Rivera-Martinez v. Commonwealth of PR ( 2007 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0
United States Court of Appeals
For the First Circuit
No. 05-2605
AIDA D. RIVERA-MARTINEZ, et al.,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF PUERTO RICO, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Selya, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.
Rafael A. Oliveras Lopez de Victoria, for appellants.
Irene S. Soroeta-Kodesh, Assistant Solicitor General with whom
Salvador J. Antonetti-Stutts, Solicitor General, and Mariana D.
Negron-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodriguez, Deputy Solicitor General, were on brief, for appellees.
January 4, 2007
*
Of the Sixth Circuit, sitting by designation.
SILER, Senior Circuit Judge. Plaintiff Aida D. Rivera-
Martinez appeals the dismissal of her hostile work environment and
retaliatory harassment claims against the Puerto Rico Treasury
Department and the Commonwealth of Puerto Rico (“Defendants”).
Rivera-Martinez contends that while working in the Human Relations
Department of the Treasury Department (“Treasury Department”),
specifically in the Training Center, she was subjected to sexual
harassment by her supervisor, Eduardo Rivera-Marrero. She claims
that Rivera-Marrero’s conduct created a hostile work environment
and that Defendants retaliated against her by tolerating harassment
by an employee. Rivera-Martinez seeks relief under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et
seq., (“Title VII”), as well as Art. I, Sec. II of the Puerto Rico
Constitution for breach of her human dignity protection. The
district court dismissed her Title VII claims and dismissed without
prejudice her state law claim. For the following reasons, we
AFFIRM.
I.
Rivera-Martinez’s claims derive primarily from two
specific incidents. First, she claims that in June 2001, she was
“sexually touched in her left forearm” by her supervisor, Rivera-
Marrero. According to Rivera-Martinez, Rivera-Marrero “gently
caressed her forearm in an up and down motion,” and in response to
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this touching, Rivera-Martinez pulled away and angrily declared,
“Do not touch me any more.”
The second incident took place on September 20, 2002,
when Rivera-Martinez and Delia Zayas were called to a meeting in
Rivera-Marrero’s office. In that meeting, Rivera-Marrero allegedly
chided Rivera-Martinez for violations of several office procedures
and improper office behavior. Rivera-Martinez denied wrongdoing
and countered by pointing out irregularities she had observed in
office procedure and conduct. Suddenly, according to Rivera-
Martinez, Rivera-Marrero walked over to Rivera-Martinez and grabbed
her. “[H]e began to twist her torso by placing one hand [on] her
back and the [other hand on] her upper torso [on] the brassiere
area.” Rivera-Martinez claims that Rivera-Marrero’s hand touched
her hip and buttocks and that Rivera-Marrero “used his hip and
pubic area” to push her out of the office. Zayas did confirm that
Rivera-Marrero touched Rivera-Martinez on the arm and on her mid
back “where the bra is,” but stated that she believed that Marrero
would have behaved the same way with either a male or female
employee.
On September 23, 2002, Rivera-Martinez wrote a letter to
the Secretary of the Treasury Department describing the September
20 meeting and requesting an immediate solution. Rivera-Martinez
claimed that “abuse and negligence has been and is being committed
against me” but she did not describe Rivera-Marrero’s conduct as
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sexual harassment. The Treasury Department investigated and
concluded that no assault had occurred. Rivera-Martinez filed an
administrative complaint with the Equal Employment Opportunity
Commission on March 17, 2003, claiming that she had been sexually
harassed.
Rivera-Martinez also asserts that Rivera-Marrero sexually
harassed other Treasury Department employees. She describes
several occasions where Rivera-Marrero allegedly abused co-workers
Lilliam Rolon and Sandra Ostolaza.
The district court concluded that Rivera-Martinez did not
present sufficient evidence that the harassment was based on gender
and that the two incidents alleged by Rivera-Martinez did not meet
the degree of severity and pervasiveness required to support an
actionable hostile work environment claim. The lower court granted
Defendants’ motion for summary judgment, and having dismissed the
federal-based cause of action, the court dismissed without
prejudice the remaining state law claim.
