United States Court of Appeals For the First Circuit
No. 20-1901
MIGUEL RODRÍGUEZ-SEVERINO,
Plaintiff, Appellant,
v.
UTC AEROSPACE SYSTEMS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Gelpí, Lipez, and Thompson, Circuit Judges.
Juan M. Frontera-Suau, with whom Frontera Suau Law Offices, PSC, was on brief, for appellant. Miguel A. Rivera-Arce, with whom McConnell Valdés LLC was on brief, for appellee.
October 27, 2022 GELPÍ, Circuit Judge. Plaintiff-Appellant Miguel
Rodríguez-Severino ("Rodríguez-Severino") was an employee of
Defendant-Appellee UTC Aerospace Systems ("UTC") in its
Environmental, Health and Safety ("EH&S") department at its
manufacturing plant in Santa Isabel, Puerto Rico. This appeal
arises from an incident during a March 2016 training, when
Rodríguez-Severino alleges that a contractor giving the training
made a sexually explicit joke and that his supervisor, Kenneth
Cariño ("Cariño"), failed to stop the contractor and instead joined
in. Rodríguez-Severino filed a complaint with the company's
ombudsman and then filed several complaints with two agencies,
alleging retaliatory behavior in response by UTC, and Cariño in
particular, which forms the basis for his retaliation claim under
Title VII of the Civil Rights Act of 1964 ("Title VII"). The
district court granted UTC's motion for summary judgment on all
claims. Finding no error in the district court's decision, we
affirm.
I. Background
When reviewing a district court's grant of summary
judgment, we consider the facts in the light most favorable to the
non-moving party, Rodríguez-Severino, and draw reasonable
inferences in their favor. CMI Capital Mkt. Inv., LLC v. González–
Toro, 520 F.3d 58, 61 (1st Cir. 2008). The factual premise for
this appeal is somewhat complicated by Rodríguez-Severino's
- 2 - alleged failure to comply with the district court's Local Rule 56,
an "anti-ferret rule," in his opposition to UTC's motion for
summary judgment. See D.P.R. Civ. R. 56. Determining that
Rodríguez-Severino failed to counter UTC's statement of material
facts, the district court deemed the uncontroverted facts admitted
under Local Rule 56(e), which provides that facts contained in a
statement of material facts "shall be deemed admitted unless
properly controverted." D.P.R. Civ. R. 56(e). The district court
also declined to consider 100 additional facts asserted by
Rodríguez-Severino in his opposing statement of material facts
because it concluded that these facts were not, as required by
Local Rule 56(e), supported by specific citations to evidence in
the summary judgment record. For the reasons we explain infra, we
find no abuse of discretion in the district court's "deeming"
order, and accordingly, we review the facts as set forth in UTC's
statement of material facts. See CMI Capital Mkt. Inv., LLC, 520
F.3d at 61.
Rodríguez-Severino, a member of the Air National Guard,
was born in the Dominican Republic and began living in Puerto Rico
when he was approximately eight years old. He began working for
UTC as an EH&S Specialist in the company's EH&S department in its
manufacturing facility located in Santa Isabel, Puerto Rico in
June 2015. UTC designs and manufactures aerospace components.
The EH&S department is responsible for monitoring and ensuring the
- 3 - health and safety of all UTC employees. Cariño, the EH&S
department manager, was his supervisor during all relevant times.
Rodríguez-Severino, like other new hires, was initially assigned
to the first work shift, which ran from 8:00 AM - 5:00 PM.
In March 2016, Rodríguez-Severino attended a training
that was being offered to members of the EH&S department. There,
he alleged that the contractor giving the training made a sexually
explicit joke and that Cariño failed to stop the contractor from
doing so and instead joined in the joke, laughed, and repeated the
joke.1 Shortly thereafter, Rodríguez-Severino filed a confidential
complaint through UTC's ombudsman program relaying the incident.
In April 2016, Eddie Del Toro ("Del Toro"), a Human Resources
("HR") manager, was assigned to conduct an investigation of the
internal complaint. He was not provided the name of the employee
who had made the complaint and began an investigation of the events
that transpired during the training. As part of the investigation,
Cariño was interviewed, but was not informed of who had filed the
complaint,2 and was cleared of any wrongdoing. On June 30, 2016,
1 Translated from Spanish, the inappropriate comment referring to the prohibition on carrying hazardous material through a tunnel in Puerto Rico was: "You know you cannot go in the tunnel, don't go in the tunnel. You don't take it up the tunnel, or can't put it in." We acknowledge Rodríguez-Severino's assertion on appeal that 2
due to the nature of the investigation, it was not difficult for Cariño to identify who had filed the confidential complaint. We discuss this contention in more detail infra, ultimately concluding that Cariño did not learn a complaint had been made
- 4 - Rodríguez-Severino informed Del Toro that it was he who had brought
a complaint to the ombudsman. Del Toro did not share this
information with any other UTC employee, and Rodríguez-Severino
did not tell anybody else that he had filed the complaint.
