Vera v. McHugh

United States Court of Appeals
For the First Circuit

No. 08-1886

ROSA LINDA VERA,

Plaintiff, Appellant,

v.

JOHN McHUGH,* Secretary of the Army,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Selya, and Lipez, Circuit Judges.

Vilma M. Dapena-Rodríguez for appellant.
Rebecca E. Ausprung, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, and R. Brian Bohlen, Special Assistant U.S.
Attorney, U.S. Army Litigation Division, were on brief, for
appellee.

October 6, 2010

*
Pursuant to Fed. R. App. P. 43(c)(2), Secretary of the Army
John McHugh has been substituted for former Secretary of the Army
Pete Geren as the respondent.
 LIPEZ, Circuit Judge. In this action pursuant to Title

VII of the Civil Rights Act of 1964 ("Title VII"), the plaintiff,

Rosa Linda Vera, alleged that she was sexually harassed by a

coworker and subsequently by a supervisor at the Fort Buchanan Army

garrison in Puerto Rico, and then fired in retaliation for filing

her sexual harassment complaints. Both claims of sexual harassment

involved allegations depicting a hostile work environment. The

district court found that Vera's first sexual harassment claim was

not properly before it because she had failed to exhaust her

administrative remedies and her equitable estoppel argument did not

excuse the failure. On the merits, the court granted summary

judgment for the defendant on Vera's second sexual harassment claim

and her retaliation claim.

After careful consideration, we affirm the district

court's grant of summary judgment to the defendant on Vera's first

claim of sexual harassment and on her retaliation claim. Finding

that Vera has created a genuine issue of material fact on her

second sexual harassment claim involving her supervisor, Raul

Rodriguez, we vacate the district court's grant of summary judgment

on that claim and remand for further proceedings consistent with

this opinion.

I.

We recite the facts in the light most favorable to Vera,

the nonmoving party. See Agusty-Reyes v. Dept. of Educ. of P. R.,

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601 F.3d 45, 48 (1st Cir. 2010).

A. Sexual Harassment Complaints

Vera began working for the Army as a civilian

administrative assistant in the El Caney Lodge of Fort Buchanan in

April 2002 and was promoted six months later to the position of

administrative coordinator in the Training Support Center Division.

On January 30, 2003, she met with an internal Equal Employment

Opportunity ("EEO") office counselor to report that she was being

sexually harassed by a co-worker, Mario Morales. The counselor

filled out a "Pre-Complaint Intake Interview" form in February 2003

in which he recorded Vera's informal complaint. On the form, he

indicated that he provided Vera with a handout entitled "Rights and

Responsibilities" and that he specifically advised her of "[t]he

basis(es) for filing pre-complaint, formal complaint, and/or class

complaint, and of right to file," "the pre-complaint, formal and/or

class complaint process," "the 45-day requirement from effective

date of personnel action or of the date of the matter alleged to be

discriminatory contact," and the role of the EEO counselor, among

other things. Although the counselor's notes on the form stated

that Vera was "satisfied with the response and clarification

provided by management" and "would not proceed with her EEO

allegation" while she gave management time to "improve the work

place," the EEO office never recorded the resolution of Vera's

informal complaint in a document containing her signature. At some

point in early October 2004, as part of the resolution of her

-3-
complaint, Vera was moved to a different area where she would have

an office with privacy and a door. According to Vera, she did not

consider the matter resolved either by that location change or by

any other steps taken by the EEO office.

On September 30, 2004, shortly before moving offices,

Vera had a dispute with Rafael Contreras, the Acting Chief of the

Training Division at Fort Buchanan. Vera was issued a disciplinary

letter by Hector López, the Director of Plans, Training,

Mobilization, and Security, after Contreras reported that Vera

responded in a loud, disruptive and insubordinate manner when she

was asked the status of an overdue work assignment. According to

Contreras' report, when he asked Vera about her project, she told

him she was not going to do the work and asked him why he did not

do it himself. According to Vera's deposition testimony, Contreras

called her a pig. Vera left her workstation immediately after the

incident to report it to López. After seeing López, she left the

base. The disciplinary letter issued by López reminded Vera that

"unless otherwise indicated by management/supervisor, your place of

duty is at Bldg 511" and "whatever duties you must do should be

done in the office/workplace." The letter warned Vera that "future

instances on [sic] leaving the work area without informing your

supervisor or not requesting leave may be charged absent without

leave (AWOL). This may lead to more severe disciplinary actions if

it is not adhered too [sic]."

-4-
 In October 2004, Raul Rodriguez became the Chief of the

Training Division at Fort Buchanan, replacing Contreras. As such,

he was Vera's direct supervisor. According to Rodriguez, when he

assumed the position, he was informed that there had been a problem

between Vera and Contreras, but he was not made aware of Vera's

January 2003 informal sexual harassment complaint against Morales.

Rodriguez became aware of Vera's complaint against Morales in

approximately December of 2005.

It appears that Rodriguez was not officially assigned an

office of his own when he assumed his new position. Instead,

according to Vera, he "worked out of" her office, which had a

computer with an internet connection. In her deposition, she

stated that it was "his primary office just like mine." Rodriguez

asserts, and Vera does not dispute, that there were no other

offices in that building with computers connected to the internet.

Vera suggests, however, that Rodriguez could have worked from

another supervisor's office, which she describes as "five times the

size" of her own.1 There was also an empty office in the building

with computers but no internet connection where Vera could go, and

did on occasion occupy, when Rodriguez was using the computer in

her primary office. Vera was the only woman working in that

building at Fort Buchanan.

1
It is not clear whether that office had a computer with an
internet connection.

-5-
 Rodriguez and Vera used the same office for approximately

three months during a period from October 2004 to the beginning of

March 2005.2 According to Vera, Rodriguez was in their shared

office "most of the time," although he did leave to go to meetings.

During the time that she and Rodriguez were using the same office,

Vera described herself as experiencing "a constant invading [of] my

space." She described how Rodriguez would sit staring at her while

they were in the office with the door closed and would block the

door as she tried to leave. Vera explained that Rodriguez would

look at her in a sexual way and then "smirk and laugh" because he

knew it bothered her. At times, Rodriguez would move his chair so

close that their legs would touch, or he would stand close behind

her so that she could feel his breath. Although Vera acknowledged

that the office was small and was not big enough for the two of

them, she maintained that the touching could not have been

accidental. Vera told Rodriguez not to invade her space. In

response, Rodriguez moved away from her, but according to Vera it

happened again until "after a while, I guess he knew I was

serious."

