656 F.3d 19 (1st Cir. 2011), 09-2317, Perez-Cordero v. Wal-Mart Puerto Rico, Inc.

Docket Nº:09-2317
Citation:656 F.3d 19
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:JORGE P
Attorney:Wilma E. Rever
Judge Panel:Before Torruella, Ripple,[*] and Lipez, Circuit Judges.
Case Date:August 26, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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656 F.3d 19 (1st Cir. 2011)

JORGE PÉREZ-CORDERO, Plaintiff, Appellant,


WAL-MART PUERTO RICO, INC., ET AL., Defendants, Appellees

No. 09-2317

United States Court of Appeals, First Circuit

August 26, 2011


Wilma E. Reverón Collazo, for appellant.

Marena S. Ramí rez, with whom Kenneth C. Suria and William Estrella Law Offices, PSC was on brief, for appellees.

Before Torruella, Ripple,[*] and Lipez, Circuit Judges.


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LIPEZ, Circuit Judge.

Plaintiff Jorge Pérez-Cordero appeals from the district court's grant of summary judgment in favor of the defendants, Wal-Mart Puerto Rico, Inc. (" Wal-Mart" ), Madeline Santiago, Pablo Falcón, and the Falcón-Doe Conjugal Partnership, on all counts of his civil suit alleging sex-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964 and Puerto Rico law. Pérez-Cordero claims to have been sexually harassed by Santiago, his female supervisor, and retaliated against by Wal-Mart's management, including Santiago and Falcón, for his attempts to oppose the harassment.

The district court granted summary judgment primarily on the ground that Pérez-Cordero could not show that Santiago's conduct was unwelcome, pervasive, or because of sex. After a careful review of the record, we vacate the judgment in favor of the defendants and remand the case for further proceedings.


We recite the facts in the light most favorable to Pérez-Cordero as the non-moving party. See, e.g., Agusty-Reyes v. Dep't of Educ. of P.R., 601 F.3d 45, 48 (1st Cir. 2010).

Pérez-Cordero was hired as a butcher at Wal-Mart's Sam's Club store in Humacao, Puerto Rico, in 1998. In the summer of 2000, Santiago transferred from another department within Sam's Club to become Team Leader of the store's meat department. As Team Leader, Santiago had some supervisory authority over Pérez-Cordero. Among other things, her position provided her the authority to design work schedules for meat department employees and to initiate disciplinary proceedings.

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Early in her tenure as Team Leader, Santiago would schedule her lunch breaks to coincide with those of Pérez-Cordero. In his deposition, Pérez-Cordero testified that Santiago would ask him " every day" where he was planning to eat lunch. She would often appear at his stated lunch locale and ask to share a table with him. In Pérez-Cordero's words, " Everywhere I went to go have lunch she would show up; even McDonald's, Wendy's, los chinos, la plazoletta."

Initially, lunchtime conversations between Santiago and Pérez-Cordero were exclusively work-related. Soon, however, Santiago began sharing details about her private life with Pérez-Cordero that led him to believe that Santiago was interested in pursuing a romantic relationship with him. Around this time, Pérez-Cordero also became aware that his co-workers were gossiping about him as a result of the attention that Santiago was showing him. In one incident, he was confronted by two female meat wrappers who asked Pérez-Cordero whether he " had something to do with her" and whether he was aware that Santiago liked older men.1 Pérez-Cordero said that hearing his co-workers' comments made him " uncomfortable." He testified that he " tried to cut off any situation" and that he would " not share anything but work." He also undertook to avoid Santiago at lunch times. In his deposition, Pérez-Cordero stated, " I would simply bring my own lunch or would tell her I was going to Wendy's and went to McDonald's so that she did not find me."

In August 2000, Santiago began making more overt propositions to Pérez-Cordero. On one occasion, while organizing items from a recent delivery to the store, Santiago told Pérez-Cordero that she was a single mother seeking a man with whom she could settle down. She asked Pérez-Cordero whether he wanted to be that man. According to Pérez-Cordero, " it was clear that she was talking about was [sic] a sex partner." Pérez-Cordero was explicit in his rejection: he told Santiago that he was not available, and that he was in a committed relationship with a woman whom he planned to marry.

