United States Court of Appeals
For the First Circuit
No. 05-1796
MAGDALENA POMALES,
Plaintiff, Appellant,
v.
CELULARES TELEFÓNICA, INC.; VERIZON WIRELESS, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Lipez, Circuit Judge,
Hug,* Senior Circuit Judge,
and Howard, Circuit Judge.
Marlene Aponte Cabrera on brief for appellant.
Carl Schuster, Mariela Rexach and Schuster Usera & Aguiló
LLP on brief for appellees.
May 9, 2006
*
Of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
HOWARD, Circuit Judge. Magdalena Pomales worked as a
sales consultant for Celulares Telefónica, Inc. (CTI), a Puerto
Rico retailer of cellular telephone equipment and services. After
Pomales was fired by CTI, she brought this action claiming sexual
harassment and retaliation under Title VII of the 1964 Civil Rights
Act, 42 U.S.C. § 2000e et seq., and Puerto Rico law. She also
claimed that CTI violated the Consolidated Omnibus Budget
Reconciliation Act (COBRA), 29 U.S.C. § 1161 et seq., by not
notifying her of the opportunity to purchase continuing health
coverage under the company policy following her termination. The
district court granted CTI summary judgment. We affirm.
Pomales failed to oppose CTI's statement of undisputed
facts in support of its motion for summary judgment in accord with
the Puerto Rico Local Rules. See D.P.L.R. 56. The district court,
therefore, accepted the facts presented by CTI as admitted. See
id. We will do the same. See Cosme-Rosado v. Serrano-Rodriguez,
360 F.3d 42, 45-46 (1st Cir. 2004).
Pomales' relationship with CTI began when she was hired
as a temporary employee in November 1995. In August 1999, CTI
converted Pomales to permanent status and assigned her to work as
a sales consultant in its store in Bayamón, Puerto Rico. Pomales
was initially supervised by Norma Vargas. In 2000, Peter Rodríguez
joined Vargas as another supervisor. Peter Rodríguez and Vargas
were themselves supervised by Rodney Rodríguez.
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In April 2000, Pomales complained to Rodney Rodríguez
that Peter Rodríguez had directed an inappropriate comment and
gesture toward her. According to Pomales, she invited Peter
Rodríguez to come on a sales visit with her, and he responded by
grabbing his crotch and stating that "it would be great to come
with you."
As a sales consultant, Pomales was responsible for
selling products and services to CTI customers. CTI sales
consultants made in-store and "proactive" out-of-store sales.
Sales consultants were responsible for meeting a minimum sales
quota and were paid based on an hourly rate plus commissions.
CTI required sales consultants to verify each customer's
credit before consummating a sale. Customers with poor credit were
required to provide CTI with a deposit before the sales consultant
could complete the sale. The process for determining the
customer's credit rating (and resulting deposit) varied depending
on whether the sale was an in-store or proactive.
For in-store sales, the consultant accessed, through
CTI's computer system, a third-party credit service and reported
certain information about the customer. The credit service then
provided a credit score which the computer automatically translated
into a required deposit amount (if any). For proactive sales, the
consultant called CTI's credit department and provided customer
information to the credit-department employee. That employee then
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determined the required deposit amount and entered the deposit
amount manually into the computer. Only credit-department
employees could set the required deposit amount for proactive
sales, and no sale could be completed until the customer had paid
the required deposit.
During Pomales' employment, CTI's computer system
malfunctioned in such a way that consultants could bypass the
credit-verification process and manually enter a deposit amount.
CTI eventually discovered this malfunction in its system, after
learning that several consultants had entered inaccurate deposit
information to register unauthorized sales.
In August 2000, Vargas received confidential information
that Pomales had failed to secure proper deposits from clients by
manipulating the credit-verification system. Rodney Rodríguez
authorized Vargas to investigate this accusation.
Vargas' investigation revealed that the credit department
was unfamiliar with Pomales and had no documentation that she had
ever contacted it to register a proactive sale. At Vargas'
request, the credit department reviewed more than 10 of Pomales'
sales. On each occasion, Pomales had bypassed the credit-
verification process and manually entered into the system a
notation stating that no deposit was required.
On August 30, 2000, Vargas requested that Pomales produce
evidence that she had collected a deposit from one of her proactive
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customers. Pomales failed to comply with this request by September
5th, when she began a three-month medical leave of absence.
While Pomales was on leave, Vargas discussed the results
of her investigation with two members of the CTI human resources
department. A conclusion was reached that Pomales had breached
several company policies, including a policy against the
falsification or malicious alteration of reports and records of
interest to the company. Vargas thereafter decided to terminate
Pomales' employment. Vargas arrived at this decision without
knowledge that Pomales had previously complained to CTI management
about Peter Rodríguez's inappropriate conduct.