Vera stated that Rodriguez invaded her space in public as

well as in the confines of the office. When asked to elaborate,

she described one incident, at an unspecified date, when Rodriguez

came too close to her in front of a coworker and a client forcing

2
Vera was on leave for the month of January 2005 and thus was
not using the office during that time.

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her to leap away to avoid contact with him. Vera also described

objectionable comments Rodriguez made to her. On one occasion,

Rodriguez referred to Vera as "Baby," while on another, he told her

on a stormy day that her "hair looked like the weather," a comment

she found to be derogatory and offensive to her "as a woman."

When asked during an EEO investigation about the effect

of Rodriguez's behavior on Vera, Yarita Lopez, an operations

specialist who was one of Vera's friends on the base, stated, "I

witnessed every single day her emotional distress that I never . .

. saw [] before his arrival to the division." She described the

distress as "constant," and explained, "[i]t was not only

physically, but mentally and emotionally." She described Vera as

having "outbursts of crying and disbelief and despair of every

single action that he was doing." A note from Vera's doctor

written in April 2005 also attests to this severe emotional toll.

The note states that Vera would need to be out of work from March

18, 2005 through May 18, 2005 due to "Depression Disorder with

Anxiety, affected by the work environment."

The shared office arrangement ended sometime in late

February or early March 2005 when Vera began to work out of the

empty office in order to avoid Rodriguez in her own office. She

was later moved to yet another office as part of a large office

reorganization coordinated by Rodriguez. Vera filed an informal

sexual harassment complaint against Rodriguez on May 4, 2005.

-7-
B. Retaliation

Given the complicated history underlying Vera's

retaliation claim, and given the importance of the sequence of

events to an evaluation of her claim, we have divided the account

of the relevant facts into discrete time periods.

1. December 21, 2004 through March 3, 2005: Vera's
Initial Extended Absence and Rodriguez's Response

During the time that she and Rodriguez were using the

same office, from October 2004 through March 21, 2005, Vera was

absent from work for over a month, from late December 2004 until

the beginning of February, 2005. On December 21, 2004, Vera and

Rodriguez discussed her need for time off to attend to her health

issues and those of her children.3 Vera had been absent or left

early frequently in order to go to appointments with doctors or

take her children to appointments.4 She did not have any remaining

paid leave of any kind. Rodriguez encouraged Vera to take a few

weeks of unpaid leave in order to attend to her appointments in the

hope that consolidating those appointments would permit her

productively to resume her duties. According to Rodriguez, he

3
Vera's health issues and those of her children were
apparently related at least in part to a car accident in the fall
of 2003 in which Vera and her two children were injured.
4
According to an affidavit submitted by Joann Morales, the
timekeeper for the Directorate of Plans Training, Mobilization and
Security at Fort Buchanan, Vera was present for duty 816.75 hours
and was absent on leave without pay for 783.25 hours between
January 1, 2004 and October 2, 2004.

-8-
requested that Vera provide documentation of her medical

appointments so that he could approve the absence and he was under

the impression that Vera's absence would begin in January. Vera

was absent from December 27, 2004 to February 1, 2005. She did not

provide any medical documentation prior to her leave. Vera stated

that Rodriguez himself was on leave at the end of December so that

she could not personally deliver the medical documentation to him.

She was unable to explain why she did not leave the documents in

the office for him or email them to him before her absence began.

In late January 2005, before Vera's return to work,

Rodriguez exchanged emails with Fabiana Nevado, his human resources

advisor within the Civilian Personnel Advisory Center. Rodriguez

sought advice on how to deal with Vera's absence, given her failure

to submit a formal leave request or provide medical documentation

before or during her absence. After Vera returned, on February 1,

2005, Rodriguez kept records of his employees' comings and goings

for a day. He noted that four employees, including Vera, arrived

late and/or left early on that day. Rodriguez called a staff

meeting on February 7, 2005 to go over the problems he had

observed, after which Vera went to speak to him but was rebuffed by

Rodriguez, who told her they could speak later.

On February 2, 2005, Vera submitted a letter from a

doctor dated December 23, 2004, recommending that she be on an

extended leave of absence to recuperate from trauma. On February

-9-
22, 2005, Rodriguez wrote a counseling letter to Vera citing her

month-long absence and failure to follow established leave

procedures. The letter explains that if an employee needs leave,

"the request has to be submitted along with an SF-71 and it has to

be approved by the supervisor prior to taking leave." Rodriguez

advised Vera that her unauthorized absences were affecting her job

performance and that more serious disciplinary action, "up to and

including removal from your position," might result from her

failure to comply with the procedures in the future.

On March 3, Vera attended a leave and attendance

workshop. On the same day, Vera received and acknowledged a

memorandum from Rodriguez stating that the doctor's statement she

provided was "not adequate" because it lacked a "diagnosis and

prognosis of [her] medical condition." In the memo, Rodriguez

requested that Vera provide a statement that "includes the nature

of your illness, the expected time it will take for rehabilitation

and your physical limitations during this period," as well as the

duties she was unable to perform.

2. March 4, 2004 through May 18th, 2005: Vera's Second
Extended Absence and Rodriguez's Response

On March 4, 2005, Rodriguez was informed by Joann

Morales, the timekeeper for the Directorate of Plans Training, that

Vera had called to say that she was sick and would be seeking

medical help. In her deposition, Morales testified that the proper

procedure for an employee to provide notice that he or she would be

-10-
coming in late or needed time off was to notify the supervisor

directly and that she herself followed that procedure. She

acknowledged that there was a custom that employees would call her

if they would be late or needed to be absent. Nevertheless, in

such cases, the employees would also contact their supervisors.

After hearing from Morales, Rodriguez communicated with Nevado in

Human Resources about Vera's absence. Nevado responded to

Rodriguez that Vera should be considered Absent Without Leave

("AWOL") for March 4. On March 9, Rodriguez spoke to Vera,

explaining that in order to be excused from work, she was required

to speak to him personally as her supervisor.

Beginning on March 21, 2005, Vera was absent from work

continuously until August 23, 2005. Her initial absence was based

on a medical recommendation that she be out for two weeks and then

be reevaluated. Throughout the summer, Vera's doctor continued to

recommend that she not report to work due to depression and stress

caused by her work environment. Vera did not submit the paperwork

having to do with her absences to Rodriguez. It is unclear from

the record exactly what documents were submitted and to whom, but

Vera communicated with Joann Morales about her absences on a few

occasions and seems to have left medical documentation with her as

well.

