Rosario v. Department of Army

United States Court of Appeals
For the First Circuit

No. 08-2168

RUTH ROSARIO,

Plaintiff, Appellant,

v.

THE DEPARTMENT OF THE ARMY, et al.,

Defendants, Appellees.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Baldock,* and Lipez, Circuit Judges.

Vladimir Mihailovich for appellant.
Rebecca E. Ausprung, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney; R. Brian Bohlen, Special Assistant United
States Attorney; and Ginette Milanés, Assistant United States
Attorney, were on brief, for appellees.

June 2, 2010

*
Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Appellant Ruth Rosario brought

this suit against the Department of the Army and several

individuals,1 alleging that a two-year campaign of sexual

harassment by her co-worker at an Army medical clinic subjected her

to a hostile work environment in violation of Title VII of the

Civil Rights Act. See 42 U.S.C. § 2000e-2(a)(1). In granting

summary judgment for the defendants, the district court concluded

that the alleged conduct amounted only to a lack of courtesy and

professionalism rather than gender-based harassment sufficiently

severe or pervasive to create a hostile work environment. See

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

On de novo review, the record does not permit that

conclusion. We therefore vacate the summary judgment and remand

for further proceedings.

I.

We recount the facts in the light most favorable to

appellant and likewise draw all inferences in her favor. See

Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 468 (1st Cir. 2010).

Rosario, a civilian employee with the Department of the Army, was

transferred to the Rodríguez Army Health Clinic at Fort Buchanan,

1
The other defendants are Dr. Francis J. Harvey, who was
Secretary of the Army when the lawsuit was filed; Pete Geren,
Harvey's successor in the position; Ivan Arroyo, Rosario's
supervisor and the alleged harasser; and Lieutenant Colonel (LTC)
Kyle D. Campbell, who was in charge of the health clinic during the
relevant time period.

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Puerto Rico, in February 2001. In her position as a medical

records technician, she worked at the clinic's front desk, and her

duties included checking patients in upon their arrival and

maintaining computerized health records. Defendant Arroyo, another

civilian clinic employee who worked in close proximity to Rosario

and performed similar duties, trained her. Beginning in March

2001, when Arroyo believed that Rosario planned to apply for an

open supervisor's position, he began criticizing her to other

employees and expressing doubts about her abilities.

In April 2001, after Saldine Strassner was appointed to

fill the vacancy, Arroyo's treatment of Rosario and others at the

clinic became abusive on a daily basis. He would throw medical

records around, throw personal belongings into the trash, and

disparage his co-workers with derogatory names and racial comments.

According to Rosario, an African-American woman identified as

Private Carter broke down in tears at one point and ultimately left

the section "due to the continue[d] daily hostile environment

cause[d] by [Arroyo]." In late April, according to Rosario, Arroyo

started to make her life miserable by, inter alia, constantly

complaining about the way she dressed, always watching the clock

when she conversed with patients, and "telling doctors [who worked

at the clinic] about [his] personal opinion about my person." She

claimed he would complain about her spending time talking with

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patients, but made no comments when other employees talked or joked

with them.

In May 2001, Arroyo started bringing people to the

section to look at Rosario's clothes, which he criticized as overly

revealing, and he pointed out to the others that her underwear was

visible. Another clinic employee, Miguel Hernández, testified that

Arroyo repeatedly told him that Rosario's clothing made him

"uncomfortable."2 Hernández reported that Arroyo would "talk[]

about her underwear and especially her panties" within five feet of

where Rosario sat, "right behind her back, and she could listen to

that, when she was talking to the patients."3 Between July 2001

and January 2002, Arroyo continued to closely observe Rosario

whenever she conversed with patients, at times walking behind her

and making faces as he looked at the person with whom she was

speaking. These criticisms and behaviors occurred on a daily

basis.4

2
Hernández and others whose testimony is reported in this
factual summary appeared as witnesses at an evidentiary hearing
conducted by the Army's Equal Employment Opportunity (EEO)
investigator on July 3, 2004.
3
At the EEO hearing, Arroyo explained that he and Rosario sat
in close proximity to each other, and the way she sat, "her
underwear was being exposed. The backside was being exposed to
me."
4
When asked how many times Arroyo brought people to see her
underwear, she replied: "[I]t was almost every day. Every day he
have something to say with my clothes."