II.
We review summary judgment de novo, construing the record
in the light most favorable to the nonmovant and resolving all
reasonable inferences in the nonmovant’s favor. Rosenberg v. City
of Everett, 328 F.3d 12, 17 (1st Cir. 2003).
We begin by addressing Rivera-Martinez’s hostile work
environment claim. Rivera-Martinez challenges the district court’s
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finding that she failed to show that the harassment was based on
gender. She also asserts that her evidence of harassment
demonstrates severity and pervasiveness sufficient to alter the
conditions of her employment.
Under Title VII, it is an “unlawful employment practice
for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. §
2000e-2(a)(1). The scope of Title VII covers more than “economic”
or “tangible” discrimination. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57 (1986)). Title VII prohibits sexual harassment
so “severe or pervasive” as to “alter the conditions of [the
victim’s] employment and create an abusive working environment.”
Meritor, 477 U.S. at 67.
To succeed on her hostile work environment claim, Rivera-
Martinez must establish the following:
(1) that she . . . 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.
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O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-89
(1998); Harris, 510 U.S. at 20-23; and Meritor, 477 U.S. at 65-73).
The focus of hostile work environment cases is generally on
elements (4) and (5). Id.As the Supreme Court noted in Harris, the test for
proving a hostile work environment “is not, and by its nature
cannot be, . . . mathematically precise.” Harris, 510 U.S. at 22.
To determine whether an environment is sufficiently “hostile” or
“abusive,” a court must examine the totality of the circumstances
including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Id. at 23. “‘Simple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious)” do not amount to a hostile work environment.
Faragher, 524 U.S. at 788 (1998) (quoting Oncale v. Sundowner
Offshore Servs., 523 U.S. 75, 82 (1998)). Title VII was not
intended to be a “general civility code”; therefore, conduct must
be extreme to be actionable. Id.In the case at hand, the district court found that
Rivera-Martinez failed to demonstrate that the alleged harassment
was because of her gender. We agree. Rivera-Martinez provides
very little context for the first incident. She merely states that
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she was “sexually touched” on the forearm. In the second incident,
assuming the plaintiff’s version of the facts, Rivera-Marrero
grabbed her back and shoulder, touched her hip, buttocks, and
brassiere area, and pushed her out of his office. This episode
occurred following a heated exchange between the two and happened
in the presence of another employee. There is no indication that
Rivera-Marrero’s behavior, while inappropriate, was sexual in
nature. Rather, his conduct appears to be the product of his anger
toward Rivera-Martinez for challenging him and pointing out various
problems within the office.
However, discriminatory harassment does not have to be
overtly sex-specific in content to be actionable under Title VII.
“Harassing conduct need not be motivated by sexual desire to
support an inference of discrimination on the basis of sex.”
Oncale, 523 U.S. at 80. The Oncale court emphasized, “The critical
issue, Title VII's text indicates, is whether members of one sex
are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.” Id. (quoting
Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). In this case,
although Rivera-Martinez offers evidence that other female
employees were mistreated by Rivera-Marrero, she does not assert
that women in the office were treated differently than male
workers. Another Treasury Department employee, Zayas, stated, “I
don’t see that [Rivera-Marrero] establishes, in general terms, a
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big difference when dealing with any male or any . . . female.
Basically he’s equally authoritative one way or the other.”
Even if the harassment is assumed to be because of her
gender, Rivera-Martinez still fails to show that it was severe or
pervasive. Applying the factors cited in Harris to determine what
creates an “abusive” or “hostile” environment, Rivera-Martinez’s
claim falls short. The harassment Rivera-Martinez alleges was
infrequent; she cites only two incidents that are over a year
apart. Although an isolated event may create a hostile work
environment, it must be “extremely serious.” Faragher, 524 U.S. at
788. The inappropriate behavior here does involve unwanted
physical touching, but both incidents were relatively limited. At
worst, Rivera-Martinez was on one occasion inappropriately touched
on her arm and in another instance hastily pushed out of an office.
