Vizcarrondo-Gonzalez v. Perdue
| Decision Date | 20 March 2020 |
| Docket Number | CIVIL NO. 16-2461 (PAD) |
| Parties | ANA VIZCARRONDO-GONZALEZ, Plaintiff, v. SONNY PERDUE, SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE (USDA), et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Plaintiff Ana Vizcarrondo-González initiated this action against the U.S. Department of Agriculture and the Secretary of Agriculture, Thomas Vilsack (collectively "USDA") and Eliud Rivera, a co-worker, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., the U.S. Constitution and Puerto Rico law, including Puerto Rico's general tort statute, Article 1802 of the Civil Code, P.R. Laws Ann. tit. 31 § 5141.1 Initially, the court dismissed all claims against Rivera except for the Article 1802 claim (Docket No. 20). Further, it issued a show cause order as to why, other than the tort claim, the state and constitutional claims should not be dismissed as to the USDA (Docket No. 22). Plaintiff responded asking that those claims be dismissed (Docket No. 27). In consequence, the claims were dismissed (Docket No. 28). As a result, three claims remain: discriminatory and retaliatory hostile work environment claims under Title VII and the tort claim in connection with Puerto Rico law.
Defendants answered the complaint denying liability (Docket Nos. 18 and 23). Following discovery, the USDA filed a motion for summary judgment (Docket No. 36), which Rivera joined (Docket No. 39). Plaintiff opposed the motion (Docket No. 44). The USDA replied (Docket No. 50), and plaintiff sur-replied (Docket No. 56). On March 31, 2019, the court granted in part and denied in part the USDA's motion for summary judgment (Docket No. 61). As explained below, whereas the Title VII claims must be dismissed, analysis of the tort claim requires further briefing in light of the Federal Tort Claims Act ("FTCA").
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). It is "material" if it potentially affects the outcome of the case in light of applicable law. Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
All reasonable factual inferences must be drawn in favor of the party against whom summary judgment is sought. See, Shafmaster v. U.S., 707 F.3d. 130, 135 (1st Cir. 2013)(so noting). To resist summary judgment, however, the nonmovant must do more than show some metaphysical doubt as to a material fact. See, Matsushita Elec. Inds. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(articulating proposition). Conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative, however, will not suffice to ward off a properly supported summary judgment motion. See, Nieves-Romero v. U.S., 715 F.3d 375, 378 (1st Cir. 2013)(applying principle).
Based on these parameters, careful record review shows absence of genuine factual dispute as to the facts identified in the section that follows. The facts are set against the background of the legal issues to be addressed, namely: exhaustion of prescribed administrative remedies; equitable estoppel; sufficiency of the employer's response to plaintiff's allegations against Rivera; the merit of plaintiff's claims of gender-based and retaliatory hostile work environment; and the tort claim under Article 1802 of the Civil Code and the FTCA.
At the time of relevant events, plaintiff was a G-7 Plant Protection and Quarantine Officer ("PPQO") with the Animal and Plant Health Inspection Service ("APHIS") of the USDA assigned to the San Juan International Airport in Puerto Rico (Docket No. 1). PPQOs serve as a liaison for the APHIS on operational activities and work with state and federal officials and others interested in activities affected by plant quarantine programs. See, Docket No. 37, "Statement of Material Uncontested Facts in Support of Motion for Summary Judgment" ("SUMF"), ¶ 4; Docket No. 44-1, "Plaintiff Vizcarrondo's Response to the Defendant Sonny Perdue, Secretary of the U.S. Department of Agriculture's Statement of Uncontested Material Facts Pursuant to Local Rule 56(c), (e)" ("OSUMF"), p. 1. They perform specialized duties related to biosecurity, minimizing the risk of biological and economic damage caused by exotic, non-native plant and animal organisms to agriculture, natural resources and U.S. trade initiatives involving overall plant health activities. Id.
Rivera was a G-5 Plant Protection and Quarantine Technician ("PPQT") with the APHIS assigned to the San Juan International Airport. See, SUMF (Docket No. 37), ¶ 5; OSUMF (Docket No. 44-1), p. 1. A PPQT works under the general and technical supervision of a PPQO. See, SUMF (Docket No. 37), ¶ 5; OSUMF (Docket No. 44-1), p. 1. Thus, Rivera was not plaintiff's supervisor. Her position was of a higher hierarchical standing than Rivera's position within the Plant Protection and Quarantine Program. Id.
