Sheridan v. Centerra Group, LLC

106 F.4th 101

• Court: Court of Appeals for the First Circuit
• Decided: June 28, 2024
• Docket: 22-1536
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1536

WILLIAM RIOS,

Plaintiff, Appellant,

v.

CENTERRA GROUP LLC,

Defendant, Appellee.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Rikelman, Hamilton,* and Thompson, Circuit Judges.

José G. Fagot Díaz, with whom Manuel E. Lopez Fernandez was on brief, for appellant.

Juan Felipe Santos, with whom Ana B. Rosado-Frontanés was on brief, for appellee.

June 28, 2024

* Of the Seventh Circuit, sitting by designation. HAMILTON, Circuit Judge. Plaintiff-Appellant William

Rios worked for Defendant-Appellee Centerra Group, LLC as a

part-time security guard for several United States Coast Guard

facilities in Puerto Rico. One morning, a supervisor found Rios

asleep at his post, which was grounds for termination under company

policy. Centerra fired Rios a few days later. Rios has diabetes.

He has sued Centerra alleging violations of the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213 (2009). His

central theory is that he had an episode of hypoglycemic shock

causing him to fall asleep on the job, and so Centerra should have

forgiven him and accommodated his disability. This theory is not

what Rios told Centerra at the time, but even giving him the

benefit of conflicting evidence, he has not presented any evidence

that Centerra knew when it fired him that he suffered a

hypoglycemic episode. We affirm the district court's grant of

summary judgment to Defendant-Appellee Centerra.

I. FACTUAL AND PROCEDURAL BACKGROUND

We recount the below facts "in the light most favorable

to [Rios] (the nonmovant), resolving all reasonable inferences in

his favor, consistent with record support." Brader v. Biogen Inc.,

983 F.3d 39, 44 (1st Cir. 2020); see also, e.g., Rodríguez-Severino

v. UTC Aerospace Systems, 52 F.4th 448, 453 (1st Cir. 2022).

- 2 - A. CENTERRA AND RIOS'S SECURITY GUARD POSITION

Centerra provides armed security guard services for the

United States Coast Guard facilities in Aguadilla, Puerto Rico.

Rios was hired by Centerra as an armed security guard on September

14, 2018. He worked on an "as needed" basis and was supervised by

Lieutenant William López and Sergeant Gerald Ramos. They both

reported to Captain Víctor Caraballo. Rios was assigned to

security guard posts at various locations around the Coast Guard

facilities, including a shopping center, a school, and an aircraft

hangar. He also would occasionally work a "meal break" shift,

which involved covering posts temporarily while other security

guards took their meal breaks. During these shifts, Rios would

drive his car between various posts to relieve other guards. Rios

has briefed a long series of incidents during his work for

Centerra, but we recount only those at least arguably relevant to

the appeal.

B. FRICTION ON THE JOB

According to Rios, when he was hired he orally told

Captain Caraballo of various medical ailments, including his

diabetes. There is no evidence in the record that Captain

Caraballo ever informed other Centerra officials of these

conditions when Rios was hired.

The first incident Rios recounts took place on October

19, 2018. Rios was changing his clothes and checking his blood

- 3 - sugar levels in the bathroom of a building used by guards for rest.

Rios claims that when he came out of the bathroom, he saw Sergeant

Ramos with his ear pressed to a wall in the hallway in what Rios

assumed was an attempt to spy on him. Sergeant Ramos then

chastised Rios, telling him he was not allowed to sleep while on

duty. He also admonished Rios for walking around the rest house

in what Sergeant Ramos thought was Rios's underwear, although Rios

testified in his deposition that it was a pair of shorts.

On October 24, 2018, Rios complained orally to

Lieutenant López about the rest house incident, explaining that he

believed Sergeant Ramos handled the situation unprofessionally.

Lieutenant López told Rios that he should not use the guard rest

house bedroom to change his clothes.1

Next, in early November, Rios needed to change clothes

for his shift and decided to park in one of the four temporary and

visitor parking spots next to the guard rest house. Sergeant Ramos

told Rios that he could not park in those spots. Rios moved his

car to park in a different lot farther from the rest house.

On November 15, 2018, Rios claims that Sergeant Ramos

was "spying" on him while he was on duty. Rios was working at the

school post when his radio malfunctioned. Sergeant Ramos offered

1 The record is unclear about whether Rios's supervisors thought he had been using the bedroom or the bathroom, but the uncertainty is not material to this appeal.

- 4 - to bring him a new battery. Earlier, while Rios had been doing

rounds on his shift, he testified that another security guard

warned him to move his car to a new location, because with that

day's rain the car was likely to get stuck where Rios normally

parked. While Rios was moving his car, he received a telephone

call about a family emergency. While Rios was on the telephone in

his car, Sergeant Ramos approached Rios's post from the back

entrance. Rios could not see Sergeant Ramos approaching from that

direction. He perceived this as an attempt by Sergeant Ramos to

"spy" on him. Sergeant Ramos scolded Rios for abandoning his post

to sit in his car on the telephone. Rios, however, did not face

any formal discipline for this incident.

Sometime in mid to late November 2018, Rios met with

Captain Caraballo and Lieutenant López to discuss both the October

19th and November 15th incidents. Rios testified that Captain

Caraballo was "very impartial" during the meeting. At the end of

the meeting, Lieutenant López warned Rios to get his facts straight

if he was going to file a complaint.

In mid December 2018, Rios was again working at the

school post. He was eating a snack when Sergeant Ramos approached

and scolded him for eating while on duty. In response, Rios told

Sergeant Ramos that he was diabetic and needed to eat in order to

maintain his blood sugar levels. Rios testified that this was the

first time he had told Sergeant Ramos about his diabetes. Notably,

- 5 - Rios also testified that, despite this admonition, security

officers were allowed to consume snacks while at post and that

Rios continued to do so himself after this incident without any

further scolding. In fact, Lieutenant López often encouraged Rios

to get a drink or a snack while on duty.