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 Throughout the first half of 2002, Arroyo regularly

complained to Rosario about various issues: the family pictures and

other personal items, including food, on her desk; "[t]he way [I]

walk, move, talk." He threw away Rosario's food and removed the

other items from her desk. He continued to voice concerns about

the way she dressed "and have everybody come to my area and check

me out." A patient stopped her one day at the post store and

advised her to watch out for Arroyo because he was talking about

her negatively to others. An employee who worked in another

section of the clinic, Olga Cournier, testified that Arroyo would

"call the other guys, guys not necessarily that work there" to

Rosario's area, where they would "meet and talk, and then point at

her and then laugh."5

A supervisor, Staff Sergeant Pedro Maldonado, brought

Rosario and Arroyo together in March 2002 to discuss the

difficulties between them. Although they shook hands and,

according to Rosario, "agree[d] to put a stop there," the conduct

continued. Maldonado stated that Rosario was not the only female

whom Arroyo treated badly: "He would do it to other females that

used to work there. He'd just intimidate them."6 Cournier

5
Although Cournier did not explicitly state that these
comments were overheard by Rosario, it is a fair inference that,
like the comments reported by Hernández, the conversation and
laughter she described occurred in close proximity to Rosario.
6
Maldonado went on to say that "that's the way he treated all
the females and also the males. But, for some reason or another,

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testified that Arroyo would talk to other employees in a pleasant

manner, "but, when he directed to her [Rosario] he would be, like,

in a nasty way."

Arroyo became the supervisor of the medical records

section in July 2002. He continued to criticize Rosario and

respond to her in ways she found humiliating, including making

"exaggerated" movements – apparently mocking her – when she spoke

to him. Cournier testified that, unlike Arroyo's behavior with

other employees who worked the front desk, when Rosario was there

Arroyo was "always . . . behind her, looking, and always . . . he'd

be watching on whatever she was doing or whatever she was saying."

Maldonado stated that Arroyo made it difficult for Rosario to

perform her job, challenging every decision, saying "'[d]on't do

the other females never said anything because she[sic] was a
reservist, and when my time is gone, I'm gone." Although the
syntax is confusing, it appears that Maldonado was saying that
female Army reserve members who worked at the clinic did not
complain about Arroyo's treatment because they were assigned there
only temporarily.
Later, when questioned about his comment that Arroyo would
treat both men and women poorly, Maldonado said Arroyo would not
treat them "the same way he was treating her." Maldonado
explained:

He behaves – his behavior towards everyone was the same.
But for [Rosario], it was more a gender issue . . .
[b]ecause, everything was about the way she dressed.
Everything was about her. Everything was about the way
she talks to people.

In emphasizing Maldonado's statement that Arroyo mistreated both
men and women, the district court overlooked Maldonado's
explanation of Arroyo's distinct behavior toward Rosario.

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this, don't do that, why did you do this, why did you do that.'"

