Gerald v. University of Puerto Rico

United States Court of Appeals
For the First Circuit

No. 11-2143

MELISSA S. GERALD,

Plaintiff, Appellant,

v.

UNIVERSITY OF PUERTO RICO; EDMUNDO KRAISELBURD,

Defendants, Appellees.

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

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

Before

Torruella, Howard, and Thompson,
Circuit Judges.

Bámily López Ortiz, with whom López Toro, Estudio de Derecho
& Notaría, Lizabel M. Negrón-Vargas, and Rivera & Fernandez-
Reboredo were on brief, for appellant.
Raquel M. Dulzaides, with whom Mayra González Reyes, J. Ramón
Rivera-Morales, and Jiménez, Graffam & Lausell were on brief, for
appellee University of Puerto Rico.
Jesús R. Morales Cordero, with whom González Castañer &
Morales Cordero, PSC was on brief, for appellee Edmundo
Kraiselburd.

January 28, 2013
 THOMPSON, Circuit Judge. Dr. Melissa S. Gerald, a

scientist formerly employed by the University of Puerto Rico

("University"), says she was sexually harassed by her supervisor,

Dr. Edmundo Kraiselburd. Gerald reported the harassment and this

protestation, according to her, led the University to retaliate

against her. Gerald sought redress in district court, suing

Kraiselburd and the University for violating Title VII of the Civil

Rights Act and Puerto Rico law. The court granted summary judgment

in favor of the defendants, dismissing the complaint in its

entirety. Gerald appealed. After due consideration, we affirm the

grant of summary judgment in part and vacate in part.

FACTUAL BACKGROUND

These facts are outlined in a light most favorable to the

non-movant, Gerald. See Pérez-Cordero v. Wal-Mart Puerto Rico,

Inc., 656 F.3d 19, 20 (1st Cir. 2011).

A. The Setting and People

The Medical Sciences Campus is an institutional unit of

the University. Within the Medical Sciences Campus is the

Caribbean Primate Research Center ("CPRC"), a research, training,

and education center for the study of non-human primates. The CPRC

is made up of four integrated facilities: the Cayo Santiago Field

Station ("Cayo Santiago"), the Sabana Seca Field Station, the

Laboratory of Virology and Genetics, and the Laboratory of Primate

Morphology and Genetics. Most relevant here is Cayo Santiago, a

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forty-acre island located less than a mile off the coast of Puerto

Rico. There hundreds of monkeys live in semi-natural conditions

for the purpose of conducting behavioral and non-invasive

biomedical research.

During the time frame important to us, Kraiselburd (with

the University in different capacities since 1977) was the

Principal Investigator and Director of the CPRC, as well as a

Professor of the Medical Sciences Campus. His role with the CPRC

meant that he oversaw and supervised the operation of its four

integrated facilities. Gerald (hired in 2001) had a dual role as

"Scientist in Charge" of Cayo Santiago and as an Assistant

Professor at the Medical Sciences Campus, a tenure track position

which contemplated her advancement to Associate Professor. As

Scientist in Charge, Gerald's duties included running the daily

operation of Cayo Santiago, maintaining a computerized database of

the monkey population, managing personnel, participating in animal

trapping, conducting research, preparing reports and grant

proposals, and assisting visiting scientists. Gerald's home base

of operation was Punta Santiago, the mainland village closest to

Cayo Santiago. Her supervisor was Kraiselburd.

B. The Alleged Harassment

By all appearances Kraiselburd and Gerald worked together

and were friends for a number of years without anything of note

occurring. Then in 2005, at a conference in Cuba, the two

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apparently engaged in a week-long sexual affair. According to

Gerald, Kraiselburd insisted on pursuing the relationship when they

returned home and Gerald, embarrassed by the fling, rebuffed him.

A couple years later, Gerald was approached by a film

production company, which was producing a documentary about the

life and work of prominent evolutionary biologist, E.O. Wilson.

They wanted to bring Wilson for a visit to Cayo Santiago (a re-

creation of his visit fifty years earlier) and film it. Gerald

brought the request to the attention of various University

personnel, not just Kraiselburd, and he was not pleased. Via

email, he told Gerald that she needed to clear CPRC matters with

him, as the director, before involving others. Kraiselburd accused

Gerald of ignoring him except when money was needed and alienating

people with her attitude. Gerald did not see what the big deal

was, stating that she thought she was following protocol.

Despite these initial planning glitches the visit and

filming went forward in mid-April 2007. As part of the

festivities, a dinner was held on April 15, and Gerald gave

Kraiselburd a ride from his hotel to the dinner. At the end of the

evening, she dropped him back off at his hotel and, according to

Gerald, Kraiselburd sexually propositioned her. She says he

gestured at the hotel and referenced an offer being on the table,

which Gerald took as an invitation to his room. Gerald, who had

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her young daughter in the car, declined the solicitation. Gerald

says she could tell Kraiselburd was angry with her refusal.

Gerald and Kraiselburd continued to clash the following

month as they worked to make arrangements for more visiting

scientists coming to Cayo Santiago. In email correspondence the

two went back and forth about the visits' planning and

Kraiselburd's frustration with Gerald appeared to grow. The heated

exchange culminated with an email from Kraiselburd to Gerald dated

May 24, 2007, in which Kraiselburd accused Gerald of not being

dependable and also declared she was not the type of person needed

at Cayo Santiago. He added: "We now have to formally talk. I

think I will have to ask you to step down. And now I am dead

serious. You will receive a letter shortly."

A few days later, on May 29, Gerald met with Kraiselburd

in his office and attempted to smooth things over. Gerald says she

apologized and Kraiselburd accepted. The two then said farewell

with a hug and kiss on the cheek. As the embrace broke apart,

Gerald says Kraiselburd grabbed her breast and made sexually

suggestive grunting noises. Gerald was disgusted but said nothing

for fear of losing her job.

A week or so later, on June 7, Gerald, Kraiselburd, and

other co-workers attended a meeting to discuss an upcoming

conference. During the meeting Gerald mentioned that she would be

busy during the evenings of the conference because she had a friend

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attending. According to Gerald this led Kraiselburd to say

something along the lines of: "What will it take for you to fuck

me? Is this one of your girlfriends or one of your boyfriends? If

it is one of your girlfriends, I'll fuck both of you." If it is

one of your boyfriends, "I will be outside your hotel door peeking

giving you directions how to fuck your boyfriend." It is unclear

from the record if or how Gerald responded.

Then, on June 12, Gerald and Kraiselburd lunched with

another visiting scientist. Gerald and Kraiselburd quarreled about

whether she had done something he had asked her to do and when

Gerald said she had to leave lunch early to get her daughter,

Kraiselburd began questioning Gerald about what hours she actually

worked. Gerald, embarrassed at being questioned in this manner in

front of a colleague, argued back in a raised voice and ultimately

left the restaurant.

