Here’s a valuable case for employees suffering harassment (and lawyers who bring such cases). The First Circuit reverses summary judgment for age-based and retaliatory hostile work environment, holding that the district court put the plaintiff to an impossible standard of specificity to prove individual incidents of harassment. It also holds that repeated threats of termination can constitute constructive discharge.
Rivera-Rivera v. Medina & Medina, Inc., No. 17-1191 (1st Cir. Aug. 1, 2018): Ms. Rivera brought a panoply of age, gender, and retaliation claims in this case, based on her seven-year tenure with a Puerto Rican frozen-food company. On appeal, the First Circuit (in a 36-page opinion) partially reverses dismissal of all the claims.
Rivera was a marketing manager, hired at age 46 in 2006. She alleged that throughout her career, male co-workers told her that they were getting paid more for comparable work. Around 2011, Rivera reportedly began to endure harassment from her bosses. “As she tells it, [supervisors] Eduardo, Pepín, and Cortés began berating her about her age on a daily or near-daily basis.” They allegedly said Rivera was a “vieja” (Spanish for old person), “old,” “useless,” “slow,” “worthless,” and in need of “social security benefits.” “Moreover, both Eduardo and Pepín yelled, screamed, and made physically threatening gestures at Rivera, which made her fearful for her safety.”
While on sick leave in 2013 (allegedly due to the stress of the harassment), Rivera filed charges of discrimination with the EEOC and Puerto Rico Department of Labor Antidiscrimination Unit. Upon her return to work, when word of her filing the charges spread, the harassment took a new turn: “she was directly threatened for the first time with termination due, specifically, to the discrimination charges filed with the ADU and EEOC.” After a second sick leave, “because the harassment directed at her did not dissipate and because she was constantly threatened with discharge due to the discrimination filings, Rivera ultimately resigned from the company on November 1, 2013.”
The First Circuit dispensed with her claims in the following fashion:
1. Gender pay discrimination: The claim fails right at the starting blocks, holds the panel, because the plaintiff presented no admissible evidence that men were paid more. All she offered was her own testimony of men telling her that they earned more. This fails for reasons that “most law students would be able to catch” – it’s inadmissible hearsay – compounded by the employer’s own detailed submissions of salary history (with W-2s). Indeed, the panel dresses down the plaintiff for originally omitting that evidence from her original appendix, though landing short of sanctioning her for it.
2. Age-based harassment: Summary judgment is reversed. The panel criticizes the district court for demanding unreasonable specificity from the plaintiff, which “appears to have believed that Rivera was required to produce evidence of every single individual offensive act directed toward her–including the exact date, exact individual involved, and exact words used.” But “the facts present in Rivera’s declaration are not the fuzzy, vague details that would derail a claim at this stage of the game.”
To the contrary, the declaration provides the right amount of information under Rule 56(e):
“On which dates did the alleged harassing behavior occur? Rivera swore that, beginning in June 2011, the mistreatment occurred every single day (or nearly every single day) until she resigned. Which individuals at Medina were involved in the objectionable actions? Cortés, Pepín, and Eduardo. What type of words were used by these individuals against Rivera? ‘Vieja,’ ‘old,’ ‘useless,’ ‘slow,’ ‘worthless,’ and in need of ‘social security benefits.'”
The panel notes that demanding more would defy common sense and human behavior:
“It would be unreasonable to expect the average worker in an allegedly perpetually abusive environment to keep track of her abuse to that degree of detail (lest we mandate the keeping of a diary in anticipation of litigation, which we decline to do). In instances of alleged habitual persecution like Rivera’s, one day’s harassment can easily bleed into the next. Thus, where a worker being continuously harassed is able to provide information about the type of harassment (including specific words, actions, or incidents) directed at her, as well as the individuals involved in creating such an environment, such claims should generally be sustainable provided the employee can tie her mistreatment to her membership in a protected class.”
The panel also holds that the allegation of daily use of these slurs presented a genuine dispute about pervasiveness and severity.
3. Gender-based harassment: The panel affirms summary judgment because, despite that Rivera allegedly endured “constant yelling and screaming” and felt “physically threatened,” the record “failed to connect her alleged harassment to gender at all.”
4. Retaliatory harassment: The panel reverses summary judgment. Rivera testified “that mere days following her filing of the EEOC and ADU charges, she began being subjected to threats of termination by Pepín.” Moreover, these threats, “which occurred on a ‘daily basis’ weren’t untethered. Rather, they were tied directly to her complaints with the enforcement agencies to whom she reported Medina’s allegedly unlawful discriminatory practices.” Although the employer contended that the hostile work environment was just a continuation of the age- and sex-based harassment claims, the panel holds that the later threats of termination were “due specifically to her decision to go to the EEOC and ADU with her complaints.”
5. Constructive discharge: The panel reverses summary judgment. It holds that persistent threats of termination may constitute constructive discharge, which can greatly enhance the damages available to a plaintiff. “It is not unreasonable to expect that an employee will resign due to the apparent inevitability of her termination when that employee is told over and over (and over) again that she will be fired.”