Perez-Cordero v. Wal-Mart Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit

No. 09-2317

JORGE PÉREZ-CORDERO,

Plaintiff, Appellant,

v.

WAL-MART PUERTO RICO, INC., ET AL.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Ripple,* and Lipez,
Circuit Judges.

Wilma E. Reverón Collazo for appellant.
Marena S. Ramírez, with whom Kenneth C. Suria and William
Estrella Law Offices, PSC was on brief, for appellees.

August 26, 2011

*
Of the Seventh Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Plaintiff Jorge Pérez-Cordero

appeals from the district court's grant of summary judgment in

favor of the defendants, Wal-Mart Puerto Rico, Inc. ("Wal-Mart"),

Madeline Santiago, Pablo Falcón, and the Falcón-Doe Conjugal

Partnership, on all counts of his civil suit alleging sex-based

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 and Puerto Rico law. Pérez-Cordero claims to

have been sexually harassed by Santiago, his female supervisor, and

retaliated against by Wal-Mart's management, including Santiago and

Falcón, for his attempts to oppose the harassment.

The district court granted summary judgment primarily on

the ground that Pérez-Cordero could not show that Santiago's

conduct was unwelcome, pervasive, or because of sex. After a

careful review of the record, we vacate the judgment in favor of

the defendants and remand the case for further proceedings.

I.

We recite the facts in the light most favorable to

Pérez-Cordero as the non-moving party. See, e.g., Agusty-Reyes v.

Dep't of Educ. of P.R., 601 F.3d 45, 48 (1st Cir. 2010).

Pérez-Cordero was hired as a butcher at Wal-Mart's Sam's

Club store in Humacao, Puerto Rico, in 1998. In the summer of

2000, Santiago transferred from another department within Sam's

Club to become Team Leader of the store's meat department. As Team

Leader, Santiago had some supervisory authority over Pérez-Cordero.

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Among other things, her position provided her the authority to

design work schedules for meat department employees and to initiate

disciplinary proceedings.

Early in her tenure as Team Leader, Santiago would

schedule her lunch breaks to coincide with those of Pérez-Cordero.

In his deposition, Pérez-Cordero testified that Santiago would ask

him "every day" where he was planning to eat lunch. She would

often appear at his stated lunch locale and ask to share a table

with him. In Pérez-Cordero's words, "Everywhere I went to go have

lunch she would show up; even McDonald's, Wendy's, los chinos, la

plazoletta."

Initially, lunchtime conversations between Santiago and

Pérez-Cordero were exclusively work-related. Soon, however,

Santiago began sharing details about her private life with

Pérez-Cordero that led him to believe that Santiago was interested

in pursuing a romantic relationship with him. Around this time,

Pérez-Cordero also became aware that his co-workers were gossiping

about him as a result of the attention that Santiago was showing

him. In one incident, he was confronted by two female meat

wrappers who asked Pérez-Cordero whether he "had something to do

with her" and whether he was aware that Santiago liked older men.1

Pérez-Cordero said that hearing his co-workers' comments made him

"uncomfortable." He testified that he "tried to cut off any

1
Santiago is considerably younger than Pérez-Cordero.

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situation" and that he would "not share anything but work." He

also undertook to avoid Santiago at lunch times. In his

deposition, Pérez-Cordero stated, "I would simply bring my own

lunch or would tell her I was going to Wendy's and went to

McDonald's so that she did not find me."

In August 2000, Santiago began making more overt

propositions to Pérez-Cordero. On one occasion, while organizing

items from a recent delivery to the store, Santiago told

Pérez-Cordero that she was a single mother seeking a man with whom

she could settle down. She asked Pérez-Cordero whether he wanted

to be that man. According to Pérez-Cordero, "it was clear that she

was talking about was [sic] a sex partner." Pérez-Cordero was

explicit in his rejection: he told Santiago that he was not

available, and that he was in a committed relationship with a woman

whom he planned to marry.

That same week, Pérez-Cordero asked his girlfriend to

have lunch with him at the store, and he introduced her to

Santiago. Santiago later remarked to Pérez-Cordero that meeting

his girlfriend had made her feel "guilty" because "when I have

something with you then I will know who your woman is." Santiago

made this remark in front of at least two other employees.

Pérez-Cordero again made clear that he did not like or welcome

Santiago's advances. He told her, "[D]on't play like that, it is

very ugly."

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 The co-workers who had witnessed the incident talked with

Pérez-Cordero about Santiago's obvious romantic interest. As

Pérez-Cordero described it, "They told me what I already suspected.

That she wanted to have a relationship with me and if I did not

realize it I was blind because they had already talked about it

among women, women's things." Pérez-Cordero told his co-workers

that he had no interest in a relationship with Santiago, but he

described feeling pressured by their follow-up questions: "[They]

asked me are you sure you don't like anything about her, and I said

no. . . . And they asked me that question it was like what is

happening, what's wrong?"