On May 24, 2014, plaintiff met with her immediate supervisor, José Sánchez, to report that Rivera had sexually harassed her the day before, and that he had behaved inappropriately on previous occasions. See, SUMF (Docket No. 37) ¶ 6; OSUMF (Docket No. 44-1), p. 1.3 At Sánchez's request, the same day plaintiff submitted a letter detailing the alleged incident with Rivera. See, SUMF (Docket No. 37) ¶¶ 7-8; OSUMF (Docket No. 44-1), p. 1. To this end, the letter expressed that, while plaintiff was in the pre-departure operations office, Rivera walked in and stated "Ave Maria, each time that I eat an ice cream cone and lick it I think of Ana." See, SUMF (Docket No. 37) ¶¶ 8-9; OSUMF (Docket No. 44-1), p. 1.4 After making this comment, Rivera licked the cone, making a suggestive motion with his tongue. See, SUMF (Docket No. 37) ¶ 9; OSUMF (Docket No. 44-1), p. 1. The letter identified another employee, PPQT Eduardo Traverzo, as a witness. See, SUMF (Docket No. 37) ¶ 9; OSUMF (Docket No. 44-1), p. 1.
In addition, the letter referred to other incidents involving Rivera before May 24, 2014. See, SUMF (Docket No. 37) ¶ 9; OSUMF (Docket No. 44-1), p. 1. It expressed that on a previous occasion Rivera had asked plaintiff if he could buy her ice cream, which she declined. See, SUMF (Docket No. 37) ¶ 10, OSUMF (Docket No. 44-1), p. 1. On another occasion, Rivera stared at plaintiff through a glass window and licked an ice cream cone in a "sexually suggestive" manner. Id. Plaintiff felt disgusted by Rivera's actions and believed his conduct was improper but did not report these events to her supervisor when they occurred. See, SUMF (Docket No. 37) ¶ 10; OSUMF (Docket No. 44-1), p. 1.5 Upon learning of the incidents, Sánchez expressed concern, stating that he would "take charge of [plaintiff's] case...forward [plaintiff's] case... and take all actions." See, SUMF (Docket No. 37) ¶¶ 7-8; OSUMF (Docket No. 44-1), p. 1.
On May 27, 2014, Sánchez notified Rivera of plaintiff's allegations and that they would be investigated. See, SUMF (Docket No. 37) ¶ 13; OSUMF (Docket No. 44-1), p. 1. He advised Rivera that the latter should refrain from inappropriate conduct. See, SUMF (Docket No. 37) ¶ 13; Docket No. 37-7, p. 1.6 Sánchez informed Eduardo Traverzo that plaintiff had named him as a witness to the incident and requested a written statement, which Traverzo submitted. See, SUMF (Docket No. 37) ¶ 14; OSUMF (Docket No. 44-1), p.1. Also, Sánchez sent an email to Eunice Everett, Employee Relation Specialist of the Human Resources Division of APHIS, who providedadditional guidance on how Sánchez should address plaintiff's allegations against Rivera. See, SUMF (Docket No. 37) ¶ 15-16.7 Everett told Sánchez that Rivera should be moved from his position while the investigation was conducted, as plaintiff had stated she was not comfortable working with him. See, SUMF (Docket No. 37) ¶ 16; OSUMF (Docket No. 44-1), p. 1.
On May 28, 2014, PPQ Port Director Rosario notified Rivera by letter that he was being placed on paid excused absence until further notice pending an investigation into the allegations against him. See, SUMF (Docket No. 37) ¶ 17; OSUMF (Docket No. 44-1), p. 1. She instructed Rivera not to report to work or access the USDA building, or any agency computer systems or programs, and to refrain from contacting any Agency employees, warning him that failure to subscribe to these orders could result in disciplinary action against him. See, SUMF (Docket No. 37) ¶ 17; OSUMF (Docket No. 44-1), p. 1. Rivera complied, surrendering his employment IDs, parking card, badge, and keys. See, SUMF (Docket No. 37) ¶ 19; OSUMF (Docket No. 44-1), p. 1. He was out for over three months, from May 27, 2014 to September 9, 2014 (Docket No. 50-1, p. 4, ¶ 4).
On May 28, 2014, Sánchez submitted a request for an investigation into plaintiff's allegations with the Administrative Investigation and Compliance Branch ("AICB") of APHIS's Human Resources Division. See, SUMF (Docket No. 37) ¶ 18; OSUMF (Docket No. 44-1), p. 1. In turn, the AICB assigned the case to Personnel Misconduct Investigator Anthony A. Gabaldon. See, SUMF (Docket No. 37) ¶ 24; OSUMF (Docket No. 44-1), p.1. Gabaldon interviewedplaintiff, Rivera, and Traverzo. See, SUMF (Docket No. 37) ¶ 24; OSUMF (Docket No. 44-1), p. 1.
During plaintiff's interview, Gabaldon identified himself as a Personnel Misconduct Investigator for AICB, stating that he had been assigned to investigate her sexual...
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