On December 19, 2018, Rios was working a "meal break"

shift. Sergeant Ramos told Rios to park his car in a new employee

lot. When Rios started his shift at the shopping center post, he

drove in through what was really the exit to the parking area.

Sergeant Ramos reprimanded him for doing so. At the end of his

shift that day, Rios overheard Sergeant Ramos telling another

employee that Rios was "problematic."

The next day, on December 20, 2018, Rios submitted his

first written grievance. He described both Sergeant Ramos's

reprimand for entering the post through the exit and Ramos's

comment that Rios was "problematic." The grievance asked that

Sergeant Ramos "learn to confront situations more professionally

[and] respectfully."

Also on December 20th, Rios was again working a "meal

break" shift. Rios testified that Ramos instructed him to work

more quickly to cover six different posts for twenty-minute

increments each. As Rios moved between posts in his car, he saw

Sergeant Ramos following behind him in a vehicle as well. Rios

again interpreted this as Sergeant Ramos "spying" on him.

- 6 - At the second post of Rios's shift, Sergeant Ramos

approached and offered him a doughnut. Rios interpreted Sergeant

Ramos's offer as mocking because he was grinning. Rios believed

it was disrespectful for Sergeant Ramos to offer him unhealthy

foods that he is not able to eat. Rios told Sergeant Ramos that

offering him a doughnut was like offering him poison, and Rios

then walked away.

On December 22, 2018, Rios submitted a second written

grievance discussing the December 20th "spying" and doughnut

incidents. Rios also repeated his complaint about overhearing

Sergeant Ramos telling another employee that Rios was a

"problematic person." He also accused Sergeant Ramos of failing

to answer radio calls for assistance in a timely manner.

Sometime in late December 2018 or early January 2019,

Rios met with Captain Caraballo and a Centerra human resources

officer. The human resources officer explained that Centerra had

concluded its investigation into all the incidents in Rios's two

written grievances. Rios brought up his medical conditions,

including his diabetes. At that point, the human resources officer

asked Captain Caraballo to give Rios a form for his doctor to

determine if Rios qualified for reasonable accommodations.

Captain Caraballo did not give the form directly to Rios but

instead left it at one of the guard posts to be picked up. Rios

did not follow up about the form. During the meeting, Rios never

- 7 - requested a specific accommodation. He later testified that he

wanted to be able to eat at post without being reprimanded.

In early February 2019, Sergeant Ramos organized an

off-duty shooting practice that Rios attended. Rios testified

that during this outing, Sergeant Ramos ignored him and did not

provide him with any tips or pointers. Instead, a different

officer provided Rios with instruction during the practice.

C. FINAL SHIFT AND TERMINATION

On February 23, 2019, Rios was working a shift at the

airplane-hangar post. Lieutenant López stopped by to see if Rios

needed a break. Rios responded that everything was fine. About

an hour later, Lieutenant López returned to the post to give Rios

his meal break. He saw that Rios appeared to have dozed off while

on duty. Rios woke up after a few moments. He first told

Lieutenant López that he had been writing and reading. Lieutenant

López began to reprimand Rios for falling asleep at post, a breach

of company policy. Rios responded that he had lost better jobs

before. Rios testified that he eventually told Lieutenant López

that he "dozed off into an unconscious state." Rios was relieved

of duty and sent home. That same day, Lieutenant López wrote and

submitted an incident report recommending that Rios be fired for

falling asleep on duty. Rios was not assigned any additional

shifts while the incident was investigated.

- 8 - Centerra's internal investigation concluded that Rios

had fallen asleep at post. Under company policy, that was a

sufficient reason to fire him. Centerra formally terminated Rios's

employment on March 2, 2019.

D. LAWSUIT AND APPEAL

Rios and his wife filed this lawsuit against Centerra

alleging that Centerra discriminated against Rios because of his

disability, failed to provide him with a reasonable accommodation,

subjected him to a hostile work environment in violation of the

ADA and Puerto Rico law, and unlawfully retaliated against Rios in

violation of the ADA and Puerto Rico Law. The district court

granted summary judgment to Centerra on all claims. On appeal,

Rios is the only appellant. He challenges the following decisions

of the district court:

(1) Grant of summary judgment on ADA discrimination claim;

(2) Grant of summary judgment on ADA claim for failure to provide a reasonable accommodation;

(3) Grant of summary judgment on ADA claim for hostile work environment;

(4) Grant of summary judgment on ADA claim for retaliation; and

(5) Denial of Rios's Federal Rule of Civil Procedure 56(d) motion seeking additional discovery to respond to the motion for summary judgment.

- 9 - We discuss these challenges in turn.2

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary

judgment. Brader v. Biogen Inc., 983 F.3d 39, 53 (1st Cir. 2020).

Summary judgment is proper if "there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a). If Rios "can point to

record evidence allowing a reasonable jury to return a verdict in

his favor, then we would say there is a genuine dispute of material

fact and the district court erroneously granted summary judgment."

Snell v. Neville, 998 F.3d 474, 486 (1st Cir. 2021). However,

"[t]he nonmovant cannot rely on 'conclusory allegations,

improbable inferences, and unsupported speculation.'" Brader, 983

F.3d at 53 (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896

F.2d 5, 8 (1st Cir. 1990)).

III. ADA DISCRIMINATION CLAIM

"The ADA prohibits an employer from discriminating

against an otherwise qualified individual based on a real or

perceived disability." Murray v. Warren Pumps, LLC, 821 F.3d 77,

83 (1st Cir. 2016) (citing 42 U.S.C. §§ 12102 & 12112 and 29 C.F.R.

§ 1630.2). "The plaintiff bears the burden of presenting evidence

2 On appeal, Rios does not raise any claims arising under Puerto Rico law. We consider only the federal claims he has briefed.

