Hernandez-Torres v. Intercontinental Trading, Inc.

• Citation: 158 F.3d 43
• Decision Date: 01 June 1998
• Docket Number: HERNANDEZ-TORRES,No. 97-2163,97-2163
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 90, 74 Empl. Prac. Dec. P 45,596, 41 Fed.R.Serv.3d 1171 Edward, et al., Plaintiffs, Appellants, v. INTERCONTINENTAL TRADING, INC., et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 43

158 F.3d 43

78 Fair Empl.Prac.Cas. (BNA) 90, 74 Empl.

Prac. Dec. P 45,596,

41 Fed.R.Serv.3d 1171

Edward HERNANDEZ-TORRES, et al., Plaintiffs, Appellants, v. INTERCONTINENTAL TRADING, INC., et al., Defendants, Appellees.

No. 97-2163.

United States Court of Appeals, First Circuit.

Heard June 1, 1998.

Decided Oct. 13, 1998.

Kevin G. Little, with whom Law Offices David Efrn was on brief, for appellants.

Jose R. Garca-Perez, with whom Bufete Bennazar, C.S.P. was on brief, for appellees.

Before BOUDIN, Circuit Judge, SCHWARZER, ^* Senior District Judge, and SARIS, ^** District Judge.

SCHWARZER, Senior District Judge.

Edward HernandezTorres, his wife Mara de los Angeles Jimenez, and the conjugal partnership constituted between them (collectively "Hernandez") sued Master Foods Interamerica ("MFI") and its parent company, Mars, Inc. ("Mars"), for religious discrimination in violation of 42 U.S.C. §§ 2000e-2, e-3 ("Title VII") and Puerto Rican Law. ¹ Hernandez alleged in his complaint that MFI subjected him to a hostile work environment and constructively discharged him.

At the conclusion of the jury trial, the district court granted judgment as a matter of law to defendants on the constructive discharge claim. The jury returned a verdict in favor of defendants on the hostile work environment claim. Hernandez moved for a new trial pursuant to Federal Rules of Civil Procedure 59, which the district court denied.

Hernandez appeals from the district court's judgment as a matter of law and the denial of his motion for a new trial. We have jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and we affirm.

BACKGROUND

Hernandez began working for MFI in 1987, first temporarily and later permanently, as an accounts payable clerk. He was supervised by Angel Rodrguez in 1988, Hector Rodrguez in 1991, and Julio Ocampo throughout his employment.

He had become involved with a Christian group known as Defensores de la Fe shortly before he obtained a position at MFI. He alleges that his supervisors, including Ocampo, were fully aware of his fundamentalist beliefs when they offered him a job and that he rarely engaged in religious activities during scheduled work hours.

Hernandez made the following allegations of religious discrimination and retaliation:

A. 1988 Incident with Angel Rodrguez

Hernandez contends that Angel Rodrguez repeatedly told offensive religious jokes in his presence and unjustly criticized Hernandez' work. Hernandez lashed out at Rodrguez on one such occasion, prompting Rodrguez to reprimand Hernandez in writing for insubordination and the use of profane language. He responded with a complaint in which he alleged that Rodrguez was persecuting him for religious reasons. Upon Ocampo's intervention, Hernandez admitted his insubordination and apologized in writing.

B. 1991 Incident with Ocampo

Ocampo spotted Hernandez reading the Bible during his lunch break sometime after the summer of 1991. Although Ocampo knew that Hernandez was at lunch, he told Rodrguez to instruct Hernandez to stop reading the Bible. Hernandez did not file a complaint or make a written record of the incident.

Hernandez received training for MFI's new accounting system in 1992. Shortly thereafter, Ocampo granted Hernandez' request for a temporary employee to help Hernandez implement the accounts payable systems and complete his preexisting duties. Hernandez later began working with the refurbished payroll conversion system.

