Lee-Crespo v. Schering-Plough Del Caribe Inc.

United States Court of Appeals
For the First Circuit

No. 03-1033

ALICE MERCEDES LEE-CRESPO,

Plaintiff, Appellant,

v.

SCHERING-PLOUGH DEL CARIBE INC.,

Defendant, Appellee.

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

[Hon. Héctor M. Laffitte, Chief U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

Angelique Doble Bravo, with whom José A. Gallart and Cristina
Alcaraz Emmanuelli were on brief, for appellant.
Luis F. Antonetti, with whom Angel L. Berberena, Jesús Cuza,
and Goldman Antonetti & Córdova PSC were on brief, for appellee.

December 31, 2003
 LYNCH, Circuit Judge. This is a same-sex employment

discrimination case in which plaintiff Alice Mercedes Lee-Crespo

seeks to hold her employer vicariously liable primarily for the

actions of her supervisor. The appeal is from the grant of summary

judgment to Schering-Plough Del Caribe, Inc., the employer. Lee-

Crespo claims that she was subjected to a hostile work environment

and constructively discharged as a result of sexual harassment by

her immediate supervisor, a female, in violation of Title VII of

the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and Puerto Rico

law. The district court held that the undisputed material facts

permitted the conclusion that the conduct of the supervisor was

boorish and unprofessional, but that the incidents were not severe

or pervasive enough to alter the terms and conditions of Lee-

Crespo's employment, and that Lee-Crespo was not constructively

discharged. Crespo v. Schering Plough Del Caribe, Inc., 231

F.Supp.2d 420, 429, 433 (D.P.R. 2002).

A jury could easily find that Lee-Crespo was subjected to

incivility. But Title VII is neither a civility code nor a general

anti-harassment code. Title VII requires, rather, that the level

of incivility or harassment must amount to either a tangible or a

constructive employment action. Furthermore, the alleged

harassment and the employment action must be causally related. The

discrimination must be based on gender or some other prohibited

category. Here, Lee-Crespo complains of a general atmosphere of

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harassment by her supervisor that she argues was so bad it drove

her out of her job and was a constructive discharge. She fails to

show that the harassment she suffered amounted to a constructive

discharge. She also complains that her failure to get a transfer

to Florida and her reassignment to a new sales territory in Puerto

Rico were tangible employment actions. But those decisions were

not made by her supervisor, but by her supervisor's superiors, none

of whom participated in any harassment. Indeed, as to the

reassignment, these upper level supervisors were being responsive

to Lee-Crespo's statements that she did not want to work with her

supervisor. There is nothing showing a causal link between any

alleged harassment and the motivation of the non-harassing managers

in these decisions. As a result, we affirm.

I.

On appeal from the entry of summary judgment, this court

views the facts in the light most favorable to Lee-Crespo and draws

all reasonable inferences in her favor. Rivera v. P.R. Aqueduct &

Sewers Auth., 331 F.3d 183, 185 (1st Cir. 2003).

Lee-Crespo provided the following account in her

deposition. On April 28, 1999, she began training with Schering-

Plough (Schering), a pharmaceutical company, and on May 19, she

began working as an entry level medical salesperson. She had no

prior experience in the medical sales field. Lee-Crespo was

initially assigned to visit doctors in the Hato Rey area of San

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Juan, Puerto Rico, but nothing in her employment offer guaranteed

her a specific sales area. Hato Rey has a high concentration of

physicians.

Mayra González was promoted from being a sales

representative to the position of district manager in June 1999 and

became Lee-Crespo's immediate supervisor in July 1999. Thus, a

neophyte manager, González, came to supervise a neophyte sales

representative, Lee-Crespo. About thirteen other employees also

worked under González's supervision. On July 4, 1999, González

told Lee-Crespo: "[Y]ou know that now I'm your supervisor and now

you have to do what I tell you to do." González also told Lee-

Crespo that she should never go to González's boss, Anita Bursian,

with a problem. The same day, González made comments to Lee-Crespo

regarding the private lives and sexual preferences of other

Schering employees. González said that she did not get along with

her ex-boss, whom she said was a lesbian and treated her badly, and

she discussed a Schering employee who, although unmarried, had

lived with and had a child with a doctor. Lee-Crespo's testimony

was that González had many "stories" about co-workers.

