.
at 1190. The Supreme Court noted that USERRA is "very similar to
Title VII," particularly with respect to its causation requirement.
Id. at 1191. Although Staub's holding was limited to
discrimination by supervisors, we discuss below why a similar
theory should be available where the discriminator is a co-worker,
if the plaintiff can establish that the employer acted negligently.
-11-
resources officials in Ohio. She did so, and Velázquez was fired
within days, apparently after Kaufman "questioned [González] about
why he recommended a [performance improvement plan]" and told him
"they did not see another way out other than termination." While
González claims that he changed his mind because Velázquez lied to
him in their final meeting, the record would not compel a jury to
accept that testimony. Instead, the record would allow a
reasonable factfinder to view Martínez's persistent and forceful
lobbying as a proximate cause of the discharge.
2. No reasonable jury could find that Martínez was
Velázquez's supervisor.
If Martínez were Velázquez's supervisor, then the
reasonable findings described above would render DDR vicariously
liable. See Staub, 131 S. Ct. at 1194; Vance v. Ball State Univ.,
133 S. Ct. 2434, 2439 (2013). Velázquez does argue that Martínez
was his supervisor, but we do not agree that a reasonable jury
could so conclude.
In Noviello v. Boston, 398 F.3d 76 (1st Cir. 2005), we
held that the "key to determining supervisory status is the degree
of authority possessed by the putative supervisor." Id. at 95.
The extent of a worker's authority is determined not by
"nomenclature," but rather by an examination of "actual authority."
Id. at 96. And the relevant authority "primarily consists of the
power to hire, fire, demote, promote, transfer, or discipline an
-12-
employee." Id. (quoting Parkins v. Civil Constructors of Ill.,
Inc., 163 F.3d 1027, 1034 (7th Cir. 1998)).
In Vance, the Supreme Court expressly confirmed that
Noviello applied the proper standard in determining whether a given
employee is a "supervisor" for the purpose of making the employer
vicariously liable. Vance, 133 S. Ct. at 2453. Vance further
trains the relevant inquiry on whether the "employer has empowered
that employee to take tangible employment actions against a victim,
i.e., to effect a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits."6 Id. at 2443 (quoting Burlington Indus. v.
Ellerth, 524 U.S. 742, 761 (1998)). In adopting this standard, the
Supreme Court rejected as "nebulous" and a "study in ambiguity" a
broader and more "open-ended test for supervisory status" advocated
by the EEOC. Id. at 2443, 49. The Court aimed to adopt a standard
that "can be readily applied," and that can "very often be resolved
as a matter of law before trial." Id. at 2449-50.
As Vance recognizes, at some point the ability to provide
advice and feedback may rise to the level of delegated authority
sufficient to make someone a supervisor. Id. at 2452. For
6
Although Vance says that it adopts the same test we used in
Noviello, the description of "tangible employment action" in Vance
omits the reference to "discipline" contained in Noviello. Exactly
how to reconcile these conflicting indicators is not material to
this case.
-13-
example, where the employer vests formal authority in a person who,
due to physical remoteness, must rely entirely (or, perhaps,
mostly) on the recommendation of another, the person whose
recommendation is relied upon may be deemed to have been delegated
the authority to make the decision. Id. (citing Rhodes v. Illinois
Dept. of Transp., 359 F.3d 498, 509 (7th Cir. 2004) (Rovner, J.,
concurring in part and concurring in judgment)). There is nothing
in Vance, though, to warrant ignoring the difference between
providing advice and feedback to one who has independent sources of
information and truly makes the decision, and providing a
recommendation to one whose acceptance of the recommendation is pro
forma. Vance makes clear that the latter situation can support a
finding of delegated supervisory authority. Were we also to treat
the former situation as such a delegation, much of the clarity and
predictability Vance seeks to ensure would be lost.
Here, setting aside Velázquez's conclusory testimony,
there is no evidence that DDR delegated to Martínez any relevant
authority over any tangible employment actions affecting Velázquez
(including the authority to discipline him). At most she possessed
some limited "responsibility to direct" Velázquez in certain
accounting and human resource protocols, a type of responsibility
rejected in Vance as insufficient to make one a supervisor. Id. at
2452. The record is clear that Albino was Velázquez's direct boss,
and that Albino's boss, González, decided whether and how to
-14-
discipline or reward Velázquez. The corporate structure in this
sense was a classic line and staff structure in which Albino and
González were the line supervisors, one above the other, while
Martínez filled a supporting staff function, providing advice and
assistance in her capacity as a member of the human resource
department, as well as feedback based on her own direct
interactions with González's subordinates.
