USCA1 Opinion

December 24, 1996 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1278
MARIA DE LOS ANGELES SANCHEZ,

Plaintiff, Appellant,

v.

CARLOS ALVARADO, ET AL.,

Defendants, Appellees.

__________________

ERRATA SHEET

The

opinion of

this

Court, issued

December

2, 1996,

is

amended as follows:

P.7, l.4, should read:

. . . relief could be granted . . .

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1278

MARIA DE LOS ANGELES SANCHEZ,

Plaintiff, Appellant,

v.

CARLOS ALVARADO, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

____________________

Before

Cyr and Boudin, Circuit Judges,

______________

and Ponsor,* U.S. District Judge.

___________________

____________________

Edwin Prado, with whom Pedro Salicrup was on brief for appella
___________
______________
Edgardo Rodriguez Quilichini,
______________________________

Assistant

Solicitor

Gener

Department of Justice, with whom Carlos Lugo Fiol, Solicitor Gener

_________________
and

Edda Serrano Blasini, Deputy Solicitor General, were on brief

____________________

appellees.

____________________

December 2, 1996
____________________

____________________

*Of the District of Massachusetts, sitting by designation.

CYR,
CYR,

Circuit Judge.
Circuit Judge.
_____________

Sanchez ("Sanchez")

her

on

Plaintiff

appeals a summary judgment

civil rights claim, see 42 U.S.C.

___

the

part of

certain

action

against

los Angeles

ruling rejecting

1983, alleging liability

supervisory personnel

Electric Power Authority ("PREPA")

ate

Maria de

at

Puerto Rico

for failing to take appropri-

defendant-appellee

Omar

Santiago,

whose

persistent harassment prompted Sanchez to tender her resignation.

We affirm the district court judgment.

I
I

BACKGROUND1
BACKGROUND
__________

The pattern of harassment

began when Santiago, a PREPA

employee, telephoned Sanchez at her office in September

invited her to

invitation

informing

she

dinner.

A few days

received a

call

he had an ongoing bet that

Later

that month,

that

after Sanchez declined

from

another PREPA

the

employee,

her that she should expect to hear from Santiago again

since

they should

1988 and

talk.

he would succeed in his quest.

Santiago approached

As Sanchez

she would see what he was

Sanchez and

walked away,

stated that

Santiago exclaimed

capable of and if she complained

about his behavior he would cause her harm.

The

Santiago's

persuade

first

supervisor

with

whom

Sanchez

discussed

behavior, defendant-appellee Ramon Figueroa, tried to

her

not to

file a

Employment Opportunity Office

formal

charge with

PREPA's Equal

(EEOO), stating that everyone

was

____________________

1All material
light

facts in genuine

most favorable to Sanchez.

in the

Velez-Gomez v. SMA Life Assur.

___________
_______________

Co., 8 F.3d 873, 875 (1st Cir. 1993)

___

dispute are related

entitled

to one

mistake.2

already

been the

another

female

Upon

subject of

employee,

learning that

a sexual

however,

Santiago

harassment complaint

Ramon

actively

had

by

encouraged

Sanchez to file a formal complaint.

On

November

Alvarado, then

the

weeks,

three

1988,

defendant-appellee

Carlos

the Director of PREPA, circulated a memorandum on

subject of

prohibiting

15,

sexual

sexual

of

harassment, referencing

harassment in

the

workplace.

Santiago's supervisors,

appellee Edwin Miranda Velez,

dent reported by Sanchez.

the supervisors informed him

a 1988

including

met with him to discuss

statute

Within

two

defendant-

the inci-

After Santiago denied any wrongdoing,

of PREPA's sexual harassment policy

and directed him

worked.

to keep

away from the

floor on which

Upon encountering Sanchez with

approximately three

lesbians.

weeks later,

Three days

Sanchez

another female employee

however, Santiago

later, on December 8, 1988,

called them

Sanchez filed

her first complaint with the EEOO.

