

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