When Albino and González began to consider firing
Velázquez, they undertook to gather information about him from
numerous sources, even interviewing those who worked for him.
Martínez's own actions further demonstrate that she lacked the
authority to fire or even discipline Velázquez. Rather, she needed
to lobby others--especially González--who had the authority in form
and in fact. That she was successful may show that she was a
formidable adversary as a co-worker, just as Albino warned, but it
does not make her Velázquez's supervisor as defined in Vance.
In applying Vance and Noviello in this manner, we
recognize that those cases involved claims of hostile environment
sexual harassment, not claims of quid pro quo harassment. But we
see no reason why a person might be deemed to be a supervisor in
connection with one type of harassment and not the other, or why
the distinction between supervisors and co-workers, underscored so
strongly in Vance, would cease to matter in the context of quid pro
quo harassment. On the contrary, the language of Vance suggests
-15-
that its limitation on vicarious liability applies more broadly, to
all forms of "unlawful harassment." See 133 S. Ct. at 2443. And
Vance includes within its conception of harassment those situations
in which "harassment culminates in a tangible employment action,"
i.e., quid pro quo harassment. Id. at 2439. See also Perez-
Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 26 (1st Cir.
2011) (classifying quid pro quo as a form of sexual harassment).
So, too, Vance's emphasis on the value of less complex rules in
this area of the law counsels for applications of its holding to
all forms of harassment.
3. DDR could nevertheless be found liable for
negligently allowing Martínez's discriminatory acts to
cause Velázquez's firing.
Our conclusion that Martínez was not a supervisor does
not necessarily absolve DDR of potential liability for Velázquez's
discharge. The Supreme Court has not yet ruled on the precise
question of whether employer liability premised on a finding of
negligence can be limited to cases of "hostile workplace"
discrimination, as opposed to discriminatory termination. See
Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 n.4 (2011) ("We
express no view as to whether the employer would be liable if a
co-worker, rather than a supervisor, committed a discriminatory act
that influenced the ultimate employment decision."). The Court has
cautioned, though, that the distinction between hostile workplace
claims and quid pro quo claims is "of limited utility." Burlington
-16-
Indus. v. Ellerth, 524 U.S. 742, 751 (1998). And we see no basis
for applying that distinction to permit a negligent employer to
escape (or incur) liability on one type of claim but not the other.
The same considerations of simplicity touted in Vance that counsel
against heightening the potential for liability on quid pro quo
claims counsel as well against lessening the potential for
liability.
Suppose, for example, that a white employee repeatedly
taunts a black co-worker with vicious racial epithets and also
lodges a series of false complaints about the victim to their
supervisor in a racially-motivated attempt to have the victim
fired. Certainly the employer could be held liable for negligently
permitting the taunting. Vance, 133 S. Ct. at 2439. So, too, the
employer should be liable if it fires the victim based on
complaints that it knew (or reasonably should have known) were the
product of discriminatory animus. In either situation, the same
elements are present: an act of discrimination is allowed to cause
harm by an employer that knows or reasonably should know of the
-17-
discrimination. Other courts have reached the same conclusion, at
least implicitly.7
In short, an employer can be held liable under Title VII
if: the plaintiff's co-worker makes statements maligning the
plaintiff, for discriminatory reasons and with the intent to cause
the plaintiff's firing; the co-worker's discriminatory acts
proximately cause the plaintiff to be fired; and the employer acts
negligently by allowing the co-worker's acts to achieve their
desired effect though it knows (or reasonably should know) of the
discriminatory motivation. Here, a reasonable jury applying this
test could find in favor of Velázquez.
