
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 appellant.             ___________            ______________             Edgardo  Rodriguez  Quilichini,   Assistant  Solicitor   General,             ______________________________        Department of Justice, with whom Carlos  Lugo Fiol, Solicitor General,                                         _________________        and  Edda Serrano Blasini, Deputy Solicitor General, were on brief for             ____________________        appellees.                                                                                      ____________________                                   December 2, 1996                                                                                      ____________________                                    ____________________             *Of the District of Massachusetts, sitting by designation.                    CYR,  Circuit Judge.   Plaintiff  Maria de  los Angeles                    CYR,  Circuit Judge.                             _____________          Sanchez ("Sanchez")  appeals a summary judgment  ruling rejecting          her  civil rights claim, see 42 U.S.C.   1983, alleging liability                                   ___          on  the  part of  certain  supervisory personnel  at  Puerto Rico          Electric Power Authority ("PREPA")  for failing to take appropri-          ate  action  against   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  1988 and          invited her to  dinner.   A few days  after Sanchez declined  the          invitation  she  received a  call  from  another PREPA  employee,          informing  her that she should expect to hear from Santiago again          since  he had an ongoing bet that  he would succeed in his quest.          Later  that month,  Santiago approached  Sanchez and  stated that          they should  talk.   As Sanchez  walked away,  Santiago exclaimed          that  she would see what he was  capable of and if she complained          about his behavior he would cause her harm.                      The  first  supervisor   with  whom  Sanchez  discussed          Santiago's  behavior, defendant-appellee Ramon Figueroa, tried to          persuade  her  not to  file a  formal  charge with  PREPA's Equal          Employment Opportunity Office  (EEOO), stating that everyone  was                                        ____________________               1All material  facts in genuine  dispute are related  in the          light  most favorable to Sanchez.  Velez-Gomez v. SMA Life Assur.                                             ___________    _______________          Co., 8 F.3d 873, 875 (1st Cir. 1993)          ___                                          3          entitled  to one  mistake.2    Upon  learning that  Santiago  had          already  been the  subject of  a sexual  harassment complaint  by          another  female  employee,  however,  Ramon  actively  encouraged          Sanchez to file a formal complaint.                    On   November   15,  1988,   defendant-appellee  Carlos          Alvarado, then  the Director of PREPA, circulated a memorandum on          the  subject of  sexual  harassment, referencing  a 1988  statute          prohibiting  sexual  harassment in  the  workplace.   Within  two          weeks,  three  of  Santiago's supervisors,  including  defendant-          appellee Edwin Miranda Velez,  met with him to discuss  the inci-          dent reported by Sanchez.   After Santiago denied any wrongdoing,          the supervisors informed him  of PREPA's sexual harassment policy          and directed him  to keep  away from the  floor on which  Sanchez          worked.   Upon encountering Sanchez with  another female employee          approximately three  weeks later,  however, Santiago  called them          lesbians.  Three days  later, on December 8, 1988,  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,  without deciding,  that  all PREPA  supervisory               2          personnel named  as defendants were in  fact "supervisors" poten-          tially subject to  liability under    1983 in  that Santiago  was          their subordinate.  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 liabil-          ity under   1983); see also p. 8 infra (quoting Lipsett).                             ___ ____      _____          _______                                          4          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,  Santiago  left  notes  on          Sanchez's automobile, suggesting  that they go  to a motel;  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  PREPA in a basketball game the following weekend.  The          EEOO  promptly contacted  the person  in charge  of 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.  Ms. Nieves remind-          ed him  that the  May  24 meeting  had been  a  warning that  his          behavior  toward  Sanchez  constituted  sexual harassment.    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  week, defendant-appellee Camille  Galanes, an          assistant to  Nieves, telephoned  Sanchez at  her office and  at-          tempted  to persuade  her  to drop  the  second complaint.    Ms.          Galanes suggested that following up on the second complaint might          not be necessary because  no further incidents had  been reported          after  Santiago was reprimanded in connection with the first com-                                          5          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  upon  his  professional  future.          Galanes  reiterated the warning that Santiago was not to approach          Sanchez on PREPA property.3   Although Santiago continued to deny          any wrongdoing, he assured Galanes that  he was "not going to  go          anywhere near"  Sanchez.4  On  October 13, 1989,  Director Nieves          telephoned  Sanchez on matters relating to  Santiago.  As Sanchez          was not in, Nieves left a message.  The record  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,  three within  a  span of  six  days          during December, 1989;  that Santiago followed her  when she went                                        ____________________               3On  more  than  one  occasion, EEOO  Director  Nieves  told          Sanchez  that she was too "nervous" and that the harassment might          be  a product  of  her perception,  noting  that Sanchez  had  no          witnesses.   