González repeatedly questioned Lee-Crespo about how she,

as a "rookie," had come to be assigned to the Hato Rey territory.

At one point, González told Lee-Crespo that the reason she was

assigned there was that Schering's general manager, Roberto

Mercade, was "crazy about [her] looks." González advised Lee-

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Crespo that she should become González's best friend in the company

and should tell her everything that happened at Schering. After

Lee-Crespo earned a large commission, González told Lee-Crespo to

invite her to lunch because Lee-Crespo earned more money than she

did. Lee-Crespo declined and González never asked her again.

González also bothered Lee-Crespo with meddlesome and

prying questions about her personal life and made comments about

her appearance and behavior. González asked Lee-Crespo for the

names of the stores where she bought her clothes and accessories.

González also asked for Lee-Crespo's opinion about the doctors she

visited and inquired whether she ever dated doctors. González once

told Lee-Crespo that she had always wanted to be tall and blonde

like her and commented that Lee-Crespo was "enviably thin."

The relationship had its ups and downs. At times

friendly, González was also critical of Lee-Crespo. González

accused Lee-Crespo of being very disorganized and said that her

disorganization probably explained why she did not have a husband.

González also told her that she was a mediocre sales representative

and stated that she was using her physical attributes, not her

technical knowledge, to sell Schering's products. Lee-Crespo said

that González often looked at her "in a very intimidating way." At

one point, González said "You have never married because maybe

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you're strange, "rara"?"1 González commented that Lee-Crespo and

María Montalvo, one of Lee-Crespo's co-workers, would be able to

have lunch together frequently and that she had heard that Lee-

Crespo and Montalvo got along very well. More than once, González

told Lee-Crespo that she did not appreciate the fact that she had

a job as a sales representative for Schering.

In August 1999, while González and Lee-Crespo were at a

hotel during a Schering convention, Anita Bursian complained about

having a migraine headache. When Lee-Crespo offered to get some

medication from her hotel room, González asked Lee-Crespo for her

bedroom keys and said that she would get the medication from Lee-

Crespo's room. Lee-Crespo refused to hand over her keys, and that

was that.

On several occasions, Lee-Crespo complained about

González to Anita Bursian, González's boss. She first went to

Bursian sometime between October and November 1999 and "told her

everything." But Lee-Crespo never explained on the record what

this "everything" was. Lee-Crespo also occasionally spoke

critically to other fellow employees about González and about

individual incidents.

1
Lee-Crespo interpreted this statement as an insinuation
by González that Lee-Crespo was a lesbian. In her sworn statement
of particulars filed with the Anti-Discrimination Unit of the
Puerto Rico Labor Department, Lee-Crespo stated that her co-workers
asked her: "Could it be that [González] likes you?"

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 One day in October 1999, González told Lee-Crespo's co-

workers that she had heard that Lee-Crespo was "crawling drunk" at

a wedding. The accusation was untrue. When Lee-Crespo said that

González was wrong and asked her to stop making the false

statement, González backed off and told Lee-Crespo that she could

not take a joke. On another occasion in October, González called

Lee-Crespo and, in a loud voice and with a scolding tone, accused

her of having a negative attitude and threatened to reassign her to

a new territory. In December, González informed her that she would

have to work during a week that was considered a holiday period for

sales representatives. Lee-Crespo called Schering's personnel

office and was advised that González could not require her to work

the additional week. She did not work that week.

Still, a "Performance Development Plan" for Lee-Crespo,

dated January 10, 2000, and signed by González, provided positive

evaluations of Lee-Crespo's work. Among other things, the document

notes Lee-Crespo's "[e]xcellent territory analysis," "[e]xcellent

business development," "[e]xcellent communication skills," and

"[g]ood administrative work, all reports on time."2

2
Elloy Pérez-Bracetti, a male district manager, testified
that during the period when Lee-Crespo was supervised by González,
he could not remember Lee-Crespo making any mistakes "out of the
ordinary" and that there was "nothing negative that would lead us
to say she was doing a poor job." When asked for his opinion of
Lee-Crespo's performance as a sales representative, Pérez-Bracetti
responded: "Well I found it to be fine, I found it to be normal. .
. . I did not find anything in her that was negative to where I
would have to reprimand her or anything like that."

