Velázquez-Pérez v. Developers Diversified Realty Corp.

• Citation: 753 F.3d 265
• Decision Date: 23 May 2014
• Docket Number: No. 12–2226.,12–2226.
• Parties: Antonio VELÁZQUEZ–PÉREZ, Plaintiff, Appellant, v. DEVELOPERS DIVERSIFIED REALTY CORP.; DDR PR Ventures II LLC, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

753 F.3d 265

Antonio VELÁZQUEZ–PÉREZ, Plaintiff, Appellant,

v.DEVELOPERS DIVERSIFIED REALTY CORP.; DDR PR Ventures II LLC, Defendants, Appellees.

No. 12–2226.

United States Court of Appeals, First Circuit.

May 23, 2014.

Anibal Escanellas–Rivera, with whom Escanellas & Juan, P.S.C. was on brief, for appellant.

Carl Schuster, with whom Migdalí Ramos Rivera and Schuster Aguiló LLP, were on brief, for appellees.

Susan R. Oxford, Attorney, U.S. Equal Employment Opportunity Commission, with whom P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, and Lorraine C. Davis, Assistant General Counsel, were on brief, for amicus curiae Equal Employment Opportunity Commission.

Before TORRUELLA, BALDOCK,^* and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

This appeal involves several issues, including a legal question we have not previously considered: Under what circumstances, if any, can an employer be held liable for sex discrimination under Title VII of the Civil Rights Act of 1964 when it terminates a worker whose job performance has been maligned by a jilted co-worker intent on revenge? We answer that the employer faces liability if: the coworker acted, for discriminatory reasons, with the intent to cause the plaintiff's firing; the co-worker's actions were in fact the proximate cause of the termination; and the employer allowed the co-worker's acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

Based on this answer, and on our consideration of the terminated employee's claims of harassment and retaliation for asserting rights under Title VII, we vacate in part the grant of summary judgment against the employee on his sex discrimination claim, and otherwise affirm the judgment of the district court.

I. Background

Antonio Velázquez–Pérez (Velázquez) sues his former employer, DDR Corp., ¹ for sex discrimination and retaliation under Title VII. Recognizing that the district court granted summary judgment to DDR before any factfinder could evaluate the competing evidence and inferences, we describe the facts giving rise to this lawsuit in a light as favorable to Velázquez as the record will reasonably allow, without implying that the following is what actually occurred. Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir.2013).

In June 2007, Velázquez began work as an operations manager for DDR, a company that owns and manages shopping centers. In November 2007, the company promoted Velázquez to the position of regional general manager at the company, which he held until DDR fired him on August 25, 2008. In that role, Velázquez oversaw several of DDR's properties and managed a number of subordinates. Velázquez was directly supervised by Rolando Albino and indirectly supervised by Albino's boss, Francis Xavier González (“González”), who was in charge of the company's operations in Puerto Rico.

Velázquez, a man, also interacted extensively at work with a woman named Rosa Martínez. Martínez was the representative of DDR's human resources department for Puerto Rico. Her portfolio included both human resources and accounting duties. As a human resources manager, she provided advice to management on human resource issues, including employee discipline. In performing her accounting duties, she also gave direction to company managers, including Velázquez, on their compliance with company budget and accounting practices.

Velázquez and Martínez communicated frequently by phone and email. Velázquez admits that during the first ten months of his employment he had a good working relationship with Martínez. The two sometimes flirted with each other, and when Martínez occasionally expressed her romantic interest more explicitly, Velázquez gently rebuffed her.² Velázquez does not claim that he perceived Martínez's behavior during this period as harassing.

Velázquez testified, however, that any flirtatious relationship with Martínez ended in April 2008. On April 10, they had both traveled to the United States for a company meeting and were staying at the same hotel. That evening, Velázquez was walking in the hotel with two female employees of DDR when Martínez appeared in their path. Martínez asked, “what are you guys doing?” Martínez followed Velázquez to his room and, when Velázquez opened his door, tried to force her way in, then stood outside the door. When Velázquez threatened to call security, Martínez left. Immediately afterwards, Martínez sent multiple emails to Velázquez and one of the women he was with, suggesting that Velázquez was going to have sex with the woman. Martínez also called Velázquez's room multiple times.

