United States Court of Appeals
For the First Circuit
No. 06-2468
SIDNEY MARIANI-COLÓN,
Plaintiff, Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
through its Secretary, Michael Chertoff,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Circuit Judge,
Baldock, * Senior Circuit Judge,
and Lipez, Circuit Judge.
Mauricio Hernández Arroyo for appellant.
Isabel Muñoz-Acosta, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, and Thomas F. Klumper, Assistant United States
Attorney, were on brief for appellee.
December 18, 2007
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Senior Circuit Judge. Appellant Sidney
Mariani-Colón (Mariani) is a black, Puerto Rican male who
was provisionally hired as a federal air marshal, subject to
his successful completion of a training program at the
Federal Law Enforcement Training Center (FLETC) in Artesia,
New Mexico. Appellant failed to graduate from the FLETC
program. The Transportation Security Administration (TSA),
a division of appellee Department of Homeland Security,
ultimately terminated his employment.
Appellant brought suit in the United States District
Court for the District of Puerto Rico alleging two distinct
violations of Title VII. First, appellant alleged he was
discriminated against, in the course of his employment,
based on his race, sex, color, and national origin. Second,
appellant asserted he was discharged in retaliation for his
administrative complaints of discrimination. The district
court granted summary judgment to TSA on both claims.
Appellant raises two issues on appeal. First, appellant
challenges the district court’s decision to deem appellee’s
statement of uncontested facts admitted because, according
to the district court, appellant’s response failed to comply
with Local Rule 56(c). Second, appellant appeals the
district court’s grant of summary judgment in favor of TSA
on his Title VII claims for discrimination and retaliation.
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We have jurisdiction under 28 U.S.C. § 1291, and affirm.
I.
At the outset, appellant challenges the district court’s
determination that his response to TSA’s motion for summary
judgment failed to comply with Local Rule 56(c).
Specifically, he challenges the district court’s order
deeming appellee’s statement of uncontested facts thereby
admitted. See D.P.R.R. 56(c). We review the district
court’s application of a local rule for an abuse of
discretion. See Crowely v. L.L. Bean, Inc., 361 F.3d 22, 25
(1st Cir. 2004). A district court may forgive a party’s
violation of a local rule, but we will “review deferentially
its refusal to do so.” Id.
Local Rule 56(c) requires “a party opposing a motion for
summary judgment to accept, deny, or qualify each entry in
the movant’s statement of material facts paragraph by
paragraph and to support any denials, qualifications, or new
assertions by particularized citations to the record.”
Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 6-7
(1st Cir. 2007). If the party opposing summary judgment
fails to comply with Local Rule 56(c), “the rule permits the
district court to treat the moving party’s statement of
facts as uncontested.” Alsina-Ortiz v. Laboy, 400 F.3d 77,
80 (1st Cir. 2005).
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The purpose of this “anti-ferret rule” is to require the
parties to focus the district court’s attention on what is,
and what is not, genuinely controverted. Id.; see also
Cabán Hernández, 486 F.3d at 7. Otherwise, the parties would
improperly shift the burden of organizing the evidence
presented in a given case to the district court. See Cabán
Hernández, 486 F.3d at 8; Alsina-Ortiz, 400 F.3d at 80.
Given Local Rule 56(c)’s important purpose, this Court has
repeatedly upheld its enforcement, stating that litigants
ignore it “at their peril.” Cabán Hernández, 486 F.3d at 7;
see also Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1st
Cir. 2003).
In this case, appellant attempts to “confess and avoid”
by admitting that his pleading fails to admit, deny, or
qualify each of appellee’s assertions of fact, while arguing
that his alternative statement of facts fulfills the spirit
of the local rule. Cabán Hernández, 486 F.3d at 7. This
Court has previously held that submitting an “alternate
statement of facts,” rather than admitting, denying, or
qualifying a defendant’s assertions of fact “paragraph by
paragraph as required by Local Rule 56(c),” justifies the
issuance of a “‘deeming’ order,” which characterizes
defendant’s assertions of fact as uncontested. Id.
