Hernandez v. Wilkinson

986 F.3d 98

• Court: Court of Appeals for the First Circuit
• Decided: January 27, 2021
• Docket: 19-1711P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1711

CASANDRA HERNÁNDEZ,

Plaintiff, Appellant,

v.

ROBERT MONTAGUE WILKINSON, Acting Attorney General,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Thompson, Boudin, and Kayatta, Circuit Judges.

Bámily López Ortiz on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant U.S. Attorney, Chief, Appellate Division, Antonio L. Perez-Alonso, Assistant United States Attorney, on brief for appellee.

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney Robert Montague Wilkinson has been substituted for former Acting Attorney General Jeffrey Rosen. January 27, 2021 BOUDIN, Circuit Judge. In January of 2016, Casandra

Hernández, a Drug Enforcement Agency ("DEA") employee since 1999,

was promoted to Secretary for the Assistant Special Agent in Charge

and began working at the District Office in Ponce, Puerto Rico.

That July, Dave E. Joseph was appointed the new Assistant Special

Agent in Charge under Matthew G. Donahue, the Special Agent in

Charge.

On September 30, 2016, Hernández fractured a bone in her

foot and requested several accommodations from Joseph. He approved

some of her requests, for example, a more accessible parking spot

and a schedule change, but not others, including her application

for "advanced sick leave." She also asked for a reassignment so

that she could work from her old office, but Donahue denied the

request.

On November 22, 2016, Hernández filed a complaint with

the Equal Employment Opportunity Office of the DEA ("EEO Office")

against Joseph and Donahue, alleging discrimination on the basis

of her disability and her nationality as a Puerto Rican.

Part of Hernández's role as secretary was to distribute

money that agents could use in their operations. The distribution

window was monitored by video cameras, and Hernández complained

that she was uncomfortable being watched. Donahue told Hernández

that she could install a partition between the part of her office

- 3 - in view of the cameras and the part of her office that was private,

but Hernández never did so.

All was quiet until September 1, 2017, when Special Agent

Phillip Jones asked to audit the funds that Hernández had

distributed. The two got into a heated argument. Both parties

were reprimanded, and Hernández was temporarily assigned to the

DEA office in San Juan. Hernández reported the incident to the

EEO office.

In mid-October, Donahue revoked Hernández's permit for

outside employment, stating that it interfered with Hernández's

"availability at work," and proposed that she be suspended for

five days. One of the complaints in the proposed suspension

reported that:

you have been directed to adjust your work attire. Your customary office attire is unprofessional and has made both male and female employees feel embarrassed and uncomfortable to be around you. By not wearing professional office attire, employees have been subjected to witnessing your cleavage being entirely exposed almost daily since Nov. 2015. Consequently, this made male employees uncomfortable when conversing with you. You have repeatedly been observed bending over in front of male employees and, due to the inappropriately short length of your dresses/skirts: your actions result in exposing your posterior to them. Your selection of office attire has created an extremely awkward and embarrassing office environment.

- 4 - The suspension was approved by an outside administrator

for reasons that did not include Hernández's work attire.

Hernández then filed a new EEO complaint, alleging that she had

been subjected to sexual harassment. She asserts that the proposed

suspension proved Joseph had been watching her cleavage and

posterior both in the office and on videotape and that Joseph

sexually harassed her by doing so.

On November 6, 2017, Hernández sued her employer in the

United States District Court for the District of Puerto Rico,

claiming that she had been discriminated against because of her

national origin, disability, and sex and that she had been

subjected to illegal retaliation for her EEO activity. The

government moved for summary judgment, and in response, Hernández

tendered a global cross-reference to her complaint and to her

opposition to the government's statements of material fact without

further developing her arguments. The district court granted

summary judgment to the government on all claims.

Hernández has appealed only the sex discrimination and

retaliation claims. This court reviews the district court's

summary judgment order de novo, drawing all reasonable inferences

in favor of Hernández to determine whether she has put forward

competent evidence to show a genuine dispute as to any material

fact. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013).

- 5 - Sex Discrimination. Title VII of the Civil Rights Act

of 1964 provides employees with the right to work in an environment

free from discrimination "because of such [employee's] race,

color, religion, sex, or national origin." 42 U.S.C. § 2000e-

2(a)(1). Employees of government agencies have the same guarantee

under 42 U.S.C. § 2000e-16(a). To prevail on a hostile work

environment claim based on sex discrimination, an employee must

show:

(1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.