On April 14, 1989, following its investigation into the

first complaint,

the EEOO found that

Santiago's conduct consti-

tuted sexual harassment, and recommended a reprimand and counsel-

ling.

Several weeks later, when Santiago met with supervisors to

discuss

the EEOO report, he

was reminded that sexual harassment

____________________

2We assume,
2
personnel named

without deciding,

that

as defendants were in

tially subject to
their subordinate.

liability under

all PREPA

supervisory

fact "supervisors" poten1983 in

that Santiago

was

See Lipsett v. University of Puerto Rico, 864

___ _______
F.2d

881, 902

(1st

_________________________

Cir. 1988)

(holding that

a constitutional

violation by a subordinate is a predicate for supervisory liability under

1983); see also p. 8 infra (quoting Lipsett).

___ ____
_____
_______

was prohibited

by law.

Once again

he was

warned that

formal

charges would be filed against him for any further harassment and

that he was to stay away from Sanchez while on PREPA property.

On

May 30,

1989, Sanchez

filed her

second complaint

with

the EEOO, relating to Santiago's conduct between May 15 and

19.

During

that

four-day

period,

Sanchez's automobile, suggesting

Santiago

that they go

left

notes

to a motel;

on

fol-

lowed her on the highway, almost causing a collision; blew kisses

at

her; and provoked a

fistfight with Sanchez's

boyfriend.

At

the same time, Sanchez pointed out that Santiago was scheduled to

represent

EEOO

PREPA in a basketball game the following weekend.

promptly contacted

the person

in charge

of the

The

team and

recommended that Santiago not be allowed to do so.

The EEOO Director, defendant-appellee Amada Nieves, met

with Santiago at his request on July 7, 1989.

ed him

that the

May

24 meeting

Sanchez

had been

constituted

Ms. Nieves remind-

warning that

sexual harassment.

his

behavior

toward

She

informed

him that Sanchez had since filed a second complaint and

that

Nieves herself

would interview

him about

it in

the near

future.

Within a

assistant to

tempted

week, defendant-appellee Camille

Nieves, telephoned

to persuade

her

Sanchez at

to drop

the

Galanes, an

her office and

second complaint.

at-

Ms.

Galanes suggested that following up on the second complaint might

not be necessary because

after

no further incidents had

been reported

Santiago was reprimanded in connection with the first com-

plaint.

Sanchez

adamantly disagreed,

however,

stating

that

Santiago had not been at work between May 25 and June 14, and the

mere fact that she had not encountered him in the interim did not

mean his attitude had changed.

At a

meeting

with Ms.

Galanes

on August

15,

1989,

Santiago expressed concern about the possible adverse effects the

earlier

reprimand

might

have

Galanes

reiterated the warning that Santiago was not to approach

Sanchez on PREPA property.3

upon

Sanchez.4

professional

future.

Although Santiago continued to deny

any wrongdoing, he assured Galanes that

anywhere near"

his

On

he was "not going to

October 13, 1989,

go

Director Nieves

telephoned

Sanchez on matters relating to

was not in, Nieves left a message.

Santiago.

The record

As Sanchez

does not disclose

whether Sanchez returned the call.

Sanchez

filed her

third

complaint with

the EEOO

on

April 3, 1990, stating that she had received four unwanted floral

arrangements from

Santiago,

during December, 1989;

three within

span of

that Santiago followed her

six

days

when she went

____________________

3On
Sanchez
be

more

than

one

occasion, EEOO

Director

Nieves

told

that she was too "nervous" and that the harassment might

a product

witnesses.

of

her perception,

Paradoxically, Nieves

directly confront Santiago

been forbidden

to approach

noting

that Sanchez

had

no

even recommended that Sanchez

despite the fact that Santiago had

Sanchez on

PREPA property

since

showing fear could only encourage Santiago.

4Unchastened, a
female

few weeks later Santiago berated a group of

employees (Sanchez

not included)

as "small

and dirty."