- 10 - to establish each element under the particular theory of disability

discrimination alleged." Id.

Rios has not offered direct evidence of discriminatory

animus. He relies instead on the familiar McDonnell Douglas

burden-shifting framework to analyze his claim. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–07 (1973). At the first

stage of this framework, the plaintiff bears the burden of showing

a "prima facie case of discrimination." Miceli v. JetBlue Airways

Corp., 914 F.3d 73, 81 (1st Cir. 2019). To establish a prima facie

case, Rios must offer evidence that he had a disability but that

he was "nonetheless qualified to perform the essential functions

of the job, with or without reasonable accommodation; and that,

despite the foregoing," Centerra dismissed him or otherwise

adversely affected him, in whole or in part because of his

disability. See id.; see also López-López v. Robinson School, 958

F.3d 96, 104 (1st Cir. 2020).

If Rios establishes a prima facie case of

discrimination, the burden then shifts to Centerra to offer a

legitimate, non-discriminatory reason for the termination or other

adverse action. See Brader v. Biogen Inc., 983 F.3d 39, 55 (1st

Cir. 2020). "The employer's burden is not a burden of persuasion;

the employer need do no more than articulate a reason which, on

its face, would justify a conclusion that the plaintiff was let go

- 11 - for a nondiscriminatory motive." Dávila v. Corporación De Puerto

Rico Para La Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007).

If the employer provides such a reason, we have

explained, "the sole remaining issue is discrimination vel non."

Brader, 983 F.3d at 55 (quoting Ray v. Ropes & Gray LLP, 799 F.3d

99, 113 (1st Cir. 2015)). To avoid an entry of summary judgment

against him, Rios must offer evidence that would allow a reasonable

jury to find "that the employer's proffered reason is pretextual

and that the actual reason for the adverse employment action is

discriminatory." Johnson v. Univ. of Puerto Rico, 714 F.3d 48, 54

(1st Cir. 2013).

Here, the parties at least assume for purposes of summary

judgment and appeal that Rios had a disability within the meaning

of the ADA. They dispute whether he was a qualified individual

with a disability, including whether he could perform the essential

functions of a security guard with or without reasonable

accommodations. For purposes of this appeal, however, we assume

without deciding that Rios was a qualified individual and has

satisfied that aspect of his prima facie discrimination claim.3

3 As a matter of common sense, it seems to us, staying awake on the job looks like an essential function of working as a security guard. At the same time, one might also argue that an employer could provide reasonable accommodations that would prevent a diabetic employee from experiencing hypoglycemic shock while on duty, which is what Rios testified caused him to fall

- 12 - Rios argues that several incidents in addition to his termination

amounted to adverse employment actions. As we explain next, only

the termination amounted to an adverse action.

A. ADVERSE ACTION

"An 'adverse employment action' is one that 'affect[s]

employment or alter[s] the conditions of the workplace.'"

Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010)

(quoting Burlington Northern & Sante Fe Railway Co. v. White, 548

U.S. 53, 61–62 (2006)). For employment discrimination claims, a

plaintiff need not show he suffered "significant" harm for an

incident to represent an adverse employment action. See Muldrow

v. City of St. Louis, 601 U.S. ___, ___, 144 S. Ct. 967, 974

(2024). However, Rios must at least offer evidence of a change in

the terms or conditions of his employment that left him worse off.

Id. at 974, 976–77.4

asleep at his post. Because the district court assumed that Rios was a qualified individual under the ADA for purposes of deciding the motion for summary judgment, Sheridan v. Centerra Group, LLC, No. 19-2036, 2022 WL 1751187, at *5 (D.P.R. May 31, 2022), we too bypass this issue. 4 Muldrow was a Title VII sex-discrimination case challenging a job transfer, but its reasoning extends to an ADA discrimination claim challenging discrimination affecting the "terms or conditions" of employment. The relevant statutory language in Title VII and the ADA is virtually identical. Compare 42 U.S.C. § 2000e-2(a)(1) (Title VII) ("It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or

- 13 - Rios argues that he experienced adverse employment

actions when supervisors told him not to eat at his post, not to

park his car in the spots near the guard rest house, and not to

use the guard rest house bedroom to change his clothes. None of

these incidents resulted in any formal discipline. In fact, Rios

testified his supervisors continued to allow him to eat at his

post despite the one admonition for that activity. App. 510,

634–35. A mere admonition by a supervisor without any formal

consequences is not an adverse employment action because it does

not represent any disadvantageous change in the terms or conditions

of the plaintiff's employment. See Muldrow, 601 U.S. at __, 144

S. Ct. at 974 (explaining that an employment discrimination

plaintiff "must show some harm respecting an identifiable term or

condition of employment").

Rios also asserts that a supervisor's failure to provide

him with any pointers at an off-duty practice session at a shooting

range was an adverse employment action. We cannot agree. Even

privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . ."), with 42 U.S.C. § 12112(a) (ADA) ("No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."). Additionally, in evaluating ADA discrimination cases, this Court previously has applied the same legal standards used to analyze discrimination under Title VII. See, e.g., Cherkaoui v. City of Quincy, 877 F.3d 14, 25–26 (1st Cir. 2017).

- 14 - under Rios's version of the facts, another officer offered him

some pointers. This incident is not the stuff of federal

employment discrimination law. In Muldrow, the Court pointed to

transfers to a new worksite in a wind tunnel, requiring overnight

work, and a reduction in supervising duties as harms that would

constitute an adverse action. 601 U.S. at ___, 144 S. Ct. at

975. By contrast, even though Rios identifies this "pointers"

incident as disparate treatment on account of his disability, what

he describes is not "some harm" that left him "worse off." Id. at

974.

Termination, however, is of course the quintessential

adverse employment action. See, e.g., Brader, 983 F.3d at 54–55.

