LaPuebla v. U.S. Department of Homeland Security

• Court: District Court, D. Guam
• Decided: July 18, 2025
• Docket: 1:19-cv-00097
• Status: Unknown

Opinion

1 2 3 4 5 6 THE DISTRICT COURT OF GUAM 7 REYNALD LAPUEBLA, CIVIL CASE NO. 19-00097

8 Plaintiff, 9 vs. 10 KRISTI NOEM, Secretary, DECISION AND ORDER U.S. DEPARTMENT OF HOMELAND Granting Defendants’ Motion for 11 SECURITY, U.S. CUSTOMS AND Summary Judgment (ECF No. 31) BORDER PROTECTION, 12 Defendants. 13 14 15 Pending before the court is Defendants’ Motion for Summary Judgment (hereinafter 16 “Motion”) on remand from the Ninth Circuit Court of Appeals. ECF Nos. 31 and 59. This 17 case stems from a social media post of photos of the Plaintiff taken during a training exercise 18 at work. The photos were posted by the Plaintiff’s co-worker, without the Plaintiff’s 19 permission, to a Facebook group comprised of thousands of U.S. Customs and Border 20 Protection (hereinafter “Agency”) employees. The photos made it appear as if Plaintiff was 21 sodomizing a fellow Agency employee which elicited inappropriate comments, some of which 22 made fun of the Plaintiff, implying he was homosexual. Plaintiff learned of the post while he 23 was at work and reported the incident to his supervisors. The post was online for, at most, 24 seven days when the Plaintiff’s co-worker deleted the post as instructed by Agency 25 supervisors. 26 Upon reviewing the record before it and relevant case law, the court hereby issues this 27 Order GRANTING Defendants’ Motion for Summary Judgment. 1 I. Facts 2 This case is a hostile work environment claim made pursuant to Title VII of the Civil 3 Rights Act of 1964. The following is a summary of material facts with the evidence construed 4 in the light most favorable to the Plaintiff. 5 A. Harassment and Social Media Post 6 Plaintiff and nine other Agency employees engaged in a training exercise on Monday, 7 April 4, 2016, conducted by Christopher Quenga and another Agency employee, who 8 volunteered as instructors for the training. Defendants’ Concise Statement of Material Facts 9 (hereinafter “DCS”) Nos. 2-4, ECF No. 32. During the training exercise, at least two photos 10 were taken of Plaintiff. DCS No. 7, ECF No. 32; Plaintiff’s Response and Counter to 11 Agency’s Material Facts (hereinafter “PRC”) No. 7, ECF No. 43. One photo made it appear 12 as if Plaintiff was sodomizing fellow Agency employee Mark Lope. PRC No. 14, ECF No. 43. 13 On or about April 5, 2016, sometime after the training, Quenga posted two of these 14 photographs to a Facebook group whose members included thousands of Agency employees. 15 DCS No. 11, ECF. No. 32; Plaintiff’s Concise Statement of Material Facts (hereinafter 16 “PCS”) No. 6, ECF No. 43. Other group members made inappropriate comments on the post, 17 at least some of which made fun of the Plaintiff, implying he was homosexual. Defs.’ Ex. F, 18 ECF No. 34-7. Quenga replied to some of these comments, also making fun of Plaintiff. Id. 19 Plaintiff was informed by his co-workers about the post on April 7, 2016; there was 20 laughter. DCS No. 11, ECF No. 32. Plaintiff wrote to all of the supervisors, including Former 21 Port Director Andrew Kuchera, to report the incident. Id. at No. 12 and Defs.’ Ex. H, ECF No. 22 34-9. At some point after the incident, Quenga approached Plaintiff in the restroom at work 23 attempting to discuss the post. Pl. Dep. Tr. at 232, attached as Pl.’s Ex. 1, ECF No. 43-1. 24 Plaintiff refused to talk to Quenga because he was still upset. Id. 25 B. Employer Response 26 On April 7, 2016, Kuchera replied to Plaintiff indicating that he would like to gather 27 as much information as possible before moving forward and that he would address the 1 incident Port-wide the next day. Defs.’ Ex. H, ECF No. 34-9. On the same day, Assistant Port 2 Director Gerald Aeverman sent an email to other supervisors regarding a policy memo about 3 using good judgment when posting on social media. PCS No. 33, ECF No. 43; Pl.’s Ex. 10, 4 ECF No. 43-1. The next day, April 8, 2016, Kuchera sent an email expressing concerns about 5 the Facebook group (to which the photos were posted) to the Agency’s Joint Intake Center. 6 PCS No. 35, ECF No. 43. That same day, Plaintiff called Chief Fraim Leon Guerrero to 7 complain about the post and the comments. Id. at No. 36. 8 At some point, Quenga was called into Kuchera’s office to discuss the post. Quenga 9 Unsworn Decl. at 7, attached as Defs.’ Ex. D, ECF No. 34-5. The following day, Quenga was 10 called into Assistant Port Director Aevermann’s office to discuss the post. Id. During both 11 meetings, Quenga was ordered to delete the post. Id. 12 On April 10, 2016, Leon Guerrero emailed Quenga explaining that some officers 13 “prefer their privacy rather than being exposed especially via social media” and stated it was 14 a “[l]esson learned for all as [he is] sure other Ports are addressing these same issues; 15 hopefully nobody gets compromised.” Pl.’s Ex. 12 at 1, ECF No. 43-1. On August 5, 2016, 16 the Agency issued a Letter of Reprimand to Quenga which pointed out what CBP Standards 17 of Conduct were violated and also stated the recommended penalty range for Quenga’s 18 offense, which the Agency determined that a written reprimand was sufficient. DCS Nos. 26 19 and 28, ECF No. 32; Defs.’ Ex. G at 2, ECF No. 34-8. 20 II. Procedural Background 21 On April 12, 2021, Defendants filed their Motion for Summary Judgment. ECF 22 No. 31. Plaintiff filed his Opposition on May 14, 2021. ECF No. 42. Defendants filed their 23 Reply on June 8, 2021. ECF No. 50. On August 4, 2022, this court granted the Defendants’ 24 Motion for Summary Judgment and the Clerk’s judgment was entered in favor of the 25 Defendants and against the Plaintiff. ECF Nos. 55 and 56. 26 Plaintiff gave notice of his appeal to the Ninth Circuit on October 3, 2022. ECF 27 1 No. 58. On August 20, 2024,1 the Ninth Circuit issued its Memorandum Decision which 2 vacated this court’s August 4, 2022 Order and remanded the matter for the court to “(1) 3 properly apply the inverse relationship between severity and pervasiveness, and (2) give 4 further consideration to the agency’s motion for summary judgment in light of [its] recent 5 decision in Okonowsky v. Garland[.]” LaPuebla v. Mayorkas, No. 22-16520, 2024 WL 6 3874230, at *1 (9th Cir. Aug. 20, 2024). 7 Following the Mandate issued on October 15, 2024 (ECF No. 63), this court set and 8 held a Scheduling Conference on November 26, 2024. ECF No. 64. After discussing the 9 issues on remand, the court ordered the parties to file supplemental briefs on the matter. 10 Defendants filed their Supplemental Brief in Support of Defendants’ Motion for Summary 11 Judgment on January 10, 2025. ECF No. 68. Plaintiff filed his Supplemental Brief on 12 February 7, 2025. ECF No. 71. Defendants filed their Supplemental Reply on February 24, 13 2025. ECF No. 74. 14 III. Legal Standard 15 A motion for summary judgment shall be granted when there is no genuine issue as 16 to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. 17 Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 18 The moving party has the initial burden of production and the ultimate burden of 19 persuasion on the motion, wherein it must either produce evidence negating an essential 20 element of the nonmoving party’s claim or defense or show that the nonmoving party does 21 not have enough evidence of an essential element to carry its burden of persuasion at trial. 22 Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 23 If the moving party carries this burden, the nonmoving party must produce evidence to 24 support its claim or defense. Id. at 1103. If the nonmoving party fails to produce evidence to 25 1 This date refers to the date the Memorandum Decision was filed in the Ninth Circuit 26 Court of Appeals Case No. 22-16520, which was docketed as ECF No. 59 in this case on August 21, 2024, because of the time difference between Guam and the west coast of the 27 United States. All references to ECF numbers refer to the docket of this instant case, Civil Case No. 19-00097. 1 create a genuine issue of material fact, the moving party is entitled to summary judgment. Id. 2 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 3 In ruling on a motion for summary judgment, a court construes the evidence in the 4 light most favorable to the nonmoving party and determines whether summary judgment is 5 appropriate for the moving party. Zetwick v. County of Yolo. 850 F.3d 436, 441 (9th Cir. 6 2017) (citing Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1207 (9th Cir. 2016)). 7 “[T]he judge’s function is not to weigh the evidence and determine the truth of the matter but 8 to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. 9 IV. Discussion 10 To survive summary judgment, a plaintiff’s claim for hostile work environment must 11 “submit cognizable evidence sufficient to establish a jury question on whether the victim (1) 12 was subjected to verbal or physical conduct of a sexual nature, (2) that was unwelcome; and 13 (3) that was sufficiently severe or pervasive to alter the conditions of the victim’s employment 14 and create an abusive working environment.” EEOC v. Prospect Airport Servs., Inc., 621 F.3d 15 991, 996-997 (9th Cir. 2010) (citing Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 16 1995)). 