Linda Vera v. Mchugh

• Decision Date: 06 October 2010
• Docket Number: No. 08-1886.,08-1886.
• Citation: 622 F.3d 17
• Parties: Rosa Linda VERA, Plaintiff, Appellant, v. John McHUGH, * Secretary of the Army, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

622 F.3d 17

Rosa Linda VERA, Plaintiff, Appellant,

v.John McHUGH, ^* Secretary of the Army, Defendant, Appellee.

No. 08-1886.

United States Court of Appeals,First Circuit.

Heard March 4, 2010.

Decided Oct. 6, 2010.

Vilma M. Dapena-Rodríguez for appellant.

Rebecca E. Ausprung, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and R. Brian Bohlen, Special Assistant U.S. Attorney, U.S. Army Litigation Division, were on brief, for appellee.

Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

In this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), the plaintiff, Rosa Linda Vera, alleged that she was sexually harassed by a coworker and subsequently by a supervisor at the Fort Buchanan Army garrison in Puerto Rico, and then fired in retaliation for filing her sexual harassment complaints. Both claims of sexual harassment involved allegations depicting a hostile work environment. The district court found that Vera's first sexual harassment claim was not properly before it because she had failed to exhaust her administrative remedies and her equitable estoppel argument did not excuse the failure. On the merits, the court granted summary judgment for the defendant on Vera's second sexual harassment claim and her retaliation claim.

After careful consideration, we affirm the district court's grant of summary judgment to the defendant on Vera's first claim of sexual harassment and on her retaliation claim. Finding that Vera has created a genuine issue of material fact on her second sexual harassment claim involving her supervisor, Raul Rodriguez, we vacate the district court's grant of summary judgment on that claim and remand for further proceedings consistent with this opinion.

I.

We recite the facts in the light most favorable to Vera, the nonmoving party. See Agusty-Reyes v. Dept. of Educ. of P. R., 601 F.3d 45, 48 (1st Cir.2010).

A. Sexual Harassment Complaints

Vera began working for the Army as a civilian administrative assistant in the El Caney Lodge of Fort Buchanan in April 2002 and was promoted six months later to the position of administrative coordinator in the Training Support Center Division. On January 30, 2003, she met with an internal Equal Employment Opportunity (“EEO”) office counselor to report that she was being sexually harassed by a co-worker, Mario Morales. The counselor filled out a “Pre-Complaint Intake Interview” form in February 2003 in which he recorded Vera's informal complaint. On the form, he indicated that he provided Vera with a handout entitled “Rights and Responsibilities” and that he specifically advised her of “[t]he basis(es) for filing pre-complaint, formal complaint, and/or class complaint, and of right to file,” “the pre-complaint, formal and/or class complaint process,” “the 45-day requirement from effective date of personnel action or of the date of the matter alleged to be discriminatory contact,” and the role of the EEO counselor, among other things. Although the counselor's notes on the form stated that Vera was “satisfied with the response and clarification provided by management” and “would not proceed with her EEO allegation” while she gave management time to “improve the work place,” the EEO office never recorded the resolution of Vera's informal complaint in a document containing her signature. At some point in early October 2004, as part of the resolution of her complaint, Vera was moved to a different area where she would have an office with privacy and a door. According to Vera, she did not consider the matter resolved either by that location change or by any other steps taken by the EEO office.

On September 30, 2004, shortly before moving offices, Vera had a dispute with Rafael Contreras, the Acting Chief of the Training Division at Fort Buchanan. Vera was issued a disciplinary letter by Hector López, the Director of Plans, Training, Mobilization, and Security, after Contreras reported that Vera responded in a loud, disruptive and insubordinate manner when she was asked the status of an overdue work assignment. According to Contreras' report, when he asked Vera about her project, she told him she was not going to do the work and asked him why he did not do it himself. According to Vera's deposition testimony, Contreras called her a pig. Vera left her workstation immediately after the incident to report it to López. After seeing López, she left the base. The disciplinary letter issued by López reminded Vera that “unless otherwise indicated by management/supervisor, your place of duty is at Bldg 511” and “whatever duties you must do should be done in the office/workplace.” The letter warned Vera that “future instances on [sic] leaving the work area without informing your supervisor or not requesting leave may be charged absent without leave (AWOL). This may lead to more severe disciplinary actions if it is not adhered too [sic].”

