743 F.3d 278 (1st Cir. 2014), 13-1587, Rodriguez-Vives v. Puerto Rico Firefighters Corps of the Commonwealth of Puerto Rico

Docket Nº:13-1587
Citation:743 F.3d 278
Opinion Judge:KAYATTA, Circuit Judge.
Attorney:Enrique J. Mendoza M
Judge Panel:Before Torruella, Baldock,[*] and Kayatta, Circuit Judges.
Case Date:February 18, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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743 F.3d 278 (1st Cir. 2014)

KATHY RODRÍGUEZ-VIVES, Plaintiff, Appellant,



No. 13-1587

United States Court of Appeals, First Circuit

February 18, 2014

As Amended February 20, 2014.

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Enrique J. Mendoza Mé ndez, with whom Juan R. Dá vila Dí az and Mendoza Law Offices were on brief, for appellant.

Michelle Camacho-Nieves, Assistant Solicitor General of Puerto Rico, with whom Margarita Mercado-Echegaray, Solicitor General, was on brief, for appellee.

Before Torruella, Baldock,[*] and Kayatta, Circuit Judges.


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KAYATTA, Circuit Judge.

Plaintiff Kathy1 Rodríguez-Vives sued the Commonwealth of Puerto Rico in 2005, claiming that defendant Puerto Rico Firefighters Corps of the Commonwealth of Puerto Rico (" the Corps" ) refused to hire her as a firefighter because of her gender. As part of a 2009 settlement of that suit, the Corps agreed to employ her as a " transitory" firefighter until the next training academy was held, to admit her to the academy, and to hire her as a firefighter if she graduated. She thereafter again sued the Corps, alleging that, during her transitory employment, the Corps subjected her to various forms of abuse in retaliation for her earlier suit. This alleged post-settlement mistreatment, she argued, constituted both sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2, 2000e-3. The district court granted the Corps's motion to dismiss her new complaint for failure to state a claim. Rodríguez-Vives appeals only the dismissal of her claim of unlawful retaliation. We hold that her complaint states a plausible claim of unlawful retaliation under Title VII, and we therefore vacate the district court's order.

I. Background

Finding this to be a case amenable to disposition under Federal Rule of Civil Procedure 12(b)(6), the district court dismissed Rodríguez-Vives's complaint before the parties could engage in the discovery necessary to provide a fuller picture of what actually occurred. We therefore take as true the factual allegations in Rodríguez-Vives's complaint, drawing all reasonable inferences in her favor.

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Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).

Rodríguez-Vives applied unsuccessfully to be a firefighter in the Corps in 2001. In 2005 she sued the Corps, alleging that the Corps's failure to hire her was discriminatory. Her complaint asserted a claim under 42 U.S.C. § 1983 for denial of her right to equal protection under the Fourteenth Amendment of the United States Constitution, and a claim under state law. Specifically, she alleged that, after meeting the minimum requirements to apply for a position with the Corps, she passed a physical agility test and was selected for several in-person interviews. Despite being placed on an eligibility list for admission to the next training session for new firefighters, known as a firefighter academy, she was not admitted.

On February 5, 2009, Rodríguez-Vives and the Corps signed a settlement agreement resolving that first suit. The Corps agreed to employ her as a " transitory" firefighter until the next training academy was held, at which point it promised that she would be admitted, trained, and, if she completed the academy successfully, hired to a career position as a firefighter. In return she waived all claims that she could have brought against the Corps.

Rodríguez-Vives began working for the Corps on March 2, 2009. After being ordered to work at several different stations by various supervisors, she was assigned permanently to a fire station in Coamo where she claims she was subjected to a series of abuses that gave rise to this lawsuit. Her supervisor, a sergeant, " constantly said in front of [her] that he did not know why he had to end up stuck with her in his [s]tation" and " commented on various [occasions] that [she] was incompetent, dumb, inept, [and] that she did things backward." On one occasion when Rodríguez-Vives was cooking at the station the sergeant threw the pans she was using in the trash. On August 18, 2009, the sergeant threatened Rodríguez-Vives with disciplinary action for making an entry in the station's journal despite the fact that she had followed the instructions she had received for making entries in the journal. On August 27, he shouted at her about her entries in the journal and also threw it at her. After Rodríguez-Vives complained about this conduct her captain held a meeting with the sergeant, but the sergeant continued to engage in the same objectionable conduct after the meeting. Soon thereafter, the Sergeant saw her in the parking lot of the Coamo station and accelerated his car, showering her with dust.