Although Rosario reported his behavior to higher level supervisors,

no action was taken against him.7

Later in 2002, Arroyo initiated formal counseling of

Rosario concerning the dress code,8 but evidence presented at the

7
Rosario testified that, when she met with her second-level
supervisor, LTC Campbell, "he didn't take me serious[ly]."
Maldonado testified that he also reported Arroyo to Campbell, who
told Maldonado "[t]hat he was going to handle it." Maldonado
assumed that nothing was done, however, "[b]ecause I was there the
whole time and things that began there continued on and on." He
further recounted:

When I brought it up to LTC Campbell and the rest of the
folks who were in the chain of command, they didn't do
anything about it. But he continued to behave towards
her the same way as before. He had the same behavior.
Nothing changed.
8
This formal counseling appears to have consisted of Arroyo's
completing a "Developmental Counseling Form," an official document
issued by the US Army Training and Doctrine Command, and Rosario's
written response. The form, dated November 6, 2002, explains the
purpose of the counseling as follows:

To develop a clear understanding on appropriate dress
code in the work place. Ruth I want to let you know I
have done lots of research about the subject on dress
code, I have talked to many high ranking civilian here in
PR and in the States to get advice and here is the
answer. There is not a dress code for civilians. The
employee needs to be aware of the work place, consider
the customers and the coworkers, and dress accordingly.
I can not enforce a dress code on anybody. You know
where you work, your customers, and your coworkers as
well as supervisors. If you make someone unco[m]fortable
about the way you are dress in the work place and they
voice a complaint about you, you will have to deal with
that situation accordingly. I will not enforce a dress
code because there i[s] not one.

In her handwritten response on the form, dated 11/21/02, Rosario

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EEO hearing supports her contention that her clothing was always

appropriate. Maldonado, Hernández and Cournier all testified that

they did not consider her attire inappropriate, and Rosario

asserted that her nearly twenty years of experience in the private

and government sectors provided her with "the knowledge [of] what

to wear or not."9 Indeed, Arroyo acknowledged at the EEO hearing

that, after March 2002, her clothing had improved "300 percent" and

he considered her attire proper. In April 2003, however, Arroyo

complained to Campbell about plaintiff's dress, and the record

contains a May 1, 2003 memorandum listing Arroyo's expectations for

Rosario that includes the following paragraph on her manner of

dress:

Sound judgment very important with the
pursue[sic] of excellence. The way we dress
for the work place should be "business like."
On occasion the way you have dress has made me
and co-workers very uncomfortable and clearly
seen by the rating officials. In the
workplace you[] are required to stand, ben[d],

queried why Arroyo initiated the counseling if there was not a
dress code and stated that she "always presented [her]self in a
professional, clean, office attire."

At the EEO hearing, Arroyo testified that he did not remember
the incident that triggered the form, but that he "must have seen
something that was totally in contrary to . . . what we have talked
about." He said the misunderstanding was cleared up, and the
counseling never took effect.
9
Campbell, however, testified that he was informed by another
clinic employee, Specialist Lara, that female patients and wives of
patients at the clinic had complained about Rosario's "excessively
revealing clothing." He described the issue as "sheer or see-
through clothing and/or very low cut blouses."

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 reach above for documents and you need to be
fully aware that clothing that reveals
underwear, clothing that attracts the
attention of others, again the standard is
business like. . . .10

Rosario also alleged as evidence of Arroyo's

discriminatory treatment the performance evaluation he gave her in

April 2003 – an overall rating of "successful" – which was lower

than the "excellent" ratings she had previously received from other

supervisors. She presented evidence as well that he obtained

sexually oriented jokes from the computer and commented on them in

her presence, said that she was fat and had delinquent children,

and told her co-workers that she was dressing like a "woman of the

streets."11

As a result of Arroyo's behavior toward her, Rosario felt

uncomfortable every day and did not want to go to work. She became

depressed, started losing her hair, experienced panic attacks, and

10
Arroyo acknowledged that the memo was never given to Rosario
and explained that it was prepared at that time because a new
rating period was beginning. He stated that it was "an initial
counseling for a new rating period" and that "I am counseling her
on expectations on the new rating period that's about to begin."
11
Cournier testified that Arroyo would get sexually oriented
jokes from the computer and "then be talking about it and showing
pictures or whatever." She said he did that in a loud voice,
"mostly . . . when [Rosario] was there." Maldonado reported that
Arroyo commented to him and "to everybody else too[,] [t]o other
guys" that she dressed "like a street girl, or a working girl."
Maldonado explained that labeling someone a "woman of the streets"
or "a street girl" was not as bad as calling her a prostitute, that
it was "more girlish, you know, her breasts were out or showing her
cleavage."

