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«APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge] Before Torruella, ...»

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United States Court of Appeals

For the First Circuit

No. 13-1587


Plaintiff, Appellant,




Defendant, Appellee.



[Hon. Daniel R. Domínguez, U.S. District Judge] Before Torruella, Baldock,* and Kayatta, Circuit Judges.

Enrique J. Mendoza Méndez, with whom Juan R. Dávila Díaz and Mendoza Law Offices were on brief, for appellant.

Michelle Camacho-Nieves, Assistant Solicitor General of Puerto Rico, with whom Margarita Mercado-Echegaray, Solicitor General, was on brief, for appellee.

February 18, 2014 * Of the Tenth Circuit, sitting by designation.

KAYATTA, Circuit Judge. Plaintiff Kathy1 Rodríguez-Vives sued the Commonwealth of Puerto Rico in 2005, claiming that defendant Puerto Rico Firefighters Corps of the Commonwealth of Puerto Rico ("the Corps") refused to hire her as a firefighter because of her gender. As part of a 2009 settlement of that suit, the Corps agreed to employ her as a "transitory" firefighter until the next training academy was held, to admit her to the academy, and to hire her as a firefighter if she graduated. She thereafter again sued the Corps, alleging that, during her transitory employment, the Corps subjected her to various forms of abuse in retaliation for her earlier suit. This alleged post-settlement mistreatment, she argued, constituted both sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3. The district court granted the Corps's motion to dismiss her new complaint for failure to state a claim. Rodríguez-Vives appeals only the dismissal of her claim of unlawful retaliation. We hold that her complaint states a plausible claim of unlawful retaliation under Title VII, and we therefore vacate the district court's order.

At times Rodríguez-Vives has also spelled her first name "Katty" and that is how her name was spelled on the docket in earlier litigation discussed later in this opinion. We refer to her as "Kathy" in this opinion because that is how her name was spelled on the district court docket in this case and how she has referred to herself in this appeal.

-2I. Background Finding this to be a case amenable to disposition under Federal Rule of Civil Procedure 12(b)(6), the district court dismissed Rodríguez-Vives's complaint before the parties could engage in the discovery necessary to provide a fuller picture of what actually occurred. We therefore take as true the factual allegations in Rodríguez-Vives's complaint, drawing all reasonable inferences in her favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).

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alleging that the Corps's failure to hire her was discriminatory.

Her complaint asserted a claim under 42 U.S.C. § 1983 for denial of her right to equal protection under the Fourteenth Amendment of the

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requirements to apply for a position with the Corps, she passed a physical agility test and was selected for several in-person interviews. Despite being placed on an eligibility list for admission to the next training session for new firefighters, known as a firefighter academy, she was not admitted.

On February 5, 2009, Rodríguez-Vives and the Corps signed a settlement agreement resolving that first suit. The Corps agreed to employ her as a "transitory" firefighter until the next training

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2009. After being ordered to work at several different stations by various supervisors, she was assigned permanently to a fire station in Coamo where she claims she was subjected to a series of abuses

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"constantly said in front of [her] that he did not know why he had to end up stuck with her in his [s]tation" and "commented on various [occasions] that [she] was incompetent, dumb, inept, [and] that she did things backward." On one occasion when RodríguezVives was cooking at the station the sergeant threw the pans she

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threatened Rodríguez-Vives with disciplinary action for making an entry in the station's journal despite the fact that she had followed the instructions she had received for making entries in the journal. On August 27, he shouted at her about her entries in

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accelerated his car, showering her with dust.

During Rodríguez-Vives's time at the Coamo fire station the only duties given to her were cooking, cleaning, and keeping the station's journal. These tasks were "supposed to be equally shared among all firefighters" but in the Coamo station they were not. Rodríguez-Vives was not issued uniforms or emergency kits as other firefighters were. She did not receive training given to other firefighters who, like her, had not attended a training academy. She was also not allowed in fire vehicles to get lunch.

Finally, a male volunteer firefighter, who had not attended the academy, was allowed to "go out to deal with incidents" while Rodríguez-Vives was not. As a result of these actions RodríguezVives suffered "severe psychological damages" that required treatment.

On December 22, 2009, Rodríguez-Vives filed a complaint with the Equal Employment Opportunity Commission alleging under Title VII that she had been discriminated against on account of her sex and retaliated against for her earlier lawsuit. She received a right to sue letter on May 11, 2011, and filed a complaint on August 2, 2011. She later filed an amended complaint containing the allegations described above. The Corps then moved to dismiss her complaint for failure to state a claim. The district court granted the motion on March 31, 2013. Rodríguez-Vives timely

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district court was wrong on both points. Before addressing either point, however, we first address the Corps's argument that we need not consider the sufficiency of Rodríguez-Vives's complaint because the 2009 settlement bars her from bringing this claim.

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settlement, Amended Judgement of February 24, 2009, Rodríguez-Vives v. Commonwealth of Puerto Rico, Case No. 3:05-cv-02136-DRD, Dkt.

No. 74, the Corps maintains that Rodríguez-Vives's only remedy was to file a motion to enforce the settlement in that previously closed action. Failing to do so, the Corps argues, somehow gives rise to a res judicata bar to this action.

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settlement agreement bars Rodríguez-Vives from bringing now a related claim that could have been brought prior to the date of the settlement, or arising out of events occurring prior to that date.