The

EEOO

investigated the

incident

was so informed

and

recommended a

formal

on December 20, 1989.

Ulti-

charge.

Santiago

mately,

Santiago was suspended for a week, without pay, based on

these charges.

to

lunch,

lobby;

and

and whistled

when she

and that he telephoned

fifteen times

a day.

The

passed

her at her

him in

the workplace

office between twelve

EEOO promptly

investigated the

third complaint and, on June 7, 1990, once again recommended that

Santiago's supervisor file formal charges

15, 1990,

against him.

On

June

Santiago's supervisor informed him that she was press-

ing charges.

Sanchez submitted her resignation

on July 2, effective

July 20.

Although EEOO Director Nieves met with

regarding

the status

Sanchez failed

PREPA,

of the

third complaint

to mention her

resignation.

her on July 18

against Santiago,

After

Sanchez left

the EEOO continued to press ahead with the charges relat-

ing to the third complaint against Santiago, and asked Sanchez to

testify.

The

charges eventually

were

dismissed for

lack

of

evidence after Sanchez failed to appear without explanation.

Approximately

present

action

year

against Santiago

employees,5 alleging Title

later

Sanchez

and various

VII and civil rights

commenced

the

PREPA supervisory

claims, as well

as a pendent tort

The

district

failure

to

claim against Santiago under Puerto

court first

exhaust

liability claims

dismissed

the

Title VII

administrative remedies.

under section 1983 were

Rico law.

claim

for

The supervisory

subsequently dismissed

____________________

5The named defendants also included Alvarado's successor, as

the Director of PREPA,

Jose Del Valle; Jose Cobian,

Human Services; Luis Crespo Marcial, Supervisor

and Studies;
tive

Director of

of Planification

Maria Hernandez, Executive Assistant

to the Execu-

Director, as well as "John Doe" defendants whose identities

were unknown.

as

time-barred.

After

liability claims,

this court

reinstated the

Sanchez v. Alvarado,
_______
________

1993) (Table), the district

supervisory

993 F.2d 1530

(1st Cir.

court again granted summary judgment

for all supervisory defendants on the ground that Sanchez had not

generated a

the

trialworthy dispute.

pendent tort

claim

and the

against Santiago for failure

could be granted

under section

involved

misuse of

Sanchez

contends on

power

remaining

court dismissed

section 1983

to state a claim upon

since liability

1983 cannot

Finally, the

on the part

attach unless the

under

appeal that

the

of a

which relief

co-employee

alleged harassment

authority of

the district

claim

state

law.

court improperly

resolved

a genuine issue of material fact at summary judgment in

dismissing her section 1983 supervisory liability claims.6

II
II

DISCUSSION
DISCUSSION
__________

1.
1.

Standard of Review
Standard of Review
__________________

We

review a grant of summary judgment de novo.

__ ____

Gomez, 8 F.3d at 874-75.

_____

depositions, answers

Velez______

It will be affirmed if "the pleadings,

to interrogatories, and

the 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 judgment as a matter of law."

A dispute is

Fed.R.Civ.P. 56(c).

"genuine" if "'the evidence about

the fact is such

____________________

6As we affirm the dismissal of all federal claims, we do not

reach

Sanchez's request

for reinstatement

of the

pendent tort

claim

against Santiago.

See Newman v. Burgin, 930 F.2d 955, 963

___ ______
______

(1st Cir. 1991).

that a reasonable jury

the non-moving

party.'"

could resolve the

point in the favor

Rivera-Muriente v.
_______________

of

Agosto-Alicea, 959
_____________

F.2d

349,

352 (1st

Cir. 1992)

(quoting

Parcel of Real Property, Etc., 960

________________________________

1992)).

United States
_____________

F.2d

200, 204

v. One
___

(1st

Cir.

"A fact is material if it 'carries with it the potential

to affect the

outcome of

the suit under

the applicable

law.'"