In October 2004, Raul Rodriguez became the Chief of the Training Division at Fort Buchanan, replacing Contreras. As such, he was Vera's direct supervisor. According to Rodriguez, when he assumed the position, he was informed that there had been a problem between Vera and Contreras, but he was not made aware of Vera's January 2003 informal sexual harassment complaint against Morales. Rodriguez became aware of Vera's complaint against Morales in approximately December of 2005.

It appears that Rodriguez was not officially assigned an office of his own when he assumed his new position. Instead, according to Vera, he “worked out of” her office, which had a computer with an internet connection. In her deposition, she stated that it was “his primary office just like mine.” Rodriguez asserts, and Vera does not dispute, that there were no other offices in that building with computers connected to the internet. Vera suggests, however, that Rodriguez could have worked from another supervisor's office, which she describes as “five times the size” of her own. ¹ There was also an empty office in the building with computers but no internet connection where Vera could go, and did on occasion occupy, when Rodriguez was using the computer in her primary office. Vera was the only woman working in that building at Fort Buchanan.

Rodriguez and Vera used the same office for approximately three months during a period from October 2004 to the beginning of March 2005. ² According to Vera, Rodriguez was in their shared office “most of the time,” although he did leave to go to meetings. During the time that she and Rodriguez were using the same office, Vera described herself as experiencing “a constant invading [of] my space.” She described how Rodriguez would sit staring at her while they were in the office with the door closed and would block the door as she tried to leave. Vera explained that Rodriguez would look at her in a sexual way and then “smirk and laugh” because he knew it bothered her. At times, Rodriguez would move his chair so close that their legs would touch, or he would stand close behind her so that she could feel his breath. Although Vera acknowledged that the office was small and was not big enough for the two of them, she maintained that the touching could not have been accidental. Vera told Rodriguez not to invade her space. In response, Rodriguez moved away from her, but according to Vera it happened again until “after a while, I guess he knew I was serious.”

Vera stated that Rodriguez invaded her space in public as well as in the confines of the office. When asked to elaborate, she described one incident, at an unspecified date, when Rodriguez came too close to her in front of a coworker and a client forcing her to leap away to avoid contact with him. Vera also described objectionable comments Rodriguez made to her. On one occasion, Rodriguez referred to Vera as “Baby,” while on another, he told her on a stormy day that her “hair looked like the weather,” a comment she found to be derogatory and offensive to her “as a woman.”

When asked during an EEO investigation about the effect of Rodriguez's behavior on Vera, Yarita Lopez, an operations specialist who was one of Vera's friends on the base, stated, “I witnessed every single day her emotional distress that I never ... saw [ ] before his arrival to the division.” She described the distress as “constant,” and explained, “[i]t was not only physically, but mentally and emotionally.” She described Vera as having “outbursts of crying and disbelief and despair of every single action that he was doing.” A note from Vera's doctor written in April 2005 also attests to this severe emotional toll. The note states that Vera would need to be out of work from March 18, 2005 through May 18, 2005 due to “Depression Disorder with Anxiety, affected by the work environment.”

The shared office arrangement ended sometime in late February or early March 2005 when Vera began to work out of the empty office in order to avoid Rodriguez in her own office. She was later moved to yet another office as part of a large office reorganization coordinated by Rodriguez. Vera filed an informal sexual harassment complaint against Rodriguez on May 4, 2005.

B. Retaliation

Given the complicated history underlying Vera's retaliation claim, and given the importance of the sequence of events to an evaluation of her claim, we have divided the account of the relevant facts into discrete time periods.

1. December 21, 2004 through March 3, 2005: Vera's Initial Extended Absence and Rodriguez's Response

During the time that she and Rodriguez were using the same office, from October 2004 through March 21, 2005, Vera was absent from work for over a month, from late December 2004 until the beginning of February, 2005. On December 21, 2004, Vera and Rodriguez discussed her need for time off to attend to her health issues and those of her children. ³ Vera had been absent or left early frequently in order to go to appointments with doctors or take her children...