Rios thus established a prima facie discrimination claim for his

termination for reportedly sleeping on the job.

B. LEGITIMATE, NON-DISCRIMINATORY REASON

Centerra asserts that it fired Rios for falling asleep

on the job. Its company policy says that sleeping on duty is

grounds for termination. App. 678. The contemporaneous incident

report of Lieutenant López recommended firing Rios for falling

asleep on duty. App. 667–69. Centerra thus met its burden of

articulating a legitimate, non-discriminatory reason for

termination. See Brader, 983 F.3d at 55.

- 15 - C. PRETEXT

"In assessing pretext, our focus must be on the

perception of the decisionmaker, that is, whether the employer

believed its stated reason to be credible." Brader, 983 F.3d at

56 (alterations omitted) (quoting Vélez v. Thermo King de Puerto

Rico, Inc., 585 F.3d 441, 452 (1st Cir. 2009)). It is "not enough

for a plaintiff merely to impugn the veracity of the employer's

justification; he must elucidate specific facts which would enable

a jury to find that the reason given is not only a sham, but a

sham intended to cover up the employer's real and unlawful motive

of discrimination." Id. (alteration omitted) (quoting Vélez, 585

F.3d at 452). Further, "a false justification is no sham at all

unless the employer knows it to be false." Joseph v. Lincare,

Inc., 989 F.3d 147, 160 (1st Cir. 2021).

Here, Rios has failed to create a dispute of material

fact regarding whether Centerra knew its stated,

non-discriminatory reason for Rios's termination was false. Rios

testified in his deposition, long after the event, that he was

rendered unconscious at his post due to a sudden onset of

hypoglycemic shock. App. 553, 557. He has offered no medical

evidence to support this theory, but even if we accept it as true,

at the time of the investigation into the sleeping incident and

his firing, the record shows that Rios told Centerra officials

that he simply fell asleep or alternatively that he dozed off

- 16 - because he felt dizzy and sick. App. 668, 671–72. This is not

enough to create a dispute of material fact about pretext.

Rios also attempts to create a dispute of material fact

regarding pretext by asserting that he was treated differently

than similarly situated employees who did not have disabilities.

See Kosereis v. Rhode Island, 331 F.3d 207, 214 (1st Cir. 2003)

(explaining that a plaintiff can demonstrate an employer's reason

is pretextual by showing plaintiff was treated differently than

similarly situated employees). To do so, he must show "that others

similarly situated to him in all relevant respects were treated

differently by the employer." Id. (quoting Conward v. Cambridge

School Comm., 171 F.3d 12, 20 (1st Cir. 1999)). Plaintiffs can

demonstrate pretext through evidence of "weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action [such] that a reasonable factfinder could rationally

find them unworthy of credence and hence infer that the employer

did not act for the asserted non-discriminatory reasons." Brader,

983 F.3d at 56 (quoting Adamson v. Walgreens Co., 750 F.3d 73, 79

(1st Cir. 2014)). In opposing a motion for summary judgment,

however, a plaintiff must offer admissible evidence. See Fed. R.

Civ. P. 56(c). The comparators Rios relies upon do not give rise

to a genuine issue of material fact. Either they were not

- 17 - similarly situated or his evidence amounts to only office gossip

outside the personal knowledge of a testifying witness.

First, Rios says that an Officer Torres suffered an

epileptic attack while on duty but was not fired. This supposedly

occurred before Rios began working at Centerra. Rios says he was

told about the incident by two other Centerra employees. This

incident is not in Rios's personal knowledge. His account of an

event he heard about secondhand is inadmissible and does not raise

a genuine dispute of material fact. See Fed. R. Evid. 602 ("A

witness may testify to a matter only if evidence is introduced

sufficient to support a finding that the witness has personal

knowledge of the matter."); Fed. R. Civ. P. 56(c)(4) ("declaration

used to support or oppose a motion [for summary judgment] must be

made on personal knowledge, set out facts that would be admissible

in evidence, and show that the . . . declarant is competent to

testify on the matters stated").

Finally, Rios asserts that an Officer González fell

asleep on duty twice but was only suspended, not fired. Again,

Rios explains that he was told about these incidents by another

Centerra employee, Orlando Valentín. Rios was not certain whether

even Valentín had personal knowledge of the alleged González

incidents. An official incident report regarding Officer González

was produced, but this document only shows that González was

reprimanded for "[b]eing inattentive to duty but not asleep."

- 18 - (Emphasis added.) Rios has not offered any admissible evidence

showing that González was a valid comparator for his own falling

asleep on duty.

Rios has failed to provide any "'minimally sufficient

evidence' of pretext and a discriminatory animus" and thus has

failed to create a genuine dispute of material fact on the issue

of pretext. See Brader, 983 F.3d at 58 (quoting Pearson v.

Massachusetts Bay Transp. Auth., 723 F.3d 36, 40 (1st Cir. 2013)).

Because Rios failed to present evidence from which a reasonable

jury could find that Centerra held a discriminatory animus toward

him based on his disability, he has failed to satisfy his burden

of production on pretext. See id. We affirm the district court's

grant of summary judgment to Centerra on Rios's discrimination

claim.

IV. ADA REASONABLE ACCOMMODATION CLAIM

Rios also claims that Centerra violated the ADA by

failing to provide a reasonable accommodation for his disability.

The ADA defines unlawful discrimination to include an employer's

failure to make "reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual with a

disability who is an applicant or employee, unless [the employer]

can demonstrate that the accommodation would impose an undue

hardship on [its] operation of the business." Ortiz-Martínez v.

Fresenius Health Partners, PR, LLC, 853 F.3d 599, 604 (1st Cir.

- 19 - 2017) (alterations in original) (quoting 42 U.S.C.

§ 12112(b)(5)(A)).