C. Gerald's Job Responsibilities Change

The evening of the heated lunch exchange, Kraiselburd

sent Gerald an email indicating that due to budget limitations

Gerald would be removed from the position of Scientist in Charge by

the end of the month. And then a few days later, on June 18,

Kraiselburd recanted. He sent Gerald another email: after

considering the situation at Cayo Santiago, it was decided Gerald

would in fact retain her title as Scientist in Charge, but no more

$800 a month bonus. Gerald responded via letter to Kraiselburd,

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lobbying for her bonus and requesting an in-person meeting to

discuss matters.

Her plea fell on deaf ears and on June 29, Kraiselburd

sent Gerald another letter. After evaluating things at Cayo

Santiago he wrote, it had been decided that a restructuring was

needed. Gerald was relieved of all administrative duties and

colony management responsibilities. To reflect these changes, her

title was changed to Resident Scientist. Her bonus was set at $200

a month. It was not all bad news for Gerald though as she was

promoted from Assistant Professor to Associate Professor at the

Medical Sciences Campus a couple days later on July 1. The

promotion came with a $1,000 a month pay raise.

D. The Complaint and Investigation

On August 3, 2007, Gerald met with the Chancellor of the

Medical Sciences Campus, Dr. José R. Carlo Izquierdo, and other

University personnel, to lodge an administrative sexual harassment

complaint against Kraiselburd. Gerald was emotional and crying,

and apparently Carlo found her credible. Gerald was told that she

should formalize her complaint in writing so that it could be

investigated. Gerald did so the next day. An outside attorney,

Maritza Miranda López, was brought in as the investigating officer

and charged with looking into things and issuing a recommendation.

After reviewing documentary evidence, including email

communications, and interviewing Gerald, Kraiselburd, and a handful

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of other University personnel, López issued her findings in a

seventeen-page investigative report, dated October 22, 2007. We

highlight the more pertinent findings.

Gerald had alleged three instances of sexual harassment

to López: (1) the April 15, 2007 incident when Kraiselburd

propositioned Gerald in the hotel parking lot, (2) the May 29, 2007

encounter where he grabbed her breast, and (3) the June 7, 2007

instance where Kraiselburd stated, among other things, "What will

it take for you to fuck me?". Kraiselburd flatly denied the first

two occurrences. As for the third, he admitted to making a comment

of that nature but said it was a joke made in response to Gerald

saying that she was going to "do it like rabbits" (or something to

that effect) with her visiting friend.

The co-workers who were interviewed all painted a similar

picture of Gerald and Kraiselburd's relationship. The general

consensus was that the two appeared to have a close and trusting

relationship, and their interactions often included off-color

remarks and jokes of a sexual nature, many a time to the discomfit

of some. None of the co-workers witnessed either of the first two

acts of alleged harassment but co-workers James Ayala and Janet

Rivera were at the June 7 meeting. Rivera said she heard

Kraiselburd say "what would you do to be with me," at which time

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she withdrew from what she perceived was a personal conversation.1

Ayala thought Kraiselburd said something like "what will you pay to

spend the night with me" in a joking manner. Ayala said this

comment was in response to Gerald joking about the intimate nature

of her relationship with her visiting friend.

Interviews were also conducted with some of the

University personnel who Gerald had met with when she first lodged

her complaint. One said Gerald reported that Kraiselburd had

approached her with inappropriate comments and had "grazed" her

breast. The other said Gerald made vague and somewhat unclear

allegations about Kraiselburd touching her breast and making

certain comments and invitations.

Aside from contradicting Gerald's claims about the three

acts of alleged harassment, Kraiselburd also gave his take on why

he restructured Gerald's position as Scientist in Charge. Gerald,

he said, was shirking her job responsibilities, not adhering to her

work schedule, mistreating personnel, and not respecting her

superiors. More specifically, he claimed Gerald was not going to

Cayo Santiago as often as needed, not charging researchers for

bench and lodging fees, ordering employees to operate boats in

1
Rivera claimed Gerald approached her prior to her interview
and told Rivera to tell López that she had heard the word "fuck"
and that it was offensive. Rivera told Gerald that was not what
she heard and she would tell the truth. Gerald insisted that
Rivera call her after the interview. Gerald was deemed by López to
have attempted to influence Rivera's testimony.

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dangerous conditions, misrepresenting her role at Cayo Santiago to

the press, not satisfying job responsibilities resulting in others

absorbing the tasks, and that she had profanely called an employee

an asshole.

López reached her conclusions. She did not find Gerald

credible and determined it unlikely that the hotel proposition or

breast grabbing incident occurred. To the extent the latter had

taken place, she found that the incident did not appear to impact

or even matter to Gerald. As for the third incident, López's

report noted that jokes and comments of a sexual nature were

admittedly common for Gerald and Kraiselburd and it was unlikely

Kraiselburd's wording was as crude as Gerald suggested. To the

extent any of the incidents did take place, they were deemed not

severe or offensive enough to alter Gerald's work conditions. The

changes in Gerald's job, López concluded, were strictly performance

related.

López's report ended with recommendations. Despite her

not buying Gerald's story, she recommended that an administrative

hearing be commenced. López suggested that if the administrative

hearing officer reached the same conclusions she had, then the

University should consider filing administrative charges against

Gerald. She also advised the University to instruct both Gerald

and Kraiselburd about the inappropriateness of using obscene

language at work. Finally, citing Gerald's reported non-compliance

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with her duties and the animosity that had arisen as a result of

this investigation,2 López recommended that Gerald's post be

relocated away from Cayo Santiago.

E. The University Responds

Armed with López's findings, the University, via a

resolution dated November 8, 2007 and issued by Chancellor Carlo,

dismissed Gerald's sexual harassment complaint. The resolution

further indicated that administrative proceedings would be

instigated against Gerald to determine whether she had violated

University regulations by breaching her job duties or filing a

false grievance. Also, in accordance with López's recommendation,

the resolution decreed that Gerald be transferred to another CPRC

facility, the Laboratory of Primate Morphology and Genetics (the

"Laboratory"). Gerald's transfer to the Laboratory was

memorialized in a December 4, 2007 letter from Kraiselburd. In

that same letter, Gerald's title Resident Scientist was changed to

Staff Scientist.

2
The report referred not only to the animosity between
Kraiselburd and Gerald but between Gerald and Ayala. It seems
Ayala and Gerald had got into an argument after he caught her
reading his sworn statement to López when it was left open on his
computer screen. Ayala claimed that Gerald, who countered with her
own charge of computer snooping against him, was openly hostile
after this.

