Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1855
RAFAEL ARROYO,
Plaintiff, Appellant,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Hawkins,* and Barron,
Circuit Judges.
Juan M. Frontera-Suau, with whom Kenneth Colón and Frontera
Suau Law Offices, PSC, were on brief for appellant.
Fidel A. Sevillano Del Río, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Tiffany V. Monrose, Assistant United
States Attorney, were on brief, for appellee.
* Of the Ninth Circuit, sitting by designation.
March 4, 2016
HAWKINS, Circuit Judge. Plaintiff Rafael Arroyo ("Arroyo")
appeals the district court's grant of summary judgment to the
United States Social Security Administration ("Defendant").
Arroyo alleges Defendant failed to promote him in retaliation for
activities he undertook as a union representative on behalf of
others and for his own EEOC complaints. We affirm.
STATEMENT OF PROCEDURAL HISTORY
AND UNCONTESTED FACTS
Plaintiff has been employed with the Social Security
Administration ("agency") in various capacities since 1991,
working as a Teleservice Representative in the San Juan Teleservice
Center ("TSC") from 1991 through 2003, and being promoted to grade
GS–8 level in April 1999. Since May 2003 he has been employed as
a Claims Representative, grade GS–11, in the Hato Tejas Branch
Office. Between 1993 and 2012, plaintiff represented other agency
employees in Equal Employment Opportunity ("EEO") grievances and
other labor matters. Arroyo v. Colvin, No. 12-1846, 2014 WL
2615750, at *1 (D.P.R. June 12, 2014).
Between 1997 and 2011, plaintiff applied for numerous
promotions, but was not awarded any of the positions. After filing
several claims with the Equal Employment Opportunity Commission
("EEOC"), Arroyo filed a federal complaint against Defendant
alleging retaliation and gender discrimination, and also
referencing age discrimination.
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Defendant moved for summary judgment, which the district
court granted, concluding that even if Arroyo had established a
prima facie case of retaliation, he had not presented evidence
that could carry his burden of proving that the legitimate,
nondiscriminatory reasons proffered for promoting other candidates
were merely pretext for retaliation. Id. at *1-3. Arroyo timely
appealed; only his retaliation claims are at issue on appeal.
STANDARD OF REVIEW
We review a grant of summary judgment de novo. Alvarado v.
Donahoe, 687 F.3d 453, 458 (1st Cir. 2012). Summary judgment is
appropriate if the pleadings and evidence show that there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 4 (1st Cir. 2010).
DISCUSSION
To prove a claim of retaliation, Arroyo must establish that
(1) he engaged in a protected activity; (2) experienced an "adverse
employment action"; and (3) there was a "causal connection between
the protected conduct and the adverse employment action." Calero-
Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004).
If Arroyo establishes a prima facie case, then the Defendant must
articulate a legitimate, nondiscriminatory reason for its actions,
Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 30 (1st
Cir. 2015), and the burden returns to the plaintiff to demonstrate
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that the agency's reasons were pretextual. Id. at 31. There is
no dispute that Arroyo engaged in a protected activity and that
failure to promote can be an adverse employment action, thus his
appeal centers around whether the agency’s reasons were
pretextual.
A. Case # 99-02231
This EEOC complaint involved a failure to promote under two
different vacancy announcements in March and April 1997, one
involving a single position which was withdrawn and another
involving eleven positions in which Arroyo was one of many
candidates on the best-qualified list but ultimately not selected
for any of the positions. Even assuming that Arroyo's
representation of employees in EEOC grievances is sufficient to
create a prima facie case of retaliation,2 Arroyo did not create a
1 The parties and the district court refer to Arroyo's claims
based on the EEOC case numbers, and we do the same.
2 Arroyo claims that he has established a prima facie case of
causal connection because of the temporal proximity of his
activities as a union representative and his failure to receive
the promotions. However, Arroyo’s affidavit is somewhat vague and
broken into three separate periods of time: "Since around 1993
approximately until 1995 plaintiff represented union employees in
EEO grievances and other labor related matters against the agency
and its officials," "Since 1995 until 2009 plaintiff represented
several employees in EEO processes within the agency," and finally,
referring to a list of all cases he had been involved in from 2009
until July 2012. The district court concluded that these dates
were too vague and imprecise to create a strong inference of
causality all the way from 1993 to 2012. The court noted that
there was no evidence that his representation was continuous, as
Arroyo could have represented one employee in 1995 and another in
1999 or not until 2009. Arroyo, 2014 WL 2615750, at *5-6. We
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material issue as to whether the Defendant's legitimate, non-
discriminatory reasons for declining to promote him were
pretextual.
With respect to the single vacancy for a claims representative
in the St. Croix office, the vacancy was cancelled because one of
the current claims representatives had planned to transfer to
Florida but changed her mind. Three of the eleven other vacancies
were hired by Ms. Hernández, who indicated she had personal
experience working with each of the three persons she hired,
including one who was a former secretary, and she had no personal
experience working with Mr. Arroyo. Hernández indicated she
considered Arroyo for the position, but there was "nothing in his
application that stood out when compared to those selected."