Rodríguez-Vives, though, rests this action on the Corps's conduct after the date of the settlement. Thus the settlement agreement

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generally accrues "when the retaliatory action occurs"); Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52 (1974) (holding in the arbitration context that an employee may retrospectively waive Title VII claims as part of a settlement but that "an employee's rights under Title VII may not be waived prospectively"); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 265 (2009) (noting that GardnerDenver was "correct in concluding that federal antidiscrimination rights may not be prospectively waived" but holding that agreement to arbitrate a Title VII claim was not a waiver).

Nor can we see any reason why Rodríguez-Vives, in seeking a remedy for the alleged post-settlement acts, was limited to enforcement of the settlement agreement. Suppose the Corps had intentionally run over Rodríguez-Vives with a truck to prevent her from being able to perform her new position. No reasonable person

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Walgreen Co., 679 F.3d 9, 20 (1st Cir. 2012) (internal quotation marks omitted). Moreover, interpreting the settlement agreement as limiting Rodríguez-Vives's rights to bringing an enforcement action rather than asserting her statutory right to protection from postsettlement retaliation would constitute a form of pre-retaliation waiver, which is prohibited under Title VII. See Gardner-Denver, 415 U.S. at 51-52; 14 Penn Plaza LLC, 556 U.S. at 265.

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irrelevant to this suit. If facts not apparent on the face of the settlement agreement show that the settlement agreement is properly interpreted to place on Rodríguez-Vives's post-settlement duties as a transitory firefighter the restrictions about which she complains in her complaint, such a showing would likely be material to

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possibility of such a defense, though, is inadequate to allow a defendant to prevail on a motion to dismiss when the plaintiff alleges a materially different version of the facts. Nor does the interpretation and implementation of the settlement agreement have

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settlement agreement for insulating the Corps from the possibility of Title VII liability for the alleged acts of unlawful retaliation committed after the agreement was signed on February 5, 2009.

B. Sufficiency of Rodríguez-Vives's Complaint To bring a successful retaliation claim under Title VII "a plaintiff must first prove... [o]ne, she undertook protected conduct[,]... [t]wo, her employer took a material adverse action against her[,]... [a]nd... three, a causal nexus exists between elements one and two." Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013) (citations omitted). The district court held that Rodríguez-Vives's claim failed to allege the first two elements sufficiently to entitle her to relief.

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Rule of Civil Procedure 12(b)(6). See, e.g., Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). A complaint need not allege every fact necessary to win at trial, but need only include sufficient facts to make it "'plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint "must contain more than a rote recital of the elements of a cause of action," but need not include "detailed factual allegations."

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Rodríguez-Vives's 2005 lawsuit did not allege a violation of Title VII. Instead, suing under 42 U.S.C. § 1983, she alleged that the Corps's refusal to hire her due to her sex violated the

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district court ruled, in effect, that the Corps could therefore retaliate against Rodríguez-Vives for having brought the earlier suit without violating the anti-retaliation provision of Title VII.

We cannot accept this conclusion.

While Title VII's anti-retaliation provision certainly protects employees from retaliation for filing a Title VII suit, it

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also makes it "unlawful... for an employer to discriminate against [an employee]... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII]...." 42 U.S.C. § 2000e-3(a); see also Clark Cnty. Sch. Dist.

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(alterations in original) (citations and some internal quotation marks omitted). It is well-established, for example, that it is unlawful under Title VII to retaliate against employees for actions

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discrimination to their employers' customers are protected from retaliation. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-13 (9th Cir. 1983).

Rodríguez-Vives's opposition here was more, not less, substantial than the opposition of the plaintiffs in Tuli and Crown Zellerbach. Though we are aware of no case directly on point, nothing in the language of the statute or common sense suggests that she was nevertheless required to mention Title VII in order to be protected from opposing the practices that Title VII renders unlawful.

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discriminatory hiring practices and procedures on the basis of gender." Title VII makes it unlawful "for an employer... to fail or refuse to hire... any individual... because of such

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conduct Rodríguez-Vives opposed was therefore precisely the kind of discrimination Title VII was intended to combat. The opposition for which she alleges she was punished therefore fell well within the scope of the conduct that Congress sought to protect from retaliation, whether or not she referred to Title VII (or exhausted her Title VII remedies) in voicing that opposition.2

2. Plaintiff Adequately Alleges Employment Actions Sufficiently Adverse to Constitute Retaliation.

The district court also found that the actions RodríguezVives alleged the Corps directed at her could not plausibly be seen as materially adverse. Again, we disagree. In a retaliation case, a plaintiff need only "show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."3 Burlington Nor is it necessary for Rodríguez-Vives to establish that the allegations in her 2005 suit were correct. See Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (an employee may bring a retaliation claim where the complaint for which she was retaliated against was not "completely groundless" (internal quotation marks omitted)); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (employee must have "good faith, reasonable belief" that action she opposed violates Title VII (internal quotation marks omitted)).

While the district court's opinion could be read to suggest that the retaliatory actions needed to be related to RodríguezVives's gender, see Rodríguez-Vives v. P. R. Firefighters Corps of P. R., 935 F. Supp. 2d 409, 421 (D.P.R. 2013), Burlington Northern makes clear there is no such requirement. Burlington Northern, 548 U.S. at 68.

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