Rivera-Velazquez v. Regan

102 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: May 9, 2024
• Docket: 22-1356
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1356

CARLOS M. RIVERA-VELÁZQUEZ,

Plaintiff, Appellant,

v.

MICHAEL S. REGAN, Secretary of the Environmental Protection Agency,

Defendant, Appellee.

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

[Hon. Raúl Arias-Marxuach, U.S. District Judge]

Before

Barron, Chief Judge, Hamilton* and Thompson, Circuit Judges.

Maricarmen Almodovar-Diaz for appellant. Dennise N. Longo Quiñones, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, and Francisco A. Besosa-Martínez, Assistant United States Attorneys, were on brief, for appellee.

May 9, 2024

* Of the Seventh Circuit, sitting by designation. BARRON, Chief Judge. This appeal concerns a grant of

summary judgment to the Administrator for the United States

Environmental Protection Agency (the "EPA") on the employment-

related claims that Carlos M. Rivera-Velázquez ("Rivera") brings

under the Rehabilitation Act of 1973 (the "Rehabilitation Act"),

29 U.S.C. §§ 701 et seq., and Title VII of the Civil Rights Act of

1964 ("Title VII"), 42 U.S.C. §§ 2001-1 et seq. We affirm.

I.

A.

The following facts are not in dispute. Rivera applied

in 2001 for a position as an environmental scientist at the

Caribbean Environmental Protection Division (the "CEDP"), which is

a component of the EPA. A military veteran and army reservist

until 2013, Rivera was approved for a 10-point preference status

in the hiring process on account of his military-service-connected

disability of left trapezius myositis, which is a physical

impairment.

Rivera was interviewed and hired for the position at

CEDP by CEPD's then-Deputy Director José Font and Carlos O'Neil,

who was a supervisor at CEPD. Rivera was hired into a General

Schedule 7 ("GS-7") environmental scientist position. The highest

grade in the "career ladder" for this position was GS-12. Rivera

reached that grade in 2004.

- 2 - Rivera was responsible for enforcement and compliance

work related to the National Emissions Standard for Hazardous Air

Pollutants ("NESHAPs"), 40 C.F.R. Part 61 et seq.; the Asbestos

Hazard Emergency Response Act, 15 U.S.C. § 2641 et seq.; and the

Clean Air Act, 42 U.S.C. § 7401 et seq. Throughout his tenure as

an environmental scientist at the CEPD, Rivera made it known to

his supervisors that he was interested in being promoted to a GS-

13 position.

The CEPD was reorganized in 2006 into three branches:

the Multimedia Permits and Compliance Branch, into which Rivera's

responsibilities fit; the Municipal Waters Programs Branch; and

the Resources Conservation and Recovery Act and Remediation

Branch. Around the time of the reorganization, Teresita Rodríguez1

replaced O'Neil as chief of the Multimedia Permits and Compliance

Branch and became Rivera's supervisor.

From September 2009 to November 2010, Rivera served a

tour of active duty in the U.S. Army and was deployed to

Afghanistan. While on active duty, Rivera applied and interviewed

for a position as a criminal investigator within the EPA. The

position had the potential to be graded GS-13. Rivera was not

selected for the position.

For purposes of clarity, we use the full names of Teresita 1

Rodríguez and Nancy Rodríguez throughout.

- 3 - Rivera filed a formal complaint in 2011 with the EPA

Office of Civil Rights ("OCR"). He alleged in the complaint that

he had been discriminated against in the hiring process in

violation of the Rehabilitation Act. In that regard, he alleged

that the interviewers, who were from the New York EPA office,

expressed concern about whether his myositis disability would

affect his ability to complete the training that was a requirement

for the position.

The OCR issued a final decision with respect to the 2011

complaint on December 17, 2012. The OCR determined in that

decision that there was no merit to Rivera's complaint because he

had failed to establish a prima facie case of disability

discrimination under the Rehabilitation Act.

After Rivera had returned to CEPD following his tour of

duty in Afghanistan, Teresita Rodríguez began checking in on his

well-being. She asked about his family life and how he was

adjusting to his return to civilian life. In August 2012, the

United States Veteran's Administration diagnosed Rivera with Post-

Traumatic Stress Disorder ("PTSD") related to his military service

in Afghanistan.

Teresita Rodríguez was Rivera's manager until 2011.

Thereafter, she became the Acting Deputy Director of the CEPD.

After Teresita Rodríguez took on this new position, several

- 4 - individuals oversaw the Multimedia Permits and Compliance Branch

for rotating, 120-day periods until Nancy Rodríguez was selected

as the permanent chief of the Branch in June of 2014.

Shortly after Nancy Rodríguez took on her new duties,

Rivera and a co-worker raised concerns that Nancy Rodríguez was

not qualified to supervise work related to the Clean Air Act.

Nancy Rodríguez testified that at times she felt threatened by

Rivera because she "was not sure how he would react during . . .

meetings"; that, accordingly, she rarely met with him one-on-one;

and that when they did meet alone, she would ask other supervisors

to "check on her" because she was worried about what might happen.

B.

Rivera complained repeatedly -- and in a variety of

fora -- about the treatment that he had received both from Nancy

Rodríguez after she became the chief of the Branch and from his

other supervisors at CEPD, including Font. Many of those

complaints were informal and regarded a range of what Rivera

contended was mistreatment that he characterized at various times

as harassment and as having created a hostile work environment.

But he also lodged some formal complaints about how he had been

treated by his supervisors.

Rivera made the first of these formal complaints on

September 25, 2014. Rivera did so by filing a grievance through

- 5 - the union that represented his bargaining unit at the CEPD. He

alleged in the grievance that Nancy Rodríguez had called him on

his personal cellular phone while he was on sick leave in violation

of the operative collective bargaining agreement. Rivera then

filed a second grievance through the union on October 2, 2014. He

alleged in this grievance that Nancy Rodríguez and Font were

creating a "hostile work environment" and impeding his ability to

advance in his career in violation of the collective bargaining

agreement.