C. September 2, 1992, Incident with Ocampo

On September 2, 1992, Hernandez was on the telephone when a coworker passed him a religious pamphlet. Hernandez alleges that Ocampo noticed the religious tract on his desk, called him into a conference room and threatened to fire him if he was caught reading or even speaking of religious matters again. Hernandez consulted Nellie Negrn, MFI's personnel manager, the same day and attempted to file a state insurance fund application to obtain treatment for stress. Negrn dissuaded him from filing the claim and he eventually attended sessions with MFI's in-house psychologists. Hector Rodrguez sent Hernandez a memorandum on September 3 requesting that he refrain from reading nonjob-related materials during work hours. Hernandez wrote a letter clarifying that he had been reading religious literature and apologizing for his conduct. He contends that Ocampo challenged him to a fight after reading this letter, which prompted Hernandez to apprise the personnel department of the encounter and resubmit his state insurance fund application. Negrn's assistant arranged a meeting with Ocampo and various MFI officials to discuss the incident. Ocampo extended an apology to Hernandez after the meeting, which he accepted.

Hernandez alleges that despite Ocampo's apology, his employment situation worsened following the September 1992 incident. Specifically, he felt pressured to complete his assigned tasks in eight hours and feared that working overtime would result in his discharge from MFI. In fact, he was granted overtime each time he requested it and was the only accounting employee who received payment for the extra work. Hernandez also noted a marked increase in electronic messages assigning him additional duties commenting on his lack of productivity after September 1992. However, his supervisors, including Ocampo, continued to commend his performance, and Ocampo approved the hiring of another temporary employee to ease Hernandez' burden in November 1992.

Hernandez resigned on February 2, 1993, after learning that Ocampo had decided to terminate his temporary help. Rodrguez confirmed Hernandez' resignation in a February 2 memo which made no reference to religious discrimination. At Ocampo's request, Hernandez continued to work until the end of the week. Although Hernandez initially cited stress-related reasons for his resignation, in a February 5 memorandum he referred to the September 1992 incident with Ocampo as the source of his employment difficulties.

DISCUSSION

I. REFUSAL TO INSTRUCT ON RETALIATION

The district court denied Hernandez' motion for a new trial, rejecting his contention that the court should have instructed the jury on the retaliation claim. It stated that it refused to give an instruction because "there was no evidence in the Record to support the allegation that Defendants discriminated against Plaintiff as a result of his opposition to any alleged employment practice." ² Hernandez contends that the court erred in refusing to instruct on retaliation. He argues that Ocampo's retaliatory conduct, which resulted in a workplace permeated with harassment and in Hernandez' ultimate "discharge," was supported by substantial evidence at trial.

Title VII makes it unlawful for an employer to retaliate against an employee:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation in the workplace, Hernandez must demonstrate that: (1) He engaged in protected conduct under Title VII; (2) he suffered an adverse employment action; and (3) the adverse action is causally connected to the protected activity. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.1996).

manner in an investigation, proceeding, or hearing under this subchapter.

We assume for purposes of this disposition that Hernandez engaged in protected activity and that his informal complaint to the personnel department constituted sufficient opposition. His appeal fails, however, because he did not suffer an adverse employment action. Section 2000e-3 encompasses a variety of adverse employment actions, including demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees. See Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir.1994) (citing 3 Arthur Larson & Lex K. Larson, Employment Discrimination, § 87.20, at 17-101 to 17-107 (1994)). The evidence reflects none of such actions.

Hernandez complains that he received an increased amount of electronic messages which contained onerous assignments and what Hernandez interpreted as critical reports on his productivity. This influx of electronic messages does not, however, rise to the level of an adverse action because MFI supervisors similarly urged all MFI accounting employees to implement the new systems quickly and efficiently. Significantly, Hernandez continued to receive favorable performance evaluations from his supervisors, including a November 25 memorandum lauding his installation of the payroll system. Ocampo's alleged admonition that Hernandez complete his work within an eight hour period "or else" does not constitute adverse action. Hernandez was granted overtime each time he requested it and was the only accounting employee who received temporary assistance and payment for working overtime. Cf. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997) (holding that divesting employee of assignments and responsibilities establishes an adverse employment action).

Hernandez has failed to offer facts indicating that his informal complaint caused any adverse actions. Specifically, Hernandez' accusations are "lacking in the concrete documentation necessary to prove the causal link between [his] protected activity and [his] retaliatory treatment." See Ramos v. Roche Prods., Inc., 936 F.2d 43, 49 (1st Cir.1991). First, the additional responsibilities outlined in the electronic messages, though onerous, resulted from a policy that Hernandez agreed to implement long before Ocampo asked him to "go outside." See, e.g., Hoeppner v. Crotched Mountain Rehabilitation Ctr., Inc., 31 F.3d 9, 16 (1st Cir.1994) (holding that employee failed to establish causal link...