A federal appeals court in Puerto Rico has rejected the narrow limitations imposed by the U.S. Supreme Court on who is considered to be a “supervisor” in employment discrimination cases.
The U.S. Court of Appeals for the First Circuit held that Developers Diversified Realty Corp (DDR) can be held liable for sexual harassment by Rosa Martinez, an HR officer for the company, who engineered the ouster of Antonio Velázquez-Pérez, a company regional general manager, after he rebuffed her advances.
Both Martinez and Velázquez worked in the Puerto Rico offices of DDR, a shopping center management company based in Ohio.
In its ruling , the appeals court acknowledged that the U.S. Supreme Court last year limited employer liability under Title VII of the Civil Rights Act in cases where a non-supervisor causes a discriminatory action. Martinez was not Velázquez’ supervisor. However, the 1st Circuit court said, DDR should have known that Martinez’s recommendation that Velázquez be fired was the product of discriminatory animus and therefore can be held liable under Title VII for negligently allowing Martinez to cause Velázquez’s termination.
Noting the case presented issues that it had not addressed previously. the appeals court concluded that an employer can be held liable if the co-worker acted for discriminatory reasons with the intent to cause the plaintiff’s firing; the co-worker’s actions were in fact the proximate cause of the termination; and the employer allowed the co-worker’s acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.
The Court reversed the district court’s grant of summary judgment on Velázquez’s claim of sexual discrimination in violation of Title VII.
According the opinion, Velázquez and Martinez had mutually flirted with each other when they both went to a company meeting in April 2008 and stayed at the same hotel. That night, Velázquez was walking with two female employees of the company when Martinez appeared in their path and asked where they were going. Martinez followed Velázquez to his room, tried to force her way in and refused to leave until Velázquez threatened to call security. She then telephoned hm several times and sent a jealous email to one of the women that he had been walking with. Shortly thereafter, Martinez threatened to have Velázquez fired, stating, “I don’t have to take revenge on anyone; if somebody knows your professional weaknesses, that person is me.”
Velázquez complained about Martinez’s behavior to his supervisor, who advised him to send her a “conciliatory” email because “[s]he’s going to get you terminated.” He and another male employee then jokingly suggested that Velázquez have sex with Martinez.
Martinez began a campaign of harsh criticism of Velázquez’s work, culminating with a recommendation that he be terminated. The top company official in Puerto Rico suggested that instead of termination Velázquez be issued a formal warning and placed on a Performance Improvement Plan. Martinez went over his head and complained to two senior officials at the company’s headquarters in Ohio.
Meanwhile, Velázquez and Martinez went to another business meeting and stayed at the same hotel. This time Martinez followed Velázquez into an elevator and said she loved him and “wanted to have a romantic relationship with him.” Velázquez refused. That night, Martinez sent an email to the Ohio officials recommending that Velázquez be terminated immediately “because his behavior has been against the company code of conduct and has already impacted the trust form other team members.”
Four days later, on August 25, 2008, Velázquez was terminated for “[a]bsenteeism,” “[f]ailure to report,” and “[u]nsatisfactory performance.”