In mid-April, after Joann Morales again emailed Rodriguez

to inform him that Vera had called to say she would continue to be

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absent until May 18 and would bring in the medical paperwork the

following day, Rodriguez emailed the Civilian Personnel Advisory

Center stating that he would write a memorandum for the record

about the absence. On May 9, Rodriguez issued Vera a notice of

proposed suspension due to her failure to follow established leave

procedures.

3. May 18, 2005: Rodriguez Receives Notice of Vera's
Sexual Harassment Complaint Against Him

Rodriguez was informed of Vera's sexual harassment

complaint against him through a letter from the EEO office on May

18, 2005.5 On May 19, 2005, the office of the Inspector General

wrote to Vera in response to her sexual harassment complaint

against Rodriguez, which she had directed to that office. The

letter informed Vera that an inquiry had been conducted into her

request for assistance in dealing with the sexual harassment.

According to the Inspector General, the inquiry found that she did

not adhere to rules and procedures established by her supervisors

and accused her of "constant insubordination and refusal to obey

orders, and defiance of authority."6

On May 23, Rodriguez directed Joann Morales to change

Vera's December/January absence from Leave Without Pay to AWOL. He

5
As noted earlier, Vera filed her complaint on May 4, 2005.
6
Vera contends that no investigation took place. The record
does not reveal any additional documentation of the investigation.

-12-
also directed that her initial March absence be changed from AWOL

to Leave Without Pay.

4. Late May 2005 through August 22, 2005: Supervisory
Response to Vera's Continued Absence

During the remaining period of Vera's absence, her

supervisors discussed her absence in an email chain. The emails

discussed the need for an independent medical evaluation of Vera

and the fact that her supervisors had no information about what

types of job functions she might be able to perform when she

returned, if and when she would return, and the precise nature of

her illness.

On July 28, 2005, Hector López issued a notice of

decision to suspend to Vera. The notice informed Vera that López

had reviewed Rodriguez's May 9th notice of proposed suspension and

found that, as stated in Rodriguez's earlier notice, Vera failed to

follow established leave procedures and was AWOL without providing

reasons to justify her absence. López suspended Vera for 14 days

beginning on August 8, 2005. On August 1, 2005, López issued a

memorandum to Vera in which he informed her that her absence was

having an adverse impact on operations. The letter states that

Vera never provided the additional information requested in

Rodriguez's letter of February 24th, detailing her medical

prognosis and physical limitations. The letter warns that López

considers her "numerous absences from work from December 2004 until

the present" to be unreasonable. The letter goes on to request

-13-
that Vera report for duty on August 23, 2005 or provide medical

documentation "identifying duties which can be performed and

current limitations."

5. August 23, 2005 through October 7, 2005: Vera's Return
to Work, Breakdown, and Termination of Her Employment

On August 23, 2005, Vera reported to work as requested,

bringing with her a note from her doctor stating that she needed

"to continue to be out of work, but she is willing to try going

back to work." The note stated that Vera had a follow-up

appointment with the doctor on August 30, 2005 at 3pm. It is

unclear to whom Vera delivered her doctor's note. On August 26,

2005, Vera emailed Rodriguez explaining that she had to take

paperwork to another office and that she would be at a meeting

later that afternoon. Rodriguez forwarded Vera's email to Nevado

stating that Vera had not reported to him. On August 29, Rodriguez

again emailed Nevado to say that he had seen Vera, but that she had

not reported to him. By this time, Rodriguez was using the office

he and Vera had shared and Vera had been relocated to a different

office.

On August 30, Vera, through another employee, requested

that Rodriguez give her leave to attend her medical appointment.

When her request was denied, Vera suffered a nervous breakdown and

had to be taken to the hospital by ambulance. Vera explained that

her illness was precipitated by Rodriguez, who spent time pacing up

and down her office that morning.

-14-
 On August 31, 2005, the day after Vera's breakdown at the

office, Rodriguez issued her a notice of proposed removal from

federal service. The notice states that Vera did not perform any

of her assigned duties after returning to work on August 23rd, was

discourteous, and failed to observe proper leave procedures. The

August 31st notice also states, in reference to her breakdown at

the office of the previous day, that Vera caused a disruption and

"created a disturbance at the work site." The notice characterizes

that behavior as "totally unacceptable" and states that it "will

not be tolerated any longer." Vera was also apparently asked to

submit medical documents to support her leaving work in the

ambulance on August 30th.

On September 14, 2005, López issued a memorandum barring

other employees from talking to Vera "on employment matters or

requests for documents about personnel issues." According to

Rodriguez, that memorandum was issued because Vera was "asking for

statements from people . . . to say what happened and things like

that. . . . She was kind of collecting information." Both

Rodriguez and Morales stated that they were not aware of similar

orders being issued in other instances. Vera was terminated from

her employment on October 7, 2005.

C. Proceedings Below

Vera filed an informal EEO complaint against Rodriguez

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alleging sexual harassment on October 26, 2005.7 She filed a

formal complaint on December 8, 2005. On August 7, 2006, Vera

brought this action under Title VII of the Civil Rights Act of 1964

("Title VII"), 42 U.S.C. § 2000e-5, against the Secretary of the

Army,8 alleging sexual harassment and retaliation. On January 11,

2008, after the taking of depositions and the exchange of

documents, the defendant moved to dismiss or, in the alternative,

for summary judgment. The district court granted the defendant's

motion for summary judgment as to all claims. Vera filed this

timely appeal.

II.

A. Standard of Review

To survive summary judgment on her harassment and

retaliation claims, Vera must establish a genuine issue of material

fact as to whether she experienced sexual harassment or was

retaliated against within the meaning of Title VII. Fed. R. Civ.

P. 56(c). "A genuine issue is one that could be resolved in favor

of either party, and a material fact is one that has the potential

of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't

of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (internal quotation

7
This second informal complaint seems to duplicate the
informal complaint she filed against Rodriguez on May 4, 2005.
8
The Secretary was sued in his capacity as Vera's employer.
Title VII does not create liability against individual employees.
See Fantini v. Salem State Coll., 557 F.3d 22, 28-31 (1st Cir.
2009).