To avoid summary judgment on this claim, Rios needed to

offer evidence that (1) he requested an accommodation or the

employer otherwise knew one was needed, (2) the accommodation would

have allowed him to perform the essential functions of his job,

and (3) the accommodation was facially reasonable. See Echevarría

v. AstraZeneca Pharmaceutical LP, 856 F.3d 119, 127 (1st Cir. 2017)

("The plaintiff bears the burden of showing the existence of a

reasonable accommodation."); Ortiz-Martínez, 853 F.3d at 605 ("The

burden is on [plaintiff] to demonstrate in the first instance what

specific accommodations []he needed and how those accommodations

were connected to h[is] ability to work."); Murray v. Warren Pumps,

LLC, 821 F.3d 77, 84 (1st Cir. 2016) ("An employer is obligated to

provide a reasonable accommodation (as long as it is not unduly

burdensome) where a protected employee has requested an

accommodation or the employer otherwise knew that one was

needed."). "The employee's request must be 'sufficiently direct

and specific,' giving notice that []he needs a 'special

accommodation.'" Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261

(1st Cir. 2001) (quoting Wynne v. Tufts Univ. School of Medicine,

976 F.2d 791, 795 (1st Cir. 1992)).

Rios testified that he never requested a specific

accommodation from Centerra. His best evidence is that he referred

- 20 - to his diabetes in a meeting with an official from Centerra's human

resources and Captain Caraballo. Centerra said it would furnish

Rios with a form for his doctor so that the company could determine

what accommodations, if any, were needed. At that point, Captain

Caraballo did not provide the form directly to Rios, but instead

left it at one of the guard posts for him to pick it up. Rios

never followed up with Caraballo regarding the forms, nor did he

ever provide Centerra with medical documentation regarding his

disability.

For the sake of argument, we will assume that Rios's

meeting with the human resources officer and Captain Caraballo

triggered Centerra's duty to engage in an interactive process.

See Ortiz-Martínez, 853 F.3d at 605 (explaining that an employee's

request for an accommodation can sometimes impose a duty on the

employer to engage in an interactive process); see also 29 C.F.R.

§ 1630.2(o)(3) (noting need for interactive process). Both an

employer and employee have a duty to participate in the interactive

process. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,

23–24 (1st Cir. 2004).

Here, the interactive process between Rios and Centerra

seems to have broken down almost immediately. "Where a breakdown

in the process has been identified, 'courts should look for signs

of failure to participate in good faith or failure by one of the

parties to make reasonable efforts to help the other party

- 21 - determine what specific accommodations are necessary.'" Enica v.

Principi, 544 F.3d 328, 339 (1st Cir. 2008) (quoting Beck v. Univ.

of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)).

In particular, a party who fails to communicate may be acting in

bad faith, and if the "missing information is of the type that can

only be provided by one of the parties, failure to provide the

information may be the cause of the breakdown and the party

withholding the information may be found to have obstructed the

process." Beck, 75 F.3d at 1136.

Information about Rios's medical conditions is both the

type of information available only to Rios and necessary for

Centerra to determine what reasonable accommodations he might have

needed. See Ortiz-Martínez, 853 F.3d at 605–06 (explaining that

requesting specific information regarding medical conditions is

both reasonable and critical to determining accommodations

needed). The undisputed evidence shows that, rather than failing

to engage in an interactive process, Centerra itself initiated

that process. The process then stalled as management waited for

relevant medical information that could come only from Rios. As

soon as it was brought to Centerra's attention that Rios had not

ever received the relevant form, Captain Caraballo clarified its

location less than twenty-four hours later. Rios took no further

action after that to provide the medical information necessary to

determine a reasonable accommodation.

- 22 - With undisputed evidence showing that Rios never

requested a specific accommodation and that Centerra did not fail

to participate in an interactive process in good faith, we affirm

the grant of summary judgment to Centerra on Rios's reasonable

accommodation claim.

V. ADA HOSTILE WORK ENVIRONMENT CLAIM

Rios also contends he was subject to a hostile work

environment as a result of his disability. To prove a hostile

environment based on disability, a plaintiff must offer evidence

of harassment "sufficiently severe or pervasive so as to alter the

conditions of [plaintiff's] employment and create an abusive work

environment." Murray v. Warren Pumps, LLC, 821 F.3d 77, 86 (1st

Cir. 2016) (quoting Ponte v. Steelcase Inc., 741 F.3d 310, 320

(1st Cir. 2014)). "The challenged conduct must be both objectively

and subjectively offensive, such that a reasonable person would

find it hostile or abusive and the plaintiff in fact did perceive

it to be so." Brader v. Biogen Inc., 983 F.3d 39, 59 (1st Cir.

2020) (quoting Maldonado-Cátala v. Municipality of Naranjito, 876

F.3d 1, 10 (1st Cir. 2017)). We evaluate a hostile work

environment claim considering the totality of the circumstances,

including the "frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably

- 23 - interfere[d] with an employee's work performance." Id. (quoting

Maldonado-Cátala, 876 F.3d at 10) (alteration in original).

While the record makes clear that Rios subjectively

found much of the complained-of conduct hostile, our precedents

make clear that it was not objectively so. Most critically, Rios

has failed to connect much of the complained-of conduct to any

discriminatory animus. "[G]enerally disagreeable behavior and

discriminatory animus are two different things." Id. at 64

(quoting Ahern v. Shinseki, 629 F.3d 49, 59 (1st Cir. 2010)). We

must "distinguish between the ordinary, if occasionally

unpleasant, vicissitudes of the workplace and actual harassment."

Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005).

