The management decision in this case not to separate an employee with a sex-harassment complaint from the alleged harasser (who was also the employee's supervisor) puts the employer in a vice - it now faces a trial for both sex harassment and retaliatory harassment under Title VII and Puerto Rican law. The First Circuit specifically recognizes that a supervisor who ratchets up work and otherwise intensifies harassment against an employee for refusing to yield to sexual demands may create a new claim for retaliation.
Pérez-Cordero v. Wal-mart Puerto Rico, Inc., No. 09-2317 (1st Cir. Aug. 26, 2011): The employee, Jorge Pérez-Cordero, complained that his supervisor (a female Team Leader named Santiago) stalked him in and out of work, pointedly showed up to see him during lunch, shared intimate details of her life with him and overtly propositioned him. Her behavior made the two employees the subject of workplace gossip.
The panel summarizes that "Pérez-Cordero offered evidence describing both an initial period in which Santiago pursued him romantically and a subsequent months-long campaign of retaliation by Santiago as punishment for his rejection of her advances." After Pérez-Cordero firmly spurned her overtures, the work relationship took a bad turn:
"Santiago supervised Pérez-Cordero more strictly than There employees and pressured him to improve his performance even though the quality of his work had not deteriorated. Santiago also assigned to Pérez-Cordero tasks which had previously been shared among all the employees in the meat department or which normally required several employees to complete. Santiago consistently scheduled Pérez-Cordero to work the closing shift, which had previously rotated among employees. The closing shift required more work than There shifts and prevented Pérez-Cordero from participating in the daily departmental meetings. addition ally, Santiago reallocated the duties associated with the closing shift, which had the effect of requiring Pérez-Cordero to perform addition al cleaning on top of his normal tasks."
The supervisor also yelled at Pérez-Cordero in front of co-workers, and in a central incident - in place of a traditional light kiss - "grabbed Pérez-Cordero and forcefully sucked on his neck." The supervisor, after that incident, commented to a co-worker of the employee's that she had sexually aroused Pérez-Cordero
When the employee complained to management, they asserted at first that the company would take corrective steps, but suggested unhelpfully that he could solve the harassment problem by "going out with her, [and] take advantage of the opportunity." After his complaint became known to Santiago, she subjected him almost immediately to a disciplinary hearing, supposedly for violating work rules.
For months, Pérez-Cordero was unable to persuade the company to separate him from Santiago, during which the harassment (including disciplinary actions) continued. Only when the employer learned four months later that the employee filed a complaint with the Puerto Rican Department of Labor did the company finally take steps to remove Santiago from the department where Pérez-Cordero worked.
The First Circuit holds that Pérez-Cordero presented a triable claim of hostile-work-environment sex harassment. It has no difficulty concluding that the behavior was unwelcomed, motivated by sex, severe or pervasive, and offensive. The court also holds that "that Pérez-Cordero experienced Santiago's conduct as genuinely offensive" - he "reported insomnia, anxiety, and depression to his doctor, began seeing a counselor, and was prescribed various medications to combat these symptoms." Finally, it holds that the employee's unheeded complaints over several months created a basis for imputing liability to the employer.
The panel also holds that the same conduct, which allegedly intensified after Pérez-Cordero complained to management, could give rise to liability for Title VII retaliation. "[T]he escalation of a supervisor's harassment on the heels of an employee's complaints about the supervisor is a sufficiently adverse action to support a claim of employer retaliation."
That the offensive conduct in many cases overlapped did not prevent a jury from finding liability for both claims:
"There is admittedly some overlap between Pérez-Cordero's discrimination claim, which depends on proof that the hostile work environment was 'because of sex,' and his retaliation claim, which seeks to characterize the same hostile work environment as caused by his protected activity. . . However, where, as here, the evidence can reasonably be viewed as demonstrating either discriminatory animus or retaliatory animus, we may consider the same evidence in assessing the sufficiency of both of the plaintiff's claims."
Finally, the panel notes that because the employer offered no legitimate, non-discriminatory explanation for Santiago discipline and ratcheted scrutiny of the employee, it was error to grant summary judgment on that claim.