A. First EEOC Charge
On November 7, 2016, Rodríguez-Severino filed a charge
with the Equal Employment Opportunity Commission ("EEOC"). We
will refer to this as the first EEOC charge. In it, he alleged
color and national origin discrimination by UTC, and Cariño
specifically, in addition to retaliation for filing a complaint
with the ombudsman. The charge summarized the acts that Rodríguez-
Severino considered to be in retaliation for bringing an ombudsman
complaint. One of the alleged retaliatory acts was a performance
evaluation that took place in April 2016 where Cariño gave
Rodríguez-Severino a score of "progressing." Rodríguez-Severino
also alleged that there was an activity at the Occupational Safety
and Health Administration ("OSHA") offices in San Juan, Puerto
Rico to which all other EH&S professionals were invited, except
for him. UTC alleges Rodríguez-Severino was excluded because he
was working the second shift at the time, which ran from 2:00 PM
to 10:00 PM, and the event took place during the first shift.
Rodríguez-Severino alleged in the first EEOC charge that though he
about the joke during training until Rodríguez-Severino filed the first EEOC charge.
- 5 - requested to attend, he was told that he had to cover the second
shift and could not leave that shift unattended.
Rodríguez-Severino further alleged retaliation in his
change to a newly created third shift, which ran from 10:00 PM to
6:00 AM. He expressed concern to Cariño and Del Toro that the
change in shift would affect his ability to work on certain
projects but ultimately, the change was made and he began working
on the third shift in June 2016. UTC contends that he was moved
to the third shift because he was the employee with the least
seniority at the time.
Additionally, Rodríguez-Severino alleged further
retaliation through email. Rodríguez-Severino sent an email in
May 2016 to his co-workers, supervisors, and the General Manager
in which he suggested various areas in which the company was in
need of corrective action, which led another employee in the EH&S
department to respond with a contrasting opinion. Cariño responded
with an email to both Rodríguez-Severino and the other employee
who had responded asking that such discussions be held internally
within the EH&S department rather than over group email.
Rodríguez-Severino alleged in the first EEOC charge that this made
him feel embarrassed and disrespected. He additionally alleged a
"pattern of retaliation and harassment" between himself and Cariño
where he was excluded, treated disrespectfully, and singled out
for mistreatment.
- 6 - As a member of the Air National Guard, Rodríguez-
Severino often had to attend weekend trainings which required him
to take time off. He alleged that Cariño forgot about these
weekends and continually asked about them and what they were, and
commented that they took place often. Nevertheless, Rodríguez-
Severino was always able to attend said trainings and admitted it
did not affect his salary or benefits to do so, even when he
started working the third shift.
UTC alleged that Rodríguez-Severino's overall
performance was deficient. It alleged that Rodríguez-Severino
failed to properly request his time off, and took days off that
were not authorized or that had been explicitly denied. It also
alleged that Rodríguez-Severino failed to communicate adequately
and did not maintain the type of communication with the department
that was expected of him. Finally, Rodríguez-Severino was
insubordinate on various occasions and purposefully disregarded
his supervisor's instructions.
For example, at the end of October 2016, Cariño attempted
to schedule a meeting with Rodríguez-Severino and sent him emails
on October 28, 2016 and November 1, 2016 requesting such a meeting
to take place at the end of Rodríguez-Severino's shift, the third
shift. Rodríguez-Severino did not answer or attend. Though the
initial meetings were not compulsory, various meetings were then
scheduled with Rodríguez-Severino, Cariño, and the HR director
- 7 - which were labeled compulsory. Rodríguez-Severino declined to
attend those meetings and was not available on his corporate cell
phone. He was informed that he would not be allowed to return to
work until the meeting was held. The meeting was eventually held
on November 10, 2016 after which Rodríguez-Severino was cleared to
return to work. In the meeting, Rodríguez-Severino, Cariño, and
the HR director discussed Rodríguez-Severino's performance and the
difficulty with scheduling the meeting, as well as his expected
hours on the third shift.
In July 2017, the EEOC issued a dismissal of the first
EEOC charge, finding no violation.
B. Second EEOC Charge
In January of 2017, Rodríguez-Severino filed a second
charge before the EEOC, which we will refer to as the second EEOC
charge. In it, he alleged retaliation on the part of Cariño
because of his complaint with the ombudsman. He repeated many of
the allegations appearing in his first charge, as well as
harassment by Cariño in December of 2016, beginning when Rodríguez-
Severino requested time off, which was approved, in November 2016.
On the day that his time off was scheduled to begin, Rodríguez-
Severino informed Cariño that he would need to reschedule for mid-
December. Though the leave was initially approved, Cariño then
had to shift Rodríguez-Severino's days off to a week earlier due
to other requests for time off that had already been approved. On
- 8 - the day that Rodríguez-Severino was supposed to return to work, he
notified Cariño that he would be out sick for eight days,
coinciding with the week for which he had originally requested
leave. Rodríguez-Severino alleged that Cariño harassed him over
email in the days leading up to his vacation leave by sending him
work-related emails. The outcome of this second EEOC charge is
undisclosed in the record.
