United States Court of Appeals
For the First Circuit
No. 09-1247
OLGA E. AGUSTY-REYES; ARMANDO RIVERA CABALLERO,
Plaintiffs, Appellants,
v.
THE DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF PUERTO RICO;
MIGUEL HERNÁNDEZ-CRUZ,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Enrique J. Mendoza Méndez with whom Mendoza Law Offices were
on brief for appellants.
Rosa Elena Pérez-Agosto, Assistant Solicitor General, with
whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia M.
Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-
Anadón, Deputy Solicitor General, were on brief for appellee
Department of Education of the Commonwealth of Puerto Rico.
April 6, 2010
LYNCH, Chief Judge. Taking all inferences in her favor
for purposes of summary judgment, Olga E. Agusty-Reyes ("Agusty")
was repeatedly sexually harassed by her supervisor at a Puerto Rico
primary school where she taught fourth and sixth grade mathematics
between August 2005 and January 2007. After Agusty refused his
advances, the supervisor delayed evaluating her and ultimately gave
her a poor evaluation to block her receipt of tenure. When she
complained to her supervisor's supervisor at the Commonwealth's
Department of Education ("DOE"), she was not told of the DOE's
sexual harassment policy; she was instead told the only remedy she
had was to file a union grievance. Soon after she did so, the
supervisor attacked her, forcing her into his lap and sexually
assaulting her until her screams brought school security to her
rescue. The supervisor was later arrested for the attack. When
she complained again to the DOE that the ongoing harassment had now
led to a criminal attack, the DOE held a hearing on her harassment
claims against the supervisor without giving her notice or
opportunity to testify or to respond to his denials, apparently in
accord with its policy. After these proceedings, the DOE
reinstated the supervisor. Only the intervention of the police,
enforcing a protective order from the local court, prevented him
from returning to the school where she worked.
In light of the evidence and these inferences, the
district court erred in granting the DOE's motion for summary
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judgment on Agusty's claims. See Agusty-Reyes v. Dep't of Ed., No.
07-1968 (D.P.R. Jan. 8, 2009). We reverse and remand this case for
proceedings consistent with this decision.
I.
Agusty and her husband, Armando Rivera-Caballero, sued
the DOE in October 2007. They claimed discrimination and
retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq.,
as well as various provisions of Puerto Rican law. They sought
damages, declaratory and injunctive relief, and attorney's fees.1
Plaintiffs appeal the district court's January 2009 grant of the
DOE's motion for summary judgment.
The district court granted summary judgment based on its
determination that a reasonable factfinder could only reach three
conclusions. First, that the evidence compelled the conclusion
that Agusty had not suffered a tangible employment action because
ultimately she was given tenure, and the DOE was therefore entitled
to assert the Faragher-Ellerth affirmative defense. This defense
precludes an employer's vicarious liability for a supervisor's
harassment that did not result in a tangible employment action when
the employer can show both that it acted reasonably to prevent and
1
Plaintiffs also named the supervisor as a co-defendant.
Their claims against him were dismissed, because Title VII does not
create liability against individual employees. See Fantini v.
Salem State Coll., 557 F.3d 22, 28-31 (1st Cir. 2009). The
dismissal has not been challenged; this appeal concerns only the
grant of summary judgment on Agusty's claims against the DOE.
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correct sexual harassment and that its employee unreasonably failed
to avoid harm. Second, the court held that the evidence compelled
the conclusion that the mere existence of a DOE policy on sexual
harassment and the DOE's statement it had complied with aspects of
that policy satisfied the first prong of that defense because the
DOE had acted reasonably. Indeed, the court emphasized the
reasonableness of the DOE's response when confronted with the
"relatively minor wrongdoing" that preceded the criminal attack.
Third, the court held that the evidence compelled the conclusion
that the second prong of the affirmative defense was satisfied
because Agusty had been unreasonable in not filing a formal written
complaint until after she was attacked (although Agusty had
previously met with the DOE's Regional Director to complain about
the supervisor's harassment and had been told to file a union
grievance, which she did).