B. Hostile Workplace Claim
As to Velázquez's more traditional hostile workplace
claim, we agree with the district court that it offers no
independent route to a judgment for Velázquez. To prevail on the
claim, Velázquez would have to show that harassment was "so severe
or pervasive as to alter the conditions of [his] employment and
7
See, e.g., Flitton v. Primary Residential Mortgage, Inc.,
238 F. App'x 410, 418 & n.5 (10th Cir. 2007) (finding that a
discriminatory termination claim could be supported by
discriminatory comments by someone the plaintiff reported to, but
who was not labeled a supervisor and did not make the decision to
fire her); Oakstone v. Postmaster Gen., 332 F. Supp. 2d 261, 273
(D. Me. 2004) (holding that an employer could be held liable on a
negligence theory for taking tangible employment actions based on
a co-worker's discriminatory reports); see also Johnson v. Koppers,
Inc., 726 F.3d 910, 915 (7th Cir. 2013) (assuming that a co-
worker’s discriminatory report could support a Title VII
discriminatory termination claim, but rejecting the claim because
the report was not the proximate cause of the termination).
-18-
create an abusive working environment." Faragher v. City of Boca
Raton, 524 U.S. 775, 786 (1998) (internal quotation marks omitted).
Aiming to prevent Title VII from becoming a "general civility
code," the Supreme Court has held that a plaintiff must show that
the "sexually objectionable environment [was] both objectively and
subjectively offensive," such that "a reasonable person would find
[it] hostile and abusive" and the "victim in fact did perceive to
be so." Id. at 787-88. Elaborating this latter requirement, we
have held that a plaintiff alleging that sexual advances created a
hostile workplace cannot prevail unless the advances were
"unwelcome." O'Rourke v. City of Providence, 235 F.3d 713, 728
(1st Cir. 2001).
Here, we must rely on Velázquez's deposition testimony,
along with a series of emails between him and Martínez, to
determine whether he could prevail.8 Reviewing this evidence, the
district court ruled that Martínez's conduct was neither
"unwelcome" nor "severe or pervasive." On the first point, the
district court found that "the Plaintiffs and Martínez had the type
of relationship where they . . . exchanged emails that were
sometimes flirtatious, used vulgar language, had sexual content and
were not work related." We disagree with the district court, but
only in part: based on Velázquez's testimony, a reasonable jury
8
Velázquez also submitted an affidavit, but the district
court struck it as tardy, and Velázquez does not appeal that
ruling.
-19-
could conclude that Martínez's advances were unwelcome after their
falling out, but not before. Velázquez has summarized his own
testimony as stating that he "had a good working relationship with
Martínez" until April 2008 but that "Martínez, since the month of
April 2008, up until [his] termination, started to harass,
discriminate and retaliate against [him] . . . ." Indeed,
Velázquez testified at his deposition that he started feeling
intimidated by Martínez only "after the April incident" at the
hotel. Before that incident, their relationship was characterized
by "trust," a "certain appreciation," and mutual flirtation,
including the use of "double intender [sic] words."
The email evidence supports Velázquez's testimony,
showing that he and Martínez once had a mutually flirtatious
relationship that ended during their email exchange from April 10th
to 12th following the first hotel incident. During that exchange,
Velázquez harshly rebuffed Martínez9 and she reacted angrily.10 The
talk was apparently cathartic, at least temporarily, as the final
emails from both participants were calm and amicable.11
9
See footnote 3 above for specific examples.
10
For example, Martínez wrote: "God made me see that you were
an instrument of evil and that sooner or later you were going to
destroy me. He rescued me and showed me what you really are, and He
made me see that you were pure darkness."
11
For example, Velázquez wrote: "I only want to tell you that
you have a very special place in my heart."
-20-
Nevertheless, a reasonable jury could infer that any subsequent
sexual advances by Martínez were unwelcome.
As a result, we examine Martínez's conduct after April
12, 2008, to determine whether a reasonable factfinder could view
it as "severe or pervasive" harassment. At his deposition,
Velázquez gave only extremely vague answers when asked how and when
Martínez harassed him. For example, he testified that Martínez
tried a couple of times to transform a kiss on the cheek to a kiss
on the mouth, but he failed to provide any sense of when this
occurred or whether the behavior continued after April. He
similarly offered no temporal detail regarding his claim that
Martínez made comments about his clothing.
Velázquez testified initially that "very strong, strong
sexual harassment commenced in April" and that this harassment
included requests to engage in sexual activity. But when asked for
further specifics, Velázquez said, "I would have to review the
emails to be specific" and "I can't be specific, because I don't
have the emails in front of me." Velázquez, though, has never been
able to point to any email showing conduct of this type after April
12, nor do we see one in the record.
