Opinion
Civil No. 04-1376(JAF).
September 1, 2005
OPINION AND ORDER
Plaintiff, Cindia I. Alvarado González, brings the present action against Defendants, Fuller Group Puerto Rico, Inc. ("Fuller Group"); The Fuller Brush Company of Puerto Rico, Inc. ("Fuller Brush Company"); North Janitorial Services ("North Janitorial"); Antilles Cleaning Services ("Antilles"); Company ABC; Carlos Mercader ("Mercader"), his wife, and their conjugal partnership; and unknown party defendants, including but not limited to insurance companies that have issued insurance policies covering the action, alleging violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2003 Supp. 2005), and § 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a (2003 Supp. 2005). Docket Document No. 1. Plaintiff seeks, inter alia, compensatory damages, punitive damages, costs, and attorney's fees. Id.
I. Factual and Procedural Summary
Unless otherwise indicated, we derive the following factual summary from the complaint and the statements of fact submitted by the parties in their summary judgment and opposition motions.Docket Document Nos. 1, 22, 29, 36.Plaintiff is a 37-year-old resident of Carolina, Puerto Rico. She was employed by Defendants as a janitor, group leader, and supervisor from August 1, 2001 until April 2, 2004.
Defendants Fuller Group, Fuller Brush Company, North Janitorial, Antilles, Company XYZ, and XYZ Corporation are domestic corporations authorized to do business in Puerto Rico.
Defendant Mercader was employed by Defendant Antilles at all times pertinent to this action and was Plaintiff's project manager at Defendant Antilles' Luis Muñoz Marín International Airport location ("Muñoz Marín Airport").
In mid-2002, Plaintiff and Defendant Mercader went to Defendant Antilles' warehouse to pick up cleaning equipment needed by Plaintiff to perform her work. At the warehouse, Plaintiff and Defendant Mercader started chatting and smoking. When Plaintiff put out her cigarette, Defendant Mercader pinned her to the wall and kissed her on the lips. Plaintiff screamed, and Defendant Mercader let her go and promised not to make a sexual advance on her again. Plaintiff left the warehouse and encountered her co-worker, Ms. Sara I. Fuentes, who saw her upset and asked her what had happened. Plaintiff did not immediately tell Fuentes about what had transpired in the warehouse, but she described the incident to Fuentes approximately three to four weeks later.
Several weeks after the warehouse incident, Plaintiff told Mr. Miguel Vélez, an indirect supervisor, about Mercader's behavior. Vélez did not initiate an investigation into Plaintiff's allegations nor did he notify anyone else of her complaint.
On multiple occasions before and after the first warehouse incident, Defendant Mercader told Plaintiff that she drove him crazy. On other occasions, he pulled her hair. Defendant Mercader repeatedly asked other employees about Plaintiff's whereabouts, even though he was only her indirect supervisor. Plaintiff discouraged the attention that Defendant Mercader bestowed on her. On several occasions, Plaintiff explicitly requested that Defendant Mercader leave her alone.
Approximately one month after the warehouse incident, Plaintiff was demoted from group leader to a regular employee and then subsequently reinstated as group leader. During the one or two months that she was a regular employee, Plaintiff did not receive the $80 biweekly wage differential provided to group leaders. Once she was reinstated as a group leader, payment of the differential was not timely and the amount she received would vary.
On February 26, 2003, Plaintiff and Defendant Mercader were again in Defendant Antilles' warehouse obtaining cleaning supplies when Defendant Mercader held Plaintiff by her shoulders and kissed her neck. Plaintiff left the warehouse crying and encountered a co-worker, Mr. Benjamín Negrón, who asked Plaintiff what was wrong. Plaintiff told Negrón what had transpired. Immediately thereafter, Plaintiff saw Fuentes and also told her what had happened.
