Rodríguez-Vives v. Puerto Rico Firefighters Corps

United States Court of Appeals
For the First Circuit

No. 13-1587

KATHY RODRÍGUEZ-VIVES,

Plaintiff, Appellant,

v.

PUERTO RICO FIREFIGHTERS CORPS OF
THE COMMONWEALTH OF PUERTO RICO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Baldock,* and Kayatta, Circuit Judges.

Enrique J. Mendoza Méndez, with whom Juan R. Dávila Díaz
and Mendoza Law Offices were on brief, for appellant.
Michelle Camacho-Nieves, Assistant Solicitor General of
Puerto Rico, with whom Margarita Mercado-Echegaray, Solicitor
General, was on brief, for appellee.

February 18, 2014

*
Of the Tenth Circuit, sitting by designation.
 KAYATTA, Circuit Judge. Plaintiff Kathy1 Rodríguez-Vives

sued the Commonwealth of Puerto Rico in 2005, claiming that

defendant Puerto Rico Firefighters Corps of the Commonwealth of

Puerto Rico ("the Corps") refused to hire her as a firefighter

because of her gender. As part of a 2009 settlement of that suit,

the Corps agreed to employ her as a "transitory" firefighter until

the next training academy was held, to admit her to the academy,

and to hire her as a firefighter if she graduated. She thereafter

again sued the Corps, alleging that, during her transitory

employment, the Corps subjected her to various forms of abuse in

retaliation for her earlier suit. This alleged post-settlement

mistreatment, she argued, constituted both sex discrimination and

retaliation in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2, 2000e-3. The district court granted

the Corps's motion to dismiss her new complaint for failure to

state a claim. Rodríguez-Vives appeals only the dismissal of her

claim of unlawful retaliation. We hold that her complaint states

a plausible claim of unlawful retaliation under Title VII, and we

therefore vacate the district court's order.

1
At times Rodríguez-Vives has also spelled her first name
"Katty" and that is how her name was spelled on the docket in
earlier litigation discussed later in this opinion. We refer to
her as "Kathy" in this opinion because that is how her name was
spelled on the district court docket in this case and how she has
referred to herself in this appeal.

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 I. Background

Finding this to be a case amenable to disposition under

Federal Rule of Civil Procedure 12(b)(6), the district court

dismissed Rodríguez-Vives's complaint before the parties could

engage in the discovery necessary to provide a fuller picture of

what actually occurred. We therefore take as true the factual

allegations in Rodríguez-Vives's complaint, drawing all reasonable

inferences in her favor. Schatz v. Republican State Leadership

Comm., 669 F.3d 50, 55 (1st Cir. 2012).

Rodríguez-Vives applied unsuccessfully to be a

firefighter in the Corps in 2001. In 2005 she sued the Corps,

alleging that the Corps's failure to hire her was discriminatory.

Her complaint asserted a claim under 42 U.S.C. § 1983 for denial of

her right to equal protection under the Fourteenth Amendment of the

United States Constitution, and a claim under state law.

Specifically, she alleged that, after meeting the minimum

requirements to apply for a position with the Corps, she passed a

physical agility test and was selected for several in-person

interviews. Despite being placed on an eligibility list for

admission to the next training session for new firefighters, known

as a firefighter academy, she was not admitted.

On February 5, 2009, Rodríguez-Vives and the Corps signed

a settlement agreement resolving that first suit. The Corps agreed

to employ her as a "transitory" firefighter until the next training

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academy was held, at which point it promised that she would be

admitted, trained, and, if she completed the academy successfully,

hired to a career position as a firefighter. In return she waived

all claims that she could have brought against the Corps.

Rodríguez-Vives began working for the Corps on March 2,

2009. After being ordered to work at several different stations by

various supervisors, she was assigned permanently to a fire station

in Coamo where she claims she was subjected to a series of abuses

that gave rise to this lawsuit. Her supervisor, a sergeant,

"constantly said in front of [her] that he did not know why he had

to end up stuck with her in his [s]tation" and "commented on

various [occasions] that [she] was incompetent, dumb, inept, [and]

that she did things backward." On one occasion when Rodríguez-

Vives was cooking at the station the sergeant threw the pans she

was using in the trash. On August 18, 2009, the sergeant

threatened Rodríguez-Vives with disciplinary action for making an

entry in the station's journal despite the fact that she had

followed the instructions she had received for making entries in

the journal. On August 27, he shouted at her about her entries in

the journal and also threw it at her. After Rodríguez-Vives

complained about this conduct her captain held a meeting with the

sergeant, but the sergeant continued to engage in the same

objectionable conduct after the meeting. Soon thereafter, the

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Sergeant saw her in the parking lot of the Coamo station and

accelerated his car, showering her with dust.

