Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0

United States Court of Appeals For the First Circuit

No. 05-2605

AIDA D. RIVERA-MARTINEZ, et al.,

Plaintiffs, Appellants,

v.

COMMONWEALTH OF PUERTO RICO, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

Before

Selya, Circuit Judge, Siler,* Senior Circuit Judge, and Howard, Circuit Judge.

Rafael A. Oliveras Lopez de Victoria, for appellants. Irene S. Soroeta-Kodesh, Assistant Solicitor General with whom Salvador J. Antonetti-Stutts, Solicitor General, and Mariana D. Negron-Vargas, Deputy Solicitor General, and Maite D. Oronoz- Rodriguez, Deputy Solicitor General, were on brief, for appellees.

January 4, 2007

* Of the Sixth Circuit, sitting by designation. SILER, Senior Circuit Judge. Plaintiff Aida D. Rivera-

Martinez appeals the dismissal of her hostile work environment and

retaliatory harassment claims against the Puerto Rico Treasury

Department and the Commonwealth of Puerto Rico (“Defendants”).

Rivera-Martinez contends that while working in the Human Relations

Department of the Treasury Department (“Treasury Department”),

specifically in the Training Center, she was subjected to sexual

harassment by her supervisor, Eduardo Rivera-Marrero. She claims

that Rivera-Marrero’s conduct created a hostile work environment

and that Defendants retaliated against her by tolerating harassment

by an employee. Rivera-Martinez seeks relief under Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et

seq., (“Title VII”), as well as Art. I, Sec. II of the Puerto Rico

Constitution for breach of her human dignity protection. The

district court dismissed her Title VII claims and dismissed without

prejudice her state law claim. For the following reasons, we

AFFIRM.

I.

Rivera-Martinez’s claims derive primarily from two

specific incidents. First, she claims that in June 2001, she was

“sexually touched in her left forearm” by her supervisor, Rivera-

Marrero. According to Rivera-Martinez, Rivera-Marrero “gently

caressed her forearm in an up and down motion,” and in response to

-2- this touching, Rivera-Martinez pulled away and angrily declared,

“Do not touch me any more.”

The second incident took place on September 20, 2002,

when Rivera-Martinez and Delia Zayas were called to a meeting in

Rivera-Marrero’s office. In that meeting, Rivera-Marrero allegedly

chided Rivera-Martinez for violations of several office procedures

and improper office behavior. Rivera-Martinez denied wrongdoing

and countered by pointing out irregularities she had observed in

office procedure and conduct. Suddenly, according to Rivera-

Martinez, Rivera-Marrero walked over to Rivera-Martinez and grabbed

her. “[H]e began to twist her torso by placing one hand [on] her

back and the [other hand on] her upper torso [on] the brassiere

area.” Rivera-Martinez claims that Rivera-Marrero’s hand touched

her hip and buttocks and that Rivera-Marrero “used his hip and

pubic area” to push her out of the office. Zayas did confirm that

Rivera-Marrero touched Rivera-Martinez on the arm and on her mid

back “where the bra is,” but stated that she believed that Marrero

would have behaved the same way with either a male or female

employee.

On September 23, 2002, Rivera-Martinez wrote a letter to

the Secretary of the Treasury Department describing the September

20 meeting and requesting an immediate solution. Rivera-Martinez

claimed that “abuse and negligence has been and is being committed

against me” but she did not describe Rivera-Marrero’s conduct as

-3- sexual harassment. The Treasury Department investigated and

concluded that no assault had occurred. Rivera-Martinez filed an

administrative complaint with the Equal Employment Opportunity

Commission on March 17, 2003, claiming that she had been sexually

harassed.

Rivera-Martinez also asserts that Rivera-Marrero sexually

harassed other Treasury Department employees. She describes

several occasions where Rivera-Marrero allegedly abused co-workers

Lilliam Rolon and Sandra Ostolaza.

The district court concluded that Rivera-Martinez did not

present sufficient evidence that the harassment was based on gender

and that the two incidents alleged by Rivera-Martinez did not meet

the degree of severity and pervasiveness required to support an

actionable hostile work environment claim. The lower court granted

Defendants’ motion for summary judgment, and having dismissed the

federal-based cause of action, the court dismissed without

prejudice the remaining state law claim.