17 As to the third element listed above, Plaintiff must show that his work environment 18 was both subjectively and objectively hostile. See Dominguez-Curry v. Nev. Transp. Dept., 19 424 F.3d 1027, 1034 (9th Cir. 2005). Plaintiff’s filing of this case lends itself to an inference 20 that he subjectively viewed his work environment as hostile. As such, the discussion below 21 is limited to whether his work environment was objectively hostile. 22 A. Inverse Relationship Between Severity and Pervasiveness 23 In its August 4, 2022 Order Granting Defendants’ Motion for Summary Judgment, 24 this court applied the Ninth Circuit’s inverse relationship analysis of severity and 25 pervasiveness established in Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Order at 11, ECF 26 No. 55. The court explained that the issue of pervasiveness required a unique approach due 27 to “the temporal ambiguity of the interactions with Quenga’s post.” Id. The court held that it 1 would not matter whether a jury finds that the facts presented constitute two, three, or 2 thousands of incidents because any increase in the number of incidents distinguished by a trier 3 of fact would proportionally reduce the severity of each incident, as the total severity of 4 harassment experienced would be spread increasingly thin. Id. Further, the court explained 5 that the impact of this increase in frequency would be offset by the proportionately reduced 6 required showing of severity and that a jury’s finding of frequency would have a near zero- 7 sum effect on the hostile work environment analysis. Id. 8 On appeal, the Ninth Circuit held that this was a misapplication of the Ellison inverse 9 relationship analysis because no such “zero-sum effect” exists. LaPuebla, 2024 WL 3874230, 10 at *1. The Ninth Circuit explained that the inverse relationship reduces a plaintiff’s burden 11 to demonstrate the requisite severity of each harassing incident, provided he can show that the 12 harassment occurred with greater pervasiveness. Id. (citing Ellison, 924 F.2d at 878). The 13 Ninth Circuit remanded the matter for this court to correctly apply the inverse relationship to 14 Plaintiff’s case. Id. 15 To succeed on a Title VII hostile work environment claim, a plaintiff must 16 demonstrate that the harassment was “sufficiently severe or pervasive” as to “alter the 17 conditions of [his] employment and create an abusive working environment.” Harris v. 18 Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 19 U.S. 57, 67 (1986)). “The working environment must both subjectively and objectively be 20 perceived as abusive.” Fuller, 47 F.3d at 1527 (citing Harris, 510 U.S. at 21-22). “[O]bjective 21 severity of harassment should be judged from the perspective of a reasonable person in the 22 plaintiff’s position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs., 23 Inc., 523 U.S. 75, 81 (1998) (citing Harris, 510 U.S. at 21). Therefore, to assess the objective 24 severity and pervasiveness, the court will judge from the perspective of a reasonable man in 25 Plaintiff’s circumstances. 26 In Ellison v. Brady, the court held that the “required showing of severity or 27 seriousness of harassing conduct varies inversely with the pervasiveness or frequency of the 1 conduct.” Ellison, 924 F.2d at 878 (citing King v. Board of Regents, 898 F.2d 533, 537 (7th 2 Cir. 1990)). Accordingly, for a single incident to support a hostile work environment claim, 3 the incident must be extremely severe. Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th 4 Cir. 2000) (citing EEOC Policy Guide, page 6 supra, at 405:6690-91 (“[A] single unusually 5 severe incident of harassment may be sufficient to constitute a Title VII violation; the more 6 severe the harassment, the less need to show a repetitive series of incidents. This is 7 particularly true when the harassment is physical.”)). 8 Inversely, a plaintiff can support a hostile work environment claim with evidence of 9 less severe acts repeated over a period of time because the cumulative effect of those acts may 10 be considered sufficiently pervasive to alter the conditions of employment. See Zetwick, 850 11 F.3d at 444 (noting “it is not possible to determine whether the environment was ‘hostile or 12 abusive’ without considering the cumulative effect of the conduct at issue to determine 13 whether it was sufficiently ‘severe or pervasive’ to alter the conditions of the workplace) 14 (emphasis in original) (quoting Horne, 816 F.3d at 1207). This inverse relationship reduces 15 a plaintiff’s burden to demonstrate the requisite severity of each harassing incident, provided 16 that he can show that the harassment occurred with greater pervasiveness. See LaPuebla, 17 2024 WL 3874230, at *1 (citing Ellison, 924 F.2d at 878). 