Hernandez v. Wangen

• Decision Date: 01 August 1996
• Docket Number: Civil No. 95-1611 (HL).
• Citation: 938 F. Supp. 1052
• Parties: Elba Colón HERNANDEZ, Plaintiff, v. Patrick WANGEN et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

938 F. Supp. 1052

Elba Colón HERNANDEZ, Plaintiff, v. Patrick WANGEN et al., Defendants.

Civil No. 95-1611 (HL).

United States District Court, D. Puerto Rico.

August 1, 1996.

COPYRIGHT MATERIAL OMITTED

Maricarmen Almodovar-Diaz, Hato Rey, PR, for Elba Colón-Hernández.

Rafael Cuevas-Kuinlam, Hato Rey, PR, Antonio Cuevas-Delgado, Cuevas, Kuinlam & Bermudez Banco de Ponce, Hato Rey, PR, for Patrick Wangen, Palmas Del Mar Homeowners Association, Inc.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff, Elba Colón Hernández ("Colón"), formerly an administrative assistant at the Palmas del Mar Homeowners Association, Inc. ("P.M.H.O.A.") from April 3, 1989 until February 25, 1994, has filed a sexual harassment suit against her supervisor Patrick Wangen, the Executive Director of the P.M.H.O.A. since 1981, and the P.M.H.O.A. Defendants have moved for partial summary judgment. Plaintiff opposes the requested relief. The Court shall apply the well-settled standard of review on a motion for summary judgment. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 894-95 (1st Cir. 1988).

On the one hand, Defendants argue that there are no genuine issues of material fact in dispute regarding three legal matters: (1) the severity or pervasiveness of the alleged sexual harassment under Title VII; (2) the 300 day statute of limitations under Title VII; and, finally, (3) Plaintiff's claim of retaliation. Because the Court concludes that there are genuine issues of material fact in dispute, Defendants' motion for summary judgment on these claims is denied.

On the other hand, however, Defendants persuasively argue that there is no genuine issue of material fact in dispute regarding the personal liability of co-Defendant Wangen under Title VII. The Court, therefore, grants co-Defendant Wangen's motion for summary judgment and dismisses Plaintiff's Title VII claim against Wangen with prejudice. Simultaneously, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining claims against Wangen and, therefore, dismisses Plaintiff's claims against him under Law 17, Law 69, Law 100, Article 1802, and the Puerto Rico Constitution without prejudice.

I. FACTS:¹

In 1972, the residents of Palmas del Mar in Puerto Rico formed a homeowners association called P.M.H.O.A. to maintain the community property and enforce all of the community's covenants and restrictions. A board of directors representing the corporate owners and the homeowners manage the association. Because the board only meets six times each year, the association established an office in Palmas del Mar with five fulltime employees to manage the properties. Since 1981, Patrick Wangen, a co-Defendant in this case, held the highest position in the association as the Executive Director.

On April 3, 1989, Wangen hired Plaintiff as his administrative secretary. Plaintiff's duties included distributing the correspondence of the P.M.H.O.A. employees and residents, addressing complaints about the Cable TV Service, preparing minutes for the Board of Directors' meetings, and distributing parking permit signs for the residents of the community. According to Plaintiff, while Plaintiff attempted to complete her duties, Wangen created a sexually hostile and abusive environment.

Plaintiff alleges that Wangen frequently made sexually explicit remarks to her or around her.² These comments included: (1) stating that the women of Puerto Rico are the most beautiful women in the world and that the best combination was an American man with a Puerto Rican woman; (2) stating that Plaintiff should be glad that she was not his wife; (3) asking Plaintiff up close whether she knew what a "nooner" was and later stating that a "nooner" was a person who had sexual relations at noon; (4) commenting that Plaintiff was going out with a man older than him; (5) mailing Plaintiff a small card on which he wrote: "My irreplaceable assistant, welcome back, I miss you. Pat;" (6) asking her what type of gift she wanted upon his return from a trip; and (7) throwing pornographic material on Plaintiff's desk and asking her to select a few of the movies that they could watch together.³

The latter "pornographic incident" began when an advertisement for video cassettes addressed to Wangen arrived in the mail from the Institute of Video Research. After Wangen received the material, he told Plaintiff that she liked action movies and threw the material on her desk. When another employee suggested that Wangen buy a few of the videos for educational purposes, Wangen commented that he was waiting for Plaintiff to order the videos that she liked. While Wangen made these comments, Plaintiff read the first two sentences of the correspondence which states: "Why have the new wave Slice of Life videos become the most sought after hard-core videos in the U.S.? Why have these raw, explicitly, unbelievably kinky explorations into anal, oral and genital love struck such a responsive cord." Plaintiff considered the material pornographic and felt humiliated when Wangen and another employee proceeded to laugh about the entire incident.