The next day, Plaintiff spoke with Mr. Eduardo Escalera, the Director of Human Resources at Defendant Antilles, about the two instances in which Defendant Mercader approached her in the company's warehouse. Escalera requested that Plaintiff submit a complaint in writing, which Plaintiff did on or about March 2, 2003. Subsequently, Escalera initiated an investigation regarding Plaintiff's allegations. Escalera interviewed Vélez, Defendant Mercader, and Plaintiff in the course of his investigation and concluded that Plaintiff lacked sufficient evidence to support a sexual harassment claim.
Several days after complaining to Escalera, Plaintiff was transferred to the Loíza Diagnostic and Treatment Center ("Loíza DTC"), a North Janitorial facility, at which she performed the 6:00 A.M. to 3:00 P.M. shift (the same shift as at the Muñoz Marín Airport). After approximately one month at the Loíza DTC, she was transferred to the 3:00 P.M. to 11:00 P.M. shift at the Ashford Presbyterian Hospital in Condado ("Ashford Presbyterian"), another North Janitorial facility. She retained her position as a group leader. When Plaintiff was told of the transfer to Ashford Presbyterian by her supervisor, Mr. Carlos Arroyo, Plaintiff expressed to him that the shift was burdensome because of her children. Plaintiff continued to work during the night shift at Ashford Presbyterian until she submitted her resignation on April 2, 2004.
Plaintiff filed the present suit on April 29, 2004, alleging that she was a victim of sexual discrimination, sexual harassment, and retaliation and that such unlawful practices caused her to resign from her position at North Janitorial.Docket Document No. 1.
Defendants submitted a motion for summary judgment on April 20, 2005. Docket Document No. 22. On May 11, 2005, Plaintiff filed an opposition motion to Defendants' motion for summary judgment,Docket Document No. 29.
II. Applicable Legal Standard
The standard for summary judgment is straightforward and well-established. A district court should grant a motion for summary judgment "if the pleadings, depositions, and answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A factual dispute is "genuine" if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case.Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).The moving party carries the burden of establishing that there is no genuine issue as to any material fact, though the burden "may be discharged by showing that there is an absence of evidence to support the nonmoving party's case." See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 331 (1986). The burden has two components: (1) an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and (2) an ultimate burden of persuasion, which always remains on the moving party. See id. at 331.
The non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment exists "to pierce the boilerplate of the pleadings and assess the proof in order to determine the need for trial." Euromodas, Inc. v. Zanella, 368 F.3d 11, 17 (1st Cir. 2004) (citing Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)).
III. Analysis
In moving for summary judgment, Defendants aver that: (1) Plaintiff was not subject to a hostile work environment in violation of Title VII; (2) some of the alleged instances of sexual harassment are time-barred because they fall outside of the Equal Employment Opportunity Commission's ("EEOC") 300-day statute of limitations; (3) the evidence provided by Plaintiff does not support a finding of constructive discharge or retaliation; and (4) Plaintiff's supplemental Commonwealth law claims should be dismissed because Puerto Rico's sexual harassment laws closely align with the corresponding federal law. Docket Document No. 22. We address each issue in turn.
A. Hostile Work Environment
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2. "Hostile work environment sexual harassment occurs when an employer's conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
To establish a discrimination claim under Title VII for hostile work environment, Plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to unwelcomed sexual harassment; (3) the harassment was based upon sex; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and create an abusive work environment; (5) the sexually objectionable conduct was both objectively and subjectively offensive such that a reasonable person would find it hostile or abusive and that the victim, in fact, did perceive it to be so; and (6) some basis for employer liability has been established.O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-89 (1998); Harris v. Forklift Sys., 510 U.S. 17, 20-23 (1993); Meritor, 477 U.S. at 65-73.
The Supreme Court directs us to "determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Faragher, 524 U.S. at 778 (internal quotation marks omitted);Harris, 510 U.S. at 24. "Evidence of sexual remarks, innuendoes, ridicule, and intimidation may be sufficient to support a jury verdict for a hostile work environment."O'Rourke, 235 F.3d at 729; see also White v. N.H. Dept. of Corr., 221 F.3d 254, 260-61 (1st Cir. 2000) (finding a hostile work environment where "disgusting comments" and conversations occurred "everyday").