Velázquez did also testify that during the one or two
months after the April encounter, Martínez sent him an unspecified
number of anonymous gifts such as chocolate, in at least one case
including a note "to my little rascal." Further, he testified that
-21-
shortly before he was fired, Martínez confessed her love to him in
a hotel in August 2008 during a conversation he perceived as a
renewed effort to establish a sexual relationship. The
conversation ended promptly when Velázquez told Martínez he did not
want to have a romantic relationship with her.
Even viewing the record in the light most favorable to
Velázquez, neither Martínez's gifts nor her comments at the hotel
in August approach "severe" harassment under our precedent,
particularly given the lack of physical touching, implicit physical
coercion, extreme language, or obscene behavior. See Ponte v.
Steelcase Inc., 741 F.3d 310, 314, 320-21 (1st Cir. 2014); Pomales
v. Celulares Telefónica, Inc., 447 F.3d 79, 81, 83-84 (1st Cir.
2006). We doubt that a jury could even find these few post-April
incidents hostile or abusive, in isolation or in aggregate. See
Faragher, 524 U.S. at 787. See also Vega-Colón v. Wyeth Pharm.,
625 F.3d 22, 32 (1st Cir. 2010). And, even if a jury found
Martínez's actions hostile or abusive, a handful of relatively mild
incidents over a five month period could not be deemed "pervasive"
harassment. See Lee-Crespo v. Schering-Plough Del Caribe Inc., 354
F.3d 34, 46 (1st Cir. 2003). Even further assuming that the
factfinder could add into the equation Martínez's criticisms of
Velázquez's work, which were not explicitly sexual but may have
been motivated by sexual rejection, Velázquez still could not show
that the harassment reached the required level of severity or
-22-
pervasiveness. See Faragher, 524 U.S. at 788 (noting that the
sexual harassment standard "filter[s] out complaints attacking the
ordinary tribulations of the workplace, such as the sporadic use of
abusive language . . . ." (internal quotation marks omitted)).
Notably, Velázquez failed to offer any evidence that Martínez's
behavior "unreasonably interfere[d] with [his] work performance."
Id. at 787-88. See also Pomales, 447 F.3d at 84 (finding no
actionable harassment in part due to the lack of evidence that the
alleged conduct "negatively affected [the plaintiff's] ability to
work as a . . . sales consultant"). Indeed, there is no evidence
that Velázquez was aware of the bulk of the criticisms Martínez was
surreptitiously feeding to his supervisors.
In sum, no unwelcome harassment occurred before the April
falling out, and no severe or pervasive harassment occurred
afterwards. If DDR's negligence allowed Martínez's retaliatory
animus to play a causal role in its decision to terminate
Velázquez, then he does indeed have a claim. But Velázquez has not
shown that Martínez's conduct otherwise made his working
environment objectively abusive before he was fired. We therefore
hold that, if no discriminatory animus infected the termination
decision, Velázquez could not prevail on a Title VII harassment
claim with the evidence he has presented.
-23-
C. Retaliation
In addition to claiming sex discrimination, Velázquez
asserts that DDR retaliated against him by firing him for
complaining of discrimination. We first discuss the threshold
issue of timeliness, then turn to the substance of Velázquez's
claim.
Velázquez's retaliation claim arises from events in the
spring and summer of 2008, culminating in his firing on August 25,
2008, the last act encompassed by his complaint. Velázquez filed
his charge with the Equal Employment Opportunity Commission 185
days after he was fired, on February 26, 2009.
