AMIRA-JABBAR v. TRAVEL Serv. INC.

• Decision Date: 10 September 2010
• Docket Number: Civil No. 08-2408 (JA).
• Parties: Kareemah AMIRA-JABBAR, Plaintiff v. TRAVEL SERVICES, INC., et. al, Defendants.
• Court: U.S. District Court — District of Puerto Rico

726 F.Supp.2d 77

Kareemah AMIRA-JABBAR, Plaintiff

v.TRAVEL SERVICES, INC., et. al, Defendants.

Civil No. 08-2408 (JA).

United States District Court,D. Puerto Rico.

July 28, 2010.

Opinion Denying Motion to Amend Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Luis F. Del-Valle-Emmanuelli, Del Valle Emanuelli Law Offices, Carolina, PR, for Plaintiff.

Carl E. Schuster, Lourdes C. Hernandez-Venegas, Schuster & Aguilo LLP, San Juan, PR, for Defendants.

OPINION AND ORDER

JUSTO ARENAS, United States Chief Magistrate Judge.

This matter is before the court on motion for summary judgment filed by the defendants, Travel Services, Inc., Joanne Ferguson, John Ross, Miguel Hernández-Roses and Gilbert Anthony Linares, on April 29, 2010. (Docket No. 22.) The defendants' motion was opposed by plaintiff, Kareemah Amira-Jabbar, on May 11, 2010. (Docket No. 31.) For the reasons set forth below, the motion for summary judgment is hereby GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2006, plaintiff, a black woman, was hired as an assistant group service manager by Travel Services, Inc. (“TSI”). ¹ (Docket No. 1, at 7, ¶ 34 & Docket No. 21, at 19-20, ¶¶ 1 & 7.) The offer letter from TSI, which plaintiff signed, included a non-compete clause that barred her from taking employment with any direct competitor of TSI for a period of one year after terminating her employment with TSI. (Docket No. 47-3.) As a manager, plaintiff earned a yearly salary of $27,000. (Docket No. 21, at 20, ¶ 7.) After the probation period was completed, plaintiff's salary was raised to $32,500. (Id.¶ 11.) Plaintiff's duties as an assistant group service manager included following out orders prescribed by the sales, with different contracts through vendors and companies from the United States and all over, to handle their transportation, tours and other needs, problems or situations that could arise. (Id.¶ 8.) Plaintiff alleges that during her employment at TSI she was harassed and discriminated against because of her color. (Docket No. 1, at 8, ¶ 36.) According to plaintiff, during a Christmas gift-exchange activity held by TSI in December 2006, Mr. Ross made a derogatory comment to her regarding her race. (Docket No. 1, at 8, ¶ 39 & Docket No. 31-3, at 2.) Plaintiff, who speaks English, claims that Mr. Ross's comment was made in Spanish. (Docket No. 1, at 9, ¶ 44.) Also, plaintiff claims that the comment made by Mr. Ross was made with the intention of diminishing and insulting her because of her color. (Id. at 9-10, ¶ 49.)

In September 2007, TSI approved a golf outing in Dorado. (Docket No. 31-3, at 4-5.) Some of TSI's employees, including plaintiff and Mr. Hernández, attended the outing. (Id.) After the event, Marilyn Hernández, an employee of TSI, uploaded pictures of the outing on Facebook, a social networking website. (Id.) One of the pictures uploaded was of plaintiff, Mr. Hernández and other TSI employees. (Docket No. 31-5.) On the comments section of the website, plaintiff wrote the following: “... remind me that taking pictures in the shade is really a dis-service to my wonderful chocolate skin.” (Id.) Mr. Hernández responded to plaintiff's comment by writing the following: “That is why you always have to smile!!!!” (Id.) Plaintiff claims that Mr. Hernández' comment was racist. (Docket No. 1, at 10, ¶ 56.)

On December 1, 2007, several employees of TSI decided to personalize candy canes to put them as reindeer ornaments in the company's Christmas tree. (Docket No. 31-3, at 8.) Plaintiff personalized her candy cane by putting thumb tacks that resembled hair rollers on it. (Id. & Docket No. 31-4.) Like plaintiff other employees personalized candy canes to resemble themselves. (Docket No. 11, at 8, ¶ 73.) For instance, a very tall female employee included a figurine that was larger than the others. (Id.) Another female employee who is very short included a figurine that was much smaller than the others, while another female employee with curly hair curled up her figurine's antlers. (Id.) Plaintiff alleges that when she arrived at the TSI office she noticed that someone had painted her candy cane black and placed it at the top of the Christmas tree. (Docket No. 1, at 12, ¶¶ 67-68.) According to plaintiff, some of her co-workers were next to the Christmas tree commenting and laughing about the situation. (Id.¶ 69.) Plaintiff complained to TSI about the incident and an investigation was conducted. (Docket No. 31-4 & Docket No. 1, at 13, ¶ 74.) Besides the candy cane incident, TSI investigated the incident that allegedly took place during the Christmas gift-exchange as well as the Facebook incident. (Docket No. 31-6, at 2 & 11.) The investigation did not reveal who was the person responsible for painting plaintiff's candy cane black. (Id. at 20.) TSI, nevertheless, admitted that the candy cane incident was offensive. (Id.) As a preventive measure TSI informed plaintiff that it was going to review its harassment policy with all of its employees. (Docket No. 31-8.) On December 10, 2007, plaintiff resigned from TSI. (Docket No. 1, at 15, ¶ 88.) On that same date, plaintiff filed a claim before the Anti-Discrimination Unit (“ADU”) against TSI alleging race discrimination. (Docket No. 47-5.) On May 14, 2008, plaintiff requested a Notice of Right to Sue in connection with the December 10, 2007 ADU charge. (Docket No. 47-11.) The Right to Sue Letter, however, was not issued by the Equal Employment Opportunity Commission (“EEOC”) until September 30, 2008. (Docket No. 52-1, at 5-7.)