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eventually was hospitalized. She needed psychiatric treatment and

medication, and attributed the breakup of her marriage to her

situation at work.

In September 2003, Rosario filed a formal discrimination

complaint with the Army's Equal Employment Opportunity Office and

submitted a seven-page statement detailing many of the

circumstances described above. Following the evidentiary hearing,

the agency found for the defendants. Rosario then filed this

lawsuit alleging that she was subjected to gender and national

origin discrimination in violation of Title VII. She subsequently

dropped the national origin claim, and the district court addressed

only the gender-based hostile work environment claim in its

decision. The court held that the record showed "Mr. Arroyo [to

be] a rude man that lacked courtesy and professionalism," but that

the evidence was inadequate to prove a violation of Title VII.

Concluding that Rosario "failed to prove that she was subjected to

conduct sufficiently severe or abusive so as to constitute hostile

work environment based on sex," the court granted summary judgment

for defendants. This appeal followed.

II.

We review a grant of summary judgment de novo and may

reverse the district court's ruling if, after considering the facts

and drawing "all inferences in favor of the non-moving party, the

evidence on record is sufficiently open-ended to permit a rational

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fact finder to resolve the . . . issue in favor of either side."

Napier v. F/V Deesie, Inc., 454 F.3d 61, 65 (1st Cir. 2006)

(internal quotation marks and citation omitted). We review the law

relating to hostile work environment claims before considering its

applicability to the evidence presented by Rosario.

A. Legal Background

Title VII's prohibition of discriminatory employment

practices extends to sexual harassment in the form of a hostile or

abusive work environment. Lockridge, 597 F.3d at 473. To prove a

hostile work environment claim, the plaintiff must demonstrate that

the complained-of conduct was "'sufficiently severe or pervasive so

as to alter the conditions of the plaintiff's employment and create

an abusive work environment.'" Id. (quoting Forrest v. Brinker

Int'l Payroll Co., LP, 511 F.3d 225, 228 (1st Cir. 2007)); see also

Harris, 510 U.S. at 21. That environment "must be both objectively

and subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive to

be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).12

There is no precise formula for establishing sufficiently egregious

12
To succeed with a Title VII hostile work environment claim,
a plaintiff also must prove that she (or he) is a member of a
protected class, that she was subjected to unwelcome sexual
harassment based upon sex, and that there is a basis for employer
liability. Agusty-Reyes v. Dep't of Educ. of P.R., 601 F.3d 45, 52
n.6 (1st Cir. 2010).

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conditions. Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 83

(1st Cir. 2006).

We examine all the attendant circumstances
including the frequency of the discriminatory
conduct; its severity; whether it was
physically threatening or humiliating, or a
mere offensive utterance; and whether it
unreasonably interfered with an employee's
work performance.

Id.; see also Harris, 510 U.S. at 23. "'Subject to some policing

at the outer bounds,' it is for the jury to weigh those factors and

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 P.R., Inc., 304 F.3d 7, 18

(1st Cir. 2002) (quoting Gorski v. N.H. Dep't of Corr., 290 F.3d

466, 474 (1st Cir. 2002)).

Although "'[t]he workplace is not a cocoon, and those who

labor in it are expected to have reasonably thick skins,'" id. at

19 (quoting Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir.

2000)), the "accumulated effect" of repeated verbal attacks and

physical intimidation in the workplace may reasonably be found to

constitute sexual harassment within the meaning of Title VII.