-16-
marks omitted). We review the district court's grant of summary

judgment de novo. Lockridge v. The Univ. of Me. Sys., 597 F.3d

464, 469 (1st Cir. 2010). While we draw "all reasonable

inferences" in the light most favorable to Vera, as the nonmoving

party, we will not "draw unreasonable inferences or credit bald

assertions, empty conclusions, [or] rank conjecture." Cabán-

Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007)

(emphasis in original).

B. Sexual Harassment under Title VII

In 1972, Congress extended the protection provided by

Title VII of the Civil Rights Act of 1964 to federal employees.

Section 717 of the Civil Rights Act, codified at 42 U.S.C. § 2000e-

16, "provides that all personnel actions affecting federal

employees and applicants for federal employment 'shall be made free

from any discrimination based on race, color, religion, sex, or

national origin,'" and "establishes an administrative and judicial

enforcement system." Brown v. Gen. Servs. Admin., 425 U.S. 820,

829-30 (1976). Title VII's ban on discriminatory employment

practices "extends to sex-based discrimination that creates a

hostile or abusive work environment." Billings v. Town of Grafton,

515 F.3d 39, 47 (1st Cir. 2008) (citing Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 66 (1986)). This sex-based discrimination is

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commonly referred to as "sexual harassment." Meritor, 477 U.S. at

67.9

Not all harassing conduct falls under the prohibition of

Title VII, however. "For sexual harassment to be actionable, it

must be sufficiently severe or pervasive 'to alter the conditions

of [the victim's] employment and create an abusive working

environment.'" Id. (quoting Henson v. City of Dundee, 682 F.2d

897, 904 (11th Cir. 1982)); see also Billings, 515 F.3d at 47-48.

The environment must be "both objectively and subjectively

offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so."

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).

There is no single test by which we evaluate a claim of

sexual harassment to determine whether the plaintiff has presented

sufficient evidence to survive summary judgment. Pomales v.

Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 2006).

Rather, we look to "all the circumstances," a list which includes,

but is not limited to: the frequency of the harassing conduct, its

severity, whether it was physically threatening or humiliating as

opposed to a mere offensive utterance, whether it "unreasonably

interfered with an employee's work performance," and "the effect of

the conduct on the employee's psychological well-being." Che v.

9
Here and throughout this opinion, we use "sexual harassment"
to refer to the hostile work environment form of sexual harassment.
In doing so, we do not suggest that the term "sexual harassment" is
limited to describing hostile work environment claims.

-18-
Mass. Bay Transp. Auth., 342 F.3d 31, 40 (1st Cir. 2003). It is

the jury's job to "weigh those factors and decide whether the

harassment was of a kind or to a degree that a reasonable person

would have felt that it affected the conditions of her employment."

Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002). The

court's role in evaluating such claims is to "polic[e] . . . the

outer bounds." Id. (internal quotation marks omitted).

On a motion for summary judgment in a sexual harassment

case such as this, we must distinguish facts that merely add up to

the "ordinary tribulations of the workplace, such as sporadic use

of abusive language, gender-related jokes, and occasional teasing,"

Faragher, 524 U.S. at 788, which can never support a Title VII

claim, from those suggesting "sexual remarks, innuendoes, ridicule,

and intimidation" which "may be sufficient to support a jury

verdict for a hostile work environment." O'Rourke v. City of

Providence, 235 F.3d 713, 729 (1st Cir. 2001).

1. Sexual Harassment Claim Involving Rodriguez10

In awarding summary judgment to the defendant, the

district court found that the comments made by Rodriguez, coupled

with Vera's "general sense of unease," did not amount to a hostile

work environment. We disagree both with the district court's

characterization of the facts of record and with the legal

10
Although Vera's claim against Rodriguez was made two years
after her claim against Morales, we address it first before delving
into the procedural issues involved in disposing of the claim
against Morales.

-19-
conclusion it reached. Taking the facts in the light most

favorable to Vera, as we must on summary judgment, we cannot rule,

as a matter of law, that the circumstances of Vera's employment did

not constitute a hostile work environment. See Billings, 515 F.3d

at 50.

For three months,11 until Vera removed herself to a

different office, Rodriguez shared her workspace for multiple hours

every day, stared at her in a sexual way, came so close to her that

she could feel his breath, pulled his chair next to her so that

their legs touched, laughed at her discomfort, blocked her escape

from the cramped office with a closed door, and on one occasion

called her "Babe." While they were sharing an office, and again

after Vera returned from an extended leave, Rodriguez maintained

his practice of drawing inappropriately close to her and smirking

at her when she backed away. As a result of Rodriguez's conduct,

Vera suffered psychological and emotional distress that her friend

and co-worker characterized as "constant."12

11
There is some confusion about the length of time during
which Rodriguez and Vera shared an office. The government seeks to
characterize the time period as two months, but other accounts in
the record suggest that the time period was three months. Mindful
of our duty to take the facts in the light most favorable to the
nonmoving party on summary judgment, we adopt the three month
number, as the length of time most coherently suggested by the
record.
12
The dubitante opinion of our colleague describes this
conduct as "the kind of incidental contact that is unavoidable in
cramped quarters . . ." and the "easily predicable sequelae of
[the] spatial assignment." That innocent characterization of the
conduct alleged is incompatible with the summary judgment standard,

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 The conduct Vera alleges involves many, if not all, of

the factors we use to guide us in determining whether a claim such

as hers may survive summary judgment. See Marrero, 304 F.3d at 18-

19. The alleged conduct by Rodriguez was described by Vera as

"constant" because Rodriguez was in their shared office "most of

the time." Although Rodriguez did not overtly threaten Vera, the

allegation that he blocked her from leaving the office on at least

one occasion suggests a physically threatening environment. When

Rodriguez looked at her "up and down" in a sexual way,13 she felt

extremely uncomfortable, an understandable reaction to sharing an

office with a supervisor who finds his subordinate's discomfort

which requires us to view Vera's evidence in the light most
favorable to her. Thus, viewed independently of Vera's reaction to
Rodriguez's conduct, a jury could reasonably conclude that
Rodriguez was purposefully exploiting the smallness of the office
that he shared with Vera to sexually harass her. Moreover,
contrary to the suggestion of the dubitante opinion, that conduct
falls well within our sexual harassment precedents. See discussion
of Billings and Marrero infra.
13
The government seeks to discredit Vera's allegation of
sexual staring as uncorroborated. It is not Vera's burden on
summary judgment to provide additional proof that Rodriguez stared
at her lasciviously while the two of them were alone in her office
with the door closed. On summary judgment, when confronted with a
case of conflicting testimony from the plaintiff and defendant, we
are bound to take the facts in the light most favorable to the
nonmoving party so long as they are not simply "bald assertions" or
"empty conclusions." Carreras v. Sajo, Garcia & Partners, 596 F.3d
25, 32 (1st Cir. 2010) (internal quotation marks and citation
omitted).