On or around October, 2008, TSI was retained to run a hospitality desk at the Grand Meliá Hotel in Río Grande, Puerto Rico, to provide sightseeing tours and transportation. (Docket No. 47-6, at 2-4.) On October 12, 2008, Trillis Pendelton who was a TSI contractor retained to man the Grand Meliá hospitality desk sent a written communication to Mrs. Ferguson complaining about some incidents allegedly involving plaintiff, who at the time was working for Dragonfly, a competitor of TSI. A follow up email was also sent by Mrs. Pendelton on October 13, 2008. (Docket No. 47-7, 47-8, at 2-6, ¶ 8; 47-6, at 3-5.) On October 24, 2008, Mrs. Ferguson contacted Yolanda Díaz by email to notify her that at the beginning of her employment with TSI, plaintiff had signed a non-compete agreement. (Docket No. 47-10.)

On December 24, 2008, plaintiff filed a complaint against TSI, Mrs. Ferguson, ² Mr. Ross, ³ Mr. Hernández ⁴ and Mr. Linares. ⁵ (Docket No. 1.) In essence, she alleges that the defendants discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a et seq. (Id. at 4, ¶ 25.) Plaintiff's complaint also includes various claims under the laws of Puerto Rico. (Id. at 7, ¶ 33.)

On April 29, 2010, the defendants filed their motion for summary judgment, statement of uncontested facts and supporting memorandum of law. (Docket Nos. 22, 23 & 24.) The defendants argue that plaintiff's hostile work environment claim and constructive discharge claim have to be dismissed because they are not supported by the allegations contained in the complaint. (Docket No. 24, at 15.) According to the defendants, plaintiff never experienced any discriminatory comments or actions while she worked for TSI. (Id. at 13.) They claim that TSI cannot be held responsible for the Facebook incident because the account did not belong to TSI and therefore TSI had no control over it. (Id. at 4 & 14.) According to the defendants, Mr. Hernández who allegedly was the one who wrote, had no authority to act on behalf of TSI via the Facebook account. (Id. at 8.) As to the discriminatory comment that Mr. Ross allegedly made and the candy cane incident, the defendants argue that Mr. Linares investigated both matters after plaintiff filed a complaint with Mrs. Ferguson. (Id. at 6 & 14.) In particular with respect to the candy cane incident the defendants claim that as part of the investigation Mr. Linares sent emails to every employee in TSI, who could have been implicated in the case, requesting an immediate interview with them. (Id. at 6.) Also, the defendants claim that Mr. Linares reviewed TSI's policy on sexual harassment with Mr. Ross, Mr. Héctor Pérez and Mr. Hernández as well as the EEOC's compliance manual. (Id. at 7.) With regards to the comment made my Mr. Ross, the defendants claim that Mr. Linares interviewed both Mr. Ross and plaintiff. (Id.) According to the defendants, plaintiff told Mr. Linares that she was unsure what Mr. Ross had said to her because the comment was made in Spanish. (Id.) As to Mr. Ross, the defendants claim the he denied making any discriminatory comment to plaintiff. (Id. at 14.) The defendants also claim that besides plaintiff and Mr. Ross, Ms. Olga Jiménez, Mr. Hernández, Mr. Pérez and Ms. Melissa Puello, who where all at the office when the alleged incident took place, were interviewed by Mr. Linares. (Id. at 8.) The defendants claim that after concluding the interviews, Mr. Linares found that there was no pattern of discrimination. (Id.) The defendants further argue that contrary to what plaintiff claims, she was not the only black employee at TSI. (Id. at 14-15.) They claim that Sharely Alamo Pagán, a black Puerto Rican woman, was also a fellow employee at TSI. (Id. at 15.) Finally, the defendants argue that plaintiff was not constructively discharged. (Id. at 2.) They claim that plaintiff resigned voluntarily after being informed of the results of the investigation conducted by Mr. Linares. (Id. at 5.)

On May 11, 2010, plaintiff opposed the defendants' motion for summary judgment. (Docket No. 31.) She contends that there are genuine issues of material facts with respect to whether she was subjected to racially discriminatory intimidation, ridicule and insult that altered the conditions of her employment at...