See, e.g., Morgan v. Mass. Gen. Hosp., 901 F.2d 186, 192-93 (1st
Cir. 1990) (concluding that conduct was not sufficiently severe or
pervasive where a coworker stood behind the plaintiff so as to
purposefully bump into him and “peeped” at plaintiff’s genitals
while standing next to him in the restroom); Burnett v. Tyco Corp.,
203 F.3d 980, 985 (6th Cir. 2000) (holding that “a single battery
coupled with two merely offensive remarks over a six month period”
does not create a hostile work environment); Saxton v. American
Tel. & Tel. Co., 10 F.3d 526, 528-35 (7th Cir. 1993) (finding two
incidents of unwanted sexual advances did not constitute severe
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harassment where the supervisor “placed his hand on [the
plaintiff’s] leg above the knee several times,” “rubbed his hand
along her upper thigh,” “kissed her for two to three seconds until
she pushed him away,” and then, three weeks later, attempted to
grab her). Furthermore, Rivera-Martinez never claims that the
harassment had a negative impact on her work performance. See Lee-
Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 46
(affirming summary judgment in favor of an employer in a hostile
environment case where the conduct “was never . . . an impediment
to [the plaintiff’s] work performance”).
Rivera-Martinez may have experienced discomfort as a
result of the Rivera-Marrero’s behavior, but she has not presented
adequate evidence of harassment to allow a reasonable jury to find
that she was subjected to a hostile work environment.
Rivera-Martinez also claims that she suffered retaliation
by the Treasury Department following her September 23, 2002, letter
to the Secretary of the Treasury. To state a prima facie case of
retaliation, a plaintiff must prove that “(1) she engaged in
protected conduct under Title VII; (2) she suffered an adverse
employment action; and (3) the adverse action was causally
connected to the protected activity.” Marrero v. Goya of Puerto
Rico, Inc., 304 F.3d 7, 22 (1st Cir. 2002) (citing Hernandez-Torres
v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.
1998)).
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Adverse employment actions include “demotions,
disadvantageous transfers or assignments, refusals to promote,
unwarranted negative job evaluations, and toleration of harassment
by other employees.” Id. at 23 (quoting White v. New Hampshire
Dep’t of Corrections, 221 F.3d 254, 262 (1st Cir. 2000)). For a
plaintiff to prove retaliation based on an employer’s toleration of
harassment, she must show that the employer tolerated severe or
pervasive harassment motivated by the plaintiff’s protected
conduct. Id. at 26.
It is undisputed that Rivera-Martinez engaged in
protected conduct when she wrote the letter describing the incident
that occurred on September 20, 2002. However, she fails to present
evidence that she suffered an adverse employment action. She does
not allege that she was demoted, transferred, refused a promotion,
or given a negative job evaluation. Her claim rests on the
Treasury Department’s toleration of harassment by other employees.
For her claim to be viable, she must provide evidence of severe or
pervasive harassment subsequent to her protected conduct. Yet,
Rivera-Martinez fails to allege any incident of retaliatory
harassment following her report of the September 20, 2002, meeting.
She maintains that she had to continue working with Rivera-Marrero
and insists that being supervised by him “created a very hostile
atmosphere,” but she never asserts any further harassing events.
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Therefore, summary judgment is appropriate on the retaliation
claim.
The district court properly dismissed without prejudice
Rivera-Martinez’s state law claims. Under 28 U.S.C. § 1367, a
“district court[] may decline to exercise supplemental jurisdiction
over a claim . . . if the district court has dismissed all claims
over which it has original jurisdiction.” Appellate review of the
refusal to exercise supplemental jurisdiction is for abuse of
discretion. Gonzalez-de-Blasini v. Family Dep’t, 377 F.3d 81, 89
(1st Cir. 2004). In this case, the district court dismissed the
Title VII federal claim and therefore, in its discretion, declined
to entertain the supplemental state law claim. No abuse of
discretion occurred. Rivera-Martinez may file her unadjudicated
state claims before the courts of the Commonwealth of Puerto Rico.
III.
For the foregoing reasons, we affirm the district
court’s order granting summary judgment to Defendants.
Affirmed.
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