Agusty-Reyes v. Dept. of Educ. of Puerto Rico

• Decision Date: 06 April 2010
• Docket Number: No. 09-1247.,09-1247.
• Citation: 601 F.3d 45
• Parties: 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.
• Court: U.S. Court of Appeals — First Circuit

601 F.3d 45

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.

No. 09-1247.

United States Court of Appeals, First Circuit.

Heard March 1, 2010.

Decided April 6, 2010.

601 F.3d 46

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,

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and Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for appellee Department of Education of the Commonwealth of Puerto Rico

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LYNCH, Chief Judge.

Taking all reasonable 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 judgment on Agusty's claims. See Agusty-Reyes v. Dep't of Educs., 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 correct sexual harassment and that its employee unreasonably failed to avoid harm. Second, the court held that the evidence compelled the conclusion

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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 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, 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.

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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 "intimidating" memos in which he 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."

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...