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 On January 10, 2000, Lee-Crespo became sick with

asthmatic bronchitis and took four days of sick leave from work.

González called Lee-Crespo at home and paged her and expressed

doubts regarding her illness. On January 12, González ordered her

to fax a medical certificate evidencing her illness, even though

company policy did not require the production of such a certificate

until returning to work. At the end of that January, Lee-Crespo

became sick with acute indigestion at Schering's national

convention. When Lee-Crespo informed González that she was ill and

excused herself, González replied, "are you afraid of me?" and

asked that question "in a very disgusting way." Later during the

same convention, González commented that Lee-Crespo almost never

wore skirts, looked very sexy in skirts, and should wear them more

often. At a pediatrician's convention in February 2000, González

approached Lee-Crespo from behind, hugged her, and whispered in her

ear a request for a cookie from another table.

In February, Lee-Crespo "told Anita Bursian that this was

going so far, that [she] needed to go and that [she] wanted to

leave this hostile environment so [she] needed a transfer." Lee-

Crespo gave Bursian and González a letter for the human resources

department indicating that she wanted a transfer, but they told her

that she should deal with them, not with human resources. Bursian

and González gave Lee-Crespo the numbers to call at Schering's

offices in Florida to inquire about a transfer. Lee-Crespo was

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interviewed in Florida and was, she says, tentatively accepted for

a position there. After learning of Lee-Crespo's transfer request,

González told Lee-Crespo several times that she could not wait for

the day when Lee-Crespo would leave.

On March 8, Lee-Crespo requested an interview with

Mercade, the general manager, who called a meeting for March 13.

Before the meeting, González told Lee-Crespo that she should

resign. Five people attended the meeting: Lee-Crespo, González,

Mercade, Bursian, and Myrna Burgos (from the human resources

department). Lee-Crespo testified that she told those present at

the meeting:

That [González] was harassing me, following me, calling
me, staring at me, saying things to me . . . I said
everything, and when I was ready to tell them "hey, this
is sexual harassment, I'm not going to take it",
[González] interrupted . . . and started saying that I
was a poor employee . . . . They said "we don't have to
listen to you and this is it"; [then they] left . . . .
[T]hey never let me talk.

During the meeting, González produced a job evaluation rating Lee-

Crespo's performance as "poor." Lee-Crespo had no knowledge of

that evaluation prior to the meeting.

Lee-Crespo testified that she raised the issue of her

transfer to Florida at the meeting and that Mercade blocked the

transfer, saying that "nobody can leave without telling me, nobody

gets to transfer." Lee-Crespo said that when Mercade made that

statement, Bursian and González became aware that they had made a

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mistake in not realizing that all transfers had to go through

Mercade.

A contemporaneous memo, dated March 14, 2000, from Myrna

Burgos to the "Personnel File" describes the March 13 meeting as

follows. Burgos refers to the purpose of the meeting as "to listen

about [Lee-Crespo's] complaint of harassment" by González. At the

meeting, Lee-Crespo "read a long list of incidents and comments

connected with her uneasiness and her relationship with her

supervisor." Among Lee-Crespo's primary allegations were

González's constant threats of reassignment to a new territory,

González's accusations of disorganization and insecurity,

González's prohibitions against her talking directly with Bursian,

and González's meddling in her personal life. Lee-Crespo also

alleged that other workers in the Hato Rey territory felt equally

pressured but did not dare to talk about it.

The memo recites that González responded by saying that

Lee-Crespo did not exhibit "teamwork, communication, pri[d]e and

commitment." González noted that territory changes are frequent at

Schering, and she complained, among other things, that Lee-Crespo

did not always respond to her beeper, did not always communicate

her absences, had taken vacation in excess of her accrual, arrived

late, had low medical coverage, bad-mouthed González to other

people and bad-mouthed co-workers to González, failed to fulfill

certain administrative duties, and had not demonstrated a

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commitment to the company.3 The memo notes that Bursian spoke at

the meeting as well, but it does not document what she said.

The memo summarizes the outcome of the meeting:

After listening to both parties and to . . . Anita
Bursian, we conclude that many of the situations stated
[have] been the result of lack of positive and
constructive communication among the parties, and
communication of Ms. Lee in the improper forums . . . .
Ms. Lee was reminded that her lack of compliance with
administrative matters had repercussions in other
departments, and that it was the supervisor's duty to
point out to her the areas where her performance could
improve . . . .