C. VETS Charge
In March 2017, Rodríguez-Severino brought a charge
before the Office of the Assistant Secretary for Veteran's
Employment and Training ("VETS") of the federal Department of
Labor, alleging discrimination in violation of his rights under
the Uniformed Services Employment and Reemployment Rights Act
("USERRA").3 In it, he described the various incidents of
discrimination and retaliation described above, specifically
regarding the meeting in 2016 that he failed to attend, alleging
without further information that Cariño's actions were
discriminatory and retaliatory due to his military status. He
also described additional incidents that he alleged were
retaliatory. First, that Cariño requested Rodríguez-Severino
The district court deemed this claim waived and abandoned 3
at the summary judgment stage. Rodríguez-Severino does not raise the issue again on appeal. Therefore, we also consider the claim waived before this court and limit our discussion of the underlying facts.
- 9 - resend his military drill schedule. Second, that Cariño requested
Rodríguez-Severino work during the second shift on Friday, March
3, 2017 when he had already worked the third shift the night
before. Rodríguez-Severino failed to report to work for said
shift. Following an investigation, in June 2017, the VETS office
issued a letter stating that there was no evidence supporting
Rodríguez-Severino's allegations.
D. Third EEOC Charge
In June 2017, Rodríguez-Severino filed a third EEOC
charge alleging retaliation. He repeated many of the incidents
that were included in the VETS charge and relayed an incident that
took place in March 2017. On that occasion, Rodríguez-Severino
was on a shift when a piece of equipment, the Remstar Storage, had
technical difficulties. He contacted outside contractors to
repair the machine, but then refused to allow them to perform the
work when they arrived because they lacked the required OSHA
certifications needed to perform the work in a confined space,
where the machine was located. However, there existed a "Confined
Space Inventory and Inspection Sheet" which allowed the equipment
to be reclassified, permitting the work to continue without the
OSHA certification. Rodríguez-Severino neglected to consult the
sheet and did not contact Cariño to ask for his advice. Instead,
Cariño was contacted by the manufacturing supervisor who informed
him that Rodríguez-Severino was not following the proper protocol.
- 10 - Cariño then contacted Rodríguez-Severino to resolve the problem.
Following a report by Rodríguez-Severino about the incident,
Cariño's behavior was investigated by Myrna Vélez ("Vélez"), HR
manager, who determined that he had acted appropriately.
Moreover, Rodríguez-Severino made various other
allegations regarding retaliation by Cariño. He alleged that all
employees except for him were allowed to leave after completing an
audit, though he had not been working on the audit. He further
alleged that he was not allowed to take his birthday off from work,
and that he was not allowed to take part in certain office
activities that were offered during the first shift when he was
working the third shift. Finally, he alleged that he was barred
from returning to work after being told that he needed to submit
certain medical documentation after completing medical treatment,
as was required by company policies. After filing his third EEOC
charge, Rodríguez-Severino received a right-to-sue letter in July
2017.
E. Transfer to OPEX
Following these incidents between Rodríguez-Severino and
Cariño, HR remained involved. Due to the difficult working
relationship between the two men, HR decided that Rodríguez-
Severino would be transferred to the Operational Excellence
Department ("OPEX"), a division of UTC, where he would continue to
work as a EH&S professional, but with a different supervisor. The
- 11 - transfer would give him an opportunity to improve his performance
as an EH&S professional, and would also give him a fresh start
with a new supervisor. Rodríguez-Severino maintained his same
salary and benefits in his new position but began working the first
shift. He continued to provide support to the EH&S department in
this role and at the time the lawsuit commenced, he was still an
employee of UTC.
F. Procedural History
Rodríguez-Severino brought this action in the District
of Puerto Rico in October 2017, alleging retaliation under
Title VII, 42 U.S.C. § 2000e–2 et seq., discrimination and
retaliation under USERRA, 38 U.S.C. § 4301 et seq., and violations
of Puerto Rico Law 115 ("Law 115"), P.R. Laws Ann. tit. 29, § 194a.
He received a right-to-sue letter on July 6, 2017 following the
filing of his third EEOC discrimination charge and filed the
complaint within the ninety-day period. On January 23, 2020,
following discovery, UTC moved for summary judgment. On July 31,
2020, the district court granted the motion for summary judgment
and dismissed the case with prejudice, finding that Rodríguez-
Severino failed to make a prima facie showing of retaliation, and
(in the alternative) failed to rebut UTC's explanations for why
the behavior in question was non-discriminatory in nature. The
district court emphasized that Rodríguez-Severino's opposition to
UTC's statement of uncontested material facts was noncompliant
- 12 - with Local Rule 56, with many of his attempts to deny or qualify
facts either being irrelevant or consisting of speculation,
generalities, improbable inferences, and conclusory assertions.
As such, the district court "rejected almost all of [Rodríguez-
Severino's] denials of [UTC's] proffered facts." Rodríguez-
Severino timely appealed.