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amusing and intentionally causes that discomfort by placing his

body inappropriately close to hers in the small office.14

Vera also states that she occasionally left her office

while Rodriguez was there in order to escape him; ultimately, she

removed herself from the office entirely. Although proof of such

interference is not necessary to maintain a successful claim of a

hostile work environment, conduct that forces an employee to

abandon his or her own office during the workday could reasonably

be seen as interfering with that employee's work performance. Che,

342 F.3d at 40 (finding an employer's interference with an

employee's use of his radio, which might hamper his work

performance, supported a hostile work environment claim). Further,

although some lack of privacy and personal space was inherent in

the odd circumstance of having both Rodriguez and Vera working in

a small office, the facts and attendant circumstances suggest that

Rodriguez went out of his way to violate Vera's privacy and the

integrity of her personal space. Finally, there is testimonial and

14
Contrary to the government's assertion, the absence of a
sexual proposition by Rodriguez does not preclude Vera's success on
her claim as a matter of law. See Billings, 515 F.3d at 48
(reversing summary judgment for defendant on hostile environment
claim, despite absence of touching or propositioning, when
supervisor stared repeatedly at plaintiff's breasts). A sexual
proposition is not the sine qua non of sexual harassment. See Id.
("'[A] worker need not be propositioned, touched offensively, or
harassed by sexual innuendo in order to have been sexually
harassed.'" (quoting Quick v. Donaldson Co., 90 F.3d 1372, 1379
(8th Cir. 1996)).

-22-
documentary evidence that Rodriguez's conduct caused Vera to suffer

psychologically.15

Our case law supports the conclusion from this summary

judgment record that Vera suffered severe and pervasive harassment

in the form of a hostile work environment. In Billings, for

example, we found that an employee whose supervisor stared at her

breasts whenever the two came in contact over the course of more

than two years had asserted a cognizable claim of severe and

pervasive harassment. 515 F.3d at 50. In Marrero v. Goya of

Puerto Rico, Inc., 304 F.3d 7, 19 (1st Cir. 2002), we found that it

was reasonable for the jury to conclude that an employee whose

supervisor made sexual comments to her and touched her

inappropriately on five occasions over the course of a little over

one year had experienced sexual harassment. 304 F.3d at 19.

Here, a jury could find that the intensity and frequency

of the contact between Vera and Rodriguez altered the conditions of

her employment despite the relatively short duration of their

office-sharing. That Rodriguez's behavior caused Vera

psychological trauma that persisted even after she had left the

hostile environment, as evidenced by Lopez's testimony and the

15
Specifically, as described above, Vera's coworker stated
that she observed Vera's emotional distress, in the form of
outbursts of crying, and that she witnessed Vera's despair and
disbelief at Rodriguez's actions. Similarly, a doctor's note
stated that Vera could not return to work because she was
experiencing anxiety and depression "affected by the work
environment."

-23-
doctor's note written in April 2005, reinforces the conclusion that

she experienced harassment that was both severe and pervasive.

Likewise, it would be reasonable for the jury to conclude, based on

Vera's account of Rodriguez's conduct, that his conduct was so

objectively offensive that a reasonable person would find it to be

hostile or abusive. See Faragher, 524 U.S. at 787; Meritor, 477

U.S. at 67. As we have explained elsewhere, "it is one thing to

say that employees must learn to tolerate simple teasing, offhand

comments, and isolated incidents (unless extremely serious). . .

. It is quite another to require employees to suffer the constant

attentions of a lascivious supervisor." Marrero, 304 F.3d at 19

(internal quotation marks and citation omitted). Therefore, we are

unable to conclude, as a matter of law, that such conduct on the

part of a supervisor is an "ordinary tribulation[] of the

workplace." Faragher, 524 U.S. at 788. Rather, the facts portray

the kind of sexual harassment that Title VII was intended to

address.

2. Sexual Harassment Claim Involving Morales

a. Procedural Requirements for Federal Employees Under
Title VII

Under Title VII, an aggrieved federal employee may "file

a civil action in a federal district court." Brown, 425 U.S. at

832; see also 42 U.S.C. § 2000e-16(c). Prior to doing so, however,

"the complainant must seek relief in the agency that has allegedly

discriminated against him." Brown, 425 U.S. at 832. The specific

-24-
procedures for seeking agency relief, in turn, are set by the Equal

Employment Opportunity Commission (EEOC) pursuant to its authority

to "issue such rules, regulations, orders and instructions as it

deems necessary to carry out its responsibilities." 42 U.S.C. §

2000e-16(b).

EEOC regulations provide a highly structured set of steps

which must be taken by the agency and the aggrieved party as the

complaint process proceeds. 29 C.F.R. §§ 1614.103-.707. At the

outset of the process, "[a]ggrieved persons . . . must consult a

Counselor prior to filing a complaint in order to try to informally

resolve the matter." Id. § 1614.105(a). That consultation must be

initiated "within 45 days of the date of the matter alleged to be

discriminatory . . . ." Id. § 1614.105(a)(1). If the matter has

not been resolved, "the aggrieved person shall be informed in

writing by the Counselor, not later than the thirtieth day after

contacting the Counselor, of the right to file a discrimination

complaint" with the EEOC or the on-site EEO Office. Id. §

1614.105(d). The employee has fifteen days after the receipt of

that notice to file the complaint. Id. After the employee has

filed a discrimination complaint, he or she may bring a civil suit

in federal court "only if the EEOC dismisses the [discrimination

complaint], or if it does not bring civil suit or enter into a

conciliation agreement within 180 days of the filing of the

[discrimination complaint]." Franceschi v. U.S. Dep't of Veterans

-25-
Affairs, 514 F.3d 81, 85 (1st Cir. 2008) (citing 42 U.S.C. § 2000e-

5(f)(1)).

