Rosario v. The Dep't Of The Army, 08-2168.

• Citation: 607 F.3d 241
• Decision Date: 02 June 2010
• Docket Number: No. 08-2168.,08-2168.
• Parties: Ruth ROSARIO, Plaintiff, Appellant,v.The DEPARTMENT OF The ARMY, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

607 F.3d 241

Ruth ROSARIO, Plaintiff, Appellant,v.The DEPARTMENT OF The ARMY, et al., Defendants, Appellees.

No. 08-2168.

United States Court of Appeals, First Circuit.

Heard Nov. 2, 2009.

Decided June 2, 2010.

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.

Before TORRUELLA, BALDOCK,^* and LIPEZ, Circuit Judges.

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, 114 S.Ct. 367, 126 L.Ed.2d 295 (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, 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 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

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 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 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 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], 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 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 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

...