Burgos's memo also confirms that Lee-Crespo requested a new

supervisor at the meeting and was told that making such a change

was not customary but could be accomplished by moving her to

another territory. González told Lee-Crespo that she could

continue to work for her. The memo notes that Lee-Crespo had

repeatedly requested that she not be reassigned to a new territory,

but indicates that she did accept the change in territory offered

to her at the meeting.

A different memo from Burgos to the personnel file

memorializes a meeting between Burgos and Lee-Crespo that occurred

on March 14, the day after the five-person meeting, at Lee-Crespo's

request. Burgos writes:

[Lee-Crespo] was greatly dismayed and tearful over the
result of the group meeting because it was her perception

3
In her sworn statement of particulars, Lee-Crespo stated
that González said at the meeting that her prior comment regarding
Lee-Crespo's drunkenness at the wedding was intended as a joke.

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 we had "gotten off on a tangent" on the matter of her
compliance with the administrative portion of her work .
. . . I asked her what it was she expected, and she told
me she had been the victim of abuse on the part of
[González], and that she expected us to reprimand
[González] . . . .

During the meeting, Burgos told Lee-Crespo that "the change in

territory eliminated the harassment situation she was alleging."

Lee-Crespo admitted to Burgos that she had failed in certain areas

of her job that were pointed out during the previous day's meeting.

Lee-Crespo also told Burgos that she was extremely lonely, had gone

into a depression because of the situation with González, and

wanted to move to Orlando where her family and friends were. The

memo indicates that Lee-Crespo was anxiously awaiting a final offer

from the Schering office in Florida. Lee-Crespo told Burgos that

"she really wanted to leave and, if an opportunity did not come up

with Schering, she was going to resign anyway."

At some point, Lee-Crespo was informed that Schering

would not agree to her transfer to Florida. Mercade, apparently,

made that decision.

She was told that she was being reassigned from the Hato

Rey territory to the Arecibo-Fajardo territory. The doctors in the

new territory were mostly dermatologists. Dermatologists do not

usually prescribe the medications that were the mainstays of Lee-

Crespo's sales. Lee-Crespo was concerned that her commissions

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would be significantly lower because she was not going to be

selling medicines that dermatologists typically prescribe.

Lee-Crespo maintains that she never agreed to a change in

territory and, in fact, wanted to remain in the Hato Rey territory.

She says that she requested a new supervisor at the meeting but did

not want a new supervisor if it meant giving up her present

territory.

Pérez-Bracetti was to become Lee-Crespo's new supervisor

effective April 1. In a memo to Lee-Crespo dated March 27, 2000,

he outlined Lee-Crespo's work duties and then added "you will not

be permitted any type of alter[c]ation and insults and/or

insubordination (this includes gossiping, rumors, altercations,

yelling, or negative communication toward me or any member of our

Division)."

Another March 27 memo from Pérez-Bracetti to Lee-Crespo

reprimanded her for failing to communicate to one of her

supervisors -- either Pérez-Bracetti or González -- her inability

to attend a certain convention that had taken place on March 25.

The memo stated that the March 25 absence was "not the first time

you have been absent from conventions and meetings," referred to

Lee-Crespo's "continuous absenteeism," and listed three previous

meetings from which Lee-Crespo was absent.

Effective April 1, Lee-Crespo received a 2.3 percent

salary increase, which was approved by González. On March 30, a

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psychiatrist issued a medical certificate diagnosing Lee-Crespo

with "severe major depression" and recommending rest from that date

until May 17. After March 30, Lee-Crespo never again returned to

work. On April 4, Lee-Crespo was sent to Schering's doctor, who,

Lee-Crespo says, suggested that she leave the company.

On April 12, 2000, Pérez-Bracetti, Lee-Crespo's new

supervisor, sent a letter to Burgos requesting that the company

take action against Lee-Crespo for comments that she made about him

to Burgos insinuating that he had a relationship with González.

Burgos had informed Pérez-Bracetti that Lee-Crespo had said "that

there was something more than co-workers between" González and

Pérez-Bracetti.