As a general rule, Title VII requires plaintiffs to file
a retaliation charge within 180 days of the alleged act of
retaliation. 42 U.S.C. § 2000e-5(e)(1). However, the limitations
period expands to 300 days where the plaintiff has "initially
instituted proceedings with a State or local agency with authority
to grant or seek relief from such practice . . . ." Id. Thus, the
questions here are (1) whether Velázquez "initially instituted
proceedings with a State or local agency," specifically the Puerto
Rico Department of Labor and Human Resources, and (2) whether that
state agency had "authority to grant or seek relief from [the
-24-
challenged] practice." The company argues that Velázquez fails on
both counts.12
As to the first question, Velázquez admits that he did
not submit his charge directly to the state agency. He argues,
however, that his filing at the EEOC automatically and
simultaneously initiated proceeding at the Puerto Rico agency,
pursuant to a worksharing agreement between the state agency and
the EEOC. In particular, that agreement provides:
In order to facilitate the assertion of employment
rights, the EEOC and the [Puerto Rico Department of Labor
and Human Resources] each designate the other as its
agent for the purpose of receiving and drafting charges
. . . . The EEOC's receipt of charges on the [Puerto
Rico Department of Labor and Human Resources's] behalf
will automatically initiate the proceedings of both the
EEOC and the [Puerto Rico Department of Labor and Human
Resources] for the purposes of [42 U.S.C. § 2000e-5(c)
and (e)(1)].
The EEOC routinely uses worksharing agreements to facilitate “more
streamlined and cooperative” relationships with state and local
agencies, as it explained to this court in an amicus brief.
Indeed, the Commission has used worksharing agreements for more
than twenty-five years. See EEOC v. Commercial Office Products,
Co., 486 U.S. 107, 112 (1988) (noting that the EEOC had entered
worksharing agreements with “approximately three-quarters of the
109 state and local agencies authorized to enforce state and local
12
The first question, at least, would seem to apply equally
to Velazquez's sexual harassment claim and retaliation claim,
although the company has not presented any timeliness challenge to
the sexual harassment claim.
-25-
employment discrimination laws”). The EEOC agrees that under the
worksharing agreement applicable here, Velázquez's filing
"initially instituted proceedings" with the Puerto Rico agency.
The commission explains that, under the agreement, a plaintiff who
files with the EEOC has also filed with the Puerto Rico agency,
which has designated the EEOC as its agent for receiving charges,
and that the plaintiff has initiated proceedings with the Puerto
Rico agency.
Many circuits have accepted that the EEOC may use
worksharing agreements to achieve exactly this effect.13 We join
those circuits, confirming our prior dictum that "worksharing
agreements can permit state proceedings to be automatically
initiated when the EEOC receives the charge." E.E.O.C. v. Green,
76 F.3d 19, 23 (1st Cir. 1996). DDR correctly observes that our
opinion in Green noted that the governing worksharing agreement in
that case did not make clear whether the EEOC and state agency
intended a filing with the EEOC to initiate proceedings at the
state agency. Id. The EEOC has since updated its standard
worksharing agreement, and the agreement here clearly provides that
13
See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 327 (2d
Cir. 1999); E.E.O.C. v. Techalloy Maryland, Inc., 894 F.2d 676, 679
(4th Cir. 1990); Griffin v. City of Dallas, 26 F.3d 610, 612 (5th
Cir. 1994); Hong v. Children's Mem'l Hosp., 936 F.2d 967, 970 (7th
Cir. 1991); E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1510 (9th
Cir. 1989) overruled on other grounds by Burlington Indus. v.
Ellerth, 524 U.S. 742 (1998).
-26-
a filing with the EEOC will simultaneously initiate proceedings at
the Puerto Rico Department of Labor and Human Resources.14
We also conclude that the Puerto Rico agency had
"authority to grant or seek relief" from the retaliation alleged by
Velázquez. Puerto Rico law prohibits employers from retaliating
against individuals who have complained of sexual harassment, a
prohibition established by Act 17 passed in 1988. P.R. Laws Ann.
tit. 29, § 155h. The Puerto Rico Department of Labor and Human
Resources has statutory authority to enforce Act 17, see P.R. Laws
Ann. tit. 3, § 308, and it established the Anti-Discrimination Unit
to carry out that function. Under bylaws promulgated by the
Department of Labor and Human Resources, the Anti-Discrimination
Unit can investigate complaints of illegal discrimination or
retaliation and can seek a remedy for such acts in court.
DDR nevertheless points out that at the time of
Velázquez's filing, an EEOC regulation omitted Puerto Rico from a
list of jurisdictions in which a local or state agency had
authority to enforce a prohibition on retaliation related to sexual
harassment. 29 C.F.R. § 1601.74(a) & n.5 (2008). The EEOC has
acknowledged that the regulation became outdated when Puerto Rico
passed Act 17 in 1988. Accordingly, the Commission has now amended
the regulation to make clear that the Puerto Rico Department of
14
The company also claims that, even if Velázquez could have
initiated proceedings at both agencies by filing with the EEOC, he
chose not to. This claim is not supported by the evidence.