Consequently, we uphold the district court’s decision to
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treat appellee’s statement of facts as uncontested. 1
Nonetheless, we conclude that, even absent a deeming order,
the district court properly granted summary judgment in
this case.
II.
We proceed to summarize the sequence of events related
to appellant’s claims in the light most favorable to him.
See Suarez v. Pueblo Intern, Inc., 229 F.3d 49, 53 (1st Cir.
2000) (“[W]e must view the entire record in the light most
hospitable to the party opposing summary judgment . . . .”).
Appellant worked as a correctional officer at the
Metropolitan Detention Center, a federal prison facility in
Guaynabo, Puerto Rico. In May 2002 he applied for, and was
granted, a provisional appointment as a federal air marshal.
This appointment was conditioned on appellant’s successful
completion of a training program at FLETC. Upon successful
completion of the program, candidates serve an additional
twelve month probationary period before becoming permanent
employees of the Federal Air Marshal Service (FAMS). FAMS
is under the purview of TSA.
During the hiring process, appellant filled out a duty
1
“This, of course, does not mean the unopposed party
wins on summary judgment; that party’s uncontested facts and
other evidentiary facts of record must still show that the
party is entitled to summary judgment.” Torres-Rosado, 335
F.3d at 4.
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location preference form. The form provided a list of
available duty stations and appellant was able to rank his
top eight choices. Out of the duty stations then available,
appellant ranked New York, New York as his first choice.
Consequently, TSA assigned appellant to its New York office.
Later candidates were provided with a different list of
possible duty stations. Appellant learned that some of
these candidates had been able to list Miami on their
preference forms. Subsequently, appellant requested a
transfer to this location. TSA denied his request. 2
One hundred and thirty nine candidates, including
appellant, started service with FAMS on May 12, 2002. 3
Based on a list of qualifying factors, TSA gave sixty-five
of these candidates, including appellant, a base annual
salary of $36,400. Thus, TSA provided appellant with the
same base salary as approximately forty-seven percent of
federal air marshal candidates entering service at this
time. TSA assigned seventy four candidates, or
2
Appellant does not allege that TSA allowed other
similarly situated candidates to transfer. We, therefore,
decline to consider this matter further. See United States
v. Soler, 275 F.3d 146, 155 n.5 (1st Cir. 2002)(noting that
arguments not developed on appeal are waived).
3
The record does not reflect the race of these
candidates. Therefore, the Court cannot construct a racial
distribution of basic pay offered to candidates who began
service at the same time as appellant.
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approximately fifty-three percent of the candidates entering
service on May 12, 2002, an annual base salary greater than
$36,400.
While at FLETC, appellant experienced difficulties with
his weapons training. Several incidents, involving the
scoring of a target and an offhand comment appellant made
relating to another individual shooting appellant’s target
for him, led certain FLETC officials to question appellant’s
integrity. Appellant did, however, achieve a passing score
on at least one firearms test. Nevertheless, appellant’s
problems concentrating, and his apparent violation of
several safety regulations while on the shooting range, led
FLETC instructors to place him on “safety watch.” This
resulted in appellant being more closely monitored.
Appellant, however, was unaware that he was on safety watch.
After incidents in which instructors alleged appellant
improperly used deadly force and pointed his gun down range
while another student was manually adjusting a target, FLETC
officials suspended him from further firearms training.
As a result of this suspension, appellant failed to
graduate from FLETC. TSA placed him on administrative leave
and appellant returned to Puerto Rico in June 2002. Shortly
thereafter, appellant contacted TSA’s human resources
department and the Equal Employment Opportunity Commission
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(EEOC), alleging he was the subject of illegal
discrimination. After appellant made these allegations of
discrimination, TSA offered him an administrative position
in New York. No record evidence suggests appellant accepted
this administrative position. 4
Instead, appellant requested to be put on sick leave.