Burgos sent Lee-Crespo a letter dated May 1, 2000, that

listed certain company documents requested from her and stated that

Lee-Crespo had ignored Schering's many requests to surrender those

documents. The letter also reminded Lee-Crespo that she was

required either to submit certification from her doctor that she

was capable of continuing to drive the company car or to surrender

the car.

During April and May, Schering recovered from Lee-Crespo

the product samples in her possession and also took back the

company car. On May 18, Burgos called Lee-Crespo and offered her

three months' salary and six months' health care coverage if she

would resign. On May 19, Lee-Crespo's psychiatrist issued a second

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medical certificate, this time recommending that Lee-Crespo rest

for an indefinite period of time. Neither Lee-Crespo nor her

psychiatrist had any idea when she would recover from depression.

On June 30, 2000, Lee-Crespo resigned. Her resignation

letter stated that she was resigning because of the "voluntary and

unjustified acts of [Schering's] management that have reached such

a level of oppression and onerousness that they do not leave me any

other alternative." Lee-Crespo claims that she never got paid for

two of the months that she worked despite her requests for such

payments.4

In June 2000, Lee-Crespo moved to Florida; she was

unemployed there until April 29, 2001, when she began working as a

medical sales representative for Professional Detailing, Inc.

II.

Review of the grant of Schering's summary judgment motion

is de novo. Summary judgment should only be granted when "there is

no genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986) ("there is no issue for trial unless there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party").

4
Lee-Crespo does not argue on appeal that the refusal to
make these payments was a tangible employment action, nor does she
make any other claim as to the payments.

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 Lee-Crespo seeks to hold Schering liable primarily for

allegedly harassing conduct by her supervisor, González. The

Supreme Court's decision in Burlington Indus., Inc. v. Ellerth, 524

U.S. 742 (1998), clarified the rules of employer liability for

actions by a supervisor in a harassment case. If harassment by a

supervisor with immediate or higher authority over an employee

results in a tangible employment action against the employee, then

the employer is vicariously liable; if the harassment does not

result in a tangible employment action but is sufficiently severe

or pervasive, then the employer is still vicariously liable but an

affirmative defense is available. Id. at 754, 765. Thus, Title

VII may be violated by either explicit or constructive alterations

in the terms or conditions of employment. Id. at 752.

Explicit alterations -- that is, tangible employment

actions -- are "significant changes in employment status,"

including, but not limited to, "hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits." Id. at 761.

By contrast, constructive alterations must be severe or pervasive.5

5
In addition to meeting the "severe or pervasive"
standard, a Title VII plaintiff proceeding on a constructive
employment action theory must also show that the severe or
pervasive harassment was because of gender or one of the other
Title VII protected categories. Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998). "Title VII does not prohibit
all verbal or physical harassment in the workplace; it is directed
only at discriminat[ion] . . . because of . . . sex." Id.
(internal quotation marks and emphasis omitted); see Rivera, 331

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Id. at 752; see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 117 (2002) ("A hostile work environment claim is comprised of

a series of separate acts that collectively constitute one unlawful

employment practice." (internal quotation marks omitted)). Our

analysis concludes that Lee-Crespo neither suffered a tangible

employment action at the hands of her supervisor González nor faced

sufficiently severe or pervasive harassment from her supervisor; we

do not reach the issue of the affirmative defense.

A. Tangible Employment Action

As we understand it, Lee-Crespo's case suggests three

possible tangible employment actions: constructive discharge,

failure to allow a transfer, and reassignment.

1. Transfer

We start with the denial of Lee-Crespo's transfer

request. We assume arguendo that the thwarting of an employee's

application to transfer could, in some circumstances, constitute a

tangible employment action. But there must be a causal link

between the tangible employment action and the alleged harassment.

That is, the harassing supervisor must be the one who orders the

F.3d at 189-91 (upholding summary judgment for employer where
plaintiff was subjected to uninvited rude and unprofessional
conduct that the court assumed to be severe and pervasive but that
was not engaged in "because of" religion). The substance of the
violation is no different when the plaintiff and the harasser are
of the same sex. The motivation of the same-sex harasser must stem
from sexual desire or from same-gender hostility, or both. See
Oncale, 523 U.S. at 80.