Although typically a failure to exhaust administrative

remedies will bar suit in federal court, "the exhaustion

requirement is not a jurisdictional prerequisite" to filing a Title

VII claim in federal court. Federique-Alexandre v. Dep't of Nat'l

& Envtl. Res., 478 F.3d 433, 440 (1st Cir. 2007). Rather, the

"time period for filing a charge is subject to equitable doctrines

such as tolling or estoppel." Nat'l R. R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002) (citing Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982)). Such doctrines "are to

be applied sparingly," id., however, and this circuit takes "a

narrow view of equitable exceptions to Title VII exhaustion

requirements." Frederique-Alexandre, 478 F.3d at 440 (quotation

marks omitted).

We have recognized two related doctrines whereby a

plaintiff may modify or avoid the Title VII filing period:

equitable estoppel and equitable tolling. In this case, we are

concerned solely with equitable estoppel. Equitable estoppel is

appropriate when an employee is aware of her Title VII rights but

does not make a timely filing "due to [her] reasonable reliance on

[her] employer's misleading or confusing representations or

conduct." Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 752 (1st

Cir. 1988) (citing Dillman v. Combustion Engineering Corp., 784

-26-
F.2d 57, 60-61 (2d Cir. 1986)).16 An employee must also show

"[e]vidence of either the employer's improper purpose or his

constructive knowledge of the deceptive nature of his conduct."

Id. That evidence must be in the form of some "definite,

unequivocal behavior . . . fairly calculated to mask the truth or

to lull an unsuspecting person into a false sense of security."

Clauson v. Smith, 823 F.2d 660, 663 (1st Cir. 1987).

In determining the applicability of an equitable remedy,

a court must also look to "any countervailing equities against the

plaintiff," such as whether she "diligently pursue[d]" the claim.

Katle, 861 F.2d at 753. For example, some courts have held that

"to invoke an estoppel as a shield against a statute of limitations

defense, a plaintiff must show that [s]he brought [her] action

within a reasonable time after the facts giving rise to the

estoppel have ceased to be operational." Buttry v. Gen. Signal

Corp., 68 F.3d 1488, 1494 (2d Cir. 1995) (internal quotation marks

omitted); see also Keefe v. Bahama Cruise Line, Inc., 867 F.2d

1318, 1324 (11th Cir. 1989) (per curiam); Ott v. Midland-Ross

Corp., 523 F.2d 1367, 1370 (6th Cir. 1975).

16
Although Kale and a number of the cases we cite involved the
Age Discrimination in Employment Act (ADEA), rather than Title VII,
we have held on numerous occasions that "'judicial precedents
interpreting one such statute [are] instructive in decisions
involving [the other].'" Mercado v. Ritz-Carlton San Juan Hotel,
Spa & Casino, 410 F.3d 41, 47 n.7 (1st Cir. 2005) (quoting Camacho
v. P.R. Ports Auth., 369 F.3d 570, 578 n.5 (1st Cir. 2004)).

-27-
 b. Vera's Claim

We review for abuse of discretion the district court's

ruling rejecting the application of equitable estoppel in Vera's

case. Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114,

119-20 (1st Cir. 2009) (reviewing district court's refusal to

equitably toll the statute of limitations in Title VII case for

abuse of discretion).

It is undisputed that Vera failed to exhaust her

administrative remedies in pursuing her claim against Morales. She

argues, however, that the government should have been estopped from

asserting her noncompliance with the exhaustion requirement in

their defense because the EEO Office "prevented [her] from filing

a formal complaint" due to procedural irregularities in dealing

with her informal complaint. Specifically, she asserts that she

did not know how or when to file a formal complaint because the EEO

office did not follow the correct procedure in pursuing her

informal complaint and failed to give her the required notice after

it closed her informal complaint.

Although the record supports Vera's contention that the

EEO Office at Fort Buchanan did not comply fully with EEOC

regulations when dealing with her informal complaint against

Morales, it does not support her claim that she was unaware of how

to pursue her claim, nor does it show that she diligently pursued

her claim. Also, she has made no showing that she was actively

-28-
misled into failing to file her claim such that the procedural

irregularities by the government should estop it from asserting

Vera's failure to exhaust her administrative remedies in its

defense.

The EEO Office failed to follow established procedures in

two respects. First, it did not generate a settlement "in writing

and signed by both parties" identifying the claims resolved, 29

C.F.R. § 1614.603, as is required if an agreement is reached

resolving a complaint.17 Additionally, the EEO Office did not

notify Vera in writing of her right to file a formal discrimination

complaint, as would have been required if the matter had not been

resolved within thirty days of her first contacting the EEO

Officer. See id. § 1614.105(d).

Nevertheless, the record shows that Vera was, in fact,

informed of the specific procedural steps involved in continuing to

pursue her claim. The intake interview form filled out after Vera

filed her informal complaint with the EEO officer reveals, and Vera

does not deny, that she was "provided with the handout entitled

Rights and Responsibilities." Among other things, she was also

17
The record shows that Vera filed her informal complaint
against Morales on January 30, 2003, Morales made a signed
statement on February 18, 2003, and the EEO Officer wrote a
memorandum on February 21, 2003 stating that the matter had been
resolved and that Vera "was satisfied with the response and
clarification provided from management." There is no space for a
signature from Vera on the EEO Officer's statement and no
subsequent correspondence between the EEO Officer and Vera
concerning her complaint against Morales.

-29-
"specifically advised" of "[t]he pre-complaint, formal and/or class

complaint process." In the face of such notice, Vera's claim that

because of the government's actions she simply did not know how or

when to file a formal complaint is unsupportable.

Furthermore, as noted above, a plaintiff invoking

estoppel "must show that [s]he brought [her] action within a

reasonable time" after it became clear that any promised alternate

remedy from an employer would not be forthcoming. Buttry, 68 F.3d

at 1494. Here, Vera was given notice at the outset of the process

that she was to be informed in writing, not later than the 30th day

after contacting the EEO Office, of her right to file a formal

discrimination complaint. She would then have fifteen days to file

a formal complaint. Because of an apparent misunderstanding

between the department and Vera about the settlement of her claim,

she never received the notice of her right to file a formal

discrimination complaint. As the government admits, given the EEO

Office's failure to issue her that notice, the equities might have

favored excusing some delay on Vera's part in filing her formal

complaint. For almost three years after lodging her informal

complaint against Morales, however, Vera took no steps to pursue

her claim until she filed this lawsuit on August 7, 2006. The

government's failure to memorialize properly the putative

settlement of her claim against Morales, or to give proper notice

-30-
of the absence of any settlement of that claim, does not justify

that lack of diligence on Vera's part.