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 F. Gerald Responds

Refusing to roll over Gerald appealed the dismissal of

her sexual harassment complaint to the University president.3 As

a result of the appeal, the chancellor stayed the administrative

proceedings against Gerald. Gerald then filed a sexual harassment

complaint with the U.S. Equal Employment Opportunity Commission

("EEOC"). The EEOC dismissed the complaint and issued a right to

sue notice on June 23, 2008.

On June 26, 2008, Gerald voluntarily resigned from the

University via a letter to Chancellor Carlo. She accused Carlo of

mishandling the investigation and wrongly believing Kraiselburd

over her. Gerald claimed that she had been unfairly demoted and

that there was no work for her in her new position. She also

complained that her new job at the Laboratory (which was not in the

same area as Cayo Santiago) had added time to her commute forcing

Gerald to sacrifice time with her daughter. Gerald lamented that

her career had been derailed and said she was seeking help for

clinical depression. Gerald's last day with the University was

August 2, 2008. That same month she started working for the

National Institute of Health (located in Maryland) and was not

unemployed at any time after her departure.

3
As of the time the district court issued its decision, a
hearing had been held on Gerald's appeal but no decision had been
issued.

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 PROCEDURAL HISTORY

A few months after leaving the University, Gerald brought

this lawsuit against the University and Kraiselburd. The complaint

alleged that she was sexually harassed by Kraiselburd (and that the

University should be held liable for this conduct), retaliated

against by the University for filing the administrative sexual

harassment complaint, and constructively discharged, all in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. Gerald also raised supplemental Commonwealth

claims under: (1) Law 17 (prohibiting sexual harassment in

employment), P.R. Laws. Ann. tit. 29, § 155; (2) Law 69

(prohibiting gender based employment discrimination), id., § 1321;

and (3) Law 100 (analogous to Title VII), id., § 146. She sought

back pay, compensatory and punitive damages, and attorney's fees

and costs.

In lieu of an answer, the University and Kraiselburd

filed a joint motion to dismiss. It was granted in part, resulting

in the dismissal of multiple claims, which Gerald does not appeal.

What remained was Gerald's Title VII claim against the University,

as well as her Law 17 and Law 69 state law claims against

Kraiselburd. The case proceeded to the discovery phase, with a

trial date slated for March 2011.

Shortly before trial, the University and Kraiselburd

jointly moved for summary judgment on all remaining claims. The

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district court granted the motion, dismissing with prejudice the

complaint in its entirety. In short, the district court found that

Gerald failed to make out a prima facie case for any of the relief

she sought. More specifically, it said Gerald could not show that

Kraiselburd's conduct was severe or pervasive; that her employment

hinged on her acceptance of Kraiselburd's sexual advances; that she

suffered an adverse employment action; or that her work conditions

were so oppressive that she was forced to resign. The court added

that even assuming the steps taken by the University (i.e., filing

administrative charges, transferring Gerald) constituted adverse

employment actions, there was no causal connection between those

actions and Gerald's filing of the administrative complaint and the

University had valid, non-pretextual reasons for what it did.

Gerald now appeals. Arguing that the district court

usurped the jury's function by improperly weighing evidence, making

credibility determinations, and disregarding controversies in the

summary judgment record, she asks us to reverse.

STANDARD OF REVIEW

Our review is de novo. Martínez-Burgos v. Guayama Corp.,

656 F.3d 7, 11 (1st Cir. 2011). In taking a fresh look, we draw

all reasonable inferences in favor of Gerald, as the non-movant,

and we view the record in a light most flattering to her. Id.

Summary judgment is called for when "there is no genuine issue as

to any material fact and the moving party is entitled to judgment

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as a matter of law." Id.; see Fed. R. Civ. P. 56(a). A genuine

issue is one that can "be resolved in favor of either party" and a

material fact is one which "has the potential of affecting the

outcome of the case." Pérez-Cordero, 656 F.3d at 25.

"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.'" Id.

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

Cir. 2011)). The burden is on Gerald to show us that this is the

case; she must point to specific and competent evidence to support

her claims. See Ayala-Sepúlveda v. Municipality of Germán, 671

F.3d 24, 30 (1st Cir. 2012).

TITLE VII CLAIMS

Title VII makes it unlawful for employers to discriminate

based on sex and further prohibits retaliation against those

employees who oppose such discrimination. 42 U.S.C. § 2000e-

2(a)(1); id. § 2000e-3(a). The Title VII claims that Gerald is

pursuing against the University are: sexual harassment (both

hostile work environment and quid pro quo), retaliation, and

constructive discharge. We take them in sequence.

A. Sexual Harassment

Sexual harassment qualifies as sex-based employment

discrimination in violation of Title VII. Pérez-Cordero, 656 F.3d

at 26. Before us, as she has all along, Gerald alleges three

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instances of harassment by Kraiselburd: (1) the April 15, 2007

hotel parking lot proposition incident, (2) the May 29, 2007 breast

grabbing encounter, and (3) the June 7, 2007 comment about engaging

in sexual relations made during a staff meeting. For summary

judgment purposes, the University is not disputing that these

instances occurred.

i. Hostile Work Environment

Requiring a person "'to work in a discriminatorily

hostile or abusive environment'" violates Title VII. Valentín-

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

2006) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)).

To prevail on a hostile work environment sexual harassment claim,

a plaintiff must establish in essence: (1) membership in a

protected class and (2) unwelcome sexual harassment, (3) which was

based on sex, (4) was sufficiently severe or pervasive, (5) was

objectively and subjectively offensive, and finally (6) that some

basis for employer liability has been established. Forrest v.

Brinker Int'l Payroll Co., 511 F.3d 225, 228 (1st Cir. 2007). We

take this six element test in order.

We need not spill much ink on the first. There is no

doubt (and no dispute from the University) that Gerald, as a woman,

is a member of a protected class. We move on to the unwelcomeness

inquiry.

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 The district court found that there was a factual

question as to whether Kraiselburd's conduct was unwelcome.

Apparently for this reason the University does not address this

issue on appeal, though it did argue this point below. It

primarily argued that Gerald's own conduct, namely her voluntarily

engaging in off-color banter of a sexual nature with Kraiselburd,

showed that his conduct was not unwelcome. This argument does

little to convince. We fail to see how an employee telling risqué

jokes means that she is amenable to being groped at work. Instead

the evidence here was enough, at the very least, to raise a factual

question as to whether Kraiselburd's conduct was unwelcome. Gerald

did not accept his invitation to her hotel room; she turned him

down. Gerald informed López during the administrative

investigation that she was bothered by Kraiselburd's proposition.

There is no evidence that Gerald encouraged or invited Kraiselburd

to grab her breasts and she indicated during the investigation that

she was disgusted and bothered by him doing so. Similarly there is

no evidence that Gerald welcomed the comments made during the staff

meeting even if she indeed mentioned the intimate nature of her

relationship with another person. In the context of sexual

harassment claims, the question of "whether particular conduct was

indeed unwelcome presents difficult problems of proof and turns

largely on credibility determinations committed to the trier of

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fact," and this case is no exception. Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 68 (1986).

The University did not argue below, or to this court,

that the harassment was not based on sex and the district court

deemed this factor uncontested. Our review being de novo and not

limited to the district court's reasoning, we shall address this

factor nonetheless. For harassment to be based on sex it need not

be an act motivated by sexual desire but rather the harassment must

be gender specific. Pérez-Cordero, 656 F.3d at 28. Here the

record contained sufficient evidence from which a reasonable jury

could conclude that Kraiselburd's actions were triggered by

Gerald's gender. Kraiselburd sexually propositioned Gerald,

grabbed her breasts, and made comments about engaging in sexual

relations with her; it is reasonable to conclude that these actions

were connected to Gerald being a woman.

We proceed to the real bone of contention here - whether

the harassment was sufficiently severe or pervasive. This is the

factor the district court found lacking and it is also the entire

focus of the University's argument on appeal. This is not

surprising given that there is seldom a defensible purpose behind

discriminatory harassment and the real question is typically

whether the bad acts taken in the aggregate are sufficiently severe

or pervasive to be actionable. Noviello v. City of Boston, 398

F.3d 76, 84 (1st Cir. 2005). There is no mathematically precise

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test that we employ to answer this question but several factors,

none of which are individually determinative, are relevant: the

severity of the conduct, its frequency, whether it is physically

threatening or not, and whether it interfered with the victim's

work performance. Bhatti v. Trustees of Boston Univ., 659 F.3d 64,

73-74 (1st Cir. 2011).

Pointing to the fact that Gerald and Kraiselburd often

engaged in off-color banter, the University says the supposed

harassment was not severe. We disagree and think a jury could have

seen things otherwise. Gerald says Kraiselburd grabbed her

breasts, sexually propositioned her, and crassly asked in front of

others why she would not have sex with him. The University is not

denying these occurrences for summary judgment purposes. These

offensive incidents, which involved sexual propositioning and

uninvited touching, can reasonably be viewed as severe; and, in the

case of the breast grabbing incident, physically threatening (not

to mention criminal). Like we have said, it is clear that

"behavior like fondling, come-ons, and lewd remarks is often the

stuff of hostile work environment claims . . . ." Billings v. Town

of Grafton, 515 F.3d 39, 48 (1st Cir. 2008) (gathering cases).

This is precisely the type of conduct we have here.

On the frequency front, the University likens what

happened to a brief three-incident blip in an otherwise uneventful

six years of working together. We are not convinced. Though

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Gerald has alleged just three acts of harassment, a "single act of

harassment may, if egregious enough, suffice to evince a hostile

work environment." Noviello, 398 F.3d at 84 (citing Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998)). The incident in

which Kraiselburd grabbed Gerald's breasts and made sexually

suggestive noises comfortably qualifies as egregious. And Gerald

has alleged two incidents on top of this.

A closer question is whether the three incidents

interfered with Gerald's work performance. The University says

they did not, making much ado of cordial and sometimes joking

emails that Gerald sent Kraiselburd after each of the three

instances. But these emails do not give us a great deal of pause.

The fact that Gerald managed to get work done despite Kraiselburd's

actions is not fatal to her hostile work environment claim. See,

e.g., Tuli v. Brigham & Women's Hosp., 656 F.3d 33, 40 (1st Cir.

2012) (holding that a jury's hostile work environment liability

finding was not precluded just because the plaintiff neurosurgeon

managed to get her work done despite being harassed by her

supervisor); Billings, 515 F.3d at 51 (finding that the plaintiff

secretary being able to perform her job despite her boss leering at

her breasts did not doom her hostile work environment claim). The

University also points to a couple of lines in Gerald's deposition

where she admits telling some visiting scientists that she could

work with Kraiselburd and wanted to repair things with him.

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However, there is no surrounding frame of reference for this

comment leaving us with no idea when Gerald made this statement or

the context in which it was made. Therefore we do not put too much

stock in this remark.

Gerald, for her part, does not give us much more as to

how the incidents affected her work performance. She refers in her

formalized sexual harassment complaint to being unable to "work

effectively" and to her work productivity being affected but does

not elaborate beyond this.4 And although Gerald did seek

psychiatric counseling for depression, there is no evidence that

Gerald's work performance suffered as a result of this depression.

See Bhatti, 659 F.3d at 74; see also Ayala-Sepúlveda, 671 F.3d at

31. But in the end, subject to some policing on our part, "it is

for the jury to . . . 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

Puerto Rico, Inc., 304 F.3d 7, 19 (1st Cir. 2002) (internal

quotation marks and citation omitted). And, as we said, none of

4
Gerald did offer some evidence about how her complaining
about the harassment and her transfer to the Laboratory interfered
with her work performance. In a follow-up email to University
personnel Gerald said that since she filed the administrative
complaint, Kraiselburd was intentionally keeping her out of the
loop on decisions he was making, which affected her ability to do
her job. Gerald also testified at deposition, and complained to
University personnel via letter, that she had no duties and could
not perform her science in her new role at the Laboratory.
However, how Gerald's filing of the complaint and transfer might
have affected her employment strikes us as a separate issue from
how the alleged incidents of harassment impacted her work.

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the considerations that go into the severe and pervasive inquiry

are individually determinative. Though Gerald did not give us much

to go on, policing is not warranted here, especially given the

evidence we have as to the other considerations. To sum things up,

taking the evidence in a light most favorable to Gerald, we think

a reasonable jury could have found that the harassment was severe

or pervasive.

We turn to, and conclude, with the final two factors in

our hostile work environment analysis. The district court, having

found that the harassment was not severe or pervasive, elected not

to reach these factors. Again presumably for this reason, the

University did not address them on appeal.

The next inquiry is whether the complained of conduct was

objectively and subjectively offensive. Said another way, would a

reasonable person find the conduct hostile and abusive and did the

complainant in fact perceive it to be so. Billings, 515 F.3d at

47. On the issue of subjective offense there was adequate

evidence: Gerald was bothered by Kraiselburd's invitation to his

hotel room, disgusted by him grabbing her breasts, and she was

depressed, seeing a psychiatrist, and taking anti-depressants. The

fact that the complained of conduct involved non-consensual

physical touching, an invitation for sexual relations, and

embarrassing public comments strikes us as being sufficiently in

the realm of what a reasonable person might find offensive. Gerald

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presented enough evidence on this point to withstand summary

judgment.