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

see also Faragher, 524 U.S. at 788 (stating that the hostile work

environment standards are "sufficiently demanding to ensure that

Title VII does not become a 'general civility code'" (quoting

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

-12-
(1998))). The harassing conduct need not be overtly sexual in

nature. O'Rourke, 235 F.3d at 729. "[W]here a plaintiff endures

harassing conduct, although not explicitly sexual in nature, which

undermines her ability to succeed at her job, those acts should be

considered along with overtly sexually abusive conduct in assessing

a hostile work environment claim." Id.

B. Rosario's Claim

In defending the district court's ruling in their favor,

the defendants point to the Supreme Court's assertion that "'simple

teasing,' offhand comments, and isolated incidents (unless

extremely serious)" do not amount to a hostile work environment.

Faragher, 524 U.S. at 788 (quoting Oncale, 523 U.S. at 82). They

contend that most of the comments and actions highlighted by

Rosario were intended to address the issue of appropriate office

attire, and they emphasize that no witness stated that Arroyo ever

made any sexual advances toward Rosario or said he was sexually

interested in her.

Even if Arroyo's alleged behaviors could reasonably be

viewed as offhand comments or isolated episodes, some of which were

motivated by legitimate workplace concerns, that view is certainly

not the only one that could reasonably be drawn from the record.

As described above, Rosario's allegation that she was subjected to

constant harassment from Arroyo over an extended period of time was

substantiated by the testimony of multiple witnesses at the EEO

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hearing, including Arroyo's immediate supervisor, Maldonado. The

record contains evidence that, throughout a two-year period, Arroyo

complained about Rosario's appearance on a daily basis, regularly

drew the attention of her co-workers to her body and undergarments,

shadowed her closely when she interacted with patients, challenged

her decisions, mocked her when she spoke to him and, on occasion,

described her as a street woman to other employees and criticized

her to doctors and patients.

The validity of the primary justification offered for

Arroyo's frequent interactions with Rosario – her attire – was

undermined by Maldonado's, Hernández's and Cournier's testimony

that they considered Rosario's clothing to be appropriate and by

Arroyo's own testimony that he found no problem with her clothing

after March 2002. Moreover, the conduct began when Arroyo was

Rosario's co-worker, rather than her supervisor – when he

presumably had no authority to challenge her manner of dress.

Later, when he became her supervisor, he admitted that no dress

code existed for civilian employees at the clinic, yet he continued

to make an issue of her clothing. He initiated a counseling report

in the fall of 2002 and was still questioning her attire the

following spring.

Although the sexually oriented jokes reported by Cournier

may not have amounted to much on their own and were of uncertain

frequency – indeed, Rosario did not cite them in the report

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attached to her administrative complaint – they nonetheless suggest

a lack of respect by Arroyo for his female colleagues, lending

weight to the inference that his behavior toward Rosario was

inappropriately motivated by gender. That was not, however, the

only evidence that his conduct was "because of . . . sex." 42

U.S.C. § 2000e-2(a)(1). Maldonado testified that Arroyo treated

other females who worked at the clinic similarly, observing that

"[h]e'd just intimidate them." Maldonado named Private Carter in

particular and stated that Arroyo "drove her nuts." Arroyo's

repeated conversations with others about Rosario's underwear "and

especially her panties" (as reported by Hernández), as well as his

references to her as a woman of the streets in conversations with

Maldonado and "other guys," provides additional support for a

finding that his behavior toward Rosario was sex-based.

The defendants' focus on the absence of evidence showing

that Arroyo was attracted to Rosario is, as an initial matter,

misdirected. "[H]arrassing conduct need not be motivated by sexual

desire to support an inference of discrimination on the basis of

sex." Oncale, 523 U.S. at 80; see also O'Rourke, 235 F.3d at 729.