On March 8, 2017, Rivera sought guidance from Barbara

Pastalove, the Chief of Human Resources for EPA Region 2, which

includes Puerto Rico. Rivera sought guidance about his right to

request, pursuant to EPA Order 4711, an investigation into

workplace "harassment" by Nancy Rodríguez.

On March 14, Rivera, through Pastalove, presented a

claim of "harassment" for investigation pursuant to EPA Order 4711.

In the claim, Rivera alleged that Nancy Rodríguez had been creating

a "hostile work environment" since 2014 and that Teresita Rodríguez

and Font had supported Nancy Rodríguez in doing so. Specifically,

Rivera alleged that Nancy Rodríguez had regularly dismissed his

professional input, excluded him from meetings and other

communications, and imposed training requirements on him that

differed from those applied to other inspectors in the branch.

- 6 - In April of 2017, Carmen Guerrero, then-CEPD's Director

and the decision maker on Rivera's EPA Order 4711 complaint,

imposed several "interim measures . . . while the factfinding and

decision[-]making process under EPA Order 4711 [were] ongoing."

These measures included Rivera reporting to Jaime Géliga, the

Branch Chief of the Municipal Waters Programs Branch, and Rivera

and Nancy Rodríguez abstaining from direct communication.

Thereafter, throughout 2017, Nancy Rodríguez remained Rivera's

official supervisor and he remained an inspector in the Air

Division. Rivera's work assignments, however, were conveyed to

him via Géliga, to whom Rivera reported on a day-to-day basis.

On April 21, 2017, Rivera filed a second formal complaint

with the EPA's OCR. In this complaint, he alleged that, in

violation of the Rehabilitation Act and Title VII, Nancy Rodríguez

had discriminated against him based on his service-connected

disability and retaliated against him for his prior protected

activity. The conduct at issue in this OCR complaint was

substantially the same as the conduct that Rivera had identified

in his request for an EPA Order 4711 investigation the prior month.

In December 2017, however, Rivera amended this OCR

complaint in relation to his having received a "minimally

satisfactory" rating on his 2017 year-end performance assessment.

Rivera's request to amend the OCR complaint also resulted in a

- 7 - second investigation pursuant to EPA Order 4711. This

investigation, which began in January 2018, concerned his

allegations pertaining to the 2017 performance assessment.

In January 2018, Guerrero received the factfinding

report from the 2017 EPA Order 4711 investigation into Rivera's

allegations of "harassment" unrelated to the 2017 performance

assessment. The report included over 50 exhibits as well as

interviews with Rivera and other witnesses. Guerrero concluded

that there was no evidence that there had been harassment of Rivera

by Nancy Rodríguez, Teresita Rodríguez, or Font. Guerrero informed

Rivera of this decision on June 11, 2018. Then, on July 13, 2018,

Rivera was informed that the decisionmaker in the EPA Order 4711

investigation into his allegations pertaining to the 2017

performance assessment did not find any evidence of harassment or

retaliation in relation to Rivera's 2017 performance assessment.

The OCR issued its Final Agency Decision regarding

Rivera's 2017 OCR complaint on April 16, 2018. The decision

concluded that Rivera failed to prove either a violation of Title

VII or a violation of the Rehabilitation Act.

Rivera filed a third formal complaint with the EPA's OCR

on September 17, 2018. In that complaint, Rivera alleged that, in

violation of the Rehabilitation Act and Title VII, he was

retaliated against by Guerrero, then the Director of the CEPD;

- 8 - Géliga, who had been supervising Rivera since April of 2017; and

the decisionmaker for the second EPA Order 4711 investigation. A

final decision on this complaint does not appear to be included in

the record.2

C.

During this period of friction between Rivera and his

supervisors, they took various actions towards him. For example,

in both 2014 and 2017 Rivera received a "minimally satisfactory"

rating on one of the elements of a periodic professional assessment

conducted by CEPD. However, on both occasions, Rivera was

ultimately given a "fully successful" rating because he had not

been placed on a performance assistance plan prior to the

assessment, as the collective bargaining agreement for his

bargaining unit required before an employee in that unit could be

given a "minimally satisfactory" rating.

Additionally, on October 1, 2014, CEPD management sent

a referral to the EPA's Office of Inspector General ("OIG") to

investigate whether Rivera had violated various federal criminal

statutes as well as agency rules by intentionally misrepresenting

The Administrator has not invoked Rivera's failure to 2

exhaust the claims made in this complaint as a basis for affirming the District Court's grant of summary judgment. Cf. Nunnally v. MacCausland, 996 F.2d 1, 2-4 (1st Cir. 1993) (noting that federal employees must administratively exhaust Rehabilitation Act claims before filing suit).

- 9 - that he was adequately trained and credentialed to conduct NESHAPs

and Clean Air Act inspections. The OIG ultimately concluded that

Rivera did not make any actionable misrepresentations. Rivera was

nonetheless temporarily removed from certain projects while the

OIG investigation was pending.

Then, in August 2018, Rivera was prevented from

participating in a Visible Emissions recertification training.

Rivera had sought preapproval to travel to Texas for the training

after he had not participated in the training when it was offered

in July in Puerto Rico. However, at Guerrero's instruction,

Géliga, as Rivera's acting supervisor, did not approve Rivera to

travel to Texas for the training. Completion of the training was

a requirement for Rivera to perform his duties as an inspector

under the Clean Air Act.

Around this time, but after Guerrero had informed Rivera

of the outcome of her investigation into his claim of harassment

pursuant to EPA Order 4711, she also stated that he would continue

to report to Géliga while Nancy Rodríguez remained his formal

supervisor. Guerrero informed Rivera, however, that he would

report to Géliga only through September 30, 2018. Guerrero also

offered Rivera the option of accepting a lateral transfer to either

the Municipal Waters Programs Branch under Géliga's supervision,

or to the Resources Conservation and Recovery Act and Remediation

- 10 - Branch under Teresita Rodríguez's supervision. Guerrero informed

Rivera that if he did not want to transfer, he would return to

reporting to Nancy Rodríguez. Rivera opted to transfer to the

Municipal Waters Programs Branch, effective October 4, 2018.