Establishing some basis for employer liability is

Gerald's final hurdle. When it is a supervisor that creates an

actionable hostile work environment, the employer is vicariously

liable. Arrieta-Colón v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75,

86 (1st Cir. 2006) (citing Faragher, 524 U.S. at 807); Torres-

Negrón v. Merck & Co., 488 F.3d 34, 40 (1st Cir. 2007). Here it is

undisputed that Kraiselburd was Gerald's supervisor with authority

over her. Thus a basis for the University's liability has been

established.5

This takes us to our ultimate conclusion. When reviewing

a summary judgment grant like this one, our "function is one of

screening, that is, to determine whether, on particular facts, a

reasonable jury could reach such a conclusion." Noviello, 398 F.3d

5
Before the district court, the University argued that
because it had a well-established anti-harassment policy in place
and because it took steps to correct any harassment on
Kraiselburd's part, it was entitled to the Faragher-Ellerth
defense. The Faragher-Ellerth defense, which shields an employer
from liability for a supervisor-created hostile work environment,
can only be raised if no tangible employment action is taken
against the employee. Torres-Negrón, 488 F.3d at 40 fn.5; Arrieta-
Colón, 424 F.3d at 86. The defense requires the employer to show
by a preponderance of the evidence that it both "exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior" and that the "employee unreasonably failed to
take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise." Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Though it
argued the Faragher-Ellerth defense below, the University did not
assert it on appeal. Therefore we need not address this issue.

-23-
at 94. In other words, we patrol the outer bounds. Vera v.

McHugh, 622 F.3d 17, 27 (1st Cir. 2010). Here, taking the evidence

in a light most favorable to Gerald, we cannot decisively say (as

the district judge did) that a reasonable jury could not conclude

that she was subject to a hostile work environment. The court

erred in granting summary judgment on Gerald's hostile work

environment claim.

ii. Quid Pro Quo

Quid pro quo sexual harassment is when a supervisor uses

his superior position to extract sexual favors from a subordinate

and, if rebuffed, retaliates by taking action that adversely

impacts the subordinate's employment. Valentín-Almeyda, 447 F.3d

at 93.6 This type of harassment "can be shown where a supervisor

uses employer processes to punish a subordinate for refusing to

comply with sexual demands." Hernández-Loring v. Universidad

Metropolitana, 233 F.3d 49, 52 (1st Cir. 2000).

Gerald claims that is precisely what happened here.

Because she rejected Kraiselburd's sexual advances, she says he

used his position to get her demoted from Scientist in Charge. The

University counters that there is no evidence that Kraiselburd

conditioned Gerald's continued employment on her accepting his

6
The demarcation between this type of harassment and hostile
work environment harassment is "of 'limited utility,' other than to
generally describe alternative approaches to proving sex-based
employment discrimination." Pérez-Cordero, 656 F.3d at 26 (quoting
Burlington Indus., Inc., 524 U.S. at 751).

-24-
advances and that Gerald's change in title stemmed from her non-

compliance with her job responsibilities and insubordinate

attitude. Gerald's response: the University is exaggerating, if

not misrepresenting, the scope of her responsibilities and supposed

non-compliance, and it is no coincidence that Kraiselburd started

complaining about her performance right around the time she spurned

him. She calls his complaint suspiciously inconsistent with

earlier high praise of her. The district court, after reviewing

the evidence, accepted the University's version of things. We are

less convinced.

Sometimes in these quid pro quo cases the defendant

superior does not mince words and the plaintiff employee is able to

present direct evidence that the defendant threatened to exact

retribution. See, e.g., Valentín-Almeyda, 447 F.3d at 96

(defendant police supervisor told the plaintiff officer she would

be "screwed" if she did not react more affectionately to his

advances); Hernández-Loring, 233 F.3d at 53 (defendant committee

member boasted that he had caused the plaintiff professor to be

passed over for a promotion because she would not date him);

Bryson v. Chicago State Univ., 96 F.3d 912, 914 (2d Cir. 1996)

(defendant provost told plaintiff professor that she would be sorry

if she did not do what he said). We have nothing so crystalline

here.

-25-
 Instead we have references that Kraiselburd made via

email the day before he propositioned Gerald in the hotel parking

lot that could (as Gerald suggests) be read as part of his attempt

to sexually proposition her or could (as the University suggests)

be innocuous references to something else entirely. Specifically

in one email Kraiselburd said: "Just relax. [You] live only once."

In another, he tells Gerald: "Offer still on the table." Similarly

ambiguous is an email exchange the day after the proposition in

which Kraiselburd writes: "Sorry, I have to draw the line

somewhere. Hope that you will be able to eat your own words

without too much ketchup." As with the other emails, it is not

entirely clear what Kraiselburd is referring to - Gerald's

rejection the night before or something else. Construing the

evidence and reasonable inferences in Gerald's favor as we must, it

is plausible to read these emails to mean what she says they do,

but we acknowledge we are getting close to speculative territory.

Were this all Gerald had, it would likely not be enough to create

a trial-worthy issue, but Gerald also presented a good amount of

evidence rebutting the University's contention that she was demoted

for job related reasons, as opposed to for rejecting Kraiselburd.

We chronicle the evidence, starting with the University's.

One of the University's claims was that Gerald was not

fulfilling her responsibilities as required by the grant under

which the CPRC operated. In support, Kraiselburd offered a signed

-26-
declaration. In it he averred that Gerald failed to fulfill

multiple job responsibilities, such as maintaining the colony's

genetic data, billing fees, reporting and requesting authorization,

and obtaining significant grant monies. He also claimed she did

not conduct herself properly with other employees, did not maintain

a physical presence at work, and that she displayed a

disrespectful, insubordinate attitude. The University also

presented an October 19, 2007 letter from the administrative

director of the CPRC, José Alicea López, in which he indicated that

as Scientist in Charge it was Gerald's responsibility to bill

researchers various fees (e.g., bench and trapping fees) and that

she was not fulfilling this function. López said an investigation

revealed that since 2004 approximately $60,000 in fees went un-

billed.7 A follow-up administrative report put the number at

$100,000.

The University also offered evidence about how Gerald

comported herself at work. Administrative director López penned a

May 18, 2007 letter where he complained that Gerald was requiring

the CPRC's boat personnel to ferry her and others to Cayo Santiago

in dangerous conditions and at irregular hours. A laboratory

employee from Cayo Santiago, Rolando Viera, also wrote a letter

7
It should be noted that the letter in which this assertion
was made was penned by López after Gerald was demoted and, in fact,
after she lodged her sexual harassment complaint. It is unclear
how much Kraiselburd or the University knew about the allegations
in this letter at the time Gerald was removed from her post as
Scientist in Charge.

-27-
(dated May 12, 2007) in which he complained that the previous

February Gerald had made an inappropriate joke of a sexual nature

to him and called him a cabrón, the Spanish word for asshole.