Each of these conclusions was error under the summary
judgment standard.
II.
On review of summary judgment, facts are taken in the
light most favorable to Agusty, the nonmoving party. Chaloult v.
Interstate Brands Corp., 540 F.3d 64, 66 (1st Cir. 2008).
The DOE has employed Agusty as a public school teacher
since 2002. In August 2005, she was transferred to the Fortuna
Playa Public School ("Fortuna School") in Luquillo, Puerto Rico, to
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teach fourth and sixth grade mathematics. At that point, Agusty
was in the midst of a two-year probationary period, which had
started in August 2004. During this period she was subject to
evaluation by her direct and immediate supervisor; at the Fortuna
School, her supervisor was School Director Miguel Hernández-Cruz
("Hernández").
Under Puerto Rican law, public school teachers are
entitled to tenure once they have completed a two-year probationary
period and have, "in the opinion of the [DOE], performed
satisfactory work." P.R. Laws Ann. tit. 18, § 214. Once tenured,
teachers are governed by special regulations, id. § 216, and are
"entitled to be contracted as permanent teachers in the
municipality where they may be teaching," id. § 214. Agusty sought
tenure while under Hernández's supervision.
Under DOE policies, as Agusty's supervisor, Hernández was
responsible for conducting regular evaluations of Agusty's
performance. He was directed to complete these evaluations once
per semester. Hernández was also required to discuss each
evaluation with Agusty before forwarding them to the DOE's Deputy
Secretary of Human Resources. The Deputy Secretary would review
and assess the evaluations before determining whether to grant
Agusty permanent status as a tenured DOE teacher.
The DOE had also established an official policy for
reporting and investigating sexual harassment allegations,
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Regulation 4661. Under that policy, victims of sexual harassment
can file complaints with the DOE's Office for the Investigation of
Administrative Complaints ("IAC") or before a designated Regional
Coordinator. The IAC is responsible for notifying accused
harrassers of the allegations against them and forwarding
complaints to senior DOE officials to take "provisional measures"
pending the adjudication of the complaint. The IAC is also charged
with filing a report about the complaint with the DOE's Legal
Division, which in turn refers the report to an administrative
judge "to adjudicate the controversy and recommend disciplinary and
corrective action." There is no evidence that the DOE publicized
this policy to its employees or informed Agusty or her supervisor
of it.
Agusty alleges that Hernández sexually harassed her from
the moment they met. He made numerous sexually charged comments to
her, described how "pretty" she was, and took opportunities to be
in physical contact with her and to look into her classroom to see
her. Hernández insisted all meetings with Agusty take place in
private and told her he would give her a good evaluation if she
would "touch him." This harassment was frequent and blatant.
Agusty's colleagues, students, and students' parents observed and
commented on Hernández's behavior. When Agusty declined his
advances, Hernández sent her "intimidat[ing]" memos in which he
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claimed "he would destitute" her and called her "dumb" and
insubordinate.
In May 2006, with the end of her two-year probationary
period pending and having received no evaluations from Hernández,
Agusty asked him for a copy of her semesterly evaluation, which was
long overdue. Hernández replied that he did not have a copy and
that she would have to request one from the DOE's human resources
office. When she did so, the office told her that it had never
received her evaluation from Hernández. There is no evidence that
Hernández had prepared such an evaluation as he was required to do.
Agusty complained to DOE officials senior to Hernández.
After several months of trying to arrange a meeting, on September
12, 2006, Agusty met with the DOE's Regional Director, Héctor
Medina Delgado and reported all of Hernández's actions up to that
point. Delgado offered Agusty no help; instead he told her "to go
seek help from the Teachers Federation" ("the union"). He did not
inform her of the DOE's sexual harassment policy, nor did he direct
her to submit an administrative complaint. One can infer he was
either unaware of the policy or its requirements or deliberately
misled her. Indeed, the only immediate action Delgado took in
response to Agusty's meeting was to send Hernández a letter, that
same day, explaining that his office had received no evaluations of
Agusty's teaching performance and urging Hernández to perform and
submit the required evaluation "as soon as possible."