Finally, in May of 2020, Rivera applied for a temporary

GS-13 air inspector position. A few weeks after he submitted his

application, however, the posting was cancelled. An EPA Human

Resources employee sent an email to Rivera and the three other

people who had applied for the position. The email informed Rivera

and the other three applicants that the position had been cancelled

due to the COVID-19 pandemic and "the subsequent pause on some EPA

field work/inspections."

D.

On January 1, 2019, Rivera filed the operative

complaint, which set forth employment discrimination claims

against the EPA Administrator under the Rehabilitation Act and

Title VII.3 On March 4, 2021, the Administrator moved for summary

judgment as to Rivera's claims. The Administrator also moved on

May 26, 2021, to strike an affidavit that Rivera had filed in his

opposition to the Administrator's summary judgment motion.

3 Andrew Wheeler was the acting Administrator of the EPA when Rivera initially filed suit. Michael Regan was sworn in as Administrator on March 11, 2021, and we automatically substituted him as the appellee. See Fed. R. App. P. 43(c)(2).

- 11 - The District Court granted summary judgment to the

Administrator on Rivera's claims and struck the affidavit. Rivera-

Velázquez v. Wheeler, No. 18-CV-1751, 2022 WL 993643, at *24

(D.P.R. Mar. 31, 2022). Rivera then timely filed this appeal.

II.

Although Rivera brought claims under both Title VII and

the Rehabilitation Act, and although the District Court granted

summary judgment to the Administrator on all the claims that Rivera

brought under those statutes, the only portion of the grant of

summary judgment on the Title VII claims that Rivera challenges in

this appeal pertains to his claims for retaliation. Before

addressing Rivera's challenges regarding his retaliation claims

under both that statute and the Rehabilitation Act, however, we

consider his challenges to the grant of summary judgment on his

other Rehabilitation Act claims. In these claims, he alleges

mistreatment by CEPD employees because of their perception that he

had a disability, namely PTSD.

The Rehabilitation Act provides that "[n]o otherwise

qualified individual with a disability . . . shall, solely by

reason of her or his disability, . . . be subjected to

discrimination under any program or activity . . . conducted by

- 12 - any Executive agency." 29 U.S.C. § 794(a).4 To succeed in opposing

the Administrator's summary judgment motion as to his non-

retaliation-based Rehabilitation Act claims, Rivera first had to

meet his burden with respect to whether he had established a prima

facie case as to the claims. See Mancini v. City of Providence by

and through Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).

Accordingly, even with respect to his hostile-work-environment-

based Rehabilitation Act claim, Rivera had to put forth evidence

from which a reasonable juror could find that "1) [he] was disabled

within the meaning of the statute; 2) [he] was qualified to perform

the essential functions of the job, either with or without a

reasonable accommodation; and 3) the [CEPD] took adverse action

against [him] because of the disability." Ríos-Jímenez v.

Principi, 520 F.3d 31, 41 (1st Cir. 2008) (citation omitted); see

McDonough v. Donahoe, 673 F.3d 41, 49-50 (1st Cir. 2012) ("Because

the first step in any claim under the Rehabilitation Act is

establishing a disability covered by the Act and McDonough has

4Although Rivera, as an employee of a federal agency, brings his claims under the Rehabilitation Act rather than the Americans with Disabilities Act ("ADA"), "the liability standards are the same under each statute," Quiles-Quiles v. Henderson, 439 F.3d 1, 5 (1st Cir. 2006), and "the case law construing the ADA generally pertains equally to claims under the Rehabilitation Act," Calero- Cerezo v. U.S. Dep't of Just., 355 F.3d 6, 19 (1st Cir. 2004).

- 13 - failed to show that she was disabled, her hostile work environment

claim must fail.").

A plaintiff can show that he was "disabled" within the

meaning of the Rehabilitation Act in various ways. The plaintiff

can do so by showing that he had an actual disability, which is "a

physical or mental impairment that substantially limits one or

more major life activities," 42 U.S.C. § 12102(1); that he had a

record of disability, which is "a record of" "a physical or mental

impairment that substantially limits one or more major life

activities," id.; or that he was "regarded as having" "an actual

or perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life activity,"

id. at §§ 12102(1)(C), 12102(3)(A); see also 29 U.S.C. § 705(9)(B)

(providing that the term disability as used in the Rehabilitation

Act has "the meaning given it in [the ADA, 42 U.S.C. § 12102]").

In opposing the Administrator's motion for summary

judgment on the non-retaliation-based Rehabilitation Act claims,

Rivera identified several specific employment actions that he

claimed that Nancy Rodríguez and Teresita Rodríguez had taken

against him in violation of the statute because they "regarded

[him] as" having a disability, namely PTSD.5 Rivera also claimed

5Because the specific details of the asserted adverse actions "have no bearing on the final outcome, we need not discuss the specifics." McDonough, 673 F.3d at 46 n.8.

- 14 - that his supervisors violated the Rehabilitation Act by subjecting

him to a "hostile work environment" because they "regarded [him]

as" having a disability.

The District Court determined, however, that Rivera had

failed to put forth evidence that permitted a reasonable factfinder

to determine that he was disabled within the meaning of the

Rehabilitation Act on any of the grounds for so determining,6 and

so had failed to establish the first element of a prima facie case.

Rivera-Velázquez, 2022 WL 993643, at *17–19. On that basis, the

District Court granted summary judgment to the Administrator on

all of Rivera's non-retaliation-based Rehabilitation Act claims.

Reviewing de novo, while considering "the evidence in the light

most agreeable to [Rivera], giving [him] the benefit of any and

all reasonable inferences," Murray, 789 F.3d at 25 (citation

omitted), we agree with the District Court's decision.

6 The District Court's exact language was that Rivera "failed to show" that he was disabled. Rivera-Velázquez, 2022 WL 993643, at *18. In analyzing this claim, the District Court did not expressly refer to the summary judgment standard or explain that Rivera could make a prima facie showing by pointing to evidence in the record that, if unrebutted, could support a reasonable juror's inference in his favor on each element of his claim. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). However, the District Court's analysis was entirely consistent with the application of the proper standard, and in any event, our review is de novo. Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015).

- 15 - B.