TSA granted this request. Appellant used up all of his sick
leave and vacation time. Eventually, appellant went on
unpaid leave. In August 2002, TSA sent appellant a
termination letter, explaining that he was being terminated
during his probationary period for failure to meet the
requirements of his conditional appointment as a federal air
marshal. More specifically, the letter referenced
appellant’s failure to graduate from the FLETC program due
to multiple safety violations, appellant’s failure to
comprehend the proper use of deadly force, and the incident
in which appellant allegedly asked another person to fire at
his target in order to increase his shooting score.
III.
Appellant raises two claims under Title VII. First,
appellant alleges TSA discriminated against him by treating
him differently than other federal air marshal candidates.
4
Appellant merely alleges he requested that TSA send
him a description of the position and the salary he would
receive.
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Appellant argues this disparate treatment is evidenced by
TSA giving him: 1) fewer placement options, 2) less pay, and
3) harsher discipline, based on his race, sex, color, and
national origin. Second, appellant claims TSA fired him in
retaliation for his administrative complaints concerning
this discrimination.
We review a district court’s grant of summary judgment
de novo “based on the record as it stood before the district
court.” Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50,
54 (1st Cir. 2006). In conducting our review, we “view the
entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Suarez, 229 F.3d at 53.
We may safely ignore, however, “conclusory allegations,
improbable inferences, and unsupported speculation.” Id.
Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Although employment discrimination
cases deal with “elusive concepts such as motive or intent,”
this standard compels summary judgment if the non-moving
party rests his case “merely upon conclusory allegations,
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improbable inferences, and unsupported speculation.”
Feliciano de la Cruz v. El Conquistador Resort, 218 F.3d 1,
5 (1st Cir. 2000).
A.
We first address appellant’s Title VII discrimination
claim. Disparate treatment cases “ordinarily proceed under
the three-step, burden-shifting framework” outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).
First, the plaintiff must establish, by a preponderance of
the evidence, a prima facie case of discrimination. See
Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir. 2003).
Second, if the plaintiff makes out this prima facie case,
the defendant must ar t i c u l a t e a legitimate,
nondiscriminatory explanation for its actions. See id.
Third, if the defendant carries this burden of production,
the plaintiff must prove, by a preponderance, that the
defendant’s explanation is a pretext for unlawful
discrimination. See id. The burden of persuasion remains
at all times with the plaintiff. See Sher v. U.S. Dep’t of
Veterans Affairs, 488 F.3d 489, 507 (1st Cir. 2007).
Generally, a plaintiff establishes a prima facie case
of discrimination by showing: 1) he is a member of a
protected class, 2) he is qualified for the job, 3) the
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employer took an adverse employment action against him, and
4) the position remained open, or was filled by a person
with similar qualifications. See Kosereis, 331 F.3d at 212-
13. This burden is “not onerous,” as only a “small showing”
is required. Id. at 213; see also id. (noting that
comparative evidence is treated as part of the pretext
analysis, not as part of the plaintiff’s prima facie case).
In this case, appellant is a black Puerto Rican male and
thus is a member of a protected class. We assume he was
qualified for a provisional appointment as a Federal Air
Marshal. Further, appellant has shown that TSA took at
least one adverse employment against him (i.e., he was
terminated). Finally, appellant’s position was undoubtedly
filled by someone with similar qualifications. We,
therefore, assume that appellant has established a prima
facie case of discrimination.
Next, we consider the government’s nondiscriminatory
rationales for its treatment of appellant. In regard to
placement options, the government argues that no candidate
who filled out a placement form at the same time as
appellant was allowed to select Miami, Florida as a possible
duty station. Concerning pay, the government claims that
under an established list of neutral factors appellant’s
experience did not entitle him to a higher rate of basic
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pay. As to discipline, the government alleges that
appellant’s history of learning difficulties, serious safety
violations, and untrustworthy behavior justified not only
heightened monitoring of appellant but also his eventual
suspension from the FLETC program. We conclude that the
government has provided ample nondiscriminatory
justifications for its actions.