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tangible employment action or, at the very least, must be otherwise

substantially responsible for the action.6 Here, there is no proof

that González ordered or adversely influenced the denial of the

transfer to Florida. To the contrary, Lee-Crespo made it clear

that González wanted her to transfer: González said several times

that she could not wait for Lee-Crespo to transfer.

Mercade, the general manager, had the final say whether

transfer requests would be approved or denied. There is no

evidence that González contributed to the disapproval of the

transfer by Mercade. In fact, Lee-Crespo's own testimony indicates

that González, along with Bursian, helped her to secure the

tentative offer from the Florida office by providing her with the

necessary contact information. Lee-Crespo further testified that

González and Bursian were caught off-guard when Mercade said that

all transfer requests had to go through him.

2. Reassignment

A reassignment could constitute a tangible employment

action, particularly if it caused a loss of income. But again,

there must be a causal link between the tangible employment action

and the alleged harassment and harasser. Here, there is no proof

that González was the one who caused Lee-Crespo to be reassigned.

To the contrary, González told Lee-Crespo and management at the

6
This case does not raise the issue of the company
knowingly encouraging, endorsing, or adopting the supervisor's
harassment.

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March 13 meeting that Lee-Crespo was welcome to continue working

for her in the Hato Rey territory. The reassignment decision was

made by Mercade, with the assistance of Burgos, the human resources

representative, and Bursian, the district manager. The decision

was brought about by Lee-Crespo's request that she be given a new

supervisor, and Lee-Crespo was told that having a new supervisor

meant also having a new territory. It was a reasonable response by

management to separate the alleged harasser and harassee. The

contemporaneous memorandum of the March 13 meeting reflects that

management understood that Lee-Crespo had "accepted the change in

territory." That Lee-Crespo now disputes that she ever agreed to

the reassignment does not change the fact that there is absolutely

no evidence that anyone other than non-harassers made the decision

or that gender discrimination motivated the decision to move her to

a new territory.

3. Constructive Discharge

Lee-Crespo's primary tangible employment action argument

is that the harassment by her supervisor was so unbearable that she

was forced to resign and was thus constructively discharged by

Schering and, in turn, that such a constructive discharge is a

tangible employment action. "Constructive discharge" usually

refers to "harassment so severe and oppressive that staying on the

job while seeking redress -- the rule save in exceptional cases --

is 'intolerable.'" Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 33

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(1st Cir. 2003) (quoting Keeler v. Putnam Fiduciary Trust Co., 238

F.3d 5, 9-10 (1st Cir. 2001)). In Reed, this court declined "to

adopt a blanket rule" as to whether a constructive discharge

constitutes a tangible employment action.7 Id.

To prove constructive discharge, a plaintiff must usually

"show that her working conditions were so difficult or unpleasant

that a reasonable person in [her] shoes would have felt compelled

to resign." Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28 (1st

Cir. 2002) (internal quotation marks omitted); see Melendez-Arroyo

v. Cutler-Hammer de P.R. Co., 273 F.3d 30, 36 (1st Cir. 2001). The

standard is an objective one; an employee's subjective perceptions

do not govern. Marrero, 304 F.3d at 28; Suárez v. Pueblo Int'l,

Inc., 229 F.3d 49, 54 (1st Cir. 2000). It is not enough that a

plaintiff suffered "the ordinary slings and arrows that workers

routinely encounter in a hard, cold world." Suárez, 229 F.3d at

54.

Not all of plaintiff's evidence could be taken as

evidence of sexual harassment. The comments by González, a new

supervisor, to the effect that plaintiff worked for her and

7
The circuits are split on this question, see Reed, 333
F.3d at 33 & n.2, and the Supreme Court has granted certiorari to
resolve it, see Penn. State Police v. Suders, 72 U.S.L.W. 3105
(U.S. Dec. 1, 2003) (No. 03-95) (Mem.).
This court held that it was clear "that the constructive
discharge label [could not] be used to preclude the affirmative
defense" on the facts in Reed, but left open the possibility of
such preclusion "on rare facts." Reed, 333 F.3d at 33.

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plaintiff should not go around González to González's boss are

hardly evidence of sexual harassment. The incidents that remain,

even if taken as harassment, do not rise to the level of creating

an intolerable environment.

Those incidents also did not amount to a discharge.