When it became clear to Santiago that Pérez-Cordero did

not share her interest in pursuing a romantic relationship, his

working conditions began to change. Santiago supervised

Pérez-Cordero more strictly than other employees and pressured him

to improve his performance even though the quality of his work had

not deteriorated. Santiago also assigned to Pérez-Cordero tasks

which had previously been shared among all the employees in the

meat department or which normally required several employees to

complete. Santiago consistently scheduled Pérez-Cordero to work

the closing shift, which had previously rotated among employees.2

2
At oral argument, the defendants disputed this contention
and drew our attention to several handwritten work schedules in the
record. Even taking those work schedules at face value, they do
not belie Pérez-Cordero's deposition testimony. First, they show
that Pérez-Cordero was, in fact, assigned the closing shift with

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The closing shift required more work than other shifts and

prevented Pérez-Cordero from participating in the daily

departmental meetings. Additionally, Santiago reallocated the

duties associated with the closing shift, which had the effect of

requiring Pérez-Cordero to perform additional cleaning on top of

his normal tasks.

As an example of Santiago's strict supervision of him,

Pérez-Cordero notes that on September 17, 2000, Santiago called him

at the store repeatedly, even though she had the day off. He

described this as "unusual" behavior. In each call, she informed

him that his evaluation was in her hands. She stated that "she

expected sales from ten thousand to fifteen thousand dollars," and

that she wanted to ensure "that everything was okay in the

refrigerators, that the cleaning was done and everything was

organized" because she was going to check his work the next day.

Pérez-Cordero also claims that two days later, on

September 19, Santiago yelled at him in front of his co-workers

when he arrived at work. He referred to it as a "scolding," "as if

I were a child," and described the incident as "humiliating."

Santiago was purportedly upset with Pérez-Cordero for failing to

dispose of some boxes from the previous day. Pérez-Cordero stated

that it was the only time he had ever been yelled at during his

greater frequency beginning around the end of August 2000. Second,
the work schedules for several weeks central to this litigation are
noticeably absent from the record.

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employment at Sam's Club, in part because it violated the store's

policy on respect for the rights of others. Pérez-Cordero reported

the yelling incident to Santiago's supervisor, Meat Manager Luiz

Ortiz, the day it occurred. Ortiz told Pérez-Cordero that Santiago

was probably just under stress, and he volunteered to talk to her

about it.

The next day, Santiago approached Pérez-Cordero while he

was dressing for work at his locker. Instead of greeting

Pérez-Cordero with a kiss on the cheek, as was the custom among the

store's employees, Santiago grabbed Pérez-Cordero and forcefully

sucked on his neck. Pérez-Cordero testified that he felt "shocked"

and "surprised" by her actions, to the point that he was unable to

say anything to her. Santiago then turned to another employee,

Emilio Benítez, and whispered a comment to him in which she implied

that Pérez-Cordero had become sexually aroused by her greeting.

After telling Pérez-Cordero about Santiago's comment, Benítez told

him, "You have that woman crazy about you."

Pérez-Cordero again sought out Ortiz. He told Ortiz

about the incident that morning, and stated that he was

uncomfortable with the hostile manner in which he was being treated

by Santiago. Ortiz said that he had spoken with Santiago about the

yelling incident the previous day, and he appeared reluctant to

confront her again about her conduct.

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 Pérez-Cordero approached Ortiz again three days later, on

September 22, to emphasize the gravity of the situation and to

request official action. Pérez-Cordero suspected that Ortiz had

never spoken with Santiago because the situation had continued to

deteriorate. He described his interactions with Santiago over the

previous days as having been both "impolite" and "uncomfortable."

By September 25, Ortiz had still taken no action to

resolve Pérez-Cordero's concerns. Pérez-Cordero approached Ortiz

for a third time, informing him that, if he was unable to solve the

problem, Pérez-Cordero would take his complaints further up the

chain of command. Ortiz told Pérez-Cordero not to worry and stated

that he would schedule a meeting involving all the concerned

parties for the following day.

When Pérez-Cordero arrived for the September 26 meeting,

he was surprised to discover that the meeting was not to resolve

his complaints over Santiago's harassment, but to subject

Pérez-Cordero to a disciplinary proceeding known as a "coaching."3

The session had been initiated by Santiago, purportedly because

Pérez-Cordero had failed to follow directions and regulations. At

the conclusion of the meeting, Ortiz spoke to Pérez-Cordero

3
A "coaching" is an administrative disciplinary procedure
used to inform an employee that he has done something wrong. It is
an intermediate step that typically follows an oral warning but
that precedes serious sanction. Employees who receive a coaching
are not eligible to transfer, receive a raise, or be promoted for
one year.

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privately. He indicated that he would not file the disciplinary

form prepared by Santiago, but he suggested that Pérez-Cordero

resolve his problems with Santiago by "going out with her, take

advantage of the opportunity."4

Later that day, Pérez-Cordero took his concerns about

Santiago to José Castro, the area supervisor, who accompanied him

to speak with Falcón, the store manager. Falcón thanked

Pérez-Cordero for raising his concerns, stated that he would deal

with the situation, and dismissed Pérez-Cordero for the day because

Pérez-Cordero "wasn't feeling very well emotionally." Falcón

arranged a meeting with Pérez-Cordero, Santiago, and Ortiz for

September 29. In the interim, Pérez-Cordero faxed a memorandum to

the store's human resources manager expressing his concerns about

Santiago's treatment of him and detailing the steps he had already

taken in his attempt to resolve the problem.