During Rodríguez-Vives's time at the Coamo fire station

the only duties given to her were cooking, cleaning, and keeping

the station's journal. These tasks were "supposed to be equally

shared among all firefighters" but in the Coamo station they were

not. Rodríguez-Vives was not issued uniforms or emergency kits as

other firefighters were. She did not receive training given to

other firefighters who, like her, had not attended a training

academy. She was also not allowed in fire vehicles to get lunch.

Finally, a male volunteer firefighter, who had not attended the

academy, was allowed to "go out to deal with incidents" while

Rodríguez-Vives was not. As a result of these actions Rodríguez-

Vives suffered "severe psychological damages" that required

treatment.

On December 22, 2009, Rodríguez-Vives filed a complaint

with the Equal Employment Opportunity Commission alleging under

Title VII that she had been discriminated against on account of her

sex and retaliated against for her earlier lawsuit. She received

a right to sue letter on May 11, 2011, and filed a complaint on

August 2, 2011. She later filed an amended complaint containing

the allegations described above. The Corps then moved to dismiss

her complaint for failure to state a claim. The district court

granted the motion on March 31, 2013. Rodríguez-Vives timely

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appealed, challenging only the dismissal of the retaliation portion

of her complaint.

II. Analysis

The district court dismissed Rodríguez-Vives's complaint

for failure to state a claim of retaliation under Title VII,

holding that she had not sufficiently alleged that she had

previously opposed a practice made unlawful by Title VII or that

she suffered an adverse employment action. We conclude that the

district court was wrong on both points. Before addressing either

point, however, we first address the Corps's argument that we need

not consider the sufficiency of Rodríguez-Vives's complaint because

the 2009 settlement bars her from bringing this claim.

A. Effect of the 2009 Settlement

The Corps argues that Rodríguez-Vives is really

complaining that the Corps has, in effect, failed to perform its

obligations under the settlement agreement. Pointing to the

district court's retention of jurisdiction to enforce the

settlement, Amended Judgement of February 24, 2009, Rodríguez-Vives

v. Commonwealth of Puerto Rico, Case No. 3:05-cv-02136-DRD, Dkt.

No. 74, the Corps maintains that Rodríguez-Vives's only remedy was

to file a motion to enforce the settlement in that previously

closed action. Failing to do so, the Corps argues, somehow gives

rise to a res judicata bar to this action.

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 As the district court correctly recognized, the 2009

settlement agreement bars Rodríguez-Vives from bringing now a

related claim that could have been brought prior to the date of the

settlement, or arising out of events occurring prior to that date.

Rodríguez-Vives, though, rests this action on the Corps's conduct

after the date of the settlement. Thus the settlement agreement

provides no bar to this retaliation claim, nor could it. See

Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel.

Wilson, 545 U.S. 409, 419 (2005) (noting in the statute of

limitations context that a cause of action for retaliation

generally accrues "when the retaliatory action occurs"); Alexander

v. Gardner-Denver Co., 415 U.S. 36, 51-52 (1974) (holding in the

arbitration context that an employee may retrospectively waive

Title VII claims as part of a settlement but that "an employee's

rights under Title VII may not be waived prospectively"); 14 Penn

Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009) (noting that Gardner-

Denver was "correct in concluding that federal antidiscrimination

rights may not be prospectively waived" but holding that agreement

to arbitrate a Title VII claim was not a waiver).

Nor can we see any reason why Rodríguez-Vives, in seeking

a remedy for the alleged post-settlement acts, was limited to

enforcement of the settlement agreement. Suppose the Corps had

intentionally run over Rodríguez-Vives with a truck to prevent her

from being able to perform her new position. No reasonable person

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would argue that her remedies would be limited to filing a motion

to enforce the settlement agreement. Like an action for assault

and battery, a retaliation claim is a "separate and independent

cause of action" that stands or falls on its own. Jones v.