One National Bank v. Antonellis, 80 F.3d 606, 608 (1st Cir. 1996)
_________________
__________

(quoting Nereida-Gonzalez
________________

(1st Cir. 1993)).

2.
2.

990 F.2d

701, 703

See also Anderson v. Liberty Lobby, Inc., 477

___ ____ ________
____________________

U.S. 242, 247-48 (1986).

facts are material.

v. Tirado-Delgado,
______________

Thus, the substantive law defines which

Id. at 248.
___

Supervisory Liability
Supervisory Liability
_____________________

Supervisory liability under 42

U.S.C.

1983 cannot be

predicated on

the doctrine

Rodriguez v.
_________

of respondeat superior.

Cartagena, 882 F.2d

_________

553, 562 (1st

Cir. 1989).

supervisor can be held liable "only on the basis of

or

omissions."

Cir. 1989).

Gutierrez__________

her own acts

Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st

________
____________

As we have explained:

[A] state official . . . can be held liable .

. . if (1)

the behavior of [a] subordinate[]

results in a constitutional violation and (2)

the official's action or inaction was "affirmative[ly] link[ed]" to that behavior in that
it

could

be

encouragement,

characterized as
condonation

"supervisory

or acquiescence"

or "gross negligence amounting

to deliberate

indifference."

Lipsett, 864 F.2d 902 (citations omitted).

_______

noted

that an

"indifference that

rises to

More recently we have

the level

deliberate, reckless or callous, suffices to establish

of being

liability

under

1983."

requirement of

Gutierrez-Rodriguez, 882
___________________

an "affirmative link"

F.2d

between the behavior

subordinate and the action or inaction of the

The

of a

defendant official

"contemplates proof that the supervisor's conduct

to the constitutional violation."

at 562.

led inexorably

Hegarty v. Somerset County, 53

_______
_______________

F.3d 1367, 1380 (1st Cir.), cert. denied, 116 S. Ct. 675 (1995).
____ ______

3.
3.

Summary Judgment
Summary Judgment
________________

The

district

judgment proffers, found

herself

met with

court,

relying

on

defendants' summary

that "[o]n August 18,

Galanes and

agreed to

1989 Ms. Sanchez

close the

second com-

plaint, as no further incidents had occurred since May 19, 1989."

Nevertheless, at

made

her deposition

Sanchez testified that

it quite clear to Galanes that

complaint closed.

See supra p. 4-5.

___ _____

she had

she did not want the second

Thus, Sanchez contends that

the district court improperly resolved a genuine issue of materi-

al fact in awarding summary judgment to defendants.

We agree

that

it was

error

to resolve

the

factual

dispute concerning the dismissal of the second complaint adverse-

ly to Sanchez

at summary judgment.

Nevertheless, since the

summary judgment

as a

Velez-Gomez, 8
___________

F.3d at 875.

supervisory defendants were

matter of law

dispute was immaterial, see

___

in any event,

entitled to

the factual

Antonellis, 80 F.3d at 608,

__________

and the

error was harmless.

The defendant supervisors

had warned Santiago to

stay

away from Sanchez even before the filing of the first formal com-

plaint

with

the EEOO.

The

EEOO

10

investigated each

and every

complaint

Sanchez filed

against Santiago.

investigation of the first

manded

and ordered

Even though Ms.

not to

engaged in

and

to

disposition of

though

it

go near

Sanchez on

Sanchez to drop

keep away

from

Sanchez

the first complaint.

was only

after

PREPA property.

the second

com-

her perception that Santiago had not

any further harassment after

ordered

the EEOO

formal complaint, Santiago was repri-

Galanes urged

plaint, she did so based on

Following

Sanchez

having been reprimanded

following the

As a matter of

filed her

third

EEOO's

fact, even

complaint

alleging yet further harassment by Santiago that the EEOO learned

that

the disciplinary

action

taken in

response

to the

first

complaint had failed to produce the anticipated deterrent effect,

the EEOO nonetheless

EEOO

took prompt action on the second complaint.