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Agusty followed up on her meeting with Delgado in a
letter, dated September 25, 2006; she copied Hernández, a
representative of the union, and individuals identified as
"Superintendent" and "Secretary Department of Education." The
letter explicitly referred to Hernández's "inappropriate conduct"
toward her. The letter also referenced the September 12 meeting
and stated that Agusty had later provided Delgado with a copy of a
document, drafted and signed by her supervisor, Hernández. The
document from Hernández, apparently in response to Agusty's request
that she be evaluated, stated that she had not met "the percentage
required in [her] summative evaluation and that she "had presented
. . . shady behavior."
Agusty's letter further reported an incident during the
week of September 18, 2006, in which Hernández gave Agusty a note
about the probationary period that made her "feel intimidated
again." Agusty stated that she had still not seen a copy of her
evaluation, and asked for "an authentic evaluation according to the
parameters established by the Department of Education." She also
stated that if Hernández continued his "inappropriate conduct
toward [her] person," she would take additional action. Delgado
took no action on the letter and made no further inquiry into
Hernández's continuing inappropriate behavior.
On September 27, 2006, Hernández finally submitted
Agusty's formal evaluation to the DOE for the whole period of her
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employment. He gave her an overall rating of 53 percent, which
placed her in the lowest of five possible categories, indicating
"deficient professional performance." Although Hernández was
required to discuss the evaluation with Agusty, he did not do so.
He also failed to break down Agusty's assessment by semester. And
despite Agusty's many earlier requests to see her evaluation, he
did not provide her with a copy. Agusty first became aware of the
evaluation and its contents on November 16, 2006, when she and a
union representative met with Hernández.
On December 7, 2006, Agusty filed a formal "Step I"
complaint with the union, as she had been advised to do by the DOE
Regional Director, Delgado. She sent copies of her complaint to
the DOE and to Hernández. In her complaint, Agusty alleged that
Hernández had made and continued to make "sexual overtures" toward
her, had "harass[ed]" her "from the work standpoint," and had
failed to evaluate her "in any diagnostic or formative manner."
The complaint petitioned for Hernández to "cease and desist in
harassing [Agusty] sexually and on the job," for his assessment of
her to be revised and "checked against [her] evidence," and for her
to "be evaluated by an impartial party." Hernández denied the
complaint, calling it "frivolous." The Regional Director, Delgado,
apparently did not notify other DOE officials of the sexual
harassment allegations or advise Agusty to file a complaint under
the formal sexual harassment policy.
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The DOE took no action in response to Agusty's complaint
through the union. About two weeks later, Agusty filed a "Step II"
complaint with the union reiterating her concerns, including the
harassment allegations and petition for relief. Again the DOE did
nothing. The complaint was again copied to Hernández, who refused
even to accept the document.
Instead, after Agusty had formally accused him of
harassment, Hernández intensified his harassment of Agusty. At
some point after the second complaint was filed, Hernández sent
Agusty a memo containing false accusations against her. Agusty
sought guidance from a union representative, who advised her she
had to respond to Hernández's allegations.
On the morning of January 19, 2007, Agusty went to
Hernández's office to deliver a response to his memo. At that
point, he pulled her down, forcing her to be seated on his lap, and
began to "touch her intimate parts." Agusty "screamed asking for
help and kicking." A security guard, typist, and several parents
heard her screams and cries for help and came to her assistance.
They found Agusty in Hernández's lap with her back toward him and
his hands on her shoulders. The police arrived at the school soon
afterward.
Later that morning, Agusty went to the Luquillo police
department to file a sexual assault complaint. That same day, she
obtained a protective order in a Puerto Rico district court.
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Agusty ultimately filed criminal charges against Hernández with the
Puerto Rico Police Department; a judge found probable cause for
Hernández's arrest on charges of lascivious acts, set bail at
$10,000, and ordered him to wear an electronic monitoring device.