Walgreen Co., 679 F.3d 9, 20 (1st Cir. 2012) (internal quotation

marks omitted). Moreover, interpreting the settlement agreement as

limiting Rodríguez-Vives's rights to bringing an enforcement action

rather than asserting her statutory right to protection from post-

settlement retaliation would constitute a form of pre-retaliation

waiver, which is prohibited under Title VII. See Gardner-Denver,

415 U.S. at 51-52; 14 Penn Plaza LLC, 556 U.S. at 265.

This is not to say that the settlement agreement is

irrelevant to this suit. If facts not apparent on the face of the

settlement agreement show that the settlement agreement is properly

interpreted to place on Rodríguez-Vives's post-settlement duties as

a transitory firefighter the restrictions about which she complains

in her complaint, such a showing would likely be material to

determining whether the restrictions were retaliatory. The

possibility of such a defense, though, is inadequate to allow a

defendant to prevail on a motion to dismiss when the plaintiff

alleges a materially different version of the facts. Nor does the

interpretation and implementation of the settlement agreement have

any role in parrying the other allegations of retaliatory

harassment made by Rodríguez-Vives, such as her claims that the

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sergeant threw the station's journal at her and that he verbally

harassed her.

For all these reasons, we can find no basis in the

settlement agreement for insulating the Corps from the possibility

of Title VII liability for the alleged acts of unlawful retaliation

committed after the agreement was signed on February 5, 2009.

B. Sufficiency of Rodríguez-Vives's Complaint

To bring a successful retaliation claim under Title VII

"a plaintiff must first prove . . . [o]ne, she undertook protected

conduct[,] . . . [t]wo, her employer took a material adverse action

against her[,] . . . [a]nd . . . three, a causal nexus exists

between elements one and two." Medina-Rivera v. MVM, Inc., 713

F.3d 132, 139 (1st Cir. 2013) (citations omitted). The district

court held that Rodríguez-Vives's claim failed to allege the first

two elements sufficiently to entitle her to relief.

We review de novo the dismissal of a case under Federal

Rule of Civil Procedure 12(b)(6). See, e.g., Grajales v. Puerto

Rico Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). A complaint

need not allege every fact necessary to win at trial, but need only

include sufficient facts to make it "'plausible on its face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint "must

contain more than a rote recital of the elements of a cause of

action," but need not include "detailed factual allegations."

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Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir.

2013). We have also recently cautioned that some courts apply the

plausibility standard "too mechanically" and fail to read

complaints "as a whole." García-Catalán v. United States, 734 F.3d

100, 101, 103 (1st Cir. 2013).

1. Plaintiff Adequately Alleges that She Opposed a
Practice Made Unlawful by Title VII.

Rodríguez-Vives's 2005 lawsuit did not allege a violation

of Title VII. Instead, suing under 42 U.S.C. § 1983, she alleged

that the Corps's refusal to hire her due to her sex violated the

Equal Protection Clause of the United States Constitution. The

district court ruled, in effect, that the Corps could therefore

retaliate against Rodríguez-Vives for having brought the earlier

suit without violating the anti-retaliation provision of Title VII.

We cannot accept this conclusion.

While Title VII's anti-retaliation provision certainly

protects employees from retaliation for filing a Title VII suit, it

casts its protective cloak much more broadly. Specifically, it

also makes it "unlawful . . . for an employer to discriminate

against [an employee] . . . because [the employee] has opposed any

practice made an unlawful employment practice by [Title VII]

. . . ." 42 U.S.C. § 2000e-3(a); see also Clark Cnty. Sch. Dist.

v. Breeden, 532 U.S. 268, 269 (2001) (per curiam). In Title VII,

"'oppose,' being left undefined by the statute, carries its

ordinary meaning: to resist or antagonize . . . ; to contend

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against; to confront; resist; withstand." Crawford v. Metro. Gov't

of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009)

(alterations in original) (citations and some internal quotation

marks omitted). It is well-established, for example, that it is

unlawful under Title VII to retaliate against employees for actions

falling far short of filing Title VII claims. Indeed, the

paradigmatic act of retaliation is firing an employee for

complaining to a superior about conduct that constitutes sex

discrimination. See, e.g., Tuli v. Brigham & Women's Hosp., 656

F.3d 33, 41-46 (1st Cir. 2011). Even employees who complain of

discrimination to their employers' customers are protected from

retaliation. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008,

1012-13 (9th Cir. 1983).