18 Plaintiff argues that there is sufficient evidence from which a reasonable juror could 19 conclude under the totality of the circumstances, that the pervasive effect of the conduct (i.e. 20 the social media post and its aftermath) “made it more difficult for LaPuebla to do his job, 21 take pride in his work, and desire to stay in his position.” Pl. Suppl. Brief at 5, ECF No. 71. 22 In support of this argument, Plaintiff relies on the “permanently and infinitely viewable” 23 nature of social media posts, the reaction of other employees and management-level officials, 24 and the Agency’s response to the conduct. Id. at 6-7 (citing Okonowsky v. Garland, 109 25 F.4th 1166, 1185 (9th Cir. 2024)). 26 Plaintiff is correct in stating that the objective hostility of a working environment 27 must be analyzed by looking at the totality of circumstances surrounding his claim. See Clark 1 Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (per curiam). This would include 2 assessing the “frequency of the discriminatory conduct; its severity; whether it [was] 3 physically threatening or humiliating, or a mere offensive utterance; and whether it 4 unreasonably interfere[d] with an employee’s work performance.” Id. (citation omitted). 5 However, Plaintiff’s characterization of the social media post as permanently and 6 infinitely viewable is not supported by the record. Though the specific date on which the post 7 was deleted from the Facebook group is disputed, the earliest being April 7, 2016, and the 8 latest being April 12, 2016, the fact that it was deleted is undisputed and Plaintiff has not 9 produced evidence supporting the assertion that the photos are “permanently and infinitely” 10 viewable. This undermines Plaintiff’s argument that the pervasive effect of the conduct 11 created a hostile working environment. The court concedes that there is no such thing as 12 deletion of online posts in an absolute sense because posts can be downloaded or saved by 13 third parties and, even if deleted from where they were originally posted, posts are often 14 stored on a server.2 However, even if Quenga’s post continued to be stored on a server, it was 15 no longer easily accessible or reviewable on the Facebook Group’s page after it was deleted. 16 Additionally, the record does not support that the photos continued to be circulated by other 17 means after Quenga deleted the post. 18 Further, the record does not support Plaintiff’s assertion that the reaction of other 19 Agency employees and management-level officials and the Agency’s response to Plaintiff’s 20 initial complaint had a sufficiently pervasive effect to alter the Plaintiff’s employment 21 conditions and create an abusive working environment. Evidence of non-severe conduct has 22 been found sufficiently pervasive to create triable issues of material fact where the conduct 23 occurred over several months or years. See Zetwick, 850 F.3d at 443-44 (summary judgment 24 inappropriate where male supervisor greeted female plaintiff with unwelcome hugs more than 25 one hundred times over 12-year period); Reynaga v. Roseburg Forest Products, 847 F.3d 678, 26 2 See generally Randy L. Dryer, Litigation, Technology & Ethics: Teaching Old Dogs 27 New Tricks or Legal Luddites are No Longer Welcome in Utah, 28-JUN Utah B.J. 12, 16 (May/June 2015). 1 683, 687-88 (9th Cir. 2017) (genuine dispute of material facts found where plaintiff was 2 subjected to repeated instances of explicit racial and national origin comments and general 3 derogatory comments in the workplace by the lead millwright for at least two years during the 4 course of his employment); Christian v. Umpqua Bank, 984 F.3d 801, 811 (9th Cir. 2020) 5 (genuine disputes of material fact exist as to the severity or pervasiveness of the harassment 6 where bank customer repeatedly pestered plaintiff (a bank employee), asked her on dates, sent 7 her letters declaring they were soulmates and persisted for many months after plaintiff asked 8 him to stop). Here, the record shows that other Agency employees laughed when the Plaintiff 9 was made aware of the post and that the Agency’s swift response to the incident resulted in 10 the deletion of the post after, at most, one week of being online. This undermines Plaintiff’s 11 argument that the pervasive effect of the post is sufficient for a reasonable juror to conclude 12 that Plaintiff’s work environment was objectively hostile from the perspective of a reasonable 13 man. 14 Even if the court were to accept Plaintiff’s argument about the permanent nature of 15 social media posts, the other factors used to assess the objective hostility of a working 16 environment favor summary judgment for the Defendants. The frequency and severity of the 17 conduct in the instant case do not reach the frequency and severity of conduct in other Ninth 18 Circuit cases where the court held