II. Discussion
A. Local Rule 56
Rodríguez-Severino first argues on appeal that the
district court was incorrect when it concluded that his statement
in opposition to UTC's statement of uncontested material facts was
noncompliant with Local Rule 56 and alleges that he did properly
controvert UTC's factual allegations. Specifically, Rodríguez-
Severino asserts that the district court incorrectly disregarded
his citations to his EEOC charges which were made under penalty of
perjury.
1. Standard of Review
In the Local Rule 56 context, at the summary judgment
stage, "we review the district court's deeming order for abuse of
discretion." P.R. Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d 125,
130 (1st Cir. 2010) (citing CMI Capital Mkt. Inv., LLC, 520 F.3d
at 63). Owing to the district court's proximity to both the case
itself and the local rules, "[t]his entails 'a special degree of
deference . . . to [the] court's interpretation of its own local
- 13 - rules.'" Id. (second and third alterations in original) (quoting
Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir. 2004)).
2. Analysis
Local Rule 56 of the United States District Court for
the District of Puerto Rico requires that a motion for summary
judgment "be supported by a separate, short, and concise statement
of material facts, set forth in numbered paragraphs, as to which
the moving party contends there is no genuine issue of material
fact to be tried." D.P.R. Civ. R. 56(b). The party opposing the
motion for summary judgment must then "submit with its opposition
a separate, short, and concise statement of material facts. The
opposing statement shall admit, deny or qualify the facts
supporting the motion for summary judgment by reference to each
numbered paragraph of the moving party's statement of material
facts." Id. 56(c). The facts themselves must be supported by "a
citation to the specific page or paragraph of identified record
material supporting the assertion." Id. 56(e). Importantly, the
court may disregard facts if they are not supported by such a
citation. Id. Lastly, facts contained either in the supporting
or opposing statement of material facts if supported by record
citations "shall be deemed admitted unless properly controverted."
Id.
"When the nonmovant fails to comply with the standards
of Local Rule 56, 'a district court is free, in the exercise of
- 14 - its sound discretion, to accept the moving party's facts as
stated.'" Advanced Flexible Cirs., Inc. v. GE Sensing & Inspection
Techs. GmbH, 781 F.3d 510, 521 (1st Cir. 2015) (quoting Cabán
Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir.
2007)). Said rule, aptly referred to as an "anti-ferret rule," is
intended to protect the district court from ferreting through the
summary judgment record in search of disputed material facts and
prevent litigants from shifting that burden onto to the court.
CMI Capital Mkt. Inv., LLC, 520 F.3d at 62 ("The purpose of this
rule is to relieve the district court of any responsibility to
ferret through the record to discern whether any material fact is
genuinely in dispute."). We have emphasized before the importance
of following said local rule and have implored litigants to comply,
or ignore it "at their peril." Mariani-Colón v. Dep't of Homeland
Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007) (quoting
Cabán Hernández, 486 F.3d at 7).
In evaluating Rodríguez-Severino's challenge to the
district court's deeming order under Local Rule 56, we are mindful
that "Local Rule 56 is in service to Federal Rule of Civil
Procedure 56." Tropigas de P.R., Inc. v. Certain Underwriters at
Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011). Under Federal
Rule of Civil Procedure 56, "a party cannot successfully oppose a
motion for summary judgment by resting 'upon mere allegations or
denials of his pleading.'" Garmon v. Nat'l R.R. Passenger Corp.,
- 15 - 844 F.3d 307, 312 (1st Cir. 2016) (alteration in original) (quoting
Pina v. Child.'s Place, 740 F.3d 785, 795 (1st Cir. 2014)).
"[M]ere allegations are not entitled to weight in the summary
judgment calculus." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605
F.3d 1, 3 (1st Cir. 2010). The nonmoving party must instead
marshal sufficient evidence to show that a genuine issue of
material fact exists. Cherkaoui v. City of Quincy, 877 F.3d 14,
24 (1st Cir. 2017). "Like [Federal] Rule [of Civil Procedure] 56
itself, [Local Rule 56] makes clear that its focus is on facts,
not speculation or argumentation." Tropigas de P.R., 637 F.3d at
56-57. Moreover, "[u]nder federal law, an unsworn statement signed
under penalty of perjury may be used, in lieu of a sworn statement
or affidavit, to support or oppose a motion for summary judgment."
Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit
Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993) (citing 28 U.S.C.
§ 1746); accord Ramírez Rodríguez v. Boehringer Ingelheim Pharms.,
Inc., 425 F.3d 67, 82 (1st Cir. 2005).
The district court found that Rodríguez-Severino's
opposition to UTC's statement of uncontested material facts was
procedurally noncompliant with Local Rule 56 for several reasons.