The local court repeatedly renewed Agusty's protective
order over the ensuing months.2 Although the order's restrictions
varied over time, it always barred Hernández from Agusty's home and
those of her relatives.
On January 22, 2007, Agusty filed a formal sexual
harassment complaint with the DOE's IAC, pursuant to Regulation
4661. The complaint described Hernández's seventeen months of
harassment of Agusty, from her first days of work and up through
the January sexual assault. That same day, the DOE ordered
Hernández to report to a professional development center. On
January 23, 2007, the DOE formally suspended him, with pay, from
the Fortuna School. Along with his notice of suspension, Hernández
was informed of a forthcoming administrative hearing, at which he
would "have the right to state [his] version and to show cause why
[he] should not be dismissed." The victim, Agusty, received no
notice of the hearing. Delgado, the Regional Director, did receive
notice but did not inform Agusty.
2
The protective order was to remain in force pending the
resolution of criminal proceedings against Hernández. It was still
in effect as of April 14, 2008.
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In the weeks before the hearing, the IAC investigation
unit prepared its report. An investigator reviewed Agusty's
written complaint but apparently did not interview her. The
investigator also spoke with or reviewed statements by two
teachers, several students, Hernández's assistant, and the security
guard who witnessed the end of the incident on January 19, 2007.
The investigator apparently never obtained, or even looked at, the
police report or court records. A jury could find the
investigation was cursory. Still, there was some confirmation of
Hernández's particular attentions to Agusty; there was also
confirmation of Agusty's screams for help and that she was found
screaming in Hernández's lap, had to be helped out, and, from her
appearance, was in shock.
The DOE hearing was held on February 21, 2007. Although
the proceeding was purportedly intended to assess the merits of her
claim, Agusty was not informed of the hearing and did not attend.
It can be reasonably inferred from this that the DOE's official
policy on sexual harassment complaints was to afford a hearing to
the alleged harasser but not to take testimony from the individual
who claimed harassment and instead to rely on the original written
complaint. Hernández was present and represented by counsel.
The examining officer reviewed documentary evidence,
including Agusty's complaint, the investigator's report, and the
statements the investigator reported had been made by staff and
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students at the Fortuna School, on which the report had relied.
This documentary evidence was provided to Hernández and his
attorney before the hearing.3 Hernández's counsel made arguments
in his defense, and Hernández offered extensive testimony on his
own behalf.4 Hernández also submitted sworn statements from six
teachers at the Fortuna School, vouching for his professional
conduct.
Based solely on the evidence presented at this ex parte
proceeding, the examining officer prepared a report recommending
that the disciplinary action be dismissed. The examining officer
reached his conclusion because, having "had the opportunity of
listening to [Hernández's] evidence," he considered Hernández's
version of events–-the only version presented by testimony at the
hearing--"worthy of our full credibility." By contrast, the
examining officer considered Agusty's written statement not
credible, observing (without further explanation) that it
3
The DOE did not put the vast majority of the exhibits
reviewed by the examining officer into the record on appeal. These
exhibits were also not presented before the district court. As a
result, a variety of potentially significant documents that were
made available to the examining officer, including letters
supposedly sent by Hernández to Agusty on November 27, 2006, and
January 18, 2007, and evaluations of Agusty's performance before
her arrival at the Fortuna School, are not before us.
4
Hernández's defense was that he had never mistreated
Agusty and that she had "fabricated" the sexual harassment
complaint in response to his negative evaluation of her
performance.
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"denote[d] an attitude of getting even against [Hernández] for the
negative evaluations."
The DOE's legal division reviewed the examining officer's
report and, in early August 2007, recommended the dismissal of the
disciplinary action against Hernández. There is no indication that
the legal division conducted an independent review of the evidence,
nor did the DOE give Agusty an opportunity to testify. This is
consistent with Regulation 4661, which does not provide for review
of the adjudicator's decision nor identify any opportunities for
alleged victims of sexual harassment to present their version of
events once they have submitted their complaints.