Defendants aver that Plaintiff was not subject to a hostile working environment because: (1) Plaintiff alleges only two instances of improper behavior by Defendant Mercader, the first of which occurred outside of the EEOC's 300-day statute of limitations for the filing of such claims; and (2) the second incident does not constitute conduct that was severe or pervasive enough to alter the conditions of Plaintiff's employment and create an abusive working environment. Docket Document No. 22. 1. Statute of Limitations
Defendant only argues that Plaintiff was not subject to a hostile work environment. Because there is evidence that Plaintiff is a member of a protected class, that she objected to the alleged harassment, and that the harassment was based upon sex, Defendants concede the first three elements of Plaintiff's Title VII claim.
Under Title VII, a plaintiff is required to file a charge with the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1) (2003 Supp. 2005). In the present case, Plaintiff filed her hostile work environment claim on May 15, 2003. In Plaintiff's initial complaint and deposition, Plaintiff alleged that the first warehouse incident occurred in March 2002. In her May 2003 EEOC filing and her May 2005 affidavit, Plaintiff contends that the first incident of sexual harassment occurred in August 2002. Defendants avers that Plaintiff's claim is untimely, citing the March 2002 date set forth in Plaintiff's initial complaint and deposition. Defendants assert that since Plaintiff did not file with the EEOC until May 2003, more than 300 days after March 2002, the first warehouse incident is outside the purview of Title VII liability.
The Supreme Court has stated that the statute of limitations in a hostile work environment claim is satisfied as long as the plaintiff files a charge within 300 days of any act that is part of the claim. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002); see also Dressler v. Daniel, 315 F.3d 75, 79 (1st Cir. 2003); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002).
Defendants do not dispute that the second incident of sexual harassment occurred within 300 days of Plaintiff's EEOC filing. Therefore, under Morgan, Plaintiff's entire claim, including both alleged warehouse incidents, is timely. We, therefore, continue with an analysis of whether such incidents, when taken together, constitute conduct that was severe or pervasive enough to alter the conditions of Plaintiff's employment and create an abusive working environment.
For the sake of clarity, we will hereinafter refer to the first incident as the "August 2002 warehouse incident."
2. Severe or Pervasive Conduct
There is no litmus test that clearly demonstrates whether workplace harassment is sufficiently severe or persuasive so as to be actionable. Instead, we consider the totality of circumstances. See Gorski v. N.H. Dept. of Corr., 290 F.3d 466, 472 (1st Cir. 2002) (noting that "there is no mathematically precise test" for determining whether the work environment was so hostile or abusive that the terms and conditions of the plaintiff's employment were altered); see also O'Rourke, 235 F.3d at 728; Lipsett v. Univ. of P.R., 864 F.2d 881 (1st Cir. 1988). Courts have found that a single incident of physical harassment may constitute actionable sexual harassment. See Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005) ("A single act of harassment may, if egregious enough, suffice to evince a hostile work environment.") (citingFaragher, 524 U.S. at 788); Vargas v. Fuller Brush Co. of P.R., 336 F. Supp. 2d 134 (D.P.R. 2004) (permitting allegation of a single incident of sexual harassment to survive summary judgment).
Defendant Mercader's two efforts to kiss Plaintiff, coupled with the consistent and unwanted attention that Defendant Mercader paid to Plaintiff, raise a question of whether Plaintiff was subjected to sexual harassment that reasonably interfered with her work performance. See generally Marrero, 304 F.3d at 19. Moreover, because the very nature of hostile environment claims is that they are rooted in acts or events that over time culminate to create an unlawfully hostile environment, the question of when Defendant Mercader's offensive conduct violated Title VII is often better resolved by the factfinder at trial and not on summary judgment. Munroe v. Compaq Computer Corp., 229 F. Supp. 2d. 52, 61 (D.N.H. 2002). Accordingly, Defendants' motion for summary judgment on hostile work environment grounds is denied.