First, the district court found that many of Rodríguez-Severino's
responses failed to contradict the proffered facts, included
extraneous and irrelevant details, and consisted of speculation
and conclusory assertions. Additionally, the district court found
- 16 - that many of the qualifications and denials were not properly
supported by a citation. Some had no record citation at all, while
others provided a citation to a document or regulation but "failed
to point to the relevant page and line" that supported the
assertion. Rodríguez-Severino's opposition also included his own
statement of 100 material facts not in controversy, as permitted
by Local Rule 56(c) ("The opposing statement may contain in a
separate section additional facts, set forth in separate numbered
paragraphs and supported by a record citation as required by
subsection (e) of this rule."). The district court rejected almost
all of these facts, finding that most were supported by allegations
contained in his complaint or citations to his EEOC charges, both
of which the court found consisted of allegations rather than
direct evidence. Finally, the district court disagreed with
Rodríguez-Severino's contention that, based on Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000), UTC cannot support
its statement of material facts with self-serving statements from
interested witnesses such as those UTC submitted from Cariño, Del
Toro, and HR Associate Director Myrna Vélez.
Here, we see no abuse of discretion in the district
court's conclusion that Rodríguez-Severino's opposition to the
statement of uncontested material facts filed by UTC in moving for
summary judgment was procedurally noncompliant with Local Rule 56.
Accordingly, we affirm the district court's decision to deem UTC's
- 17 - statement of material facts admitted. As the district court found,
some of Rodríguez-Severino's factual assertions did not actually
oppose the truth of the statement UTC offered, were unaccompanied
by "a citation to the specific page or paragraph of identified
record material supporting the assertion," D.P.R. Civ. R. 56(e),
or cited to a lengthy Federal Regulation without providing a more
specific location, see Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st
Cir. 2000) ("[F]ailure to present a statement of disputed facts,
embroidered with specific citations to the record, justifies the
court's deeming the facts presented in the movant's statement of
undisputed facts admitted." (emphasis added)). In addition, some
of Rodríguez-Severino's denials and qualifications cited to part
of the summary judgment record that were either not on point,
conclusory, or speculative.
We offer some examples to illustrate our conclusion,
drawn from Rodríguez-Severino's opposition to UTC's statement of
uncontested facts. At paragraph 69 of its statement of uncontested
facts, UTC stated that Cariño only learned of the specifics of the
internal ombudsman complaint and who had brought it after
Rodríguez-Severino filed his first EEOC charge in November of 2016.
Rodríguez-Severino denied this statement, citing to his ombudsman
complaint and his own statement of uncontested material facts.
But none of the information at these citations supports the fact
that Cariño knew of the ombudsman complaint and that Rodríguez-
- 18 - Severino had filed it before Cariño knew about the first EEOC
charge. His citation to the ombudsman complaint itself does not
establish that Cariño knew it was filed or who had filed it --
indeed, the ombudsman form states that it is a "confidential
communication channel." Rodríguez-Severino's citation to
paragraphs 32-56 of his own statement of material facts not in
controversy is also unsupportive. The facts in that section
recount Cariño's treatment of Rodríguez-Severino, the creation of
the third shift, and that Rodríguez-Severino informed Del Toro
that he had filed the ombudsman complaint, but they do not
establish that Cariño learned of Rodríguez-Severino's confidential
ombudsman complaint prior to the first EEOC charge.
Another example: At paragraph 90 of its statement of
uncontested material facts, UTC stated that Rodríguez-Severino was
given two weeks to consider his assignment to the third shift, and
during that time he did not discuss his transfer with Cariño or
inquire about the reasons for the creation of the third shift.
Rodríguez-Severino denied this fact, citing to his own statement
of material facts at paragraphs 34-54. Though these paragraphs
discuss the creation of the third shift and Rodríguez-Severino's
assignment to it, they do not provide any information about
conversations related to this assignment or inquiries regarding
the creation of a third shift.
- 19 - We offer a final example. At paragraph 63 of its
statement of uncontested material facts, UTC stated that Cariño
was not informed that someone had filed a complaint when he was
interviewed by HR, rather he was told that he was being interviewed
as part of an investigation. Rodríguez-Severino denied this fact,
citing only to his ombudsman complaint. This confidential,
internal complaint and the facts contained therein do not refute
UTC's contention that Cariño did not know he was being interviewed
because of a complaint filed against him.
The above examples illustrate how Rodríguez-Severino
failed to properly controvert UTC's statement of uncontested
facts. He thereby failed to comport with Local Rule 56 and oppose
the facts supporting UTC's motion for summary judgment. Based on
our thorough review of the record, we see no abuse of discretion
in the district court's ruling on this point.
Rodríguez-Severino also argues that the district court
was obliged under Local Rule 56 to accept citations to allegations
contained in his EEOC charges, to which he cites repeatedly in his
own statement of uncontested material facts under Local Rule 56(c).