Shortly thereafter, the DOE reinstated Hernández as
director of the Fortuna School, effective August 10, 2007. With
his return looming, Agusty's protective order was expanded on
August 20, 2007, to prohibit Hernández from entering Agusty's place
of employment, the Fortuna School. When Hernández returned to the
Fortuna School, where Agusty was working, he was detained by police
officers for violating the protective order. In light of the
order, the DOE referred Hernández for transfer to another school.
Following Hernández's transfer, Agusty was re-evaluated
by new supervisors at least twice, on April 21, 2007, and May 21,
2007. She received ratings of 86 percent and 94 percent overall,
which placed her in the second-highest category, reflecting
"superior professional performance." On the basis of these
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evaluations, Agusty was awarded tenure on November 9, 2007,
retroactive to August 2006.
III.
We review the district court's grant of summary judgment
de novo. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 29 (1st Cir.
2007). We affirm only if there is no genuine issue as to any issue
of material fact and the movant is entitled to judgment as a matter
of law. Id. The record viewed in the light most favorable to
Agusty presents issues of material fact on Agusty's hostile work
environment and retaliation claims under Title VII.
A. A Reasonable Jury Could Find That Agusty Suffered Sexual
Harassment Amounting to a Hostile Work Environment
Agusty's first Title VII claim is that the DOE is liable
as her employer for the alleged sexual harassment by Hernández, her
direct supervisor.5 In particular, she claims that Hernández's
longstanding abuse created a hostile work environment and sets
forth facts that would support a quid pro quo claim as well.
We have described six elements that plaintiffs must
establish to succeed on hostile work environment claims against
their employers.6 See Valentín-Almeyda v. Municipality of
5
The Supreme Court has read Title VII to include sexual
harassment as a form of gender discrimination under certain
circumstances. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 78 (1998); see also Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27,
31 (1st Cir. 2003).
6
The six elements are:
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Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006). The district court
correctly found that Agusty could establish all of the elements of
an abusive work environment except for a basis for employer
liability. On appeal, the DOE attempts to argue that the court
erred in finding Agusty could show mistreatment that was "severe or
pervasive." A reasonable jury could undoubtedly find that the
seventeen months of abuse by Hernández chronicled in the summary
judgment record was sufficiently severe and pervasive for a sexual
harassment claim under Title VII. This case turns exclusively on
the final element, whether there is a basis for employer liability.
The Supreme Court has articulated clear rules governing
employers' liability for a supervisor's wrongdoing against an
employee. These rules are designed "to accommodate the agency
principles of vicarious liability for harm caused by misuse of
supervisory authority, as well as Title VII's equally basic
(1) that she (or he) is a member of a protected
class; (2) that she 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 plaintiff's employment and create an
abusive work environment; (5) that sexually
objectionable conduct was both objectively and
subjectively offensive, such that a reasonable
person would find it hostile or abusive and the
victim in fact did perceive it to be so; and (6)
that some basis for employer liability has been
established.
Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st
Cir. 2006) (quoting O'Rourke v. City of Providence, 235 F.3d 713,
728 (1st Cir. 2001)).
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policies of encouraging forethought by employers and saving action
by objecting employees." Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 764 (1998).
When a supervisor's harassment of an employee results in
a "tangible employment action against the employee," the employer
is vicariously liable for the "actionable hostile environment
created by [the] supervisor." Id. at 765; see also Lee-Crespo v.
Schering-Plough Del Caribe Inc., 354 F.3d 34, 43 (1st Cir. 2003).
Tangible employment actions include "hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits." Ellerth, 524 U.S. at 761. "[T]he harassing supervisor
must be the one who orders the tangible employment action or, at
the very least, must be otherwise substantially responsible for the
action." Lee-Crespo, 354 F.3d at 44. No defense of reasonableness
is available. See Arrieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d
75, 86 (1st Cir. 2006). This makes the question of whether the
harassment by the supervisor resulted in a tangible employment
action an important step in the analysis. If Hernández's actions
could be found to have resulted in tangible employment action, the
DOE would be liable, and no affirmative defense would be available.