Now we must consider the evidence appellant has
presented to show that the government’s stated reasons for
its actions are pretextual. See Kosereis, 331 F.3d at 213
(stating that, as compared to a court’s consideration of
whether a plaintiff has established a prima facie case,
“pretext analysis . . . is more demanding”). Most of
appellant’s proffered evidence of disparate treatment
consists of either his own personal observations, or
conversations he had with other trainees, which led him to
believe he was the target of illegal discrimination. We,
therefore, discuss generally the relevance of these personal
observations and conversations to appellant’s showing
of pretext.
Our review of appellant’s statements, concerning his
experiences at FLETC, assures us that they do not contain
“adequate specific factual information based on personal
knowledge,” to create a genuine issue of material fact.
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Quinones v. Buick, 436 F.3d 284, 290 (1st Cir. 2006). On
the contrary, these statements merely reflect appellant’s
“subjective speculation and suspicion” that he was treated
unfairly. Id. Proof of more than appellant’s subjective
belief that he was the target of discrimination, however, is
required. In order to establish a disparate treatment
claim, a plaintiff must show that others “similarly situated
to him in all relevant respects were treated differently by
the employer.” Kosereis, 331 F.3d at 214.
First, appellant offers no evidence whatsoever that TSA
provided other trainees going through the hiring process at
the same time as appellant a more comprehensive list of
placement options. Second, the only hard evidence appellant
presents in regard to pay demonstrates that TSA granted
nearly half of the candidates who entered service with
appellant the same amount of basic pay appellant received.
This statistical evidence does not indicate that appellant
was the target of illegal discrimination.
Third, appellant alleges that a female candidate with
concentration problems, similar to his own, was disciplined
less harshly. He also claims that other candidates who
committed safety violations, such as failing to properly
store a weapon, were not punished. In addition, appellant
argues that another trainee, who had difficulties during
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weapons training, was allowed to remain at FLETC until he
passed the firearms course.
What appellant has wholly failed to show, however, is
that any of these candidates engaged in rule violations that
were of the same level of seriousness as the offenses with
which he was charged (i.e., that they were similarly
situated). See Kosereis, 331 F.3d at 214. Instead,
appellant focuses on contesting his instructor’s assertions
that his performance was unacceptable. In evaluating
whether an employer’s stated reasons for an adverse
employment action are pretextual, however, our concern is
not whether appellant was actually performing below
expectations, but whether his employer “believed that [he]
was.” Feliciano de la Cruz, 218 F.3d at 7.
Appellant engages in much speculation. But he has
failed to present reliable comparative evidence suggesting
the government’s actions were based not on his perceived
failings, but on discriminatory animus. Cf. Ortiz García v.
Toledo Fernández, 405 F.3d 21, 24 (1st Cir. 2005).
Consequently, appellant cannot establish pretext in regards
to his unwarranted discipline claim. 5
5
Appellant also argues that: 1) one of his
supervisors, Jerry Alicea, was not aware of the complaints
concerning him, and 2) he never received a written warning.
Appellant fails to explain, however, how these allegations
(continued...)
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To survive a defendant’s motion for summary judgment on
a discrimination claim, a plaintiff must produce sufficient
evidence to create a genuine issue of fact as to two points:
1) the employer’s articulated reasons for its adverse
actions were pretextual, and 2) the real reason for the
employer’s actions was discriminatory animus based on a
protected category. See Quinones, 436 F.3d at 289-90;
Feliciano de la Cruz, 218 F.3d at 6. Appellant has failed
to make the first required showing that the government’s
stated reasons for its actions were pretextual. Therefore,
his Title VII discrimination claim fails.
B.
We next consider appellant’s Title VII retaliation
claim. Title VII retaliation claims also proceed under the
burden-shifting framework laid down in McDonnell Douglas.
See Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 74, 81
& n.4 (1st Cir. 2007); supra Part III.A (describing this
framework). In order to establish a prima facie case of
5
(...continued)
support his claim of disparate treatment. For instance,
appellant does not allege that all supervisors were
generally aware of problems concerning all candidates, or
that it was customary for candidates to receive written
warnings. Because appellant has failed to develop these
arguments, we consider them waived. See United States v.