Rivera does not dispute that there is no basis for

finding him disabled on the ground that he had "a physical or

mental impairment that substantially limits one or more major life

activities" or that the defendants possessed a record of his having

such an impairment. 42 U.S.C. § 12102(1). His challenge on appeal

thus focuses on the District Court's ruling that Rivera had not

met his burden to "show that CEPD management 'regarded him as

disabled.'" In so ruling, the District Court noted that "Nancy

Rodríguez testified" that at the relevant times "she was not aware

[Rivera] had a medical condition that may affect him" and that

Rivera admitted that none of his supervisors "ever made comments

alluding to him being mentally disabled, or that he was unreliable

due to mental instability." Rivera-Velázquez, 2022 WL 993643, at

*18. The District Court also concluded that Nancy Rodríguez's and

Teresita Rodríguez's behavior towards Rivera, as reflected in the

record, was "insufficient to show that Rivera['s] employers

'regarded [him] as disabled' nor 'that he was perceived as unfit

for a broad range of jobs as a result of his mental condition.'"

Id. (quoting Acevedo v. Potter, No. 08-1468, 2011 WL 7092592, at

- 16 - *9 (D.P.R. Mar. 23, 2011), aff'd sub nom. Acevedo v. Donahoe, 448

F. App'x 78 (1st Cir. 2012)).7

Rivera argues that the District Court erred in so ruling,

as he contends that he has put forth evidence from which a

reasonable juror could find that Nancy Rodríguez and Teresita

Rodríguez regarded him as having PTSD. Rivera does not contend

that there is any direct evidence that either Nancy Rodríguez or

Teresita Rodríguez knew he suffered from PTSD. Instead, Rivera

points to evidence in the record that Teresita Rodríguez stated

that she was worried that he had reported back to work so quickly

after returning from Afghanistan; inquired whether he "might need

. . . to take a break or some time out"; and asked him questions

like, "How are you feeling today? Do you want to take some time

off? Everything OK with the family? With the kids? With your wife?"

Teresita Rodríguez also stated in a deposition that Rivera

"demonstrate[d] that he needed [extra] attention" upon his return

from Afghanistan and that she believed "it was the result of him

having come back to his family, to the work area."

7 We emphasize that Rivera was not required to show that his supervisors regarded him "as unfit for a broad range of jobs as a result of his mental condition," Rivera-Velázquez, 2022 WL 993643, at *18, to satisfy his burden to show that he was regarded as having a disability. See Mercado v. Puerto Rico, 814 F.3d 581, 587 (1st Cir. 2016).

- 17 - In addition, Rivera argues that a juror could reasonably

find that Nancy Rodríguez regarded him as having PTSD based on the

evidence in the record. Specifically, Rivera points to the

evidence in the record that she told the OIG investigator that she

perceived Rivera as "aggressive," "felt threatened and/or

intimidated by him," "was not sure how he would react during . . .

meetings," and, accordingly, rarely met with him one-on-one. She

further told the OIG investigator, Rivera notes, that when she did

meet with Rivera one-on-one, she would ask other supervisors to

"check on her" because she was worried about what might happen.8

The District Court acknowledged all the evidence that

concerned the conduct and comments by Teresita Rodríguez and Nancy

Rodríguez that Rivera highlights on appeal. The District Court

nonetheless concluded that this evidence, even when considered in

combination, did not suffice to show that either of these two

supervisors regarded Rivera as having PTSD. In this regard, the

District Court explained that "'[a] supervisor's expression of

concern for an employee's health or wellbeing does not necessarily

mean that the supervisor—and by extension, the employer—regards

the employee as having an impairment.'" Rivera-Velázquez, 2022 WL

8 To the extent Rivera claims that Font contributed to an allegedly discriminatory hostile work environment, Rivera does not make any argument that there is evidence supportably showing that Font regarded him as disabled.

- 18 - 993643, at *18 (quoting Saffer v. Bechtel Marine Propulsion Corp.,

No. 19-cv-25, 2020 WL 5363322, at *6 (W.D. Pa. Sept. 8, 2020)).

In addition, the District Court explained that neither of the two

supervisors "ever made comments alluding to [Rivera] being

mentally disabled, or that he was unreliable due to mental

instability." Id.

In arguing that the District Court erred in so ruling,

Rivera first contends, with respect to Nancy Rodríguez, that "[h]er

'accumulated myths and fears' and stereotyping of Rivera impacted

on the manner she related to him as supervisor to such an extent

that" she avoided meeting with him individually. Rivera attempts

to support this contention by quoting a passage from School Board

of Nassau County, Florida v. Arline. See 480 U.S. 273, 284 (1987)

("[S]ociety's accumulated myths and fears about disability and

disease are as handicapping as are the physical limitations that

flow from actual impairment."). But Rivera fails to identify any

evidence to support the conclusory assertion that Nancy

Rodríguez's behavior was based on disability-based "myths and

fears" and "stereotyping," and Arline does not itself suggest that

a record such as this one suffices to show that an employer was

relying on "myths and fears" and "stereotyping" of that problematic

kind.

- 19 - Rivera separately asserts that the District Court's

ruling cannot stand because the District Court ignored the evidence

described above and instead simply credited Nancy Rodríguez's

statement that she did not know about Rivera's PTSD diagnosis.

But that is not an accurate account of the District Court's

reasoning. As we have explained, the District Court referred to

the instances highlighted by Rivera as evidence of Nancy

Rodríguez's regarding him as having PTSD before determining that

those instances "[were] insufficient to show that Rivera['s]

employers 'regarded [him] as disabled[.]'" Rivera-Velázquez, 2022

WL 993643, at *18. There is no basis for concluding, therefore,

that the District Court overlooked any of this evidence.

Finally, Rivera asserts that "a factual dispute exists

as to whether [his] supervisors regarded [him] as having a mental

disability." But Rivera develops no argument, nor cites to any

authority, in support of that conclusory assertion. And his

failure on that score is particularly significant because the U.S.

Equal Employment Opportunity Commission's interpretive guidance

for the "regarded as" definition of "disabled" notes the

importance of "distinguish[ing] between conditions that are

impairments and physical, psychological, environmental, cultural,

and economic characteristics that are not impairments," and

instructs that the definition "does not include common personality

- 20 - traits such as poor judgment or a quick temper where these are not

symptoms of a mental or psychological disorder." 29 C.F.R. Pt.