The University also accused Gerald of being disrespectful

and insubordinate with Kraiselburd. It produced a slew of emails,

some of which evidenced Gerald speaking to Kraiselburd (and he to

her) in a brash manner. Examples included Gerald saying: "Team

work is all that I am asking for. Since when did asking about the

status of the genetics become a personal issue? Ridiculous!!!" Or

when Kraiselburd criticized Gerald for handling a matter over email

as opposed to on the phone, she responded: "Ask before you attack,

remember? . . . I do not have a cell phone for work, so I did what

I did!" In another argument with Kraiselburd, Gerald said: "Your

ego has played a very nasty trick on you."

Gerald countered with her own evidence, which she says

puts things in a different light. First, she claims that until she

rebuffed Kraiselburd she received good marks for her performance.

She presented an annual report issued on December 31, 2006 (about

three and a half-months before the first instance of alleged

harassment) by the Chancellor's Advisory Committee on the CPRC.

The report indicated that overall "the Cayo Santiago program

appears to be in excellent shape" and that Gerald was "doing an

excellent job as Scientist-in-Charge in promoting both the CPRC and

Cayo Santiago internationally, nationally and in Puerto Rico."

-28-
Gerald also produced a letter written by Kraiselburd in September

2006 when Gerald was initially evaluated for the promotion from

Assistant to Associate Professor. In the letter, Kraiselburd

offered his "highest recommendation" for Gerald's promotion and he

heralded the pair's "excellent working relationship," stating that

Gerald had "far exceeded any of our expectations."

Gerald also disagreed that she was not fulfilling her job

responsibilities. Pointing to her personnel file and the CPRC

operational grant, Gerald averred that her list of duties as

Scientist in Charge was shorter than Kraiselburd said it was, and

that the duties she was accused of neglecting were not actually

hers to perform. Specifically with respect to the fee billing

failure, Gerald says that assessing fees was a group effort and

that it was López not her who was in charge of invoicing the fees.

For support Gerald points to a document which she calls the CPRC's

standard operating procedure, which does seem to support the

proposition that she was not in charge of invoicing, though it is

not totally clear what role she had in the billing team effort.8

In her deposition Gerald also testified that while she was

Scientist in Charge it was very unclear who was responsible for the

8
The document indicates that visiting scientists submitted
the amount of time they would be conducting research on Cayo
Santiago to the Secretary/Administrator of Cayo Santiago and that
invoices were then submitted to CPRC headquarters. The Scientist
in Charge worked with the secretary to determine who was present on
the island for additional biannual invoices that were prepared for
the scientists' home institutions.

-29-
genetic data. Gerald testified that she was only obliged to

perform certain tasks with the data, like organizing it, but not

other aspects, like gathering it.

As for Kraiselburd's claim that she was not maintaining

a physical presence at work, Gerald testified she was never given

any direction as to how many hours she had to work in a week, how

many times she had to go to Cayo Santiago, or how many hours she

had to be in the office. She testified that she often worked from

home and on average she worked long hours and seven days a week,

even if she was not physically present in the office.

Gerald also addressed the critiques about how she

conducted herself on Cayo Santiago. She offered the deposition of

Félix Román Oquendo, a Cayo Santiago employee. Román disputed the

notion that Gerald forced boat personnel out in dangerous

situations. He testified that it was actually the visiting

scientists, and in one instance Kraiselburd, who did this. Román

said Gerald simply tried to mediate between the researchers and

boat personnel and that she was respectful of the latter's

assessment of ocean conditions.

As for the incident where Gerald called Viera an asshole,

Gerald testified that she was just joking and that she did not

understand the complexities of the Spanish word cabrón. Román also

testified about this incident and he had a similar take. Román

said Viera told him that it was not a big deal because he and

-30-
Gerald were just fooling around. Román said they were all very

close and often joked around or spoke crassly. At his deposition,

Román also theorized that Kraiselburd was trying to manufacture

employee complaints in an effort to oust Gerald. As an example

Román cited the name calling incident, which he said had long been

forgotten when Kraiselburd came around a few months later (and

about a month after Kraiselburd propositioned Gerald) asking about

it. At this time, Viera wrote the letter cited above, though Román

theorized that based on how Viera speaks and how the letter reads,

it was not actually Viera who put pen to paper.

Also in contrast to the sometimes impertinent language

Gerald used in her emails, there was also evidence of good natured

back and forth between the pair. One case in point, in the midst

of one of their spats Gerald told Kraiselburd: "You succeed at

whatever you want to accomplish. It is my confidence in you which

convinces me of your actions or lack thereof." When Kraiselburd

said he was ill, Gerald responded: "I am so sorry. Rest, please

rest." And after yet another squabble, she wrote: "I am sorry for

the trouble and I understand your position and shall contact you in

the future."

"Faced with a motion for summary judgment, it was

[Gerald's] burden to establish that there existed evidence creating

a trial-worthy claim." Hernández-Loring, 233 F.3d at 53. We think

she did that. Gerald presented evidence of questionable comments

-31-
made by Kraiselburd over email directly before and after he

propositioned her as well as evidence that countered the notion

that she was not performing well in her job.9 With this evidence

Gerald put forth a trial-worthy claim that Kraiselburd used

Gerald's reaction to unwelcome harassment as a basis for decisions

that affected the terms of her employment. The district court

erred in granting summary judgment on Gerald's quid pro quo

harassment claim.

B. Retaliation

Title VII makes it unlawful for an employer to

discriminate against an employee who has opposed an unlawful

employment practice. 42 U.S.C. § 2000e-3(a). To make out a prima

facie case of retaliation under the familiar McDonnell Douglas

9
The evidence as to the timing of things bears noting.
Gerald was stripped of the title Scientist in Charge just about two
months after she rejected Kraiselburd's advance in the hotel
parking lot. We have considered temporal proximity in the context
of retaliation claims, see Calero-Cerezo v. United States Dept. of
Justice, 355 F.3d 6, 25 (1st Cir. 2004), and other circuits have
extended it to quid pro quo inquiries, see Papelino v. Albany Coll.
of Pharmacy and Union Univ., 633 F.3d 81, 90 (2d Cir. 2011);
Frensley v. N. Miss. Med. Ctr., Inc., 440 Fed. Appx. 383, 387 (5th
Cir. 2011). There is no need to make the leap here because Gerald
has presented enough evidence to withstand summary judgment without
this temporal proximity being considered but we thought it worth
pointing out. Further noteworthy on the timing front is that the
letters the University produced critiquing Gerald's performance
also came after the rejection, even though some related to matters
that originated before (i.e., fee billing and the name calling
incident). We are not saying this establishes that Kraiselburd was
trying to drum up evidence to support Gerald's removal from her
position but all of these timing questions strike us as an issue of
material fact better left to the jury.