Jíminez, 498 F.3d 82, 88 (1st Cir. 2007) (“[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation are deemed waived.”).
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retaliation, a plaintiff must establish three elements.
First, the plaintiff must show that he engaged in a
protected activity. Id. at 81. Second, the plaintiff must
demonstrate he suffered a materially adverse action, which
caused him harm, either inside or outside of the workplace.
See id. The impact of this harm must be sufficient to
dissuade a reasonable worker from making or supporting a
charge of discrimination. See id. Third, the plaintiff
must show that the adverse action taken against him was
causally linked to his protected activity. See id.
In this case, appellant undoubtedly engaged in a
protected activity when he contacted TSA human resources
department and the EEOC alleging he was the target of
illegal discrimination. Furthermore, appellee’s termination
of appellant was a materially adverse action sufficient to
dissuade a reasonable worker from making or supporting a
charge of discrimination. 6 In dispute is whether appellant
has shown a causal connection between his allegations of
6
Appellant also argues that various happenings at
FLETC support his claim for retaliation. Because these
events occurred before appellant engaged in activity
protected by Title VII (i.e., before appellant complained of
discrimination), we do not address these claims. See
Torres-Negrón v. Merck & Co., 488 F.3d 34, 44 (1st Cir.
2007) (explaining that an employee engages in protected
activity, for purposes of a Title VII retaliation claim, by
opposing a practice made unlawful by Title VII, or by
participating in any manner in an investigation or
proceeding under Title VII).
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discrimination and his subsequent termination. We conclude
that the “temporal proximity” between appellant’s
allegations of discrimination in June 2002 and his
termination in August 2002 is sufficient to meet the
relatively light burden of establishing a prima facie case
of retaliation. Pomales v. Celulares Telefónica, Inc., 447
F.3d 79, 85 (1st Cir. 2006).
In support of appellant’s termination, the government
points out that appellant never accepted the administrative
position offered to him in New York, nor reported for duty,
despite having exhausted his leave. The government further
argues that appellant failed to meet the terms of his
conditional appointment as a federal air marshal.
Appellant’s failure to report for duty upon exhaustion of
his leave, and his failure to meet the conditions of his
original appointment as a federal air marshal, represent
legitimate, non-retaliatory reasons for appellant’s
discharge. Consequently, we conclude the government has
offered a non-retaliatory justification for appellant’s
dismissal that is sufficient to overcome appellant’s prima
facie case of retaliation.
A more exacting examination of the sequence of events
leading to appellant’s discharge shows that Mariani was
fired a few weeks after he went on unpaid leave. Given
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appellant’s continued failure to accept an alternative
position with TSA and return to work, the temporal proximity
between appellant’s complaints of discrimination and his
discharge fails to raise an “inference of retaliatory
motive.” Colburn v. Parker Hannafin, 429 F.3d 325, 338 (1st
Cir. 2005). Rather, appellant’s termination at this time
presumably reflects TSA’s judgment that a more reliable
employee could better fill the position offered to Mariani.
See Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc.,
447 F.3d 105, 111 (1st Cir. 2006)(concluding that an
employee’s “failure to return to work by a particular date”
constituted a valid reason for her termination). Under
these facts, the temporal proximity between appellant’s
complaints of discrimination and his termination does not
show that the government’s justifications for firing
appellant are pretextual.
Appellant offers no additional evidence to show that the
reasons the government offered for his termination are
pretextual. While appellant engages in much speculation and
conjecture, a plaintiff cannot defeat summary judgment by
relying on “conclusory allegations, or rank speculation.”
Fontánez-Núñez, 447 F.3d at 55. To defeat summary judgment,
a plaintiff must make a colorable showing that an adverse
action was taken “for the purpose of retaliating” against
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him. Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.
1997). Appellant has not made this showing. Consequently,
his Title VII claim for retaliation also fails.
Affirmed.
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