1630, App.

For these reasons, we conclude that there is no merit to

Rivera's challenge to the District Court's ruling that Rivera

failed to meet his burden to satisfy the first element of his prima

facie case with respect to his Rehabilitation Act claims predicated

on his having been regarded as having a disability. For, while

the requisite showing may be made by circumstantial evidence that

permits reasonable inferences, Rivera identifies no direct

evidence that either Nancy Rodríguez or Teresita Rodríguez knew,

at the relevant times, that Rivera had been diagnosed with PTSD

and the evidence in the record on which Rivera relies to make his

case would require "unsupported speculation" as to what was in the

minds of the supervisors when they made the comments that they

made and acted towards him as they did. Smith v. Jenkins, 732

F.3d 51, 76 (1st Cir. 2013) (quoting Shafmaster v. United States,

707 F.3d 130, 135 (1st Cir. 2013)). Accordingly, we reject

Rivera's challenge to the grant of summary judgment to the

Administrator as to these claims.

III.

There remains to address Rivera's challenge to the

District Court's grant of summary judgment to the Administrator on

- 21 - Rivera's retaliation claims under both the Rehabilitation Act and

Title VII. The Rehabilitation Act "prohibits retaliation against

employees for complaining about violations of the Act." Quiles-

Quiles, 439 F.3d at 8. Similarly, Title VII prohibits retaliation

for "any practice made an unlawful employment practice by [Title

VII]." 42 U.S.C. § 2000e–3(a). We begin with Rivera's

Rehabilitation Act-related challenge before turning to his Title

VII-related one.

To prevail on his retaliation claims under the

Rehabilitation Act, Rivera needs to show as to each that he: "(1)

was engaged in protected conduct; (2) suffered an adverse

employment action; and (3) there was a causal connection between

the protected conduct and the adverse action." Colón-Fontánez v.

Municipality of San Juan, 660 F.3d 17, 36 (1st Cir. 2011). And to

survive summary judgment on the claims, Rivera must make out a

prima facie case of retaliation as to each claim by pointing to

evidence in the record that could support each of the three

elements of such a prima facie case. See Ponte v. Steelcase Inc.,

741 F.3d 310, 321 (1st Cir. 2014).

As to the "protected conduct" element, we understand

Rivera to be relying on appeal on the evidence of his having

engaged in the following discrete instances of protected conduct:

- 22 - the formal OCR complaints that he filed in 2011, 2017 and 2018;

the claims of "harassment" that led to the "two EPA Order 4711s,

initiated on March 14, 2017 and January 12, 2018 respectively,"

Rivera-Velázquez, 2022 WL 993643, at *19; and his "[i]nformal

protests of discriminatory employment practices such as

complaining to management, 'writing critical letters to customers,

protesting against discrimination by industry or by society in

general, and expressing support of co-workers who have filed formal

[charges,]'" id. (quoting Garcia-Garcia v. Costco Wholesale

Corp., 878 F.3d 411, 425–26 (1st Cir. 2017)). We also understand

Rivera to be relying on the evidence of the grievances that he

filed through his union in 2014 about his alleged mistreatment by

Nancy Rodríguez and Font.

As to the "adverse employment action" element, Rivera

relies on appeal on evidence of a variety of discrete actions taken

by his supervisors at CEPD. Those actions were that the

supervisors: (1) failed to promote him to a GS-13 position through

a noncompetitive process;9 (2) de facto demoted him by "forc[ing]"

him to transfer to the Municipal Waters Programs Branch; (3)

9The District Court also addressed the fact that Rivera requested a desk audit in 2016 to determine whether his current position was properly graded as GS-12. Rivera-Velázquez, 2022 993643, at *11. Rivera does not argue on appeal that the desk audit decisionmaker's conclusion that Rivera's position was properly graded constitutes an adverse action.

- 23 - cancelled a temporary GS-13 position for which he had applied in

2020; (4) prevented him from completing a Visible Emissions

training; and (5) initiated an OIG investigation against him. We

note that Rivera's briefing on appeal also alludes to other actions

by his supervisors, such as some of the conduct that grounds his

hostile work environment claim. But he has failed to develop,

both below and on appeal, any argument that any of these actions,

whether considered individually or collectively, constituted an

adverse action for purposes of the retaliation claims, let alone

how any of these actions not only rises to the level of

constituting an adverse action but also has a causal link to any

specific protected conduct that he identifies. Thus, any such

argument is waived. See United States v. Slade, 980 F.2d 27, 30

(1st Cir. 1992) ("It is a bedrock rule that when a party has not

presented an argument to the district court, she may not unveil it

in the court of appeals."); United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

Finally, as to the "causation" element, Rivera relies on

appeal primarily on what he contends is sufficient evidence of

temporal proximity between the protected conduct that he

identifies and the adverse action that grounds each of his claims

- 24 - of retaliation. See Wyatt v. City of Boston, 35 F.3d 13, 16 (1st

Cir. 1994) ("One way of showing causation is by establishing that

the employer's knowledge of the protected activity was close in

time to the employer's adverse action."). But he also appears to

rely on evidence that he contends suffices to show that his

supervisors' stated reasons for certain of the adverse actions

were pretextual.

Reviewing the District Court's decision de novo, see

Murray, 789 F.3d at 25, we conclude that Rivera has failed to

establish a prima facie case for his retaliation claims under the

Rehabilitation Act. We thus conclude that there is no merit to

his challenge to the grant of summary judgment to the Administrator

with respect to Rivera's retaliation claims under that statute.

To explain that conclusion, we examine, with respect to each of

the claimed adverse actions, whether Rivera has made out a prima

facie case of retaliation under the Rehabilitation Act.

1.