Paradoxically, Nieves  even recommended that Sanchez          directly confront Santiago     despite the fact that Santiago had          been forbidden  to approach  Sanchez on  PREPA property     since          showing fear could only encourage Santiago.                 4Unchastened, a  few weeks later Santiago berated a group of          female  employees (Sanchez  not included)  as "small  and dirty."          The  EEOO  investigated the  incident  and  recommended a  formal          charge.  Santiago  was so informed  on December 20, 1989.   Ulti-          mately,  Santiago was suspended for a week, without pay, based on          these charges.                                          6          to  lunch,  and whistled  when she  passed  him in  the workplace          lobby;  and that he telephoned  her at her  office between twelve          and  fifteen times  a day.   The  EEOO promptly  investigated the          third complaint and, on June 7, 1990, once again recommended that          Santiago's supervisor file formal charges  against him.  On  June          15, 1990,  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  her on July 18          regarding  the status  of the  third complaint  against Santiago,          Sanchez failed  to mention her  resignation.  After  Sanchez left          PREPA,  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   a  year  later  Sanchez  commenced  the          present  action  against Santiago  and various  PREPA supervisory          employees,5 alleging Title  VII and civil rights  claims, as well          as a pendent tort  claim against Santiago under Puerto  Rico law.          The  district  court first  dismissed  the  Title VII  claim  for          failure  to  exhaust  administrative remedies.    The supervisory          liability claims  under section 1983 were  subsequently dismissed                                        ____________________               5The named defendants also included Alvarado's successor, as          the Director of PREPA,  Jose Del Valle; Jose Cobian,  Director of          Human Services; Luis Crespo Marcial, Supervisor  of Planification          and Studies;  Maria Hernandez, Executive Assistant  to the Execu-          tive  Director, as well as "John Doe" defendants whose identities          were unknown.                                           7          as  time-barred.   After  this court  reinstated the  supervisory          liability claims,  Sanchez v. Alvarado,  993 F.2d 1530  (1st Cir.                             _______    ________          1993) (Table), the district  court again granted summary judgment          for all supervisory defendants on the ground that Sanchez had not          generated a  trialworthy dispute.   Finally, the  court dismissed          the  pendent tort  claim  and the  remaining  section 1983  claim          against Santiago for failure  to state a claim upon  which relief          could be granted  since liability  on the part  of a  co-employee          under section  1983 cannot  attach unless the  alleged harassment          involved  misuse of  power  under  the  authority of  state  law.          Sanchez  contends on  appeal that  the district  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.   Standard of Review          1.   Standard of Review               __________________                    We  review a grant of summary judgment de novo.  Velez-                                                           __ ____   ______          Gomez, 8 F.3d at 874-75.   It will be affirmed if "the pleadings,          _____          depositions, answers  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."  Fed.R.Civ.P. 56(c).          A dispute is  "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).                                          8          that a reasonable jury  could resolve the  point in the favor  of          the non-moving  party.'"   Rivera-Muriente v.  Agosto-Alicea, 959                                     _______________     _____________          F.2d  349,  352 (1st  Cir. 1992)  (quoting  United States  v. One                                                      _____________     ___          Parcel  of Real  Property,  Etc., 960  F.2d  200, 204  (1st  Cir.          ________________________________          1992)).  "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  v. Tirado-Delgado,  990 F.2d  701, 703                   ________________     ______________          (1st Cir. 1993)).  See also Anderson v. Liberty Lobby,  Inc., 477                             ___ ____ ________    ____________________          U.S. 242, 247-48 (1986).  Thus, the substantive law defines which          facts are material.  Id. at 248.                               ___          2.   Supervisory Liability           2.   Supervisory Liability               _____________________                    Supervisory liability under 42  U.S.C.   1983 cannot be          predicated on  the doctrine  of respondeat superior.   Gutierrez-                                                                 __________          Rodriguez v.  Cartagena, 882 F.2d  553, 562 (1st  Cir. 1989).   A          _________     _________          supervisor can be held liable "only on the basis of  her own acts          or  omissions."  Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st                           ________    ____________          Cir. 1989).  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 "affir-                    mative[ly] link[ed]" to that behavior in that                    it  could  be  characterized as  "supervisory                    encouragement,  condonation  or acquiescence"                    or "gross negligence amounting  to deliberate                    indifference."          Lipsett, 864 F.2d 902 (citations omitted).  More recently we have          _______          noted  that an  "indifference that  rises to  the level  of being          deliberate, reckless or callous, suffices to establish  liability                                          9          under    1983."    Gutierrez-Rodriguez, 882  F.2d  at 562.    