In this appeal, Rios points to five incidents, all

involving Sergeant Ramos, that he alleges constitute harassment

rising to the level of a hostile work environment. These include:

(1) in October 2018, Rios was changing in the guard rest house

when, he alleges, Sergeant Ramos "spied" on him by listening with

his ear pressed to the wall and then falsely accused Rios of

sleeping on duty and walking around the rest house in his

underwear; (2) in early November 2018, Sergeant Ramos admonished

Rios for parking his car in the temporary and visitor parking near

the guard house and ordered Rios to move his car to a different

location farther away; (3) in early December 2018, Sergeant Ramos

admonished Rios for eating a snack while on duty; (4) on December

- 24 - 19, 2018, Rios overheard Sergeant Ramos telling another officer

that Rios was the "problematic one;" and (5) on December 20, 2018,

Sergeant Ramos offered Rios a doughnut in what Rios perceived as

a "mocking" manner.

In a hostile work environment claim under the ADA, any

alleged harassment must stem from an impermissible motivation,

particularly plaintiff's disability. See Brader, 983 F.3d at 59–

60. Rios explained that he first told Sergeant Ramos of his

diabetes in early December 2018, after Sergeant Ramos scolded him

for eating a snack while on duty. App. 481–82. The rest house

"spying" incident, the parking incident, and the eating admonition

all occurred before Sergeant Ramos knew of Rios's disability.

These incidents do not factor into our hostile work environment

analysis because they simply could not have been motivated by an

impermissible motive. They occurred before Sergeant Ramos was

aware of Rios's diabetes.

This leaves the incident where Rios overheard Sergeant

Ramos call him "problematic," as well as Sergeant Ramos's "mocking"

offer of doughnuts. Neither incident, standing alone or together,

would permit a jury to find severe or pervasive harassment that

altered the conditions of Rios's employment. See Brader, 983 F.3d

at 62 (explaining that generic complaints about a supervisor's

criticisms or effectiveness do not constitute "severe or

pervasive" harassment); see also Colón-Fontánez v. Municipality of

- 25 - San Juan, 660 F.3d 17, 44 (1st Cir. 2011) ("'simple teasing,

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms

and conditions of employment' to establish an objectively hostile

or abusive work environment." (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998)); cf. Rivera-Rivera v. Medina &

Medina, Inc., 898 F.3d 77, 91–94 (1st Cir. 2018) (reversing summary

judgment on hostile work environment claim where plaintiff was

taunted about her age nearly every single day for over two years:

she was told that she was "useless," was chastised for supposedly

lacking skills necessary to do job because her age rendered her

"slow," was told that given her age, she should seek Social

Security benefits, with the suggestion that because she was

perceived as being too old for the job, she should resign before

being forcibly discharged). We affirm the district court's grant

of summary judgment to Centerra on Rios's hostile work environment

VI. ADA RETALIATION CLAIM

The ADA prohibits "discriminat[ion] against any

individual because such individual has opposed any act or practice

made unlawful by this chapter or because such individual made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter." 42

- 26 - U.S.C. § 12203(a). Rios asserts that Centerra unlawfully

retaliated against him in violation of the ADA.

To survive summary judgment on his retaliation claim,

Rios "must establish a genuine issue of material fact as to whether

he . . . was retaliated-against within the meaning of the ADA."

Carreras v. Sajo, García & Partners, 596 F.3d 25, 32 (1st Cir.

2010). We adapt the burden-shifting framework discussed above to

analyze Rios's retaliation claim. See Soileau v. Guilford of

Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997) (explaining "guidance

on the proper analysis of [plaintiff's] ADA retaliation claim is

found in Title VII cases"). Rios may still assert a claim for

retaliation despite his failed discrimination claim. See

Echevarría v. AstraZeneca Pharmaceutical LP, 856 F.3d 119, 133

(1st Cir. 2017).

To establish a prima facie retaliation claim, Rios must

show that (1) he engaged in protected conduct; (2) he experienced

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

between the protected activity and the adverse employment action.

See Kelley v. Correctional Medical Servs., Inc., 707 F.3d 108, 115

(1st Cir. 2013) (listing elements of prima facie ADA retaliation

claim); Palmquist v. Shinseki, 689 F.3d 66, 77 (1st Cir. 2012)

(explaining that ADA contains a but-for causation standard for

retaliation and extending same standard to related provisions of

Rehabilitation Act of 1973).

- 27 - Here, we are skeptical whether Rios has offered evidence

from which a reasonable jury could find that he meets the elements

listed above. Several of the activities he points to do not

qualify as protected activity. For the two activities that were

arguably protected — a complaint letter in which Rios mentions his

diabetes and the meeting with Captain Caraballo and a human

resources officer — he has offered virtually no evidence that

would allow a reasonable jury to find he would not have experienced

an adverse employment action but for that protected conduct.

Still, we will assume that Rios has made out a prima facie

retaliation claim because the undisputed evidence shows that he

has failed to carry his burden at the final stage of the

burden-shifting framework. Rios has provided no evidence of

discriminatory animus that would allow a reasonable jury to infer

that Centerra's reasons for his firing were pretextual. We now

explain this conclusion in further detail.

A. PROTECTED ACTIVITY

Rios points to five instances of what he says were

protected activity. First, on October 24, 2018, he complained

orally to Lieutenant López about the incident in which Sergeant

Ramos supposedly spied on Rios in the rest house. In response,

Lieutenant López told Rios he could no longer use the rest house

- 28 - bedroom to change clothes. App. 487–88.5 During his deposition

testimony, Rios explained that he specifically complained that

Sergeant Ramos: (1) spied on him, (2) did not handle the situation

professionally, and (3) accused Rios of sleeping on duty and

walking around the rest house in his underwear without any

evidence. App. 484, 486–88. None of these minor complaints

related to Rios's disability or any investigation under the ADA,

so none amounted to a protected activity.

Second, sometime in mid to late November 2018, Rios met

with Captain Caraballo and Lieutenant López to discuss again the

October 19th rest house incident. He also discussed an additional

incident on November 15, 2018, in which Rios claims Sergeant Ramos

spied on him while Rios was on duty near the school. As discussed

above, the October 19th incident was unrelated to Rios's diabetes.