Rodríguez-Vives's opposition here was more, not less,

substantial than the opposition of the plaintiffs in Tuli and Crown

Zellerbach. Though we are aware of no case directly on point,

nothing in the language of the statute or common sense suggests

that she was nevertheless required to mention Title VII in order to

be protected from opposing the practices that Title VII renders

unlawful.

The Corps concedes that the 2005 suit "alleged

discriminatory hiring practices and procedures on the basis of

gender." Title VII makes it unlawful "for an employer . . . to

fail or refuse to hire . . . any individual . . . because of such

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individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). The

conduct Rodríguez-Vives opposed was therefore precisely the kind of

discrimination Title VII was intended to combat. The opposition

for which she alleges she was punished therefore fell well within

the scope of the conduct that Congress sought to protect from

retaliation, whether or not she referred to Title VII (or exhausted

her Title VII remedies) in voicing that opposition.2

2. Plaintiff Adequately Alleges Employment Actions
Sufficiently Adverse to Constitute Retaliation.

The district court also found that the actions Rodríguez-

Vives alleged the Corps directed at her could not plausibly be seen

as materially adverse. Again, we disagree. In a retaliation case,

a plaintiff need only "show that a reasonable employee would have

found the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination."3 Burlington

2
Nor is it necessary for Rodríguez-Vives to establish that
the allegations in her 2005 suit were correct. See Fine v. Ryan
Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (an employee may
bring a retaliation claim where the complaint for which she was
retaliated against was not "completely groundless" (internal
quotation marks omitted)); Reed v. A.W. Lawrence & Co., Inc., 95
F.3d 1170, 1178 (2d Cir. 1996) (employee must have "good faith,
reasonable belief" that action she opposed violates Title VII
(internal quotation marks omitted)).
3
While the district court's opinion could be read to suggest
that the retaliatory actions needed to be related to Rodríguez-
Vives's gender, see Rodríguez-Vives v. P. R. Firefighters Corps of
P. R., 935 F. Supp. 2d 409, 421 (D.P.R. 2013), Burlington Northern
makes clear there is no such requirement. Burlington Northern, 548
U.S. at 68.

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Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)

(internal quotation marks omitted). Rodríguez-Vives's allegations

about her superiors' conduct are sufficient to state a claim

consistent with this standard of material adversity. A reasonable

person might well decide that it is not worth suing to obtain such

employment if she knew that, once she obtained it, she would be

subjected to the actions alleged in the complaint.

The actions about which Rodríguez-Vives complains fall

into two categories. First, she alleges that the Corps denied her

opportunities to accompany firefighters on calls even though the

Corps allowed a male volunteer firefighter to go on such calls.

Second, she alleges that the Corps subjected her to repeated

unpleasant and inequitable treatment.

As to the first category, the district court concluded

that the disparate treatment of Rodríguez-Vives and the male

volunteer was not improper because, while neither Rodríguez-Vives

nor the male volunteer had attended the training academy, Puerto

Rico law both prohibited a "transitory" firefighter like Rodríguez-

Vives from going on such calls and allowed volunteers to do so.

The only basis the district court articulated for that conclusion,

however, was a statute that creates a volunteer firefighter program

and provides for various details of its operation. See P.R. Laws.

Ann. tit. 25, § 331z. Nothing in the statute addresses whether

"transitory" firefighters like Rodríguez-Vives may fight fires. On

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appeal, the Corps itself also cites no authority at all to support

the claim that Puerto Rico law imposed on Rodríguez-Vives the

restrictions that were not applied to the volunteer firefighter.

We are therefore given no basis to find it implausible that harsher

restrictions were applied to Rodríguez-Vives as retaliation for her

having claimed to be a victim of sex discrimination.

As for the second category of actions Rodríguez-Vives

cites as examples of retaliation, many may well be the types of

"'petty slights or minor annoyances that often take place at

work,'" Billings v. Town of Grafton, 515 F.3d 39, 54 (1st Cir.

2008) (quoting Burlington Northern, 548 U.S. at 68), and thus "fall

outside the scope of the anti-discrimination laws." Id.