As reflected in notes taken contemporaneously,

Pérez-Cordero raised the following concerns at the September 29

meeting:

(1) Misunderstanding? Disrespect?
(2) Blackmailing, harassment of a sexual
nature and persecuted.
(3) My emotional health and my job stability
without mentioning the family.
(4) Let them measure with the same ruler.

4
Later in his deposition, Pérez-Cordero described Ortiz's
comment as "You solve this, go out with her and that will ease the
differences." Nothing in our decision turns on the precise words
used.

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 (5) Sam's policy and laws regarding trainings.
(6) Remarks made by her to Emilio (I'm sure he
got an erection).
(7) I am currently taking medication to be
able to sleep and I've even had problems of a
. . . .

Santiago acknowledged having made the inappropriate remark to

Pérez-Cordero's co-worker Benítez and apologized to Pérez-Cordero.

Although he accepted her apology on a personal level, Pérez-Cordero

stated that he did not feel comfortable continuing to work under

her direction. He asked Falcón to remove either Santiago or

himself from the meat department. In response, Falcón stated that,

because Pérez-Cordero had involved the human resources department,

the matter was out of his hands. He told Pérez-Cordero to take no

further action until Monday, October 2. Pérez-Cordero had not

received confirmation of his fax from the human resources

department and, indeed, would never receive any communication from

them on the matter.

On October 2, Pérez-Cordero again spoke with Falcón.

Falcón instructed Pérez-Cordero to "leave things like that." He

blamed Pérez-Cordero for having "built an ugly situation" and told

him that it is "easier to find a new butcher than to find a team

leader." Although he informed Pérez-Cordero that Santiago would

receive an official disciplinary action known as a "decision day,"

Pérez-Cordero did not believe him.5

5
A "decision day" is the third and most severe level of
internal disciplinary proceeding. Pérez-Cordero was skeptical that

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 Pérez-Cordero filed a charge of discrimination with the

Puerto Rico Department of Labor's Antidiscrimination Unit on

October 3, 2000. However, the Department of Labor did not notify

Wal-Mart of the charge until January 11, 2001.

In the interim four months, despite Pérez-Cordero's

request that Wal-Mart remove either Santiago or himself from the

department, Santiago continued to supervise Pérez-Cordero in the

meat department. Pérez-Cordero described that period as "a very

difficult time" in which Santiago was "trying to kick [him] out."

He continued to suffer from inequitable and retaliatory work

assignments, including a "permanent[]" assignment to the closing

shift during the Christmas season, and he continued to receive

unwarranted scrutiny and discipline. In addition, Santiago denied

Pérez-Cordero six weeks of required training on operating

standards,6 as well as his requested vacation time. According to

Falcón, the store could not remove Santiago as Team Leader because

the management would skip the first two disciplinary steps. He
also claims that Santiago was present at work the following week,
which is inconsistent with the "decision day" practice of requiring
the sanctioned employee to skip work to craft a written account of
the problem. Finally, he was informed by co-workers who were close
to Santiago that she did not receive a decision day, but that
Pérez-Cordero was simply told this in order to calm him down.
6
Although the defendants contest this assertion by pointing
to a certificate of achievement awarded to Pérez-Cordero in October
2000, we note that the certificate was awarded prior to
Pérez-Cordero taking six of the seven required examinations, four
of which were eventually administered on the same day. This
evidence is ambiguous enough to create a contested factual question
as to whether Pérez-Cordero was denied training.

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there was no replacement for her. However, shortly after the

Department of Labor notified Wal-Mart of the charge Pérez-Cordero

had filed in October, it transferred Santiago to another store and

offered the Team Leader position to Pérez-Cordero. He declined.

Throughout the period of alleged harassment,

Pérez-Cordero suffered from, among other things, insomnia, anxiety,

depression, and mental anguish for which he was being treated by a

psychiatrist. A psychiatric evaluation included in the record

reflects a diagnosis of post-traumatic stress disorder resulting

from Santiago's harassment and further indicates that Pérez-Cordero

had been taking various prescription medications to combat his

symptoms since at least 2001.

Pérez-Cordero filed this suit in October 2001, alleging

sex-based discrimination in violation of Title VII and the Puerto

Rico Anti-Discrimination Act (also known as Law 100), P.R. Laws

Ann. tit. 29, § 146. The district court entered a default against

Santiago in September 2002 for her failure to respond. See Fed. R.

Civ. P. 55(a). Two months later, on the motion of Wal-Mart and

Falcón, the court dismissed the Title VII claims against Falcón and

Santiago on the ground that Title VII permits suits only against

employers, not individual supervisors.7 The court granted summary

7
Although the validity of that dismissal is not before us, we
note that, subsequent to the decision of the district court, we
joined the majority of circuits in holding that Title VII does not
impose liability on individual employees. See Fantini v. Salem
State Coll., 557 F.3d 22, 28-31 (1st Cir. 2009). Pérez-Cordero's

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judgment in favor of the defendants on the remaining claims in May

2004. That judgment was vacated on appeal because the district

court erroneously refused to consider Pérez-Cordero's opposition to

the defendants' motion. Pérez-Cordero v. Wal-Mart P.R., 440 F.3d

531 (1st Cir. 2006).