Employers are also vicariously liable for a supervisor's
"severe and pervasive" harassment that does not result in a
tangible employment action; the difference is that in such
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instances employers may be able to invoke a two-part affirmative
defense. Ellerth, 524 U.S. at 765. This affirmative defense, the
Faragher-Ellerth defense, requires a defendant employer to show
both (1) "that its own actions to prevent and correct harassment
were reasonable" and (2) "that the employee's actions in seeking to
avoid harm were not reasonable." Chaloult, 540 F.3d at 66 (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Ellerth,
524 U.S. at 765); see also Torres-Negrón v. Merck & Co., 488 F.3d
32, 40 n.5 (1st Cir. 2007); Arrieta-Colon, 434 F.3d at 86; 1
Barbara T. Lindemann et al., Employment Discrimination Law 1365-76
(4th ed. 2007).
The DOE argues that Agusty cannot show a tangible
employment action and so it may claim the Faragher-Ellerth defense.
In the alternative, the DOE argues that its sexual harassment
policy, coupled with Agusty's not filing a formal complaint under
Regulation 4661 until January 2007, satisfy Faragher-Ellerth's two
prongs and entitle it to summary judgment on the basis of the
affirmative defense.
On these facts, a reasonable jury could easily find that
Agusty suffered a tangible employment action. This alone is
sufficient for Agusty to survive summary judgment, as such a
finding would render the Faragher-Ellerth defense unavailable to
the DOE.
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Beyond that, a reasonable jury could also find that the
DOE failed to satisfy either or both prongs of the Faragher-Ellerth
defense, even if no tangible employment action was present. A
trier of fact could find that the DOE did not act reasonably to
prevent and respond to instances of sexual harassment and also that
Agusty acted reasonably to avoid further harassment. As a result,
the DOE is unable to satisfy either prong of the defense at the
summary judgment stage and was not entitled to judgment.
1. Tangible Employment Action
The DOE asserts that Agusty has not suffered a tangible
employment action since she "was never fired, demoted, or
reassigned from her post" and ultimately received tenure,
retroactive to August 2006. The argument misses the point.
The Supreme Court's list of tangible employment actions
in Ellerth was not exhaustive, and it explicitly includes "failing
to promote" and "a decision causing a significant change in
benefits." Ellerth, 524 U.S. at 761; see also Lee-Crespo, 354 F.3d
at 43; Reed, 333 F.3d at 32-33. It is undisputed that, as Agusty's
supervisor, Hernández was required to evaluate Agusty's performance
as a teacher at specific times and that his evaluation played a
pivotal role in the DOE's assessment of her eligibility for tenure.
The record permits a finding that Hernández resisted evaluating
Agusty for months and then gave her a dismal review when she
refused to "touch him." By contrast, Agusty's later supervisor
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gave Agusty two strong evaluations, whereupon she quickly received
tenure.
On this record, there are several theories on which a
jury could find Hernández's actions resulted in tangible employment
actions. The grant or denial of tenure could be viewed as similar
to a decision whether to promote, a well-recognized tangible
employment action. A failure to grant tenure could also lead to a
meaningful change in an employee's benefits in an up-or-out
situation at a time when budgetary constraints loomed. Finally, a
reasonable jury could certainly find that both Hernández's
deliberate delay in evaluating Agusty's performance and his harshly
critical assessment, which was directly linked to the tenure
decision, adversely impacted Agusty's employment by delaying her
receipt of tenure and the job security that would accompany it.
See Ellerth, 524 U.S. at 761.
2. The Faragher-Ellerth Defense
Even if there were not a jury issue on whether there had
been a tangible employment action, the DOE was also not entitled to
summary judgment on the basis of the Faragher-Ellerth defense. The
DOE argues that (1) its sexual harassment policy and the remedial
measures it took in response to Agusty's January 2007 complaint
satisfy the first prong of the defense, and (2) Agusty's failure to
use the established procedure until she filed that complaint in
January satisfies the second. Both arguments clearly fail.
