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Nieves-Borges v. El Conquistador Partnership, L.P.

United States Court of Appeals, First Circuit

August 21, 2019

LEONIDES NIEVES-BORGES, MAHALIA FALCO, Plaintiffs, Appellants,
v.
EL CONQUISTADOR PARTNERSHIP, L.P., S.E., d/b/a EL CONQUISTADORRESORT, A WALDORF ASTORIA RESORT; EL CONQUISTADOR WALDORFASTORIA RESORT; EL CONQUISTADOR RESORT, Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, Jr., Chief U.S. District Judge]

          Glenn Carl James for appellant.

          Mariel Y. Haack-Pizarro, with whom Liana M. Gutiérrez-Irizarry was on brief, for appellees.

          Gail S. Coleman, with whom James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Elizabeth E. Theran, Assistant General Counsel, were on brief, for amicus curiae Equal Employment Opportunity Commission.

          Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

          LIPEZ, CIRCUIT JUDGE.

         Appellant Leonides Nieves-Borges ("Nieves") claims that he was sexually harassed for more than a decade, and thus subjected to a hostile work environment, by the human resources director at the Puerto Rico resort where he worked. Nieves further asserts that resort managers retaliated against him for complaining about this treatment. He brought claims for sexual harassment and retaliation under both Title VII of the Civil Rights Act of 1964 and Commonwealth law, all of which were dismissed by the district court in a summary judgment for the defendant.[1] We conclude that the district court properly dismissed the retaliation claims. However, the district court incorrectly held that alleged incidents of harassment that occurred earlier than 2014 were time-barred, an error that contributed to other flaws in its analysis. We therefore vacate dismissal of the sexual harassment claims based on a hostile work environment and remand for reconsideration of those claims.

         I.

         A. Factual Background

         We draw our factual summary primarily from the district court's opinion and the defendant's Statement of Uncontested Material Facts ("SUMF"), including its exhibits.[2] In so doing, we bypass Nieves's contention that the district court improperly struck his opposition to the resort's motion for summary judgment and its accompanying Statement of Material Contested Facts. We need not consider the opposition because, relying solely on the SUMF and exhibits, we detect flaws in the district court's reasoning that require reconsideration of Nieves's hostile work environment claims, and nothing in the stricken materials would change our evaluation of the retaliation claims. Like the district court, we also describe the allegations in Nieves's complaint where relevant to our discussion.

         Nieves worked at the El Conquistador Resort in Fajardo, Puerto Rico, [3] from October 1993 until his termination in July 2015, serving as the food and beverage manager at the time of his discharge. He claims that the resort's director of human resources ("HR"), Luis Álvarez, sexually harassed him for thirteen years, between 2001 and 2014. He alleges a general pattern of sexually charged interactions, unfair criticisms of his work, and multiple specific incidents. Nieves testified in his deposition that Álvarez touched him "[a] gazillion times" between 2001 and 2014. He claimed the behavior included, on average, two or three episodes every week in which Álvarez would seek him out and, finding him, "examin[e] with his eyes the physical body of Mr. Nieves in a very sexual manner from up to down," as well as repeated requests to socialize after hours.[4]

         One specific incident emphasized by Nieves in his complaint allegedly occurred in 2007, when he and Álvarez were in Orlando for a convention, and Álvarez invited him to join other resort managers for lunch. No one else arrived at the restaurant and, as the two men were finishing lunch, Álvarez allegedly put his hand on Nieves's leg and said, "what [do] we do next?" Nieves claims that Álvarez then displayed his hotel keys, shaking them in the air.[5]

         Nieves's complaint also highlights three alleged interactions in 2014 in which Álvarez sought after-hours contact at Álvarez's home. First, on May 26, Álvarez called at 7:47 PM to invite Nieves to his residence to show him "something." Second, on July 3, Álvarez called Nieves at 6:15 PM to invite him over to discuss work-related matters. Third, on August 19, at 8:20 AM, Álvarez again invited Nieves to his home "to socialize" and, during that conversation, allegedly touched Nieves's hands "in a very sexual manner, . . . sexually looking [at his] physical body from up to down," and invited him to have drinks after work. Nieves testified that another incident, in October 2014, [6] allegedly occurred in a resort cafeteria, when "Álvarez was staring at [him] in a predatory manner" as Nieves waited in line to be served.

         Deposition testimony from at least three individuals corroborated Nieves's allegation of repeated touching. A co-worker saw Álvarez run his hand down Nieves's back on one occasion between 2006 and 2008 and touch his head on another occasion. In the latter instance, the co-worker recalled thinking to himself, "Hmm. This is ugly." The co-worker also testified that he at one point asked Nieves, "what's up with all that pawing?" A second co-worker testified that he saw Álvarez massage Nieves's "shoulders down to back" sometime between 2005 and 2008, and went on to say "that was not the only incident." Nieves's wife stated that she observed Álvarez hug her husband "around three times" between 2007 and 2010, at the resort's Christmas parties, and she could "see[] how he would lure [Nieves] in the unwanted hugs."