We note with some dismay that, on remand, the case

remained under advisement for more than three years. In August

2009, the district court once again granted summary judgment in

favor of the defendants on all remaining claims, in an order

substantially similar to the one it issued in 2004 when it deemed

the defendants' motion for summary judgment unopposed.8 It is from

this most recent entry of judgment that Pérez-Cordero now appeals.

II.

A. Standard of Review

We review the district court's grant of summary judgment

de novo, drawing all reasonable inferences in favor of

Pérez-Cordero as the non-moving party. See e.g., Barton v. Clancy,

Law 100 claim against Falcón and Santiago survived the motion to
dismiss because of their supervisory positions within Wal-Mart.
The Puerto Rico Supreme Court has interpreted Law 100, unlike Title
VII, to permit holding agents, officials, administrators, and
supervisors civilly liable as "employers" under the statute. See
Otero-Merced v. Preferred Health Inc., 680 F. Supp. 2d 388, 392
(D.P.R. 2010) (explaining the Puerto Rico Supreme Court's decision
in Rosario Toledo v. Distribuidora Kikuet, Inc., 151 P.R. Dec. 634,
647 (2000), to that effect).
8
The district court also vacated the default judgment
previously entered against Santiago on the ground that the claim
against her under Law 100 lacked a sufficient factual basis.

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632 F.3d 9, 16 (1st Cir. 2011). Summary judgment is appropriate

only where the evidence demonstrates both the absence of any

genuine issue of material fact and the moving party's entitlement

to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue

is "genuine" if it can "be resolved in favor of either party," and

a fact is "material" if it "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). Summary judgment is not appropriate

where "the evidence on record is sufficiently open-ended to permit

a rational fact finder to resolve the issue in favor of either

side." Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st

Cir. 2011) (quoting Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st

Cir. 2008)) (internal quotation marks omitted).

B. Governing Law

Title VII provides a private right of action against any

employer who "discriminate[s] against any individual with respect

to his compensation, terms, conditions, or privileges of

employment, because of such individual's . . . sex." 42 U.S.C.

§ 2000e-2(a)(1). The Supreme Court has interpreted the phrase

"terms, conditions, or privileges of employment" as manifesting "a

congressional intent 'to strike at the entire spectrum of disparate

treatment of men and women' in employment." Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 64 (1986) (quoting L.A. Dep't of Water &

Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). In furtherance

-14-
of that broad goal, Title VII also prohibits employer retaliation

against those employees who oppose discriminatory employment

practices. 42 U.S.C. § 2000e-3(a).

The Equal Employment Opportunity Commission ("EEOC") has

promulgated guidelines9 making clear that sexual harassment

constitutes sex-based employment discrimination in violation of

Title VII:

Unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct of a
sexual nature constitutes sexual harassment when
(1) submission to such conduct is made either
explicitly or implicitly a term or condition of an
individual's employment, (2) submission to or
rejection of such conduct by an individual is used
as the basis for employment decisions affecting
such an individual, or (3) such conduct has the
purpose or effect of unreasonably interfering with
an individual's work performance or creating an
intimidating, hostile or offensive working
environment.

29 C.F.R. § 1604.11(a).

We have recognized multiple ways in which sexual

harassment can affect a term, condition, or privilege of

9
Congress gave the EEOC the limited authority to issue
procedural regulations to carry out the prohibitions on employment
discrimination set forth in Title VII. 42 U.S.C. § 2000e-12(a).
EEOC guidelines interpreting Title VII are therefore not binding
authority. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141-42
(1976), superseded on other grounds by statute, Pregnancy
Discrimination Act of 1978 § 1, Pub. L. No. 95-555, 92 Stat. 2076
(codified at 42 U.S.C. § 2000e(k)). But as an administrative
interpretation of Title VII by the agency charged with its
enforcement, the EEOC guidelines "constitute a body of experience
and informed judgment to which courts and litigants may properly
resort for guidance." Meritor, 477 U.S. at 65 (quoting Gilbert,
429 U.S. at 142) (internal quotation mark omitted).

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employment, as required by Title VII. See generally

Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st

Cir. 2006) (delineating the legal standard for Title VII claims).

Quid pro quo harassment, in which "a supervisor uses employer

processes to punish a subordinate for refusing to comply with

sexual demands," Hernandez–Loring v. Universidad Metropolitana, 233

F.3d 49, 52 (1st Cir. 2000), is actionable because it involves

explicit and tangible alterations in the terms or conditions of

employment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

751-52 (1998). Harassment that creates a sexually hostile and

abusive work environment is actionable when it is sufficiently

severe and pervasive to effect constructive alterations in the

terms or conditions of employment. See id. at 752-54. The Supreme

Court has cautioned, however, that the "rough demarcation" between

quid pro quo claims and hostile work environment claims may be of

"limited utility," other than to generally describe alternative

approaches to proving sex-based employment discrimination. See id.

at 751.