Finally, Vera points to nothing in the record that would

show that the EEO office had either an "improper purpose" or

"constructive knowledge of the deceptive nature" of its processing

of Vera's complaint, such that estoppel would be appropriate.

Kale, 861 F.2d at 752. Although the procedures for closing her

informal complaint were evidently bungled, this is not a case in

which the office actively misled her about her rights or attempted

to deceive her through false representations of its own actions.

Compare Ott v. Midland-Ross Corp., 600 F.2d 24, 29-30 (6th Cir.

1979) (finding estoppel may be appropriate when employer falsely

assured employee that it would settle the claim by appointing him

to a new position); Bonham v. Dresser Indus., Inc., 569 F.2d 187,

193 (2d Cir. 1977) (finding estoppel potentially applicable when no

notice of ADEA rights was posted and employer falsely indicated to

employee that there would be another position for him within the

company). To the contrary, Vera was given a statement of her

rights from the outset and informed of them during her intake

interview. The district court was well within its discretion in

finding that Vera was not entitled to the benefit of equitable

estoppel.

-31-
C. Retaliation Claim

Title VII makes it unlawful "for an employer to

discriminate against any of his employees . . . because [s]he has

made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing" under the Act. 42

U.S.C. § 2000e-3(a). In order to establish a prima facie claim of

retaliation under Title VII, a plaintiff must make a showing (1)

that she engaged in protected conduct, (2) that she suffered an

adverse employment action, and (3) that there was a causal

connection between the protected conduct and the adverse employment

action. Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st

Cir. 1997).

If a plaintiff makes out a prima facie case of

retaliation (and there is no dispute on that issue here), a

rebuttable presumption of unlawful retaliation arises and “the

burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its employment decision.” Wright v.

CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (citation and

quotation marks omitted);18 see also McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-804 (1973) (establishing burden-shifting

framework for Title VII cases). In order to rebut that

18
Because of the relatedness of the two statutes, we refer to
cases interpreting the retaliation provision of the Americans with
Disabilities Act (ADA) interchangeably with those specifically
addressing Title VII. Carreras, 596 F.3d at 36 n. 10 (citing
Soileau, 15 F.3d at 16).

-32-
presumption, the employer does not have the burden of persuasion,

but must simply produce evidence of a legitimate, nondiscriminatory

reason for the employment action. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000). The district court found,

and we agree, that the government met its burden by producing

evidence to show that Vera was fired for being insubordinate and

failing to follow established leave procedures.

Once the employer produces such evidence, the presumption

"drops from the case" and the court must focus on the "ultimate

factual issue." U.S. Postal Serv. Bd. of Governors v. Aiken, 460

U.S. 711, 715 (1983). Here, that issue is whether Vera has cited

facts in the record from which a reasonable jury could conclude

that she experienced an adverse employment action because she filed

sexual harassment complaints against her employer. See Freadman v.

Metro. Prop. and Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007)

(proceeding directly to the question of causation and finding

plaintiff's retaliation claim under the ADA must fail because no

causal connection had been established between the adverse

employment action and her protected conduct). Looking at "the

total package of proof offered by the plaintiff," Benoit v.

Technical Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003), we find

that Vera has not provided sufficient evidence for a reasonable

jury to conclude that she was fired, or experienced other adverse

employment actions, because of her sexual harassment complaints.

-33-
 1. Retaliation for Vera's Sexual Harassment claim against
Morales

As evidence of retaliation for her sexual harassment

complaints, Vera cites a series of adverse events that took place

between September 2004 and September 2005. Many of the actions she

identifies as retaliatory, thus, occurred well after she filed her

informal complaint against Morales in January 2003, but before she

filed her first sexual harassment complaint against Rodriguez, in

May 2005. If these incidents were caused by retaliatory animus at

all, therefore, that animus could only be a response to Vera's

complaint against Morales.

The events Vera points to during this time period as

examples of adverse actions taken in retaliation for the filing of

her sexual harassment complaint are: (1) her relocation to a

different office in the fall of 2004, (2) the discipline that she

received after her altercation with Contreras (her supervisor prior

to Rodriguez), and (3) Rodriguez's conduct towards her, including

his repeated requests prior to May 19, 2005, the date he learned of

her sexual harassment complaint against him, that she comply with

established leave procedures.

Vera's suggestion that she was relocated in retaliation

for her complaint against Morales is belied by her own sworn

deposition testimony, in which she agreed that her relocation was

part of the resolution of her complaint. The altercation with

Contreras took place nine months after Vera filed her complaint

-34-
against Morales. She does not explain how that episode, which

involved a person wholly unrelated to her harassment complaint, or

the disciplinary action that resulted from the altercation, were

related to the harassment complaint.

Similarly, Vera points to nothing in the record to

suggest that Rodriguez's behavior was connected to her complaint

against Morales. Vera cites no evidence suggesting that Rodriguez

knew about Vera's complaint against Morales prior to December of

2005, when he was informed of it as part of the investigation of

the complaint against himself. Rodriguez was not Vera's supervisor

at the time she filed her complaint against Morales and Vera points

to no evidence that he was ever present in the building where Vera

and Morales worked or connected with the Morales complaint in any

way. It would, therefore, be impossible for a rational jury to

conclude that Rodriguez's actions from October 2004 through mid-May

2005, which were taken in ignorance of Vera's sexual harassment

complaint against Morales, were motivated by his desire to

retaliate against her for those complaints.

2. Retaliation for Vera's Sexual Harassment Complaint
Against Rodriguez

Vera cites the close temporal proximity between Rodriguez

being informed of Vera's sexual harassment complaint against him on

May 18, 2005 and his decision to change her leave status from Leave

Without Pay to AWOL on May 23, 2005 as evidence of retaliation. As

we have cautioned in the past, however, "[t]iming may bear on the

-35-
question of causation in a retaliation claim, but . . . a 'narrow

focus [on timing may] ignore[] the larger sequence of events and

also the larger truth.'" Freadman, 484 F.3d at 100-01 (quoting

Soileau, 105 F.3d at 16). In this instance, the larger sequence of

events reveals that Rodriguez had been corresponding with his human

resources advisor about Vera's absences since January, that in

February he had monitored Vera's movements when she was at the

office and wrote her a letter of counseling relating to her

December/January absence, and that earlier in May he had issued

Vera a notice of proposed suspension due to her failure to follow

established leave procedures. Rodriguez's decision to change

Vera's absence to AWOL, however poorly explained, is consistent

with his previous actions, which show that he was focused on her

lack of proper documentation for that absence, that he had

requested additional documentation, and that he had warned Vera

that she could be suspended for her failure to comply with

established leave procedures.