B. Employer Liability
Defendants asseverate that they cannot be held vicariously liable for any Title VII violations committed by Defendant Mercader because they took adequate remedial measures once Plaintiff complained to Defendants' management. Docket Document No. 22.
In Burlington Industries, Inc. v. Ellerth, and Faragher, the Supreme Court held that an employer is strictly liable for supervisor harassment that culminates in a tangible employment action. Ellerth, 524 U.S. 742, 765 (1998); Faragher, 524 U.S. at 808. When no tangible employment action is taken, the employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. Ellerth, 524 U.S. at 765. To prevail on the basis of such defense, the employer must demonstrate that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Id.; Faragher 524 U.S. at 807.
Defendants assert that no tangible employment action occurred in connection with Defendant Mercader's alleged conduct.Document Docket No. 22. As such, Defendants submit that they are protected by the affirmative defense established inEllerth/Faragher. Id. Plaintiff counters that her reassignment to the night shift at Ashford Presbyterian is a tangible employment action under Title VII. She maintains that the reassignment was burdensome because of her responsibilities to her children.
We agree with Defendants that Plaintiff suffered no tangible employment action. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761. A reassignment to a more inconvenient position is insufficient to constitute a tangible employment action, id. (citing Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994)), as is an unfulfilled threat by one's supervisor. Reed v. MBNA Mktg Sys., Inc., 333 F.3d 27, 34 (1st Cir. 2003) (internal citations omitted).
Under Pennsylvania State Police v. Suders, 542 U.S. 129, (2004), constructive discharge, when precipitated by a supervisor's official act, may be viewed as a tangible employment action. We discuss Plaintiff's constructive discharge claim,infra at Part C, and find that there is insufficient evidence to support such claim.
While we are sympathetic to Plaintiff's desire to be available to her children, that desire, without a demonstration of consequential and significant harm, is not protected under Title VII. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 887 (6th Cir. 1996) (finding that demotion without a change in pay, benefits, duties, or prestige is insufficient); Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (noting that a "bruised" ego is not enough to establish a materially adverse employment action). Plaintiff's reassignment did not entail a change in pay, benefits, or responsibilities. Moreover, Plaintiff continued to work during the night shift for over a year before she left her position at North Janitorial, and she did so to take the night shift with her subsequent employer. Such circumstances undercut any implication that the night shift was so burdensome as to be deemed a tangible employment action under Ellerth.
Plaintiff also suggests that her demotion from group leader to regular employee is a tangible employment action under Ellerth. The demotion clearly caused a financial loss to Plaintiff during the one or two months that she did not receive a $80 biweekly differential. Plaintiff has provided no evidence, however, linking such loss to Defendant Mercader. See Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 44 (1st Cir. 2003) ("[T]he harassing supervisor must be the one who orders the tangible employment action or at the very least, must be otherwise substantially responsible for the action"). In the absence of such evidence, we cannot conclude that the demotion is a tangible employment action under Ellerth. Because Plaintiff has not suffered a tangible employment action, theEllerth/Faragher defense is available to Defendants. Accordingly, we consider the reasonableness of Defendants conduct in preventing and correcting Defendant Mercader's harassing conduct and the reasonableness of Plaintiff's conduct in seeking to avoid harm. See Faragher, 524 U.S. at 775.
We turn first to whether Defendants exercised reasonable care in handling Plaintiff's complaint. Plaintiff notes that when she told Vélez about the August 2002 warehouse incident, he did not take any action to initiate an investigation into her allegations as was mandated by Defendants' internal policy regarding sexual harassment. Docket Document No. 37, Exh. 1. In addition, once Plaintiff complained to Escalera, he failed to interview the two co-workers who saw Plaintiff immediately after her two most disturbing encounters with Defendant Mercader. Docket Document No. 23, Exh. 1 29. Plaintiff maintains that interviewing them could have helped determine if the harassment occurred. Id. Moreover, Plaintiff submits, Defendant Mercader was never disciplined for his conduct. Docket Document No. 29. Such oversight, Plaintiff maintains, brings to light a genuine issue of fact as to whether Defendants exercised reasonable care in preventing and remedying the situation.