         Nieves explained that he did not report the sexual harassment to management through the years "because he feared for his job security." SUMF, ¶ 167. However, he reported in his complaint that the harassment "turned unbearable" in 2014. On August 21, 2014, Nieves was informed by Alfredo Amengual, the resort's director of food and beverage, that, at Álvarez's direction, Nieves was being rotated from one food outlet within the resort, Palomino Island, to the night shift at another location, the Bella Vista restaurant. Distressed by the change, Nieves reported for medical treatment to the State Insurance Fund, where he alleged that the transfer amounted to workplace harassment by Amengual and Álvarez. About a month later, on September 30, Nieves filed a thirteen-page internal complaint stating that Álvarez had begun subjecting him to a pattern of harassment, some of a sexual nature, beginning in November 2001.

         Nieves was medically cleared to return to work on October 4, and he reported on that date to the Bella Vista restaurant. Meanwhile, an attorney assigned by the resort to perform an internal investigation into his complaints of harassment concluded that many of the events described in his written statement were inaccurate and lacking in corroboration. She noted that witnesses consistently reported that Nieves and Álvarez disliked each other, but she found no evidence of sexual harassment. However, in a letter sent to Nieves at the close of the investigation in January 2015, the resort's then-HR director, Olga Martínez Cruz ("Martínez"), stated that the resort "ha[d] taken steps to ensure that Mr. Amengual has a clear understanding" of its anti-harassment policies. The letter also noted that Álvarez no longer worked at the resort.[7]

         Despite Álvarez's departure, the period between January 2015 and Nieves's termination roughly six months later was -- as the district court characterized it -- "turbulent." Borges v. El Conquistador P'ship, 280 F.Supp.3d 295, 306 (D.P.R. 2017). Nieves was disciplined three times during that interval. First, in early January, he was suspended for two weeks after a female subordinate complained that he asked her to file a false sexual harassment claim against Amengual. According to Martínez, the suspension "was also related to acts of insubordination against his supervisor for raising his voice to him and refusing to follow instructions." She noted that Nieves's conduct provided grounds for immediate termination, but he was not fired because of his long tenure. Second, in May 2015, Nieves received a written warning for deliberately falsifying payroll records to increase a supervisor's hours, "resulting in an improper payment to the supervisor." Third, on July 15, Nieves notified Amengual, his supervisor, that he would miss work the next day because he was ill. However, on his "sick" day, he was seen attending a promotional event associated with his family rum-making business. Nieves was suspended when he reported to work the following day, and, following a review of his personnel file and disciplinary history, Amengual and Martínez concluded that he should be terminated. On July 21, he was informed that, consistent with the resort's code of ethics and employee manual, he was being fired because of the false report of illness.

         Meanwhile, on February 12, 2015, Nieves had filed a charge of discrimination against the resort with the Equal Employment Opportunity Commission ("EEOC"), claiming, inter alia, that he was the victim of discrimination based on "a refusal to submit to sexual advances or based on sexual desire." In the twenty-page statement he filed with the charge, Nieves described the alleged thirteen-year pattern of harassment by Álvarez, including the Orlando lunch incident in 2007 and the three 2014 after-hours social invitations described above. Nieves alleged that Álvarez's actions had affected his mental and physical health, "resulting in loss of promotions [and] salary increases by undermining his [r]eputation, his image and his [d]ignity." He explained that he previously "had refrained and was reluctant" to report the details of Álvarez's conduct toward him "because he felt his job would be in jeopardy," but took action after Amengual informed him in August 2014 of his transfer from the Palomino Island location to the Bella Vista venue.

         Nieves further asserted that the resort retaliated against him after he filed his internal complaint about Álvarez's conduct. He cited the transfer to Bella Vista and the two-week suspension without pay that had just been imposed. He contended that the rationale given for the suspension -- procuring a false sexual harassment charge against Amengual -- was a pretext. He stated that he was transferred to Bella Vista and placed on the night shift five days after reporting Álvarez's sexual harassment and was suspended sixty days after that report.

         The EEOC issued a Notice of Right to Sue in March 2015, and Nieves subsequently filed this action under Title VII and Commonwealth law. His thirty-seven-page complaint reiterated the allegations reported to the EEOC of sexual harassment over a thirteen-year period and retaliation in 2014 and 2015 following his complaints to management at the El Conquistador.

         B. Procedural Background

         Following extensive discovery and the parties' failure to reach a settlement agreement, El Conquistador filed a motion for summary judgment on all claims, supported by the lengthy SUMF and accompanying exhibits. The resort argued that Nieves "was never subjected to a hostile work environment or retaliation," and that his "subjective perception of his environment is not reasonable, and therefore not actionable under Title VII." The resort further asserted that its actions with respect to the plaintiff "were taken for sound, business-related reasons." In addition, El Conquistador argued that even if the court were to find that Nieves faced "some objectively and subjectively offensive conduct," his unreasonable delay in reporting ...


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