Moreover, while there is no direct evidence that Arroyo was

sexually interested in Rosario, Hernández testified that Arroyo's

treatment of Rosario prompted him to ask if Arroyo had a crush on

her. Hernández said he explained to Arroyo that "that's what it

looks like. That it's so personal that you're just having a

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frustration about that woman." Although other cases may present

more explicit evidence of sex-based motivation, see, e.g., Marrero,

304 F.3d at 19 (noting "humiliating sexual remarks and innuendos,"

such as "the redhead is really hot" and "the redhead is on fire");

Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 55 (1st

Cir. 2000) (noting that the head of the academic committee

considering plaintiff's promotion repeatedly asked her for dates

and "used suggestive language toward her"), the record here

contains ample circumstantial evidence for a jury to conclude that

Arroyo's behavior was triggered by Rosario's gender. See EEOC v.

NEA, Alaska, 422 F.3d 840, 844 (9th Cir. 2005) ("[T]here is no

legal requirement that hostile acts be overtly sex- or gender-

specific in content, whether marked by language, by sex or gender

stereotypes, or by sexual overtures.").

The fact that certain of the complained-of conduct

appeared to have no sex-based connotation at all – for example,

throwing her food away and removing items from her desk – does not

diminish the force of the evidence indicating gender-based animus.

Indeed, as we have noted, such acts may be added to the mix in

assessing a hostile work environment claim. O'Rourke, 235 F.3d at

730 (noting "the reality that incidents of non-sexual conduct . . .

can in context contribute to a hostile work environment"); see also

Marrero, 304 F.3d at 20. Nor is Rosario's claim defeated by

evidence that male employees experienced some of the same

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mistreatment by Arroyo. The evidence does not show any male

employee enduring Arroyo's criticism and offensive behaviors on

virtually a daily basis for an extended period of time, as did

Rosario. The record as a whole would thus permit a reasonable jury

to conclude that Rosario was exposed to harassment that differed in

both kind and degree from that imposed on male employees. See

Oncale, 523 U.S. at 80 ("'The critical issue, Title VII's text

indicates, is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which members

of the other sex are not exposed.'" (quoting Harris, 510 U.S. at 25

(Ginsburg, J., concurring))); NEA, Alaska, 422 F.3d at 845 ("[T]he

ultimate question under Oncale is whether [the supervisor]'s

behavior affected women more adversely than it affected men.").

We thus conclude that Rosario adduced sufficient evidence

for a jury to find that she was subjected to conduct that was "so

severe or pervasive that it altered the terms or conditions of her

employment." Pomales, 447 F.3d at 83. The behaviors she alleges

go well beyond "the ordinary tribulations of the workplace, such as

the sporadic use of abusive language, gender-related jokes, and

occasional teasing." Faragher, 524 U.S. at 788 (quoting Barbara

Lindemann & David D. Kadue, Sexual Harassment in Employment Law 175

(1992)). She presented evidence of longstanding harassment that

interfered with her work on a daily basis and ultimately caused

harm to her emotional stability and health. This case is thus a

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far cry from Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354

F.3d 34, 46 (1st Cir. 2003), cited by the defendants, where "the

complained of conduct was episodic, but not so frequent as to

become pervasive; was never severe; . . . and significantly, was

never . . . an impediment to [the plaintiff's] work performance."

Rather, our observation in Marrero, where the harassment was "more

or less constant" for some nineteen months, is apt here: "[T]his

case is easily distinguished from those in which courts have

refused to find a hostile work environment based solely on sexual

comments that are few and far between." 304 F.3d at 19.

In sum, a jury reasonably could find that Rosario met her

burden to show conduct that created a hostile work environment

within the meaning of Title VII. Hence, we vacate the district

court's grant of summary judgment for defendants and remand the

case for further proceedings.13 Costs are awarded to appellant.

So ordered.

13
Although the district court's ruling focused primarily on
the "severe or pervasive" element of Rosario's claim, it explicitly
or implicitly dealt with all aspects of a Title VII hostile work
environment claim other than employer liability. See Agusty-Reyes,
601 F.3d at 52 n.6 (listing six elements). Our analysis follows
the same course. We leave the issue of employer liability to the
court and the parties on remand, as it was not argued on appeal.

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