that the conduct could create a hostile workplace. See 19 Okonowsky, 109 F.4th at 1172-73 (triable issues of material fact found where male co-worker 20 specifically targeted female plaintiff on several graphic social media posts posted over three 21 months: threatening to gang bang her with other male co-workers and depicting scenes of 22 violence against the plaintiff and women in general); Nichols v. Azteca Restaurant 23 Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) (finding an objectively hostile environment 24 where plaintiff was subjected to a “relentless campaign of insults, name-calling, and 25 vulgarities” including calling him a “f*****t” and a “f***ing female whore” which occurred 26 at least once a week and often several times a day). 27 Unlike the numerous social media posts in Okonowsky that were posted over several 1 months, the instant case involves a single post that was online for, at most, about one week. 2 Pl. Dep. Tr. at 21, attached as Pl.’s Ex. 1, ECF No. 43-1. The post received about 108 “likes” 3 and 11 comments. Defs.’ Ex. F at 1-4, ECF No. 34-7. Plaintiff characterizes the comments 4 as “sexually charged” that implied Plaintiff was homosexual. Pl. Suppl. Br. at 6. While 5 distasteful, the comments are more akin to simple teasing or offensive utterances that would 6 not amount to discriminatory changes in the terms and conditions of employment. See 7 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (noting that courts are directed to 8 look at all the circumstances to determine whether an environment is sufficiently hostile or 9 abusive and that, when properly applied, the standards for judging hostility “will filter out 10 complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of 11 abusive language, gender-related jokes, and occasional teasing.’”) (citing Harris, 510 U.S. 12 at 21-22 and B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 13 (1992)). 14 Even when viewed in a light most favorable to the Plaintiff, the comments are not 15 sufficiently severe to create a hostile work environment because of their teasing nature. As 16 Judge Smith noted in his dissent, the record does not indicate that Plaintiff is actually 17 homosexual or that his coworkers or the commenters actually viewed him as 18 homosexual—the “comments are clearly teasing, do not use slurs, do not make threats, and 19 include laughing emojis.” LaPuebla, 2024 WL 3874230, at *3 (Smith, J. dissenting). The 20 Ninth Circuit has affirmed summary judgment for employers in cases where the commentary 21 was objectively more offensive. See id. (citing cases that involved comments that “target[ed] 22 the actual identity of the victim and that could be perceived as displaying genuinely 23 discriminatory intent” but the “court held that there was no genuine issue of material fact 24 about severity in any of them.”) (emphasis in original). 25 Further, the conduct was not physically threatening and did not unreasonably interfere 26 with the Plaintiff’s work performance. Plaintiff argues that the cumulative effect of the 27 thousands of views of the photos by Agency employees, the conduct of the Plaintiff’s co- 1 workers, supervisors, and superiors and the Agency’s response made it more difficult for the 2 Plaintiff to do his job, take pride in his work, and desire to stay in his position. Pl. Suppl. Br. 3 at 7. However, Plaintiff does not offer evidence to support this assertion, and the evidence 4 found in the record relevant to this assertion was that Plaintiff was not getting his preferred 5 schedule to which he was entitled because of his seniority. Pl. Dep. Tr. at 285, attached as 6 Pl.’s Ex. 1, ECF No. 43-1; PCR No. 86, ECF No. 43. 7 Even when viewing the evidence in a light most favorable to the Plaintiff, no 8 reasonable jury could find that the harassing conduct was severe or pervasive enough to find 9 that Plaintiff was subjected to an objectively hostile work environment. 10 B. Consideration of Ninth Circuit’s Okonowsky Decision 11 In its August 20, 2024 Memorandum Decision, the Ninth Circuit remanded this case 12 so this court can apply the Ninth Circuit’s holdings in Okonowsky v. Garland in the first 13 instance because neither the court nor the parties had the benefit of the ruling when briefing 14 or considering the motion. LaPuebla, 2024 WL 3874230, at *2. 