Nevertheless, cumulatively these allegations plausibly paint a

picture that would allow a factfinder to find the Corps's conduct

sufficient to deter a reasonable person from challenging the

Corps's discriminatory hiring practices had she known she would be

subjected to these abuses if successful. See Burlington Northern,

548 U.S. at 68.

In this regard, we note that several of the specific acts

alleged by Rodríguez-Vives by themselves go quite a ways toward

making out a claim. For example, the alleged refusal of Rodríguez-

Vives's superiors to allow her, like others, to travel on fire

vehicles to get lunch might be an adverse employment action on its

own. Cf. Burlington Northern, 548 U.S. at 69 ("[E]xcluding an

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employee from a weekly training lunch that contributes

significantly to the employee's professional advancement might well

deter a reasonable employee from complaining about

discrimination."). Similarly, Rodríguez-Vives's allegation that

she was assigned to cook and clean rather than to perform the same

jobs as others in the station, depending on the surrounding facts,

might make plausible a finding that there was an adverse employment

action. Compare Morales-Vallellanes v. Potter, 605 F.3d 27, 38

(1st Cir. 2010) (holding on summary judgment that reassignment to

duties which were not "more difficult, less prestigious, or

objectively inferior" was not an adverse employment action) with

Tart v. Illinois Power Co., 366 F.3d 461, 473 (7th Cir. 2004) (jury

could have found adverse employment action where plaintiffs were

reassigned to "jobs . . . [that] involved far less skill and

significantly harsher working conditions than the plaintiffs' prior

positions"). Given the cumulative weight of Rodríguez-Vives's

allegations, however, we need not decide whether each of these

individual allegations would, standing alone, be sufficient to

state a plausible claim of retaliation under Title VII.

We emphasize that this case is on appeal of a 12(b)(6)

motion, not a motion for summary judgment. "Although a plaintiff

must plead enough facts to make entitlement to relief plausible in

light of the evidentiary standard that will pertain at trial . . .

she need not plead facts sufficient to establish a prima facie

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case." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st

Cir. 2013). The Corps plausibly suggests innocent explanations for

much of the conduct about which Rodríguez-Vives complains, but it

is not for the district court or us to weigh now the merits of

these explanations against the merits of the explanations alleged

by Rodríguez-Vives. Rather, Rodríguez-Vives may proceed to

discovery because she has alleged sufficient facts to make the non-

innocent explanation of these facts plausible. See

Sepúlveda-Villarini v. Dep't of Educ. of P. R., 628 F.3d 25, 30

(1st Cir. 2010) ("A plausible but inconclusive inference from

pleaded facts will survive a motion to dismiss."). Similarly, the

Corps's apparently uncontested assertion that it hired Rodríguez-

Vives as a firefighter after she filed this lawsuit does not

require us to reject her description of events occurring prior to

that hiring.

Nor, contrary to the district court's suggestion,

Rodríguez-Vives 935 F. Supp. 2d at 414-15, was Rodríguez-Vives

required to provide the exact details of each incident, such as the

dates or the precise context of the abusive comments, to make her

claim plausible. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d

1, 10 (1st Cir. 2011) ("[A] court may not insist on the allegation

of specific facts that would be necessary to prove the claim at

trial." (internal quotation marks omitted)). Because it felt that

Rodríguez-Vives's allegations lacked detail the district court

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disregarded them as conclusory. A conclusory allegation, however,

is one which simply asserts a legal conclusion such as "I was

retaliated against" not a specific factual allegation, such as "my

supervisor threw a book at me," that merely lacks some surrounding

context. See Ocasio-Hernández, 640 F.3d at 13-14. We have held

that some factual allegations may be so "threadbare" that they are

in essence conclusory even if they include more than an assertion

that an element of a cause of action was satisfied. See

Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595-96 (1st Cir.

2011). But this is only the case where the bareness of the factual

allegations makes clear that the plaintiff is merely speculating

about the fact alleged and therefore has not shown that it is

plausible that the allegation is true. Id. Here, in contrast,

Rodríguez-Vives's complaint described actions of which she had

personal knowledge in sufficient detail to make them plausible.

III. Conclusion

For the foregoing reasons we vacate the district court's

order dismissing Rodríguez-Vives's complaint and we remand this

case to the district court for further proceedings consistent with

this opinion. We award no costs.

So ordered.

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