-27-
Labor has authority over "charges alleging retaliation for having
opposed unlawful sexual harassment." 29 C.F.R. 1601.74 n.6 (2014).
There is no dispute that the Puerto Rico agency has had such
authority since at least 1988.15
We owe no deference to the erroneous prior version of the
regulation, which does not purport to interpret any ambiguous
language bearing on this case. See, e.g., United States v. Haggar
Apparel Co., 526 U.S. 380, 392 (1999) (explaining that Chevron
deference applies only to "agency[] statutory interpretation" that
"fills a gap or defines a term in a way that is reasonable in light
of the legislature's revealed design" (internal quotation marks
omitted)). The language of Title VII clearly establishes the
relevant requirement: the longer limitations period applies where
a local or state agency had "authority to grant or seek relief from
[the challenged] practice." 42 U.S.C. § 2000e-5(e)(1). Rather
than attempting to fill any gap in the statute, the regulation
provides a list, for public reference, of state and local agencies
that have applied for and received formal recognition from the EEOC
as having the authority to enforce anti-discrimination laws. 29
C.F.R. §§ 1601.70-1601.74 (2008). Moreover, the regulation itself
explicitly provides that an agency lacking this formal designation
15
The company claimed at oral argument that the department
had such authority even before Act 17 was passed. But what matters
for our purposes is only that the agency had it when Velázquez
filed.
-28-
may nevertheless meet the statutory criteria and may be treated
accordingly by the EEOC. 29 C.F.R. § 1601.70(b) (2008) ("[I]f the
Commission is aware that an agency or authority meets the . . .
criteria for . . . designation, the Commission shall defer charges
to such agency or authority even though no request for . . .
designation has been made."). Thus, even on its own terms, the
regulation does not prevent Velázquez from utilizing the longer
statute of limitations.16
The company in its brief argues that we should affirm the
district court's decision on the alternative grounds that
Velázquez's retaliation claim fails to survive summary judgment on
its merits. Specifically, the company contends that Velázquez has
not produced sufficient evidence to allow a reasonable jury to find
that his complaints of discrimination caused him to be fired.
This but-for causation requirement for a Title VII retaliation case
differs materially from the "motivating factor" test applicable to
Velázquez's discrimination claim. See University of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2532-33 (2013). To prevail at
trial, Velázquez must show that he would not have been fired had he
not complained.
16
In so holding, we reject the conclusion of district court
cases finding that the regulation precluded plaintiffs in Puerto
Rico from utilizing the 300 day limitations period. See, e.g.,
Alvarez v. Delta Airlines, Inc., 319 F. Supp. 2d 240, 249 (D.P.R.
2004).
-29-
Velázquez files no reply brief responding to this
argument. Nor does Velázquez's opening brief develop or even
suggest any counter-argument. Our task is not to go through a
record and see if a losing party may have developed an argument
that it did not raise on appeal. See, e.g., Dialysis Access Ctr.,
LLC v. RMS Lifeline, Inc., 638 F.3d 367, 374 n.7 (1st Cir. 2011).
Here, moreover, there is ample reason not to undertake such an
inquiry. Velázquez's basic position, which we have accepted, is
that a jury might find that Martínez sought his termination because
he rebuffed her. His brief contains no argument that she was even
aware that he had complained about her. Nor is there any evidence
that González or Martínez first learned of any complaint by
Velázquez during the period of time when González changed his mind
from putting Velázquez on a performance plan for confirmed
shortcomings in his performance to firing him instead.
Accordingly, while we find that Velázquez had not run out
of time to claim that his firing was in retaliation for having
complained about Martínez's conduct, the claim is waived as
unsupported by argument or fact on appeal.
IV. Conclusion
For the foregoing reasons, we vacate the district court's
grant of summary judgment to DDR on Velázquez's discriminatory
termination claim, otherwise affirm the district court, and remand
to the district court for further proceedings consistent with this
-30-
opinion. We leave it to the district court to award the costs of
this appeal to Velázquez should he ultimately prevail.
So ordered.
-31-