We start with Rivera's attempt to ground his prima facie

case of retaliation on the allegation that his supervisors at CEPD

took an adverse action against him in retaliation for his protected

conduct by failing to promote him to a GS-13 position. Rivera

asserts that the District Court erred in concluding that this

attempt to ground his prima facie case failed, see Rivera-

- 25 - Velázquez, 2022 WL 993643, at *19 (citing Velez v. Janssen Ortho,

LLC, 467 F.3d 802, 807 (1st Cir. 2006)), because the District Court

failed to address his argument that the refusal of his supervisors

to promote him to that position inhered in their refusal to create

a GS-13 position for him in the first place.

To support this contention, Rivera asserts that EPA

regulations allow supervisors to create positions for employees

deserving of merit-based promotions. He then contends that his

supervisors retaliated against him by failing to "trigger[] the

available EPA[] Merit Promotion Regulations designed to recognize

and retain employees that have exceeded the employer's

expectations." The District Court concluded, however, that no

reasonable juror could find on this record that Rivera's

supervisors had the power to create a GS-13 position just for him.

We agree. We thus reject this ground for reversal, even assuming

that Rivera is correct in arguing that his supervisors' failure to

create the GS-13 position for him in and of itself constituted an

adverse action.

As the District Court noted, Font, Nancy Rodríguez, and

Teresita Rodríguez all testified to not having "the authority to

promote [Rivera] or single-handedly create a GS-13 position for

him," Rivera-Velázquez, 2022 WL 993643 at *21, and Rivera does not

point to any regulation in the record that would have allowed them

- 26 - to create such a position for him. Moreover, Pastalove, the Chief

of Human Resources for EPA Region 2, which includes Puerto Rico,

stated in her unrebutted testimony that before a GS-13 position

could be created for a merit promotion, "[t]here would be

consultation with Human Resources" and "big-picture discussions

about where [within CEPD the position] should be located."

Pastalove explained in her testimony that the "selecting official"

in consultation with other decisionmakers would have "identified

the selection criteria . . . for eligibility[] to apply for the

job," and that those criteria would be announced so that those who

met the criteria could apply. Pastalove added in her testimony

that candidates cannot be "pre-selected" for merit promotions but

must apply for a promotion to a position once it is posted. She

testified too, that a supervisor cannot create a GS-13 position

simply because the supervisor is of the view that an employee

deserves a GS-13 promotion.

In attempting to show that there is nonetheless a genuine

issue of material fact in the relevant respect, Rivera points first

to what he contends is evidence of his supervisors' varying

explanations for his not having been promoted to a GS-13 position.

He emphasizes that none of those explanations concerned the

supervisor lacking the authority to have created such a position

for him. For example, Rivera asserts that Teresita Rodríguez told

- 27 - him that he needed more training before he could be promoted to a

GS-13 position but that she later said that "she would only

consider recommending his promotion if[] Nancy Rodríguez

recommended it" and if he stopped complaining about Nancy

Rodríguez.

Rivera's account of Teresita Rodríguez's comments

regarding whether she would "recommend" Rivera for a promotion

into an available position, however, is not inconsistent with

either Pastalove's explanation of the merit-promotion process or

the testimony by Rivera's supervisors that they could not create

a GS-13 position for him. So, we do not see how the evidence of

the comments by Teresita Rodríguez suffices to a create a genuine

dispute about whether Rivera's supervisors did have the authority

to create a GS-13 position for him in the manner that he contends

they did. Moreover, Rivera does not assert that, insofar as the

adverse action to which he was subjected constituted a refusal to

promote him to a GS-13 position, the refusal took the form of

denying him a promotion to a GS-13 position that existed and to

which he had applied. Rather, he contends that refusal took the

form of his supervisors refusing to create such a position for

him. Thus, the evidence that he identifies about the reasons that

his supervisors gave for not recommending him for a promotion do

not advance his cause, as that evidence could not supportably show

- 28 - that Rivera's supervisors had the authority to create such a

position.

Rivera does separately point to an unsworn declaration

by Francisco Claudio, who worked with Rivera in the Compliance and

Enforcement Branch of the CEPD. The declaration states that on an

unspecified date Claudio "was granted the GS-13 level through a

merit increase process" that "was not competitive" and that Claudio

believed there were "EPA employees in New York that perform the

same duties but with less years of experiences than . . . Rivera,

that [were] classified as GS-13." But this declaration makes

representations about Claudio's beliefs regarding employees in a

different EPA office and his understanding of the process through

which he was promoted being "not competitive." And we do not see

how representations about the New York Office provide a basis from

which a reasonable juror could infer that Rivera's supervisors in

Puerto Rico could create a GS-13 position just for him. Nor do we

see how Claudio's representations about his own promotion provide

any basis for concluding that the supervisors could have created

the position that Rivera claims that they could have at the time

that Rivera alleges that his supervisors were retaliating against

him. Cf. González-Bermúdez v. Abbott Lab'ys P.R. Inc., 990 F.3d

37, 47–48 (1st Cir. 2021) (retaliatory failure-to-promote

plaintiff could not rely on the fact that other employees were

- 29 - "offered promotions without having to compete with external

candidates" where policy regarding external competition changed a

few months before the period during which the plaintiff alleged

retaliation).

Thus, based on the arguments that Rivera has made to us,

we cannot say the District Court erred in ruling that Rivera failed

to meet his burden to establish a prima facie case insofar as

Rivera sought to do so based on his having been denied a GS-13

promotion by his supervisors' failure to create a GS-13 position

for him. If he is to show that the District Court erred in ruling

that he had failed to make a prima facie case of retaliation under

the Rehabilitation Act, therefore, he must identify some other

adverse action to ground it.

2.

Rivera does argue that, contrary to the District Court's

ruling, he made out a prima facie case of retaliation in violation

of the Rehabilitation Act based on the evidence in the record that

he contends supportably shows that he "was forced to accept a

transfer to the [Municipal] Water[s Programs] Division with

significantly different responsibilities that was less conducive

to career advancement." Rivera appears to be referring to the

choice Guerrero gave him, after concluding her investigation into

his EPA Order 4711 complaint of "harassment," between transferring

- 30 - to one of the other branches of CEPD or returning to Nancy

Rodríguez's supervision.

Rivera does characterize his transfer to the Municipal

Waters Programs Branch as his having been "forced" into a "de facto

demotion." The undisputed record shows, however, that Guerrero

stressed that Rivera "had no obligation" to accept a transfer.

