Hernandez-Payero v. Commonwealth of Puerto Rico

493 F.Supp.2d 215

Diliana HERNANDEZ-PAYERO, Plaintiff, v. COMMONWEALTH OF PUERTO RICO, et al., Defendants.

Civil No. 02-2470 (FAB).

United States District Court, D. Puerto Rico.

April 27, 2007.

COPYRIGHT MATERIAL OMITTED

Carlos A. Piovanetti-Rivera, Piovanetti Law Office, Carlos A. Piovanetti-Dohnert, San Juan, PR, for Plaintiff.

Felix M. Roman-Carrasquillo, Idza Diaz-Rivera, P.R. Department of Justice, Jo-Ann Estades-Boyer, Prado, Nunez & Associates, PSC, San Juan, PR, Luis A. Rodriguez-Munoz, Landron & Vera LLP, Guaynabo, PR, for Defendants.

OPINION AND ORDER

BESOSA, District Judge.

On September 27, 2002, Diliana Hernandez-Payero, a former police officer, filed this sexual harassment suit against her employer, the Commonwealth of Puerto Rico and individual defendants Carlos Castaño-Monell, Miguel Pereira, Pierre Vivoni, Juan Caceres-Mendez, Jorge Rivera-Correa, Miguel Angel Aviles-Heredia, Manuel de Jesus Torres-Hernandez, William Miro-Zayas, Victor Rivera-Gonzalez, Juan Comas-Valle and Pedro Toledo, the current Police Superintendent, seeking injunctive and monetary damages for discrimination under Title VII of the Civil Rights Act, the Civil Rights Act of 1991, § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1) and section § 1983 of Title 28 of the United States Code, as well as supplemental state law claims.¹

Now before the Court are Defendants' objections (Docket Nos. 203, 208) to the Report and Recommendation ("R & R") issued by Magistrate Judge Camille Velez-Rive on March 20, 2006 (Docket No. 194). The Magistrate Judge recommended that the Court grant in part and deny in part Defendants' motions for summary judgment. (Docket Nos. 137, 144). Plaintiff has filed responses to defendant's objections to the R & R. (Docket Nos. 209, 210). After reviewing the R R and the specific objections thereto de novo, the Court adopts the R & R in its entirety, and grants in part and denies in part Defendants' motions for summary judgment.

I. Standard for Reviewing a Magistrate Judge's Report and Recommendation

A District Court may refer pending dispositive motions to a Magistrate Judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(a). Any party adversely affected by the report and recommendation may file written objections within ten days of being served with the Magistrate Judge's report. See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of "those portions of the report or specified proposed findings or recommendations to which specific objection is made." Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). In conducting its review, the Court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge." 28 U.S.C. § 636(a)(b)(1). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. General Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing LaCedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125-126 (D.R.I. 2004)).

II. Factual and Procedural Background

The following facts are undisputed or submitted by plaintiff and unopposed by defendants.²

Plaintiff Hernandez-Payero, who was a member of the Puerto Rico Police Department ("PRPD") from 1992 until she left the force in 2002, was assigned to the Isla Verde Tourist Zone Precinct. (Plaintiff s Statement of Facts ("PSF"), Docket No. 156, ¶ 1). According to Hernandez-Payero, she began to be sexually harassed when defendant Castaño-Morell began working as her supervisor in April of 1999. Id. at ¶¶ 6, 9.

For instance, Hernandez-Payero alleges that the very first time they met, Castaño-Morell grabbed her genitals instead of shaking her hand. Id. at 118. Two or three weeks later, Castaño-Morell allegedly engaged in the same type of conduct while requesting that Hernandez-Payero work night shifts alone with him in his office. Id. at ¶ 9 Hernandez-Payero also testified at her deposition that Castaño-Morell would look at her while grabbing himself and licking a pen with his tongue. Id. at ¶ 15

On May 20, 1999, Castaño-Morell asked plaintiff what Hernandez-Payero had on her face. Id. ¶ 12 When Hernandez-Payero replied that they were blackheads, Castaño said that they were really sores ("chancro"). Id. Hernandez-Payero felt that the use of the word "chancro" was sexual harassment because it implied she had contracted a sexually transmitted disease. (Hernandez-Payero's Deposition, Docket No. 156, Exh, 4, p. 74-75) Also present at the time the comment was made was defendant Caceres-Mendez, who allegedly commented that because Hernandez-Payero's husband was in the military she should be careful because it was common knowledge that men in the military were sexually promiscuous. (PSF, ¶ 15). During this exchange, Castaño-Morell was allegedly laughing, grabbing himself and recounting the incident to others in the office. (PSF, Exh.4, p. 74-75)

