In Perez –Cordero v. Wal-Mart Puerto Rico, Inc. et al., the U.S. District Court for the District of Puerto Rico granted summary judgment, thereby dismissing a sexual harassment claim brought against Wal-Mart.  The male plaintiff alleged that his female supervisor subjected him to unwelcomed physical touching, overt physical and verbal sexual advances, embarrassing sexual remarks, public scolding, exclusion from meetings and trainings, threats of discipline and poor performance reviews, scrupulous examining of his work and the assignment of less desirable tasks.  The 1^st Circuit Court of Appeals overturned the lower court’s decision in favor of the male employee.                Despite the barrage of constant and varying harassment and retaliation, the plaintiff continued to do his job well despite the fact that he was suffering severe emotional distress at the hands of Santiago.   In their argument, Wal-Mart attempted to use the plaintiff’s perseverance against him.  Wal-Mart argued that the boss’ behavior could not have been severe and pervasive if the plaintiff was still doing his job well.  In support of their position Wal-Mart argued that during the time of the alleged harassment Perez-Cordero turned down a promotion, received pay for unused vacation time, and received positive performance reviews. The 1^st Circuit found that those factors did not indicate that Santiago’s behavior was not severe and pervasive as to affect the day to day work conditions.   In fact, the 1^st Circuit is unwilling to find Perez-Cordero’s perseverance at his job, despite the daily sexual harassment and retaliation he was subjected to and the distress it caused him, as a negative.  Rather, the court declared that in order for sexual harassment to be severe and pervasive so as to alter the terms and conditions of employment an employee is not required to falter as a result of the environment.  If the court had found otherwise it would essentially be punishing an employee for their unwillingness to buckle under the pressure of their tormenter; thereby requiring an employee to fail at work before a claim would become actionable.   The 1^st Circuit also reversed the District Court on the dismissal of Perez-Cordero’s retaliation claim.  The Court found that the record showed enough evidence that as a result of Perez-Cordero’s complaints the discriminatory harassment continued to increase.  The fact that some of this evidence is also applicable to Perez-Cordero’s claim of hostile work environment sexual harassment does not bar the evidence from also being considered under a separate claim of retaliation.  The same evidence may be used in assessing the sufficiency of both claims. 

Summary judgment may be appropriate, though rare, in cases of employment discrimination where the plaintiff fails to show a genuine factual issue with regard to the employer’s discriminatory motive or intent with regards to an employment action. Plaintiff has the initial burden of presenting their prima facie case by showing to a preponderance of the evidence that without further explanation by the employer, the adverse employment action against them was due to their protected class. The employer is then afforded the opportunity to present another reason for their employment action. This reason need not be wise nor practical, just nondiscriminatory. The plaintiff may defeat a motion for summary judgment either by discrediting the employer’s proffered reasons as being pretextual or by presenting evidence that the motivating reason for the employment action was more likely than not discriminatory. If the evidence is in balance, however, there is no genuine issue of material fact and the employer may prevail on summary judgment.
The following recent opinions reflect an inclination to uphold summary judgments for the defendant in discrimination cases. The court recognized recently in Brooks v. Peabody & Arnold, LLP, that while summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment, such does not preclude the remedy from ever being appropriate. The court rejected the plaintiff’s argument that she was fired due to her status as a disabled person. The plaintiff contended that her disability, rather than the warnings she had recently received at work or the company’s suspicions of fraud, was the reason for her termination. The court held that the plaintiff failed to present sufficient evidence of the defendant’s discriminatory intent to rebut the defendant’s showing that, through their use of a private investigator, they believed the plaintiff to be misrepresenting herself as disabled. The defendant was held to have discharged the plaintiff for lying about her disability, rather than for her disability, therefore withstanding the motion for summary judgment.
Generally, evidence of direct touching in a sexual harassment claim is enough to at least survive summary judgment, if not sufficient to allow the plaintiff to prevail on their claim. “[A] single act of harassment may, if egregious enough, [may] suffice to evince a hostile work environment.” Noviello v. City of Boston, 398 F.3d 76, 84 (Mass. 2005). In Rivera-Martinez v. Comm. Of Puerto Rico, et al., however, the court awarded summary judgment to the employer where the plaintiff complained that her employer sexually touched her forearm and a little over a year later, touched her back, torso and brassiere area. The court held that there was no indication that the employer’s touching, while inappropriate, was sexual in nature. Further, the court held that the plaintiff failed to show that the harassment was severe and pervasive or that it was reserved just for women.

The Massachusetts Commission Against Discrimination recently awarded the complainant in Faunce, et al. v. City of Fall River $50,000.00 in emotional distress damages after her employer retaliated against her for complaining about sexual harassment at work.
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The phone rings constantly at Davis & Davis, P.C., and several times a day the caller is a potential client who was referred to us by another office or who found us on the web. The most common question we hear each day is: “Do I have a case?” I don’t think there is a more difficult question for a lawyer to answer over the phone.
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