Employee Accused of Indecent Exposure Loses Own Harassment Claim

A shipyard manager in Puerto Rico failed to show he was fired because of a human resource manager’s sexual harassment rather than because he exposed his genitals in the workplace, the 1st U.S. Circuit Court of Appeals held.

Vladimir Perez began working at Horizon Lines as a yard manager of its port in San Juan, Puerto Rico, around 2006. During his employment, Perez had interactions with Horizon’s HR manager for Puerto Rico, Grace Aceveda. In 2010, Aceveda received an anonymous picture that purported to show Perez naked from the waist down. Details in the background of the photo seemed to indicate that the picture was taken on Horizon’s premises, although years earlier due to subsequent changes in the location that were not present in the picture. Aceveda forwarded the picture to her supervisor, the vice president of human resources. Horizon investigated Perez’s involvement in the picture and its delivery to Aceveda. Two weeks later, Aceveda received a picture of Perez from the waist up, which seemed to be the other half of the picture she had previously received.

After receiving these photos, Horizon engaged in a full investigation of Perez’s conduct at the San Juan shipyard. In this investigation, multiple employees reported that Perez had exposed his genitals multiple times at that location and that sexually charged horseplay was common. As a result, Horizon terminated Perez’s employment. Upon termination, Perez claimed that Aceveda had sexually harassed him for years prior to his termination. He claimed that Aceveda had asked him to dance with her at several Horizon holiday parties, even trying to “drag him to the dance floor.” He also claimed that in the weeks preceding the delivery of the photo, Aceveda had requested that Perez deliver cornbread and pastries to her and that they be “hot,” which Perez understood as a request for sexual favors. Perez instead coordinated these deliveries of cornbread and pastries through a co-worker. Based on these events, Perez filed a lawsuit in federal court claiming sexual harassment, discriminatory discipline and violation of the Puerto Rico law requiring “just cause” for termination of employment.

The district court granted summary judgment for Horizon against Perez’s claims. On appeal to the 1st Circuit, the court found insufficient evidence of any severe and pervasive conduct that closely preceded Perez’s termination. The requests for cornbread and pastries, which Aceveda admitted she had made, were fulfilled through a co-worker and thus could not reasonably be seen as harassing or sexual in nature. The earlier events complained of by Perez were too far in the past to have a connection to his termination, and he never mentioned them until after his termination. Finally, the court found that Horizon had “just cause” for Perez’s separation because it investigated his conduct and found evidence that he had engaged in inappropriate sexually charged conduct on the premises. Even without the claims of indecent exposure—and even if Horizon had wrongly concluded that Perez was the person in the photo—Horizon had good cause to believe that Perez had engaged in wrongful conduct at the workplace.

Perez v. Horizon Lines, Inc., 1st Cir., No. 13-2546 (Sept. 30, 2015).

Professional Pointer: When a company receives a sexual harassment claim, it should make sure to fully investigate and uncover any prior conduct engaged in by parties at issue in the situation. In many instances, sexually charged behavior will precede a sexually suggestive incident that results in a harassment complaint. By reviewing the full circumstances underlying such misconduct, the employer can avoid unexpected claims by the alleged harasser or others based on previous workplace conduct.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon, a business and employment law firm in Arlington, Va.