That same week, Pérez-Cordero asked his girlfriend to have lunch with him at the store, and he introduced her to Santiago. Santiago later remarked to Pérez-Cordero that meeting his girlfriend had made her feel " guilty" because " when I have something with you then I will know who your woman is." Santiago made this remark in front of at least two other employees. Pérez-Cordero again made clear that he did not like or welcome Santiago's advances. He told her, " [D]on't play like that, it is very ugly."

The co-workers who had witnessed the incident talked with Pérez-Cordero about Santiago's obvious romantic interest. As Pérez-Cordero described it, " They told me what I already suspected. That she wanted to have a relationship with me and if I did not realize it I was blind because they had already talked about it among women, women's things." Pérez-Cordero told his co-workers that he had no interest in a relationship with Santiago, but he described feeling pressured by their follow-up questions: " [They] asked me are you sure you don't like anything about her, and I said no. . . . And they asked me that question it was like what is happening, what's wrong?"

When it became clear to Santiago that Pérez-Cordero did not share her interest in pursuing a romantic relationship, his working conditions began to change. Santiago supervised Pérez-Cordero more strictly than other employees and pressured him to improve his performance

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even though the quality of his work had not deteriorated. Santiago also assigned to Pérez-Cordero tasks which had previously been shared among all the employees in the meat department or which normally required several employees to complete. Santiago consistently scheduled Pérez-Cordero to work the closing shift, which had previously rotated among employees.2 The closing shift required more work than other shifts and prevented Pérez-Cordero from participating in the daily departmental meetings. Additionally, Santiago reallocated the duties associated with the closing shift, which had the effect of requiring Pérez-Cordero to perform additional cleaning on top of his normal tasks.

As an example of Santiago's strict supervision of him, Pérez-Cordero notes that on September 17, 2000, Santiago called him at the store repeatedly, even though she had the day off. He described this as " unusual" behavior. In each call, she informed him that his evaluation was in her hands. She stated that " she expected sales from ten thousand to fifteen thousand dollars," and that she wanted to ensure " that everything was okay in the refrigerators, that the cleaning was done and everything was organized" because she was going to check his work the next day.

Pérez-Cordero also claims that two days later, on September 19, Santiago yelled at him in front of his co-workers when he arrived at work. He referred to it as a " scolding," " as if I were a child," and described the incident as " humiliating." Santiago was purportedly upset with Pérez-Cordero for failing to dispose of some boxes from the previous day. Pérez-Cordero stated that it was the only time he had ever been yelled at during his employment at Sam's Club, in part because it violated the store's policy on respect for the rights of others. Pérez-Cordero reported the yelling incident to Santiago's supervisor, Meat Manager Luiz Ortiz, the day it occurred. Ortiz told Pérez-Cordero that Santiago was probably just under stress, and he volunteered to talk to her about it.

The next day, Santiago approached Pérez-Cordero while he was dressing for work at his locker. Instead of greeting Pérez-Cordero with a kiss on the cheek, as was the custom among the store's employees, Santiago grabbed Pérez-Cordero and forcefully sucked on his neck. Pérez-Cordero testified that he felt " shocked" and " surprised" by her actions, to the point that he was unable to say anything to her. Santiago then turned to another employee, Emilio Benítez, and whispered a comment to him in which she implied that Pérez-Cordero had become sexually aroused by her greeting. After telling Pérez-Cordero about Santiago's comment, Benítez told him, " You have that woman crazy about you."

Pérez-Cordero again sought out Ortiz. He told Ortiz about the incident that morning, and stated that he was uncomfortable with the hostile manner in which he was being treated by Santiago. Ortiz said that he had spoken with Santiago about the yelling incident the previous day, and he appeared reluctant to confront her again about her conduct.

Pérez-Cordero approached Ortiz again three days later, on September 22, to emphasize the gravity of the situation and to

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request official action. Pérez-Cordero suspected that Ortiz had never spoken with Santiago because the situation had continued to deteriorate. He described his interactions with Santiago over the previous days as having been both " impolite" and " uncomfortable."

By September 25, Ortiz had still taken no action to resolve Pérez-Cordero's concerns. Pérez-Cordero approached Ortiz for a third time, informing him that, if he was unable to solve the problem, Pérez-Cordero would take his complaints further up the chain of command. Ortiz told Pérez-Cordero not to worry and stated that he would schedule a meeting involving all the concerned parties for the following day.

When Pérez-Cordero arrived for the September 26 meeting, he was surprised to discover that the meeting was not to resolve his complaints over Santiago's...

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