Vargas informed Pomales on the day that she returned from
her leave of absence that her employment was terminated. Pomales
was one of several employees that CTI discharged for breaching its
credit verification and deposit policies. Upon Pomales'
termination, CTI did not provide her with information concerning
the option to purchase continuing health coverage under the
company's group health insurance policy.
Three weeks after her termination, Pomales filed an
administrative charge of sexual harassment based on a hostile work
environment and retaliation with the Puerto Rico Anti-
Discrimination Unit of the Puerto Rico Labor and Human Resources
Department. She eventually received a right to sue letter and
filed the present action.
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After a period for discovery, CTI moved for summary
judgment. The district court ruled that Pomales' Title VII hostile
work environment claim failed because, inter alia, no reasonable
fact finder could conclude that the conduct alleged was
sufficiently severe or pervasive. The court also rejected her
Title VII retaliation claim because there was no evidence
establishing a causal connection between Pomales' protected
activity and her termination. Finally, the court determined that
CTI did not violate COBRA's notice requirements because the company
dismissed Pomales for gross misconduct. Pomales timely appealed.
We review the district court's order granting summary
judgment de novo. See Wolinetz v. Berkshire Life Ins. Co., 361
F.3d 44, 47 (1st Cir. 2004). We will affirm the order "if there is
no genuine issue as to any material fact and . . . [CTI] is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
We begin by considering Pomales' hostile work environment
claim. This claim is limited to Peter Rodriguez's comment and
gesture to Pomales suggesting that he wished to have sexual
relations with her.1
1
Pomales' brief makes passing reference to certain alleged
acts of harassment that occurred in 1997. The district court ruled
that these acts were time barred, and Pomales has not challenged
this ruling. In addition, Pomales' appellate argument concerning
her harassment claim discusses only Peter Rodríguez's comment in
April 2000. Therefore, any claim concerning the 1997 conduct is
forfeit.
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To succeed on her hostile work environment claim, Pomales
must demonstrate, inter alia, that the complained-of conduct was so
severe or pervasive that it altered the terms or conditions of her
employment. See Lee-Crespo v. Schering-Plough Del Caribe, Inc.,
354 F.3d 34, 46 (1st Cir. 2003). "There is no mathematically
precise test to determine whether [a plaintiff] presented
sufficient evidence" that she was subjected to a severely or
pervasively hostile work environment. Kosereis v. Rhode Island,
331 F.3d 207, 216 (1st Cir. 2003) (internal citations omitted). We
examine all the attendant circumstances including the frequency of
the discriminatory conduct; its severity; whether it was physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interfered with an employee's work
performance. See O'Rourke v. Providence, 235 F.3d 713, 729 (1st
Cir. 2001). Because this inquiry is fact specific, the
determination is often reserved for a fact finder, see Marrero v.
Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002), but summary
judgment is an appropriate vehicle for "polic[ing] the baseline for
hostile environment claims," Mendoza v. Borden, Inc., 195 F.3d
1238, 1244 (11th Cir. 1999) (en banc).
The record does not provide a sufficient basis from which
a reasonable fact finder could conclude that Pomales was subjected
to a hostile work environment. The alleged harassing conduct,
while certainly crude, comprised only a single incident. See Clark
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County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)
(stating that "isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions of
employment"); Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783
(1st Cir. 1990) ("[A]n isolated sexual advance, without more, does
not satisfy the requirement that an employee asserting a cause of
action for hostile environment discrimination demonstrate an
abusive workplace environment."). There was no proof that Peter
Rodríguez touched or physically threatened Pomales. While we do
not preclude the possibility of a single-incident hostile work
environment claim based on exclusively verbal conduct, successful
single-incident claims typically have involved unwanted physical
contact. See Barbara Lindemann & Paul Grossman, Employment
Discrimination Law at 795 n. 240 (3d ed. 1996) (collecting cases).
Finally, Pomales presented no proof that Peter Rodríguez's conduct
negatively affected her ability to work as a CTI sales consultant.
See Lee-Crespo, 354 F.3d at 46 (affirming summary judgment for an
employer in a hostile environment case where there was no evidence
that the conduct caused "an impediment to [the plaintiff's] work
performance").