Rodríguez-Severino, relying on Medfit Int'l, Inc., argues that
these unsworn statements were made under penalty of perjury and
therefore should have been given more credence by the district
court. See 982 F.2d at 689. Instead, the district court stated
that mere allegations are not evidence and cannot be used to defeat
- 20 - a summary judgment motion and ruled that Rodríguez-Severino needed
to bring forth direct evidence of his claims.4
Rodríguez-Severino is correct that he could choose to
rely on his own unsworn statements made under penalty of perjury
because this court will indeed recognize such a statement in lieu
of an affidavit in support of a motion for summary judgment. See
Ramírez Rodríguez, 425 F.3d at 82 ("unsworn statement under penalty
of perjury . . . is admissible for summary judgment purposes");
Medfit Int'l, Inc., 982 F.2d at 689 (unsworn written statement may
be given same weight as an affidavit when the requirements of 28
U.S.C. § 1746 -- statement signed "under penalty of perjury that
[the statements are] true and correct" -- are met). And for good
reason: The information set out in these statements would be
direct evidence if Rodríguez-Severino had rewritten the
information in the form of an affidavit and submitted the affidavit
with his opposition to UTC's motion for summary judgment or, if
this case went to trial, Rodríguez-Severino offered this
information as direct testimony. Rodríguez-Severino's statement
of undisputed facts did not rely on allegations from the complaint
he filed to initiate this federal action but on statements he
signed under penalty of perjury and submitted to the EEOC. As
As the district court noted, almost all of Rodríguez- 4
Severino's factual assertions in his own statement of material facts under Local Rule 56(c) cited to the EEOC charges he had filed.
- 21 - such, the district court should not have completely discounted
these documents as part of Rodríguez-Severino's opposition to
UTC's summary judgment motion and should have accepted his own
statement of material facts.
That said, the district court's error on this point does
not affect our conclusion that it did not abuse its discretion by
deciding to deem UTC's statement of undisputed facts to be
uncontroverted for the other reasons we discussed supra and because
Rodríguez-Severino failed to use these parts of the record to
properly controvert UTC's statement or, as we will soon discuss,
to identify any genuine issues of material fact about his Title
VII retaliation claim. See Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) ("Not every discrepancy in the proof is
enough to forestall a properly supported motion for summary
judgment; the disagreement must relate to some genuine issue of
material fact.").
Finally, we address a further argument Rodríguez-
Severino makes regarding UTC's statement of uncontested facts.
Relying on Reeves, he argues that the statements from Cariño, Del
Toro, and Vélez should not be allowed in support of UTC's motion
for summary judgment because they are an interested party and their
statements are therefore self-serving. In so arguing, Rodríguez-
Severino relies on the following passage from Reeves:
- 22 - Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."
530 U.S. at 151 (citation omitted) (quoting 9A C. Wright & A.
Miller, Federal Practice and Procedure § 2529 (2d ed. 1995)).
Nevertheless, we have already addressed this precise
argument in Dennis v. Osram Sylvania, Inc., 549 F.3d 851 (1st Cir.
2008). There, as here, the appellant argued that the district
court at the summary judgment stage should not have credited
certain declarations because the declarants were interested
parties. Id. at 856. In response, we held that the appellant
misread the scope of Reeves and explained that "[a]t summary
judgment we need not exclude all interested testimony,
specifically testimony that is uncontradicted by the nonmovant."
Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
271–72 (3d Cir. 2007)). Doing so, we acknowledged, would make it
impossible for employers to defend against retaliation claims,
especially at the second step of the burden-shifting framework
described infra. Id. As we concluded above, Rodríguez-Severino
failed to adequately controvert UTC's statement of uncontested
material facts and, like the appellant in Dennis, he reads Reeves
- 23 - too narrowly to compel the result he seeks. We decline to find an
abuse of discretion in the district court's decision.
B. Grant of Summary Judgment
We review a district court's grant or denial of summary
judgment de novo, examining the record in the light most favorable
to the nonmovant and drawing all reasonable inferences in that
party's favor. Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d
20, 25 (1st Cir. 2015). The party moving for summary judgment
must show that "there is no genuine dispute as to any material
fact" and that it "is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
a. Title VII Retaliation Claim
Rodríguez-Severino argues that the district court
erroneously denied his retaliation claim under Title VII. He
argues that the district court's conclusion that Cariño did not
know about his ombudsman complaint was erroneous and that the
actions taken against him following that complaint constituted
adverse employment actions. He contends that circumstantial
evidence from that time raises an inference that Cariño did know
about his complaint because they began treating him differently.
Finally, even relying only on Cariño's actions following the first
EEOC charge, when it was clear he knew that Rodríguez-Severino had
- 24 - filed a complaint against him, Rodríguez-Severino posits that the
district court erroneously concluded that there was no adverse
employment action during that period, relying primarily on
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53
(2006). Rodríguez-Severino, however, fails to challenge the
district court's conclusion that, even if he had made out a prima
facie case, he was unable to rebut the non-discriminatory reasons
provided by UTC for its actions against him. Instead, he trains
his briefing to us primarily on the components of his prima facie
case and why he has met them. Therefore, we likewise primarily
consider that aspect of the district court's ruling in our de novo
review.
"Title VII bars employers from retaliating against an
. . . employee because []he 'has opposed any practice made an
unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this
subchapter.'" Garayalde-Rijos v. Municipality of Carolina, 747
F.3d 15, 24 (1st Cir. 2014) (quoting 42 U.S.C. § 2000e–3(a)). We
utilize a familiar burden-shifting framework to evaluate
retaliation when direct evidence is lacking, as it is here. To
establish a prima facie case of retaliation, Rodríguez-Severino
must first show: "(1) []he engaged in protected conduct; (2) []he
suffered an adverse employment action; and (3) that a 'causal nexus
- 25 - exists between the protected [conduct] and the adverse action.'"