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The Faragher-Ellerth defense was designed to protect only
those responsible employers who have established effective sexual
harassment policies and responsive grievance processes. Id. at
764-65. To that end, an employer must carry its burden on both
prongs to succeed in maintaining the defense. Faragher, 524 U.S.
at 805; Arrieta-Colon, 434 F.3d at 86. We assess the DOE's claims
on each prong of Faragher-Ellerth independently, "recognizing that
there may be a relationship between the two." Chaloult, 540 F.3d
at 73. Both prongs involve a "judgment call as to reasonableness,"
which "is itself a jury issue unless no reasonable jury could
decide it in the plaintiff's favor." Reed, 333 F.3d at 34.
As to the first prong, the DOE contends that its adoption
of Regulation 4661 and its swift response to Agusty's January 2007
complaint constituted "reasonable care to prevent and correct"
sexual harassment. The argument fails for at least two independent
reasons.
First, there is no evidence that the DOE made the
slightest effort to communicate its policy, whether or not it was
reasonable on its face, to any of its employees, let alone to its
regional directors, its supervisors, or Agusty. An employer's
failure to show that it had "established and disseminated an anti-
discrimination policy, complete with a known complaint procedure"
can prevent it from successfully claiming the Faragher-Ellerth
defense. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 21 (1st Cir.
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2002) (emphasis added); cf. Chaloult, 540 F.3d at 74 (noting
evidence at summary judgment that employer "had trained its
employees regarding its policies, and that [plaintiff] knew of
these policies"); Reed, 333 F.3d at 34 (noting evidence at summary
judgment that defendant "offered evidence . . . both of its own
procedures and of efforts to publicize them"). On these facts, a
reasonable jury could conclude that the DOE's failure to
disseminate its sexual harassment policy and complaint procedure
prevented it from satisfying the first prong of Faragher-Ellerth.
Further, independent issues of fact exist as to whether
the policy itself, both on its face and as administered,
constituted "reasonable care to avoid harassment and to eliminate
it when it might occur," Faragher, 524 U.S. at 805. As Agusty's
experience illustrates, the DOE's application of Regulation 4661
affords victims no opportunity to testify in support of their
complaints once they are filed or to reply to the alleged
harassers' testimony. By contrast, those accused of sexual
harassment are given an ex parte proceeding at which they can
present their version of events, with counsel, without fear of
rebuttal testimony or corroborative evidence from alleged victims
and witnesses. Victims are not even given notice of the hearing.
Indeed, in this case, the examining officer's decision turned on a
credibility determination that weighed Hernández's live testimony
against Agusty's written statement, when she was given no
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opportunity to testify in person. A jury could readily find that
these procedures were inherently unreasonable. A jury could also
find that the investigation here was so cursory as to be
inadequate.
On the second prong, the DOE asserts that Agusty
unreasonably failed to take advantage of its procedures, claiming
"[t]he record is clear . . . that she never provided a detailed,
full version of the alleged facts to the [DOE] until after her
January 22, 2007 complaint."
The DOE's position seems to be that an employee only acts
reasonably if the employee follows the DOE's formal procedure, and
that it is entitled to ignore any notice of harassment that is
outside of the procedure. But a reasonable jury could find
otherwise: that based on the two union complaints, at least one of
which was copied to the DOE, and her meeting with Delgado,7 Agusty
had exercised "reasonable care . . . to prevent harm that could
have been avoided." Id. A jury could also reasonably find that
the DOE had an obligation to investigate Agusty's complaints of
both a harassing atmosphere and quid pro quo harassment before
7
It is not clear from the record whether Delgado, the
DOE's Regional Director for Agusty's region, was also the DOE's
"Regional Coordinator" for purposes of Regulation 4661. However,
Delgado was clearly a senior DOE official who, in response to
Agusty's description of Hernández's sexual harassment, gave her
explicit––albeit incorrect––guidance on how to report the abuse.