II.

We review summary judgment de novo, construing the record

in the light most favorable to the nonmovant and resolving all

reasonable inferences in the nonmovant’s favor. Rosenberg v. City

of Everett,

(1st Cir. 2003).

We begin by addressing Rivera-Martinez’s hostile work

environment claim. Rivera-Martinez challenges the district court’s

-4- finding that she failed to show that the harassment was based on

gender. She also asserts that her evidence of harassment

demonstrates severity and pervasiveness sufficient to alter the

conditions of her employment.

Under Title VII, it is 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 . . . sex.” 42 U.S.C. §

2000e-2(a)(1). The scope of Title VII covers more than “economic”

or “tangible” discrimination. Harris v. Forklift Systems, Inc.,

(1993) (quoting Meritor Savings Bank, FSB v.

Vinson,

(1986)). Title VII prohibits sexual harassment

so “severe or pervasive” as to “alter the conditions of [the

victim’s] employment and create an abusive working environment.”

Meritor,

.

To succeed on her hostile work environment claim, Rivera-

Martinez must establish the following:

(1) that she . . . is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff’s employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.

-5- O’Rourke v. City of Providence,

(1st Cir. 2001)

(citing Faragher v. City of Boca Raton,

(1998); Harris,

; and Meritor,

).

The focus of hostile work environment cases is generally on

elements (4) and (5).

As the Supreme Court noted in Harris, the test for

proving a hostile work environment “is not, and by its nature

cannot be, . . . mathematically precise.” Harris,

.

To determine whether an environment is sufficiently “hostile” or

“abusive,” a court must examine the totality of 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.”

. “‘Simple

teasing,’ offhand comments, and isolated incidents (unless

extremely serious)” do not amount to a hostile work environment.

Faragher,

(1998) (quoting Oncale v. Sundowner

Offshore Servs.,

(1998)). Title VII was not

intended to be a “general civility code”; therefore, conduct must

be extreme to be actionable.

In the case at hand, the district court found that

Rivera-Martinez failed to demonstrate that the alleged harassment

was because of her gender. We agree. Rivera-Martinez provides

very little context for the first incident. She merely states that

-6- she was “sexually touched” on the forearm. In the second incident,

assuming the plaintiff’s version of the facts, Rivera-Marrero

grabbed her back and shoulder, touched her hip, buttocks, and

brassiere area, and pushed her out of his office. This episode

occurred following a heated exchange between the two and happened

in the presence of another employee. There is no indication that

Rivera-Marrero’s behavior, while inappropriate, was sexual in

nature. Rather, his conduct appears to be the product of his anger

toward Rivera-Martinez for challenging him and pointing out various

problems within the office.

However, discriminatory harassment does not have to be

overtly sex-specific in content to be actionable under Title VII.

“Harassing conduct need not be motivated by sexual desire to

support an inference of discrimination on the basis of sex.”

Oncale,

. The Oncale court emphasized, “The critical

issue, Title VII's text indicates, is whether members of one sex

are exposed to disadvantageous terms or conditions of employment to

which members of the other sex are not exposed.”

(quoting

Harris,

(Ginsburg, J., concurring)). In this case,

although Rivera-Martinez offers evidence that other female

employees were mistreated by Rivera-Marrero, she does not assert

that women in the office were treated differently than male

workers. Another Treasury Department employee, Zayas, stated, “I

don’t see that [Rivera-Marrero] establishes, in general terms, a

-7- big difference when dealing with any male or any . . . female.

Basically he’s equally authoritative one way or the other.”

Even if the harassment is assumed to be because of her

gender, Rivera-Martinez still fails to show that it was severe or

pervasive. Applying the factors cited in Harris to determine what

creates an “abusive” or “hostile” environment, Rivera-Martinez’s

claim falls short. The harassment Rivera-Martinez alleges was

infrequent; she cites only two incidents that are over a year

apart. Although an isolated event may create a hostile work

environment, it must be “extremely serious.” Faragher,

. The inappropriate behavior here does involve unwanted

physical touching, but both incidents were relatively limited. At

worst, Rivera-Martinez was on one occasion inappropriately touched

on her arm and in another instance hastily pushed out of an office.