Id. (third alteration in original) (quoting Ponte v. Steelcase
Inc., 741 F.3d 310, 321 (1st Cir. 2014)). "Once the plaintiff
makes out this prima facie case, the burden shifts to the defendant
to articulate a legitimate, non-retaliatory explanation for its
actions." Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d
169, 175 (1st Cir. 2015). If the defendant is able to do so, the
burden then returns to the plaintiff "to show that the defendant's
explanation is a pretext for unlawful retaliation." Id.
The district court, relying on its assessment of the
uncontested facts, first found that Rodríguez-Severino was unable
to rebut UTC's assertion that Cariño was unaware that Rodríguez-
Severino had filed the complaint with the ombudsman's office.
Therefore, for purposes of retaliation, the district court found
that Cariño did not know that Rodríguez-Severino had filed a
complaint until November 2016 when he made his first EEOC charge.
The district court further held that even if Cariño was aware of
the earlier complaints, there was not sufficient evidence of a
hostile work environment to rise to the level of an adverse
employment action and, even assuming Rodríguez-Severino could make
out a prima facie case of retaliation, UTC has proffered an
adequate, non-retaliatory reason for its actions. Moreover, the
district court found that none of UTC's actions toward Rodríguez-
Severino following the first EEOC charge in November 2016, which
- 26 - Cariño was aware of and which unquestionably constitutes protected
conduct, constituted adverse employment actions. The court thus
concluded that Rodríguez-Severino could not make out a prima facie
case of retaliation.
As a threshold matter, for us to consider any of Cariño's
actions before November 2016, Rodríguez-Severino must show that
Cariño was aware of his ombudsman complaint "[b]ecause 'one cannot
have been motivated to retaliate by something he was unaware of.'"
Delaney v. Town of Abington, 890 F.3d 1, 6 (1st Cir. 2018) (quoting
Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013)).
Rodríguez-Severino asserts on appeal that due to the nature of the
investigation, it was not difficult for Cariño to determine who
had filed the confidential complaint. He alleges this is so
because the training where the inappropriate comment was made was
given to ten employees and only five were interviewed as part of
the investigation, including Cariño, and that Rodríguez-Severino
himself was not interviewed. Even drawing all reasonable
inferences in favor of Rodríguez-Severino, we cannot agree with
the assertion that Cariño would have known Rodríguez-Severino
filed the complaint. There were four other employees apart from
Rodríguez-Severino present at the training that were not
interviewed and easily could have been the complainant. Moreover,
it is undisputed that Rodríguez-Severino did not tell anybody that
he had filed the ombudsman complaint until June of 2016, when he
- 27 - voluntarily told Del Toro. Del Toro did not share this information
with anyone else, and Rodríguez-Severino did not tell anyone else
about the ombudsman complaint. Therefore, we agree with the
district court that Cariño was not aware of the ombudsman complaint
and only became aware of any complaint in November 2016, when
Rodríguez-Severino filed his first EEOC charge. Accordingly, any
actions taken by Cariño prior to the first EEOC charge in November
2016 do not constitute retaliation, as one cannot retaliate without
any knowledge of the protected activity. See Delaney, 890 F.3d at
6.
With this time frame squarely in mind, we turn to the
requirements to make out a prima facie case for retaliation:
First, protected activity. Neither party disputes that the EEOC
charge constituted protected activity. Therefore, we move to the
second prong of the prima facie case: whether Rodríguez-Severino
suffered an adverse employment action as a result of said protected
conduct. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir.
2002).
Examples of adverse employment actions include
"demotions, disadvantageous transfers or assignments, refusals to
promote, unwarranted negative job evaluations, and toleration of
harassment by other employees." Id. We measure whether an action
was adverse using an objective standard, Blackie v. Maine, 75 F.3d
716, 725 (1st Cir. 1996), and accordingly "the mere fact that an
- 28 - employee is displeased by an employer's act or omission does not
elevate that act or omission to the level of a materially adverse
employment action." Id. "[A] plaintiff may satisfy this
requirement by showing 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.'"'" Morales-Vallellanes
v. Potter, 605 F.3d 27, 36 (1st Cir. 2010) (quoting Burlington N.,
548 U.S. at 64).
In his briefing on the issue, Rodríguez-Severino claims
the following were adverse employment actions taken against him,
primarily by Cariño: (1) The creation of a new third shift by
Cariño, to which Rodríguez-Severino was the only assigned employee
and his alleged corresponding deprivation of training
opportunities and ability to continue working on certain projects;
(2) Cariño's attitude towards Rodríguez-Severino, shown through
discrete actions such as his responses to Rodríguez-Severino's
requests for time off and not permitting Rodríguez-Severino to
return until he had the appropriate documentation; and (3) his
eventual transfer to OPEX where he alleged that he was no longer
able to grow as an EH&S professional.