O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001).

Hernández did not provide evidence of severe or

pervasive harassment. First, Hernández alleges that Joseph used

the video camera in her office to watch her but puts forward no

evidence of such behavior.

Hernández also did not put forward competent facts

showing that Joseph leered at her. Frequent and/or intense staring

- 6 - at an employee's body can be the basis for a hostile work

environment claim. Billings v. Town of Grafton, 515 F.3d 39, 50-

51 (1st Cir. 2008). However, simply looking at a colleague,

without evidence that those looks were, inter alia, severe, an

unreasonable interference with work, or physically threatening or

humiliating does not constitute harassment. Harris v. Forklift

Sys., Inc., 510 U.S. 17, 23 (1993).

With respect to Jones, Hernández admits that the

altercation with Jones was an isolated incident that was purely

work related. It thus did not constitute sexual harassment. See

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

Retaliation. Title VII also protects employees from

being discriminated against "because [the employee] has opposed

any practice made an unlawful employment practice by this

subchapter, or because [the employee] has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-

3(a).1 "In order to establish a prima facie case of retaliation,

[an employee] must show that (1) she engaged in protected conduct;

(2) she was subjected to an adverse employment action; and (3) the

adverse employment action is causally linked to the protected

1 The parties did not contest whether Title VII's protection against retaliation applies to federal agency employees under 42 U.S.C. § 2000e-16. For purposes of this opinion, we assume without deciding that it applies.

- 7 - conduct." Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 94

(1st Cir. 2018). A report of conduct that allegedly violates Title

VII is protected if the employee who reported the conduct had a

"good faith, reasonable belief that the underlying challenged

actions of the employer violated [Title VII]." Fantini v. Salem

State College, 557 F.3d 22, 32 (1st Cir. 2009) (citation and

quotations omitted).

Prior to the incidents at issue, Hernández filed a

complaint against a different colleague with whom she had a heated

argument2 and was informed that such isolated, work-related

disputes do not create a hostile work environment under Title VII.

She therefore could not have had a good faith, reasonable belief

that a similar fight with Jones constituted a Title VII violation,

and thus, reporting it was not a protected activity.

Unlike the allegations with respect to her one-time

dispute with Jones, neither party challenges Hernández's good

2 In her prior complaint, Hernández claimed that a fellow employee discriminated against her on the basis of her age after that employee commented on her age and screamed "[n]obody likes you, nobody wants you here, look at you, look at you, and you should get out of here! I hate you, I can’t stand you, and I can’t even look at you, if nobody dares to tell you, I will, they don’t want you here." To the extent that Hernández alleges she was a victim of retaliation because of that complaint, the district court found that Hernández could not have reasonably believed that her report fell within the scope of Title VII protected activity, and on appeal, she devotes only a sentence to challenging that ruling, with no argument or citations. That challenge is therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 8 - faith, reasonable beliefs that the remaining allegations in the

EEO complaints filed in November 2016 and October 2017 constituted

violations of Title VII. The question thus becomes whether

Hernández was subjected to a materially adverse employment action

because of those reports. See Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006).

On appeal, Hernández draws attention to three alleged

incidents of retaliation that occurred after Joseph and Donahue

found out about her November 2016 complaint. First, she argues

that being detailed to San Juan in September 2017 after her

altercation with Jones was retaliatory. However, the record

contains no evidence to show that her EEO complaint was a but-for

cause of that temporary detail. See Ponte v. Steelcase Inc., 741

F.3d 310, 321 (1st Cir. 2014).

Second, Hernández contends that her suspension was in

retaliation for her EEO activity. However, the memorandum given

to Hernández explaining why Donahue had recommended a suspension

provided eight reasons that had nothing to do with her prior

complaint, and Hernández has made no attempt to show that those

reasons were pretextual. See id. at 323.

Finally, Hernández had permission to sell baked goods

outside of the office. She argues that Donahue retaliated against

her when he revoked that authorization, but that revocation

occurred in October 2017, almost a year after her complaint.

- 9 - Without putting forth evidence of a causal connection between the

complaint and the revocation, her claim of retaliation cannot

survive summary judgment. See id. at 322.

Affirmed.

- 10 -