Defendants counter that they exercised reasonable care when Plaintiff complained about Defendant Mercader's alleged conduct. Vélez has stated that he did not investigate Plaintiff's complaint because she told him that she had already resolved the problem. Docket Document No. 29, Exh. 3. Escalera has sworn that when Plaintiff requested to be transferred from the Muñoz Marín Airport to avoid Defendant Mercader, Escalera provided her with options as to location and arranged for her transfer to the Loíza DTC. Docket Document No. 29, Exh. 4. Escalera has also asserted that he did not interview Fuentes, Plaintiff's co-worker, partly because Plaintiff expressed that she did not want to cause problems for her. Id. Given these conflicting accounts, we find that the issue of whether Defendants responded reasonably to Plaintiff's complaint is an issue of material fact.
We turn now to the second prong of the Ellerth/Faragher defense, Plaintiff's conduct in seeking to avoid harm. Ellerth, 524 U.S. at 765. The prong may be satisfied by demonstrating that the plaintiff failed to take advantage of a complaint procedure in place at the time of the alleged harassment. Id. Defendants present evidence that Plaintiff was made aware of Antilles' sexual harassment policy when she first began working for Antilles in August of 2001. Docket Document No. 29, Exh. 5. Therefore, Plaintiff should have known that, as the Director of Human Resources for Defendant Antilles, Escalera had the capacity to handle her complaint. However, Plaintiff only submitted a complaint to Escalera after the February 2003 warehouse incident, whereupon Escalera reacted reasonably. Docket Document Nos. 22, 36. Defendants also submit that when Escalera asked for clarification as to the identity of "Sara I" (the name of Plaintiff's co-worker as mentioned to Escalera), Plaintiff asked him not to speak to her and did not clarify Sara I's identity.Id.
Plaintiff counters that Escalera could have easily obtained such clarification internally because Defendant Antilles' records were organized by employees' first names. However, no evidence is provided to support such contention.
We find that there is a genuine issue of fact as to whether Plaintiff unreasonably failed to take advantage of Defendants' ameliorative efforts. Because a reasonable factfinder may conclude that the Defendants' remedial measures were adequate and that Plaintiff unreasonably failed to take advantage of such measures, we leave the two prongs of the Ellerth/Faragher defense and, therefore, the issue of Defendants' liability, to a jury.
C. Constructive Discharge
In order to prevail on a constructive discharge claim under Title VII, the plaintiff must show, inter alia, that she resigned within a reasonable time period after the alleged harassment.See Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 613 (1st Cir. 2000); Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir. 1991). Plaintiff contends that Defendant Mercader's allegedly harassing behavior occurred between August 2002 and February 2003. There is no evidence indicating that any harassment occurred after that time. Plaintiff resigned in April 2004, well over a year after the alleged harassment ceased. Plaintiff's resignation occurred too long after the offensive conduct had ended to be considered a constructive discharge.See Landrau-Romero, 212 F.3d at 613 (finding no constructive discharge where resignation occurred seven months after the alleged harassment); Smith, 943 F.2d at 167 (holding that there was no constructive discharge where plaintiff resigned six months after the last offensive conduct occurred).
D. Retaliation
Title VII prohibits an employer from discriminating against an employee "because [the employee] has opposed any practice made an unlawful employment practice . . . or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3.
In the absence of direct evidence, a plaintiff must first make a prima facie claim of retaliation. To present a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) there was a causal connection between the protected activity and the adverse employment action. Noviello, 398 F.3d at 88, Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st Cir. 1999); Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998). Once Plaintiff makes her prima facie showing, the burden shifts to Defendants to articulate legitimate, non-retaliatory reasons for their employment decisions. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
Plaintiff alleges that Defendant retaliated against her in a number of ways for her complaint against Defendant Mercader.Docket Document Nos. 29, 23, Exh. 2. First, Plaintiff claims that Defendant Mercader demoted her from group leader to regular employee after her verbal complaint to Vélez, resulting in the loss of the $80 biweekly differential. Id. Plaintiff notes that once she was reinstated as a group leader, she was not paid the incentive on time and did not receive the full amount. Id. Plaintiff introduces this evidence to show that there was an overall scheme of retaliation that culminated in her reassignment to Ashford Presbyterian.