As to Rodríguez-Severino's transfer to the third shift,
he cannot surmount the hurdle that we have already identified. He
was transferred to the third shift in June 2016, but we have
- 29 - already established supra that Cariño, the alleged retaliator, did
not know about Rodríguez-Severino's ombudsman complaint and was
unaware that Rodríguez-Severino had made any complaint against him
until November 2016 when the first EEOC charge was filed.
Therefore, the transfer to the third shift cannot constitute
retaliation for Rodríguez-Severino's complaint since Cariño was
not aware of it. See Delaney, 890 F.3d at 6.
As to the other alleged adverse employment actions which
took place after the filing of the first EEOC charge, Cariño's
general treatment of Rodríguez-Severino and Rodríguez-Severino's
eventual transfer to OPEX, we agree with the district court that
they do not constitute adverse employment actions under our
jurisprudence. "The antiretaliation provision protects an
individual not from all retaliation, but from retaliation that
produces an injury or harm." Burlington N., 548 U.S. at 67; see
also Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 40
(1st Cir. 2011) ("To establish an adverse employment action,
[plaintiff] must show []he suffered material harm."). Here,
Rodríguez-Severino has failed to establish the requisite material
harm needed for an adverse employment action. The adverse action
must carry with it "tangible consequences." See Bhatti v. Trs. of
Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011). Rodríguez-Severino
did not establish any material harm or tangible consequences from
Cariño's alleged treatment of him or his transfer to OPEX. Indeed,
- 30 - his transfer to OPEX led to a new supervisor, as well as the
ability to work the first rather than the third shift. Rodríguez-
Severino claims, without tangible proof, that his transfer to OPEX
affected his ability to progress as an EH&S professional. This
allegation, without more, does not suffice to establish material
harm. See Colón-Fontánez, 660 F.3d at 40-41 ("This conclusory
allegation [that lack of training would affect plaintiff's
progress as a professional] is not sufficient for purposes of
establishing a 'significant, not trivial, harm' that rises above
mere 'inconvenience.'" (quoting Carmona-Rivera v. Puerto Rico, 464
F.3d 14, 20 (1st Cir. 2006))).
Cariño's actions towards Rodríguez-Severino did not
carry tangible consequences. Rodríguez-Severino did not proffer
evidence that he had been disciplined or reprimanded by Cariño.
"Rather, each [action] was merely directed at correcting some
workplace behavior that management perceived as needing
correction." Bhatti, 659 F.3d at 73. Based on UTC's uncontested
statement of material facts, many of Cariño's actions towards
Rodríguez-Severino were brought about by the latter's shortcomings
in his work and the need to correct them. Without said
consequences, Rodríguez-Severino's retaliation claim cannot
succeed as UTC's actions towards him cannot qualify as adverse
employment actions.
- 31 - The Supreme Court has cautioned that Title VII "does not
set forth 'a general civility code for the American workplace.'"
Burlington N., 548 U.S. at 68 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998)). Accordingly, Title VII
antiretaliation law does not protect an "employee from those petty
slights or minor annoyances that often take place at work and that
all employees experience." Id. Rodríguez-Severino did not bring
forth sufficient evidence at the summary judgment stage to
establish that he suffered any adverse employment action at the
hands of UTC. Therefore, we agree with the district court that he
is unable to make out a prima facie case for retaliation under
Title VII. Necessarily, then, his appeal must fail.
b. Puerto Rico Law 115 Claim
Rodríguez-Severino notes briefly -- in one sentence --
that the dismissal of his supplemental claims under Puerto Rico
Law 115 should be vacated and remanded for the same reasons and
analysis as his Title VII retaliation claims. Substantively, Title
VII antiretaliation law and the antiretaliation provisions under
Puerto Rico Law 115 largely overlap. Rivera-Rivera v. Medina &
Medina, Inc., 898 F.3d 77, 97 (1st Cir. 2018). Given the symmetry
between the antiretaliation provisions under Title VII and Puerto
Rico Law 115, we affirm the dismissal of Rodríguez-Severino's
Puerto Rico antiretaliation law claims for much the same reasons
as we affirmed the dismissal of his Title VII claims. See Bonilla-
- 32 - Ramirez v. MVM, Inc., 904 F.3d 88, 96-97 (1st Cir. 2018) ("[A]s
[appellant] makes no argument that [his] Puerto Rico law claims
survive if [his] Title VII claims do not, we affirm the District
Court's summary judgment ruling dismissing [appellant's] claims
[under] . . . Puerto Rico Law 115 . . . ."). Furthermore, even if
Rodríguez-Severino's Law 115 claim does survive the dismissal of
the Title VII retaliation claim, we consider it waived for lack of
any meaningful development, as Rodríguez-Severino does not address
said claim apart from one sentence at the conclusion of his brief.
See 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.").
III. Conclusion
The judgment of the district court is
AFFIRMED. Each party to bear its own costs.
- 33 -