-32-
burden-shifting framework, a plaintiff must show that: (1) she

engaged in protected activity under Title VII, (2) she suffered an

adverse employment action, and (3) the adverse employment action

was causally connected to the protected activity. Collazo v.

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

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). If

a plaintiff makes this showing the burden swings to the defendant

"to articulate a legitimate, non-retaliatory reason for its

employment decision." Collazo, 617 F.3d at 46. If a defendant can

do this then the burden travels once more to the plaintiff to show

that the reason is pretext and that retaliatory animus was the real

motivating factor. Id.

The University contends that Gerald's retaliation

argument is waived because she failed to properly develop it on

appeal. It is likely correct. Gerald's argument was woefully

undeveloped and perfunctory. She provided case law that explained

what goes into proving retaliation and then never applied it to the

facts of her case. Gerald gave a bit more substance in her reply

brief, but this came too late. See Tejada-Batista v. Morales, 424

F.3d 97, 103 (1st Cir. 2005). Nonetheless Gerald's claim is easily

disposed of on the merits and so we address it.

Gerald has undoubtedly established the first element of

a prima facie case. It is undisputed that her filing of the

-33-
administrative sexual harassment complaint constituted a protected

activity. She does not fare so well on element two.

First, Gerald did not articulate what specific, wrongful

actions the University took against her after she filed her

complaint. Even assuming she was alleging the same instances she

did below (i.e., a constitutionally defective administrative

procedure, filing of administrative charges, and her transfer to

the Laboratory), Gerald has not shown, or even attempted to

articulate, why these actions were "materially adverse" such that

they would have "dissuaded a reasonable worker from making or

supporting a charge of discrimination." Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006). Nor did Gerald rebut the

district court's specific findings (other than to generically say

it erred) that her constitutional claim was waived because she

failed to include it in the complaint, or that the administrative

charge was stayed indefinitely, and therefore neither of these

things could constitute adverse employment actions. In sum, Gerald

has not shown that she suffered a materially adverse employment

action.

As for the causation element, Gerald says that the

temporal proximity between her sexual harassment complaint and the

University's unspecified actions was enough. We have found certain

temporal spans sufficient to make out a prima facie case for

causation in other retaliation cases. See, e.g., Harrington v.

-34-
Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 32 (1st Cir. 2012).

It is difficult to say whether timing would be enough here given

that, as we said, Gerald has not articulated what actions she is

contesting. But even assuming it is sufficient, Gerald, for the

above reasons, has failed to satisfy all three elements of a prima

facie retaliation case. The inquiry ends here; with no prima facie

case made there is no need to shift the burden to the University.10

The district court's dismissal of the retaliation claim is

affirmed.

C. Constructive Discharge

Constructive discharge typically "refers to harassment so

severe and oppressive that staying on the job while seeking redress

- the rule save in exceptional cases - is intolerable." Lee-Crespo

v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.

2003) (internal quotation marks and citation omitted). A

successful constructive discharge claim requires "working

conditions so intolerable that a reasonable person would have felt

10
Had we found that Gerald met her burden, the University had
an argument ready. It claimed to have facially legitimate reasons
for the actions it took. For support it offered evidence that,
pursuant to University regulations, filing false charges against a
co-worker (which is what the investigating officer thought happened
here) and negligence in the performance of one's duties (also
thought to have happened) was cause for disciplinary sanctions.
The University also pointed out that one of the recommendations of
the internal investigation was that Gerald not remain at Cayo
Santiago. It asserts this was the reason for Gerald's transfer to
the Laboratory, a transfer it characterizes as a precautionary
measure. However, like we said, there is no need to decide if
these reasons are in fact legitimate.

-35-
compelled to resign." Pennsylvania State Police v. Suders, 542

U.S. 129, 147 (2004). A plaintiff seeking to withstand summary

judgment must point to evidence in the record showing that just

such conditions existed. Ahern v. Shinseki, 629 F.3d 49, 59 (1st

Cir. 2010). The standard to meet is an objective one, "it cannot

be triggered solely by an employee's subjective beliefs, no matter

how sincerely held." Roman v. Potter, 604 F.3d 34, 42 (1st Cir.

2010) (internal quotation marks and citation omitted).

Gerald does not argue that Kraiselburd's harassment

compelled her to resign but instead focuses on what happened after

she filed her sexual harassment complaint. She says that her

change in title to Staff Scientist and reassignment to the

Laboratory was "painful and unendurable." Gerald cites to the

reduction of her $800 bonus, the additional gasoline and toll

costs, as well as the increased commuting time, caused by her

relocation, and the fact that she could not perform her science in

her new post. According to Gerald she was also clinically

depressed. Keeping these things in mind we ask the objective

question: did Gerald establish that her working conditions become

so intolerable that a reasonable person in her place would feel

forced to resign? See Pennsylvania State Police, 542 U.S. at 141.

The short answer is no.

The evidence showed that Gerald was moved to another

position in the CPRC. She calls this re-title to Staff Scientist

-36-
a demotion but whether this is the case is not readily apparent.

There was no evidence of what her new duties were. The only

evidence we have (assuming its trial-worthiness) is Gerald's own

letter of resignation in which she says that there was no work for

her in this new position and that she did not have access to her

subjects. Gerald makes a similar, fleeting assertion in her

deposition, stating that she had nothing to do in the Laboratory

but read; however, she never explained why reading was not job

related or job worthy. Further, Gerald did retain her

professorship in the elevated position of Associate Professor. As

for the inconveniences associated with the transfer, Gerald said in

her letter of resignation that her commute increased by a couple of

hours and there was associated gasoline and tolls costs. Gerald's

pay was also impacted as her $800 monthly bonus was reduced to $200

when she lost the Scientist in Charge title but, at the same time,

she gained a $1,000 a month pay raise with her professorship

promotion.

Viewing all of this evidence, we do not find Gerald's

working conditions, which amounted to a transfer within the CPRC

and some slight commuting inconveniences and costs, so intolerable

that a reasonable person in Gerald's place would feel forced to

resign as opposed to stay on the job while seeking redress. This

is not to say that a transfer with associated inconveniences and

costs could never constitute a constructive discharge; it just does

-37-
not in this case. See Vieques Air Link, Inc. v. United States

Dep't of Labor, 437 F.3d 102, 108 (1st Cir. 2006) (finding that

there was sufficient evidence to support a constructive discharge

finding when an employee was transferred to a different island that

he had no way of reaching by boat or plane) (citing Alicea-Rosado

v. García-Santiago, 562 F.2d 114, 120 (1st Cir. 1977) ("Doubtless

a drastic increase in commuting time and unreimbursed costs might

at some point become sufficiently onerous to justify an employee in

quitting.")).