Rivera nonetheless asserts that the "choice" was a false one

because "being supervised by Nancy Rodríguez was not an option

given the history of harassment, retaliation and discrimination."

But he fails to develop any argument that, because of that history,

requiring him to continue to work for Nancy Rodríguez would itself

have constituted a retaliatory adverse action.

Thus, we do not see how Rivera has put forth evidence

from which a reasonable juror could find that he was subjected to

an adverse action when Guerrero presented him with the option of

taking a position in the Municipal Waters Programs Branch.10 Cf.

Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir.

10 Rivera also states in the facts section of his brief that he "was disqualified to continue his work at the Air Division" because he was unable to complete his Visible Emissions training. He does not point, however, to any facts in the record that supportably show that he could not have remained there while he waited to recertify. In any event, we conclude below that he has failed to identify record support from which a reasonable juror could find that the cancellation of this Visible Emissions training constituted an adverse action that was linked to any protected conduct.

- 31 - 2008) ("[I]n order for a resignation to constitute a constructive

discharge, it effectively must be void of choice or free will.").

And this conclusion draws further support from the fact that, as

the Administrator notes, Rivera admitted that in October 2016 he

had requested a reassignment to the Municipal Waters Programs

Branch because he believed the move would improve his "career

ladder opportunities."

3.

Rivera also argues that, contrary to the District

Court's ruling, he has made out a prima facie case of retaliation

under the Rehabilitation Act based on his having applied, along

with three other people, for a temporary GS-13 air inspector

position in early 2020 that was cancelled within two weeks of his

having submitted his application. In fact, Rivera contends, the

District Court failed to address the cancellation of that position,

which he argues was an adverse action taken in retaliation against

him. We may affirm the District Court's grant of summary judgment

"on any ground made manifest in the record," however. Am. Steel

Erectors v. Loc. Union No. 7, Int'l Ass'n of Bridge, Structural,

Ornamental & Reinforcing Iron Workers, 815 F.3d 43, 63 (1st Cir.

2016). And Rivera makes no argument as to how a juror could

reasonably find a causal nexus between the cancellation of the

position and any of his protected conduct.

- 32 - In that regard, we note that the record shows that he

made the last of his formal complaints about mistreatment by his

supervisors -- whether through the filing of complaints with the

OCR or the presentation of claims pursuant to EPA Order 4711 -- in

2018. In other words, he did so years before the cancellation of

the relevant GS-13 position. Thus, there is no basis for inferring

causation based on a temporal link between this claimed adverse

action and any of those protected activities. See Ahern v.

Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) ("Without some

corroborating evidence suggestive of causation" even a "gap of

several months cannot alone ground an inference of a causal

connection between a complaint and an allegedly retaliatory

action."). Nor does Rivera identify any other evidence that could

support such a link.

Rivera also develops no argument as to how any of his

informal complaints constituted not only protected conduct but

also protected conduct that caused the cancellation of the position

in 2020. So, any such argument is waived. See Zannino, 895 F.2d

at 17.

4.

Rivera's attempt to ground his prima facie case of

retaliation on the initiation of the 2014 OIG investigation into

- 33 - his credentials similarly fails.11 The District Court ruled that

there was no basis for inferring that CEPD management's referral

of Rivera to the OIG for investigation was in retaliation for the

only formal complaint about his supervisors' conduct that he made

before the OIG investigation. And we agree, given the three-year

time lag between the OIG referral and Rivera's 2011 complaint, as

well as Rivera's failure to identify any basis other than temporal

proximity for connecting the OIG referral to his protected

activity. See Ahern, 629 F.3d at 58. Nor is there any

basis -- quite obviously -- for inferring that the OIG referral

was spurred by the 2017 and 2018 complaints that Rivera filed under

EPA Order 4711 and with OCR, given that he filed those complaints

years after the OIG referral occurred. See Pearson v.

Massachusetts Bay Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013)

11 Rivera is correct that the District Court erred insofar as it granted summary judgment to the Administrator on the ground that none of the alleged adverse actions altered the terms or conditions of Rivera's employment. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (so holding in the context of Title VII retaliation); Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 20 (1st Cir. 2006) (holding, per Burlington Northern, that an adverse action for purposes of a claim of retaliation under the Rehabilitation Act is an action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination" (quoting Burlington N., 548 U.S. at 68)). However, this error does not preclude us from affirming the District Court's alternative basis for granting summary judgment -- Rivera's failure to show any causal connection between the initiation of the OIG investigation and any protected conduct in which he had engaged.

- 34 - ("Causation moves forward, not backwards, and no protected conduct

after an adverse employment action can serve as the predicate for

a retaliation claim.").

Insofar as Rivera means to argue that he may rest his

prima facie case on the OIG referral because it occurred on October

1st of 2014 and he had filed a union grievance against Nancy

Rodríguez on September 25th of that year, we similarly see no basis

for overturning the District Court's ruling against him. Rivera

understandably emphasized at oral argument that the two events

occurred close in time.12 But, as the Administrator pointed out

in a post-argument 28(j) letter, the September 25 union grievance

did not attempt to identify any discriminatory conduct prohibited

under the Rehabilitation Act. And, in response to that letter,

Rivera agreed that was the case. Thus, because protected conduct

is limited "to action taken to protest or oppose statutorily

prohibited discrimination," the union grievance cannot be the

adverse action grounding the asserted prima facie case of

retaliation under the Rehabilitation Act. Fantini v. Salem State

Coll., 557 F.3d 22, 32 (1st Cir. 2009) (citation omitted).

12 Rivera also refers to a second union grievance filed on October 2, 2014. However, that grievance was filed after the OIG referral was made on October 1, 2014. See Pearson, 723 F.3d at 42.

- 35 - Finally, we do not see how Rivera can show that he

satisfied the causation element of the prima facie case with

respect to the OIG referral based on his informal complaints. And

that is because Rivera fails to argue, with respect to any specific

informal complaint, that it constituted protected conduct and that

the OIG referral was made with sufficient temporal proximity to it

to give rise to an inference of causation. See Zannino, 895 F.2d

at 17. Thus, even if Rivera were right in arguing that the record

supportably shows that Font and Teresita Rodríguez "insisted on

referring Rivera to the OIG despite knowing that he had 90

[percent] of the credentials and . . . had not engaged in any

fraudulent actions," his challenge still would lack merit, as he

fails to identify any causal link between the decision to refer

him to the OIG and any protected conduct -- whether undertaken

formally or informally -- in which he engaged. Cf. Theidon v.