Plaintiff also alleges that Wangen frequently touched her physically without her consent or approval. Plaintiff asserts that Wangen (1) spanked her on the buttocks at a social gathering of the office and the maintenance people, (2) spanked her on the buttocks at a photography session during a social gathering of the P.M.H.O.A. staff, (3) stepped behind Plaintiff in the office kitchen and rubbed her neck up and down while stating that he did not know whether he liked her better with short hair or long hair, (4) played around with Plaintiff's headset while she had it on, and (5) touched her legs when reaching for the diskette file underneath Plaintiff's desk.⁴

Finally, Plaintiff also alleges that Wangen and other employees perpetuated an abusive environment through several nonsexual hostile and offensive acts. Plaintiff complains that Wangen demanded that she perform data entry tasks for two consecutive months, limited her responsibilities by telling her not to resolve any further problems of the homeowners, and occasionally told her not to return to work after taking her vacation. Furthermore, on November 15, 1993, Plaintiff alleges that several members of the Board of Directors made sexual jokes concerning a "Super Selective Sucking Machine." The members laughed about how the beach cleaning machine really "sucks" effectively. Embarrassed and humiliated by the implications of the conversation, Plaintiff asserts that this meeting contributed to the abusive environment.

Plaintiff complained about the hostile environment at least four times. First, in late 1992, Plaintiff complained to P.M.H.O.A.'s director Luis Rivera about Wangen spanking her buttocks during a photography session and other similar offensive behavior. Second, in September 1993, Plaintiff again voiced her concerns about Wangen's conduct to Luis Rivera. Initially, Rivera advised Plaintiff to draft a letter to the President of the P.M.H.O.A. describing Wangen's offensive actions. After Plaintiff complied and drafted a letter mentioning the "pornography incident" and other offensive sexual behavior, Rivera changed his mind and told Plaintiff that the letter was unnecessary. Rivera informed Plaintiff that everything was better. Third, on November 1, 1993, Plaintiff complained to the President of the P.M.H.O.A. about the "Super Selective Sucking Machine" board meeting. In response, the President apologized on behalf of the Board for causing any discomfort to Plaintiff, explained that the comments made during the meeting were not intended to have any sexual connotations, and warned each of the Board members that such comments offended Plaintiff.

Finally, on November 4, 1993, Plaintiff met with several of the members on the Board of Directors to discuss Wangen's sexually harassing behavior. At this meeting, Plaintiff complained about the "pornography incident," the spanking of her buttocks, Wangen's use of "bad words," and the pressure Wangen imposed upon her by constantly inquiring into what she was doing and limiting her work related responsibilities. As a result, the Board met with Wangen and warned him that if the allegations turned out to be true he would be subject to disciplinary action including an involuntary dismissal from his position. In response, Wangen wrote a letter to the Board vehemently denying that these incidents involved sexual harassment. Wangen asserted that Plaintiff was bringing these false allegations in retaliation for the negative evaluations that she received from him and the gradual alteration in her job responsibilities.

Despite Plaintiff's repeated complaints, Plaintiff maintains that P.M.H.O.A. did absolutely nothing to stop Wangen from creating a hostile work environment. According to Plaintiff, P.M.H.O.A. did not conduct an investigation, did not discipline Wangen, and never reprimanded him for his conduct. Consequently, on February 17, 1994, Plaintiff filed a sexual harassment complaint with the Equal Employment Opportunity Commission ("E.E.O.C.") describing in detail many of the allegations of sexual harassment. Eight days later, on February 24, 1994, P.M.H.O.A. informed Plaintiff that her position as administrative secretary had been eliminated to save money for the homeowners and, as of 5:00 P.M. that same day, she was no longer an employee of P.M.H.O.A.

P.M.H.O.A. maintains that, at the request of the Palmas del Mar homeowners, it initiated several major changes in its operations in 1992 and 1993 which included the elimination of Plaintiff's administrative assistant/secretary position. The elimination of Plaintiff's position, in addition to the elimination of the Architectural Review Board Coordinator position and the reduction of the accounting clerk position to part-time, was designed to save costs as the P.M.H.O.A. implemented an expensive system to control the...