1st Circuit Rejects Discrimination Claim by Gay Municipal Employee in Puerto Rico

The Commonwealth of Puerto Rico is assigned to the 1st Circuit for appellate review of federal district court opinions, so it was the Boston-based 1st Circuit that ruled against a Title VII and Equal Protection discrimination claim brought by a gay employee, Luis Aik Ayala-Sepulveda, against the municipality of San German and its mayor, Isidro Negron-Irizarry.  Appropriately enough, the decision for the court of appeals panel was written by Judge Juan Torruella, a Puerto Rican jurist who was appointed to the Circuit Court by Ronald Reagan, having previously served on the District Court in Puerto Rico by appointment of President Gerald Ford.  District Judge Gustavo A. Gelpi had granted a motion for summary judgment by the defendants, which Ayala appealed.  Ayala v. Municipality of San German, 2012 WL 130084 (1st Cir. Jan. 18, 2012).

Mr. Ayala was an employee in the city's Municipal Office of Emergency Management where, he claims, he was subjected to ridicule by co-workers for being gay.  In September 2007, he began an extended vacation, during which he claims he began a romantic relationship with another male employee in the office, but that relationship abruptly ended when the co-worker became involved with a female co-worker and became hostile to Ayala.  When Ayala returned to work in January 2008, he alleges, he asked his supervisor to assign him to work that wouldn't bring him into contact with this co-worker.  The supervisor responded by assigning him to the "graveyard shift" instead of his former work schedule, and he claims he was moved to an undesirable location that was previously used as a storage closet. 

He complained to Mayor Negron, who ordered that he be returned to his former hours, but then he came into contact with the feared co-worker. According to Ayala, this individual threatened him with physical harm, and Ayala's supervisor called the police to the scene.  Ayala also claimed that another male co-worker fabricated a claim that Ayala made unwanted sexual advances, and threatened to file a harassment claim against him.

Ayala met with the city's Human Resources Director and the mayor's special assistant to discuss the problem, and they recommended that he transfer to work as an administrator at the municipal cemetery, since the city needed to replace an absent worker there, but Ayala refused, even after the mayor personally urged him to accept the transfer, which would involve the same hours and pay as his current job.  Ayala's mother and sister also met with the mayor, and Ayala claims that Mayor Negron told them that his "sexual definition" was the source of his problems.  But this wasn't an "outing," because Ayala's mother and sister knew he was gay.

Ayala filed a complaint with the administrative agency in charge of personnel actions, upon which Mayor Negron sent him a letter informing him that he was being immediately transferred to the Finance Department, where his job involved processing the payment of invoices.  When he saw the invoice from the lawyer who was representing the city in defending against Ayala's administrative proceeding, he alleges, he became so nervous and depressed that he required hospitalization. 

Ayala's lawsuit alleged sex discrimination (hostile environment harassment) in violation of Title VII (sex discrimination) as well as a claim under the 14th amendment of violation of his equal protection rights.  These claims were resolved against him on the city's motion for summary judgment by District Judge Gelpi, who found that the federal constitutional claims (jurisdiction founded on 42 USC 1983), which were subject to a one-year statute of limitations in Puerto Rico, could only relate to events during 12 months prior to filing of the complaint, which left out much of the hostile conduct Ayala was alleging, so everything was pretty much time-barred except for his transfer to the Finance Department, which the court did not consider to be an adverse employment action because it didn't affect his working conditions (job status, pay).  As to Title VII, in the absence of a "gender stereotyping" theory, the court found the statute inapplicable to what was in essence a sexual orientation discrimination claim.

The court of appeals agreed with this disposition of the case, rejecting Ayala's argument that his case involved a "continuing violation" of his rights that would link back to events earlier than one year before he filed his complaint.   The court said there was insufficient evidence to meet the high bar set by precedent for establishing a hostile environment, as the conduct Ayala described was not deemed serious enough to show that repeated sexual harassment had adversely affected his ability to do his job.  And, to the extent this was a sexual orientation discrimination claim, it would not be deemed sex discrimination prohibited by Title VII.

As to the Equal Protection claim, the question was whether he had been treated different than similarly situated individuals on the basis of an "impermissible consideration."  Judge Torruella concluded, "Ayala points to no evidence that he was treated differently than others similarly situated."  Due to the statute of limitations issue, the court was focusing primarily on his involuntary transfer to the Finance Department which, once again, was not considered an adverse personnel action.  "Ayala presents no evidence regarding, for example, instances in which heterosexual employees with similar rank and qualifications were not transfered."  In the absence of a comparator, it is difficult to plead a discrimination claim without direct evidence of discriminatory intent, which was not available here, as the court evidently was not willing to accord any weight to the comment by Mayor Negron to Ayala's mother and sister about the cause of his difficulties being his "sexual definition."

Thus, the court affirmed the grant of summary judgment, and the persecuted Mr. Ayala found himself without a case.

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