Perez v. Developers Diversified Realty Corp.

904 F.Supp.2d 156

Antonio Velazquez PEREZ, Plaintiff

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

Civil Action No. 10–1002 (GAG).

United States District Court, D. Puerto Rico.

Sept. 4, 2012.

Anibal Escanellas–Rivera, Escanellas & Juan, San Juan, PR, for Plaintiff.

Carl E. Schuster, Juan F. Santos–Caraballo, Schuster & Aguilo LLP, San Juan, PR, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPÍ, District Judge.

Antonio Velazquez Perez (“Plaintiff”) brings this action against Developers Diversified Realty Corp. and DDR PR Ventures II LLC (“DDR” or “Defendants”), alleging sexual harassment ¹ and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Plaintiff also invokes the supplemental jurisdiction of the court to adjudicate claims under Puerto Rico state laws: Laws Number 100 and 17, P.R. Laws Ann. tit. 29, §§ 146 et seq., §§ 155 et seq., respectively; and Puerto Rico Law 69, P.R. Laws Ann. tit. 29, §§ 1321 et seq., and Law No. 80 of May 30, 1976, as amended (“Law 80”), P.R. Laws Ann., tit. 29, § 185a et seq.

This matter is currently before the court on defendants' motion for summary judgment. (Docket Nos. 58, 59). Plaintiff opposed defendants' motion for summary judgment. (Docket No. 75). By leave of the court, Defendants filed a reply brief (Docket No. 90) and a motion to strike (Docket No. 91) alleging that Plaintiff's opposition was supported by a “sham affidavit” that contradicted his prior deposition testimony and should therefore, be stricken from the record. Plaintiff sur-replied (Docket No. 112). The court issued an order (Docket No. 131) striking the affidavit in question from the record (Docket No. 75–2) and instructing Plaintiff to resubmit an opposition to Defendants' motion for summary judgment which did not refer to information contained on the stricken affidavit. In compliance with the court's order, Plaintiff resubmitted its opposition and the amended responses and objections to Defendants' statement of uncontested facts (Docket No. 132). Defendants' replied to Plaintiff's amended responses and objections (Docket No. 145) and filed a reply memorandum to Plaintiff's opposition (Docket No. 146). Plaintiff filed motions requesting leave to file a sur reply (Docket Nos. 150 and 151). The court will not consider Defendants' reply, and therefore, will also not consider Plaintiff's surreply. ² After reviewing the pleadings and pertinent law, the court GRANTS Defendants' motion for summary judgment.

I. Standard of Review

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 a judgment as a matter of law.” SeeFed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “An issue is genuine if ‘it may reasonably be resolved in favor of either party’ at trial, and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law.’ ” Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (alteration in original) (citations omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support the non–moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. “The movant must aver an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material.” Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). The nonmovant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S.Ct. 2505. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon “conclusory allegations, improbable inferences, and unsupported speculation.” Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)).

II. Relevant Factual & Procedural Background

Plaintiff filed a complaint (Docket No. 1) against DDR in which he alleges that he was sexually harassed by his co-worker Rosa Martinez (“Martinez”), regional property accountant and human resources liaison for Puerto Rico. He also alleges that, after complaining of sexual harassment, he became a victim of retaliation by Martinez and Rolando Albino (“Albino”), his supervisor. Defendants filed a motion for summary judgment (Docket No. 59) and a statement of uncontested material facts in support of motion for summary judgment (“SUMF”) (Docket No. 58–1) in which they contend that Plaintiff has failed to establish the key elements of sexual harassment both quid pro quo and hostile work environment. In addition, Defendants argue that Plaintiff's retaliation claim is time-barred or in the alternative, Plaintiff has failed to establish a causal connection between any alleged protected activity and the alleged adverse employment action. ( See Docket No. 59 at 2.) Furthermore, regarding Plaintiff's claim under the constitution of the United States of America, Defendants argue that it fails as a matter of law inasmuch as the complaint is devoid of any facts that would even hint at a finding of state-sponsored behavior.³

The court finds that according to the record the following material facts exposed by Defendants have not been controverted. Plaintiff started working at DDR on June 1, 2007, as operations manager of three shopping center properties operated and managed by DDR. DDR is the owner, manager and developer of an international portfolio of shopping centers. It operates and manages fifteen shopping centers in Puerto Rico. Plaintiff was the operations manager of the Rio Hondo shopping center (located in Bayamon, Puerto Rico), Plaza Vega Baja (located in Vega Baja, Puerto Rico) and Rexville Plaza (located in Bayamon, Puerto Rico).

Plaintiff stated in his deposition that during his employment at DDR, he reported to Rolando Albino (“Albino”), regional operations manager for Puerto Rico. Albino in turn, reported to Francis Xavier Gonzalez (“Gonzalez”), vice-president property management for Puerto Rico. ( See Docket No. 58–3 at 50 L. 25, and at 64 L. 4–12.) Plaintiff testified that Martinez was not above him in the organizational chart. ( See Docket No. 58–3 at 53 L. 5–15.) While working as an operations manager, Plaintiff's office was located at the Rio Hondo shopping center in Bayamon, together with Gonzalez, Albino and Martinez. ( See Docket 58–3 at 51 L. 1–7.) Plaintiff's relationship with Albino, Martinez and Gonzalez was extremely good while he held the position of operations manager. ( See Docket No. 58–3 at 66 L. 3–7.)

Approximately 4 or 5 months after Plaintiff began working for Defendants, a position for regional general manager became vacant. Plaintiff approached Albino and Martinez regarding his interest in that position and they, in turn, recommended Plaintiff to Gonzalez. Gonzalez had qualms about promoting Plaintiff to this position because of his limited experience in managing shopping centers and because he had not been trained in budget issues and financial reports. ( See Docket No. 58–3 at 56 L. 23–25 and 57 L. 1–3.) However, on November 1, 2007, Plaintiff was promoted to the position of regional general manager. He was responsible for overseeing the eastern region properties in the island which were comprised of the following shopping centers: Plaza Palma Real in Humacao, Plaza Fajardo, Plaza Cayey and Wal–Mart in Guayama. ( See Docket No. 58–1 ¶ 16.)

Plaintiff stated in his deposition that it was Martinez who trained him in the financial aspects of his new position and that she was very helpful in the process. ( See Docket No. 58–3 at 57 L. 6–9 and L. 19–24.) He also asserted that Martinez showed him how to prepare monthly reports that he was supposed to submit. As part of the promotion, his annual salary was increased from $35,000 to $45,000 and he became eligible to participate in the performance bonus program, like the other regional managers. Plaintiff declared that as regional manager, his immediate supervisor was Albino and that the only positions that were above his in the operational chart were those of Albino's and Gonzalez'. ( See Docket No. 58–3 at 64 L. 4–6.)

Once Plaintiff was promoted, he was relocated to a new office in Plaza Palma Real in Humacao while Martinez, Gonzalez and Albino remained in the central office in Rio Hondo. ( See Docket No. 58–3 at 67 L. 12–16 and at 68 L. 11–20.) Plaintiff was no longer required to report to the Rio Hondo central office on a daily basis. ( See Docket No. 58–3 at 75 L. 11–13.) Plaintiff would go to the central office if Gonzalez had scheduled a meeting with the regional managers or if he needed assistance from Martinez regarding budget planning and financial reporting. ( See Docket No. 58–3 at 75 L. 6–9.)

When Plaintiff was promoted to the position of regional management,...