Three other claims representative positions were filled by
Ms. Montalvo, who due to staffing limitations was unable to select
any applicant "not employed in the Mayagüez district" and made her
decision entirely on seniority when selecting among those
applicants. Montalvo stated she did not consider Arroyo or any
other applicant outside the Mayagüez district.
need not resolve this issue because, as discussed below, even
assuming Arroyo established a prima facie case, the court correctly
granted summary judgment to the Defendant on alternate grounds.
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Mr. Siaca selected two applicants to fill positions in the
Arecibo office, choosing one who was the service representative
with the most seniority in the Arecibo office and another, who was
a current claims representative, and thus better qualified than
other candidates. Siaca indicated he considered all the
applicants on the Best Qualified List, including Arroyo, but
"nothing in his record made him stand out."
Mr. Negrón hired the final three claims representative
positions. He hired one individual for the Caguas office who was
already performing well in that office based on his own
observations and those of a supervisor, another individual who had
fifteen to twenty years of experience and was highly recommended
by a supervisor, and another for the Cayey office who had
previously been a well-performing claims representative in that
office but had resigned for medical reasons and had to come back
to work as a service representative instead. Negron also
indicated he considered Arroyo for the positions but nothing in
his application "stood out."
In each instance, Defendant offered legitimate and
nondiscriminatory reasons for promoting other individuals. See
Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 250 (1st Cir.
1997) ("[W]e do not assume the role of a super personnel
department, assessing the merits—or even the rationality—of
employers' nondiscriminatory business decisions.") (internal
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citations and quotations omitted). Arroyo introduced no evidence
or facts which would enable a jury to find that these reasons were
a sham to cover up retaliation against him. Meléndez v.
Autogermana, Inc., 622 F.3d 46, 52 (1st Cir. 2010).
B. Case # 00-0489
In March 2000, Arroyo applied for a promotion to one of five
claims representative positions. He was included on the Well
Qualified List but not selected. His complaint alleged he was not
selected because of his gender and in reprisal for his prior EEO
activity. He appeals only the retaliation claim.
Mr. Caraballo hired an individual to fill the claims
representative position in the small St. Croix office. Caraballo
indicates he selected this individual because she worked in the
office already, had received numerous performance awards for her
service, and was also familiar with and involved in the Virgin
Islands community. Mr. Negrón hired the remaining four claims
representative positions, indicating he selected persons based on
personal observations of their work, supervisors' reports, and
longevity of service (over nineteen years each), whereas Arroyo
had only nine years of experience at the time.
Although Arroyo complains that the reasons given suggest the
agency is promoting friends instead of using merit-based criteria,
there is nothing to suggest that the proffered reasons are really
pretext for retaliation against Arroyo. See Vélez v. Thermo King
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de Puerto Rico, Inc., 585 F.3d 441, 452 (1st Cir. 2009) (plaintiff
must do more than "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") (citation and quotation marks omitted)
(alteration in original).
C. Case No. 09-0500
In January 2009, Arroyo applied for a promotion to San Juan
TSC Supervisor (GS-12). Arroyo had worked as a teleservice
representative (GS-8) in the San Juan TSC 1999-2003 and as a claims
representative (GS-11) in the Hato Tejas office 2003-2009. The
hiring decisionmaker, Ms. Carrasquillo, selected a person with a
total of seventeen years of experience in San Juan TSC, including
four positions of increasing responsibility (GS-8 to GS-12). Ms.
Carrasquillo stated she was looking for a candidate who had
significant experience working at TSC. Arroyo only had four years
of experience at TSC, and that was several years prior and at a
lower level. Again, Arroyo has not offered any evidence beyond
temporal proximity that would create an issue of fact as to whether
Defendant's explanation of its hiring decision was pretextual.
Pointe v. Steelcase Inc., 741 F.3d 310, 323 (1st Cir. 2014). On
these facts, he has failed to bear his burden of demonstrating
that the reasons proffered for selecting the other candidate were
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"not the true reason for the employment decision." Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
D. Case # 11-0675
Arroyo's final case involves his failure to receive a
promotion to Deputy TSC Manager in February 2011. The hiring
decisionmaker, Ms. Hachicho, stated that she was looking for
someone with supervisory experience for the position because in
the absence of the manager, the deputy manager would run the entire
office. Hachicho was also looking for someone with claims process
experience, because the deputy manager would supervise the claims
representatives. According to Hachicho, the individual she hired
was by far the strongest candidate because she possessed both
supervisory experience and claims taking experience. Arroyo had
the claims experience, but did not have any formal supervisory
experience. Hachicho stated that if an applicant did not have
both, she put them to the side and focused instead on the
applicants who met both criteria. Again, the agency has proffered
a legitimate reason for promoting someone instead of Arroyo and
there is no evidence suggesting this was merely pretext for
retaliation.
For the foregoing reasons, we agree with the district court
that "viewing the summary judgment record as a whole, no rational
jury could find that plaintiff was denied the promotions in
question because of his protected activity" in light of the
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sufficient nondiscriminatory reasons given by the Defendant.
Arroyo, 2014 WL 2615750, at *17.
AFFIRMED.
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