In the days after the incident, Velázquez and Martínez exchanged angry emails in which Velázquez firmly stated that he had no interest in a romantic relationship and asked Martínez to respect that decision.³ Martínez responded angrily, making statements that Velázquez perceived as threatening to have him fired for rejecting her. Martínez wrote, for example, “I don't have to take revenge on anyone; if somebody knows your professional weaknesses, that person is me.” In another email in the same chain, Martínez said, “you disappoint me and ... are not even half of what you boast you are,” adding, “I cannot allow any of you to risk the team's success.” Furthering supporting his perception that Martínez was threatening him, Velázquez cites testimony from one of their co-workers who reportedly heard Martínez tell Velázquez, “you are nothing without me,” in a way that the coworker thought was meant to be intimidating.

Shortly after the hotel encounter, Velázquez complained orally about Martínez's behavior to his supervisor Albino. Albino advised Velázquez to “[s]end [Martínez] a conciliatory email” because, if Velázquez did not, “[s]he's going to get you terminated.” Then, Albino and another man jokingly suggested to Velázquez that he should have sex with Martínez. In the summer of 2008, Velázquez complained further about Martínez's behavior to both Albino and González. Though Velázquez never filed a written complaint, DDR does not claim that it maintained any formal complaint procedure with which Velázquez failed to comply.

Meanwhile, Martínez began discussing Velázquez's job performance with Albino and González, including copying them on emails to Velázquez which can be read as critical of his work. Martínez, Albino, and González began to extensively discuss a number of other accusations against Velázquez in August 2008 that originated from sources other than Martínez, including Albino's own criticisms of his subordinate's work. Martínez summarized the allegations against Velázquez in an email to the others on August 18, 2008, stating “I understand that you need to verify the following issues in your meeting that were brought to my attention by the staff, which, if confirmed, I understand, and in comparison with other previous situations, would cause the termination of employment.”

Two days later, Albino sent a memo to Martínez and González detailing a meeting with Velázquez's subordinates, which Albino suggested largely confirmed the allegations against Velázquez. Albino concluded that Velázquez needed to be disciplined and, “if necessary,” fired. But González, the top company official in Puerto Rico, thought that termination was not yet justified, writing that he would instead issue a “formal warning memo” and “recommend a 30 day PIP [Performance Improvement Plan]” to encourage Velázquez to “improve in his attendance and punctuality.”

Martínez, however, was not to be deterred so easily in her attempt to convince Velázquez's bosses to fire him. In an email sent on the afternoon of August 21, she responded that she was “obligated to refer this” to two senior officials at the company's headquarters in Ohio: Nan Zieleniec, the company's Senior Vice–President for Human Resources, and Diane Kaufman, the Director of Employment and Employee Relations.

That same day, Velázquez saw Martínez at a hotel in Michigan where they both were staying for a business meeting. When Velázquez got in an elevator to go to his hotel room, Martínez followed him into the elevator and then out when he got to his floor. Martínez told Velázquez that she didn't love her husband, that she did love Velázquez, and that she wanted to have a romantic relationship with him. Velázquez found Martínez's statements and conduct to be disturbing, like those of “a mentally ill person.” He told Martínez that he did not want to have a romantic relationship with her and that she should stop following him, which she eventually did.

Later that night, Martínez sent an email to Zieleniec and Kaufman in Ohio. Although that email included her earlier correspondence with González, she did not copy him on the email. In a long note, Martínez wrote that she was “in disagreement with having this person in a PIP plan,” as González had suggested, “because his behavior has been against the company code of conduct and has already impacted the trust from other team members.” Martínez continued: “It is my recommendation this person is terminated immediately.”

Four days later, on August 25, 2008, Velázquez was summoned to a meeting with Albino and González. After González asked Velázquez about his absences from work, and received answers he regarded as inconsistent with what Martínez and Albino had told him, González decided to terminate Velázquez's employment. On a written form, the reasons listed for Velázquez's firing were “[a]bsenteeism,” “[f]ailure to report,” and “[u]nsatisfactory performance.” ⁴

II. Standard of Review

We review de novo the district court's grant of summary judgment to DDR. McArdle v. Town of Dracut, 732 F.3d 29, 32 (1st Cir.2013). Under Federal Rule of Civil Procedure 56, a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment...