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Perez v. Horizon Lines, Inc.

United States Court of Appeals, First Circuit

September 30, 2015

VLADIMIR PÉREZ, Plaintiff, Appellant,
v.
HORIZON LINES, INC., and GRACE ACEVEDO, in her personal and official capacity, Defendants, Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Gustavo A. Gelpí, Jr., U.S. District Judge.

Godwin Aldarondo-Girald, with whom Aldarondo Girald Law Office and Ericson Sanchez Preks were on brief, for appellant.

Carlos E. George-Iguina, with whom Alberto J. Bayouth-Montes and O'Neill & Borges LLC were on brief, for appellees.

Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

OPINION

Page 2

HOWARD, Chief Judge.

Appellee Horizon Lines, Inc. (" Horizon" ) terminated Appellant Vladimir Pérez for engaging in sexually inappropriate workplace conduct. After he was terminated, Pérez then sued both Horizon and Grace Acevedo, the company's Puerto Rico Human Resources manager, claiming that his termination was unjust and that he had been the victim of sexual harassment by Acevedo. The district court granted the defendants' motion for summary judgment, and we affirm.

Page 3

I.

We recount the facts and draw all reasonable inferences in the light most favorable to Pérez, the non-moving party. Statchen v. Palmer, 623 F.3d 15, 16 (1st Cir. 2010). Horizon employed Pérez from 1998 to 2010. At the time of his termination, he served as Horizon's Senior Yard Manager at the company's San Juan dock. As part of his employment, Pérez agreed to abide by the company's Code of Business Conduct and Ethics. That Code provided in pertinent part that: " Sexual harassment . . . includ[ing] unwelcome conduct of a physical, verbal, or visual nature that creates a hostile or offensive environment is unacceptable." The Code further defines sexual harassment as including: " sexual innuendo, suggestive comments, insults, humor and jokes about sex, sexual propositions and threats . . . obscene gestures," or physical " touching such as pinching, brushing the body, and other similar behavior."

On October 15, 2010, Grace Acevedo, Horizon's Human Resources Manager in Puerto Rico, received an anonymous e-mail alleging that Pérez had indecently exposed himself, although the e-mail did not specify whether the incident took place on Horizon property. Attached to the e-mail was a photograph depicting a man from the waist down exposing his genitals (the " lower-torso photograph" ). Either that same day or sometime thereafter (the record is unclear), Acevedo also received what was purported to be the top half of the same photograph (the " upper-torso photograph" ). That image depicted a man's upper torso and face, identifiable as Appellant Pérez.

Acevedo notified Mark Blankenship, the company's North Carolina-based Vice President of Human Resources, about the photographs. Blankenship alerted Richard Rodriguez, the Puerto Rico Port Manager, that one of his employees may have taken the photograph while on Horizon property. Rodriguez compared the tile coloring and door stain depicted in the lower-torso photograph with various locations throughout the dock, and determined that the photograph must have been taken in the dock's Marine Building. Because the furniture in the photograph differed, however, Rodriguez concluded that it was at least a year old. On October 19, Rodriguez sent an e-mail to Blankenship reporting that the photograph was likely taken on company property. Shortly thereafter, the two men discussed the matter while Rodriguez was in Charlotte on business.

Acevedo later conducted a formal investigation. On November 5, she met with Pérez and Jacob Wegrzyn (Horizon's General Manager in Puerto Rico) and confronted Pérez with the two photographs. Pérez admitted that the upper-torso photograph was of him, but denied that the lower-torso photograph depicted him. Horizon placed Pérez on paid administrative leave following the meeting.

Over the next ten days, Acevedo interviewed several of Pérez's co-workers about the photographs. One co-worker, Victor Ortega, admitted to taking both photographs and stated that they were of Pérez. Other Horizon employees either identified Pérez as the individual depicted in the lower-torso photograph or stated that they had heard about the photograph and had been told that it depicted Pérez. In addition, employees recounted a number of other occasions when Pérez had allegedly exposed his genitals to his co-workers in the workplace. Employees also described a general atmosphere of sexually-charged horseplay among Horizon's employees, in which Pérez participated.

Acevedo informed Blankenship about the results of her investigation. After consulting with the corporation's Compliance

Page 4

Committee, Blankenship decided to terminate Pérez's employment effective November 16. Blankenship informed Pérez by letter that, " [b]ased on the evidence obtained," the company had determined that Pérez had " exhibited behavior on numerous occasions that is in strict violation [of] Horizon Lines' Code of Business Conduct Policy." Pérez sent Blankenship two follow-up e-mails requesting additional information and contesting the employment decision, but Blankenship twice reiterated his decision. In those communications, Pérez never alleged he had been subjected to sexual harassment.

A month later, on December 21, 2010, Pérez again challenged his termination in writing, this time through counsel. For the first time, Pérez also alleged that Acevedo had sexually harassed him. Specifically, he claimed that Acevedo had invited him to her home " with clear intentions of having sex" and had attempted to force Pérez to dance with her at company social events.

Pérez later filed a sexual harassment charge with the Equal Employment Opportunity Commission, and the EEOC issued him a right to sue letter. He then filed a complaint in federal court asserting sexual harassment and gender discrimination under Title VII and parallel claims under Puerto Rico law. Pérez also claimed unjust termination under Puerto Rico's Law 80. As developed before the district court, Pérez's sexual harassment claim broadened to focus primarily on four sets of events that allegedly took place between 2006 and 2010.

The first set of incidents involved two similar events at Horizon's annual Christmas parties in 2006 and 2007. PĂ©rez testified during his deposition that, on both occasions, Acevedo urged him to dance with her and attempted " to drag him to the dance floor with force by taking him by the arm and pulling ...


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