Before the district court, Pérez-Cordero argued that

Santiago's conduct constituted quid pro quo harassment and created

a hostile work environment for which Wal-Mart was liable, and he

further argued that Wal-Mart had unlawfully retaliated against him

for reporting Santiago's conduct. On appeal, Pérez-Cordero pursues

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only his hostile work environment and retaliation claims. We

address those claims seriatim.10

C. Hostile Work Environment

1. The Decision of the District Court

To succeed on a hostile work environment claim against

Wal-Mart, Pérez-Cordero must establish six elements: (1) that he is

a member of a protected class; (2) that he was subjected to

unwelcome sexual harassment; (3) that the harassment was based upon

sex; (4) that the harassment was sufficiently severe or pervasive

so as to alter the conditions of his employment and create an

abusive work environment; (5) that sexually objectionable conduct

10
Although Pérez-Cordero also pursues his Law 100 claim
against all defendants on appeal, we do not separately address that
claim. Puerto Rico's Law 100 is a broad antidiscrimination statute
analogous to Title VII in many respects. See Monteagudo v.
Asociación de Empleados del Estado Libre Asociado de P.R., 554 F.3d
164, 169 n.3 (1st Cir. 2009) (describing Law 100 as an analogue to
Title VII). As relevant here, the Supreme Court of Puerto Rico has
"stress[ed] that sexual harassment is a form of discrimination by
reason of sex that is proscribed by [Law 100]." Sánchez v. Elec.
Power Auth., 1997 P.R. Offic. Trans. 878,520 (1997). Moreover,
Puerto Rico's Law 17, which is to be interpreted in pari materia
with Law 100 and which merely identifies with greater specificity
conduct that Law 100 already prohibits, see Matos Ortiz v. Puerto
Rico, 103 F. Supp. 2d 59. 64-65 (D.P.R. 2000) (citing Suárez Ruiz
v. Figueroa Colón, 145 P.R. Dec. 142 (1998)), largely tracks the
language of the EEOC guidelines regarding hostile work environment
claims. See P.R. Laws Ann. tit. 29, § 155b. Given this overlap,
the parties have not substantively briefed the merits of the Law
100 claim on appeal as distinct from the Title VII claim. In light
of our conclusion that the record contains sufficient evidence of
a hostile work environment for Pérez-Cordero's Title VII claim to
survive summary judgment, we must vacate the summary judgment on
the Law 100 claim as well. See, e.g., Vélez v. Thermo King de
P.R., Inc., 585 F.3d 441, 452-53 (1st Cir. 2009).

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was both objectively and subjectively offensive, such that a

reasonable person would find it hostile or abusive and that he in

fact did perceive it to be so; and (6) that some basis for employer

liability has been demonstrated. Agusty-Reyes, 601 F.3d at 52

(quoting Valentín-Almeyda, 447 F.3d at 94).

The district court concluded that Pérez-Cordero could

demonstrate the first and, if harassment had been shown, the last

of these six elements, but that he had failed to produce sufficient

evidence to raise a trial-worthy issue of fact with respect to the

the other elements. It stated that Pérez-Cordero "could possibly

also establish the second factor if he could prove his allegations

that Santiago grabbed and hugged him and forcefully sucked on his

neck in front of an associate[,] and that subsequently[] she made

sexually related remarks regarding [Pérez-Cordero]'s reactions to

her advances." But it added that he would have difficulty showing

that the conduct was unwelcome because "there is no indication that

the kissing incident was out of the ordinary or customary [sic]."

The court found that Pérez-Cordero failed on the third element

because he presented "no evidence" that the conduct alleged was

"either anti-male or at least slightly sexual," and that he failed

on the fourth element because, absent an "indication in the record

that Santiago would greet only male employees . . . with a kiss" or

that "the allegedly sexual remarks made by Santiago were motivated

by [Pérez-Cordero]'s gender," Pérez-Cordero could not demonstrate

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that these events were not "simply marked by minor offensive sexual

connotations." It also ruled that the conduct described was

neither severe nor pervasive as a matter of law because "there is

no indication that these incidents were frequent, that the conduct

increased in severity physically or otherwise, nor that it

interfered with Pérez[-]Cordero's work performance."

2. Application of the Six-Element Test

Applying the six-element test articulated above to

Pérez-Cordero's claim, we find that summary judgment is

unwarranted. First, there can be no doubt, and Wal-Mart does not

dispute, that Pérez-Cordero is a member of a protected class. See

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)

("Title VII's prohibition of discrimination 'because of . . . sex'

protects men as well as women." (alteration in original)). Second,

Pérez-Cordero has presented sufficient evidence to raise several

genuine issues of material fact with respect to the remaining

elements.

a. The Harassment Was Unwelcome

Pérez-Cordero explained in his deposition testimony that

he initially sought to avoid Santiago's attention by lying about

his lunch locations, and that, when Santiago escalated her pursuit

by overtly propositioning him, he twice responded with a clear and

unequivocal rejection. We disagree with the district court that

Pérez-Cordero's acquiescence to the customary greeting among

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employees -- a kiss on the cheek -- is in any way probative of his

receptiveness to Santiago forcefully sucking on his neck.