Nonetheless, as neither party has claimed otherwise, we assume,
arguendo, that Agusty's meeting with Delgado did not qualify as a
formal complaint under Regulation 4661.
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Hernández would give Agusty a favorable tenure evaluation. A jury
could easily reject the DOE's apparent position that no reports of
harassment short of formal notice of sexual assault are sufficient
to satisfy an employee's obligation under Faragher-Ellerth's second
prong.
Even if the precise complaint procedure bore
significance, on this record, a reasonable jury could find that
Agusty was never informed of any procedures for reporting incidents
of sexual harassment. As a result, she spent months trying to
arrange a meeting with the DOE's Regional Director. When she
finally secured a meeting with him in September 2006, she says that
she thoroughly detailed Hernández's behavior. Shortly thereafter
she followed up on the meeting with a letter to the Regional
Director and other DOE officials, in which she again referenced
Hernández's "inappropriate conduct toward [her] person." In early
December 2006, acting on the Regional Director's explicit
instructions, Agusty filed a formal complaint with the union,
asserting that Hernández had made "sexual overtures" toward her.
A copy of this complaint was sent to the DOE. About two weeks
later, she reiterated her allegations in a second complaint to the
union.
A jury could undoubtedly conclude that Agusty's concerted
efforts to report Hernández's inappropriate behavior well before
her January 22, 2007, complaint, constituted an altogether
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reasonable attempt to avoid further harm. Cf. Chaloult, 540 F.3d
at 67 ("At no time prior to her resignation did [plaintiff]
complain about sexual harassment.").
Further, the DOE's arguments show a misunderstanding of
its obligations under Title VII as to sexual harassment in other
ways. A complainant need not, on a first report to the employer,
give a "detailed, full" report to put the employer on notice. When
a supervisor's behavior is at issue, an employee need only make
"reasonable" use of the reporting procedures provided by her
employers to render the Faragher-Ellerth defense unavailable.
Faragher, 524 U.S. at 807; see also Chaloult, 540 F.3d at 66;
Arrieta-Colon, 434 F.3d at 86.
B. A Reasonable Jury Could Find That Agusty Suffered
Prohibited Retaliation, 42 U.S.C. § 2000e-3
Agusty also brought a claim under Title VII's anti-
retaliation provision, which, inter alia, forbids discrimination
against employees because they have opposed practices that are
unlawful under Title VII. 42 U.S.C. § 2000e-3. To prevail, Agusty
must show "that (1) she engaged in protected activity; (2) she
suffered some materially adverse action; and (3) the adverse action
was causally linked to her protected activity." Dixon v. Int'l
Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007).
The relevant inquiry for purposes of Agusty's retaliation
claim is not whether Agusty suffered an "employment action," but
instead whether she experienced a materially adverse action, that
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is, mistreatment that "could well dissuade a reasonable worker from
making or supporting a charge of discrimination." Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); see also Dixon,
504 F.3d at 81. A reasonable jury could conclude that the
intensification of Hernández's harassment, following Agusty's
several reports to the DOE and Hernández's supervisor and
culminating in the sexual assault, met this requirement.
The timing of this escalated harassment creates a
reasonable inference that Hernández's behavior was motivated by
Agusty's protected activity. See Wyatt v. City of Boston, 35 F.3d
13, 16 (1st Cir. 1994) (per curiam) ("One way of showing causation
is by establishing that the employer's knowledge of the protected
activity was close in time to the employer's adverse action.").
Hernández completed his harsh evaluation about two weeks after
Agusty first described his conduct to the DOE's Regional Director
and two days after he was copied on a letter related to that
meeting.
IV.
We reverse the district court's grant of summary judgment
in favor of the DOE and remand for further proceedings consistent
with this decision.
So ordered.
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Agusty-Reyes v. Department of Education of the Commonwealth of Puerto Rico
Court: Court of Appeals for the First Circuit
Date filed: 2010-04-06
Citations: 601 F.3d 45
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