So was the November 15th incident. While on duty, Rios had taken

a moment to move his car and received a call about a family

emergency. While Rios was in his car on the telephone, Sergeant

5 In his briefs, Rios repeatedly asserts that, as a result of this incident, Lieutenant López forbade him from checking his blood glucose levels in the rest house bathroom. There is no factual support in the record for this assertion. During Rios's deposition, he was asked: "What did [Lieutenant López] tell you specifically?" Rios answered: "That I can't use the bedroom upstairs to get changed." However, there is nothing in Rios's testimony about not using the bathroom or bedroom to check blood glucose levels. Attorney argument or embellishment cannot substitute for missing evidence.

- 29 - Ramos was on supervisory rounds and approached Rios from the back

entrance to the school post. Rios framed this as Sergeant Ramos

"spying" on him.6 Sergeant Ramos scolded Rios for abandoning his

post to sit in his car and talk on the phone, but Rios did not

face any formal discipline. Neither minor incident, nor Rios's

November meeting with Captain Caraballo and Lieutenant López,

involved Rios discussing his diabetes or any ADA-related topics,

so these were not protected activities.

Third, on December 20, 2018, Rios submitted a written

grievance discussing an incident that occurred while Rios was on

duty the prior day. Before his shift, Rios was directed by

Sergeant Ramos to park in the new employee parking lot. Rios then

entered the area where he would be working through the exit because

he had previously seen other employees doing the same thing.

Sergeant Ramos confronted and scolded Rios about this. Rios also

explained in the letter that he overheard Sergeant Ramos calling

Rios "problematic" to another employee. The letter requested that

"S[ergeant] Ramos should learn to confront situations more

6 Throughout this opinion we have noted Rios's complaints about his supervisors "spying" on him. We must note the logical and etymological connections between supervision and oversight. Supervisors supervise by overseeing, that is, "looking over" subordinates. While "spying" comes with connotations of impropriety, the routine actions of Rios's supervisors in observing his behavior at work are not "spying" in the pejorative sense Rios has invoked.

- 30 - professionally and respectfully." Because Rios's letter did not

concern his diabetes or any other ADA-related topic, it was not

protected conduct under the ADA.

Fourth, on December 22, 2018, Rios submitted a second

written grievance. He repeated his complaint about overhearing

Sergeant Ramos telling another employee that he was a "problematic

person." Rios also explained that during his shift on December

20th, Sergeant Ramos followed him around very closely, admonished

him for running late, and told him to work more quickly. Rios

also accused Sergeant Ramos of failing to answer radio calls for

assistance in a timely manner. Finally, the letter explains that

on December 20th, Sergeant Ramos offered Rios a doughnut to eat.

During the letter's discussion of the doughnut incident, Rios

mentioned his diabetes. Because the letter mentioned Rios's

diabetes and varying blood sugar levels, that aspect of the

grievance might be deemed a protected activity.

Finally, Rios points to the meeting he held with Captain

Caraballo and a Centerra human resources official in which they

discussed his diabetes. This meeting was protected conduct, given

that the discussion largely focused on Rios's diabetes and the

information Centerra would need to determine if Rios qualified for

any reasonable accommodations under the ADA.

- 31 - B. ADVERSE EMPLOYMENT ACTION AND CAUSATION

Based on the timing of the two incidents of protected

activity above, Rios has raised two alleged adverse employment

actions. The first is the letter of reprimand received on December

27, 2018, and the second was his February 2019 termination. The

first incident was not an adverse employment action because Rios

suffered no employment consequences as a result of the reprimand

letter. See Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73

(1st Cir. 2011) (explaining that reprimands that carry no "tangible

consequences," even if undeserved, are not adverse employment

actions for purposes of retaliation claims).

Rios's termination was of course an adverse employment

action. But to establish a prima facie retaliation claim, Rios

must present evidence that would allow a reasonable jury to infer

that his termination was caused by his protected activity—either

the December 22nd complaint letter or his meeting with Captain

Caraballo and human resources.

Rios has provided very little evidence that any

protected activity caused or even contributed to his termination.

First, he asserts without any citation to the record that "the

relevant decision makers . . . uttered disability based comments

against him." Rios himself explained, however, that when he met

with Captain Caraballo and the human resources officer, they

readily started a process to determine if Rios needed any

- 32 - reasonable accommodations. Further, Rios did not testify that

either individual made any comments in that meeting that could

lead a reasonable jury to infer that his supervisors at Centerra

had any discriminatory animus towards him due to his disability.7

The only argument with record support that Rios makes to

show causation is the temporal proximity between the meeting with

Captain Caraballo and human resources and his eventual

termination. It is true that less than two months passed between

the meeting that constituted protected activity and Rios's

termination. However, "[t]he cases that accept mere temporal

proximity between an employer's knowledge of protected activity

and an adverse employment action as sufficient evidence of

causality to establish a prima facie case uniformly hold that the

temporal proximity must be very close." Cherkaoui v. City of

Quincy, 877 F.3d 14, 28–29 (1st Cir. 2017) (quoting Clark County

School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)).

Previously, this Court has noted that other circuits had found

three months too long a gap to permit by itself an inference of

causation, see Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,

7Rios also mentions in passing that comparator evidence can be used to support an inference of causation for a prima facie retaliation claim. But as explained, Rios has not provided any admissible evidence of similarly situated employees who were treated more favorably than he was. See supra at 17–19.

- 33 - 25 (1st Cir. 2004), but we found one month was sufficiently close

to establish a prima facie case, id. at 26.

Given the dearth of causation evidence other than an

almost two-month temporal gap, it may be a close question whether

Rios has made out a prima facie claim of retaliation. See Wright

v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (explaining

that "chronological proximity does not by itself establish

causality, particularly if '[t]he larger picture undercuts any

claim of causation'" (alteration in original) (quoting Soileau,

105 F.3d at 16)). But here, even if we assume he has done so, his

retaliation claim fails at the pretext stage of the analysis.