During Rodríguez-Vives's time at the Coamo fire station the only duties given to her were cooking, cleaning, and keeping the station's journal. These tasks were " supposed to be equally shared among all firefighters" but in the Coamo station they were not. Rodríguez-Vives was not issued uniforms or emergency kits as other firefighters were. She did not receive training given to other firefighters who, like her, had not attended a training academy. She was also not allowed in fire vehicles to get lunch. Finally, a male volunteer firefighter, who had not attended the academy, was allowed to " go out to deal with incidents" while Rodríguez-Vives was not. As a result of these actions Rodríguez-Vives suffered " severe psychological damages" that required treatment.

On December 22, 2009, Rodríguez-Vives filed a complaint with the Equal Employment Opportunity Commission alleging under Title VII that she had been discriminated against on account of her sex and retaliated against for her earlier lawsuit. She received a right to sue letter on May 11, 2011, and filed a complaint on August 2, 2011. She later filed an amended complaint

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containing the allegations described above. The Corps then moved to dismiss her complaint for failure to state a claim. The district court granted the motion on March 31, 2013. Rodríguez-Vives timely appealed, challenging only the dismissal of the retaliation portion of her complaint.

II. Analysis

The district court dismissed Rodríguez-Vives's complaint for failure to state a claim of retaliation under Title VII, holding that she had not sufficiently alleged that she had previously opposed a practice made unlawful by Title VII or that she suffered an adverse employment action. We conclude that the district court was wrong on both points. Before addressing either point, however, we first address the Corps's argument that we need not consider the sufficiency of Rodríguez-Vives's complaint because the 2009 settlement bars her from bringing this claim.

A. Effect of the 2009 Settlement

The Corps argues that Rodríguez-Vives is really complaining that the Corps has, in effect, failed to perform its obligations under the settlement agreement. Pointing to the district court's retention of jurisdiction to enforce the settlement, Amended Judgement of February 24, 2009, Rodríguez-Vives v. Commonwealth of Puerto Rico, Case No. 3:05-cv-02136-DRD, Dkt. No. 74, the Corps maintains that Rodríguez-Vives's only remedy was to file a motion to enforce the settlement in that previously closed action. Failing to do so, the Corps argues, somehow gives rise to a res judicata bar to this action.

As the district court correctly recognized, the 2009 settlement agreement bars Rodríguez-Vives from bringing now a related claim that could have been brought prior to the date of the settlement, or arising out of events occurring prior to that date. Rodríguez-Vives, though, rests this action on the Corps's conduct after the date of the settlement. Thus the settlement agreement provides no bar to this retaliation claim, nor could it. See Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 419, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005) (noting in the statute of limitations context that a cause of action for retaliation generally accrues " when the retaliatory action occurs" ); Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) ( holding in the arbitration context that an employee may retrospectively waive Title VII claims as part of a settlement but that " an employee's rights under Title VII may not be waived prospectively" ); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) (noting that Gardner-Denver was " correct in concluding that federal antidiscrimination rights may not be prospectively waived" but holding that agreement to arbitrate a Title VII claim was not a waiver).

Nor can we see any reason why Rodríguez-Vives, in seeking a remedy for the alleged post-settlement acts, was limited to enforcement of the settlement agreement. Suppose the Corps had intentionally run over Rodríguez-Vives with a truck to prevent her from being able to perform her new position. No reasonable person would argue that her remedies would be limited to filing a motion to enforce the settlement agreement. Like an action for assault and battery, a retaliation claim is a " separate and independent cause of action" that stands or falls on its own. Jones v. Walgreen Co., 679 F.3d 9, 20 (1st Cir. 2012) (internal quotation marks omitted). Moreover, interpreting the settlement agreement as limiting Rodríguez-Vives's rights to bringing an enforcement action rather than asserting her statutory right to protection

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from post-settlement retaliation would constitute a form of pre-retaliation waiver, which is prohibited under Title VII. See Gardner-Denver, 415 U.S. at 51-52; 14 Penn Plaza LLC, ...

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