Additionally, the record contains no evidence that Pérez-Cordero

welcomed the inequitable work assignments, public scolding, private

threats, and attempted disciplinary action that constitutes much of

the remainder of his claim.

b. The Harassment Was Based upon Sex

We have previously explained that, when harassment is

motivated by a failed attempt to establish a romantic relationship,

"the victim's sex is inextricably linked to the harasser's decision

to harass." Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225,

229 (1st Cir. 2007). Moreover, Santiago's own comment to Benítez

suggesting that she had sexually aroused Pérez-Cordero by sucking

on his neck sufficiently conveys that her conduct was "at least

slightly sexual." Contrary to the implication in the district

court's decision, Pérez-Cordero is not required to demonstrate that

Santiago's act was motivated by sexual desire, Oncale, 523 U.S. at

80, but merely that the harassment was gender-specific. Forrest,

511 F.3d at 229.

Taking the evidence in the light most favorable to

Pérez-Cordero, a jury could reasonably conclude that Santiago was

attempting to humiliate Pérez-Cordero, as she had when she scolded

him the previous day, through an unwelcome public act of sexual

aggressiveness. Cf. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 20

-20-
(1st Cir. 2002) (considering, as evidence of a hostile work

environment, that a supervisor "criticized [the plaintiff's] work

unfairly, sometimes embarrassing her by yelling at her in front of

her co-workers"). Thus viewed, Santiago's conduct is

unquestionably a gender-specific form of harassment. Cf. Oakstone

v. Postmaster Gen., 332 F. Supp. 2d 261, 271-272 (D. Me. 2004)

(concluding that a false allegation of physical abuse filed by a

female employee against her male co-worker was gender-specific

harassment because it exploited sensitivities to male-on-female

violence) (cited with approval in Forrest, 511 F.3d at 230 n.5).

The fact that not all of the complained-of conduct has obvious

sexual connotations does not diminish the force of the evidence

indicating gender-based animus. Rosario v. Dep't of the Army, 607

F.3d 241, 248 (1st Cir. 2010).

c. The Harassment Was Severe and Pervasive

The Supreme Court has repeatedly emphasized that the

scope of Title VII's prohibition on sex-based discrimination

"covers more than '"terms" and "conditions" in the narrow

contractual sense.'" Faragher v. City of Boca Raton, 524 U.S. 775,

786 (1998) (quoting Oncale, 523 U.S. at 78). "Title VII affords

employees the right to work in an environment free from

discriminatory intimidation, ridicule, and insult." Meritor, 477

U.S. at 65. Nevertheless, harassment that does not directly result

in tangible changes in employment -- "hiring, firing, failing to

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promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits," Ellerth, 524 U.S. at 761 -- must be severe and pervasive

enough to bring the complained-of conduct within Title VII's

requirement that workplace sex discrimination affects a "term,

condition, or privilege" of employment. See Meritor, 477 U.S. at

69.

Although the district court properly identified relevant

factors from our precedents when it concluded that there was no

indication that Santiago's conduct was frequent, increased in

severity, or interfered with Pérez-Cordero's work performance, it

applied those factors far too rigidly. See Billings v. Town of

Grafton, 515 F.3d 39, 48 (1st Cir. 2008). The district court's

conclusions also reflect a basic misapprehension of Pérez-Cordero's

claim. The single "kissing" incident on which the district court

focused does not constitute the entirety of Pérez-Cordero's hostile

environment claim, but rather stands as just one example of

Santiago's retaliatory tactics -- in this instance, an effort to

humiliate him in front of a co-worker. At this stage in the

litigation, it is our responsibility to evaluate Pérez-Cordero's

claim of harassment in light of "the record as a whole" and mindful

of "the totality of the circumstances." Cf. Meritor, 477 U.S. at

69 (citing 29 C.F.R. § 1604.11(b)).

-22-
 We have said that "the hostility vel non of a workplace

does not depend on any particular kind of conduct," Billings, 515

F.3d at 48 (holding that a supervisor's harassment of his employee

was sufficiently severe and pervasive even though the conduct

alleged "did not include touching, sexual advances, or 'overtly

sexual comments to or about her'"), and that "[t]here is no precise

formula for establishing sufficiently egregious conditions."

Rosario, 607 F.3d at 246. Nor do particular factors that

contributed to our finding a hostile work environment in prior

cases set a baseline against which future cases must be measured.

Accord Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 606 (2d

Cir. 2006).

As set forth above, Pérez-Cordero offered evidence

describing both an initial period in which Santiago pursued him

romantically and a subsequent months-long campaign of retaliation

by Santiago as punishment for his rejection of her advances.

Santiago threatened Pérez-Cordero with a negative evaluation,

attempted to initiate a formal disciplinary proceeding against him,

supervised his work scrupulously, and berated his performance in

front of his co-workers. Cf. Che v. Mass. Bay Transp. Auth., 342

F.3d 31, 40 (1st Cir. 2003) (finding sufficient evidence of severe

and pervasive harassment in series of incidents of "undeserved or

excessive discipline"); Marrero, 304 F.3d at 20 (same). She

assigned to him tasks that were physically demanding and that

-23-
excluded him from staff meetings and training opportunities. Cf.

O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001)

("[W]here a plaintiff endures harassing conduct, although not

explicitly sexual in nature, which undermines her ability to

succeed at her job, those acts should be considered along with

overtly sexually abusive conduct in assessing a hostile work

environment claim.").