The                             ___________________          requirement of  an "affirmative link"  between the behavior  of a          subordinate and the action or inaction of the  defendant official          "contemplates proof that the supervisor's conduct  led inexorably          to the constitutional violation."  Hegarty v. Somerset County, 53                                             _______    _______________          F.3d 1367, 1380 (1st Cir.), cert. denied, 116 S. Ct. 675 (1995).                                       ____  ______          3.   Summary Judgment           3.   Summary Judgment                ________________                    The  district  court,  relying  on  defendants' summary          judgment proffers, found  that "[o]n August 18,  1989 Ms. Sanchez          herself  met with  Galanes and  agreed to  close the  second com-          plaint, as no further incidents had occurred since May 19, 1989."          Nevertheless, at  her deposition  Sanchez testified that  she had          made  it quite clear to Galanes that  she did not want the second          complaint closed.  See supra p. 4-5.  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.  Velez-Gomez, 8  F.3d at 875.                                               ___________          Nevertheless, since the  supervisory defendants were  entitled to          summary judgment  as a  matter of law  in any event,  the factual          dispute was immaterial, see  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  investigated each  and every                                          10          complaint  Sanchez filed  against Santiago.   Following  the EEOO          investigation of the first  formal complaint, Santiago was repri-          manded  and ordered  not to  go near  Sanchez on  PREPA property.          Even though Ms.  Galanes urged  Sanchez to drop  the second  com-          plaint, she did so based on  her perception that Santiago had not          engaged in  any further harassment after  having been reprimanded          and  ordered  to  keep away  from  Sanchez  following the  EEOO's          disposition of  the first complaint.   As a matter of  fact, even          though  it  was only  after  Sanchez  filed her  third  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  took prompt action on the second complaint.          EEOO  Director Nieves met with  Santiago and informed  him of the          filing  of the  second formal  complaint.   Ms. Galanes  met with          Santiago  thereafter,  warning him  of  the  consequences of  any          further harassment, and reminding him that he was not to approach          Sanchez  at the workplace.  After looking into the second Sanchez          complaint, the  EEOO determined that further  action was unneces-                                               _______          sary for the reasons explained by Galanes.  See Hegarty,  53 F.3d                                                      ___ _______          at  1380 (Sheriff's  decision not  to discipline  deputies, after          full  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  to "deliberate, reckless,  or cal-          lous" indifference.   See  Guti rrez-Rodriguez v.  Cartagena, 882                                ___  ___________________     _________          F.2d  at  562  (1st  Cir.  1989);  see  also  Febus-Rodriguez  v.                                             ___  ____  _______________          Betancourt-Lebron, 14  F.3d 87,  92 (1st  Cir. 1994); Germany  v.          _________________                                     _______          Vance, 868  F.2d 9, 18 (1st Cir. 1989).   The conduct of the EEOO          _____          in  proceeding with  the  investigation of  the second  complaint          notwithstanding the intervening actions taken against Santiago in          connection  with the  first complaint  precluded any  supportable          finding of "gross negligence"  or "reckless and callous indiffer-          ence."   See Febus-Rodriguez, 14 F.3d  at 92 n.4.   Since all the                   ___ _______________          harassment forming  the basis  for the  second complaint  had oc-          curred  prior to  the  EEOO's disciplinary  action  on the  first          complaint,  Sanchez failed to generate  a trialworthy issue as to          whether Ms.  Galanes'  efforts to  persuade Sanchez  to drop  the          second complaint amounted to  supervisory action or inaction that          reasonably  could be characterized as "supervisory encouragement,          condonation or acquiescence,"  or "gross negligence amounting  to          deliberate indifference."  See Lipsett, 864 F.2d at 902.7                                       ___ _______                    The alleged  actions and inaction  by these  defendant-          supervisors  hardly  qualify  as  a model  for  administering  an                                        ____________________               7We  pause to  emphasize that  this is  no  ordinary hostile               7          environment sexual harassment case.   Ordinarily, such claims are          presented under the rubric of Title VII,  which imposes liability          on  an employer where the sexual harassment has created a hostile          environment, known to the  employer, and the employer nonetheless          fails to  take action  variously characterized as  "appropriate,"          "reasonable" or "effectual."  See id. at 901.  On the other hand,                                        ___ __          Sanchez is  left to confront  the far more  stringent "deliberate          indifference" standard  applicable under   1983,  since her Title          VII claims have been dismissed.  See supra p. 5.                                           ___ _____                                          12          efficient and effective anti-harassment policy.  Even overlooking          the  efforts  to  discourage  Sanchez from  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  a  formal          investigation into each harassment complaint  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  to  take prompt  and  emphatic  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,  the district court  judgment must  be          affirmed.  The parties shall bear their own costs.                      SO ORDERED.                     SO ORDERED.                     __ _______                                          13