Hernandez-Payero maintains that it was at this point that she began complaining about Castaño-Morell. (PSF, ¶ 20-24) On May 21, 1999, she filed a written complaint against Castaño, complaining about how he changed her work schedule. Id. (See also Docket No. 181, Exhs. 32-35). On July 7, 1999, Hernandez-Payero submitted another letter addressed to defendant Rivera — Correa which again complained about changes in her schedule in purported retaliation for her previous complaints. (Docket No. 181, Exh. 33) On or about July 12, 1999, plaintiff submitted another complaint to defendant Rivera-Correa alleging that Castaño-Morell had threatened her that "if she wanted war, war is what you are going to get." (Docket No. 181, Exh. 34) According to Hernandez-Payero, another letter complaining of Castaño-Morell's conduct was sent to her supervisors on March 28, 2001. (PSF, ¶ 25; see also Docket No. 182, Exh. 9)³

On April 4, 2001, Plaintiff filed a sexual harassment complaint with the Administrative Investigation Division at the Carolina Police Area Headquarters. (Docket No. 136, ¶ 78) A meeting was held to discuss the matter and, shortly after the meeting, Castaño-Morell was transferred to another precinct and given instructions not to go near the Isla Verde Tourist Zone Precinct or Plaintiffs residence. Id., ¶ 77; see also Docket No. 181, Exh. 21

Comas-Valle replaced Castaño-Morell shortly thereafter at the Isla Verde Tourist Zone Precinct. (PSF, ¶ 37; Hernandez-Payero's deposition, p. 87)

After Castaño-Morell was transferred from the precinct, plaintiff further alleges, he began stalking her at her residence. In response to plaintiffs allegations, Comas-Valle issued a portable communications radio (walkie-talkie) and its charger unit to her and arranged her schedule to allow her to commute to work with another female co-worker. (Docket No. 136, ¶ 80; PSF, ¶¶ 47-49) Hernandez-Payero also filed a criminal complaint for stalking against Castaño but the district attorney determined that there was no cause to file criminal charges. (PSF, ¶ 49)

According to Hernandez-Payero, the last stalking incident took place on either July 1, 2001 or July 20, 2001.(PSF, ¶ 49, Exh. 20)⁴ Plaintiff Hernandez-Payero was not sexually harassed at the work place after the departure of Castaño-Morell from the Isla Verde Tourist Precinct. (PSF, ¶ 43)

On October 10, 2001, Castaño-Morell and his new partner, Captain Edwin Torres-Ortiz, went to the Loiza Street Precinct, which is located in the same building as the Isla Verde Tourist Zone Precinct, notwithstanding that he had been instructed not to visit Hernandez-Payero's working facilities. (PSF, ¶ 51 and Docket No. 136, ¶¶ 95-96) According to Castaño-Morell, the purpose of the visit was to interview the commander of the Loiza Street Precinct. (Docket No. 144, p. 5) Upon hearing that Castaño was nearby, Hernandez-Payero became very nervous, started crying and had to be calmed by Comas. (Docket. No. 156, ¶ 51). Although Comas thought she was overreacting, he went out into the parking lot and instructed Castaño not to enter the building. (Docket Nos. 181, Exhs. 18, 21) Castaño-Morell remained in the parking lot until his partner finished the interview inside the building.⁵

On November 1, 2001, Hernandez-Payero filed a complaint, with the Anti-Discrimination Unit ("ADU") of the Puerto Rico Department of Labor and Human Resources. (PSF, ¶ 52) On January 14, 2002, the complaint was forwarded to the Equal Employment Opportunity Commission ("EEOC"). (Docket No. 166, Exh. 16) The complaint was dismissed on July 2, 2002 and the EEOC notified plaintiff of the termination of the discrimination charge proceedings and of her right to sue within ninety (90) days from receipt of notice of the termination. (PSF, Exh. 44, p. 2)

In addition, Hernandez-Payero filed an administrative complaint on April 4, 2002 with the Administrative Investigation Division of the Carolina Police Area Headquarters. On March 20, 2002, almost 11 months after the complaint was filed, the Administrative Investigative Division issued its findings. (Docket No. 154, Exh. 35)

On May 23, 2002, Hernandez-Payero submitted her constructive resignation letter allegedly in order to avoid further mental damages to her because Defendants had failed to take any action for her benefit. (Docket No. 156, ¶ 64)

On September 27, 2002, Hernandez-Payero filed this complaint. (Docket No. 1) After two amendments to the complaint were filed, Defendants filed motions to dismiss the claims against them. (Docket Nos. 40, 55) On September 30, 2004, Judge Jay A....