We find that Plaintiff does not adequately demonstrate that she was subjected to an adverse employment action by being reassigned to the night shift at Ashford Presbyterian. "Changes in . . . working conditions that cause no materially significant disadvantage . . . are insufficient to establish the adverse conduct required." Harlston, 37 F.3d at 382. As discussed,supra at Part B, the disadvantage of the night shift to Plaintiff, as articulated in her motions, does not rise to the level of hardship that is actionable under Title VII. Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885 (7th Cir. 1989) (noting that changes in duties or working conditions that cause no materially significant disadvantage are not actionable); see also Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (finding that a temporary transfer that resulted in no pay or benefits reduction does not constitute an adverse employment action).
Assuming, arguendo, Plaintiff had proven that her reassignment to Ashford Presbyterian is an adverse employment action, she still fails to establish that the transfer was the result of her complaints to either Vélez or Escalera. In addition, Plaintiff fails to provide evidence that links her complaint to the decision to reassign her to the night shift at Ashford Presbyterian. Thus, a reasonable factfinder could not conclude that the decision to transfer Plaintiff was borne out of retaliatory animus on the part of Mercader or any other supervisor.
Similarly, neither Plaintiff's demotion to regular employee nor her later problems with the payment of the biweekly differential is convincing evidence of retaliation. While there may have been a tangible financial loss as a result of the demotion and the partial payment of the differential, there is simply no evidence linking Plaintiff's sexual harassment complaint to either the demotion or Plaintiff's problems with the payment of the differential. See Dressler v. Daniel, 315 F.3d 75, 78 (1st. Cir. 2003) (noting that an adverse employment action must be causally connected to the protected activity to maintain a retaliation claim). For instance, there is no evidence indicating that Vélez notified anyone about Plaintiff's complaint, nor are we offered credible evidence that Defendant Mercader authorized, or was otherwise connected to, Plaintiff's demotion or the subsequent changes in Plaintiff's differential payments. We also note that Plaintiff was demoted and reinstated as group leader before Plaintiff's complaint to Escalera, undermining Plaintiff's claim that her demotion was retaliatory on the part of other members of Defendant Antilles' management. In light of the evidence before us, we find that Plaintiff's demotion or her problems with her differential payments were not linked to her complaint of sexual harassment to Defendant Antilles' management.
Lacking any evidence of a causal connection between Plaintiff's sexual harassment complaint and her demotion to regular employee, her later problems with the payment of her biweekly differential, or her reassignment to Ashford Presbyterian, we dismiss Plaintiff's claim for retaliation.
E. Supplemental Jurisdiction
A federal court may exercise supplemental jurisdiction over a state claim whenever it is joined with a federal claim which "derive[s] from a common nucleus of operative fact" and where the plaintiff "would ordinarily be expected to try [both claims] in one judicial proceeding." Brown v. Trustees of Boston Univ., 891 F.2d 337, 356 (1st Cir. 1989) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)). For the reasons stated above, we dismiss Plaintiff's constructive discharge and retaliation claims and preserve her hostile work environment claim. Because the Commonwealth claims derive from the same set of facts as the remaining federal claims, we exercise supplemental jurisdiction over Plaintiff's claims of negligent retention, intentional infliction of emotional distress, and wrongful dismissal.
IV. Conclusion
In accordance with the foregoing, we GRANT Defendant's motion for summary judgment as to Plaintiff's constructive discharge and retaliation claims, and DENY Defendant's motion as to Plaintiff's hostile work environment and related Commonwealth claims. Docket Document Nos. 22, 36.
IT IS SO ORDERED.