See, e.g., Morgan v. Mass. Gen. Hosp.,

(1st

Cir. 1990) (concluding that conduct was not sufficiently severe or

pervasive where a coworker stood behind the plaintiff so as to

purposefully bump into him and “peeped” at plaintiff’s genitals

while standing next to him in the restroom); Burnett v. Tyco Corp.,

(6th Cir. 2000) (holding that “a single battery

coupled with two merely offensive remarks over a six month period”

does not create a hostile work environment); Saxton v. American

Tel. & Tel. Co.,

(7th Cir. 1993) (finding two

incidents of unwanted sexual advances did not constitute severe

-8- harassment where the supervisor “placed his hand on [the

plaintiff’s] leg above the knee several times,” “rubbed his hand

along her upper thigh,” “kissed her for two to three seconds until

she pushed him away,” and then, three weeks later, attempted to

grab her). Furthermore, Rivera-Martinez never claims that the

harassment had a negative impact on her work performance. See Lee-

Crespo v. Schering-Plough Del Caribe, Inc.,

(affirming summary judgment in favor of an employer in a hostile

environment case where the conduct “was never . . . an impediment

to [the plaintiff’s] work performance”).

Rivera-Martinez may have experienced discomfort as a

result of the Rivera-Marrero’s behavior, but she has not presented

adequate evidence of harassment to allow a reasonable jury to find

that she was subjected to a hostile work environment.

Rivera-Martinez also claims that she suffered retaliation

by the Treasury Department following her September 23, 2002, letter

to the Secretary of the Treasury. To state a prima facie case of

retaliation, a plaintiff must prove that “(1) she engaged in

protected conduct under Title VII; (2) she suffered an adverse

employment action; and (3) the adverse action was causally

connected to the protected activity.” Marrero v. Goya of Puerto

Rico, Inc.,

(1st Cir. 2002) (citing Hernandez-Torres

v. Intercontinental Trading, Inc.,

(1st Cir.

1998)).

-9- Adverse employment actions include “demotions,

disadvantageous transfers or assignments, refusals to promote,

unwarranted negative job evaluations, and toleration of harassment

by other employees.”

at 23 (quoting White v. New Hampshire

Dep’t of Corrections,

(1st Cir. 2000)). For a

plaintiff to prove retaliation based on an employer’s toleration of

harassment, she must show that the employer tolerated severe or

pervasive harassment motivated by the plaintiff’s protected

conduct. Id. at 26.

It is undisputed that Rivera-Martinez engaged in

protected conduct when she wrote the letter describing the incident

that occurred on September 20, 2002. However, she fails to present

evidence that she suffered an adverse employment action. She does

not allege that she was demoted, transferred, refused a promotion,

or given a negative job evaluation. Her claim rests on the

Treasury Department’s toleration of harassment by other employees.

For her claim to be viable, she must provide evidence of severe or

pervasive harassment subsequent to her protected conduct. Yet,

Rivera-Martinez fails to allege any incident of retaliatory

harassment following her report of the September 20, 2002, meeting.

She maintains that she had to continue working with Rivera-Marrero

and insists that being supervised by him “created a very hostile

atmosphere,” but she never asserts any further harassing events.

-10- Therefore, summary judgment is appropriate on the retaliation

claim.

The district court properly dismissed without prejudice

Rivera-Martinez’s state law claims. Under

, a

“district court[] may decline to exercise supplemental jurisdiction

over a claim . . . if the district court has dismissed all claims

over which it has original jurisdiction.” Appellate review of the

refusal to exercise supplemental jurisdiction is for abuse of

discretion. Gonzalez-de-Blasini v. Family Dep’t,

(1st Cir. 2004). In this case, the district court dismissed the

Title VII federal claim and therefore, in its discretion, declined

to entertain the supplemental state law claim. No abuse of

discretion occurred. Rivera-Martinez may file her unadjudicated

state claims before the courts of the Commonwealth of Puerto Rico.

III.

For the foregoing reasons, we affirm the district

court’s order granting summary judgment to Defendants.

Affirmed.

-11-