Director Nieves met with

filing

of the

Santiago

second formal

thereafter,

Santiago and informed

complaint.

warning him

of

him of the

Ms. Galanes

the

met with

consequences of

any

further harassment, and reminding him that he was not to approach

Sanchez

at the workplace.

complaint, the

After looking into the second Sanchez

EEOO determined that further

_______

sary for the reasons explained by Galanes.

at

full

1380 (Sheriff's

decision not

action was unneces-

See Hegarty,
___ _______

to discipline

53 F.3d

deputies, after

investigation, not deliberate indifference despite contrary

recommendation by Attorney General's advisory panel).

Given the information available

to Ms. Galanes in mid-

July, her effort to persuade Sanchez to drop the second complaint

could not

have constituted "encouragement

or condonation,"

let

11

alone conduct

which amounted

lous" indifference.

F.2d

at

562

(1st

See
___

Cir.

to "deliberate, reckless,

Guti rrez-Rodriguez v.
___________________

1989);

see
___

also
____

or cal-

Cartagena, 882
_________

Febus-Rodriguez
_______________

v.

Betancourt-Lebron, 14
_________________

Vance, 868
_____

in

F.3d 87,

92 (1st

Cir. 1994); Germany

_______

F.2d 9, 18 (1st Cir. 1989).

proceeding with

the

v.

The conduct of the EEOO

investigation of

the second

complaint

notwithstanding the intervening actions taken against Santiago in

connection

with the

first complaint

finding of "gross negligence"

ence."

curred

prior to

complaint,

whether Ms.

the basis

the

at 92 n.4.

efforts to

Since all the

second complaint

EEOO's disciplinary

second complaint amounted to

reasonably

for the

Sanchez failed to generate

Galanes'

supportable

or "reckless and callous indiffer-

See Febus-Rodriguez, 14 F.3d

___ _______________

harassment forming

precluded any

action

had oc-

on the

first

a trialworthy issue as to

persuade Sanchez

to drop

the

supervisory action or inaction that

could be characterized as "supervisory encouragement,

condonation or acquiescence,"

deliberate indifference."

The alleged

supervisors

hardly

or "gross negligence amounting

to

See Lipsett, 864 F.2d at 902.7

___ _______

actions and inaction

qualify

as

a model

by these

for

defendant-

administering

an

____________________

7We
7

pause to

emphasize that

environment sexual harassment case.

this is

ordinary hostile

Ordinarily, such claims are

presented under the rubric of Title VII,

on

no

which imposes liability

an employer where the sexual harassment has created a hostile

environment, known to the

fails to

take action

employer, and the employer nonetheless

variously characterized as

"reasonable" or "effectual."

See id. at 901.

___ __

Sanchez is

the far more

left to confront

indifference" standard

applicable under

VII claims have been dismissed.

On the other hand,

stringent "deliberate
1983,

See supra p. 5.
___ _____

12

"appropriate,"

since her Title

efficient and effective anti-harassment policy.

the

efforts

to

discourage

Sanchez from

Even overlooking

pressing

the

second

complaint, their leisurely response to a serious second complaint

could

create a

trialworthy issue

given

her version

of the

relevant events and assuming a lack of mitigating explanations

if simple negligence

were the

applicable standard.

But it

is

not.

Further, we in no sense mean to suggest that a supervi-

sor

automatically

escapes

liability

by

conducting

investigation into each harassment complaint

formal

and merely deliver-

ing a reprimand to the misfeasor even though experience has shown

that it will be disregarded.

At some point, not reached here, a

failure

emphatic

to

take prompt

and

action could

constitute

reckless indifference rather than mere laxity.

III
III

CONCLUSION
CONCLUSION
__________

As the "deliberate indifference" standard

for supervi-

sory liability has not been met by the evidence proffered against

the defendant-supervisors,

affirmed.

the district court

judgment must

The parties shall bear their own costs.

SO ORDERED.
SO ORDERED.
__ _______

be

13