The inappropriate conduct alleged here is similar to
conduct which this circuit and others have deemed insufficient to
establish a hostile work environment claim. See, e.g.,
Chamberlin, 915 F.2d at 783 (concluding that it was "highly
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doubtful" that five sexual advances by a supervisor "could be
considered sufficiently severe or pervasive to support a sexual
discrimination claim of the hostile environment variety"); Morgan
v. Mass. Gen. Hosp., 901 F.2d 186, 192-93 (1st Cir. 1990) (holding
that conduct was not sufficiently severe or pervasive where, over
two-week period, a coworker stood behind the plaintiff to create
physical contact, surreptitiously looked at the plaintiff's
genitals in the restroom, and engaged in unwanted touching);
Burnett v. Tyco Corp., 203 F.3d 980, 984-85 (6th Cir. 2000)
(holding that evidence of a single battery and two offensive
remarks over six months did not establish a hostile environment).
Accordingly, we affirm the district court's grant of summary
judgment on Pomales' sexual harassment claim.2
We turn next to Pomales' retaliation claim. She contends
that, shortly after complaining about Peter Rodríguez's conduct to
Rodney Rodríguez, she was retaliated against by being discharged
for conduct that she was never notified could result in
termination. We analyze this claim under the familiar McDonnell
2
Even if Pomales had established a prima facie case of hostile
work environment, CTI may have established an affirmative defense.
An employer is not liable if it has an anti-harassment policy with
a complaint procedure that an employee unreasonably fails to use.
See Marrero v. Goya of P.R., Inc., 304 F.3d 7, 20-21 (1st Cir.
2002). CTI has a policy against sexual harassment and a procedure
for brining an incident of sexual harassment to the company's
attention by reporting it to the company's human resources office.
Pomales acknowledges receipt of CTI's Ethics Manual which discusses
this procedure. However, she did not follow this procedure
regarding the April 2000 incident.
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Douglas framework. See Ramirez Rodriguez v. Boehringer Ingelheim
Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir. 2005) (describing
the framework for analyzing retaliation claims drawn from McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). To establish
a prima facie case of retaliation, Pomales must show that she was
engaged in protected conduct, that she was discharged, and that
there was a causal connection between the discharge and the
protected conduct. See Wright v. CompUSA, Inc., 352 F.3d 472, 478
(1st Cir. 2003).
There is sufficient proof that Pomales engaged in
protected activity by complaining to management about Peter
Rodríguez's conduct. Moreover, Pomales was subsequently
discharged. The issue is whether a reasonable fact finder could
find an adequate causal link between these events. Pomales relies
primarily on the chronological proximity between her complaint and
discharge to establish the requisite connection. Temporal
proximity can create an inference of causation in the proper case.
See Wyatt v. Boston, 35 F.3d 13, 16 (1st Cir. 1994). But to draw
such an inference, there must be proof that the decisionmaker knew
of the plaintiff's protected conduct when he or she decided to take
the adverse employment action. See Soileau v. Guilford of Me.,
Inc., 105 F.3d 12, 16-17 (1st Cir. 1997).
There is no evidence that Vargas, the CTI employee who
discharged Pomales, had any knowledge that Pomales complained to
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Rodney Rodríguez about Peter Rodríguez's conduct.3 See, e.g.,
Sanchez v. Denver Pub. Schs., 164 F.3d 527, 533-34 (10th Cir. 1998)
(holding that the plaintiff failed to establish a prima facie case
of retaliation because there was no evidence that the decisionmaker
knew of the plaintiff's protected conduct); Smith v. Riceland
Foods, Inc., 151 F.3d 813, 818-19 (8th Cir. 1998) (same). There is
also no proof that Peter Rodríguez or Rodney Rodríguez participated
or otherwise influenced either Vargas' investigation or the
ultimate decision to discharge Pomales.
Pomales argues that the fact that she did not receive
formal notice before the termination suggests retaliation. We
disagree. CTI's policy stated that an employee who falsified
company records was subject to immediate termination. In any
event, Pomales did receive some notice that there was a question
about her sales conduct when Vargas asked her to document one of
her proactive sales. Given the absence of evidence establishing a
causal connection between the protected conduct and discharge, the
district court correctly granted CTI summary judgment on the
retaliation claim.4
3
We do not decide whether the six-to-eight-month interval
between Pomales' complaint and the discharge could be probative of
retaliation had the decisionmaker known of the complaint. See Kipp
v. Missouri Highway & Transp. Comm'n, 280 F.3d 893, 897 (8th Cir.
2002) (concluding that a two-month interval between complaint and
adverse action was too long to establish causal connection).
4
Pomales has presented no appellate argument challenging the
district court's determination that CTI was not required to provide
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Affirmed.5
her with COBRA notice because she was fired for gross misconduct.
Therefore, Pomales has waived any challenge to this ruling. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (stating
that issues adverted to in a perfunctory manner and unaccompanied
by an effort at developed argumentation are waived).
5
The district court did not address the merits of Pomales'
Puerto Rico law claims in its summary judgment opinion but
nevertheless dismissed these claims with prejudice. Pomales does
not challenge this ruling on appeal.
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