15 In Okonowsky v. Garland, the plaintiff was a staff psychologist in a federal prison 16 who discovered that her male co-worker operated an Instagram account that was followed by 17 more than one hundred prison employees to which he posted sexually offensive content about 18 work, and that she was a personal target. Okonowsky, 109 F.4th at 1171. When she 19 complained about the page to prison leadership, she was told the content was funny and not 20 a problem. Id. Two months after reporting the conduct, the prison directed the male co-worker 21 to cease posting because it violated the prison’s Anti-Harassment Policy. Id. However, the 22 male co-worker continued posting sexually hostile conduct for another month with no action 23 by the prison. Id. The court ultimately held that the plaintiff raised triable issues of material 24 fact as to whether the plaintiff experienced a hostile work environment and whether her 25 employer failed to take prompt and effective remedial action to address it. Id. at 1188. 26 The facts in Okonowsky differ greatly from the facts in the instant case. First, the 27 sexually offensive content posted by the plaintiff’s male co-worker targeted her specifically, 1 threatening that he and other male co-workers would “gang bang” her; other posts depicted 2 scenes of violence against the plaintiff specifically and women in general and ridiculed the 3 plaintiff in a coarse and degrading manner. Id. at 1173. Second, the male co-worker made 4 several of these posts over the course of nearly three months after the plaintiff first lodged her 5 complaint. Id. at 1177. It is also noteworthy that although the plaintiff’s employer issued a 6 cease-and-desist letter ordering the male co-worker to cease posting immediately and stated 7 that failure to comply would not be tolerated and could result in removal, the male co-worker 8 continued posting for at least three weeks without action by the employer. Id. at 1176-77. 9 Here, Plaintiff’s co-worker made one post to a Facebook group page that consisted 10 of 11,000 members from all ranks in the Agency. PCS No. 6, ECF No. 30; DCS Nos. 8-9, 11 ECF No. 32. Of the 11,000 group members, less than one percent of the members interacted 12 with the post via “likes” and it also received only 11 comments. While the image suggested 13 that Plaintiff was sodomizing the other employee in the photo which elicited inappropriate 14 comments on the post and laughter by Plaintiff’s other co-workers, the nature of the post is 15 not nearly as severe as the posts described in Okonowsky. Also, as discussed above, the 16 Plaintiff has not produced evidence to support the assertion that the permanent and infinitely 17 viewable nature of a social media post makes the conduct sufficiently pervasive. 18 Further, the delayed action by the plaintiff’s employer in Okonowsky is in stark 19 contrast to the action taken by the Agency in the instant case. On the day Plaintiff found out 20 about the post and wrote to his supervisors, Assistant Port Director Aeverman sent an email 21 to other supervisors regarding the Agency’s policy about using good judgment when posting 22 on social media. PCS No. 33, ECF No. 43; Pl.’s Ex. 10, ECF No. 43-1. Shortly after 23 Plaintiff’s initial complaints to his supervisors, Quenga was called to meet with the Port 24 Director and Assistant Port Director (separately) who both ordered Quenga to delete the post. 25 Quenga Unsworn Decl. at 7, attached as Defs.’ Exhibit D, ECF No. 34-5. The post was 26 deleted at some point between April 7 and April 12, 2016. Quenga was subsequently issued 27 a formal Letter of Instruction with written order to remove the photos and, later, a Letter of Reynald LaPuebla v.Kristi Noem, Secretary, U.S. Department of Homeland Security, et al., Civil Case No 19-00097 Decision and Order Granting Defendants’ Motion for Summary Judgment page 13 of 13 1 || Reprimand stating the specific Agency standards of conduct that were violated and the 2 || recommended penalty range for the offense. DCS No. 24, ECF No. 32; Defs.’ Ex. N, ECF 3 || No. 34-15; Defs.’ Ex. G, ECF No. 34-8. 4 Unlike in Okonowsky, where the court held that a reasonable juror could find that the 5 || plaintiff's work environment was objectively hostile and that her employer failed to take 6 || prompt and effective remedial action to address the hostile work environment; here, a 7 || reasonable juror could not find Plaintiffs work environment was objectively hostile and that 8 || the Agency failed to take prompt and effective remedial action. 9} V. Conclusion 10 Considering the evidence in the light most favorable to the Plaintiff, the court 11 || concludes that no reasonable jury could find that the conduct at issue was sufficiently severe 12 || or pervasive to alter the terms of the Plaintiff's employment and create a hostile work 13 environment. Therefore, the court hereby GRANTS Defendants’ Motion for Summary 14 || Judgment. The Clerk’s Office is ordered to enter judgment accordingly. 15 IT IS SO ORDERED. =z 16 ON /s/ Michael J. Bordallo 17 ae U.S. Magistrate Judge sis” A Dated: Jul 18, 2025

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