C. PRETEXT

As discussed above, Centerra has provided a legitimate,

non-discriminatory reason for Rios's termination—falling asleep on

duty in violation of company policy. Rios argues this reason is

pretextual in the context of his retaliation claim. The same

evidence that Rios used to establish causation for his prima facie

retaliation claim is what Rios argues would allow a reasonable

jury to infer pretext.

As already recounted, undisputed facts in the record

show that: (1) Rios was fired for falling asleep while at work;

and (2) neither Captain Caraballo nor the human resources officer

demonstrated any discriminatory animus towards Rios during the

meeting in which they discussed his medical conditions. Indeed,

- 34 - the evidence overwhelmingly supports that Centerra fired Rios for

falling asleep on the job. "The ADA is not a license for

insubordination at the workplace." Reed v. LePage Bakeries, Inc.,

244 F.3d 254, 262 (1st Cir. 2001). The mere fact that Rios was

terminated less than two months after engaging in protected conduct

would not, in the light of all the other evidence in the record to

the contrary, allow a reasonable jury to infer that Centerra's

reason for firing Rios was pretextual. See Echevarría, 856 F.3d

at 138 (affirming summary judgment on retaliation claim; while

one-day time gap between protected conduct and adverse employment

action was temporally close, that alone was insufficient to

establish pretext and overcome defendant's non-retaliatory

explanation); Alvarado v. Donahoe, 687 F.3d 453, 463–64 (1st Cir.

2012) (affirming grant of summary judgment for defendant on

retaliation claim; one week between protected conduct and

suspension was sufficiently close to warrant prima facie inference

of a causal connection between two events, but insufficient to

establish pretext and overcome defendant's asserted

non-retaliatory reason for the suspension); Carreras, 596 F.3d at

38 (summary judgment for defendant on ADA retaliation claim was

proper when only evidence of pretext in record was temporal

proximity of four days between plaintiff's protected activity and

adverse employment action). We affirm the district court's grant

of summary judgment to Centerra on Rios's retaliation claim.

- 35 - VII. DENIAL OF RULE 56(D) MOTION

We review for an abuse of discretion a district court's

denial of a Federal Rule of Civil Procedure 56(d) motion for

additional time to obtain evidence to oppose summary judgment.

Emigrant Residential LLC v. Pinti, 37 F.4th 717, 724 (1st Cir.

2022). To succeed, a party's Rule 56(d) motion typically must:

"1) be timely; 2) be authoritative; 3) show good cause for failure

to discover the relevant facts earlier; 4) establish a plausible

basis for believing that the specified facts probably exist, and

5) indicate how those facts will influence the outcome of summary

judgment." Pina v. Children's Place, 740 F.3d 785, 794 (1st Cir.

2014).8

"As we have often observed, however, Rule 56(d) 'is

designed to minister to the vigilant, not to those who slumber

upon perceptible rights.'" Id. at 794 (quoting Massachusetts

School of Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26,

45 (1st Cir. 1998)). To that end, a party must show an exercise

of due diligence in pursuing discovery before a motion for summary

judgment is filed, as well as moving for an extension of time for

additional discovery after the summary judgment motion is filed.

8 Prior to 2010, Rule 56(d) was denominated Rule 56(f). See Fed. R. Civ. P. 56 advisory committee's note to 2010 amendment; Emigrant Residential LLC, 37 F.4th at 724.

- 36 - See Guzmán-Ruíz v. Hernández-Colón, 406 F.3d 31, 35 (1st Cir.

2005).

Rios's Rule 56(d) motion was filed (1) after he had twice

assured the district court, through joint motions, that there were

no pending discovery disputes between the parties, Dkt. 19, 21,

and (2) after requesting an extension of time to oppose the motion

for summary judgment without mentioning any outstanding discovery

requests, Dkt. 25. In fact, Rios filed his Rule 56(d) motion on

the same day his Opposition to the Motion for Summary Judgment was

due after the court granted his initial extension request. Dkt.

27.

Further, the additional discovery Rios said he was

seeking through his Rule 56(d) motion was comparator evidence from

Centerra. He was hoping to discover similarly situated employees

who were treated more favorably than he was. Dkt. 27. The possible

need for such evidence could not have come as a surprise. Any

attorney representing a plaintiff in an employment discrimination

case should understand even before filing a complaint that

comparator evidence may be critical. The district court did not

abuse its discretion by treating this belated request as an

insufficient reason for further delay and prolonged discovery.

Rios has failed to show good cause for his failure to discover

these facts earlier.

- 37 - Centerra supplemented its interrogatory responses and

document production on August 14, 2020, about four months before

the discovery deadline in the case. See Dkt. 31-1. That left

Rios with plenty of time to move to compel under Federal Rule of

Civil Procedure 37 if he did not think Centerra's responses were

sufficient, particularly with regard to his requests related to

comparator evidence. Cf. Rivera-Almodóvar v. Instituto

Socioeconómico Comunitario, Inc., 730 F.3d 23, 27 (1st Cir. 2013)

37 ("The plaintiff's situation did not call for heroic measures

but, rather, for a routine motion to compel. A motion to compel

is a standard tool, well within the capability of any reasonably

diligent litigant." (internal citations omitted) (emphasis

added)). "[T]he plaintiff slumbered through discovery and never

seasonably availed [him]self of the discovery-enforcement tools

that were at h[is] disposal. This sort of circumstance has

considerable force in our review of the denial of a Rule 56(d)

motion." Id. at 29. The district court did not abuse its

discretion in denying Rios's Rule 56(d) motion given his failure

to show good cause or due diligence in pursuing discovery for

information regarding similarly situated employees.

VIII. Conclusion

The judgment of the district court is AFFIRMED.

- 38 -