Among other things, the evaluation of a constructive discharge

claim takes into account how the employer responded to the

plaintiff's complaints and whether it was likely that the

harassment would continue. See Marrero, 304 F.3d at 28; see also

Lindemann & Grossman, Employment Discrimination Law 657 (C.G.

Weirich et al. eds., 3d ed. 2002 Supp.) ("Prompt remedial action

that eliminates the allegedly intolerable working conditions

operates as a complete defense to a claim of constructive

discharge."). Here, once Lee-Crespo made a complaint, management

moved swiftly. There was a meeting, both Lee-Crespo and González

were heard, and management moved Lee-Crespo away from her nemesis.

This undercuts Lee-Crespo's claim that she was forced to leave.

Lee-Crespo's argument that Schering's actions during the

time of her medical leave amounted to harassment and transformed

her resignation into a constructive discharge does not save her

claim. Lee-Crespo was on sick leave from March 31 until June 30,

the date of her resignation. There was nothing unreasonable or

harassing in asking her to give back the company car and other

equipment, inventory, and documents, or in scheduling her for an

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appointment with the company physician. As Lee-Crespo testified,

neither she nor her treating psychiatrist had any idea when she

would recover or return to work. None of Schering's conduct while

Lee-Crespo was on medical leave created working conditions that

were so difficult or unpleasant as to force a reasonable person to

resign. There was no constructive discharge.

B. Severe or Pervasive Harassment

If a supervisor's harassment did not result in a tangible

employment action against an employee, then the employee must show

that the harassment was so "severe or pervasive" that, in essence,

it altered the terms or conditions of her employment. Ellerth, 524

U.S. at 752. The employer is then vicariously liable to the

victimized employee unless the employer can successfully assert the

affirmative defense outlined in Ellerth.8 Id. at 765; Reed, 333

F.3d at 32.

All of the circumstances are examined in determining

whether a work environment is sufficiently hostile or abusive,9

8
"The defense comprises two necessary elements: (a) that
the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or
to avoid harm otherwise." Ellerth, 524 U.S. at 765.
9
On appeal, Lee-Crespo argues that the district court
improperly grouped the alleged incidents of harassment into
categories and did not consider them as a whole in assessing Lee-
Crespo's work environment. But the district court twice emphasized
that it was indeed analyzing the evidence as a whole and was aware
of its obligation to consider all of the alleged conduct together.

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including "the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes

with an employee's work performance." Harris v. Forklift Sys., 510

U.S. 17, 23 (1993); O'Rourke v. City of Providence, 235 F.3d 713,

728-29 (1st Cir. 2001). Here, the complained of conduct was

episodic, but not so frequent as to become pervasive; was never

severe; was never physically threatening (though occasionally

discomforting or mildly humiliating); and significantly, was never,

according to the record, an impediment to Lee-Crespo's work

performance.

The record establishes that Mayra González was an

inexperienced manager who had trouble navigating the boundary

between the personal and the professional. González often

displayed a disregard for professional courtesy and a penchant for

inquiring about the personal affairs of other workers (both male

and female). But a supervisor's unprofessional managerial approach

and accompanying efforts to assert her authority are not the focus

of the discrimination laws. The district court correctly concluded

on this evidence that González's conduct was not so severe or

pervasive that it altered the terms and conditions of Lee-Crespo's

Crespo, 231 F.Supp.2d at 429, 430. The court's categorization of
incidents was useful in presenting the evidence and does not appear
to have influenced detrimentally the court's analysis. In any
case, we have reviewed the evidence de novo and have reached the
same outcome.

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employment. This case is a far cry from cases in which this court

has reinstated a harassment verdict for an employee, see, e.g.,

O'Rourke, 235 F.3d at 738, or affirmed a jury verdict for an

employee, see, e.g., Marrero, 304 F.3d at 20.

III.

Lee-Crespo also brought pendent sexual harassment and

constructive discharge claims under the comparable Puerto Rico

statutes. The district court held, and Lee-Crespo concedes on

appeal, that the federal and Puerto Rico laws on sexual harassment

and constructive discharge are very closely aligned. We uphold the

dismissal of Lee-Crespo's state law claims on the same grounds that

we uphold dismissal of the federal claims.

IV.

The district court's order granting summary judgment to

Schering is affirmed. Costs are awarded to Schering.

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