Wal-Mart contends, however, that additional undisputed

facts in the record clearly demonstrate that any harassment by

Santiago was not severe or pervasive enough to interfere with

Pérez-Cordero's performance of his work. In particular, Wal-Mart

emphasizes that Pérez-Cordero was offered a promotion (which he

declined), was eventually paid for his unused vacation time, and

generally received positive performance evaluations. These actions

do not negate the impact of Santiago's conduct on Pérez-Cordero's

day-to-day work conditions. Nor does Pérez-Cordero's perseverance

in staying on the job undermine his claim of sexual harassment. We

have never required an employee to falter under the weight of an

abusive work environment before his or her claim becomes

actionable. See Billings, 515 F.3d at 51 ("The fact that Billings

managed to get her work done . . . is by no means fatal to her

hostile environment claim."). In short, the conduct described by

Pérez-Cordero is sufficiently severe and pervasive to have altered

the terms or conditions of his employment with Wal-Mart.

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 d. The Harassment Was Offensive

Santiago's harassment of Pérez-Cordero involved non-

consensual physical contact, embarrassing sexual remarks, public

scolding, exclusion from meetings and training opportunities,

threats of discipline, and an assignment to him of those tasks

generally regarded as least desirable. Pérez-Cordero's complaint,

his deposition testimony, notes taken in the September 29, 2000,

meeting, and other record evidence all reveal that Santiago's

harassment caused Pérez-Cordero to suffer psychologically and

emotionally. On September 28, he was sent home from work because

he was not "emotionally well." As early as September 29, he

reported insomnia and stated that he was taking medication to

enable him to sleep. He subsequently reported insomnia, anxiety,

and depression to his doctor, began seeing a counselor, and was

prescribed various medications to combat these symptoms. It is

clear on the record before us that Pérez-Cordero experienced

Santiago's conduct as genuinely offensive. We cannot say, as the

district court did, that a reasonable person in his position would

disagree with that subjective assessment. See id. at 47.

e. There is a Basis for Wal-Mart's Liability

An employer is liable when a supervisor's conduct creates

a hostile work environment for employees unless the employer can

demonstrate that it is entitled to the Faragher-Ellerth defense.

Agusty-Reyes, 601 F.3d at 53. The Faragher-Ellerth defense

-25-
comprises two necessary elements: "(a) that the employer exercised

reasonable care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm

otherwise." Ellerth, 524 U.S. at 765. We agree with the district

court that Wal-Mart cannot make that showing here. In light of

Pérez-Cordero's repeated and undisputed complaints to Wal-Mart's

management throughout September and October of 2000, Wal-Mart

cannot satisfy its summary judgment burden on the second element of

the defense. Therefore, at this stage in the litigation,

Pérez-Cordero has sufficiently demonstrated a basis for Wal-Mart's

liability as Santiago's employer.

D. Retaliation

In addition to his sexual harassment claim, Pérez-Cordero

brought a claim under Title VII claiming retaliation by Wal-Mart's

management in response to Pérez-Cordero's reporting of Santiago's

sexual harassment. In order to make out a retaliation claim under

Title VII, Pérez-Cordero must show that he engaged in a protected

activity and that he subsequently suffered some materially adverse

action causally linked to his protected activity. Collazo v.

Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010).

A "materially adverse" action is one that "might have dissuaded a

reasonable worker from making or supporting a charge of

-26-
discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (internal quotation marks omitted). If a

plaintiff makes out a prima facie case of retaliation, the burden

shifts to the defendant to "articulate a legitimate,

non-retaliatory reason" for its conduct. Collazo, 617 F.3d at 46.

If the defendant can meet that burden, the plaintiff must "show

that the proffered legitimate reason is in fact a pretext and that

the job action was the result of the defendant's retaliatory

animus." Roman v. Potter, 604 F.3d 34, 39 (1st Cir. 2010) (quoting

Enica v. Principi, 544 F.3d 328, 343 (1st Cir. 2008)) (internal

quotation marks omitted).

Pérez-Cordero twice engaged in protected activities. He

filed a charge of discrimination with the Department of Labor on

October 3, 2000. It is undisputed that the filing of such a charge

constitutes a protected activity under Title VII. See generally 42

U.S.C. § 2000e-3(a). However, Wal-Mart was not notified of

Pérez-Cordero's complaint to the Department of Labor until January

11, 2001. Pérez-Cordero has not provided evidence of any

retaliatory conduct during the two weeks that elapsed between Wal-

Mart's receipt of this information and the date it responded by

transferring Santiago to another store and offering to promote

Pérez-Cordero to the vacant Team Leader position.

Pérez-Cordero's retaliation claim thus depends on the

evidence of retaliation for his second protected activity, which

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took place both earlier and later than his formal complaint to the

Department of Labor. That activity was his reporting of Santiago's

conduct to Ortiz, Castro, and Falcón throughout September and

October 2000. Pérez-Cordero's frequent complaints to his superiors

about the harassment to which he was subjected suffice to show his

"opposition" to that harassment, within the meaning of Title VII.