Moreover, the timing of Gerald's resignation does nothing

to help her case. "If a plaintiff does not resign within a

reasonable time period after the alleged harassment, he was not

constructively discharged." Landrau-Romero v. Banco Popular De

Puerto Rico, 212 F.3d 607, 613 (1st Cir. 2000). Here Gerald

voluntarily resigned from the University (and immediately started

in a more lucrative position) a little over a year after the final

act of harassment and eight months after she was transferred to the

Laboratory. Her resignation came too late after the offensive

conduct and reassignment to be labeled a constructive discharge.

See id. (seven month period between harassing acts and resignation

was found to be too long to support a constructive discharge

claim); Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir.

1991) (six month period too great for a constructive discharge

claim).

-38-
 After a thorough review of the record, we agree with the

district court that Gerald did not present enough evidence to

withstand summary judgment. The court's dismissal of her

constructive discharge claim is affirmed.

LAW 17 AND 69 CLAIMS

The final piece we must address is Gerald's state law

claims against Kraiselburd. Specifically she alleges that he

violated Puerto Rico Law 17, which provides that sexual harassment

in employment is "an illegal and undesirable practice," P.R. Laws.

Ann. tit. 29, § 155, and Law 69, which prohibits gender based

employment discrimination, id. § 1321. Gerald does not advance any

new arguments here but simply says that the same facts she alleged

to support her Title VII claims against the University were

sufficient to defeat summary judgment on the state law claims.

Kraiselburd's counter is two-pronged; he alleges that Gerald's

claims are time barred and then, in the alternative, attacks the

merits advancing essentially the same arguments the University did

on the Title VII front. We will start with the timeliness

question.

A one year statute of limitations applies to Law 17, id.

§ 155m; Valentín-Almeyda, 447 F.3d at 101, and Law 69 claims,

Rodríguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 60-61

(1st Cir. 2005). See Cabrero Pizarro v. Christian Private Acad.,

555 F. Supp. 2d 316, 319 (D.P.R. 2008). Kraiselburd contends - and

-39-
Gerald does not dispute - that the last action he took that could

be considered discriminatory or retaliatory was his demoting Gerald

to Resident Scientist, which he did in a letter dated June 29,

2007.11 Gerald filed her complaint in the district court over a

year later on September 22, 2008. Gerald says this is not a

problem for two reasons: one, Kraiselburd failed to make this

statute of limitations argument in his motion for summary judgment

and two, her filing of the EEOC complaint tolled the statute of

limitations.

We are less concerned that Kraiselburd, who did advance

a statute of limitations defense in his answer, has waived this

argument by failing to raise it in the summary judgment motion. An

appellee is typically free to defend a judgment below on any ground

made manifest by the record, McGuire v. Reilly, 260 F.3d 36, 50

(1st Cir. 2001), and we are similarly free to affirm a grant of

summary judgment for any reason apparent in the record, Jones v.

Secord, 684 F.3d 1, 5 (1st Cir. 2012). The real problem here is it

is not clear based on the record whether the statute of limitations

should be tolled.

11
Kraiselburd argues that the letter which he penned dated
December 4, 2007, which memorialized Gerald's transfer to the
Laboratory, should not be considered against him for statute of
limitations purposes because it was the University that took this
action. Even though he signed the letter, Kraiselburd said he had
no power to order Gerald transferred. Gerald does not argue
otherwise.

-40-
 In Puerto Rico the filing of an EEOC complaint alleging

sex discrimination in violation of Title VII tolls the statute of

limitations on equivalent state law claims, Huertas-Gonzalez v.

Univ. of Puerto Rico, 520 F. Supp. 2d 304, 316-17 (D.P.R. 2007),

and this court has applied this principle to both Law 17 and 69

claims, Valentín-Almeyda, 447 F.3d at 101 (citing P.R. Laws Ann.

tit. 31, § 5303) (tolling a Law 17 claim); Rodríguez-Torres, 399

F.3d at 61 (tolling a Law 69 claim). We have held, at least in the

context of a Law 17 claim, and we see no reason why the same would

not apply to a Law 69 one, that there is an identicality

requirement and the extra judicial claim must be the same as that

later sought in court. Valentín-Almeyda, 447 F.3d at 101. The

defendant-employer must also be put on notice that a claim is being

pursued against him. Id.; Rodríguez-Torres, 399 F.3d at 61;

Huertas-Gonzalez, 520 F. Supp. 2d at 317.

In his brief to this court Kraiselburd claims that he was

not included as a respondent in the EEOC complaint (only the

University was he says) and that he never received notice of the

EEOC complaint. Whether either of these things would mean that

tolling would not apply is questionable. See Valentín-Almeyda, 447

F.3d at 101-02 (finding that an administrative charge that listed

the defendant supervisor as one of the individuals who

discriminated against the plaintiff and stated all the necessary

elements of a discrimination claim was enough to put the defendant

-41-
on notice and toll a Law 17 claim). But either way we cannot say

for sure. The EEOC complaint is not part of the record and so we

do not have any actual evidence of who was named, what was alleged,

or even the exact date the EEOC complaint was filed. Nor do we

have any evidence of whether Kraiselburd was actually on notice of

the complaint. Without this critical information we cannot decide

whether the statute of limitations should be tolled and therefore

cannot definitively say whether Gerald's state law claims are time

barred. We decline Kraiselburd's offer to affirm summary judgment

on timeliness grounds; the record is simply insufficient on this

point. Instead we turn to the merits of the state law claims and

these we can make quick work of.

Law 17 and 69 serve virtually the same purposes and

outlaw essentially identical behavior, and Law 69's specific

prohibition on gender discrimination overlaps with Law 17's bar on

sexual harassment. García v. Sprint PCS Caribe, 841 F. Supp. 2d

538, 564 (D.P.R. 2012). Furthermore, for our purposes, the

substantive law of Puerto Rico on sexual harassment appears to be

aligned with Title VII law; the latter's precedents being used

freely to construe the former. Hernández-Loring, 233 F.3d at 52

(finding that Puerto Rico and Title VII law match up for purposes

of a hostile work environment and quid pro quo claim). Therefore

we need not say much on this point. For the same reasons summary

judgment should not have been granted on Gerald's Title VII sexual

-42-
harassment claim, it should not have been granted on her Law 17 and

69 claims. The district court erred.

CONCLUSION

For the reasons stated, we affirm the district court's

grant of summary judgment on the retaliation and constructive

discharge claim. The grant of summary judgment on the Title VII

sexual harassment claim (both hostile work environment and quid pro

quo) and the Law 17 and 69 state law claims is vacated and those

claims are remanded for further proceedings. Costs are awarded to

the appellant. So ordered.

-43-