In the same May memorandum in which he changed the status

of her December/January absence, Rodriguez changed Vera's March

absence from AWOL to Leave without Pay, further contradicting the

theory that he was acting out of a desire to punish Vera for filing

her harassment complaint. Given the series of adverse actions

Rodriguez took in response to Vera's December/January absence, it

would not be reasonable for a jury to conclude, based only on the

-36-
temporal proximity of one of those adverse actions to the date on

which Rodriguez learned of the complaint, that the action was

motivated by retaliatory intent.

Vera's remaining claims of adverse actions suffer from

the same infirmity, namely, a lack of causal connection with her

sexual harassment complaint. The additional events Vera cites all

occurred late in the summer of 2005, when she had been absent for

several months. As described previously, Vera was suspended in

early August for being AWOL after being informed a week earlier

that her continued absence was in violation of established leave

procedures. In late August, she was called back to work in a

letter warning that her numerous absences were unreasonable and

that she must report to duty or provide medical documentation

"identifying duties which can be performed and current

limitations," despite a note from her doctor stating that she was

not ready to return. Finally, after returning to work briefly, she

suffered a breakdown. After being absent again for almost a month,

she was fired.

It is undisputed that Vera did not report to work from

late March 2005 until she was requested to return in late August

2005. Her hours absent far exceeded her hours worked for the first

eight months of 2005. Her supervisors were clearly perturbed by

Vera's absences and the record shows that they discussed how to

deal with a situation in which an employee was not reporting to

-37-
work and had not had her leave officially approved by management.

There is, admittedly, a factual dispute over whether Vera was or

was not complying with the intricacies of established leave

procedures. That dispute, however, is not material to Vera's claim

of retaliation for her sexual harassment complaint. The requests

that Vera provide more extensive documentation of her illness and

of what work functions she could no longer carry-out began with

Rodriguez's request in February 2005, when he knew nothing of her

complaint against Morales and before her complaint against him.

The activity of her supervisors in discussing what to do about her

absence over the summer, once she had been absent for several

months, is wholly consistent with Rodriguez's initial

communications with human resources about Vera and with his initial

memoranda to Vera herself demanding additional documentation for

her absences and cautioning her about the potential consequences of

her failure to comply. Moreover, Vera's altercation with another

supervisor, Contreras, in September 2004, supports the government's

proffered explanation for her firing -- namely, that she was absent

without leave and had been insubordinate.

III.

For the reasons discussed above, we affirm the district

court's dismissal of Vera's claim of sexual harassment against

Morales without prejudice. We also affirm the district court's

grant of summary judgment to the defendant on Vera's retaliation

-38-
claim. We vacate the district court's grant of summary judgment

for the defendant on the sexual harassment claim against Rodriguez

and remand for further proceedings consistent with this opinion.

Each party shall bear its own costs on appeal.

So ordered.

-- Dubitante Opinion Follows –

-39-
 SELYA, Circuit Judge (dubitante). I join readily in much

of the majority opinion, but I write separately because I doubt the

correctness of Part IIB1, which vacates the entry of summary

judgment with respect to the plaintiff's sexual harassment claim

against Rodriguez. To my mind, the district court's assessment of

the appropriateness of summary judgment on that claim, see Vera v.

Harvey, Civ. No. 06-1761, slip. op at 18-20 (D.P.R. Apr. 22, 2008)

(unpublished), is better reasoned and more persuasive.

The claim is, of course, utterly factbound, and it would

serve no useful purpose for me to repastinate ground already

thoroughly plowed by the district court. Nevertheless, I think

that a few words of caution may be of service in future cases.

First, I am constrained to point out that the majority

opinion in this case goes well beyond the outermost frontier

adumbrated in any of our earlier sexual harassment precedents. To

that extent, the precedential value of the majority opinion should

be viewed with some skepticism.

Second — and more importantly — the majority discerns a

trialworthy issue where the only conduct attributable to Rodriguez

— occasional glances at, and inconsequential remarks to, a fellow

employee, the closing of an office door in a crowded workplace, the

kind of incidental contact that is unavoidable in cramped quarters

— does not seem to support the inference that the majority draws

from it. In my view, the majority deems this conduct adequate to

-40-
sustain liability not because it is in any way evocative of sexual

harassment but, rather, because the plaintiff considers it to be

evocative of sexual harassment. Although the majority pays lip

service to the case law that impresses a standard of objective

reasonableness on such claims, see, e.g., Faragher v. City of Boca

Raton, 524 U.S. 775, 787 (1998); Billings v. Town of Grafton, 515

F.3d 39, 47 (1st Cir. 2008), it effectively subordinates this

objective to the tug of the plaintiff's subjective feelings. That

distortion starts us down a slippery slope toward the imposition of

some sort of general civility code in the workplace. See Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). That

destination ought not to be on our itinerary.

At the risk of belaboring the obvious, let me add that

this is not a case in which there is evidence of quid pro quo

harassment (or, indeed, of any sexual interest in the plaintiff).

There is no hint of anything that might fairly be characterized as

a hostile, abusive, or sexually charged workplace. There is no

evidence of thinly veiled innuendo, offensive banter, or sexual

hijinks of any kind. There is only evidence that the employer, for

business reasons, assigned the plaintiff and Rodriguez to share an

undersized office. The events that followed were easily predicable

sequelae of that spatial assignment. With nothing in the record to

suggest that the spatial assignment itself was made for the purpose

-41-
of bothering the plaintiff, I doubt that a claim for sexual

harassment will lie.

I am confident that the majority will agree that sexual

harassment liability ought to be reserved for conduct which,

objectively viewed, is severe or pervasive enough to create a work

environment that a reasonable person would find hostile or abusive.

I very much doubt that the summary judgment record in this case

satisfies that benchmark. As the majority opinion leaves it, any

employee who is compelled to share a small office with a disliked

co-worker will be able to mount a claim for sexual harassment

without much, if anything, in the way of evidence.

-42-