See Crawford v. Metro. Gov't, 129 S. Ct. 846, 850-52 (2009)

(stating that communicating to one's employer a belief that the

employer has engaged in employment discrimination "virtually

always" constitutes opposition to the activity); Collazo, 617 F.3d

at 47 (finding that an employee "opposed" a supervisor's harassment

by, inter alia, speaking to the supervisor individually and

eliciting a limited apology); accord Matima v. Celli, 228 F.3d 68,

78-79 (2d Cir. 2000) (providing examples of protected informal

opposition to discrimination that include making complaints to

management, writing critical letters to customers, and supporting

co-workers who have filed formal charges). Although Pérez-Cordero

did not suffer a tangible employment detriment in response to this

protected activity, such as a retaliatory firing, we have

previously held that the escalation of a supervisor's harassment on

the heels of an employee's complaints about the supervisor is a

sufficiently adverse action to support a claim of employer

retaliation. Agusty-Reyes, 601 F.3d at 57.

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 The record reveals sufficient evidence from which a

reasonable jury could conclude that Santiago's discriminatory

harassment escalated in response to Pérez-Cordero's complaints.

Pérez-Cordero first complained to Ortiz about Santiago's harassment

on September 19, 2000. Although the conduct Pérez-Cordero

complained of -- a public scolding -- was not itself sexual, it

nevertheless constituted sexual harassment, as it was part of

Santiago's reprisal against Pérez-Cordero for her failed, public

attempt to establish a romantic relationship with him. At the

September 19 meeting, Ortiz promised to talk to Santiago, and later

confirmed to Pérez-Cordero that he had done so.11 Pérez-Cordero was

subjected to Santiago's inappropriate greeting and sexual comment

the next day. Several days later, after two more complaints by

Pérez-Cordero to Ortiz, Santiago and Ortiz initiated a meeting to

discipline Pérez-Cordero, at the end of which Ortiz encouraged

Pérez-Cordero to solve his problems by "go[ing] out with" Santiago.

A reasonable jury could interpret Santiago's September 20

greeting, the first overtly sexualized act of harassment alleged,

as an escalation in both the nature and intensity of her

harassment. Similarly, because of the official imprimatur

suggested by Ortiz's involvement and the fact that it implicated

11
Although Pérez-Cordero testified at his deposition that he
did not believe Ortiz, a reasonable jury could conclude from the
conduct that followed that Ortiz talked to Santiago on September
19, as he stated.

-29-
Pérez-Cordero's employment benefits, the disciplinary meeting on

September 25 can reasonably be viewed as both another increase in

the severity of Santiago's retaliation and a weightier deterrent to

subsequent complaints. Cf. Lockridge v. Univ. of Me. Sys., 597

F.3d 464, 472 (1st Cir. 2010) ("We think that, under certain

circumstances, the denial of an employee's request for office space

could dissuade a reasonable person from making or supporting a

charge of discrimination."); Valentín-Almeyda, 447 F.3d at 95

(concluding that "disadvantageous transfers or assignments" can be

materially adverse). In addition, the temporal proximity between

Pérez-Cordero's initial complaints and these retaliatory actions is

sufficient to establish the causal connection required for a prima

facie case of retaliation. See Collazo, 617 F.3d at 49-50; see

also DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) ("[O]ur law

is that temporal proximity alone can suffice to 'meet the

relatively light burden of establishing a prima facie case of

retaliation.'" (quoting Mariani-Colón v. Dep't of Homeland Sec.,

511 F.3d 216, 224 (1st Cir. 2007))).

There is admittedly some overlap between Pérez-Cordero's

discrimination claim, which depends on proof that the hostile work

environment was "because of sex," and his retaliation claim, which

seeks to characterize the same hostile work environment as caused

by his protected activity. See Burlington N. & Santa Fe Ry. Co.,

548 U.S. at 63 ("[Title VII's] substantive provision seeks to

-30-
prevent injury based on who they are, i.e., their status. The

anti-retaliation provision seeks to prevent harm to individuals

based on what they do, i.e., their conduct."). However, where, as

here, the evidence can reasonably be viewed as demonstrating either

discriminatory animus or retaliatory animus, we may consider the

same evidence in assessing the sufficiency of both of the

plaintiff's claims. See Agusty-Reyes, 601 F.3d at 52-57 (finding

sufficient evidence on appeal from summary judgment of both severe

and pervasive harassment and retaliation through the escalation of

that harassment); cf. Morales-Vallellanes v. Potter, 605 F.3d 27,

37-40 (1st Cir. 2010) (reviewing an employer's conduct to determine

simultaneously the sufficiency of employee's sex-discrimination and

retaliation claims).

In response to Pérez-Cordero's prima facie case of

retaliation, the defendants have not attempted to advance a

legitimate, non-retaliatory reason for the conduct of Wal-Mart's

managers, nor is one readily apparent from the record.

Consequently, the district court's grant of summary judgment in

favor of Wal-Mart on Pérez-Cordero's retaliation claim was

erroneous.

III.

For the foregoing reasons, we vacate the district court's

entry of summary judgment for Wal-Mart on Pérez-Cordero's claims

alleging sexual harassment and retaliation under Title VII. We

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likewise vacate the district court's entry of summary judgment in

favor of all defendants on Pérez-Cordero's claims under Puerto

Rico's Law 100. We remand the case for further proceedings

consistent with this opinion. Costs are awarded to the appellant.

So ordered.

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