Harvard Univ., 948 F.3d 477, 496 n.29 (1st Cir. 2020) ("Pretext

and discriminatory animus are often lumped together in Title VII

analysis, but the plaintiff's burden at this stage comprises two

separate tasks.").

5.

Rivera makes one last argument as to why we must conclude

that the District Court erred in ruling that he had not met his

burden to establish a prima facie case of retaliation under the

- 36 - Rehabilitation Act. Here, he relies on what the record shows with

respect to the cancellation of his Visible Emissions training in

August 2018.

The District Court noted that, with respect to the

cancellation of that training, "the closest protected activity

. . . would be his 2017 EEO Complaint filed on April 21, 2017."

Rivera-Velázquez, 2022 WL 993643, at *24. But Rivera filed that

complaint more than a year before he was not approved for the

training. Thus, there is no basis for inferring a causal link

between the two based on timing alone. See Ahern, 629 F.3d at 58.

Rivera also develops no other argument for linking the cancellation

of the Visible Emissions training to any of the protected conduct

in which he engaged.

Rivera does argue that the cancellation of his Visible

Emissions training can nonetheless ground a prima facie case of

retaliation under the Rehabilitation Act. He contends that is so

because of the cancellation's temporal proximity to the email from

Guerrero on June 11, 2018, that informed Rivera that Guerrero had

concluded the investigation of Rivera's 2017 complaint under EPA

Order 4711 and found no merit to it. Rivera does not offer any

argument, however, as to why Guerrero's sending of the email should

be the relevant starting point from which to calculate temporal

proximity. And Rivera's failure to offer any such argument is

- 37 - concerning given that the relevant time span for determining

temporal proximity is between when an employer learns of protected

activity and when an adverse action is taken. See Clark Cnty.

Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (characterizing as

"implausible" the suggestion that the date of "the EEOC's issuance

of a right-to-sue-letter -- an action in which the employee takes

no part" should count as the relevant "protected activity of the

employee" for the purpose of determining temporal proximity).

Rivera has thus waived any argument as to why we should determine

temporal proximity from the date of Guerrero's decision. See

Zannino, 895 F.2d at 17.

While Rivera did not advance any arguments in his

briefing to us as to how the District Court erred in granting

summary judgment to the Administrator on Rivera's Title VII claims,

Rivera filed a 28(j) letter after oral argument in which he stated

that, with respect to the union grievance that closely preceded

the OIG referral, his "allegations and arguments below[] show that

it is pellucidly clear that [he] claimed the protections afforded

by the anti-retaliation provisions under Title VII of the Civil

Rights Act, not the Rehabilitation Act." Rivera therefore appears

to be arguing, via that letter, that the District Court erred in

concluding that the OIG referral was not causally linked to his

- 38 - union grievance, which, assertedly, constituted protected conduct

under Title VII. See Marrero v. Goya of P.R., Inc., 304 F.3d 7,

22 (1st Cir. 2002) (explaining that to make out a prima facie case

of retaliation under Title VII, a plaintiff must show "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").

Setting aside the problem with raising an argument for

the first time in this manner, see Hernandez Lara v. Barr, 962

F.3d 45, 52 n.10 (1st Cir. 2020) ("Rule 28(j) enables a party to

apprise the court of 'pertinent and significant' legal authority

that comes to its attention 'after oral argument but before

decision,' not to introduce new arguments that the party failed to

raise in its brief." (quoting Fed. R. App. P. 28(j))), the argument

lacks merit. There is no indication in the record that, prior to

the OIG referral, Rivera complained about discrimination on any of

the bases protected by Title VII -- namely "race, color, religion,

sex, or national origin," 42 U.S.C. § 2000(e)-2(a). Nor does any

such argument appear anywhere in his briefing on appeal, which

does not include any reference to Title VII. Thus, no reasonable

juror could conclude that the union grievance constituted

protected conduct under Title VII. See Rojas v. Roman Cath.

Diocese of Rochester, 660 F.3d 98, 107–08 (2d Cir. 2011)

- 39 - ("[I]mplicit in the requirement that the employer have been aware

of the protected activity is the requirement that it understood,

or could reasonably have understood, that the plaintiff's

complaint was directed at conduct prohibited by Title VII."

(cleaned up) (emphasis in original)).

IV.

There is one loose thread to tie up: Rivera's challenge

to the District Court's decision to grant the defendant's motion

to strike his post-discovery affidavit. But even if we were to

assume that there was merit to Rivera's argument that the District

Court erred in striking the affidavit -- and we do not suggest

that the argument has merit -- he still would have to show that

the error provided a basis for overturning the District Court's

summary judgment ruling. Rivera has not adequately explained,

however, why the contents of the affidavit create a genuine issue

of disputed fact as to any issue of fact that bears on our reasons

for affirming the grant of summary judgment.

Rivera does note that the affidavit included an

assertion that the "harassment" at issue in this case "caused him

greater emotional damages than his experience in Afghanistan," an

explanation of his "reasons for not applying to . . . a GS-13

position announced in January 2020," and an assertion that only

one CEPD employee was qualified for that position. But we do not

- 40 - see -- and Rivera does not explain -- how those assertions, or any

others contained in the affidavit, would have allowed him to carry

his burden to make out a prima facie case that he was discriminated

against in violation of the Rehabilitation Act or Title VII, given

the problems that we have identified above with each of his

attempts to show that he had done so. Thus, we need not further

review the District Court's decision to strike the affidavit to

affirm the grant of summary judgment to the Administrator on the

Rehabilitation Act and Title VII claims before us in this appeal.

For the reasons discussed above, we affirm the District

Court's grant of summary judgment on Rivera's claims against the

Administrator for discrimination and retaliation.

The parties shall bear their own costs.

- 41 -